IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 WP(C).No. 4923 of 2005(J) ------------------------- PETITIONER(S): --------------- T.S.SANTHOSH KUMAR, S/O.LATE SARALA DEVI, KOYIPPAD, ERAM NORTH, CHATHANNUR, KOLLAM. BY ADV. MR.M.V.THAMBAN MR.K.V.ANIL KUMAR RESPONDENT(S): --------------- 1. THE MANAGER, TEM VOCATIONAL HIGHER SECONDARY SCHOOL, MYLODE, POOYAPPALLY, KOLLAM. 2. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 5. DANNIE.B.C., VADAKKATHIL PUTHEN VEEDU, NETTAYAM (PO), POOYAPPALLY (VIA), KOLLAM. GOVERNMENT PLEADER MS. SMITHA SUKUMAR FOR R2 TO 4 MS.P.V.ASHA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2009, ALONG WITH WPC NO. 6223 OF 2005 WPC NO. 5367 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4923 of 2005 APPENDIX EXT.P1: COPY OF APPLICATION DTD 18.1.2000 SUBMITTED BEFORE THE MANAGER. EXT.P2: COPY OF LETTER NO.B5/600/2000/L.DIS. DATED 30.5.2000 BY R2. EXT.P3: COPY OF APPLICATION DTD 27.7.2000 SUBMITTED BEFORE THE MANAGER. EXT.P3(a): COPY OF APPENDIX A TO GO(P)12/99/P&ARD DT. 24.5.99 SUBMITTED BY PETITIONER ALONG WITH EXT.P3. EXT.P3(b): COPY OF APPENDIX B TO GO(P)12/99/P&ARD DT. 24.5.99 SUBMITTED BY PETITIONER ALONG WITH EXT.P3. EXT.P3(c): COPY OF CONSENT LETTER ISSUED BY N. DEVARAJAN, HUSBAN OF LATE K. SARALADEVI. EXT.P3(d): COPY OF CONSENT LETTER ISSUED BY D. DEEPAK, S/O. LATE K. SARALADEVI. EXT.P3(e): COPY OF HEIRSHIP CERTIFICATE ISSUED BY TAHSILDAR, KOLLAM TALUK. EXT.P3(f): COPY OF DEATH CERTIFICATE OF LATE K. SARALA DEVI ISSUED BY THE KOLLAM MUNICIPALITY. EXT.P4: COPY OF GO(MS)NO.15/97/G.EDN. DTD 16.1.1997. EXT.P5: COPY OF REPRESENTATION DTD 30.9.2002 SUBMITTED BY PETITIONER BEFORE R1. EXT.P6: COPY OF REPRESENTATION DTD 1.2.2000 SUBMITTED BY PETITIONER BEFORE R2. EXT.P7: COPY OF JUDGMENT DTD 30.10.2002 IN OP NO.31954/02 OF THE HON'BLE HIGH COURT OF KEARLA. EXT.P8: COPY OF ORDER NO.B5/10013/02/K.DIS DTD 1.2.2003 ISSUED BY R1. EXT.P9; COPY OF REVISION PETITION DTD 14.3.2003 FILED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P10: COPY OF JUDGMENT DTD 31.3.2003 IN OP NO.10876/2003-E. EXT.P11: COPY OF GOVT. ORDER GO(RT) NO.3490/03/G.EDN. DTD 28.8.2003. WP(C).No. 4923 of 2005 EXT.P12: COPY OF LETTER DATED 17.9.2003 BY THE PETITIOENR TO THE MANAGER. EXT.P13: COPY OF REPRESENTATION DTD 26.9.2003 SUBMITTED BEFORE DEO KOTTARAKKARA. EXT.P14: COPY OF THE JUDGMENT ISSUED TO THE PETITIONER IN W.P.(C) NO. 31215 OF 2003 (N) ON 31.5.2004. EXT.P15: COPY OF THE G.O.(Rt) NO.232/05/G.EDN DATED 17.1.2005. EXT.P16: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITONER TO THE MANAGER ON 1.2.2005. EXT.P17: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE D.E.O. KOTTARAKKARA ON 1.2.2005. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)Nos.4923, 5367 & 6223 OF 2005 ---------------------------------------- Dated this the 4th day of February, 2009 JUDGMENT The Manager of a School namely, the Temple Entry Memorial Vocational Higher Secondary School, Mylode and two persons claiming appointment to a post of non-teaching staff in the school are the petitioners in these three writ petitions in which the Manager and one of the two others challenge the Government Order passed in revision upholding the order of the District Educational Officer recognising the right of the other for appointment under Rule 51B of Chapter XIVA of the Kerala Education Rules as a dependant of a deceased teacher of the School, whereas the other seeks implementation of that Government Order. 2. I shall refer to the rank of the parties and exhibits as obtaining in W.P.(C) No.6223/05 for convenience. The facts necessary for disposal of these writ petitions are as follows: 3. The 3rd respondent's mother was a sewing teacher in W.P.(c) No.4923/05 & con.cases 2 the school, who died on 1.10.1999 while in service. The 3rd respondent, claiming to be a dependant of his mother, put in an application dated 27.7.2000 before the Manager seeking compassionate employment under Rule 51B of Chapter XIVA of the Kerala Education Rules. Since the Manager did not consider the application favourably, the 3rd respondent approached the District Educational Officer. By Ext.P3 order, the DEO declared that the 3rd respondent is a rightful claimant for appointment under Rule 51B. It appears that in the meantime, the Manager appointed the 4th respondent in the vacancy to which the 3rd respondent laid a claim as a Rule 51B claimant. However, in the same, there was no specific direction to the Manager to appoint the 3rd respondent. The Manager and the 3rd respondent filed revision petitions before the Government, the Manager challenging the order in so far as the right of the 3rd respondent under Rule 51B was upheld by the 3rd respondent and the 3rd respondent for a direction to the Manager to appoint the 3rd respondent. Both the revision petitions were heard together and by Ext.P5 order, the Government directed the Manager to appoint the 3rd respondent as a Last Grade Servant in the School and the W.P.(c) No.4923/05 & con.cases 3 District Educational Officer, Kottarakkara was directed not to approve the appointment of any one in the school before settling the 3rd respondent's case and to initiate action against the Manager as per Rule 7 of Chapter III of KER, if the Manager is reluctant to give appointment to the 3rd respondent in the school under Rule 51B of Chapter XIVA of the KER. The Manager, respondents 3 and 4 as also one Ajithlal, who was also a claimant for appointment to the said post, filed writ petitions before this Court. All those writ petitions were heard together and by Ext.P6 judgment, this Court remanded the matter to the Government directing the Government to specifically consider the question as to whether the 3rd respondent was a dependant of the deceased employee, in so far as there is no specific finding on that point in Ext.P5 order. Before the Government, the Manager filed Ext.P7 argument notes, wherein the Manager, inter alia, pointed out that in 1998, the 3rd respondent had purchased large extent of property paying an amount of Rs.3,32,259/- which according to the Manager would go to show that the 3rd respondent was not a dependant of the teacher at the time of her death. It was contended that the 3rd respondent was employed in the W.P.(c) No.4923/05 & con.cases 4 gulf country earning income from which he had purchased 59 ½ cents of land. Again, in compliance with Ext.P6 judgment, the Government considered the matter as per Ext.P8 order. By Ext.P8 order, the Government again reiterated the earlier order holding that the 3rd respondent is eligible for employment assistance under the compassionate employment scheme as a dependant of his mother as per Rules relating to compassionate employment scheme. That order is under challenge before me at the instance of the Manager in W.P.(C) No.6223/05. The 4th respondent has filed W.P.(C) No.5367/05 challenging the very same order, in so far as Ext.P8 order, there was a specific finding that the 4th respondent was not a 51A claimant. W.P.(C) No.4923/2005 has been filed by the 3rd respondent in W.P.(C) No.6223/05 seeking implementation of Ext.P8 order of the Government. Since all the writ petitions related to the same subject matter, the same were heard together and are being disposed of by this common judgment. 4. The contention of the Manager is that for becoming eligible for compassionate employment under Rule 51B read with the Government Order on the subject, the primary condition to be satisfied by the 3rd respondent is that he was a W.P.(c) No.4923/05 & con.cases 5 dependant of his mother at the time of her death. According to the Manager, from the very start the Manager had taken a specific stand that the 3rd respondent is not a dependant of his mother and therefore not eligible for compassionate employment under Rule 51B. The Manager heavily relies on Ext.P2 document, which is a sale deed registered as No.2300/1998 of Chathannur Sub Registrar's Office, by which the 3rd respondent purchased 59 ½ cents of property paying a consideration of Rs.3,33,259/- for the same. According to the Manager, that conclusively shows that the 3rd respondent was earning substantial income immediately prior to the death of his mother from which only he could have saved the funds for paying such large extent of property spending lacks of rupees. It is submitted before me that, that itself is more than sufficient to prove that the 3rd respondent was not a dependant of the deceased employee and therefore, not eligible for compassionate employment under Rule 51B. 5. In the counter affidavit as well as in the pleadings in W.P.(C) No.4923/05, the 3rd respondent stoutly opposes the contentions of the Manager. According to him, immediately after the death of his mother, he had filed an application W.P.(c) No.4923/05 & con.cases 6 before the Manager for employment under Rule 51B. The Manager never cared to reply to the same. He would further submit that it is only before this Court that the Manager has raised a contention regarding the 3rd respondent not being a dependant of his deceased mother. He heavily relies on Ext.P9 certificate issued by the Tahsildar wherein the Tahsildar has specifically certified that the 3rd respondent is eligible for being considered for compassionate employment as the legal heir of Smt. K. Saraladevi, who is the deceased employee in this case. Quoting from his reply affidavit in W.P.(C) No.4923/05, the 3rd respondent would submit that he has categorically stated that he was fully dependant on his mother till her death and that he was also residing with her. According to him, he had gone abroad searching for employment, but had to come back since he had not got suitable employment. After returning from abroad in 1998, he was residing with his mother along with his wife. Both he and his wife were unemployed at the time of the death of the mother on 1.10.1999 and he had been nominated by the other legal heirs of his mother for compassionate employment in the school. He goes on to state that his wife got employment as an aided W.P.(c) No.4923/05 & con.cases 7 school teacher only on 18.9.2003 long after the death of his mother. On these contentions he would refute the allegation that he was having income at the time of the death of his mother and that he was not a dependant on his mother. According to him he having proved that he is one among the categories of persons entitled for compassionate employment whose income does not exceed the limit prescribed in the Government Order, he is a dependant entitled to the benefit of Rule 51B read with the Government Order. 6. I have considered the rival contentions in detail. 7. Rule 51B of Chapter XIVA of the KER reads thus: “51B. The Manager shall give employment to a dependant of an aided school teacher dying in harness. Government orders relating to employment assistance to the dependants of Government servants dying in harness shall mutatis mutandis, apply in the matter of such appointments. A reading of the said Rule shows that the right under Rule 51B enures only to a dependant of an aided school teacher dying in harness. The Government Order on the subject also specifically confers the right only on a dependant of the deceased employee. In fact that question was considered by me in the decision of Manager C.A.H.S . V. D.E.O. Palakkad W.P.(c) No.4923/05 & con.cases 8 [2007(4) KLT SN 57 (Case No.63)], wherein I had held thus: “The words, “dependent of the deceased”, have been so repeated often in the Government Order which would indicate that the requirement that the applicant himself should be a dependant of the deceased is an essential eligibility condition under the scheme. The applicant for employment assistance under the Compassionate Employment Scheme should be a dependant of the deceased for claiming employment under the dying in harness scheme whether the applicant is a widow/widower or son or daughter or married son or daughter or an adopted son or daughter. In fact, in the two Government orders referred to above, which recognise the right of married sons/daughters also for compassionate employment, it is specifically stated that they should be eligible otherwise. One of the eligibility conditions in the scheme is that the applicant should be a dependant of the deceased. That would necessarily mean that for becoming eligible for appointment under the scheme the married daughter/son also should have been a dependant of the deceased at the time of death. In order to become eligible to apply for compassionate employment under R.51B, read with the Government orders on the subject, the applicant should have been a dependant of the deceased at the time of his/her death. This includes the marred daughter/son of the deceased”. Therefore, it cannot now be disputed that for becoming eligible for appointment under Rule 51B, the first condition is that the claimant should have been a dependant of the deceased W.P.(c) No.4923/05 & con.cases 9 employee at the time of her death. If the claimant is a dependant of the deceased then the family income should not also exceed the maximum prescribed in the order. The law is not that one of the legal heirs of the deceased whose income is below the limit becomes eligible for compassionate employment. The fulfillment of the other conditions arises only if the claimant was a dependant of the deceased. If the claimant was not a dependant of the deceased, even if the income is less than the prescribed limit, the claimant does not become eligible for compassionate employment. As such the contention that since his income was below the limit prescribed he should be deemed to be a dependant of his mother does not find favour with me. 8. The other contention of the 3rd respondent is that the Manager did not raise this contention before, does not appear to be correct. In fact, from Ext.P3 order of the DEO onwards it was a specific contention of the Manager that the 3rd respondent was not a dependant of the deceased teacher. In fact in Ext.P6 judgment this Court held that the Government had not entered a factual finding about the dependency of the 3rd respondent on the deceased employee and directed the W.P.(c) No.4923/05 & con.cases 10 Government to consider that issue, while remanding the matter to the Government. Again in Ext.P7 argument note submitted before the Government subsequent to Ext.P6 judgment also the manager reiterated his contention and followed it up with the evidence in the form of Ext.P2 sale deed, by which the 3rd respondent purchased large extent of land. As such I do not find any merit in that contention also of the 3rd respondent. 9. Of course, the learned counsel for the 3rd respondent would take pains to convince me that the fact of his purchasing some land would not ipso facto go to show that he was not a dependant, if otherwise he was a dependant of his mother. In Ext.P2 sale deed executed in favour of the 3rd respondent, the 3rd respondent is described as “T.S. Santhosh Kumar, S/o. Thankappan, employed abroad as a Company employee.” The consideration shown in Ext.P2 is Rs.3,33,259/-. That document further shows that on the very same day, out of 98 ¾ cents of land, 39 ¼ cents of land were sold to the 3rd respondent's wife and the balance 59 ½ cents of land only was sold to the 3rd respondent by Ext.P2. The 3rd respondent has not taken any pains to explain his and his W.P.(c) No.4923/05 & con.cases 11 wife's source of income for purchasing the land as evidenced by Ext.P2 document. In fact he does not dispute Ext.P2 document at all. All what he could offer as explanation was that because he purchased some land that would not ipso facto go to show that he was not a dependant of his mother. I am unable to agree with the 3rd respondent. A person can purchase land only after he has funds for paying the consideration for the same. Only the person, who purchased that land can explain the source of funds. The 3rd respondent has not chosen to explain the same. A person can find funds only through savings from his income or by gift etc. Only the person, who has income in excess of his expenditure can find money to purchase land. Here, the 3rd respondent and his wife could find large sums of money to purchase 98 ¾ cents of land spending about more than rupees 5 ½ lakhs. That the 3rd respondent could have only if he had independent income in so far as he has not chosen to prove that he had other source. If he had independent income of his own, he could not have been a dependant of his mother. The fact that the Tahsildar had certified that the 3rd respondent was eligible for compassionate employment and had also certified that his income was less W.P.(c) No.4923/05 & con.cases 12 than the limit prescribed in the Government order for compassionate employment does not alter the position at all. Ext.P2 conclusively proves that the 3rd respondent was not a dependant of his mother at the time of her death. That being so, clearly the 3rd respondent is not eligible for compassionate employment under Rule 51B read with the Government Order on the subject. 10. The question as to whether the 4th respondent was a 51A claimant becomes irrelevant in the context of my finding that the 3rd respondent is not eligible for compassionate employment. Even if the 4th respondent was not a 51A claimant, the Manager can appoint the 4th respondent once it is proved that there is no other person having superior claim for that post. Here, the only person, who have come forward with a claim for appointment to the post claimed by the 4th respondent, is the 3rd respondent, who I have found is not eligible for such appointment. In the above circumstances, Ext.P8 in W.P.(C) No.6223/05 holding that 3rd respondent is eligible for compassionate employment under Rule 51B is quashed and it is declared that the 3rd respondent is not eligible for W.P.(c) No.4923/05 & con.cases 13 appointment under Rule 51B, he not being a dependant of the deceased teacher. Consequently, W.P.(C) No.4923/2005 is dismissed. In view of quashing of Ext.P8 order, no further orders are necessary in W.P.(C) No.5367/2005 and the petitioner therein can work out his remedies in accordance with the above finding and declaration. The writ petitions are disposed of as above. S. SIRI JAGAN, JUDGE Acd W.P.(c) No.4923/05 & con.cases 14