IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 WP(C).No. 14311 of 2006(D) -------------------------------------- PETITIONER(S): ---------------------- C.CHANDRIKA, CHOORATHIL HOUSE, MANNARKKAD COLLEGE P.O, PALAKKAD DISTRICT. BY ADV. SRI.V.N.ACHUTHA KURUP (SR.) SRI.K.G.RENGANATH SRI.BINDU SREEKUMAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFIER, MANNARKKAD, PALAKKAD DISTRICT. 3. THE MANAGER, A.U.P.SCHOOL, KUMARAMPUTHUR, PALAKKAD DISTRICT. 4. E.JAYAKUMAR, S/O.E.SANKARA NARAYANAN, EDATHODI HOUSE, MANNARKKAD COLLEGE.P.O, PALAKKAD DISTRICT. GOVERNMENT PLEADER SRI.T.T.MOHAMMOOD FOR R1 & R2 ADV. SRI.V.RAJENDRAN FOR R4 SMT.PREETHY KARUNAKARAN FOR R3 SMT.MEENA.A. FOR R3 SMT.M.R.MINI FOR R3 SRI.JAYKAR.K.S. FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 14311/2006-D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPLICATION DATED 08/10/1998 ALONG WITH THE COVERING LETTER. EXT.P2: COPY OF THE LETTER DATED 16/03/1999 OF 3RD RESPONDENT TO THE PETITIONER. EXT.P3: COPY OF THE JUDGMENT IN OP NO.8019/1999 DATED 16/12/2005 OF THE HIGH COURT OF KERALA. EXT.P4: COPY OF THE LETTER DATED 12/05/06 OF THE 3RD RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.14311/2006 ----------------------------------------------------------- Dated this the 3rd day of December, 2008 JUDGMENT Challenge in this writ petition is against Ext.P4. 2. Petitioner submits that her father was a Craft Teacher working in the school, of which the 3rd respondent is the Manager. He expired on 29.1.1972, when the petitioner was a minor. Claiming the benefit of Rule 51-B of Chapter XIV-A KER, petitioner submitted Ext.P1 application dated 8.10.1998, claiming appointment to the vacancy of Peon, which was to arise on 28.2.1999. That claim was rejected by Ext.P2, following the judgment of this court in Reni K. Abraham V. State of Kerala (1999(1) KLT 249), on the ground that the married daughter of the deceased teacher was ineligible. That order was challenged before this court in O.P.No.8019/99. The Original Petition was disposed of by Ext.P3 judgment quashing Ext.P3 order in that Original Petition, in view of the Division Bench judgment reported in St. Ignatius High School V. State of Kerala ( 2005(3) KLT 1000). On that basis the matter was directed to be WP(c).No.14311/2006 2 reconsidered. Accordingly, the claim was reconsidered and by Ext.P4 order, the 3rd respondent again rejected the claim and this order is under challenge in this writ petition. 3. Counsel for the petitioner contends that, the fact that she is a married daughter does not result in her ceasing to be eligible for the benefit of Rule 51B. This is one of the aspects which has been found against her in Ext.P4. This contention of the learned counsel for the petitioner is fully supported by the Division Bench judgment reported in Rev. Mother Delphine Mary V. State of Kerala (2002(1)KLT 137) where this court has held that; “married son or daughter are eligible for the benefit of Rule 51-B of Chapter XIV-A KER provided they can show that in spite of the marriage, he/she was a dependent of the deceased and could not tide over the crisis brought due to the death of the breadwinner in the family.” 4. It is true that delay is one of the aspects that is found against the petitioner but then the fact remains that Rule 51-B came into the statute book only in 1990 and remained suspended till 16.1.1997. Soon thereafter the petitioner submitted ExtP1 application on 8.10.1998. If that be so, the WP(c).No.14311/2006 3 reason of delay is not justified. 5. I am satisfied that the matter needs to be reconsidered. However, learned counsel for the 4th respondent referred to me paragraph 5 of the counter affidavit, where it has been stated thus; “It is submitted that the petitioner is now employed as a Part Time Menial in Government Lower Primary School, Manalady at Thenkara near Mannarkkad. The said appointment is against a permanent post. Apart from owning landed properties she is also having a Vaidya Sala Agency, a Public Telephone Booth and a Photostat Center at Kumaramputhoor. Petitioner is financially well off and she is venturing in an experimental litigations. But I am the only earning member of my family consisting of my wife and a daughter. It may also be noticed that my appointment was to the vacancy caused by the retirement of my father. Any kind of preference or priority to the petitioner will result in great injustice to me.” 6. Certainly, the above averments, which have not been contradicted by the reply affidavit discloses relevant facts, when the dependency of the petitioner or the is decided. Though the counsel for the 4th respondent WP(c).No.14311/2006 4 pleaded that his appointment or its approval has not been challenged by the petitioner, the fact remains that on an earlier occasion this court had considered the matter and directed reconsideration as per Ext.P3. If at all this argument was available, it should have been urged on that occasion. At this distance of time, this technical plea cannot be raised against the petitioner. Ext.P4 will therefore stands set aside. 7. The 3rd respondent shall reconsider the claim of the petitioner and decide as to whether the petitioner was a dependent of the deceased, irrespective of the marriage. While deciding that factual issue,the 3rd respondent shall take note of the contentions raised by the 4th respondent in paragraph 5 of the counter affidavit which has been extracted in the earlier part of this judgment. While deciding the matter as above, notice shall be given to the petitioner and the 4th respondent and they shall also be heard. Writ Petition is disposed of as above, ANTONY DOMINIC JUDGE vi. WP(c).No.14311/2006 5