IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 WP(C).No. 7413 of 2007(G) ------------------------- PETITIONER(S): ------------------ P.SNINEESH, HINDI TEACHER, MODAKKALLUR A.U.P.SCHOOL, ATHOLI, KOZHIKODE DISTRICT. BY ADV. SRI.M.A.THOMAS KUTTY SMT.ASHA CHERIAN RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, QUILANDY, KOZHIKODE DISTRICT. 3. THE MANAGER, MODAKKALLUR A.U.P.SCHOOL, ATHOLI P.O., KOZHIKODE DISTRICT. 4. K.T.SASIDHARAN, LAKSHMI BHAVAN, MODAKKALLUR, ATHOLI, KOZHIKODE DISTRICT. ADV. SRI.K.MOHANAKANNAN FOR R4 SMT.A.R.PRAVITHA FOR R4 SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R3 SRI.B.UNNIKRISHNA KAIMAL FOR R3 GOVERNMENT PLEADER SRI.DILEEPMOHAN FOR R1 & 2 SRI.ABRAHAM MATHEW (VETTOOR) FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.7413/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER DATED 23.9.2002 OF THE 2ND RESPONDENT. EXT.P2: TRUE COPY OF THE GO(RT) NO.923/2005/G.EDN. DATED 3.3.2005. EXT.P3: TRUE COPY OF THE JUDGMENT DATED 20.12.2005 IN WPC NO.9952/2005. EXT.P4: TRUE COPY OF THE JUDGMENT DATED 7.2.2006 IN WA NO.253/06. EXT.P5: TRUE COPY OF THE APPROVAL ORDER NO.C/225/2006 DATED 1.3.2006 OF THE 2ND RESPONDENT. EXT.P6: TRUE COPY OF THE GOVERNMENT ORDER GO(RT) NO.424/2007/G.EDN. DATED 301.2007. EXT.P7: TRUE COPY OF THE APPLICATION DATED 2.5.1990 SUBMITTED BY 4TH RESPONDENT BEFORE THE FORMER MANAGER. EXT.P7(a): TRUE COPY OF THE REPLY DATED 4.6.1990 SENT BY FORMER MANAGER TO THE 4TH RESPONDENT. EXT.P8: TRUE COPY OF THE DECISION REPORTED IN LR 2004(3) KER 401 SUKUMARAN NAIR V. STATE OF KERALA. EXT.P9: TRUE COPY OF THE COMMUNICATION DATED 18.2.2003 OF THE VILLAGE OFFICER, ATHOLY. EXT.P10: TRUE COPY OF THE GO(RT) NO.87/2006/G.EDN. DATED 5.1.2006. EXT.P11: TRUE COPY OF PROCEEDINGS DATED 17.6.2002 OF THE MANAGER. EXT.P12: TRUE COPY OF THE REVISION PETITION DATED 11.10.2002 FILED BY THE MANAGER. EXTS. OF R3 EXT.R3(a): TRUE COPY OF THE ORDER NO.C26/2002 PASSED BY THE AEO DT 14.5.2007. EXTS. OF R4 EXT.R4(a): TRUE COPY OF THE APPLICATION PREFERRED BY THE PETITIONER BEFORE THE MANAGER OF THE SCHOOL ON 2.5.1990. WPC NO.7413/07 -2- EXT.R4(b): TRUE COPY OF THE LETTER ISSUED BY THE MANAGER ON 4.6.90 TO THE PETITIONER. EXT.R4(c): TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE MANAGER OF THE SCHOOL ON 16.5.1997. EXT.R4(d): TRUE COPY OF THE APPLICATION SUBMITTED BY THIS RESPONDENT ON 25.5.2002 BEFORE THE MANAGER OF THE SCHOOL. EXT.R4(e): TRUE COPY OF THE JUDGMENT IN OP NO.19722/02 DATED 17.7.2002 OF THIS HON;BLE COURT. EXT.R4(f): TRUE COPY OF THE ORDER NO.K.DIS.2974/202 DATED 23.9.2002 ISSUED BY AEO. EXT.R4(g): TRUE COPY OF THE INCOME CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 21.5.2002. EXT.R4(h): TRUE COPY OF THE INCOME CERTIFICATE ISSUED BY THE VILLAGE OFFICER ON 11.7.2003. EXT.R4(i): TRUE COPY OF THE LEGAL HEIR CERTIFICATE ISSUED BY THE TAHSILDAR, KOYILANDI ON 10.5.2002. EXT.R4(j): TRUE COPY OF THE AFFIDAVIT FILED BY THE THEN MANAGER BEFORE THE GOVERNMENT ON 1.4.2006. EXT.R4(k): TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THIS RESPODNENT BEFORE THE GOVERNMENT ON 16.9.2006. EXT.R4(l): TRUE COPY OF THE CIRCULAR GO(P) NO.12/99/P&ARD DATED 4.5.2002. EXT.R4(m): TRUE COPY OF THE JUDGMENT IN WPC NO.25380/2002 DATED 19.12.2006 OF THIS HON'BLE COURT. EXT.R4(n): TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE MANAGER OF THE SCHOOL ON 28.2.2007. EXT.R4(o): TRUE COPY OF THE LETTER ISSUED BY THE MANAGER ON 9.4.2008 TO THE PETITIONER HEREIN. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 7413 OF 2007 (G) ===================== Dated this the 25th day of September, 2009 J U D G M E N T The challenge in this writ petition is against Ext.P6, an order dated 30/1/2007 passed by the 1st respondent rejecting Ext.P12 revision filed by the Manager of an aided school. 2. Facts of the case are that the 4th respondent's father Sri.Appukuttan Nair was a peon in the school, of which the 3rd respondent is the Manager. He expired on 9/9/1988. The 4th respondent submits that claiming employment on compassionate grounds, he submitted Ext.R4(a) application dated 2/5/90 to the then Manager. The application was entertained and Ext.R4(b) reply dated 4/6/90 was given informing the 4th respondent that there was no vacancy of Hindi teacher available then and that as and when a vacancy arises, his claim will be considered. Again, according to the 4th respondent, on 16/5/97, pointing out that a vacancy of Hindi teacher was due to arise in 2002, he submitted Ext.R4(c) application to the Manager. Although this application was also received by the Manager, the 4th respondent submitted Ext.R4(d) dated 25/5/2002, a further application in the prescribed WPC 7413/07 :2 : format for compassionate appointment. 3. According to him inspite of the applications made, without giving appointment to the 4th respondent, petitioner herein was appointed as Hindi teacher w.e.f. 5/6/02. Subsequently, by Ext.P11 order dated 17/6/02, the Manager rejected the claim of the 4th respondent. He filed an appeal to the DEO and during its pendency, approached this Court with O.P. No.19722/02. That original petition was disposed of by Ext.R4(e) judgment directing the AEO to dispose of the appeal with notice to the parties. It was made clear that if the appointment of the petitioner was approved in the meantime, the same will be subject to the final orders to be passed in the appeal. Accordingly, appeal filed by the 4th respondent was considered and the AEO passed Ext.P1 order dated 23/9/2002 upholding the claim of the 4th respondent and directing his appointment. 4. The Manager challenged Ext.P1 order of the AEO by filing Ext.P12 revision before the Government, which was rejected by Ext.P2 order dated 3/3/2005. That order was subject matter of challenge before this Court in WP(C) Nos.8849, 9089 and 9952/05 filed by all the parties. By Ext.P3 common judgment, this Court WPC 7413/07 :3 : quashed Ext.P2 order passed by the Government and directed reconsideration of the matter. Paragraph 4 and 5 of the judgment being relevant, are extracted below for reference. 4. It was elaborate submissions which were addressed before me by Mr.Babu Joseph Kuruvathazha, Advocate on behalf of Mr.K.T.Sasidharan, Mr.K.R.B.Kaimal, Advocate on behalf of the present manager and Mr.K.E.Hamsa, Advocate on behalf of Mr.Snineesh. I have also heard the submissions of Mr.M.A.Thomaskutty, learned Government Pleader on behalf of the State as well as the official respondents. The counsel would make submissions on the basis of the pleadings of their respective clients and would rely on several decisions including the judgment of the Division Bench of this Court in Sukumaran Nair v. State of Kerala (supra), the judgment of the Supreme Court in Director of Education (Secondary) v. Pushbendra Kumar {(1998) 5 S.C.C.192}, of this Court in Deepak v. Secretary, General Education Department (ILR 2002(2) Ker.513), The Manager v. K.P.Ramesh (2002(2) KLJ 806) and also an unreported decision of this Court in O.P.No.12840 of 2003. 5. Having considered the rival submissions made at the bar and the ratio emerging from the various decisions cited at the bar and having scanned the pleadings of the parties and the documents placed on record, I feel that there is justification for directing a reconsideration of the issue by the Government. The argument of the Manager and Mr.Snineesh that the application dated 2.5.1990 which has been relied on by the Government to hold that the claim of Mr.K.T.Sasidharan was raised within the time limit was brought into exist were only later with the connivance of the former Manager who has an axe to grind against the present Manager needs to be considered. The circumstance that Mr.Sasidharan had not even mentioned about the previous applications in his application dated 25.5.2002 in prescribed format is in my view a circumstance of moment. So also it is seen from the Government Order that the Government has not even referred to the various judicial precedents relied on by WPC 7413/07 :4 : the Manager in his order dated 17.6.2002. I have no reason to think that these decisions were not cited before the Government during the hearing on the basis of which the Government passed G.O.(Rt) No.923/2005/G.Edn. Dated 3.3.2005. 5. Although the 4th respondent filed WA Nos.249, 253 and 254/06 against Ext.P3 judgment, by Ext.P4 judgment of the Division Bench, the appeals were dismissed. In the meantime, the appointment of the petitioner was approved provisionally as per Ext.P5 order. Ext.P12 revision was reconsidered by the Government with notice to the parties as directed in Ext.P3 judgment and by Ext.P6 order rendered on 30/1/2007, the revision was rejected. It is challenging this order, the writ petition is filed. 6. The main contention raised by the counsel for the petitioner is that the claim of the 4th respondent should not have been entertained in view of the provisions contained in GO(P) No.34/87/P&ARD dated 17/12/1987, GO(P) No.7/95/P&ARD dated 30/5/95 and GO(P) No.12/99/P&ARD dated 24/5/1999. This contention is raised primarily on the ground that the first valid application made by the 4th respondent was Ext.R4(d) dated 25/5/2002. It is contended that going by the Government order, the date of death being 9/9/1988, Ext.R4(d) application made on WPC 7413/07 :5 : 25/5/2002, was beyond the time limit of 2 years prescribed for making the application. It is therefore contended that the claim ought to have been rejected. In support of this contention, counsel also placed reliance on the judgments of this Court in Deepak v. Secretary, General Education Department (2002 (3) KLT 288), Manager, Parli High School v. Narayanan (2002 (3) KLT 912), Sukumaran Nair v. State of Kerala (ILR 2004(3) Kerala 401), General Manager v. State of Kerala (ILR 2007(3) Kerala 361) and Corporate Manager v. Jayanarayanan (2003 (1) KLT S.N.33). The other contention raised by the counsel for the petitioner is that Exts.R4(a) and R4(c) relied on by the 4th respondent to contend that applications were made in time, were not genuine documents and were created for the purpose of sustaining the claim for compassionate appointment. 7. On the other hand, counsel for the 4th respondent contradicted the claims of the petitioner placing reliance on Exts.R4(a) and R4(c) applications made by him and Ext.R4(b), the reply given by the Manager. He also placed considerable reliance on the Division Bench judgment in WA No.1164/05, which was confirmed by the Apex Court dismissing an SLP filed against the WPC 7413/07 :6 : said judgment. 8. The first Government Order governing appointment on compassionate grounds is GO(P) NO.34/87/P&ARD dated 17.12.87 which was in force at the time when the death occurred in this case. That Government Order provided that the application should be made within two years of death and that the same should be in the prescribed form given in Appendix A. Although subsequently, GO(P) No. 7/95/P&ARD and GO(P) No.12/99/P&ARD were also issued, the requirement that the application shall be submitted within two years of death and that the application should be in the prescribed format were not diluted. 9. If I accept the contention of the counsel for the petitioner that the first application made by the 4th respondent is Ext.R4(d) dated 25/5/2002, evidently the application made is far beyond the time limit prescribed, and if so, the claim of the 4th respondent should not have been entertained. Further, if this argument is factually correct, learned counsel for the petitioner is also fully supported by the judgments which are relied on by him. 10. However, in this case, in my view, the said contention of the counsel for the petitioner or the principles laid down in the WPC 7413/07 :7 : judgments relied on by him cannot be applied for the reason that, although it was not in the prescribed form, still fact remains that the 4th respondent had made Ext.R4(a) application to the Manager of the School as early as on 2/5/1990. This application was neither returned by the Manager by requiring the 4th respondent to rectify the defects nor did the Manager reject the application on the ground that the same was not in compliance with the procedure prescribed in GO(P) No.34/87/P&ARD which was prevailing at that point of time. 11. On the other hand, the application was entertained by the Manager and the 4th respondent was issued Ext.R4(b) dated 4/6/90 informing him that, there was no vacancy then available to accommodate him and that his candidature will be considered as and when a vacancy arises. This much having been done by the Manager of the School, in my view, it is neither open to the Manager nor anybody else to now turn around and contend that there was no valid application made by the 4th respondent. If so, the question of delay on the part of the 4th respondent in making the application does not arise, and for that reason, I am not prepared to hold that the 4th respondent was ineligible for the WPC 7413/07 :8 : benefit of compassionate appointment. This view I have taken is fully supported by the Division Bench judgment in WA 1164/05. That judgment has been confirmed by the Apex Court dismissing the SLP filed against it by order dated 24/11/2006 (it is so stated in the judgment in S.N.G.S.High School v. Reji Sagar (2008(1) KLT 1026) at Page No.1033). 12. Therefore, the alleged delay and that the application was not in the prescribed form cannot stand against the 4th respondent to defeat his claim. Further these contentions have been considered by the AEO and the Government and both the authorities concurrently refused to accept this contention either, in this proceedings, I see no good ground to take a view different from what has been taken by the statutory authorities. 13. The other contention raised by the petitioner is that Exts.R4(a), (b) and (c) are not genuine documents and that these documents were created for the purpose of sustaining the claim for compassionate appointment. A reading of Ext.P3, the common judgment rendered by the learned Single Judge shows that this was one of the issues that was ordered to be considered by the Government while dealing with Ext.P12 revision filed by the WPC 7413/07 :9 : Manager. This issue has been addressed by the Government and in Ext.P6, it has been stated thus: In order to verify the genuineness of Ext.P5 and Ext.P5(a) as ordered in the common judgment copies of the same wee forwarded to the Assistant Educational Officer, Koyilandy. They have reported that the original letter was not available in their office at present. But they have scrutinized certain appointment files and confirmed the signature of the Manager in the Ext.P5 and the signature in the letter tendered by Sri.K.T.Sasidharan also confirmed. It may also be noted that the former Manager who issued the Ext.P5 itself certified the Genuineness in the form of an affidavit in Non-Judicial stamp paper worth Rs.50/-. 14. Nothing has been placed on record to hold that the view taken by the Government in the aforesaid paragraph is perverse, warranting to be reversed. For these reasons, I do not find any merit in this writ petition. 15. Writ petition will therefore stand dismissed. Needless to say that the petitioner whose appointment has been provisionally approved as per Ext.P5, will be entitled to be paid salary and other allowances for the period he has worked in the school of the 3rd respondent. ANTONY DOMINIC, JUDGE Rp