IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 WP(C).No. 11033 of 2009(Y) -------------------------------------- PETITIONER: ------------------- SHIJU R., FULL TIME MENIAL, SIVAGIRI HIGHER SECONDARY SCHOOL, VARKALA, TRIVANDRUM. BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.BRIJESH MOHAN, SRI.A.HAROON RASHEED. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF EDUCATION, TRIVANDRUM. 4. THE DISTRICT EDUCATIONAL OFFICER, ATTINGAL, TRIVANDRUM DISTRICT. 5. THE CORPORATE MANAGER, SREE NARAYANA DHARMA SANGHAM TRUST SCHOOLS, SIVAGIRI, VARKALA, TRIVANDRUM - 695 145. 6. SMT.V.S.LOLA, THANNIYAM, PANACHAMOODU, KALLARA, TRIVANDRUM - 695 608. R1 TO R4 BY GOVT. PLEADER SRI. SANDESH RAJA, R5 BY ADVS. SRI.SAJAN VARGHEESE K, SRI.LIJU. M.P, SRI. K.SIJU, SRI.B.SUGATHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON 22/09/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.11033/2009-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 13/10/2004 VIDE NO.EDN./44/2004 ISSUED BY THE R.5. TO THE PETITIONER. EXT.P.2: COPY OF THE ORDER NO. ET5/80250/04/DPI/K. DIS. DTD. 29/10/04 ISSUED BY THE R.2. EXT.P.3: COPY OF THE PROCEEDINGS NO. B-4/5643/04/K. DIS. DTD. 22/02/05 ISSUED BY THE R.4. EXT.P.4: COPY OF THE ORDER NO. B4/26094/06/K. DIS. DTD. 25/02/2006 ISSUED BY THE R.3. EXT.P.5: COPY OF THE ORDER NO. ET5/54/913/06/DPI/D.DIS. DTD. 01/02/2007 ISSUED BY THE R.2. EXT.P.6: COPY OF THE REVISION PETITION SUBMITTED BY THE R.5. BEFORE THE GOVERNMENT ON 29/03/2007. EXT.P.7: COPY OF THE G.O.(RT).NO.1081/09/G. EDN. DTD. 16/03/09 ISSUED BY THE R.1. RESPONDENTS' EXHIBITS: EXT.R6.A: COPY OF THE LETTER ISSUED BY THE R.5. TO THE R.6 DTD. 02/05/2005. EXT.R6.B: COPY OF THE JUDGMENT IN W.A. NO. 1164/2005 OF THIS HON'BLE COURT DTD. 28/09/2006. EXT.R6.C: COPY OF THE INFORMATION SUPPLIED UNDER RIGHT TO INFORMATION ACT BY THE R.4. DTD. 03/05/2008. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.11033/2009-Y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 22nd day of September, 2010 J U D G M E N T The petitioner challenges the various orders culminating in Ext.P7 issued by the Government whereby approval of appointment of the petitioner as Full-time Menial is rejected with a further direction to appoint the sixth respondent as Full-time Menial under Rule 51B of Chapter XIV A K.E.R. 2. The petitioner was appointed as Full-time Menial as per Ext.P1 at Sivagiri High School by the Manager. The sixth respondent's father was working as H.S.A under the management who died on 17/10/1990. According to the petitioner, the sixth respondent is a Post Graduate and applied for compassionate employment for the post of Clerk, after about 11/2 decades on 23/09/2004. Ext.P2 is the order by which the Director of Public Instruction directed the Manager to consider her request for appointment and accommodate her in any of the suitable vacancies. The approval of appointment of the petitioner was rejected as per Ext.P3 in the light of Ext.P2 order. This was confirmed by the Deputy Director of Education as per Ext.P4 and the Director of Public Instruction by Ext.P5. Ext.P7 W.P.(C). No.11033/2009 -:2:- is the order passed on a representation filed by the father of the petitioner. 3. Heard the learned counsel for the petitioner, the learned counsel appearing for the Manager and the learned counsel appearing for the sixth respondent. 4. The Government while disposing of the matter relied upon the Judgment of this Court in W.P.(C). No.16815/2008 which was rendered following the decision of the Division Bench of this Court in S.N.G.S High School v. Reji Sagar [2008 (1) KLT 1026]. 5. The learned counsel for the petitioner submitted that the sixth respondent did not submit any application within three years from the date she attained majority and her applications are dated 23/09/2004 and 04/10/2004, and therefore, the same are beyond the time limit prescribed by the relevant Government Orders which are applicable in the matter of compassionate appointment. The learned counsel for the petitioner relied upon the principles stated by this Court in Corporate Manager, Diocese of Thrissur v. Jayanarayanan [2003 (1) KLT SN Pg.33 Case No.45], Sreekanthi v. State of Kerala [2005 (1) KLT SN Pg.4] and Sarada v. Pradeep Kumar [2004 (3) KLT 1019] further to contend that there should be proximity between the date of death of the employees and application for employment. My W.P.(C). No.11033/2009 -:3:- attention was also invited to subsequent decisions of this Court also to contend that the time limit provided under the Government Order is mandatory and, therefore, the Government was not right in directing to appoint the sixth respondent as per Ext.P7. This argument is supported by the learned counsel for the Manager. 6. The learned counsel appearing for the sixth respondent opposed the contentions of the learned counsel for the petitioner pointing out various aspects. It is pointed out that the Manager as per Ext.R6(a) communicated their decision to appoint her in any of the suitable vacancies. This is based on her application dated 04/10/2004. But herein, the petitioner was appointed on 13/10/2004 ignoring the application. The learned counsel further relied upon the principles stated by a Division Bench in W.A.No.1164/2005 and that of another Division Bench in S.N.G.S High School's case [2008 (1) KLT 1026] and other decisions, to contend that there is an obligation on the Manager to inform the dependents of the details of vacancies. Herein, according to the sixth respondent, prior vacancies were also filled up without informing anything to the family of the sixth respondent and, the reply given by the Public Information Officer of the District Educational Office, Attingal has been produced as W.P.(C). No.11033/2009 -:4:- Ext.R6(c) which shows that after 14/08/1998 various appointments have been made in the posts of non-teaching staff and none of the posts were offered to the sixth respondent. It is therefore pointed out that the petitioner cannot have any grievance in the matter and the contentions of the Manager cannot also be accepted. 7. Rule 51B of Chapter XIV A K.E.R provides that the Manager shall give employment to a dependent of an aided school teacher dying in harness. In fact, the Government had stayed the implementation of the said provision by a Government Order which was challenged in a writ petition before this Court in O.P.No.6196/1996 and, thereafter, only the Government decided to vacate the stay ordered against the operation of Rule 51B Chapter XIV A as per G.O.(MS) No.15/97/G.Edn. dated 16/01/1997. 8. Herein, the date of death of the sixth respondent's father is 17/10/1990. The Government Order relied upon by the respondents is G.O.(P).No.12/99/P & ARD dated 24/05/1999 wherein Clause 19 provides that time limit for preferring applications under the scheme will be 2 years from the date of death of Government Servants. In the case of minor, the period will be within 3 years after attaining majority. The date of birth of the sixth respondent is 31/05/1975 and she became major on 30/05/1993 W.P.(C). No.11033/2009 -:5:- and, it is in these circumstances it is contended by the learned counsel for the petitioner and the learned counsel for the Manager that there is no application within 3 years of the date of attainment of the majority. 9. But two things are important; the Government Order by which Rule 51B Chapter XIV A K.E.R was sought to be implemented is issued only in the year 1997 and; the Government Order which prescribes three years period is Ext.R5(a) dated 24/05/1999. Therefore, the question is whether in such circumstances, the same can be put against the claims of the sixth respondent herein. 10. This aspect was considered in the Judgment in W.P. (C).No.16815/2008. Therein also in like circumstances, after distinguishing the Judgments in Corporate Manager, Diocese of Thrissur v. Jayanarayanan [2003 (1) KLT SN Pg.33 Case No.45], Sukumaran Nair v. State of Kerala [2005 (1) KLT 430] and Deepak v. Secretary, General Education Department [2002 (3) KLT 288], the question was considered in the light of various other decisions namely, S.N.G.S High School v. Reji Sagar [2008 (1) KLT 1026], Fr.Antony Kavalakatt v. District Educational Officer [1999 (1) KLT 615] and Sajeesh Babu v. State [1996 (2) KLT 542]. The learned Judge in paragraph (8) of the Judgment noted that in S.N.G.S High School's case [2008 (1) KLT 1026] the W.P.(C). No.11033/2009 -:6:- Division Bench took a different view from that of the view taken by the earlier Division Benches and, actually, the said Division Bench approved the Judgment of this Court in Baiju Kumar v. D.E.O., Trivandrum [2003 (3) KLT 240]. The Judgment in Baiju Kumar's case [2003 (3) KLT 240] was also approved in W.A.No.1164/2005, the Special Leave Petition against which, was dismissed as per order dated 24/11/2006. These two decisions were relied on in S.N.G.S High School's case [2008 (1) KLT 1026] and, ultimately, it was held in paragraph (10) of W.P.(C).No.16815/2008 thus:- “10. From this Judgment it would appear that the Manager cannot justify his failure to offer employment on the plea that the dependent who is entitled to the benefit of Rule 51(B) Chapter XIVA did not apply in time etc. Therefore, even if there is delay on the part of the dependent in making an application as provided in the Government Order dated 24/05/1999, that is no justification for the Manager to deny appointment under Rule 51B. The reasoning of the Division Bench is that under Rule 51B, it is the obligation of the Manager to provide employment to the claimant and that it is not possible for the claimant to keep track of the availability of W.P.(C). No.11033/2009 -:7:- the vacancy etc. and I would respectfully follow the Judgment in case of S.N.G.S. High School v. Regi Sagar [2008 (1) KLT 1026]. Even otherwise, I cannot understand the Government Order dated 24/05/1999 as having the effect of depriving the statutory benefit under Rule 51B. In this case petitioner attained majority on 07/05/1995. The Government Order issued on 24/05/1999 provided that application should be made within 2 years of death or within 3 years of attaining majority. Both these dates have expired by the time government order was issued. An executive order cannot amend a statutory rule and therefore, I cannot take Ext.R1 as one depriving the petitioner's statutory right under Rule 51B, Chapter XIV A, KER.” It was therefore, held that the petitioner therein is liable to be appointed by the Manager. Similar are the facts of this case. 11. The said Judgment of the learned Single Judgment has been confirmed by the Division Bench in W.A.No.2211/2008. The question whether the time limit prescribed under Ext.R5(a) Government Order herein is mandatory, was considered by the Division Bench also. W.P.(C). No.11033/2009 -:8:- After referring to the various earlier Judgments wherein it was observed that the application will have to be submitted within three years, the Division Bench relied on the view taken in S.N.G.S High School's case [2008 (1) KLT 1026] and W.A.No.1164/2005. The effect of the Government Order, namely, Ext.R5(a) was considered and it was held thus in paragraph (6) of W.A.No.2211/2008:- “6. Ext.R1(a) order is the order governing appointment under the dying-in-harness scheme in Government service. Normally, in the government service, hundreds of vacancies arise every year and a portion of those vacancies are set apart for appointment of candidates under the dying-in- harness scheme. Therefore, the candidates should apply within a reasonable time limit so that the Government can process them, prepare wait list of them and give appointment as and when the vacancies are available in the quota set up for appointment in the dying-in-harness scheme. But, in the case on hand, we notice that the first vacancy to which the 1st respondent applicant can be considered arose only after 13 years of the death of the incumbent's father. Therefore, the delay in making application canvassed by the W.P.(C). No.11033/2009 -:9:- Manager is only technical. The time limit prescribed in Ext.R1(a) can only be treated as directory in nature and not mandatory, as far as aided schools are concerned.” Therein, the Bench took the view that the time limit prescribed in the Government Order dated 24/05/1999 is directory in nature and not mandatory, as far as aided schools are concerned. It was also held by relying upon the principles in S.N.G.S High School's case [2008 (1) KLT 1026] that it is the duty of the Manager to alert the claimant under the dying-in-harness scheme regarding her right to get appointment and get the application from her within the prescribed time limit. It was noticed by the Bench that in that case the Manager does not have any such contentions in his pleadings and even before the vacancy arose, the incumbent had applied and the technical contention raised by the Manager cannot be accepted. 12. Herein, the circumstances are identical. A survey of the various decisions of this Court is apposite in this context. The true effect of Rule 51B Chapter XIV A K.E.R was considered by a learned Single Judge in one of the earliest decisions of this Court in Sajeesh Babu v. State [1996 (2) KLT 542]. It was held that the liability is statutory in nature. In paragraph (2) it was held thus:- W.P.(C). No.11033/2009 -:10:- “This rule, like the one in Rule 51A Chapter XIV A K.E.R., creates a right in the incumbent concerned. It also creates a corresponding liability on the Manager that he 'shall give employment to a dependent of an aided school teacher dying in harness'. Thus, the Manager cannot avoid this statutory liability.” The contention similarly raised by the learned counsel for the petitioner herein that the appointment of a dependent is only to tide over the immediate necessity and, therefore, after a long period, the claim cannot be enforced was answered in paragraph (4) in Sajeesh Babu's case [1996 (2) KLT 542]:- “4. ........All these are cases relating to employment assistance to be given in government service or in the statutory Boards. All these cases relate to employment in public service or the service of the “State” covered by Article 14 and 16 of the Constitution of India. In all these cases, the scheme for employment assistance are non-statutory, by way of concession. Therefore, those decisions do not apply to the case on hand because in aided schools, the employment assistance is governed by statutory W.P.(C). No.11033/2009 -:11:- provisions. So, a valid right is created in a dependent. That statute does not contemplate any time limit. Therefore, the Manager cannot avoid his liability arising out of Rule 51B stating that six years have elapsed since the death of father of the petitioner.” 13. It is true that the Division Bench in V.K.Somasundaran v. State of Kerala and Others [2003 (1) KLJ 811] was of the view that the application should be filed within the time limit provided in the Government Order. 14. The statutory obligation of the Manager under Rule 51B was considered in detail by a learned Single Judge in Baiju Kumar v. D.E.O, Trivandrum [2003 (3) KLT 240] and in paragraphs (6) & (7), the question was answered thus:- “The opening sentence in R.51B is couched in mandatory words. S.7(2) of the Kerala Education Act says that “the Manager shall be responsible for the conduct of the school in accordance with the provisions of the Act and Rules made thereunder.” R.9 of Chap.III also states that “the Manager shall be responsible for the conduct of the school strictly in accordance with the provisions of the Kerala Education Act and Rules W.P.(C). No.11033/2009 -:12:- thereunder.” So, in the light of the provisions contained in S.7 of the Act and R.9 of Chap.III of the Rules, the Manager is bound to run the school in accordance with the provisions of the Act and Rules. He has to respect and obey the mandate of R.51B also. The said Rule creates a corresponding right in the dependent of a deceased employee. R.51B does not say that the dependent of a teacher cannot be appointed as a non-teaching staff. If the vacancy of Peon/Attender had to be filed up by a R.43 claimant and only the vacancy of Full Time Menial was available, the Manager should have informed the petitioner regarding the availability of that vacancy and offered him appointment as Full Time Menial. When a teacher of his school dies, it must be presumed that the Manager knows who are the dependents and whether anyone of them is eligible for appointment. Going by the provisions of the Act and Rules, he has to offer appointment to them whenever a suitable vacancy arises. He cannot take shelter behind the plea that the dependent did not apply in time etc. The Manager alone knows, when the vacancy arises. It is W.P.(C). No.11033/2009 -:13:- impossible for the dependent to keep track of the vacancies that may arise in a school or schools under the management. The claimant cannot know whether anybody else is appointed overlooking his claim. The Manager can inform the dependent about the vacancy and direct him to apply in the prescribed format within a time frame. Atleast these positive actions can be implied from the mandatory words of R.51B. It cannot be read down to mean that only if the dependent applies in time and pesters him, he need act under R.51B. In the absence of provisions containing procedures or orders for filling up the lacunae, this grey area is a breeding ground for so many disputes and litigations. I think the Government should bestow its attention to this aspect.” Thus, going by the above dictum, the Manager will have to offer appointment to the dependent whenever a suitable vacancy arises and he cannot take a shelter that the dependent did not apply in time. The Manager alone knows when the vacancy arises. 15. The above view taken by the learned Single Judge was approved by a Division Bench in W.A.No.1164/2005 produced as Ext.R6(b) herein. W.P.(C). No.11033/2009 -:14:- 16. The matter was again considered by another Division Bench in S.N.G.S High School's case [2008 (1) KLT 1026] wherein both these decisions were relied on. After referring to the decision of the Division Bench in W.A.No.1164/2005, the bench held that “we are in respectful agreement with the above statement of the Division Bench regarding the duties of the Manager, emanating from R.51B. So, when the post of a Clerk arose in the school, the Manager was bound to appoint the writ petitioner. He cannot take shelter behind the plea that the petitioner did not submit any application.” The specific question whether the principles laid down by the Apex Court in various decisions that there should be proximity between the date of death of the employee and application for employment was considered in paragraph (7) and the Bench was of the view that the Government Order providing for a scheme for employment assistance clearly evolves another concept and it is a concession granted by the Government. There will be various vacancies to be filled up in Government service which may arise from time to time. But, as far as Aided schools are concerned, there cannot be sufficient vacancies which may arise every year for appointment and, therefore, the said principles may not squarely apply. This is clear from the following words in paragraph (7):- W.P.(C). No.11033/2009 -:15:- “Right of the dependent of a teaching staff or a non-teaching staff, who died in harness, is a statutory right. It is not a concession granted to the dependents. Whenever there is a vacancy, the Manager has to make the appointment. So, he should alert the dependents of the deceased employee regarding the occurrence of the vacancy, so that any one among them who is qualified, can apply for the post. If there is any defect in the application, the Manager has to give the applicant time to rectify the mistake and thereafter, he should appoint him. The general principles stated by the courts concerning the appointment under the dying-in- harness scheme in Government service have no application here. A vacant post in the Government will have to be filled up by inviting applications and giving every one a chance to apply, in accordance with the Rules governing appointment to such posts. The mandate of Arts.14 and 16 of the Constitution of India compels to follow the above course. The appointment of the dependent of an employee, who W.P.(C). No.11033/2009 -:16:- died in harness is an exception to the above rule and is a concession granted by the Government. The said right should be exercised, subject to the mandate of Arts.14 and 16 of the Constitution of India. But, if a vacancy arises in an aided school, no advertisement is made and no selection is made from among the best candidates, who apply pursuant to the advertisement. The Manager appoints a person of his choice. So, the principles laid down by the courts relating to appointment under the dying-in-harness scheme in public services cannot be mechanically imported or applied to the appointments under R.51B or R.9A in an aided school............ The Government order governing appointment under the dying-in-harness schme is incorporated in R.9A of Chap.XXIV-A and in R.51B of Chap.XIV-A of the K.E.R. The said G.O. provides for considering the claim for appointment of a minor when he becomes major. Further, vacancies in aided schools arise only occasionally. Therefore, the principles laid down by the Apex Court concerning appointment to public services under the dying- in-harness scheme, like grant of appointment, W.P.(C). No.11033/2009 -:17:- immediately after the death of the breadwinner to bring immediate succour to the family etc., are not applicable and unworkable, as far as aided schools are concerned.” Actually, the learned Single Judge in the Judgment in W.P. (C).No.16815/2008 has followed the above dictum and I respectfully agree with the above view. 17. The question whether the time limit prescribed in Ext.R5(a) G.O. dated 24/05/1999 is mandatory or directory in nature, has been answered by the Division Bench while dismissing W.A.No.2211/2008 wherein the above Judgment of the learned Single Judge was affirmed. 18. The learned counsel for the petitioner and the learned counsel for the Manager placed reliance upon another decision of this Court in Unnikrishnan v. Manager, C.A.H.S [2010 (1) KLT 354] wherein after referring to Judgment in Corporate Manager, Diocese of Thrissur v. Jayanarayanan [2003 (1) KLT SN Pg.33 Case No.45] it was held as follows in para (5):- “The Manager has got a duty to give employment to a claimant under the dying-in- harness scheme, provided, he is otherwise eligible and applies, as per the provisions of the relevant Government Order.” W.P.(C). No.11033/2009 -:18:- It is true that while considering the plea whether the application should be submitted within the prescribed time limit, the Bench observed thus in para 5: “The decision relied on by the learned counsel for the first respondent - Manager in Jayanarayanan's case (supra), only says that the application should be submitted within the prescribed time limit. We are in full agreement with that proposition, but in the case on hand, the claim was raised in time.” It is therefore contended that there is a shift in the view taken by the said Bench regarding the applicability of Ext.R5(a) G.O. dated 24/05/1999 and, therefore, the view taken in S.N.G.S High School's case [2008 (1) KLT 1026] and W.A.No.2211/2008 are distinguishable. Evidently, the facts of the said case are also relevant while considering the said observation. In the said case, the applicant was not a minor. Actually, the father died on 9.7.2000 and the mother of the applicant submitted a representation dated 22.7.2000 seeking for appointment to the applicant. The Manager did not oblige on the ground that the application in the prescribed format was submitted only in October, 2002. This stand was accepted by the learned Single Judge which was reversed by the Division Bench. The dictum laid down in various decisions of this Court, viz. Baiju Kumar's case [2003 (3) KLT 240] and S.N.G.S High School's W.P.(C). No.11033/2009 -:19:- case [2008 (1) KLT 1026], that the Manager has a duty to give employment and to offer the same