IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 WA.No. 1775 of 2007 --------------------- AGAINST THE JUDGEMENT IN WPC.32375/2005 Dated 14/06/2007 .................... APPELLANT: PETITIONER ------------------------ MANAGER, K.V.SANSKRIT HIGHER SECONDARY SCHOOL, MUTHUKULAM. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): RESPONDENTS -------------------------- 1. DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA. 2. DEPUTY DIRECTOR (EDUCATION), ALAPPUZHA. 3. DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 4. GOVT. OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 5. R.RAJESH, THEIVEEPIL HOUSE, THAMALAKKAL PO, HARIPPAD, ALAPPUZHA. 6. SREEKUMAR, K.V.SANSKRIT HIGHER SECONDARY SCHOOL, MUTHUKULAM. BY GOVT. PLEADER SMT.T.B.REMANI FOR R 1 TO R4 BY ADV.SRI.M.V.MATHEW FOR R5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2010, ALONG WITH WA NO. 1771 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------ W.A.Nos.1771 & 1775/2007 ------------------------------ Dated this, the 19th day of March, 2010 JUDGMENT Balakrishnan Nair, J. W.A.No.1775/2007: The appellant was the writ petitioner. He is the Manager of K.V.Sanskrit Higher Secondary School, Muthukulam. The dispute raised in the Writ Petition was concerning the right of the 5th respondent to get employment under the dying-in-harness scheme. 2. The brief facts of the case are the following: Sri.A.Ramakrishnan was a Part-time Menial working in the appellant's school since 8.6.1966. He died in harness on 4.3.1995. At the time of his death, the 5th respondent was a minor. He attained majority only on 20.5.2000. Even before attaining majority, he moved the District Educational Officer (DEO), Alappuzha, by filing a representation dated 18.9.1999, praying for the said officer's help to get employment under the dying-in-harness scheme in the school of the appellant. The D.E.O replied by Ext.P1 communication dated 25.10.1999, stating that Part-time Menial is not covered by G.O.(Ms) No.15/97/G. Edn dated 16.1.1997, governing W.A.Nos.1771 & 1775/07 - 2 - appointment under the dying-in-harness scheme. Thereafter, the 5th respondent moved the Director of Public Instruction (DPI) by filing a petition on 27.12.1999. The D.P.I., by Ext.P2 communication, informed him that he is not eligible to get employment under the aforementioned scheme. Challenging Ext.P2, the 5th respondent filed a revision before the Government. This Court, by judgment in O.P.No.22656/2000 filed by the said respondent, directed the Government to consider his representation. The Government, after hearing both sides, issued Ext.P4 communication dated 9.1.2001, upholding the claim of the 5th respondent. The Manager was directed to appoint the said respondent under the compassionate employment scheme in the school without delay. The Manager filed a petition dated 24.1.2001, requesting the Government to review Ext.P4. That review petition was dismissed by the Government by Ext,.P5 communication. When Ext.P4 order was not implemented, the 5th respondent filed O.P.No.18342/2001, praying for a direction to the Manager to implement Ext.P4. In the meantime, on 31.9.1999 a vacancy of Full-time Menial arose in the school. The appellant-Manager kept it vacant and finally he filled that vacancy by appointing the 6th respondent on 10.1.2005. The said appointment was placed before the D.E.O for W.A.Nos.1771 & 1775/07 - 3 - approval. But, the said request was rejected by the D.E.O by Ext.P6 communication dated 26.2.2005. Against that order, the appellant preferred an appeal before the Deputy Director of Education. The said appeal was rejected by the Deputy Director by Ext.P7 order dated 4.5.2005. Subsequently, the Deputy Director took steps to disqualify the appellant, who was holding the office of Manager. Ext.P8 dated 14.1.2005 is the notice issued by the Deputy Director to the appellant concerning the matter. In the above factual background, the present Writ Petition was filed on 18.11.2005, challenging Exts.P1, P2 and P4 to P8 and seeking consequential reliefs. The 5th respondent filed a counter affidavit, supporting the impugned orders and resisting the prayers in the Writ Petition. 3. The learned Single Judge heard and disposed of the aforementioned Writ Petitions filed by the Manager and the 5th respondent by a common judgment dated 14.6.2007. The Writ Petition filed by the appellant herein was dismissed and the Writ Petition filed by the 5th respondent was allowed, awarding an amount of Rs.2 lakhs towards costs and compensation. The appellant herein was also directed to appoint the 5th respondent forthwith as Full-time Menial in the school. Challenging W.A.Nos.1771 & 1775/07 - 4 - the said common judgment, this Writ Appeal and W.A.No.1771/2007 were filed by the Manager. 4. We heard the learned counsel Sri.George Poonthottam for the appellant and Sri. M.V.Mathew for the 5th respondent. We also heard the learned Government Pleader Smt.T.B.Remani for the official respondents. 5. In the appeal the appellant has raised the following grounds. According to the appellant, the 5th respondent has not submitted any application in the prescribed format. The said point is plainly untenable, as the 5th respondent was fighting his cause from 1999 onwards. When the matter was pending before the statutory authorities, the appellant never had a case that the 5th respondent did not apply in the prescribed format and therefore, he could not be appointed. In fact, the said contention is an abuse of the process of court and it is only to be rejected and we do so. Further, the said point is covered against the appellant by the decision of the Division Bench of this Court in Unnikrishnan v. Manager, C.A.H.S. [2010(1) KLT 354]. 6. The next point raised is that the death took place in 1995 and therefore, employment cannot be provided after a long delay of more than 5 years. The appointment under the dying-in-harness scheme, prevailing W.A.Nos.1771 & 1775/07 - 5 - in aided schools in Kerala, cannot be compared with the said scheme in Central Government Service or Public Sector Undertakings. It is a statutory scheme providing for preference in appointment to dependents in aided schools. The point raised by the appellant in this regard is also covered against him by the decision of this Court in S.N.G.S. High School v. Reji Sagar [2008(1) KLT 1026]. Further, the 5th respondent attained majority only on 20.5.2000. As per the relevant Government order, a minor claimant can apply for appointment within three years of his attaining majority. In the absence of any challenge to that order which forms part of the Kerala Education Rules, the Manager is bound by that Rule. So, the said contention is plainly untenable. 7. The next point canvassed is concerning the applicability of the provisions of Chapter XXIVB of the Kerala Eduction Rules (K.E.R.) and the alleged redundancy of the provisions of Chapter XXIVA of the K.E.R.. The said point is also covered against the appellant by the decision of the Division Bench of this Court in Saraswathi Vilasam U.P.School v. Priyesh Aramana [2007(3) KLT 648]. We are in respectful agreement with the view taken by the Division Bench in that decision. 8. Further, the Government have as early as on 9.1.2001, by W.A.Nos.1771 & 1775/07 - 6 - Ext.P4 order, directed the appellant to appoint the 5th respondent in his school. The said order was challenged after the lapse of about 5 years, in November, 2005. Exts.P4 to P8 are dependent proceedings issued based on Ext.P4. Since the challenge against Ext.P4 fails owing to delay, the challenge against Exts.P5 to P8 also fails. In the result, we affirm the judgment of the learned Single Judge, in so far as it repels the challenge against Exts.P4 to P8 and directs the appellant to appoint the 5th respondent in his school as Full-time Menial forthwith. 9. Now, the point which remains to be considered is the validity of the direction to the appellant to pay Rs.2 lakhs towards costs and compensation to the 5th respondent. The jurisprudential basis for the award of such a huge amount as compensation is the alleged violation of the fundamental rights of the 5th respondent under Article 21 of the Constitution of India by the appellant-Manager. 10. The guarantee under Article 21, in fact, is an injunction against the State. The Manager is a statutory authority and is, therefore, amenable to the writ jurisdiction of this Court concerning his functions as Manager. But, it is not yet settled whether he can be compelled by this Court under Article 226 to obey the various injunctions against the State, contained in W.A.Nos.1771 & 1775/07 - 7 - Part III of the Constitution of India. The denial of employment may result in denial of a decent living, which is now treated as part of right to life flowing from Article 21. But, if a private person violates the fundamental rights of a citizen under Article 21, the person who suffered the injury has, ordinarily, to seek reliefs before the competent civil court or other statutory forums, if any, provided. If, as a result of the commissions and omissions of the Manager, if the 5th respondent has lost salary, the Deputy Director of Education can take action against the Manager under Rule 7 of Chapter III of the K.E.R., recover the loss suffered by the 5th respondent from the Manager and pay it to the 5th respondent. Going by Ext.P8, it appears, action under Rule 7 of Chapter III of the K.E.R., to disqualify the appellant to hold the office of Manager, has already been initiated. In view of the above position, we think, the direction to pay Rs.2 lakhs towards costs and compensation to the 5th respondent is not justified. Accordingly, the said direction is vacated. But, the 5th respondent is entitled to get costs throughout, which we fix as Rs.10,000/-. Subject to the above modification, the Writ Appeal is dismissed. W.A.No.1771/2007: 11. In view of the judgment in W.A.No.1775/2007, this appeal is W.A.Nos.1771 & 1775/07 - 8 - also dismissed. No separate order as to costs is made in this appeal. K. Balakrishnan Nair, Judge. P.N.Ravindran, Judge. nm.