IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 WP(C).No. 31967 of 2003(E) --------------------------------------- PETITIONER: ------------------ V.V.VENUGOPALAN, AGED 46 YEARS, S/O.BALAKRISHNAN, EDAKATHALATHU HOUSE, ALUPURAM PO, KUTTIKATTUTHARA, YDOGAMANDAL ERNAKULAM DISTRICT. BY ADV. SRI.A.X.VARGHESE RESPONDENTS: ----------------------- 1. SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DEPUTY EDUCATION DIRECTOR, ERNAKULAM. BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.31967/2003 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THEORDER G.O.(MS)NO.349/02/GE DT. 2.11.02. EXT.P2:- COPY OF THE GOVERNMENT ORDER G.O.(MS) BNO.4/03 /G.EDN. DT. 3.1.03. EXT.P3:- COPY OF THE PROTEST LETTER ISSUED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P4;- COPY OF THE JUDGMENT IN OP. 1970/03 DT. 5.2.03. EXT.P5:- COPY OF THE MEDICAL FITNESS CERTIFICATE DT. 31.1.03. /TRUE COPY/ P.S. TO JUDGE tss K. M. JOSEPH, J. ---------------------------------------- W.P.(C). NO. 31967 OF 2003 E ----------------------------------------- Dated this the 18th January, 2008 JUDGMENT Case of the petitioner, in brief, is as follows: Sister of the petitioner passed away while in harness, on 4.5.1997. Petitioner was sanctioned appointment as L.D. Clerk on 2.11.2002. By Ext.P2 dated 3.1.2003, however, taking note of the communication of the Director of Public Instruction that the petitioner is eligible only for the post of a part time contingent menial as he is over aged, the Government has re- examined the matter in detail and accorded sanction for appointment as part time contingent part time menial cancelling Ext.P1 order. Petitioner addressed Ext.P3. This Court reserved the right of the petitioner in the earlier Writ Petition to challenge Ext.P2. Ext.P5 shows that the petitioner age is 46 as on 31.1.2003. 2. I heard the learned counsel for the petitioner and also WP(C) NO.31967/03 E 2 the learned Government Pleader. Petitioner challenges Ext.P2 and seeks a direction to implement Ext.P1 and to appoint him to the post of Lower Division Clerk. 3. In the matter of appointment under the Dying-In- Harness Scheme, the Government Orders prescribe the observance of the age limit. Exception is granted in favour of widow, widower and father and mother and part time contingent menial. Petitioner does not fall in any of the first four exempted categories and therefore, petitioner is not entitled to be appointed as L.D. Clerk in view of his having crossed the age limit. He filed the application in the year 1997. 4. One of the contentions raised by the petitioner is that there was delay in considering his application and, therefore, the age limit should not be looked into. Even going by the date of birth of the petitioner, even on the date of the application filed by the petitioner, petitioner was 41 years old in 1997. Petitioner was not in a position to show how he was not age WP(C) NO.31967/03 E 3 barred. Another contention raised by the petitioner relying on Ext.P6 is that the petitioner has accepted the appointment and that cannot be changed. Petitioner was not appointed as LD Clerk. By Ext.P1, the application given by the petitioner was accepted and sanction was given for appointment as LD Clerk by the Government under the Dying-in-harness scheme. Therefore, the question of petitioner accepting the appointment really does not arise, only based on Ext.P1. Further, the clause in Ext.P6 is intended to see that the person who is appointed does not wriggle out of the appointment which he has accepted. This cannot be treated as having disabled the Government from correcting the obvious mistake, namely a person who is age barred, who was offered appointment as LD Clerk in the teeth of the order governing the field. The age bar is inapplicable in the case of part time contingent employees. It is accordingly that the petitioner was accommodated as a part time employee. WP(C) NO.31967/03 E 4 Petitioner is working as part time menial, no doubt, under protest from 2003. There is no merit in the Writ Petition and it is dismissed. K. M. JOSEPH, JUDGE kbk. K. M. JOSEPH, J. O.P NO. OF 200 JUDGMENT 7th March , 200