IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 WA.No. 450 of 2009() -------------------- AGAINST THE JUDGEMENT IN WPC.6223/2005 Dated 04/02/2009 .................... APPELLANT: 3RD RESPONDENT IN WPC ----------------------------------- T.S.SANTHOSH KUMAR, S/O.LATE SARALA DEVI, KOYIPPAD, ERAM NORTH, CHATHANNUR, KOLLAM. BY ADV. SRI.M.V.THAMBAN RESPONDENT(S): PETITIONER IN WPC/RESPONDENTS 1, 2 & 4 ----------------------------------------------------- 1. THE MANAGER, TEM VOCATIONAL HIGHER SECONDARY SCHOOL, MYLODE, POOYAPPALLY, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OIFFICER, KOTTARAKKARA. 4. DANNIE B.C., VADAKKATHIL PUTHAN VEEDU, NETTAYAM (PO), POOYAPPALLY (VIA), KOLLAM. ADV. SMT.AYSHA YOUSEFF FOR R4 SMT.MOLLY JACOB FOR R4 SMT.P.V.ASHA FOR R1 SR.GOVT. PLEADER SRI.BENNY GERVASIS FOR R2 & R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24/03/2009, ALONG WITH WA NOS.446 & 448/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.A. NOS. 446, 448 & 450 OF 2009 ----------------------------------------- Dated 24th March, 2009. JUDGMENT Balakrishnan Nair, J. W.A.No.450/2009: The 3rd respondent in the Writ Petition is the appellant. The subject- matter of the case was whether the appellant was eligible for appointment under the dying-in-harness scheme, as provided in Rule 51B of Chapter XIV-A of the Kerala Education Rules. 2. The brief facts of the case are the following: The appellant's mother was a Sewing Teacher in the 1st respondent's School. She died in harness on 1.10.1999. The appellant claimed that though he had earlier worked in the Gulf, he returned and he was remaining unemployed. At the time of the death of the teacher, the appellant and his wife were depending on her and therefore, the appellant was entitled to get employment under the dying-in-harness scheme. It is not necessary to refer to the facts in detail, having regard to the order we propose to pass in this appeal. The WA 450/2009 ETC. 2 Government re-considered the claim of the appellant for appointment under the dying-in-harness scheme, pursuant to the direction of this Court in Ext.P6 judgment. There was a specific direction by this Court to consider whether the appellant herein was a dependent of the deceased teacher. The Government re-considered the matter and issued Ext.P8 order. The relevant portion of Ext.P8, wherein the dispute was dealt with, reads as follows: “The annual income of Sri.Santhosh Kumar is also within the ceiling limit as per rules. The argument of the Manager that Sri.Santhosh Kumar purposely evaded the Family Pension of the deceased employee will not stand, as Family Pension is excluded while computing the income of the family. As per GO(P) 12/99/P&ARD dated 24.5.1999 there is no bar for giving employment assistance to a married son who lives separately. Sri.Santhosh Kumar informed during hearing that he was living with his mother at the time of her death and he returned from abroad as he could not find a permanent job there. Government as per Lr.No.2806/R3/01/P&ARD dated 19.3.2001 had also made it clear that married son/daughter may also be considered for the benefit of the scheme, if they are eligible otherwise.” 3. Going by the above quoted portion of the impugned order, it would appear that the Government proceeded on the footing that if the appellant's income is within the ceiling limit as provided in the relevant Government order governing appointments under the dying-in-harness scheme, he is a dependent. The appellant can be said to be a dependent of his mother, if, at the time of her death, he was depending upon her substantially for his daily WA 450/2009 ETC. 3 needs. Even if the income does not exceed the prescribed limit, still, a legal heir need not be a dependent. Even if the legal heir is having assets worth several crores, if that property does not yield any income, still, he can be a dependent. These are matters, which will depend upon the facts of each case. There cannot be any set formula for finding out whether a particular person is a dependent of a deceased employee. Since the Government did not decide the matter in the proper perspective, we feel that the matter should go back to the Government. It is not proper for this Court to receive additional materials and venture to decide whether the appellant was a dependent of his mother or not, at the time of her death. The learned Single Judge took note of the assets of the appellant and came to the conclusion that he cannot be treated as a dependent of the deceased teacher, his mother. In every case, the assets need not be a determinative factor. The case of the appellant in this case is that even though he is having some assets, the same does not yield any income. 4. In view of the above position, we allow the appeal, set aside the judgment of the learned Single Judge and also quash Ext.P8 order. The Government shall re-consider the matter, after affording an opportunity of being heard to respondents 1 and 4, apart from the appellant, within four months from the date of receipt of a copy of this judgment. The parties will WA 450/2009 ETC. 4 be free to file fresh materials and adduce evidence before the Government. The Government shall, if necessary, after getting appropriate reports from the Tahsildar concerned regarding the dependency of the appellant and also taking into account the materials produced, decide whether the appellant was, in fact, a dependent of his mother or not, even if his income was within the ceiling limit. W.A.Nos.446 & 448/2009: 5. It is ordered that the judgment in W.A.No.450/2009 will govern these appeals also. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm