IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WP(C).No. 38264 of 2008(E) ------------------------------------------ PETITIONER(S): ------------------------- KUMARI KALA.K.S., D/O.LATE KARUNAKARAN NAIR, KALABHAVAN, PALUVALLI P.O., PACHA, TRIVANDRUM. BY ADVS.MR.T.A.UNNIKRISHNAN MR.K.SATHEESH KUMAR MR.NITHIN JACOB RESPONDENT(S): ------------------------ 1. THE GOVERNMENT OF KERALA REP.BY SECRETARY, FOREST DEPARTMENT TRIVANDRUM. 2. THE FOREST RANGE OFFICER, PALODE, TRIVANDRUM. 3. ANU, KARUVILAVEEDU, LMS JN., ATTINGAL, TRIVANDRUM. 4. ANEESHKUMAR, KARUVILAVEEDU, LMS JN., ATTINGAL, TRIVANDRUM. R1 & R2 BY GOVT. PLEADER MR.P.NANDAKUMAR R3 – R4 BY ADVS. SMT.C.G.PREETHA, MT.ANEISH RAVINDRA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO.38264/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMMUNICATION FROM THE 2ND RESPONDENT DTD. 3.7.03. P2:- COPY OF THE COMMUNICATION FROM THE 2ND RESPONDENT DTD. 2.1.07. R4(a):- COPY OF THE ORDER DTD. 12.4.06 IN OP. (SUCCESSION) NO.28/03 ON THE FILES PRINCIPAL MUNSIFF'S COURT, NEDUMANGAD. TRUE COPY P.A. TO JUDGE tss P.N.RAVINDRAN, J. ------------------------------------- W.P.(C)No.38264 of 2008 -------------------------------------- Dated 29th July, 2009 JUDGMENT Heard Sri.Nithin Jacob, the learned counsel appearing for the petitioner, Sri.P.Nandakumar, the learned Government Pleader appearing for respondents 1 and 2 and Smt.C.G.Preetha, the learned counsel appearing for respondents 3 and 4. 2. The petitioner and respondents 3 and 4 are the children of late Karunakaran Nair, a Driver employed in the Forest Department, who passed away while in service on 31.05.2003. Late Karunakaran Nair entered service as Driver in the office of the second respondent on 17.5.1984. He had married Smt.P.Sudha Devi, mother of the petitioner on 29.11.1975. It appears that late Karunakaran Nair had entered into a marriage agreement with Smt.Sujatha, mother of respondents 3 and 4 on 18.9.1978. After Karunakaran Nair passed away, disputes arose between the petitioner and her mother Smt.P.Sudha Devi on the one hand and respondents 3 and 4 and their mother Smt.Sujatha on the other. That dispute was settled by the Court of the Principal Munsiff, Nedumangad by Ext.R4(a) judgment delivered in OP (Succession)No.28 of 2003. The Court of the Principal Munsiff held that though Smt.Sujatha, mother of respondents 3 and 4 WP(C).No.38264/2008 2 had put forward a case that late Karunakaran Nair had married her on 5.9.1974, in the light of the recitals in Ext.B1 marriage agreement executed on 18.9.1978 the said plea cannot be believed. The Court of the Principal Munsiff held that Smt.P.Sudha Devi, mother of the petitioner is the legally wedded wife of late Karunakaran Nair. However, the Court of the Principal Munsiff also held that respondents 3 and 4 herein, the children born to late Karunakaran Nair in his second wife Smt.Sujatha are also his legal heirs. Ext.R4(a) judgment has become final. 3. The dispute in this writ petition arises out of the claims for appointment under the dying-in-harness scheme made by the petitioner and the fourth respondent. Appointments under the dying- in-harness scheme are governed by G.O.(P)No.12/99/P&ARD dated 24.05.1999. Paragraph 14 of the said Government order which is relevant for the purpose of this case reads as follows: “14. (a) Only one dependent will be given employment assistance under the scheme in the event of the death of a Government Servant. Employment assistance shall be given to the widow/widower, son, daughter in the said order of priority. Son and daughter shall include adopted son and adopted daughter respectively and will rank after son/daughter. No other dependent shall be eligible or given appointment under the scheme. (b) Whenever there is a dispute between the claim of two dependents, the person recommended by the widow/widower of the deceased Government Servant will be preferred. (c) In the case of dependents other than WP(C).No.38264/2008 3 widow/widower, the consent of the widow/widower shall invariably be obtained.” 4. In the light of the findings in Ext.R4(a) judgment, I have to necessarily proceed on the basis that Smt.P.Sudha Devi, mother of the petitioner is the legally wedded wife of late Karunakaran Nair. Late Karunakaran Nair had admittedly married Smt.P.Sudha Devi on 29.11.1975. The petitioner is the daughter born in that marriage. Though she had a brother by name K.Vinodkumar, he passed away on 24.8.1987. The petitioner has a sister, Smt.Kavitha who is married and settled in life. Therefore, as the daughter of late Karunakaran Nair, the petitioner claims appointment under the dying-in-harness scheme. It is true that respondents 3 and 4, the children born to late Karunakaran Nair in his second wife Smt.Sujatha are also his legal heirs. But, in the light of the finding in Ext.R4(a) judgment and as the Government order governing appointment under the dying-in-harness scheme does not contemplate appointment of children born in the second wife during the subsistence of a valid first marriage, I am of the opinion that the petitioner being the daughter born in Smt.P.Sudha Devi, the legally wedded wife of late Karunakaran Nair is entitled to preference over respondents 3 and 4 . Further, even if respondents 3 and 4 are for the purpose of Government order dated 24.5.1999 treated as persons eligible for appointment under the dying-in-harness scheme, the petitioner being the daughter of the legally wedded wife necessarily has a better claim than respondents 3 and 4. I am WP(C).No.38264/2008 4 therefore, persuaded to agree with the learned counsel appearing for the petitioner that the petitioner is entitled to preference in the matter of appointment under the dying-in-harness scheme over respondents 3 and 4. 5. The pleadings disclose that the competent authority among respondents 1 and 2 is yet to take a decision in the matter. Under the scheme for compassionate appointment, the authority competent to take a decision in the matter is Government. Since final orders have not yet been passed in the matter, I direct the first respondent to consider the application submitted by the petitioner for appointment under the dying-in-harness scheme and pass orders thereon within three months from the date on which the petitioner produces a certified copy of this judgment before the Secretary to Government, Forests & Wild Life Department. It will be open to the Government to issue notice to and hear Smt.P.Sudha Devi, the petitioner's mother also, while passing orders on the petitioner's application for compassionate appointment. The writ petition is disposed of as above. No costs. P.N.RAVINDRAN Judge TKS