IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 36445 of 2008(L) -------------------------- PETITIONER(S): --------------- MANAGER, S.S.M.U.P.SCHOOL, TRIVANDRUM. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S): --------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. PREETHA J.W., CHADAYAVILAKAM, CHRIST BHAVAN, PARASUVAKKAL, PARASUVAKKAL P.O., NEYYATTINKARA, TRIVANDRUM. 3. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 4. ASSISTANT EDUCATIONAL OFFICER, KATTAKADA, TRIVANDRUM. ADV. SRI.M.BALAGOVINDAN FOR R2 SRI.VINOD J.DEV FOR R2 MR.DILIP MOHAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2009, ALONG WITH WPC NO. 1495 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.36445/2008 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF SCHEME UNDER DYING IN HARNESS SCHEME. P2 : COPY OF APPLICATION SUBMITTED BY R2 FOR APPOINTMENT UNDER DYING IN HARNESS SCHEME. P3 : COPY OF THE REGISTERED COVER HAVING REGISTRATION NUMBER 2051 DATED 01/08/2007 OF THE PARASUVAIKAL POST OFFICE IN WHICH THE EXT.P2 WAS ENCLOSED. P4 : COPY OF STAFF FIXATION ORDER 2001-02. P5 : COPY OF STAFF FIXATION ORDER OF THE ACADEMIC YEAR 2004-05. P6 : COPY OF NOTICE DATED 30/06/2007 OF THE GOVERNMENT. P7 : COPY OF ORDER OF DPI DATED 21/11/2007. P8 : COPY OF ORDER DATED 22/09/2008 OF THE DPI. P9 : COPY OF COMMUNICATION DATED 21/10/2008 OF THE PETITIONER. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------ WP(C) Nos.36445 of 2008 & 1495 of 2009 -------------------------- Dated, this the 17th day of September, 2009 ------------------------------ J U D G M E N T WP(C) No.36445/2008 is filed by the Manager of S.S.M.U.P. School, Thiruvananthapuram seeking to quash Ext.P7 order dated 21/11/2007 issued by Government of Kerala. WP(C) No.1495/2009 is filed by the beneficiary of Ext.P7 referred to above, praying for its implementation. 2. Shortly stated, the facts pleaded in WP(C) No.36445/2008 are that, the mother of one Smt.Preetha J.W., who is the 2nd respondent in WP(C) No.36445/2008 and the petitioner in WP(C) No.1495/2009, was the Head Mistress of the aforesaid UP School. She expired while in service on 15/07/2001. Ext.P1 Government order provides a scheme for compassionate appointment for dependents of employees who die in harness. 3. It would appear from the records that on the allegation that applications made to the Manager did not yield any result, the 2nd respondent filed a complaint before the Committee for the WP(C) No.36445/08 & 1495/09 -2- Welfare of Women, Children and Physically Handicapped of the Kerala Legislature, on which parties were heard, and finally Ext.P7 order was issued by the 1st respondent directing the Manager that she be appointed as U.P.S.A. in the vacancy which arose after 15/06/2002, provided there is no other better claimant under Rules 43 and 51A of Chapter XIV-A K.E.R. It is this order which is under challenge at the instance of the Manager. 4. The contention raised by the petitioner is mainly that there was delay in making the claim, and that the claim made was an improper one. The averments in this behalf as made in Ground 'C' in the writ petition reads as under:- “C. The Ext.P7 order was passed by one Mr.Jabapalan Oliver who is a relative of the father of the 2nd respondent. The hearing was scheduled to be held on 13/07/07. On that day petitioner was present, but the 2nd respondent was absent. Then it was posted on 18/08/2007 on that day petitioner was present and the 2nd respondent was absent. During the interregnum period of hearing on 13/07/07 to 18/08/07 as instructed by the Jabapalan Oliver who heard the petition instructed the 2nd respondent to sent the Ext.P2 in the address of the Manager. So 2nd respondent sent the Ext.P2 application with a prior date dated 15/6/02 and it was received on 03-08-07 by the manger during the above mentioned interregnum period. But the 2nd respondent failed to understand that the enclosures such as income certificates where obtained on 23-7-07 and 24-7-07 and the stamp paper to prepare consent WP(C) No.36445/08 & 1495/09 -3- letter was purchased on 26.7.07. From this it is clear that the Ext.P2 application is an after thought and it could not be considered as it was sent to the Manager in time before the appointment of the said teachers. So Ext.P7 order is illegal and arbitrary.” 5. Ext.P2 application, though dated 15/06/2002, was sent under Ext.P3 cover, which shows that it was registered only on 01/08/2007, and delivered to the addressee, the Manager, only on 03/08/2007. It also shows that Ext.P2(5) income certificate is dated 24/07/2007, Ext.P2(6) income certificate is dated 23/07/2007 and Ext.P2(12) consent of other legal heirs has been drawn on a stamp paper purchased on 24/07/2007, and the consent is dated 27/07/2007. Since these documents were also enclosed to Ext.P2 application, Ext.P2 could not have been sent any time before the aforesaid dates. 6. Clause 19 of Ext.P1 scheme provides that the time limit for preferring application under the Scheme will be two years from the date of death of the Government servant. If that be so, Ext.P2 application and its enclosures, which was made only in 2007, is clearly much more than two years of 15/07/2001, the date of death of the Government servant. WP(C) No.36445/08 & 1495/09 -4- 7. Further, there is no counter affidavit filed by any one of the respondents answering the allegations in ground 'C' extracted above. That apart, it is also the specific case of the petitioner, as contended in Ground 'A', that if at all the 2nd respondent had a claim under Rule 51B of Chapter XIV-A K.E.R., that ought to have been raised and adjudicated before statutory authorities, and that the 1st respondent had no jurisdiction to have entertained the representation resulting in Ext.P7. This allegation is also unanswered. 8. In the light of all these, I see no justification to sustain Ext.P7, and therefore, Ext.P7 will stand set aside. The writ petition is, therefore, allowed as above. In view of the judgment allowing WP(C) No.36445/2008 quashing Ext.P7, the Government Order referred to above, there is no question of directing implementation of the said order, which is prayed for by the beneficiary of the said order in WP(C) No.1495/2009 filed by her. Therefore, WP(C) No.1495/2009 will stand dismissed. (ANTONY DOMINIC, JUDGE) jg