IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 WP(C).No. 37554 of 2008(U) --------------------------------------- PETITIONER(S): ----------------------- SAMAJ M., S/O. HARIDASAN, THAMARAKUNNATH, P.O. PUTHIYANGADI, PAVANGAD, CALICUT-21. BY ADV. SRI.R.PARTHASARATHY RESPONDENT(S): -------------------------- 1. THE STATE LIBRARY COUNCIL REPRESENTED BY ITS SECRETARY, KURAVANKONAM, THIRUVANANTHAPURAM- 695003. 2. THE STATE OF KERALA REPRESENTED BY SECRETARY, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 3. THE DISTRICT LIBRARY COUNCIL REPRESENTED BY SECRETARY, KOZHIKODE. R1 & R3 BY ADV.SRI.P.V.SURENDRANATH, SC FOR KSLC R2 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.37554/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE APPLICATION DATED 29/12/1995. P2 COPY OF THE LETTER DATED 19/10/2000 SENT BY THE 2ND RESPONDENT TO 1ST RESPONDENT. P3 COPY OF THE JUDGMENT IN OP 17656/2001 DATED 17/12/2001. P4 COPY OF THE ORDER NO.D3.199/02 DATED 25/3/2002 ISSUED BY THE 1ST RESPONDENT. P5 COPY OF THE LETTER NO.D2/3619/04/K.S.L.C. DATED 10/11/2004 FROM 1ST RESPONDENT. P6 COPY OF THE GOVT. NOTIFICATION DATED 19/12/1998. P7 COPY OF THE ORDER NO.1257/08 DATED 6/10/2008 ISSUED BY THE SECRETAY, STATE LIBRARY COUNCIL. P8 COPY OF THE ORDER NO.D2/1795/06 DATED 13/9/2006 ISSUED BY SECRETARY, STATE LIBRARY COUNCIL. P9 COPY OF THE ORDER NO.D2/2778/07 DATED 14/8/2007 PASSED BY SECRETARY, STATE LIBRARY COUNCIL. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 37554 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of February, 2011 J U D G M E N T The petitioner's father Sri. Haridasan was a Grade II Librarian of the Kozhikode Local Library Authority. He died on 06.03.1994, while in service. At that time, the petitioner was a minor. He became major on 29.12.1995. On the very same day, the petitioner filed Ext.P1 application for appointment under the Compassionate Employment Scheme of the Government. The Kozhikode Local Library Authority was constituted under the Madras Public Libraries Act, 1948. The State of Kerala enacted the Kerala Public Libraries Act in 1989 and constituted the 1st respondent- State Library Council. All the District Local Library Authorities under the Madras Public Libraries Act 1948 were taken over by the 1st respondent-State Library Council by notification dated 19.12.1998. After the merger, the petitioner approached the 1st respondent for appointment W.P.(C)No. 37554 of 2008 -2- pursuant to Ext.P1 application. The 1st respondent refused to entertain the claim on the ground that the petitioner's father was an employee under the Kozhikode Local Library Authority and not of the 1st respondent. The 2nd respondent- Government of Kerala by Ext.P2 clarified that since all the assets and liabilities of Local Library Authority has been transferred to the State Library Council and the appointing authority being State Library Council, the 1st respondent is liable to appoint dependents of employees of Local Library Authorities under the dying-in-harness scheme. Since despite Ext.P2, the 1st respondent did not take steps to give the petitioner appointment, the petitioner filed O.P. No.17656/2001. By Ext.P3 judgment this court directed the 1st respondent to consider the application and pass orders. By Ext.P4 order the 1st respondent rejected the petitioner's claim. The petitioner again approached the 2nd respondent since the petitioner could not afford to challenge Ext.P4 in a writ petition because of his indigent economic circumstances which also did not find favour with the W.P.(C)No. 37554 of 2008 -3- 1st respondent. It is under the said circumstances the petitioner has filed this writ petition seeking the following reliefs: “i) call for the records and; ii) issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext.P4 and P5 order passed by the 1st respondent. iii) issue a writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to appoint the petitioner under Dying-in Harness Scheme in the vacancy that arose after submitting Ext.P1 application or in any of the subsisting vacancies under the District Library Council, Kozhikode or in any of vacancies under the other District Councils or the State Library Council and;” 2. A statement has been filed today by the counsel for the 1st respondent supporting Ext.P4. The counsel for the petitioner contends that the statement shall not be accepted since the petitioner had no occasion to file a reply to the statement. 3. I have considered the rival contentions in detail. 4. The reasons stated in Ext.P4 for rejecting the claim of the petitioner are as follows: The first is that the petitioner's father was an employee of the Local Library Authority and W.P.(C)No. 37554 of 2008 -4- therefore the 1st respondent is not liable to entertain the claim of the petitioner for compassionate employment. The second is that, since the immediate financial crisis is long over the 1st respondent is not liable to give the petitioner employment under the Compassionate Employment Scheme. Thirdly, there are no vacancies to which the petitioner can be accommodated. Fourthly, that the State Library Council constituted under the Kerala Public Libraries Act is an autonomous statutory body and therefore the Compassionate Employment Scheme is not applicable to the State Library Council, which is recognised by this court in W.A. No.3296/2001. 5. As far as the first contention is concerned, it is only to be rejected straight away as cantankerous. Admittedly, the Local Library Authorities have been taken over by the 1st respondent State Library Council. That take W.P.(C)No. 37554 of 2008 -5- over can only be with all assets and liabilities. Therefore, if any right has accrued to any employee or his legal heirs prior to the takeover, that right would be carried over against the 1st respondent who is the successor-in-interest of the Local Library Authority. When the Kozhikode Local Library Authority merged with the State Library Council in accordance with the Government notification pursuant to Kerala Public Libraries Act, the State Library Council takes over the liabilities of the Kozhikode Library Authority also. That includes the liability to give compassionate employment to the dependants of the deceased employees of the Kozhikode Local Library Authority. The fact that the petitioner is a dependant of an employee of the erstwhile Kozhikode Library Authority is not disputed before me. If that be so, the State Library Council is bound to recognise the right of the petitioner as a legal heir of an employee of the Kozhikode Local Library Authority who died-in-harness. As such the first objection in Ext.P4 has no legs to stand. W.P.(C)No. 37554 of 2008 -6- 6. Regarding the 2nd contention, firstly I note that the petitioner had applied for compassionate employment within the period prescribed in the Government order which was in force at the relevant time and was applicable to the Kozhikode Local Library Authority. Simply because the authority sat on the application for years, the 1st respondent cannot simply reject the claim of the petitioner on the ground that the immediate financial crisis of the family is over. Apart from that, the petitioner has specifically averred in the writ petition that still the petitioner and his mother are finding it difficult to make both ends meet and in fact that is the reason stated by the petitioner for not approaching this court earlier. Therefore the 2nd objection also is without any merit whatsoever. 7. Regarding the 3rd contention of want of vacancies, I am of opinion that it is also to be rejected straight away in view of Exts.P8 & P9, wherein in 2006 & 2007 compassionate employments were given to other persons, which goes to show that while the petitioner's application W.P.(C)No. 37554 of 2008 -7- was pending there were vacancies to which appointments under the Compassionate Employment Scheme were actually made. That being so, the 1st respondent cannot now hide behind the contention that there are no vacancies for accommodating the petitioner. 8. The 4th contention also does not find favour with me. In respect of employees who entered service subsequent to the formation of the 1st respondent-State Library Council that argument may hold good. But the Kozhikode Local Library Authority was under the General Education Department of the Government of Kerala and therefore the Government orders relating to compassionate employment were applicable to the employees of Kozhikode Local Library Authority. So when the 1st respondent took over the Kozhikode Local Library Authority with the liabilities of the Kozhikode Local Library Authority, the liability to give compassionate employment to employees of Kozhikode Local Library Authority in accordance with the scheme applicable to the said Authority also is taken over W.P.(C)No. 37554 of 2008 -8- by the 1st respondent-State Library Council. In fact that is exactly what the Government has held in Ext.P2. Therefore the respondent cannot deny compassionate employment to the petitioner on that ground also. 9. The learned counsel for the 1st respondent takes the contention that the petitioner is guilty of delay and laches insofar as Ext.P4 was issued on 25.3.2002 and the petitioner has filed this writ petition only on 17.12.2008. The petitioner has specifically stated in the writ petition that after Ext.P4 he approached the 2nd respondent again and he could not afford to challenge the same at that time since he and his mother did not have any income sufficient to file a writ petition and they were living on the paltry income of the petitioner as a helper in a tea shop run by the petitioner's uncle. Therefore I am satisfied that the petitioner has sufficiently explained the delay in challenging Ext.P4 appropriately. 10. In view of the above findings, I am satisfied that the petitioner has become entitled to employment in the W.P.(C)No. 37554 of 2008 -9- 1st respondent under the Compassionate Employment Scheme of the Government which was applicable to the Kozhikode Local Library Authority, of which the petitioner's father was an employee which authority was taken over by the 1st respondent-State Library Council. The 1st respondent is directed to pass orders giving employment to the petitioner as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/