IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 12TH NOVEMBER 2009 / 21ST KARTHIKA 1931 WP(C).No. 21384 of 2009(P) ------------------------------------- PETITIONER(S): ------------------------- THE MANAGER, KARSHAKA SAMAJAM UPPER PRIMARY SCHOOL(KSUPS) THOTTIPAL PO, THOTTIPAL,THRISSUR DIST. BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE BY ADV. MR.S.SUJIN RESPONDENT(S): ------------------------ 1. SMT.P.A.BINDU, PALLATH HOUSE, THOTTIPAL PO, PARAPPUKARA VIA, IRINJALAKUDA, THRISSUR DIST. 2. THE ASSISTANT EDUCATIONAL OFFICER, IRINJALAKKUDA. 3. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKKUDA, 4. THE STATE OF KERALA, REP.BY THE SECRETARY TO GOVT.GENERAL EDUCATION (K) DEPARTMENT, THIRUVANATNHAPURAM 5. M.K.SUNAJA, UPPER PRIMARY SCHOOL ASSISTANT(UPSA)KARSHAKA SAMAJAM UPPER PRIMARY SCHOOL, THOTTIPAL IRNJALAKUDA 6. V.R.SREERAKHA UPPER PRIMARY SCHOOL ASSISTANT(UPSA)KARSHAKA SAMAJAM UPPER PRIMARY SCHOOL, THOTTIPAL IRNJALAKUDA, THRISSUR DIST W.P.(C) NO.21384/2009 7. REKHA M.C LOWER PRIMARY SCHOOL ASSISTANT(UPSA) KARSHAKA SAMAJAM UPPER PRIMARY SCHOOL, THOTTIPAL IRINJALAKKUDA, THRISSUR DIST. R1 BY ADV. MR.P.K.MADHUSOODANAN R2 TO R4 BY GOVERNMENT PLEADER SMT.T.B.RAMANI R5 – R7 BY ADV.MR.V.A.MUHAMMED, MR.M.SAJJAD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON 12/11/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.21384/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REPRESENTATION DT. 9.9.05 SENT BY THE IST RESPONDENT TO THE PETITIONER. P2:- COPY OF THE REPLY DTD. 12.6.06 SENT BY THE PETITIONER TO THE IST RESPONDENT. P3:- COPY OF THE ORDER DTD. 31.5.07 ISSUED BY THE 2ND RESPONDENT TO THE IST RESPONDENT. P4:- COPY OF THE ORDER DTD. 22.10.07 ISSUED BY THE 3RD RESPONDENT TO THE IST RESPONDENT. P5:- COPY OF THE JUDGMENT DTD. 19.12.08 IN WPC. 11172/08 OF THIS HONOURABLE COURT. P6:- COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE GOVERNMENT ON 13.11.07. P7:- COPY OF THE G.O.(RT) NO.2616/0-9/G.EDN. DTD. 27.6.09. R1(a):- COPY OF THE ORDER IN RP. 96/09 DTD. 2.2.09 PASSED BY THIS HONOURABLE COURT. R1(b):- COPY OF THE LETTER DTD. 29.1.09. R1(c):- COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN WPC. 11172/08. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.21384 of 2009-P - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of November, 2009. JUDGMENT The petitioner, the Manager of a U.P. School, is challenging the directions of the authorities including the Government to grant appointment under Rule 51-B of Chapter XIV-A K.E.R., to the first respondent. 2. Shortly stated, the case of the Manager is the following: Ext.P1 dated 9.9.2005 is the application submitted by the first respondent for appointment as Primary Teacher as a dependent of late Smt.T.K. Krishnaveni, her mother. In the reply Ext.P2 given by the Manager, it was pointed out that the application is highly belated and that the father was already employed at the time of death of the mother and therefore the family had substantial income to tide over the situation. It is also stated that the first respondent is already married. The authorities including the Government found that the first respondent is a rule 51-B claimant and her claim under compassionate employment scheme is genuine. The Manager is liable to appoint the first respondent in the available vacancies in the school. 3. Heard Shri N.N. Sugunapalan, learned Senior Counsel for the petitioner, Shri P.K. Madhusoodanan, learned counsel for the first wpc 21384/2009 2 respondent, Smt. T.B. Remani, learned Govt. Pleader for the official respondents and Shri V.A. Mohammed, learned counsel appearing for respondents 5 to 7. 4. Shri N.N. Sugunapalan, learned Senior Counsel mainly contended that Rule 51-B cannot be understood as giving a blanket right for any legal heir of the deceased teacher to claim appointment irrespective of the financial status at the time of death as well as the other relevant criteria specified in the Government Orders issued from time to time. It is also pointed out that the death of the mother of the petitioner was in the year 1979 and only in 2005 the application was submitted. 5. Learned Senior Counsel relied upon various decisions of this Court, viz. Sajeesh Babu v. State (1996 (2) KLT 542), Union of India v. Kumaran (1998 (2) KLT 166), Narayanan v. State of Kerala (1998 (2) KLT336), Sreeja v. Chief Postmaster General (2001 (1) KLT 356), Deepak v. Secretary, General Education Department (2002 (3) KLT 288), Manager, Parli High School v. Narayanan (2002 (3) KLT 912), Baiju Kumar v. D.E.O., Trivandrum (2003 (3) KLT 240), Priyesh Vasudevan v. Shameena (2005 (4) KLT 1003) and an unreported judgment wpc 21384/2009 3 in W.A. No.2178/2005. 6. Shri Madhusoodanan, learned counsel appearing for the first respondent submitted that herein, the writ petition was filed suppressing material facts. It is pointed out that earlier this court had directed the Manager to comply with the directions to effect appointment as per Ext.P5 and the manager had filed a review petition as R.P. No.96/2009 which was disposed of by Ext.R1(a) order, wherein also a direction was issued to the Manager to offer appointment subject to the outcome of the revision. But that was never complied with. It is also submitted that a contempt of court case as C.C.C. No.403/2009 is pending before this Court in the matter. Learned counsel relied upon the Division Bench judgments of this Court in St. Ignatius High School v. State of Kerala and others (ILR 2005 (3) Ker. 666) and S.N.G.S. High School v. Reji Sagar (2008 (1) KLT 1026) and the judgment of a learned Single Judge of this Court in Soopy Haji v. State of Kerala (2009 (3) KLT 142). It is pointed out that the first application itself was in the year 1991, immediately on attaining the age of 18 years by the first respondent and repeated applications were being submitted, which fact is evident from Ext.R1(c) which is the counter affidavit filed by the wpc 21384/2009 4 second respondent in W.P.(C) No.11172/2008. It is further pointed out that a married daughter will not be disentitled to claim such an appointment. It is further pointed out that the right under Rule 51-B being a statutory one, the consideration for such appointment is quite different from other known statutory schemes and therefore as held by this Court in S.N.G.S. High School's case (2008 (1) KLT 1026), the Manager cannot refuse to appoint the first respondent. 7. Shri V.A. Mohammed, learned counsel appearing for respondents 5 to 7 submitted that respondents 5 to 7 have already been working with approval and any direction to appoint the first respondent will not affect their rights. 8. The crucial question therefore is whether the contention raised by the petitioner that the application is not proximate to the time of death and that the first respondent is not entitled to claim appointment without fulfilling the criteria, etc. is justified. A survey of the various decisions relied upon by the learned Senior Counsel will be fruitful to consider the said argument. In Sajeesh Babu's case (1996 (2) KLT 542), it was held that Rule 51-B is a statutory provision which cannot be superseded by any wpc 21384/2009 5 executive order and that it does not contemplate any time limit. It was held thus: “In aided schools, the employment assistance is governed by a statutory provision. So, a valid right is created in a dependent. That statute does not contemplate any time limit. Therefore, the Manager cannot avoid his liability arising out of Rule 51B stating that six years have elapsed since the death of father of the petitioner.” It was also held that the decisions relied upon by the Manager therein relating to various other schemes, laying down the principle that a dependent of a deceased employee who died in harness will be entitled for appointment to ward off the unexpected immediate hardship, may not apply on the ground that in such cases the scheme for employment assistance are non-statutory by way of concession. The decision of the Division Bench in Union of India's case (1998 (2) KLT 166 is in respect of a non-statutory scheme. In Narayanan's case (1998 (2) KLT 446) also, it was held that there is no time limit for filing application under dying in harness scheme under Rule 51-B. So also, the decision of the Division Bench in Sreeja's case (2001 (1) KLT 356) to the effect that the appointment should be to get over the sudden crisis of the family, relates to another non-statutory wpc 21384/2009 6 scheme. In Deepak's case (2002 (3) KLT 288), it was held that there must be some proximity between the date of death as well as the date of application and the said decision is under Rule 51-B. Another Division Bench in Manager, Parli High School's case (2002 (3) KLT 912), after referring to the decisions in Sajeesh Babu's case (1996 (2) KLT 542), Narayanan's case (1998 (2) KLT 446) and Deepak's case (2002 (3) KLT 288), held that there should be some proximity between the date of death of the employee and the application for compassionate appointment. It was also held that if the occurrence of vacancy is on or after the coming into force of Rule 51B, the fact that the employee died before the commencement of the said rule, is immaterial. 9. Another important decision is in Baiju Kumar's case (2003 (3) KLT 240). While considering the obligation of the Manager under Rule 51B, it was held thus in para 6: “So, in the light of the provisions contained in S.7 of the Act and R.9 of Chapter III of the Rules, the Manager is bound to run the school in accordance with the provisions of the Act and Rules. He has to respect and obey the mandate of R.51B also. The said Rule creates a corresponding right in the dependent of a deceased employee. wpc 21384/2009 7 R.51B does not say that the dependent of a teacher cannot be appointed as a non-teaching staff.” In para 7, the contention of the manager that the application was not submitted in time, was repelled in the following words: “All these contentions illcome from the mouth of the Manager in the light of the mandatory provision in R.51B which says that the Manger shall give employment to a dependent of an aided school teacher dying in harness. When a teacher of his school dies, it must be presumed that the Manager knows who are the dependents and whether anyone of them is eligible for appointment. Going by the provisions of the Act and Rules, he has to offer appointment to them whenever a suitable vacancy arises. He cannot take shelter behind the plea that the dependent did not apply in time etc. The Manager alone knows, when the vacancy arises. It is impossible for the dependent to keep track of the vacancies that may arise in a school or schools under the management. The claimant cannot know whether anybody else is appointed overlooking his claim. The Manager can inform the dependent about the vacancy and direct him to apply in the prescribed format within a time frame. Atleast these positive actions can be implied from the mandatory words of R.51B. It cannot be read down to mean that only if the dependent applies in time and pesters him, he need act under R.51B. In the absence of provisions containing procedures or orders for filling up the lacunae, this grey wpc 21384/2009 8 area is a breeding ground for so many disputes and litigations. I think, the Government should bestow its attention to this aspect.” In para 11 of the judgment, various decisions of the Apex Court under other schemes, were considered and they were distinguished as different from the right conferred under Rule 51B. It was held thus: “The appointment under the dying in harness scheme is a concession granted by the Government. Normally, in the light of Articles 14 and 16 of the Constitution of India, every vacancy shall be filled up after giving a fair opportunity to all eligible candidates and the most meritorious among them should be appointed. An exception to that Rule is made when an appointment is made on compassionate ground. Therefore the executive orders granting this concession should always be subject to the mandate contained in Articles 14 and 16 of the Constitution of India. This is the principle underlying the decisions of the Apex Court. But those decisions cannot be mechanically imported while considering an appointment on compassionate ground in an aided school. The Manager of an aided school can appoint any person having the prescribed qualification. Merit is never a criterion for many educational agencies. In most of the schools, appointments are made on other considerations. Only a very few managements are concerned with the merit of the candidates. So, the provisions of Articles 14 and 16 are not wpc 21384/2009 9 applicable while making appointment to the vacancies in aided schools. Therefore, the observations made by the Apex Court are not applicable to the appointments on compassionate ground in aided schools with its full vigour. Apart from that, the right to get appointment in an aided school on compassionate ground is not a concession granted by any executive order. It is a statutory right. The executive orders governing appointment on compassionate ground in public services is incorporated in the Rule by adoption. It is legislation by reference (See the decision in Mahindra and Mahindra Ltd. v. Union of India (1979 (2) SCC 529). Unless R.51B and the relevant orders which form part of that Rule are challenged, the Manager cannot rely on the general observations of the Apex Court to reject the claim of an applicant under R.51B.” In Writ Appeal No.2178/2005, the dismissal of the Writ Petition of the claimant was challenged in the appeal. It was observed that “though the 1st appellant might have been a dependent of the deceased employee in 1979, it cannot be said that he was a dependent when he made the application in 1994, after the lapse of 15 years. Having regard to the special facts of the case, we feel that the learned Single Judge has declined relief rightly.” 10. As regards the introduction of Rule 51B, one relevant aspect is that even though the provision was introduced in the year 1990, because of wpc 21384/2009 10 the objections raised by the managers, the Government had kept in abeyance the implementation of the amendment to the rule. As per the decision of this Court in O.P.No.664/1995, the Government decided to enforce Rule 51-B of Chapter XIV-A K.E.R. 11. The scheme under Rule 51B was considered by a Division Bench of this Court in Priyesh Vasudevan's case (2005 (4) KLT 1003). The claim of minors for appointment when they became major, arose for decision in the above case. After analysing various aspects and after considering the decision of this Court in Sajeesh Babu's case (1996 (2) KLT 542), and later decisions, it was held that “if the Scheme provides for an application by a minor on his attaining majority, it could be entertained and such a provision in the Scheme could be enforced.” In para 34, it was further held as follows: “It would not be hence proper to restrict the scope and application of the scheme on the basis of the law laid down by the Supreme Court with reference to the Schemes which are quite different from the Scheme in force in the State of Kerala. More over, the specific mention made in (2000) 7 SCC 192 and (2004) 7 SCC 265 that when there are specific provisions in the Scheme those provisions should be wpc 21384/2009 11 applied, would make it clear that the general principles laid down by the Supreme Court while considering the schemes in force in other States cannot be read into R.51B of Chapter XIVA of the Kerala Education Rules and the Scheme as applicable in the State of Kerala where specific and beneficial reliefs are provided to th minor dependents of Government servants and aided school teachers dying in harness.” 12. In St. Ignatius High School's case (ILR 2005 (3) Ker. 666) the Division Bench held that a married daughter is entitled to be considered for appointment. It was held that “either Rule 51B or the Government orders referred to in Rule 51B does not make a married daughter disentitled to such appointment.” It was also held that “one cannot wait unendingly, expecting that the manager will once concede to the request, to marry.” In the recent decision of a Division Bench of this Court in S.N.G.S. High School's case (2008 (1) KLT 1026) various aspects relevant for determination of the claim arose for consideration. The entire scheme was analysed in the said judgment and it was held that the Manager can make appointment from open market if only there is no claimant under Rule 9A and 51B. The decision of another Division Bench of this Court in W.A. No.1164/2005 was also relied wpc 21384/2009 12 upon. In W.A. No.1164/2005, the claim of a dependent for appointment under Rule 51B was considered. It was held thus: “ Rule 51B provides for the obligation on the part of the manager to give employment to a dependent of an aided school teacher dying in harness, subject of course to the said dependent satisfying the required conditions.” The decision in Baiju Kumar's case (2003 (3) KLT 240) was affirmed in S.N.G.S. High School's case (2008 (1) KLT 1026). The Division Bench held further thus: “So, when the post of a Clerk arose in the school, the Manager was bound to appoint the writ petitioner. He cannot take shelter behind the plea that the petitioner did not submit any application.” The contention that the claimant's right, if any, is only to ward off the immediate hardship of the family was considered in para 7 and it was answered thus: “The Government order governing appointment under the dying-in- harness scheme is incorporated in R.9A of Chapter XXVI-A and in R.51B of Chapter XIV-A of the K.E.R. The said G.O. provides for considering the claim for appointment of a minor when he becomes major. Further, vacancies in aided schools arise only occasionally. wpc 21384/2009 13 Therefore, the principles laid down by the Apex Court concerning appointment to public services under the dying-in-harness scheme, like grant of appointment, immediately after the death of the bread- winner to brig immediate succour to the family etc. are not applicable and unworkable, as far as aided schools are concerned.” 13. In Soopy Haji's case (2009 (3) KLT 142) following the above decision of the Division Bench, it was held in paragraphs 5 and 9 thus: “That there was no vacancy in the school during the relevant period is not a ground for rejection of the application. Whenever a vacancy arises in which a candidate for compassionate employment could be accommodated under R.51B, the Manager has to do so and it is not necessary for the dependent of the employee to make any application at that time.” That was also a case where the death occurred prior to the coming into force of Rule 51B. It was held that “even if death of employee was before coming into force of Rule 51B, that would not preclude dependents from claiming employment assistance invoking Rule 51B and Clause 19 of the Govt. Order is not violative of Article 14 of Constitution.” In para 9, it was further held that “the Manager was bound to employ the petitioner in the vacancy which arose after the petitioner attained majority and acquired the wpc 21384/2009 14 necessary qualification.” 14. Learned Senior Counsel appearing for the petitioner submitted that the Special Leave Petition filed against the decision of the Division Bench in S.N.G.S. High School's case (2008 (1) KLT 1026) is pending before the Supreme Court and there is an order of stay also in force. 15. The question is whether the petitioner could be accused of any delay in applying for employment under compassionate appointment scheme and whether the application should have been proximate to the date of death. Even though in Manager, Parli High School's case (2002 (3) KLT 912) it was held that there should some proximity between the date of death of the employee and the application for compassionate appointment, while analysing the rules, it was held in S.N.G.S. High School's case (2008 (1) KLT 1026) that there is an obligation on the part of the Manager to offer an appointment to a dependent under Rule 51B. The right available under Rule 51B is statutory in nature. As held by the Division Bench in Priyesh Vasudevan's case (2005 (3) KLT 1003), since the Scheme provides for an application by a minor on his attaining majority, that right cannot be denied. 16. Therefore, even though the earlier Division Benches have viewed wpc 21384/2009 15 that there should be some proximity with the date of death of the employee, later decisions by other Division Benches are of the view that in the light of the obligation of the Manager under the statutory provisions, the Manager has to offer an appointment whenever a vacancy arises. The aspect whether there is a vacancy, is a matter exclusively within the knowledge of the Manager. Therefore, the Manager cannot take a stand that there is delay in making the application. As held by the Division Bench in W.A. No.1164/2005, which is relied on in S.N.G.S. High School's case ( 2008 (1) KLT 1026) there is an obligation cast on the Manager to give employment to the dependent of a deceased aided school teacher, going by the mandatory requirements under Rule 51-A. It was also held that if only there is no response from the dependent within a reasonable time as noted in the request, the Manager would be in a position to make appointment from the open market ignoring the statutory claim available to the dependent. 17. The contention that the married daughter is disentitled to claim appointment under dying in harness scheme, was also rejected by the Division Bench in St. Ignatius High School's case (ILR 2005 (3) Ker. 666) and hence, a similar contention raised herein cannot be accepted. Further, wpc 21384/2009 16 in the counter affidavit, it is also stated that after the death of the mother on 4.9.1979, the father of the first respondent got remarried again on 20.4.1980 to one Vijayalakshmi and both of them were living at Bombay. The first respondent was at the mercy of her uncles. On becoming major, the first respondent submitted a representation on 31.12.1991 along with application dated 13.12.1991 in the prescribed form and another application dated 17.10.2003 in the prescribed form was also made. It is clear from Ext.R1(c) which is the counter affidavit filed on behalf of the District Educational Officer in W..P.(C) No.11172/2008 that when the mother died, the petitioner was a minor. Therefore, her father submitted a representation on 20.12.1979 to the manager requesting him to keep alive the claim under dying in harness scheme and compassionate appointment till one of his daughters become major. It is also submitted that the petitioner, on attaining 18 years, submitted a representation on 31.12.1991 for appointment in a suitable post in the school and submitted another application in the prescribed form. In the light of the above position and in the light of Ext.P5 judgment and Ext.R1(a) order passed by this court in the review petition filed by the manager against Ext.P5 judgment, the wpc 21384/2009 17 Manager cannot refuse to appoint the first respondent. 18. All the ingredients are found in favour of the first respondent in regard to her claim for appointment. The Manager ignored the claim of the first respondent while other teachers were appointed. It is averred in para 5 of the counter affidavit filed by the first respondent that after the Contempt of Court Case was filed by the first respondent, the manager has appointed one Shri Raghu C.P. and one Smt. K.M. Nisha as LPSA. The