IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 25997 of 2006(T) -------------------------------------- PETITIONER(S): ---------------------- K.P. SANY, W/O.BABY, CHAMAKKAT HOUSE, VAYIKKARA KARA, RAYAMANGALAM VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT. BY ADV. MR.ELVIN PETER P.J. MR.C.X.ANTONY BENEDICT RESPONDENT(S): ------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD, MUVATTUPUZHA. R1 TO R3 BY ADV. MR.K.S.ANIL, SC, KSEB R1 TO R3 BY ADV. MR.ASOK M.CHERIYAN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 25997/2006-T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CERTIFICATE DATED 15/12/2000 ISSUED BY THE TAHSILDAR, TALUK OFFICE, KUNNATHUNAD. EXT.P2: COPY OF THE ORDER DATED 06/11/1993 ISSED BY THE FIRST RESPONDENT. EXT.P3: COPY OF THE ORDER DATED 30/10/2001 OF THE 2ND RESPONDENT. EXT.P4: COPY OF THE APPEAL DATED 23/08/2002 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P5: COPY OF THE JUDGMENT DATED 31/01/2006 IN O.P. NO. 27152/2002. EXT.P6: COPY OF THE ORDER DATED 26/07/2006 OF THE FIRST RESPONDENT. EXT.P7: COPY OF THE ORDER DATED 07/05/2004 OF THE FIRST RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.25997/2006-T ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 4th day of March, 2009 J U D G M E N T The petitioner is aggrieved by the denial of appointment under the dying-in-harness scheme in the Kerala State Electricity Board. Her brother, Sri.K.P.Sunny who was working as worker died on 11/09/2000 in a motor accident. He was the sole bread winner of the family consisting of the petitioner and her mother. He was unmarried. After the death of the brother, the mother is being looked after by the petitioner since there is no one else to look after her. The petitioner thereafter got married. 2. The Board has framed a scheme for compassionate appointment for the dependents of the employees who die-in-harness. They are governed by the provisions contained in Kerala State Electricity Board (appointment of dependents of Board employees who die-in-harness or are permanently disabled and are retiring on invalid pension) Regulation, 1985 (hereinafter referred to as 'Regulation'). Clause 4(1) of the Regulation enumerates the dependents who are entitled to seek appointment under the dying-in-harness scheme which are as follows:- (1) wife or husband, (2) son and (3) unmarried daughter. Dependents in the case of unmarried Board employees as per Clause 4(2) of the Regulation are:- (1) Unemployed brother, (2) W.P.(C) No.25997/2006 -:2:- unmarried and unemployed sister, (3) father and (4) mother. These Regulations were amended by the Board as per notification dated 01/04/1992. After the amendment, the dependents therein are:- (1) widow or widower, (2)son, (3) daughter (4) unmarried and unemployed brother, (5) unmarried and unemployed sister, (6) father, (7) mother, (8) nephew and (9) niece. As per G.O.(P) No.45/92 P& ARD, dated 23/11/1992, it was laid down that in the case of unmarried sister, irrespective of the fact that whether she is married, is also eligible for appointment under the dying-in- harness scheme. Thereafter, the Board issued a modified order as per Ext.P2. It was specified therein that in the case of unmarried employee who died in harness, his sister, irrespective of the fact whether she is married or not, will be eligible for appointment under the dying-in-harness scheme. 3. Thereafter, the petitioner had been submitting applications for appointment. By Ext.P3, she was given a reply that a married sister is not eligible for appointment under the dying-in-harness scheme. She filed an appeal before the first respondent Board as Ext.P4. Thereafter she approached this Court by filing O.P.No.27152/2002. Pursuant to the directions issued therein, again the first respondent passed an order as per Ext.P6 rejecting her claim. The same is under challenge in this writ petition. W.P.(C) No.25997/2006 -:3:- 4. Ext.P7 is a clarification issued by the Board itself. Therein, it is stated that a married daughter of a deceased employee is also eligible for appointment under the scheme. Therefore, it is contended by the learned counsel for the petitioner that there cannot be distinction as far as married sister is concerned. A reading of Ext.P6 shows that it is based on Government letter dated 18/10/1996. Therein, the Government was of the view that the regulation could not be amended by executive orders, which is the sole reason for rejection of the application. 5. The crucial question to be decided therefore is whether on the facts of this case, the above stand would be correct. The petitioner is the sister of the deceased who was not married. Apart from the petitioner, the other legal heir is his mother. The petitioner's marriage took place only after the death of the brother. Therefore, clearly, she was a dependent of her brother who was the sole bread winner of the family. In that view of the matter, it cannot be said that as on the date of the death of the brother, she was not a dependent of the employee. Then the question is whether merely because she is married, she will go out of the scheme. The object and purpose of the scheme should be understood in the light of the fact that the benefit is conferred on a class of dependents who may be able to get appointment consequent on the death of the breadwinner of the family. W.P.(C) No.25997/2006 -:4:- Therefore, the crucial question will be the aspect of dependency and nothing else. In that view of the matter, the marriage cannot be an aspect which would disentitle a person from claiming appointment if other conditions are satisfied. This Court was pleased to consider this issue in similar cases. In the decision in, Ashkarali v.State of Kerala [2009 (1) KLT SN 17 (C.No.18)] it was held as follows:- “Irrespective of marriage, the son or daughter of the deceased employee may have been dependent on the deceased employee, and that, while marriage may change the status of the son/daughter, his or her status as a dependent son or dependent daughter may continue. The mere fact that the son/daughter got married by itself will not indicate that he/she is not eligible for appointment under the Compassionate Employment Scheme.” 6. The same reasoning will apply as far as married sister is concerned. Infact, the Division Bench of this Court in an earlier case, Rev.Mother, Delphine Mary v. State of Kerala 2002 (1) KLT 137, where also in similar circumstances, found that a married daugher is not disentitled for the benefit of the scheme. Therefore, without going into the question whether the scheme could have been amended by the Board or not, application of the petitioner for appointment under the scheme could have been disposed of by the Board. There is no rationale to exclude a married W.P.(C) No.25997/2006 -:5:- sister from the scheme, particularly since the Government also by G.O.(P) No.45/92 included a married sister under the scheme. As far as the petitioner is concerned, she has claimed that she was a dependent of the deceased who was working with the Board at that point of time. Therefore, Ext.P6 is quashed. There will be a direction to the respondents to reconsider the issue in the light of the above findings. Appropriate orders shall be passed within a period of two months from the date of receipt of the copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms