IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 WP(C).No. 13529 of 2007(I) PETITIONER: --------------- K.K.SOOPY HAJI, MANAGER, KOLAVELLUR FAST L.P.SCHOOL, P.O.THUVAKUNNU,KANNUR DISTRICT. BY ADV. SRI.M.VIJAYAKUMAR RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER,PANNOOR . 3. GIBISHA P., PURAKKAYEENTAVIDA, P.O.OOYILOOR VIA,THUVAKUNNU 670 693, KANNUR DISTRICT. R1 AND R2 BY SR. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD R3 BY ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 6/1/2009, ALONG WITH WPC NO. 35551 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WP(C)NO.13529/2007 PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF APPLICATION SUBMITTED BY THIRD RESPONDENT DATED 3.1.2006. EXT.P2 TRUE COPY OF REPLY OF PETITIONER TO THE THIRD RESPONDENT DATED 8.8.2006. EXT.P3 TRUE COPY OF GOVERNMENT ORDER G.O.(P)NO.12/99/P&ARD DATED 24.5.1999. RESPONDENTS' EXHIBITS: EXT.R3(a) TRUE COPY OF THE ORDER NO.4/987/06 DATED 22/2/2006 ISSUED BY THE SECOND RESPONDENT. EXT.R3(b) TRUE COPY OF THE CIRCULAR NO.37833/02/2001/G.EDN. DATED 4.5.2002. EXT.R3(c) TRUE COPY OF THE G.O.(P)NO.37/02/P&ARD DATED 15/7/2002 ISSUED BY THE FIRST RESPONDENT. EXT.R3(d) TRUE COPY OF THE INCOME CERTIFICATE OF THE THIRD RESPONDENT. EXT.R3(e) TRUE COPY OF THE LETTER DATED 10.5.2007 ISSUED BY THE HEADMASTER OF KOVALLOOR EAST L.P.SCHOOL. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 13529 OF 2007 and W.P.(C) NO. 35551 OF 2007 ------------------------------------------------------ Dated this the 6th January, 2009 JUDGMENT W.P.(C) No.35551 of 2007 is filed by the dependent of Balan, who was working as Assistant Teacher in Kolavallur L.P.School under the management of the fifth respondent, challenging the rejection of her application for appointment under Rule 51B of Chapter XIVA of the Kerala Education Rules under the Compassionate Employment Scheme. W.P. (C) No.13529 of 2007 is filed by the Manager of the School challenging clause 19 of G.O.(P) No.12/99 P&ARD dated 24.5.1999, which provides that in the case of a minor dependent, the time limit for filing the application for compassionate employment will be three years after attaining majority. 2. Balan, father of the petitioner in W.P.(C) No.35551 of 2007, died in harness on 4.4.1994. He was an Assistant Teacher in Kolavallur L.P.School. On the date of death of Balan, the petitioner, his daughter, was a minor. Date of birth of the petitioner is 28.4.1986. The petitioner attained majority on 28.4.2004. She acquired the training qualification (TTC) on 11.11.2005. The petitioner submitted Ext.P2 application dated W.P.(C) NOS.13529 AND 35551 OF 2007 :: 2 :: 3.1.2006 to the Manager, requesting to appoint her under the Compassionate Employment Scheme. As per Ext.P3 order dated 22.2.2006, the Assistant Educational Officer directed the Manager to consider the claim for compassionate employment put forward by the petitioner in the next arising vacancy in the School. As per Ext.P4 order dated8.8.2006, the Manager rejected the application submitted by the petitioner. The reasons for rejection of the application are the following: (a) The scheme was not in force at the time of death of Balan; (b) more than twelve years elapsed after the death of Balan and, therefore, the application is not maintainable; and (c) there is no vacancy in the School during the academic year 2006-07. 3. It is stated that a vacancy of Assistant Teacher arose in the School on 4.6.2007 and the Manager appointed one Mymoonath, who was impleaded as additional sixth respondent in W.P.(C)No.35551 of 2007. Rule 51B of Chapter XIVA of the Kerala Education Rules provides that the Manager shall give employment to a dependent of an aided school teacher dying in harness. Government Orders relating to employment assistance to dependents of Government servants dying in harness shall mutatis mundantis apply in the matter of such appointments. W.P.(C) NOS.13529 AND 35551 OF 2007 :: 3 :: 4. The Compassionate Employment Scheme was originally introduced as per the Government Order dated 21.1.1970. As per G.O. (P)7/95/P&ARD dated 30.3.1995, the Scheme was liberalized. Thereafter, Government Orders were issued on 21.10.1995, 25.3.1996, 10.7.1996, 29.11.1996, 12.2.1997 and 5.1.1998 and changes were brought out in the Scheme. Clause 19 of the Scheme (G.O.(P) 12/99/P&ARD dated 24.5.1999) reads as follows: “19. The time limit for preferring applications under the scheme will be 2 years from the date of death of Govt. servants. In the case of minor, the period will be within 3 years after attaining majority.” 5. The reason stated by the Manager while rejecting the application that on the date of death of the employee, the Scheme was not in force and, therefore, the application for compassionate employment is not maintainable, is without substance. In Narayanan v. State of Kerala (1998 (2) KLT 446), it was held that the contention that the benefit could be extended to the dependents of only those persons who died in harness subsequent to the introduction of Rule 51B cannot be accepted. No time limit is fixed in the Kerala Education Act and the Rules for the purpose of filing an application for compassionate employment under Rule 51B. Even though the death of the employee was before coming into force of Rule 51B, that would not preclude the dependents from W.P.(C) NOS.13529 AND 35551 OF 2007 :: 4 :: claiming employment assistance, invoking Rule 51B of Chapter XIVA of the Kerala Education rules. In Sajeesh Babu v. State (1996 (2) KLT 542), it was held that Rule 51B does not contemplate any time limit and that the Manager cannot avoid his liability arising out of Rule 51B stating that six years have elapsed since the death of the father of the claimant. 6. In Priyesh Vasudevan v. Shameena (2005 (4) KLT 1003), the question which arose for consideration was whether a posthumous child of a teacher in an aided school, who died in harness, was entitled to get appointment under the Compassionate Employment Scheme on his attaining majority. The Division Bench (of which I am a party) answered the question in the affirmative. The scope and ambit of clause 19 of the Scheme was considered in Priyesh Vasudevan's case and the Court held as follows: “24. Sri.P.K.Suresh Kumar, learned counsel for the Manager contended that clause 19 of the Scheme providing a period of three years after attaining majority as time for applying under the scheme is contrary to the decisions of the Supreme Court. He submitted that the principles laid down by the Supreme Court in various cases, in the matter of compassionate appointment, should be read into the scheme and R.51B of Chap.XIVA of the Kerala Education Rules. Sri.Benoy Thomas, learned counsel for the appellant, on the other hand, contended that the scheme constitutes a statutory rule; Rule 51B of Chap.XIVA makes applicable the Government Orders relating to employment assistance to the dependents of the Government servants dying in harness, to the dependents of an aided school teacher dying in harness as well. He contended that the decisions of the Supreme W.P.(C) NOS.13529 AND 35551 OF 2007 :: 5 :: Court were with reference to particular situations where there were no laws or rules making specific provisions and that the Supreme Court decisions would apply only in cases where there are no specific provisions. The scheme having been incorporated by way of R.51B of Chap.XIVA, the general principles laid down by the Supreme Court cannot be read into the specific provisions made in R.51B. Counsel for the appellant also submitted that the minor children formed a class by themselves and the classification made in the scheme is a permissible classification having an intelligible differentia and nexus with the object of classification and, therefore, does not offend Art.14 of the Constitution of India. Counsel contended that validity of R.51B of Chap.XIVA and clause 19 of the scheme having been not challenged by the Manager, the contentions raised do not deserve to be scrutinised. Clause 19 of the scheme was introduced by G.O. (P) No.12/99/P&ARD dated 24.5.1999. Before 24.5.1999, there was no provision for the time limit within which the application could be filed. The scheme was revised in the light of the decisions of the Honourable Supreme Court. R.51B of Chap.XIVA was introduced on 30.3.1990. The Government Orders providing for employment assistance to the dependents of Government servants dying in harness were not directly applicable to the teachers of aided private schools governed by the Kerala Education Act and Rules. Rule 51B was introduced in this background. By R.51B a liability is cast on the Managers to give employment to a dependent of an aided school teacher dying in harness. The constitutional validity of R.51B of Chap.XIVA of the Kerala Education Rules is not under challenge in the Writ Petition. There is no challenge against the scheme for compassionate appointment as well. Therefore, as held in Osram Surya (P) Ltd. v. Commissioner of Central Excise, Indore ((2002) 9 SCC 20), any argument which in effect questions the validity of the Rule or Scheme cannot be permitted to be raised.” 7. In Manager, S.N.G.S.High School v. Reji Sagar and others (ILR 2008 (1) Kerala 637), a Division Bench held thus: “We notice that the right of the dependent of a teaching staff or a non-teaching staff, who died in harness, is W.P.(C) NOS.13529 AND 35551 OF 2007 :: 6 :: a statutory right. It is not a concession granted to the dependents. Whenever there is a vacancy, the Manager has to make the appointment. So, he should alert the dependents of the deceased employee regarding the occurrence of the vacancy, so that any one among them who is qualified, can apply for the post. If there is any defect in the application, the Manager has to give the applicant time to rectify the mistake and thereafter, he should appoint him. The general principles stated by the courts concerning the appointment under the dying-in- harness scheme in Government service have no application here.” 8. The Division Bench in ILR (2008(1) Kerala 637 quoted with approval another Division Bench decision in W.A.No.1164 of 2005, wherein it was held as follows: “6. While Rule 51A deals with the preferential right of the teachers, 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. In view of the mandatory expressions used under Rule 51B casting an obligation on the Manager to give employment to the dependent of a deceased aided school teacher, the Manager has to offer appointment to the dependent whenever a suitable vacancy arises. As rightly held by a learned Single Judge of this Court in Baiju Kumar v. D.E.O., Trivandrum, 2003 (3) KLT 240, '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 the school or schools under the management..... The Manager can inform the dependent about the vacancy and direct him to apply in the prescribed format within a time frame. At least these positive actions can be implied from the mandatory words of Rule 51B. It cannot be read down to mean that only if the dependent applies in time and pesters him, he need act under Rule 51B'. Since provisions like the one under Note 2 of Rule 51A regarding sending of registered notices are absent in W.P.(C) NOS.13529 AND 35551 OF 2007 :: 7 :: Rule 51B the learned Single Judge expressed the hope that the Government would bestow its attention to those aspects referred to above. Apparently nothing has been done by the Government. Be that as it may, even in the absence of any specific procedure regarding registered notice, prescribed time etc., in view of the mandatory expressions issued in Rule 51B of Chapter XIVA, K.E.R., it is fairly clear that it is the duty of the Manager to request the dependents of a deceased aided school teacher to apply in the prescribed format as and when a vacancy arises. 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. In case of ineligibility or if the application otherwise does not require consideration, the Manager has to enter a finding and inform the applicant accordingly. Then alone the Manager can proceed to make appointment ignoring the statutory claim. The benevolent piece of legislation would get force and life only if such an interpretation as above is given.” 9. In the light of the principles of law laid down in the aforesaid decisions, the order passed by the Manager (Ext.P4 in W.P.(C) No.35551 of 2007) is liable to be quashed. The view taken by the Manager is contrary to Rule 51B of Chapter XIVA of the Kerala Education Rules and the provisions under the Compassionate Employment Scheme. 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 Rule 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 the case put forward by the Manager is not true is clear W.P.(C) NOS.13529 AND 35551 OF 2007 :: 8 :: from the averment that a vacancy arose on 4.6.2007. For the aforesaid reasons, I quash Ext.P4 in W.P.(C) No.35551 of 2007, dated 8.8.2006. The application filed by the petitioner is liable to be allowed. The Manager was bound to employ the petitioner in the vacancy which arose after the petitioner attained majority and acquired the necessary qualification. 10. The challenge against clause 19 of the Compassionate Employment Scheme is without substance. It is not established as to how it would offend Article 14 of the Constitution of India. The provision is not arbitrary either. Clause 19 confers a benefit on the dependent of the employee who dies in harness. The rule making authority thought that it is necessary to provide employment assistance to the unemployed dependent of an employee, including a minor who subsequently attains majority and claims assistance. There is another reason why the challenge made by the Manager cannot be accepted. The salary to the teacher will be paid by the Government and not by the Manager. By appointing the dependent of an employee, invoking clause 19 of the Scheme, no rights of the Manager are affected. W.P.(C) No.13529 of 2007 is devoid of merits and the challenge against clause 19 of the Scheme is unsustainable. Accordingly, W.P.(C) No.13529 of 2007 is dismissed and W.P.(C) W.P.(C) NOS.13529 AND 35551 OF 2007 :: 9 :: No.35551 of 2007 is allowed. The Manager shall appoint Gibisha.P., the petitioner in W.P.(C) No.35551 of 2007, in accordance with Rule 51B of Chapter XIVA of the Kerala Education Rules and the Scheme for compassionate employment assistance, within one month from the date of receipt of a copy of the judgment. (K.T.SANKARAN) Judge ahz/