IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 WP(C).No. 14425 of 2008(P) ----------------------------------------- PETITIONER(S): ------------------------ 1. K.V.HASEENA, ARABIC TEACHER, M.K.K.H.M.A.U.P.SCHOOL, PATHANAPURAM,AREACODE, MALAPPURAM. 2. K.V.MEHBOOB,PALIYALIYIL HOUSE, KUNIYIL PO., KIZHUPARAMBA, AREACODE VIA., MALAPPURAM DIST. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT, SECRETARIAT,TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY,TRIVANDRUM-14. 3. THE DISTRICT EUDCATIONAL OFFICER,WANDOOR. MALAPPURAM DISTRICT. 4. THE ASSISTANT EDUCATIONAL OFFICER,AREECODE, MALAPPURAM DISTRICT. 5. THE MANAGER,M.K.K.H.M.A.U.P.SCHOOL, PATHANAPURAM, AREACODE, MALAPPURAM. 6. SMT.K.K.RAJEENA,M.K.K.H.M.A.U.P.SCHOOL, PATHANAPURAM AREACODE, MALAPPURAM. GOVERNMENT PLEADER SRI.T.T.MOHAMMED FOR R1TO R4 ADV.SRI.V.RAJENDRAN FOR R5 ADV. SRI.P.SAMSUDIN FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.14425/2008 P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LEGAL HEIRSHIP CERTIFICATE DTD. 31/07/1996. EXT.P2: COPY OF THE ORDER NO.B/3005/05 OF THE ASST.EDL.OFFICER DTD. 17/07/2006. EXT.P3: COPY OF THE ORDER NO.G/2654/06/K.DIS. OF THE ASST.EDL. OFFICER DTD. 28/07/2006. EXT.P4: COPY OF THE ORDER NO.K.DIS.A5/4871/06 OF THE DIST.EDL. OFFICER DTD. 26/02/2007. EXT.P5: COPY OF THE ORDER NO.G2/D.DIS.47758/07/DPI OF THE 2ND RESPONDENT DTD. 10/10/2007. EXT.P6: COPY OF THE G.O.(RT) NO.1789/08/G.EDN. OF THE GOVERNMENT DTD. 10/04/2008. EXT.P6(1): COPY OF THE ENDORSEMENT BY THE AEO APPROVING PETITIONER'S APPOINTMENT. EXT.P7: COPY OF THE REVIEW PETITION FILED BEFORE THE GOVERNMENT (1ST PETITIONER) DTD. 05/05/2008. EXT.P7(A): COPY OF THE SENDING RECEIPT DTD. 06/05/2008. EXT.P8: COPY OF THE LETTER NO.B-4039/2000/L.DIS. OF THE ASST. EDL.OFFICER DTD. 30/10/2000. EXT.P9: COPY OF THE SHOW CAUSE ISSUED BY THE MANAGER DTD. 10/06/2008. RESPONDENT'S EXHIBIT: EXT.R5(A): COPY OF THE APPEAL DTD. 5/08/06 FILED BY THE 5TH RESPONDENT TO THE D.E.O. EXT.R6(2): COPY OF THE ORDER DTD. 21/08/08 ISSUED BY THE AEO, AREACODE. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.14425/2008 ----------------------------------------------------------- Dated this the 7th day of November, 2008 JUDGMENT Petitioners are the children of late K.V. Moosa, who was an Arabic teacher in the school, of which the 5th respondent is the Manager. Sri. Moosa expired on 18.5.1996. In June, 1996, the first petitioner, one of the daughters of Late Moosa, was appointed as Arabic Teacher in the school. That appointment was approved. 2. Long thereafter, in February, 2006, another vacancy arose in the school. It is stated that the second petitioner, an youngest son of late Moosa moved an application before the 4th respondent, who in turn issued Ext.P2 directing the Manager to appoint the 2nd petitioner extending the benefit of Rule 51-B Chapter XIV-A KER. In the meanwhile, the 6th respondent was appointed in the vacancy that arose in June, Wp(c).No.14425/08 2 2006 and the approval of appointment sought for was declined by the AEO as per Ext.P3. The Manager pursued the matter in appeal before the DEO who by Ext.P4 confirmed Exts.P2 and P3.The DPI also confirmed the orders passed by the Subordinate Officers as per Ext.P5. 3. The Manager thereupon filed a revision before the Government and that resulted in Ext.P6. By Ext.P6, the Government allowed the revision and took the view that the first petitioner was appointed extending the benefit of rule 51-B Chapter XIV-A KER and that with that appointment, the Manager discharged his obligation under the Rule and therefore there was no substance in the claim raised by the 2nd petitioner for appointment under Rule 51-B Chapter XIV-A KER. It was directed that the 6th respondent's appointment made as early as in 2006 shall be approved. Contending that Ext.P6 order was passed without notice to the first petitioner, she filed Ext.P7 review before the Government and thereafter filed this writ petition praying to Wp(c).No.14425/08 3 quash Ext.P6 and directing the 5th respondent to grant appointment to the 2nd petitioner under Rule 51-B, Chapter XIV-A KER. 4. Learned counsel for the writ petitioners may contended that the Government itself had stayed the operation of Rule 51-B chapter XIV-A KER and that this continued until the said order of stay was lifted with effect from 16.1.1997. Therefore the claim of the Manager that in June 1996, the the first petitioner was appointed under rule 51-B is unsustainable. It is also their case that the procedures laid down for appointment under rule 51-B Chapter XIV-A KER have not been complied with. It is therefore stated that the claim that the appointment was made under rule 51-B is devoid of merit. It is also his case that the first petitioner had ceased to be the dependent of the deceased by virtue of her marriage in 1990 and therefore the appointment was not under Rule 51-B but was a regular appointment. It is stated that this could not Wp(c).No.14425/08 4 deprive the second petitioner, of his entitlement for the benefit of Rule 51-B. Counsel also placed reliance on the Division Bench judgment in S.N.G.S High School V. Raj Sagar(2008(1)KLT 1026) and contended that as an when a vacancy arose it was the obligation of the Manager to offer appointment to the rightful claimant under Rule 51B Chapter XIV-A KER and that this obligation is not diluted even if an application is not made by the claimant. 5. Respondents 5 and 6, the Manager and the Teacher contested the claim of the petitioner. According to the 5th respondent Manager, Rule 51-B Chapter XIV-A KER created a statutory liability on the manager to provide employment assistance to a dependent of the deceased teacher. It is stated that the Rule was in the statute book as early as from March, 1990 and the executive order issued by the Government could not have affected its efficacy. It is stated that the first petitioner was appointed on 3.6.1996 extending the benefit of compassionate appointment and Wp(c).No.14425/08 5 that this appointment was approved and the fact that the appointment was under the compassionate category is mentioned in the service book. It was stated that during the hearing of the revision, this fact was disclosed to the Government and the service book and a certificate to that effect was also produced. Yet another contention raised by the Manager is that the first petitioner is not aggrieved by Ext.P6 and that irrespective of Ext.P6 her service in the school continues undisturbed and therefore she has no locus standi to challenge Ext.P6. Yet another plea that is raised is that the second petitioner has not so far made any application for appointment and that even according to him the claim raised was before the AEO. 6. I have considered the submissions made by both sides. The only question that arises for consideration is whether the appointment of the first petitioner can be said to be one under Rule 51-B Chapter XIV-A KER. Admittedly the Rule inserted in the statute book with effect from 3rd Wp(c).No.14425/08 6 March, 1990. Irrespective of the effect of the executive order suspending the rule, the fact remains that soon after the death occurred on 18.5.1996, the first petitioner was appointed in the School with effect from 3.6.1996. This appointment was also approved. It is also to be noticed that no other dependent of the deceased teacher has raised any claim in this behalf so far. It is stated in Ext.P6 that, it is noted in the service book of the first petitioner that the appointment is a compassionate appointment and that she is the only qualified member in the family. The fact that appointment was under compassionate ground is also certified by the AEO. Therefore, the fact remains that irrespective of the efficacy or otherwise of Rule 51-B Chapter XIV-A KER, the first petitioner was appointed extending the benefit of compassionate employment scheme. If that be so, having regard to the fact that the employment assistance was once extended to the family at the time when it was in distress and enjoyed by the first Wp(c).No.14425/08 7 petitioner, in my view, it is not open to the first petitioner to contend that at the time when she was appointed, she had ceased to be a dependent of the deceased, and therefore the employment should not be counted as one under the compassionate employment category. Therefore, I find no illegality in the order impugned. Writ Petition fails and is dismissed. Now that, by Ext.P6 the appointment of the 6th respondent is ordered to be approved, needless to say that he will be entitled to all consequential benefits. ANTONY DOMINIC JUDGE vi. Wp(c).No.14425/08 8