IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 WP(C).No. 8645 of 2008(D) ------------------------------------- PETITIONER: ------------------- PRADEEP K.V., PALLICKAL VEEDU, PAZHANGALAM, NALLILA P.O., KOLLAM- 691 515. BY ADV. SRI.V.JAYAPRADEEP. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DEPARTMENT OF EDUCATION, DIRECTORATE OF EDUCATION, THIRUVANANTHAPURAM. 3. THE ASST. EDUCATION OFFICER, KUNDARA, KOLLAM DISTRICT. 4. THE MANAGER, U.P.G.S.PUNUKKANOOR, ALUMMOODU P.O., KUNDARA, KOLLAM DISTRICT. *ADDL.R5 IMPLEADED: 5. VISHNU M.G, S/O. MURALEEDHARAN PILLAI.B., `DEEPAM', PUNUKKONNOOR, ALUMMOODU.P.O., KOLLAM DISTRICT. *ADDL.R5 IS IMPLEADED AS PER ORDER IN I.A. 11730/08 DTD. 05/01/09. R1 TO R3 BY GOVT. PLEADER SMT. SMITHA SUKUMAR, R4 BY ADVS. SRI.O.D.SIVADAS, SRI.S.SHAJI. ADDL.R5 BY ADV.SRI. C.M.MOHAMMED IQUABAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/04/2010,ALONG WITH W.P.(C). NO. 22522 OF 2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.8645/2008-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPLICATION DTD. 24/09/98 OF THE PETITIONER. EXT.P.2: COPY OF THE REPRESENTATION DTD. 08/10/1998 KERALA STATE EDUCATION MINISTER. EXT.P.3 SERIES: COPIES OF THE ACKNOWLEDGEMENT CARDS SIGNED BY VARIOUS AUTHORITIES. EXT.P.4: COPY OF THE ORDER OF THE DPI DTD. 10/05/99. EXT.P.5: COPY OF THE REPRESENTATION DTD. 23/07/07 TO THE EDUCATION MINISTER. EXT.P.6: COPY OF THE LETTER DTD. 05/10/07 OF THE DPI. EXT.P.7: COPY OF THE REPRESENTATION DTD. 10/08/07 TO R4. EXT.P.8: COPY OF THE LETTER DTD. 18/08/07 OF THE R.4. EXT.P.9: COPY OF THE REPLY LETTER DTD. 01/09/07 TO R4. EXT.P.10: COPY OF THE LETTER DTD. 03/10/07 ISSUED BY THE A.E.O. EXT.P.11: COPY OF THE LETTER DTD. 10/10/2007 ISSUED TO AEO. EXT.P.12: COPY OF THE RECTIFIED APPLICATION FORM DTD. 25/02/2008. EXT.P.13: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A. 149/2008 DTD.07/02/2008. EXT.P.14: COPY OF THE LEGAL HEIRSHIP CERTIFICATE OF TAHASILDAR, KOLLAM DTD. 22/01/08. EXT.P.15: COPY OF THE LETTER DTD. 06/05/2008 FROM THE INFORMATION OFFICER, SUB DISTRICT EDUCATIONAL OFFICE, KUNDARA. EXT.P.16: COPY OF THE LIST OF TEACHING STAFF APPOINTED AFTER THE DEMISE OF THE FATHER OF THE PETITIONER. EXT.P.17: ORIGINAL LIST OF TEACHING STAFF APPOINTED AFTER THE DEMISE OF THE FATHER OF THE PETITIONER ISSUED BY THE O/O. AEO. RESPONDENTS' EXHIBITS: EXT.R4.A: COPY OF THE COMPLAINT FILED BY MEMBERS OF THE STAFF COUNCIL. EXT.R4.B: COPY OF THE RELEVANT PORTION OF THE G.O.(P).NO.12/99/P&ARD DTD. 24/05/1999. W.P.(C). NO.8645/2008-D: EXT.R4.C: COPY OF THE DECISION REPORTED IN I.L.R. 2007(3) KERALA 361. EXT.R5.A: COPY OF THE APPOINTMENT ORDER DTD. 01/02/2008. //TRUE COPY// P.S. TO JUDGE. Prv. THOTTATHIL B.RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).Nos.8645/2008-D & 22522/2009-I = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9th day of April, 2010. Judgment 1.While working as a UPSA in U.P.G.School, P.Viswanatha Pillai died on 12.1.1984. Pradeep K.V., one among the legal representatives of the said person, being his son, applied for compassionate appointment. That application was made on 24.9.1998. He was then 21 years' old. His plea was that he is entitled to be considered as against the vacancy that occurred on 1.6.2007. The Manager of the School took the stand that Pradeep had not obtained the consent of the other heirs of late Viswanatha Pillai whose wife and children do not need the assistance of appointment under the dying in harness scheme. The Manager took the further stand that the children of Viswanatha Pillai and Soudamini Amma, including Pradeep, were all married and reside separately. Pradeep carried that matter to the WPC8645/08 & 22522/09 -: 2 :- AEO who, in turn, rejected Pradeep's claim on the ground that he was over-aged as on the date of occurrence of the vacancy because by 1.6.2007, Pradeep had attained 36 years of age. It was also stated that the other dependents(heirs) of Viswanatha Pillai had not consented to the appointment of Pradeep. It was stated that the application was not in proper form. 2.While Pradeep filed W.P.(C).8645/2008 challenging the aforesaid decision of the AEO, M.G.Vishnu filed WP(C).22522/2009 and got himself impleaded at his instance in WP(C).8645/2008 stating that he was appointed on 1.2.2008 and his such appointment is eligible for being approved by the statutory authorities. It is stated that one Deepthi was appointed in the interregnum. I do not deem it necessary to consider her case for deciding the issue in hand. 3.The provisions of Section 51B of Chapter XIV became applicable to the upper primary schools in WPC8645/08 & 22522/09 -: 3 :- the aided sector only in 1997. Therefore, notwithstanding the fact that Viswanatha Pillai died way back on 12.1.1984, his son Pradeep cannot be criticized for having made the application only on 24.9.1998. This is because, Pradeep could not have made a request for such appointment at all, in the absence of provision for appointment under the dying in harness scheme. 4.In the Government Order and the relevant rules that governed the situation in 1997 and 1998, there was no prescribed form to make an application. Therefore, when Pradeep made the application on 24.9.1998 [Ext.P1 in WP(C). 8645/2008], he could not be expected to make the application in terms of a form prescribed in the Government Order issued later on 24.5.1999. Hence, the finding of the AEO that the application of Pradeep was not in the form prescribed also does not stand. WPC8645/08 & 22522/09 -: 4 :- 5.Adverting to the stand that Pradeep had become over-aged as on the date of occurrence of vacancy, namely, 1.6.2007, the law laid in this regard is the decision of the Division Bench of this Court in Snineesh v. State of Kerala, 2009 (4) KLT 719 in which it has been categorically laid down that it is the year of submission of the application that is relevant and not the year of appointment, to decide whether an applicant is over-aged. Hence, that ground of rejection of the AEO also goes. 6.This leaves two questions which are firstly, whether the other dependents (heirs) of Viswanatha Pillai had conceded to the appointment of Pradeep. For this, Pradeep relies on Ext.P14 in WP(C).8645/2008. He also states that in answer to the communication of the AEO which is Ext.P10 in WP(C)8645/2008, he had made a clarificatory statement and that the same is pending before the AEO. The second issue that may be relevant is as to whether the fairly long time lag between WPC8645/08 & 22522/09 -: 5 :- 12.1.1984, the date of death of Viswanatha Pillai and the date of application 24.9.1998 is relevant, notwithstanding whatever stated above, having regard to the fact that in terms of the law laid by the Apex Court, the appointments under the dying in harness scheme, including under Rule 51B of Chapter XIV-A KER, are to be made on the basis of the prime principle that such appointments are required to provide succor in cases of need. This is an issue on which the Manager has stated in his decision that the benefit has to be given when the sole person on whom the family depends for livelihood dies in harness and that Pradeep and the other heirs of Viswanatha Pillai are all married and reside separately in separate residences and still further, that none of the heirs of Viswanatha Pillai is entitled to appointment on compassionate grounds under the existing law. This crucial aspect can be noticed with immediate reference to the different precedents of the Apex Court and of this Court as are referred to in the WPC8645/08 & 22522/09 -: 6 :- judgment dated 7.1.2005 in WP(C).No.14092/2004 reported as Case No.131 at Short Notes page 104 of 2005 (1) KLT. 7.In the light of what is aforesaid, the question of approving the appointment of Vishnu would depend upon the final decision to be rendered on the claim of Pradeep for appointment under Rule 51B Chapter XIV-A. Having found against the views of the AEO reflected in Ext.P10 in WP(C). 8645/2008, the said decision is set aside and the AEO is directed to hear the parties de novo, including by taking into consideration Ext.P14 in WP(C).8645/2008 and the supplementary reply that Pradeep is stated to have filed before the AEO in answer to Ext.P10. If the AEO entertains any doubt regarding the credibility of the so-called stand by the other heirs of Viswanatha Pillai, it will be open to the AEO to summon them and record their statements. In taking a decision as aforesaid, the AEO will provide opportunity of hearing to Pradeep, Vishnu and the manager of the WPC8645/08 & 22522/09 -: 7 :- school. It is also necessary that the AEO gives reasons for decisions in an appropriate manner since the decision that the AEO takes would be appealable or revisionable before the statutory higher authorities in terms of the KER. Let the exercise be carried out by the AEO within an outer limit of three months from the date of receipt of a copy of this judgment. The parties are directed to appear before the AEO Kundara on 29th April, 2010 to enable the AEO to fix appropriate dates for hearing. The writ petitions are ordered accordingly. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/2004