IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 W.P.(C).No. 16815 of 2008(B) ----------------------------------- PETITIONER: -------------- DEEPA.M., DEEPA PRAJA, MUTHIYANGA P.O., KANNUR DISTRICT. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): ------------------- 1. THE MANAGER, EAST VALLIYAI UP SCHOOL, MUTHIYANGA P.O., KANNUR DISTRICT. 2. THE ASSISTANT EDUCATIONAL OFFICER, PANOOR, KANNUR DISTRICT. 3. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY, DEPARTMENT OF EDUCATION, TRIVANDRUM. 4. SAJITH K.V., PEON, EAST VALLIAYI UP SCHOOL, MUTHIYANGA PO, KANNUR DISTRICT. Addl. R5. THE DISTRICT EDUCATIONAL OFFICER, THALASSERY. ADDITIONAL 5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 22.7.08 IN I.A. NO.9307/08. ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM FOR R1 & 4 GOVT. PLEADER, SRI. T.T. MOHAMMED THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. =============== W.P.(C) NO. 16815 OF 2008 (B) ==================== Dated this the 20th day of October, 2008 J U D G M E N T The challenge in this writ petition is against Exts.P3 and P4. 2. The facts of the case are that the petitioner's father was the Headmaster of East Valliyayi UP School. He expired on 27/4/1995. In this writ petition, petitioner is claiming appointment as Peon under Rule 51(B) of Chapter XIV A KER. It is stated that the petitioner's date of birth is 8/5/1977 and she attained majority on 8.5.1995. According to the petitioner, a retirement vacancy was to arise on 30/6/2008 and as the concerned peon was to go on leave preceding his retirement, an application was made on 10/9/2007. In the meanwhile, according to her, ignoring her rightful claim, the 4th respondent was appointed in the leave vacancy on 28/7/2007. 3. After making the application on 10/9/07, petitioner represented to the AEO seeking his intervention in the matter. As there was no response to her representation, she approached this court and filed WP(C) No.7086/2008. That writ petition was disposed of by Ext.P1 judgment directing the AEO to pass orders on the representation made by the petitioner. Accordingly, the AEO passed Ext.P2 order requiring the WPC 16815/08 :2 : Manager to consider the case of the petitioner for appointment. The Manager thereupon considered the claim and rejected the request by Ext.P3, mainly relying on Ext.R1 Government order dated 24/5/99, which inter-alia provided that time limit for preferring application under the appointment on compassionate scheme will be two years from the date of death of the Government servant and that in the case of minor, the period will be three years after attaining majority. As already stated, following the appointment of the 4th respondent w.e.f. 28/7/07, approval was sought and by Ext.P4 order, the DEO directed that approval be granted. It is therefore that in addition to Ext.P3, petitioner is seeking to quash Ext.P4 as well. 4. As already noticed, the ground on which the claim of the petitioner has been turned down by the Manager by Ext.P3 is relying on Ext.R1(a) Government order dated 24/5/1999, which requires that application should be made within two years from the date of death and in the case of minor, within 3 years after attaining majority. While the counsel for respondents 1 and 4 relied on the judgments of this court in Corporate Manager Diocese of Thrissur v. Jayanarayanan (2003(1) KLT S.N Case No.45 Page 33), Sukumaran Nair v. State of Kerala (2005(1) KLT 430) and Deepak v. Secretary,General Education WPC 16815/08 :3 : Department (2002(3) KLT 288), learned counsel for the petitioner relied on the judgment of the Division Bench in S.N.G.S.High School v. Reji Sagar (2008(1) KLT 1026) and Fr.Antony Kavalakatt v. District Educational Officer (1999(1) KLT 615) and Sajeesh Babu v. State (1996(2) KLT 542). 5. From the submissions that are made before me the issue that arises for consideration is whether it was mandatory on the apart of the petitioner to have made application within the time specified in the Government order dated 24/5/1999 and whether in the absence of such an application, a claimant under Rule 51(B) is deprived of the benefit under the Rule. 6. In Corporate Manager, Diocese of Thrissur v. Jayanarayanan (2003(1) KLT Case No.45 S.N Page 33), a Division Bench of this Court negatived the claim the appointment on the ground that in terms of the Government order referred to above, application made was belated. However, the judgment does not indicate the date of death of the employee concerned. Since from the circular dated 4/5/2002, it would appear that the operation of the Government order referred to above is only prospective in the absence of date of death, it is not possible to assess the impact of the said judgment in so far as this case is concerned. WPC 16815/08 :4 : 7. In so far as the judgment in Sukumaran Nair v. State of Kerala (2005(1) KLT 430) relied on by the learned counsel for the respondents is concerned, it is seen that referring to the Government order dated 10/4/92 prescribing the time limit for making application for the benefit of Rule 51(B) and holding that the application made by the claimant in that case was belated, the Division Bench negatived the claim. Similarly in the judgment in Deepak v. Secretary, General Education Department (2002(3) KLT 288) relied on by the learned counsel for the respondents, the Division Bench has held that there should be proximity between the date of death and the date of appointment. 8. However, it is seen from the Division Bench judgment in S.N.G.S.High School v. Reji Sagar (2008(1) KLT 1026) that different view has been taken by the said Division Bench. In that Division Bench, it has followed an earlier judgment of this court in Baiju Kumar v. DEO, Trivandrum (2003(3) KLT 240), where it has been held as follows: “A number of cases are coming up before this Court under R.51B of Chap.XIVA of the K.E.R. The Managers in most of the cases contend that the application was not submitted in time, it was not in the prescribed format etc. All these contentions illcome from the mouth of the manager in the light of the mandatory provision in R.51B which says that the Manager 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 WPC 16815/08 :5 : 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 area is a breeding ground for so many disputes and litigations. I think the Government should bestow its attention to this aspect. 9. The judgment in Baiju Kumar's case was followed by a Division Bench of this Court in WA No.1164/05. The judgment of the Division Bench in W.A.No. 1164/05 was confirmed by the Apex Court , which dismissed the Special leave petition by order dated 24/11/2006. Following Baiju Kumar's judgment and the Division Bench in WA 1164/05, it was yet another Division Bench which rendered the judgment in S.N.G.S.High School v. Reji Sagar (2008(1) KLT 1026). 10. From this judgment it would appear that the Manager cannot justify his failure to offer employment on the plea that the dependant who is entitled to the benefit of Rule 51(B) Chapter XIVA did not apply in time WPC 16815/08 :6 : etc. Therefore, even if there is delay on the part of the dependant in making an application as provided in the Government order dated 24/5/1999, that is no justification for the Manager to deny appointment under Rule 51B. The reasoning of the Division Bench is that under Rule 51B, it is the obligation of the Manager to provide employment to the claimant and that it is not possible for the claimant to keep track of the availability of the vacancy etc and I would respectfully follow the judgment in case of S.N.G.S. High School v. Regi Sagar (2008 (1) KLT 1026). Even otherwise, I cannot understand the Government Order dated 24.5.1999 as having the effect of depriving the statutory benefit under Rule 51B. In this case petitioner attained majority on 7.5.1995. The Government Order issued on 24.5.1999 provided that application should be made within 2 years of death or within 3 years of attaining majority. Both these dates have expired by the time government order was issued. An executive order cannot amend a statutory rule and therefore, I cannot take Ext.R1 as one depriving the petitioner's statutory right under Rule 51B, Chapter XIV A, KER. 11. In view of the judgment of the Division Bench in S.N.G.S. High School v. Reji Sagar (2008(1) KLT 1026), I am of the view that the view taken by the Manager in Ext.P3 cannot be sustained. Therefore, WPC 16815/08 :7 : Ext.P3 has to be set aside and I do so. Now that I have accepted the claim of the petitioner against the vacancy to which the 4th respondent was appointed, the appointment has to be held as invalid and Ext.P4 order passed by the DEO directing approval of his appointment also has to be set aside and I do so. 12. The 1st respondent is directed to appoint the petitioner to the vacancy of peon, which arose on 30/6/2008. This shall be done, as expeditiously as possible and at any rate within 4 weeks of production of a copy of this judgment. Writ petition is allowed as above. ANTONY DOMINIC, JUDGE Rp