IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 RP.No. 701 of 2009(N) ------------------------------- (THE JUDGEMENT IN W.P.(C).NO.20296/2008 DATED 01/04/2009) .................... PETITIONER/RESPONDENT NO.4 IN THE W.P: ------------------------------------------------------------------ THE MANAGER, M.G.M.N.S.S.HIGHER SECONDARY SCHOOL, LAKKATTOOR, KOTTAYAM. BY SRI.K.R.B.KAIMAL, SENIOR ADVOCATE, ADV.SRI.B.UNNIKRISHNA KAIMAL. RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 IN THE W.P: ------------------------------------------------------------------------------------------------ 1. V.S.SREEKUMARI, SIVAKRIPA HOUSE, PERUNNA EAST, CHANGANASSERY, 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 4. THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM. R2 TO R4 BY GOVT. PLEADER SRI. P.M. MANOJ. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 31/05/2010, ALONG WITH R.P NOS.1051 OF 2009 & 333 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.N.RAVINDRAN, J. --------------------------------------- R.P.Nos.701, 1051 of 2009 and 333 of 2010 ---------------------------------------- Dated 31st May, 2010 ORDER These review petitions arise from the judgment delivered on 1.4.2009 in W.P.(C)No.20296 of 2008. They were therefore heard together and are being disposed of by this common order. 2. The petitioner in R.P.No.701 of 2009 is the fourth respondent in the writ petition. The petitioner in R.P.No.1051 of 2009 is a third party who has filed the review petition with the leave of this Court contending that the directions issued by this Court in the writ petition adversely affect him. The petitioner in R.P.No.333 of 2010 is the writ petitioner. 3. The petitioner in the writ petition is the daughter of late Sivasankaran Nair who was a Physical Education Teacher in the school managed by the petitioner in R.P.No.701 of 2009. He died while in service on 29.3.1989. Rule 51B of Chapter XIV- A of the Kerala Education Rules was introduced with effect from 30.3.1990 to provide employment assistance to the dependents of teachers of aided schools, who die in harness. After the said rule was introduced, the writ petitioner moved the Manager of R.P.Nos.701, 1051/2009 & 333/2010 2 the school, the Educational Officers and ultimately the Government by filing a representation dated 28.4.1993. The Government forwarded the said representation to the Deputy Director of Education, Kottayam along with letter dated 11.6.1993. By then, the operation of Rule 51B was kept in abeyance by the Government and therefore no action was taken thereon. The Government vacated the order staying the operation of Rule 51B by order passed on 16.1.1997. Thereupon, the Director of Public Instruction issued Ext.P1 letter dated 25.1.1999 directing the Manager of the school to appoint the petitioner against any one of the existing/arising vacancies. The Manager in turn sent a letter dated 28.7.1999 to the District Educational Officer, Kottayam informing him that no vacancy is available in the post of L.D.Clerk and that the post of L.D.Clerk was filled up by promoting a rule 43 claimant. He also informed the District Educational Officer that if the writ petitioner is willing to be appointed as Full Time Menial/Peon she may be informed accordingly. On receipt of the said letter, the District Educational Officer sent Ext.P2 letter dated 16.8.1999 to the writ petitioner informing her that there is no vacancy of L.D.Clerk available in the school and that if she is willing to be appointed as Full Time Menial/Peon, she may bring it to the notice of the Manager and the Department. R.P.Nos.701, 1051/2009 & 333/2010 3 4. The petitioner thereupon sent Ext.P3 letter dated 30.8.1999 to the District Educational Officer, Kottayam with copies to the Manager and others expressing her willingness to be appointed as Full Time Menial/Peon. She also submitted a fresh application. The Manager did not however appoint the petitioner as Full Time Menial/Peon when vacancies arose. It is common ground that two retirement vacancies of Peon arose on 31.5.2008. One of the said vacancies was filled up by promoting Sri.V.N.Rajan (wrongly referred to as Sri.P.N.Raman in the judgment), Full Time Menial, as Peon with effect from 2.6.2008. The resultant vacancy of Full Time Menial was filled up by appointing Sri.Manukumar from the open market. The second vacancy of Peon was filled up by appointing Sri.C.N.Sunil Kumar with effect from 2.6.2008 from the open market. The Manager forwarded their appointments for approval. The writ petition was filed immediately after the aforesaid appointments were made. The Manager entered appearance in the writ petition and filed a counter affidavit. The writ petition was heard and disposed of by judgment delivered on 1.4.2009 with a direction to appoint the petitioner as Full Time Menial in the vacancy that arose on the promotion of Sri.V.N.Rajan as Peon (wrongly referred to as Sri.P.N.Raman in the judgment). This Court also directed the Manager to issue the formal R.P.Nos.701, 1051/2009 & 333/2010 4 appointment order within one month from the date of receipt of a copy of the judgment. The official respondents were directed not to approve the appointment of any person other than the petitioner as Full Time Menial in the vacancy of Sri.V.N.Rajan. The Manager and Sri.C.N.Sunil Kumar have filed R.P.Nos.701 of 2009 and 1051 of 2009 respectively seeking a review of the judgment. As noticed earlier, Sri.Manukumar was appointed as Full Time Menial in the vacancy that arose on the promotion of Sri.V.N.Rajan, Full Time Menial as Peon. His appointment has not been approved in view of the directions issued by this Court. The writ petitioner has filed R.P.No.333 of 2001 seeking appointment as Peon in the vacancy in which Sri.C.N.Sunilkumar has been appointed. 5. I heard the learned counsel on both sides in the review petitions. I have also gone through the pleadings and the materials on record. Going by the directions issued by this Court in the writ petition, the petitioner in R.P.No.701 of 2009 who is the Manager of the school and the petitioner in R.P.No.1051 of 2009 who is a third party to the writ petition appointed as Peon in the vacancy that arose on 31.5.2008 can have no legitimate grievance regarding the directions issued by this Court. The directions issued by this Court in the writ petition do not affect the petitioner in R.P.Nos.701, 1051/2009 & 333/2010 5 R.P.No.1051 of 2009. The direction was to appoint the petitioner under rule 51B of Chapter XIV A of the Kerala Education Rules as Full Time Menial in the vacancy that arose on the promotion of Sri.V.N.Rajan (wrongly described as P.N.Raman in the judgment) and not as Peon. Therefore, Sri.C.N.Sunilkumar who was appointed as Peon with effect from 2.6.2008 from the open market cannot be said to be aggrieved by the directions issued by this Court. I therefore find no grounds to allow R.P.No.1051 of 2009. Though the departmental officers have declined to approve his appointment based on the directions in the judgment, in view of the clarification issued herein, he can move the appropriate appellate authority or the revisional authority. 6. As regards the review petition filed by the Manager, the Manager was bound by the undertaking given by him to the departmental officers and also the directions issued by them to appoint the petitioner as Full Time Menial in the school. The petitioner had also expressed her willingness to be appointed as Full Time Menial by Ext.P3 letter dated 30.8.1999. As held by a Division Bench of this Court in S.N.G.S.High School v. Reji Sagar (2008 (1) KLT 1026), when the vacancy of Peon arose on 31.5.2008 or at least when the vacancy of Full Time Menial arose when Sri.V.N.Rajan, Full Time Menial was promoted as Peon, the R.P.Nos.701, 1051/2009 & 333/2010 6 Manager had a duty to inform the petitioner of the occurrence of vacancies. He could have filled up the vacancy of Full Time Menial/Peon only if the petitioner had declined to accept appointment. A Division Bench of this Court has in S.N.G.S.High School v. Reji Sagar (supra), after an analysis of rule 51B of Chapter XIV A of the Kerala Education Rules and the various decisions of this Court on the point held as follows: “7. The relevant Rule governing the right of the dependent of a non teaching staff who died in harness, to get appointment, is Rule 9A of Chapter XXIV A, K.E.R. The said Rule reads as follows: “9A. The manager shall give employment to a dependent of the non-teaching staff of an aided school dying in harness. Government orders relating to employment assistance to the dependents of Government servants dying in harness shall, mutatis mutandis, apply in the matter of such appointment.” (Emphasis supplied) The words of Rule 9A are identical to Rule 51B of Chapter XIV A, K.E.R. The said Rule reads as follows: “51B. The Manager shall give employment to a dependent of an aided school teacher dying in harness. Government orders relating to employment assistance to the dependents of WA NOS.98,138 & 149/2008 7 Government servants dying in harness shall mutatis mutandis, apply in the matter of such appointments.” (Emphasis supplied) R.P.Nos.701, 1051/2009 & 333/2010 7 We notice that the right of the dependent of a teaching staff or a non-teaching staff, who died in harness, is 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. A vacant post in the Government will have to be filled up by inviting applications and giving every one a chance to apply, in accordance with the Rules governing appointment to such posts. The mandate of Articles 14 and 16 of the Constitution of India compels to follow the above course. The appointment of the dependent of an employee, who died in harness is an exception to the above rule and is a concession granted by the Government. The said right should be exercised, subject to the mandate of Articles 14 and 16 of the Constitution of India. But, if a vacancy arises in an aided school, no advertisement is made and no selection is made from among the best candidates, who apply pursuant to the advertisement. The Manager appoints a person of his choice. So, the principles laid down by the courts relating to appointment under the dying-in- harness scheme in public services cannot be mechanically imported or applied to the appointments under Rule 51B or Rule 9A in an aided school. One of us had occasion to consider a similar case in Baiju Kumar v. D.E.O., Trivandrum [2003(3) KLT 240]. In the said decision it was held as follows: R.P.Nos.701, 1051/2009 & 333/2010 8 “6. ................ The opening sentence in R.51B is couched in mandatory words. S.7(2) of the Kerala Education Act says that 'the Manager shall be responsible for the conduct of the school in accordance with the provisions of the Act and Rules made thereunder.' R.9 of Chap.III also states that 'the Manager shall be responsible for the conduct of the school strictly in accordance with the provisions of the Kerala Education Act and Rules thereunder.' So, in the light of the provisions contained in S.7 of the Act and R.9 of Chap.III of the Rules, the Manager is bound to run the school in accordance with the provisions of the Act and Rules. He has to respect and obey the mandate of R.51B also. The said Rule creates a corresponding right in the dependent of a deceased employee. R.51B does not say that the dependent of a teacher cannot be appointed as a non-teaching staff. If the vacancy of Peon/Attender had to be filled up by a R.43 claimant and only the vacancy of Full Time Menial was available, the Manager should have informed the petitioner regarding the availability of that vacancy and offered him appointment as Full Time Menial. 7. 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 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. R.P.Nos.701, 1051/2009 & 333/2010 9 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. xxxx xxxxx xxxxx xxxxx 11. The decisions of the Apex Court in State of Haryana v. Umeshkumar Nagpal (JT 1994(3) SC 525) and other cases were concerning appointment to public services under the dying in harness scheme. So, if a candidate is not appointed on compassionate ground, the said vacancy will go to a meritorious candidate. So, any appointment to an ineligible candidate to public service otherwise than in accordance with the Rules will result in denial of opportunity to a meritorious candidate. The observations of the Apex Court has to be understood in the light of this crucial aspect. The appointment under the dying in harness scheme is a concession granted by the Government. Normally, in the light of Arts.14 and 16 of the Constitution of India, every vacancy should be filled up after giving a fair opportunity to all eligible candidates and the most meritorious among them should be appointed. An exception to that Rule is made when an appointment is made on compassionate ground. R.P.Nos.701, 1051/2009 & 333/2010 10 Therefore, the executive orders granting this concession should always be subject to the mandate contained in Arts.14 and 16 of the Constitution of India. This is the principle underlying the decisions of the Apex Court. But those decisions cannot be mechanically imported while considering an appointment on compassionate ground in an aided school. The Manager of an aided school can appoint any person having the prescribed qualification. Merit is never a criterion for many educational agencies. In most of the schools, appointments are made on other considerations. Only a very few managements are concerned with the merit of the candidates. So the provisions of Arts. 14 and 16 are not applicable while making appointment to the vacancies in aided schools. Therefore, the observations made by the Apex Court are not applicable to the appointments on compassionate ground in aided schools with its full vigour. Apart from that, the right to get appointment in an aided school on compassionate ground is not a concession granted by any executive order. It is a statutory right. The executive orders governing appointment on compassionate ground in public services is incorporated in the Rule by adoption. It is legislation by reference (See the decision in Mahindra and Mahindra Ltd. v. Union of India (1979(2) SCC 529). Unless R.51B and the relevant orders which form part of that Rule are challenged, the Manager cannot rely on the general observations of the Apex Court to reject the claim of an applicant under R.51B.” A Division Bench of this Court has referred to the above decision with approval while dealing with the claim of a dependent for appointment under Rule 51B in W.A.No.1164/2005. Kurian Joseph, J., speaking for the Bench, held as follows: R.P.Nos.701, 1051/2009 & 333/2010 11 “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 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 used in Rule 51B of Chapter XIV- A, 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 R.P.Nos.701, 1051/2009 & 333/2010 12 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.” The Special Leave Petition attempted against the above judgment of the Division Bench was dismissed by the Hon'ble Supreme Court on 24.11.2006. We are in respectful agreement with the above statement of the Division Bench regarding the duties of the Manager, emanating from Rule 51B. So, when the post of a Clerk arose in the school, the Manager was bound to appoint the writ petitioner. He cannot take shelter behind the plea that the petitioner did not submit any application. Further, the petitioner admittedly applied for appointment to the post of Lower Grade Sanskrit Teacher by submitting Ext.P7 application on 7.2.2005. If there was any defect in that application, it was for the Manager to get it cured. In Ext.P8 communication of the Manager issued on receipt of Ext.P7 application, he has no case that the said application is defective. The Manager pointed out the alleged defect in the application for the first time only by Ext.R3(c) dated 12.8.2006. The same was done only after appointing the respondent as Lower Grade Sanskrit teacher on 1.8.2006. Soon thereafter the petitioner has cured the defect pointed out by him. The defect in the application is a poor defence for delaying the appointment of the petitioner and appointing a fresh hand, the 4th respondent herein, in the vacancy claimed by the writ petitioner. The writ R.P.Nos.701, 1051/2009 & 333/2010 13 petitioner has accepted the appointment to the post of Peon without prejudice to his contentions, as evident from Ext.R3(a) interim order. The said order reads as follows: “It is submitted by learned counsel for the petitioner that Manager has offered the post of Peon in the school to the petitioner though he had staked a claim for the post of Junior Sanskrit Teacher. Learned counsel submits that petitioner is prepared to accept the offer and join as Peon in the school without prejudice to his right to claim the above post and also to challenge the appointment of respondent No.4 as Junior Sanskrit Teacher and also the contentions raised by him in Ext.P10 appeal preferred by him before the District Educational Officer. The above submission is recorded. It will be open to the petitioner to join duty as Peon in the above terms, if so advised.” So, the acceptance of the post of Peon pursuant to the above quoted order will not preclude the writ petitioner from claiming the post of Lower Grade Sanskrit Teacher. It is not a case of accepting one post unconditionally and thereafter seeking a better post. Having regard to the facts of the case, the decisions of the Apex Court cited by the learned counsel for the appellant have no application. The decision in LIC v. Asha Ramachhandra Ambekar [(1994)2 SCC 718] only lays down the principle that the claim of the applicant for appointment under the dying-in-harness scheme has to be considered in accordance with the regulations framed by the L.I.C. It was held that no benevolence can be shown de hors the provisions of law. The principles laid down in that case have no application to the facts of this case. The decision in Umesh Kumar Nagpal v. State of Haryana [(1994) 4 SCC 138], for the reasons explained above, will not apply to appointments in aided schools under the R.P.Nos.701, 1051/2009 & 333/2010 14 dying-in-harness scheme. The said decision deals with appointment to public services. The Government order governing appointment under the dying-in-harness scheme is incorporated in Rule 9A of Chapter XXIV-A and in Rule 51B of Chapter XIV-A of the K.E.R.The said G.O provides for considering the claim for appointment of a minor when he becomes major. Further, vacancies in aided schools arise only occasionally. Therefore, the principles laid down by the Apex Court concerning appointment to public services under the dying-in- harness scheme, like grant of appointment, immediately after the death of the breadwinner to bring immediate succour to the family etc., are not applicable and unworkable, as far as aided schools are concerned. Further, the writ petitioner was appointed to the post of Peon, to which the 5th respondent has staked his claim. Therefore, the appointment of the petitioner to the post of Peon is not approved also. Having regard to the facts of the case, we have no doubt in our mind that the writ petitioner was the rightful claimant for appointment to the post of Lower Grade Sanskrit Teacher. The appointment of a candidate from the open market in the vacancy of a Lower Grade Sanskrit Teacher long after the receipt of application from the petitioner for the same, is plainly untenable. The Manager can make appointment from the open market, if only there is no claimant under Rule 43 or Rule 51A or Rule 51B of Chapter XIV A or Rule 9A of Chapter XXIV A, K.E.R. The learned single Judge has, therefore,