IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 WA.No. 2186 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.7413/2007 Dated 25/09/2009 .................... APPELLANT(S): PETITIONER IN W.P.(C)7413/2007 -------------------------------------------- P.SNINEESH,HINDI TEACHER, MODAKKALLUR. A.U.P.SCHOOL,ATHOLI,KOZHIKODE DISTRICT. BY ADV.SRI.K.R.B.KAIMAL(SR) ADV. SRI.M.A.THOMAS KUTTY SMT.ASHA CHERIAN RESPONDENT(S): RESPONDENTS IN WPC --------------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, QUILANDY, KOZHIKODE DISTRICT. 3. THE MANAGER,KODAKKALLUR A.U.P.SCHOOL, ATHOLI.P.O,KOZHIKODE DISTRICT. 4. K.T.SASIDHARAN,LAKSHMI BHAVAN, MODAKKALLUR, ATHOLI,KOZHIKODE DISTRICT. GP SMT.R.BINDU, FOR R1 AND R2 SRI.ABRAHAM MATHEW VETTUR FOR R3 SRI.K.MOHANAKANNAN FOR R4 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ WA No.2186 OF 2009 ------------------------------------------------------------------ Dated 6th October 2009 Judgment Balakrishnan Nair, J. The writ petitioner is the appellant. The Writ Petition was filed by him, challenging Ext.P6 order of the Government and seeking consequential reliefs. The brief facts of the case are the following : 2. The 4th respondent's father was a Peon, working in the Modakkallur Aided UP School, managed by the third respondent. He died in harness on 09.09.1988. The Government introduced Rule 51B in Chapter XIVA and Rule 9A in Chapter XXIVA KER, providing for appointment on compassionate grounds, of the dependents of the teaching and non-teaching staff, who died in harness. In this case, Rule 9A of Chapter XXIVA is relevant. 3. Soon after the introduction of the above quoted rule, the 4th respondent moved the then Manager, seeking employment under the Dying-in-harness scheme, by submitting Ext.R4(a) representation dated 02.05.1990. In the said representation, he has stated as follows : WA 2186/09 2 “My father N.K.Appukkuttan Nair, who was working in your school from 1.7.1959 in the post of Peon, died on 09.09.1988. I have the educational qualifications of SSLC and Hindi Bhushan. I am eligible to get appointment as a dependent as per the aforementioned GO. Steps may be taken as per the said order to give me employment under the compassionate appointment scheme as the dependent of my father N.K.Appukkuttan Nair.” The order mentioned in the representation is GO(P)No.55/90/G.Edn. dated 30.03.1990, as per which the aforementioned rules were introduced in the KER. The then Manager, by Ext.R4(b) communication, replied to his representation thus : “Your representation dated 2nd May 1990 has been received. The post of Hindi Teacher, which is appropriate to your educational qualification, is at present, not available in the School. You will be considered for appointment, as and when a vacancy arises in the said post in future.” The 4th respondent, again submitted Ext.R4(c) representation dated 16.05.1997, praying that steps may be taken to appoint him in the vacancy of Full Time Junior Hindi Teacher, which may arise in 2002. Later, he submitted Ext.R4(d) application dated 25.5.2002 for appointment in the prescribed format. But, ignoring his claim, the appellant/writ petitioner was appointed in that vacancy. The 4th WA 2186/09 3 respondent raised the matter before the Assistant Educational Officer. The AEO upheld the claim of the 4th respondent. The Manager challenged that order before the Government in revision. The Government upheld the order of the AEO. Later, as per the direction of this Court, the Government reconsidered the matter and again, affirmed the claim of the 4th respondent for appointment and rejected the claim of the appellant for approval of his appointment, by Ext.P6 order. Hence the Writ Petition, challenging Ext.P6. 4. As per the Judgment under appeal, the learned Single Judge rejected the contention of the Manager and the appellant that the 4th respondent did not apply in time and therefore, he was ineligible for appointment. The contentions of the Manager that no such application as Ext.R4(a) was submitted by the 4th respondent and that the reply Ext.R4(b) was cooked up later, were also repelled. Feeling aggrieved by the judgment of the learned Single Judge, the Writ Appeal is filed. 5. We heard the learned Senior Counsel Shri.K.R.B.Kaimal, appearing for the appellant and also the learned counsel Sri.Mohana Kannan, appearing for the 4th respondent. The learned Senior Counsel submitted that Ext.R4(a) cannot be treated as a valid WA 2186/09 4 application and therefore, no application was submitted in time. Ext.R4(d) application in the prescribed format was submitted only in 2002, i.e., after the lapse of more than 13 years. Therefore, the Government should not have upheld the claim of the 4th respondent. The learned Senior Counsel further submitted that the scheme for appointment on compassionate grounds, is evolved to give immediate relief to the family of the deceased employee and it is not meant as a reservation of posts in favour of the dependents. It is also pointed out that even if the 4th respondent was a dependent at the time of death, it cannot be assumed that he is always a dependent. So, by producing valid income certificate, he has to establish the same. In this case, the income certificate given by him has been cancelled by the Village Officer himself. Thirdly, it is submitted that the 4th respondent was over-aged in 2002, when the vacancy arose. Unlike in Government service, where age is reckoned with reference to the date of submission of the application, for appointment of Teachers in Aided Schools, the age at the time of appointment alone is taken into account. This aspect is governed by Rule 1(2) of Chapter XIV A KER. The said rule would show that the age limit has to be reckoned with reference to the first day of January WA 2186/09 5 of the year, in which the appointment is made. In the case on hand, the appointment, being claimed in 2002, the 4th respondent should not have crossed the age limit of 38 as on 01.01.2000. But, in fact, he was aged 39, at the relevant time. In support of his submission, the learned Senior Counsel also relied on the Division Bench decision of this Court in Corporate Manager, Diocese of Thrissur v. Jayanarayanan (2000(3) KLT SN 33). He also submitted that the decision in SNGS High School v. Reji Sagar (2008(1) KLT 1026), relied on by the learned Single Judge does not lay down the correct legal position. The learned counsel for the 4th respondent, on the other hand, supported by the judgment of the learned Single Judge. 6. Regarding the non-submission of the application in time by the 4th respondent, the learned Single Judge found that Ext.R4(a) was submitted in time. The Manager did not return the application, directing him to file it in the proper format. The Manager also did not reject it, but in fact, undertook to consider his claim as and when a vacancy arises in the post of Hindi Teacher. So, the learned Single Judge declined to uphold the technical contention that the application was not filed in the prescribed format. We find no reason to take a different view on the said point. It ill-comes from the Manager to WA 2186/09 6 make such a contention, after having issued Ext.R4(b). If the application was defective, the 4th respondent should have been alerted and asked to submit a proper application in the prescribed format. We also agree with the view taken by the learned Single Judge that Ext.R4(a) is genuine and cannot be held to be a cooked up document. 7. The next contention raised is regarding the income of the 4th respondent, which should show that he is living in penury even now. Though the original income certificate submitted by the 4th respondent was cancelled by the Village Officer, he has later submitted a proper income certificate, which will show that his income is within the limit prescribed in the relevant Government Order. The Government have also considered that point. Therefore, the contention of the appellant on that aspect cannot be accepted. 8. The next question to be considered is regarding the prescription of age limit and whether the 4th respondent's claim should be rejected for the reason that he was over-aged, while submitting Ext.R4(d) application. Since we have already held that Ext.R4(a) was submitted within time, the point to be considered is whether the date of that application is relevant or that of Ext.R4(a). WA 2186/09 7 The learned Senior Counsel for the appellant pointed out that unlike in Government Schools, the date of appointment is relevant and not the date of submission of the application. Sub-rule (2) of Rule 1 of Chapter XIVA KER reads as follows : “The age limit and the relaxation thereof for appointment applicable to teachers of Government Schools shall apply mutatis mutandis to teachers of aided schools. The date of determination of age for eligibility for appointment shall be the 1st January of the year in which the appointment is to be made.” Rule 9A of Chapter XXIVA KER reads as follows : “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 assistant to the dependents of Government servants dying in harness shall, mutatis mutandis, apply in the matter of such appointments.” 9. Now, we will refer to the relevant GO (GO(P) No.12/99/P&ARD dated 24.5.1999, which is applicable as per the above quoted rule 9A, governing appointment under the Dying-in- harness scheme. Paragraph 18 of that GO deals with age limit, which reads as follows : WA 2186/09 8 “In the case of appointment to widow/widower and in the case of father/mother of unmarried Government servant, who die in harness and also in the case of appointment in part-time contingent posts, there shall be no upper age restriction i.e, applicants shall be given appointment upto the age of retirement. In all other cases, the upper age limit prescribed for direct recruitment to the post shall apply.” Going by the above provision, the upper age limit prescribed for direct recruitment to the posts in Government service shall apply for appointments under the Dying-in-harness scheme. This GO is part of Rule 9A of Chapter XXIVA KER, which is a special provision, governing appointment under the Dying-in-harness scheme. It is not in dispute that in Government service, the year of submission of the application is relevant and not the year of appointment, to decide whether the applicant is over-aged. In Government service, once a valid application is received and registered for appointment under the Dying-in-harness scheme, the appointment will take its own time and it may be after a few years and the age, at the time of making the appointment, is not taken into account. The said principle will, mutatis mutandis, apply to the appointments in aided schools, by virtue of the WA 2186/09 9 special provision in Rule 9A of Chapter XXIVA. As far as the case of the 4th respondent is concerned, if there is any conflict between Rule 1(2) of Chapter XIVA and Rule 9A of Chapter XXIVA, regarding reckoning of age limit, the latter will prevail. If that be so, the 4th respondent, having submitted his first application in 1990 and the same having been entertained by the Manager, we are inclined to hold that the application was submitted by him, within the prescribed age limit. The subsequent submission of the application in the prescribed format will not change the situation. 10. Yet another development took place in the meantime. The Government, by decision dated 3.4.1990, stayed implementation of Rule 51B and Rule 9A mentioned above, on the representation filed by the Aided School Managers. Pursuant to the intervention of this Court, the Government vacated the stay and issued GO(MS) NO.15/97/G.Edn. dated 16.1.1997. The relevant portion of the said order reads as follows : “8. Government have examined the matter in detail and are pleased to order as follows : i) The stay ordered against the operation of Rule 51 B Chapter XIV A and Rule 9A Chapter XXIV A KER WA 2186/09 10 will stand vacated with immediate effect. ii) The Managers of Aided Schools shall give employment to dependents of Aided School Teachers/non-teaching staff of aided schools dying in harness. The Government orders relating to the compassionate employment scheme as applicable to the dependents of Government servants dying in harness shall, mutatis mutandis, be followed in aided schools. iii) The claim of the incumbents under the scheme shall be applicable against the existing and arising vacancies. iv) If the Manager fails to carry out his obligations, the Educational Officers shall have power to deny approval of such appointments which are made against Rule 51B Chapter XIV A and Rule 9A Chapter XXIV A KER.” We notice that immediately after the issuance of the above G.O., the 4th respondent submitted Ext.R4(c) representation, claiming employment, on 16.05.1997. 11. The Government have issued a further clarification, concerning appointment under the Dying-in-harness scheme in aided schools, on 04.05.2002. The said circular reads as follows : WA 2186/09 11 “A few instances have been brought to the notice of Government where the management of aided schools have refused to give employment to the dependents of employees who died prior to the introduction of the Rule 51 B, Ch.XIV A of KER. It is pointed out that Rule 51B has been inserted in Ch.XIVA KER as per G.O.(P)No.55/90/G.Edn. dated 31.3.90. As per Rule 51B Ch.XIVA and Rule 9A Ch.XXIVA of KER, the Manager shall give employment to a dependent of an aided school teacher/non-teaching staff dying-in-harness and that Government orders relating to employment assistance to the dependents of Government Servants dying in-harness shall, mutatis mutandis apply in the matter of such appointments. As per G.O.(P) No.12/99/P&ARD dated 24.5.99, applications received on or after the date of issue of this order shall be disposed of in accordance with the above order. Pending application as on the date of the order shall be dealt with as per the earlier orders. In Para 19 of the said GO, it is provided that the time limit for prefering applications under the Scheme will be 2 years from the date of death of Government Servants. In the case of minor, the period will be within 3 years after attaining majority. But as per Rule 51B Ch.XIVA, Kerala Education Rules states no WA 2186/09 12 limitation period in filing applications under compassionate employment scheme. The scope of Rule 51B Ch.XIVA, Kerala Education Rules has been discussed by the Hon'ble High Court of Kerala in K.Sajeesh Babu v. D.E.O.) (1996(2) KLJ 262). In this case, the court held that “this rule like the one in rule 51A Cha XIVA Kerala Education Rules creates a right in the incumbent concerned. It also creates a corresponding liability on the Manager that he shall give employment to a dependent of an aided school teacher dying in harness. Thus the Manager cannot avoid this statutory liability. Rule 51B is a statutory provision which cannot be superseded by any executive order. There was no amendment to the rules taking away Rule 51B. Therefore, the rights available under Rule 51B has to be honoured and the liabilities arising out of the said Rule shall be discharged. So there is a liability on the Manager to give employment to a dependent of an aided school teacher dying-in-harness. The Manager cannot dispute and shirk away his liabilities and avoid this liabilities arising out of that statutory provision. Moreover in Narayan v. State of Kerala (1998(2) KLT 446), the High Court held that “Even though Government have decided to introduce the said scheme as early as 1990, WA 2186/09 13 the same could be given effect to only in the year 1997.” It is only when the provision come into force that the petitioner submitted his application for appointment. There is no time limit fixed on the Kerala Education Act or Rules for the purpose of application for dying in harness scheme under Rule 51B. Rule 51B is intended to give employment to a dependent. The question as to whether death occurred prior to the introduction of Rule or subsequently is not of much consequence. Rule 51B can have prospective effect in the matter of submission of application. There is nothing to show that the application can be entertained only if death occurred after coming into force of Rule 51B. The expression “dying-in-harness' seems to have used in Rule 51B in order to give benefit to the dependent of persons who died in harness, whether the death occurred prior to or subsequent to the introduction of Rule 51B of Kerala Education Rules. The contention that the benefit could be extended to the dependents of these persons who died in harness subsequent to the introduction of the Rule 51B cannot be accepted. As such, the stipulation contained in GO(P) No.12/99/P&ARD dated 24.5.1999 for filing the application for employment assistance can be insisted WA 2186/09 14 only with effect from 24 th May 1999, i.e., from the date of GO(P)No.12/99/P&ARD and all pending applications as on the date of issue of the above order shall be dealt with as per the earlier orders governing the matter.” (emphasis supplied) Going by the above circular, the application in the prescribed format has to be submitted only in the case of claims raised after 24.5.1999. Therefore, the claim of the 1st respondent, which was raised as early as in 1990, cannot be rejected on the ground that the application was not submitted in the prescribed format. Further, the position disclosed by the above quoted order will show that there was no delay from the part of the 4th respondent to claim employment. 12. The decision cited by the learned Senior Counsel in Corporate Manager, Diocese of Thrissur v. Jayanarayanan (supra) does not have any application to the facts of the case. We think, the decision in SNGS High School v. Reji Sagar (supra), relied on by the learned Single Judge, is relevant, having regard to WA 2186/09 15 the facts of the case. In the result, we find no reason to entertain the appeal and accordingly, it is dismissed. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta WA 2186/09 16