IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 WA.No. 415 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.36445/2008 Dated 17/09/2009 .................... APPELLANT(S): RESPONDENTS 1, 3 & 4:- -------------------------------------------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. ASSISTANT EDUCATIONAL OFFICER, KATTAKADA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.T.B.REMANI. RESPONDENT(S): PETITIONER & 2ND RESPONDENT:- --------------------------------------------------------------------------- 1. MANAGER, S.S.M.U.P.SCHOOL, THIRUVANANTHAPURAM. 2. PREETHA J.W., CHADAYAVILAKAM, CHRIST BHAVAN, PARASUVAKKAL, PARASUVAKKAL P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV.SRI.P.N.MOHANAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20/07/2010, ALONG WITH WA.NO.860 OF 2010, THE COURT ON 30/07/2010 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = Writ Appeal Nos.415 & 860 of 2010. = = = = = = = = = = = = = = = = = Dated this the 30th day of July, 2010. COMMON JUDGMENT Gopinathan, J. The appellants in WA.No.415/2010 are the respondents 1, 3 and 4 – (State and officials) in WP(C)No.36445/2008. Respondents are the petitioner and 2nd respondent in WP (C). The appellant in WA.No.860/2010, the other appeal is the petitioner in WP(C)No.1495/2009. The 1st and 6th respondents in WA.No.860/2010 are State of Kerala, represented by the Chief Secretary and Secretary to Government, General Education Department respectively. The 2nd respondent is Director of Public Instruction. The 3rd respondent is the Assistant Educational Officer, Kattakkada. The 4th respondent is the Manager, SSMUPS, Poozhanad, who was the petitioner in WP(C)No.36445/2008. The 5th WA.Nos.415 & 860/10. -: 2 :- respondent is an Upper Primary School Assistant employed in the school run by the 4th respondent. The 2nd respondent in WP(C)No.36445/2008 is the 2nd respondent in WA.No.415/2010. She is the appellant in the other appeal. Hereinafter the parties are referred to as arrayed in WA.No.860/2010. The mother of the appellant was working as the Headmistress of a school run by the 4th respondent. On 15/7/2001 she died in harness. Though the appellant applied before the 4th respondent for employment under compassionate ground, the 4th respondent didn’t heed. She had been running from pillar to post for getting appointment. Ultimately, she represented before the Committee for the Welfare of Women, Children and Physically Handicapped of the Kerala Legislature. The representation was transferred to the General Education Department, which in turn got the representation duly enquired by Jabapalan Oliver, an Under Secretary to the General Education Department. After enquiry it was found WA.Nos.415 & 860/10. -: 3 :- that the appellant is entitled to get employment on compassionate ground and her claim was declined by the 4th respondent for no good reason. Consequently, an order, copy of which was produced as Ext.P7 and Ext.P9 in WP(C) No.36445/2008 and WP(C)No.1495/2009 respectively was issued by the State directing the 4th respondent to appoint the appellant in the very next vacancy that arose in the school after 15.6.2002, provided there were no Rule 43, 51A claimants in the school who acquired their claim before 15.6.2002. Assailing the said order the 4th respondent Manager preferred WP(C)No.36445/2008. Seeking a writ of mandamus for the enforcement of the said order, the appellant preferred the other writ petition. Both writ petitions were simultaneously heard and by judgment dated 17/9/2009, WP(C)No.36445/2008 was allowed by the learned single Judge whereby Ext.P7 order was quashed. In the light of that judgment, writ petition filed by the appellant was dismissed. Now these appeals. As the WA.Nos.415 & 860/10. -: 4 :- dispute involved in both appeals is one and the same, we are disposing both appeals by this common judgment. 2. We heard the learned counsel for the appellant, the Government Pleader and the counsel appearing for the 4th respondent. 3. The fact that the mother of the appellant was working as Headmistress in the school run by the 4th respondent and she died in harness on 15/7/2001 is not disputed. The fact that the appellant is one of the legal heirs of the deceased Headmistress and she is entitled to be appointed as a teacher and none of the other heirs of the deceased Headmistress had come forward with a request for an employment under compassionate ground are not disputed. The 4th respondent in his writ petition assailed Ext.P7 order therein for the reason that the appellant got married on 10/9/2003 and that she applied for an employment only on 3/8/2007 and in the meanwhile there was no vacancy in the school to appoint her under the WA.Nos.415 & 860/10. -: 5 :- dying-in-harness scheme. It was pleaded by the 4th respondent in his writ petition that there were three protected teachers and a claimant under Rule 51A of Chapter XIV A of the KER were waiting for appointment and are entitled to precedence against the claim for appointment under Rule 51B. 4. Ext.P1 produced by the 4th respondent in his writ petition is the scheme for employment under compassionate ground (hereinafter referred to as scheme). Going by the said scheme, we find that widow/widower, son, daughter are entitled to employment as dependents of the deceased employee under the scheme. The income limit prescribed for getting employment under the scheme is Rs.1.5 Lakhs. There is no case for the contesting respondents, ie. the 4th respondent that the income of the appellant is beyond the prescribed limit. In Ext.P2(5) produced in WP(C) No.36445/2008, the income of the appellant is certified as Rs.1,48,000/-. Ext.P1 doesn’t disqualify a married daughter WA.Nos.415 & 860/10. -: 6 :- to seek employment under the scheme. So, that ground raised by the 4th respondent is devoid of merit. Adding to the above, it is the consistent case of the 4th respondent that the appellant married only on 10/9/2003. Even if it is assumed that married daughter is not entitled to employment under compassionate ground, as on the date of death of the mother of the appellant, she was single and that she is not at all disqualified to seek employment under Ext.P1 scheme. Entitlement for appointment is to be considered as on the date when the right accrues. So long as there is no provision in Ext.P1 to deny the benefit under the scheme due to subsequent change of circumstance, the fact that the appellant subsequently married would not disqualify her to get employment under the scheme. 5. The learned single Judge quashed Ext.P7 only for the reason that the application, copy of which was marked as Ext.P2 though dated 15/6/2002 was sent by registered post on 1/8/2007 in Ext.P3 cover and it was delivered to the WA.Nos.415 & 860/10. -: 7 :- 4th respondent only on 3/8/2007. The stamp paper for preparing consent of other heirs was purchased on 26/7/2007 and the consent is dated 24/7/2007. Such reasons were specifically taken as ground 'C' in the writ petition. Stating that those allegations were not at all countered, the learned single Judge arrived at the conclusion that the application filed by the appellant seeking employment was filed beyond two years and thus application being highly belated, the appellant is not entitled to get employment under the scheme. Consequently, Ext.P7 order was quashed. 6. The learned counsel for the appellant submitted that Ext.P2 is only a copy of the application sent as early as on 15/6/2002 and that it was forwarded to the 4th respondent during the pendency of the enquiry by the Government. Going by the pleadings in WP(C) No.1495/2009 and Exts.P4, P6, P7, P10, P10(a), P11 and P11(a) produced therein, we find that there is much merit in WA.Nos.415 & 860/10. -: 8 :- the submission made by the learned counsel for the appellant. It is crucial to note that the 4th respondent who is the only contesting party had not filed any counter-affidavit in WP(C)No.1495/2009. In the above circumstance, we find that it would be appropriate to give reliance to the pleadings and the documents produced therein, especially when it didn’t appear that the documents produced therein were not at all concocted. Ext.P4 is the copy of the application seeking employment dated 15/6/2002. Ext.P5 is a copy of the letter dated 3/10/2002 by the Asst.Educational Officer, Kattakkada to the appellant. It refers to a representation made by the appellant on 15/6/2002. By Ext.P5 the appellant was advised to approach the 4th respondent to get appointment as the 4th respondent is the appointing authority. Ext.P6 is the copy of a representation sent by the appellant to the 4th respondent on 25/8/2003 requesting for appointment under the scheme. Ext.P7 is a letter dated 8/2/2007 sent by the District Educational WA.Nos.415 & 860/10. -: 9 :- Officer, Neyyattinkara to the 3rd respondent Asst.Educational Officer. Referring to a representation dated 17/1/2007 given by the appellant regarding her appointment on compassionate ground, the 3rd respondent was asked to conduct an enquiry and to submit a report. Ext.P10 is a letter dated 4/1/2007 issued to the appellant by the 3rd respondent in response to a complaint filed by the appellant on 7/11/2006 regarding certain clarification in relation to the claim for appointment under the scheme. P10(a) is a letter written by the 4th respondent to the 3rd respondent in response to a letter dated 10/11/2006. The subject is the application for appointment under the scheme filed by the appellant. What is mentioned in the letter is that the appellant had not furnished any evidence to show her educational qualifications and her present age or date of birth and that she had not adhered to the procedure for appointment and in that circumstance her request doesn’t deserve any consideration. Ext.P11 is a copy of another WA.Nos.415 & 860/10. -: 10 :- letter dated 10/7/2004 sent by the appellant to the 4th respondent. There, she had specifically mentioned about Ext.P4 as well as Ext.P6 and further requested for appointment. Ext.P11(a) is yet another letter dated 7/11/2006 sent by the appellant to the 4th respondent seeking appointment. That letter refers to Exts.P4, P6 and P11. These documents especially Ext.P10(a) belie the contention of the 4th respondent that it is for the first time the appellant had forwarded an application to the 4th respondent by registered post on 1/8/2007. The contention on that count lacks bonafides. As we mentioned earlier, neither the pleadings in the writ petition filed by the appellant nor the correctness of the documents produced therein was countered by the contesting 4th respondent. Learned Government Pleader supports the claim of the appellant. It appears that the learned singe Judge overlooked these documents and had failed to appreciate the contention of the appellant that Ext.P2 produced in WP WA.Nos.415 & 860/10. -: 11 :- (C)No.36445/2008 and annexed documents are only a further reminder to the 4th respondent. We find that the original of Ext.P4 application produced by the appellant in her writ petition was submitted to the 4th respondent on 15/6/2002. Thereafter, she had sent reminders on 25/8/2002, 10/7/2004 and on 7/11/2006 as evidenced by Exts.P4, P6, P11 and P11(a). Exts.P7, P10 and P10(a) would convincingly establish that the appellant had been making enquiries and approaching the authorities concerned to get an employment under the compassionate ground. Though, the 4th respondent in his Ext.P10(a) letter addressed to the 3rd respondent mentioned that her application for employment was not adhering to the procedure, it is not disclosed as to what was the defect. In the event the application was any way defective and that documents showing the education qualifications and date of birth were not furnished, the application should have been returned for representing after curing defect or the 4th respondent WA.Nos.415 & 860/10. -: 12 :- should have addressed the appellant to produce the documents. These circumstances persuade us to arrive at a conclusion that the appellant was denied employment neither because of the failure to apply nor due to the non- adhering to the procedure. It was only due to the negligent approach of the 4th respondent. The Government was perfectly right in issuing Ext.P7 produced in WP(C) No.36445/2008 which is Ext.P9 in WP(C)No.1495/2009. The appellant was perfectly justified in approaching this Court. We find that the appellant had submitted her application in time. The finding of the learned single Judge that the appellant had not applied in time is contrary to the facts. Since the appellant was non suited for the sole reason of delay, we find that the appellant shall succeed and that she is entitled to get employment under the scheme. 7. We notice that the 4th respondent had a contention that three protected teachers and a claimant WA.Nos.415 & 860/10. -: 13 :- under Rule 51A were waiting for appointment and there was no vacancy to accommodate the appellant. That position was not disputed by the appellant. There is no case for the 4th respondent that any other claimant is entitled to precedence over the claim put forward by the appellant for appointment under the scheme. In the above circumstance, we find that it would be appropriate to direct the 4th respondent to appoint the appellant in a deserving post in the next arising vacancy. In the result, we find that the impugned judgments in both appeals are not sustainable and liable to be set aside. Both appeals are, therefore, allowed. While allowing WP(C) No.1495/2009 filed by the appellant, there would be a writ of mandamus directing the 4th respondent to appoint the appellant to a deserving post in the next arising vacancy in the school managed by the 4th respondent. Such appointment shall be made within one month after the arising of the vacancy subject the right of other claimant, if WA.Nos.415 & 860/10. -: 14 :- any, who had acquired right under Rule 51A, prior to Ext.P9 dated 21.11.2007. The writ petition filed by the 4th respondent would stand dismissed. However, we make no order as to costs. C.N.RAMACHANDRAN NAIR, (Judge) P.S.GOPINATHAN, (Judge) kvs/-