IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 WP(C).No. 30738 of 2004(H) ----------------------------------- PETITIONER: ------------------ SIMI. S. NATH, "NISHANTH", KUREEPUZHA CHERRY, KAVANADU P.O., KOLLAM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, PERSONAL & ADMINISTRATIVE REFORM (ADVICE-C) DEPARTMENT, THIRUVANANTHAPURAM. 2. NAIR SERVICE SOCIETY, ADMINISTRATION OFFICE, NSS HEAD OFFICE, PERUNNAI, CHANGANACHERRY, REPRESENTED BY ITS SECRETARY. 3. PRINCIPAL, N.S.S. POLYTECHNIC, PANDALAM. ADDL.R4. UNIVERSITY OF KERALA, THIRUVANANTHAPURAM REPRESENTED BY ITS REGISTRAR. IS IMPLEADED SUO MOTU, AS PER ORDER DATED 12/10/2010 IN W.P.C.NO.30738 OF 2004. R2 BY ADV. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE SRI.P.GOPAL R1 BY GOVERNMENT PLEADER SRI.P.N.RAMAKRISHNA PANICKER ADDL. R4 BY SRI.M.RAJAGOPALAN NAIR SRI.GEORGE POONTHOTTAM,SC,KERALA UTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/12/2011, THE COURT ON THE SAME DATE DELIVERED THE FOLLOWING: WP(C).No. 30738 of 2004(H) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF THE CERTIFICATE OF DEATH ISSUED UNDER SECTION 17 OF THE REGISTRATION OF BIRTHS AND DEATH ACT, 1996; ISSUED BY THE TALUK PANCHAYAT OFFICE DATED 11/01/1991. P2 : COPY OF THE REPRESENTATION DATED 09/10/1995 MADE BY THE PETITIONER BEFORE THE ADMINISTRATIVE OFFICER OF THE 2ND RESPONDENT. P2(a) : COPY OF THE REPRESENTATION DATED 12/05/1996 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNOR OF KERALA. P3 : COPY OF THE G.0.(P) NO.12/99/P & ARD DATED 24/05/1999. P4 : COPY OF THE APPENDIX A APPLICATION MADE BY THE PETITIONER DATED 08/12/2000. P4(a) : COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 09/12/2000. RESPONDENT'S EXHIBITS: R4(a) : COPY OF THE ORDER NO.AD.AIII 1/14389/99 DATED 28/10/1999. R4(b) : COPY OF THE G.O.(P) NO.37/2002/P&ARD DATED 15/07/2002. R4(c) : COPY OF THE G.O.NO.G.14/2010 DATED 20/07/2010. R4(d): COPY OF THE G.O.(P) NO.14/2010 DATED 12/04/2010. //TRUE COPY// P.A TO JUDGE. STU S.SIRI JAGAN - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)NO.30738 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of December 2011 --------------------------------------------------- JUDGMENT The petitioner's father was a lecturer of an aided college managed by the second respondent. He died on 15/04/1982 while in service. The petitioner filed Ext.P2 dated 09/10/1995 before the 2nd respondent and P2(a) dated 12/05/1996 before the Governor of Kerala, seeking employment under the second respondent. That has not been considered yet. While so, the Government issued Ext.P3 Government order dated 24/05/1999 revising the earlier scheme of compassionate employment for dependents of Government servants who die in harness. In that scheme, by Clause 9, the provisions of the scheme has been expressly excluded for employees of private colleges. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i. issue a writ of certiorari or other appropriate writ order or direction striking down Cl(9) of G.O.(P)No.12/99/P&ARD. ii. issue a writ in the nature of a declaration, declaring that Clause 9 in Ext P3 G.O will not exclude the Private Aided Colleges from the purview of the benefits of Ext.P3. iii. issue a writ of mandamus or other appropriate writ order or direction directing respondents to appoint the petitioner to a post applied for in Ext.P2, P4 and P4(a). W.P.(C)NO.30738 OF 2004 2 iv. issue such other appropriate writ order or direction that may be deemed to be just and equitable in the facts and circumstances of the case.” The petitioner's contention is that when the Compassionate Employment Scheme has been made applicable to almost all Government organizations in which the employees are paid out of Government funds. There is no logic in excluding aided college teachers and staff from its purview. Ext.P3 Compassionate Employment Scheme has been made applicable to aided school teachers, by virtue of Rule 51(B) of chapter XIV A of the Kerala Education Rules. As such, excluding employees of aided colleges from the purview of Ext.P3 is arbitrary and discriminatory, is the contention raised. 2. A statement has been filed on behalf of the Secretary to the Government, wherein the stand taken is that direct payment of salaries to aided college teachers and staff is as per an agreement between the management of aided colleges and the Government and the said agreement does not contemplate a scheme for appointment of dependents of employees of aided colleges dying in harness. That is why, as a policy, the Government has excluded private colleges from the purview of Ext.P3, is the contention raised. 3. The counsel for the respondents 2 and 3 opposes the prayers. According to him, Ext.P3 contains the policy decision of the Government and this Court shall not interfere with the same. He would W.P.(C)NO.30738 OF 2004 3 also point out that even assuming that Clause 9 of Ext.P3 is not valid, the petitioner has not approached the respondents 2 and 3 within a reasonable time. According to him, in so far as it is the prorogative of the management to appoint teachers and staff in aided colleges, the Government cannot prescribe that the management should give employment to dependents of deceased teachers and employees of the college. 4. I have considered the rival contentions in detail. 5. I do not find any merit in the contention of the Government that in view of the direct payment agreement between the management of aided colleges and the Government, the Government can exclude teachers and staff of aided colleges from the scheme framed by the Government for appointment of dependents of employees dying in harness. The agreement itself should be subject to other provisions of law applicable to colleges under the various universities in Kerala. Therefore, the direct payment agreement does not stand in the way of the Government including aided colleges also within the purview of the compassionate employment scheme. When all other establishments under the Government whether directly under the Government or in institutions run by the Government, the scheme is applicable, I find very little reason as to why aided college teachers and staff should be excluded from the purview of Ext.P3 Government order. In fact, by virtue of Rule 51(B) of chapter 14A of KER, Ext.P3 scheme has been W.P.(C)NO.30738 OF 2004 4 made applicable to aided schools. Admittedly, the teachers and staff of aided colleges are also paid from the state exchequer. If for aided schools, Government colleges and all other Government departments and establishments, that scheme is applicable. I do not find any reason as to why the aided colleges alone should be excluded from the purview of Ext.P3. For the same reason, I am satisfied that Clause 9 of Ext.P3 is violative of the fundamental rights of employees of aided colleges under Articles 14 and 16 of Constitution Act. Accordingly, I quash Clause 9 of Ext P3 Government order. 6. The result is that Ext.P3 scheme would be applicable to the teachers and staff of aided colleges also. If that be so, the petitioner is entitled to have the petitioner's applications Exts.P2, Ext.P2(a) considered in accordance with Ext.P3 scheme. 7. Of course, the learned counsel for the respondents 2 and 3 vehemently opposes the ground that Ext.P2 and P2(a) have been filed long after the death of the petitioner's father. But the counsel for the petitioner would contend that the petitioner could not, as of right, file any application, in view of clause 9 of Ext.P3 and being left with no other financial support after the death of her father, he could not approach the appropriate authorities within time. Therefore, according to the petitioner, the matter should be viewed in that angle and the application should be considered on merits irrespective of the time lag in filing the same. I am not expressing any opinion on the same. But W.P.(C)NO.30738 OF 2004 5 Ext.P2 should gain the attention of the second respondent appropriately. Accordingly, this writ petition is disposed of with a direction to the second respondent to consider Ext.P2 application filed by the petitioner and pass appropriate orders thereon, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. If the second respondent does not consider the same favourably, it would be open to the petitioner to take the matter further in accordance with the law. S.SIRI JAGAN, JUDGE STU W.P.(C)NO.30738 OF 2004 6 W.P.(C)NO.30738 OF 2004 7