Kerala High Court
Achuth A vs State Of Kerala on 7 March, 2025
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W.P.(C). No.7941 & 9268 of 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
WP(C) NO. 7941 OF 2022
PETITIONER:
YADHU KRISHNAN
AGED 25 YEARS
S/O. ANIL B. KUMAR, NARAYANAMANDIRAM, KODANTHURUTH,
KUTHIYATHODU P. O., ALAPPUZHA, PIN -688533.
BY ADV T.M.ABDUL LATHEEF
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL
EDUCATION DEPARTMENT, SECRETARIAT P. O.,
THIRUVANANTHAPURAM, PIN - 695 001.
2 ADDITIONAL DIRECTOR
GENERAL EDUCATION DEPARTMENT, SECRETARIAT P. O.,
THIRUVANANTHAPURAM, PIN - 695 001.
3 DEPUTY DIRECTOR OF EDUCATION
CHERTHALA P. O., ALAPPUZHA, PIN - 682301.
4 DISTRICT EDUCATION OFFICER
CHERTHALA P. O., ALAPPUZHA, PIN - 682301.
5 MANAGER
ECEK UNION HIGH SCHOOL, KUTHIYATHODU P. O.,
ALAPPUZHA, PIN - 688533.
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6 K. V. ANEESH
KATTIPARAMBIL HOUSE, MUHAMMA P. O., ALAPPUZHA,
PIN - 688533.
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
Nidhi Balachandran
S.SUBHASH CHAND
OTHER PRESENT:
GP- NIMA JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.03.2025, ALONG WITH WP(C)NO9268/2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
WP(C) NO. 9268 OF 2022
PETITIONER:
ACHUTH A.,
AGED 26 YEARS
FULL TIME MENIAL, ECEK UNION HIGH SCHOOL,
KUTHIYATHODE, ALAPPUZHA 688 533.
BY ADVS.
K.JAJU BABU (SR.)
M.U.VIJAYALAKSHMI
SACHIN RAMESH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL
EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 THE DIRECTOR OF GENERAL EDUCATION,
DIRECTORATE OF GENERAL EDUCATION, JAGATHY,
THIRUVANANTHAPURAM 695 014.
3 THE DEPUTY DIRECTOR OF EDUCATION,
ALAPPUZHA, OFFICE OF THE DEPUTY DIRECTOR OF
EDUCATION, ALAPPUZHA 688 001.
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4 THE DISTRICT EDUCATIONAL OFFICER,
CHERTHALA, OFFICE OF THE DISTRICT EDUCATIONAL
OFFICER, ALAPPUZHA 688 524.
5 THE MANAGER,
ECEK UNION HIGH SCHOOL, KUTHIYATHODE,
ALAPPUZHA 688 533.
6 SRI. K.V. ANEESH,
KALLIPARAMBIL HOUSE, MUHAMMA P.O.,
ALAPPUZHA 688 525.
BY ADVS.
Nidhi Balachandran
S.SUBHASH CHAND
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.03.2025, ALONG WITH WP(C)NO.7941/2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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W.P.(C). No.7941 & 9268 of 2022
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VIJU ABRAHAM, J.
-- -- -- -- -- -- -- -- -- -- -- -- --
W.P.(C) Nos.7941 & 9268 of 2022
-- -- -- -- -- -- -- -- -- -- -- -- --
Dated this the 7th day of February, 2025
JUDGMENT
Since a common issue is involved in both these writ petitions,
they were heard and disposed of by a common judgment.
W.P.(C) No.9268 of 2022
2. The 5th respondent, the Manager of an aided school
appointed the petitioner herein as Full Time Menial in the
promotion vacancy of one Smt.G.S.Ambily as per Ext.P1. When the
proposal for approval of appointment of the petitioner was
forwarded, the same was rejected by the 4 th respondent as per
Ext.P2 for the reason that the 6th respondent who is having a 51B
claim has not been given appointment. Aggrieved by the same the
Manager preferred an appeal before the 3 rd respondent. The
father of the 6th respondent, late K.A.Vijayan, who was working as
Physical Education Teacher in the School, died in harness on
29.02.1996. However, his children did not submit an application
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within time. The 1st respondent has specified time limit of 2 years
from the date of death to submit the application and in case of
minors, application has to be made within 3 years from the date of
attaining majority. The 6th respondent did not submit any
application within the prescribed time limit. In fact Ext.P3
application was submitted by the 6th respondent only on
18.12.2017. The 6th respondent had approached the Kerala State
Human Rights Commission and the said Commission by Ext.P4
order directed respondents 2 and 3 to consider the application of
the 6th respondent sympathetically. Based on Ext.P4, the 4th
respondent directed the 5th respondent Manager as per Ext.P5 to
consider the application submitted by the 6 th respondent, which
was rejected as per Ext.P6 order. However, by Ext.P7 order the 4 th
respondent directed the 5th respondent to appoint the 6th
respondent in the first vacancy as per the qualification. Later, the
4th respondent by Ext.P8 again issued a direction to appoint the 6 th
respondent in the existing vacancy. The petitioner, the 5 th
respondent Manager and one Sri. Yadhukrishnan A. (the petitioner
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in W.P.(C)No.7941 of 2022) who was appointed as Clerk,
approached this Court by filing W.P.(C) No.21734/2019. While so,
the proposal for approval of appointment of the petitioner as Clerk
was rejected by the 4th respondent as per Ext.P9 order.
Thereupon the above said writ petition was disposed of as per
Ext. P10 judgment relegating the petitioner to file an appeal
against Ext.P9 order. Ext.P11 appeal was preferred, which was
rejected by Ext.P12 order. In Ext.P12 the 3rd respondent entered
into a finding that the dependents of late Vijayan had submitted
applications for compassionate employment during various periods
and the same was not considered by the Manager and therefore,
the claim of the 6th respondent under Rule 51B KER is sustainable.
Aggrieved by the same, the petitioner has filed appeal before the
2nd respondent. The said appeal was reject by the 2 nd respondent
as per Ext.P13. Aggrieved by Ext.P13, Ext.P14 revision petition
was preferred by the petitioner before the 2 nd respondent and the
said revision petition was rejected as per Ext.P16. It is aggrieved
by the same that the above writ petition has been filed.
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W.P.(C)No.7941 of 2022
3. The petitioner was appointed as a Clerk by the 5 th
respondent in the retirement vacancy of one K.G.Vipin, the
vacancy which arose on 22.05.2019 as per Ext.P1. The approval of
appointment was refused by the 4th respondent DEO for the reason
that the 6th respondent – a 51B claimant was not appointed in spite
of the direction issued by the Human Rights Commission in this
regard. Pursuant to the direction issued by this Court in Ext.P4
judgment, the issue was considered by the 3 rd respondent and by
Ext.P5 the request for approval of appointment of the petitioner
was rejected and held that the 6 th respondent is entitled for
appointment as he is 51B claimant. An appeal was preferred as
Ext.P6 and the same was rejected as per Ext.P7 order. Ext.P8 is
the copy of the application submitted by the 6th respondent for
appointment under the compassionate appointment scheme dated
18.12.2017 for the post of full time menial and the present
vacancy is that of the Clerk. The petitioner would contend that the
6th respondent cannot take a claim to the said post. It is aggrieved
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by the rejection as per Ext.P7 that the above writ petition has been
filed.
4. A detailed counter affidavit has been filed by the 4 th
respondent Government in W.P.(C)No.9268 of 2022 contending
that going by Rule 51B of Chapter XIV A Kerala Education
Rule(KER), the Manager shall give employment to a dependent of
an aided school employee dying in harness. The Government
Order relating to employment assistance to the dependents of
Government servants dying in harness shall apply in the matter of
such appointments in aided schools and the existing Government
orders in this regard is G.O(P) No.12/99/P&ARD dated 24.05.1999.
It is further contended that going by the said Government Order,
the time limit for preferring applications for the Scheme will be 2
years from the date of death of employee and in the case of minor
dependents, the period will be within 3 years after attaining
majority. It is also stated that Sri.K.A.Vijayan died on 28.02.1996
and thereafter his wife Smt.C.R.Chandramathy submitted an
application for employment before the District Educational
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Officer, Alappuzha and the same has been handed over to the
Manager vide letter No.B2/5799/1996 dated 15.05.1996. Thus the
application submitted was within the time limit and hence valid.
But the Manager rejected the application saying it was defective.
It is further contended that going by para 26 of GO(P)
No.12/1999/P&ARD dated 24.05.1999 referred to above, the
applicant will have right to withdraw the application at any time
before the job is accepted so as to enable another dependent of
the family to make his/her application for employment assistance.
The 6th respondent submitted his application on this basis and it is
not belated. The Human Rights Commission has also as per order
dated 12.04.2017 ordered the 4th respondent to consider the
claim of the 6th respondent. It is further stated in the counter
affidavit that the original applicant Smt.Chandramathy submitted
several representations, but the same was not considered and
later the elder son of the deceased, Sri.K.V.Aji has also submitted
application in the prescribed format. However, all these
applications were rejected by the 5th respondent. It is further
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contended that after submission of the application on 18.12.2017,
there arose two vacancies in the school for which the 6 th
respondent was eligible, was filled up by granting appointment to
fresh employees. The 5th respondent Manager is bound to give
appointment to the 6th respondent by accepting his claim under
Rule 51 B of Chapter XIV A KER.
5. The 6th respondent has adopted the counter affidavit in
W.P.(C)No.7941 of 2022 in W.P.(C)No.9268 of 2022. It is
contended that the writ petition is not maintainable as no ground
warranting the interference of the impugned orders have been
made out by the petitioner. Though the direction of the Human
Rights Commission was challenged, the petitioner could not get
any relief. Though the mother of the 6 th respondent made an
application for employment assistance before the 5 th respondent
on 15.05.1996 and the same was forwarded by the District
Educational Officer, the 5th respondent did not take any action.
Subsequently, a Full Time Menial vacancy had arisen in the school
and the brother of the 6th respondent made a request but the same
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was rejected on the ground that the same has been submitted
beyond the permissible time limit. Thereafter, the Manager made
a fresh appointment in the said post of Full Time Menial and it was
thereafter that the 6th respondent has made an application for
employment assistance. The appointment now made is overlooking
the statutory claim of the 6 th respondent as provided in Rule 51B
of Chapter XIV A KER. It is submitted that the issues raised in
these writ petitions are settled in favour of the 6 th respondent by a
series of judgments of the Apex Court as well as this Court. It is
also contended that the petitioner in W.P.(C)No.7941 of 2022 has
got an alternative remedy of revision under Rule 92 of Chapter
XIV A KER against Ext.P8 order produced in that writ petition and
therefore, W.P.(C)No.7941 of 2022 is not maintainable. Since the
1st application submitted by the mother of the 6 th respondent was
within time, the claim of the 6 th respondent cannot be rejected on
the ground that there is delay in submitting the application.
6. The 5th respondent Manager has filed a counter affidavit in
W.P.(C) No.9268 of 2022. It is submitted in Ext.P12 order of the
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Deputy Director of Education, Alappuzha that the mother of the 6 th
respondent has submitted application under Compassionate
Employment on 15.05.1996 on behalf of Shri K. V. Aji who is the
brother of the 6th respondent and the same is forwarded by the
District Educational Officer, Alappuzha on 28.06.1996 and in the
information sought by the Manager before the District Educational
Officer, Cherthala regarding the same, Ext.R5(a) reply was
submitted stating that the said information regarding forwarding
of the application as per letter dated 28.06.1996 is not from the
said office. Thereupon the 5 th respondent approached the District
Educational Officer, Alappuzha seeking the very same information
and he was informed as per Ext.R5(b) that such an application
number is not available with the said office. Based on the same it
is the case of the 5th respondent that the statement in Ext.P12 by
the Deputy Director of Education appears to be a fabricated one,
so as to help the 6th respondent. It is further contended by the 5 th
respondent Manager that if such an application is forwarded by
the District Educational Officer as per file No.B2/5997/1996, the
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District Educational Officer, Alappuzha will not have approved the
appointment of Sri.V.J Yeshudas and also Smt.A.S.Ambily in 2011.
Therefore the contention taken in Ext.P12 that an application was
submitted and forwarded by the DEO to the Manager is only to be
rejected. It is further contended that the 6 th respondent has having
sufficient income from his farm and thereupon he has voluntarily
retired from Maruthy Udyoga Mandal Ltd and further that
recently on 12.04.2022, Ext.R5(d) application was submitted by
the 6th respondent under the Compassionate Employment Scheme
to the post of Clerk in which his annual family income is stated to
be Rs.60,000/-. It is also submitted that the mother of the 6 th
respondent is getting family pension which will come around Rs.
20,000 per month and the 6th respondent’s wife is working as a
teacher earning more than Rs.10,000/- per month and therefore
the details of the income shown in the application is fabricated.
7. In W.P.(C)No.7941 of 2022, the petitioner has produced
certain documents obtained as per the provisions of the Right to
Information Act to substantiate that there is no evidence to show
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that the mother of the 6th respondent has submitted any
application under the Compassionate Appointment Scheme.
Ext.P11 communication would reveal that there is no records
available regarding the application submitted by the mother of the
6th respondent and the decision taken thereon. It is further
submitted that based on Ext.P14 communication that the brother
of the 6th respondent who had submitted an application earlier,
was appointed as a permanent employee in the Public Works
Department as Driver(Grade-I). The learned counsel for the
petitioners relies on Ext.P15 judgment in W.A.No.2178 of 2005
and the judgments in Manager, Kottor A.U.P.School v. State
of Kerala and Others [2020 KHC 845], Umesh Kumar
Nagpal v. State of Haryana and Others [1994 KHC 1178],
Sameena A.R. v. State of Kerala and Others [2015 (5) KHC
497], Naduvathur U.P.School and Another v. Bijeesh K. and
Others [2019 (3) KHC 472], Deepak v. Secretary, General
Education Department [2002 KHC 771], Lakshmi K.T. v.
State of Kerala and Others [2021 (6) KHC 448], Shreejith L.
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v. Deputy Director(Education) Kerala and Others [2012
KHC 4348], Sivamurthy v. State of Anjdhrapradesh [2008
KHC 4869], State of Himachal Pradesh and Another v.
Shashi Kumar [2019 KHC 6077] and the judgment in
Shimjuraj K. P. and Others v. State of Kerala and Others
[2016 (3) KHC 782] in support of his contentions, whereas the
respondents relies on the judgments in Manager, S.N.G.S. High
School v. Reji Sagar D.R. and Others [2008 (1) KHC 922],
Unnikrishnan K.M. v. Manager, C.A. High School,
Peruvamba and Others [2010 (1) KHC 285] and the judgment
in Soopy Haji K. K. v. State of Kerala and Others [2009 (2)
KHC 702] in support of their contentions.
8. I have heard the rival contentions on both sides.
9. Before going into the merits of the contentions raised, it is
profitable to consider the manner of disposal of the revision
petition submitted by the petitioner in W.P.(C) No.9268/2022. The
said revision has been filed invoking the provisions of Rule 92
Chapter XIV A KER. Rule 92 provides the power of the
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Government on their own motion or otherwise to call for the
records of the case, and revise any order passed by a subordinate
authority. When the revision is filed it was incumbent on the part
of the Government to consider the contentions of the petitioners
and take a decision on the revision petition on merits. Ext.P16 is
the revisional order in respect of the petitioner in W.P.
(C)No.9268/2022. A strange reason has been stated for rejecting
the revision that the Manager has not obeyed the original order
and the orders in appeal and therefore, there is violation of the
provisions of the Kerala Educational Act and Rules, and in view of
the same the revision petition is liable to be dismissed. I am of the
view that the said reason for rejecting the revision petition is
absolutely arbitrary and unjust. It is those original orders and
appellate orders which are sought to be revised by filing the
revision petition under Rule 92 Chapter XIV A KER and therefore
the Government was bound to hear and dispose of the revision on
its merits but on the other hand the Government has rejected the
revision petition stating that the order under revision is not
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complied by the Manager. Such a stand of the Government cannot
be accepted at all.
10. Going by the averments in the counter affidavit of the 6 th
respondent, on the death of the father of the 6 th respondent, his
mother submitted an application on 15.05.1996 for compassionate
appointment and no action was taken on the same. Later, when a
Full Time Menial vacancy has arisen in the school, the brother of
the 6th respondent, who is the elder son of deceased Vijayan, on
24.02.2004, submitted an application, ie., almost after 8 years
after submitting the initial application by the mother of the 6 th
respondent and the 6th respondent herein has admittedly
submitted Ext.P3 application only on 12.04.2017, ie., almost 21
years of the alleged application submitted by his mother. Though
it is claimed that an application has been submitted by the mother
of the 6th respondent as early as in 1996 and it is contended that
no decision has been taken on the application, no action has been
taken on the non-consideration of the application or the rejection
of the application if any submitted by the mother of the 6 th
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respondent. Further, it is admitted by the counter affidavit of the
6th respondent that later on when the vacancy of Full Time Menial
occurred, the 6th respondent’s brother has made an application,
which was rejected for not having filed the application within
time. The said rejection order is also not challenged. It is very long
thereafter that the 6th respondent has filed this application. The
claim of the 6th respondent is that since original application was
filed by the mother as early as in 1996, delay cannot be attributed
on the part of the 6th respondent in submitting an application in
2017 and the said contention has been accepted by the authorities
as per the impugned orders. Another aspect to be noted is that
after the mother made an application and according to the 6 th
respondent, the same was pending consideration, two
appointments were made ie., V.J. Yesudas and A.S. Ambily. Both
these appointments were approved by the District Educational
Officer. If the 6th respondent’s mother had a claim to the said post,
naturally she would have challenged the appointment of V.J.
Yesudas and A.S. Ambily, since the same was made overlooking
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the superior claim of the 6th respondent’s mother being a 51 B
claimant of Chapter XIV A KER. Admittedly there is no averment
in the counter affidavit that the said appointment was challenged
at any point of time and it is only when the petitioners in these
cases were appointed, the 6th respondent has made a claim based
on Ext.P3 application filed in 18.12.2017 under the Compassionate
Appointment Scheme. It is in the above said factual background
that the issue involved in these cases has to be considered.
11. Rule 51 B of Chapter XIV A KER deals with
compassionate appointment to dependent of an aided school
teacher dying in harness. Rule 51B 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 Government servants dying in harness
shall mutatis mutandis, apply in the matter of such
appointments”
Rule 9A of Chapter XXIV A KER deals with similar provisions for
appointment to dependent of non-teaching staff of an aided school
dying in harness. Therefore, going by Rule 51B Chapter XIV A
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KER, the appointment shall be governed by the Government order
relating to employment assistance to the dependents of
Government servants dying in harness. Going by the counter
affidavit filed by the 4th respondent, the rule applicable in the facts
of the present case is G.O.(P)No.12/99/P&ARD dated 24.05.1999.
The said Government Order dated 24.05.1999 was issued in
supersession of all existing orders to regulate appointment under
the Compassionate Appointment Scheme where the provisions
have been made most stringent, especially the time limit for
preferring application. Clause 19 of the said Government Order
dealing with ‘the time limit for preferring application’ reads as
follows:
“The time limit for preferring application
19. The time limit for preferring 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.”
Admittedly the teacher, who is the father of the 6 th respondent
died on 29.02.1996. Therefore, going by the said rules application
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ought to have been filed within a period of two years from the date
of death and in case of a minor, within a period of three years
after attaining majority. A perusal of Ext.P6 order, whereby the
claim of the 6th respondent was rejected reveal that 6th respondent
is born on 30.04.1980 and therefore, he ought to have made an
application on or before 30.04.2001, the date on which three year
period is over after he attained majority. But the present
application has been filed only in 2017, ie., after 16 years of the 6 th
respondent being a major. A perusal of the orders impugned in
these writ petitions would reveal that the claim of the 6 th
respondent was found to be sustainable based on the fact that the
original application submitted by his mother for herself was within
the time limit prescribed and therefore, this being a continuation
of the claim, the application submitted by the 6th respondent
should be treated as filed within time. Yet another reason stated
for allowing the claim of the 6 th respondent is that the Human
Rights Commission as per Ext.P4 proceedings directed the
Education Authority to consider the claim on a finding that the
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non-grant of appointment to the wife or children of the deceased
appears to be a fault on the part of the Manager and the
authorities of the Education Department while considering the
claim has also relied on Ext.P4 order passed by the Human Rights
Commission. The reliance placed on Ext.P4 order of the Human
Rights Commission is in violation of the direction issued in Ext.P10
judgment, where in paragraph 10, this Court has directed
consideration of the statutory appeal preferred by the petitioners
and the authority concerned was directed to consider the claim of
the 6th respondent herein(51 B claimant) untrammelled by
anything contained in Ext.P4 order of the Kerala Human Rights
Commission, but strictly in terms of the provisions of the Kerala
Education Act and Rules, as also the judicial precedents covering
the filed. Therefore, there is a clear interdiction regarding placing
reliance on Ext.P4 order of the Kerala Human Rights Commission
by this Court but overlooking the same that the order impugned
was passed clearly relying on the said order of the Human Rights
Commission for finding that the 6 th respondent is entitled for
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appointment under the Compassionate Appointment Scheme.
12. Now what remains to be considered is finding by the
authorities that since the mother of the 6th respondent made an
application within the time and therefore, treating the application
submitted by the 6th respondent as a continuation of the earlier
claim, the same could be treated to have been filed within time.
The 6th respondent has placed reliance on three judgments of this
Court in support of his contention. First of which is the case of
Manager, S.N.G.S. High School’s case cited (Supra) wherein
this Court has held that the right of appointment of a dependant of
a teaching staff or non teaching staff who died in-harness, is a
statutory right and whenever there is a vacancy the Manager has
to inform the dependant about the vacancy and if there is any
defect in the said application, it is for the Manager to get it cured
and that cannot be stated as reason for denying the claim of the
applicant. Further, it is held that the Manager can make
appointment from the open market, only if there is no claimant
under Rule 43 or Rule 51A or Rule 51B of Chapter XIV A or Rule
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9A of Chapter XXIV A KER. Going by the said judgment, it is the
duty of the Manager to alert the dependant of a teaching staff or a
staff who died in harness about the vacancy that has arisen and
the entitlement of the legal heir for appointment under the
Compassionate Appointment Scheme. I am of the view that the
said principle laid down by this Court in the above stated
judgment cannot be applied in the facts of the present case,
inasmuch as even going by the averments of the 6 th respondent an
application has been filed as early as in 1996, though refuted by
the 5th respondent Manager in the counter affidavit producing
document contended that no such application was ever preferred
by the mother of the 6 th respondent. Whatever that be, since an
application has been submitted soon after the death of the
deceased employee, the issue regarding the duty of the Manager
to alert the legal heirs about the availability of the vacancy does
not arise in the facts and circumstances of the present case. Yet
another aspect to be noted is that even if the contention of the 6 th
respondent is accepted that the mother of the 6 th respondent has
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submitted an application and the same was not considered, but
two other persons as stated above, ie., V.J.Yesudas and A. S.
Ambily were appointed. If the said appointments were made
overlooking the claim of the applicant, the District Education
Officers ought not have approved the same and even if it is
approved, it is for the mother of the 6 th respondent who was the
applicant at that point of time to challenge the same in
appropriate proceedings. As regards the non-consideration of the
application submitted by the mother and as regards the
appointment of Sri.V.J.Yesudas and Smt.A.S.Ambily overlooking
her claim, no steps were taken by the mother of the 6 th respondent
for challenging the said appointment. Therefore, I am of the view
that the judgment in Manager, S.N.G.S. High School’s case
cited (Supra) will not apply to the facts and circumstances of the
present case. Similar findings were entered by this Court in
Unnikrishnan K.M.’s case cited(Supra) wherein also this Court
has found that the Manager has a duty to give compassionate
employment to a claimant, if he is eligible and applies as per the
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relevant Government Order. This Court in Soopy Haji K. K.’s
case cited (Supra) has held that whenever a vacancy arises in
which a candidate for compassionate appointment could be
accommodated under Rule 51B, the Manager has to do so and it is
not for the dependant of the employee to make any application at
that time and further that the fact that there was no vacancy in the
school during the relevant period is not a ground for rejection of
the application. Since the application of the 6 th respondent was
submitted in 2017, the relevant Rule applicable is the Government
Order dated 24.05.1999, which contains a rider that the
applications should have been filed within two years of the death
of the deceased employee or within the period of three years from
the date of attaining majority in case of a minor.
13. In Ext.P15 judgment passed by this Court in
W.A.No.2178 of 2005, an application for employment under the
dying in harness scheme was filed in December, 1994, that is after
the lapse of almost 15 years of the death of their bread-winner.
The said application was rejected by the Manager and the learned
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Single Judge has upheld the said contention and dismissed the
original petition and the Division Bench of this Court has
considered the appeal and held that Section 51 B of Chapter XIV A
KER is meant for giving employment to one of the dependants of
the deceased employee and not to one of his legal heirs. The Court
further held that though the appellant might have been a
dependant of the deceased employee in 1979, it cannot be said
that he was a dependant when he made the application in 1994,
after a lapse of 15 years and dismissed the appeal. In Manager,
Kottor A.U.P.School ‘s case cited (Supra) this Court has held
that the statutory scheme does not envisage a dependant as
always a dependant under the KER. The Scheme for
compassionate employment attained statutory recognition through
Rule 51B of Chapter XIV A KER and till 1999 there was no time
limit prescribed and later on the basis of the decision of this Court
in Sajeesh Babu v. State[1996 KHC 355] the Government came
up with the present Government Order dated 24.05.1999, in which
a time limit of two years from the date of death of the Government
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servant and three years after attaining majority in respect of
minor were fixed as the time limit for preferring application of
compassionate appointment. Taking into consideration the delay in
making an application, it was held that the delay in making the
application will dis-entitle the petitioner therein for getting
appointment under the Compassionate Appointment Scheme as
the said Scheme is meant to tide over the sudden financial crisis
that has fallen upon the dependant of the Government servant due
to his untimely death and the belated claims for such employment
should not be entertained. A similar view was taken by the Apex
Court in Umesh Kumar Nagpal’s and Lakshmi K.T”s cases
cited (Supra). In Sameena A.R. ‘s case cited (Supra) it was held
that when an application is preferred out of time, no right for
appointment is created. Later this Court in Naduvathur
U.P.School ‘s case cited (Supra) has held that an application
seeking compassionate appointment filed 14 years after an
incumbent became a major, the Manager cannot be compelled to
consider such belated claim, since the period prescribed for filing
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application is three years from attaining majority. Since the object
of compassionate appointment is to enable the family to overcome
financial crisis which it faces at the time of death of the sole
breadwinner, the compassionate appointment cannot be claimed
and offered after long lapse of time and after the crisis is over.
This Court in Deepak ‘s case cited (Supra) has also held that to
get the benefit under the dying in harness scheme, the date of
death and the date of application must have some proximity and
the claim of the dependant will not be kept open for ever on the
death of any employee. In Sivamurthy ‘s case cited (Supra) the
Apex Court considered the entitlement for appointment under the
Compassionate Appointment Scheme and held that the
compassionate appointment being an exception to the general rule
of appointment, it can only be claimed strictly in accordance with
the terms of the Scheme and not by seeking relaxation of the
terms of the Scheme. Similar view was taken in the case of
Shashi Kumar ‘s case cited (Supra). This Court in Shimuraj
K.P.‘s case cited(Supra) has held that once the right of
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compassionate appointment was exercised and left abandoned or
lost, for the fault of the candidate, it cannot be exercised again as
the said right is not a persisting right for ever.
14. In the light of the above facts and circumstances and the
law on the point, the 6th respondent cannot take on the application
submitted by his mother in 1996 to claim the benefit of Rule 51B
of Chapter XIV A KER. The application which is claimed to be filed
by the mother though not considered going by the contention of
the 6th respondent and admittedly two other persons were
appointed after the said application was filed, no challenge was
made by the mother of the 6th respondent. Later the brother of the
6th respondent applied, which was also rejected for not having
filed the said application within the time limit prescribed as per
the Government Order. Now the 6 th respondent has filed
application long after he has attained majority. In view of the
above facts and circumstances, I am of the view that the claim of
the 6th respondent for compassionate appointment cannot be
considered at this distance of time.
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In view of the above, the orders impugned in these writ
petitions are accordingly quashed and consequently there will be a
direction to the authority concerned, ie., the 4 th respondent in W.P.
(C)No.9268 of 2022 to approve the appointment of the petitioners
in both these writ petitions as Full Time Menial and as Clerk and
grant all consequential benefits including arrears of salary. A
decision in this regard shall be taken within an outer limit of three
months from the date of receipt of a copy of this judgment.
With the above said directions these writ petitions are
disposed of.
Sd/-
VIJU ABRAHAM
JUDGE
sm/
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APPENDIX OF WP(C) 7941/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER IN THE
NAME OF THE PETITIONER DATED 22.05.2019.
Exhibit P2 TRUE COPY OF THE COMMUNICATION DATED
21.11.2017 ISSUED BY 4TH RESPONDENT TO
6TH RESPONDENT.
Exhibit P3 TRUE COPY OF THE INTERIM ORDER IN WPC
NO.21734/2019 DATED 20.10.2020.
Exhibit P4 TRUE COPY OF THE JUDGMENT IN WPC
NO.21734/2019 DATED 15.01.2021.
Exhibit P5 TRUE COPY OF THE PROCEEDINGS
NO.B1/23111/2019 OF 3RD RESPONDENT DATED
19.03.2021.
Exhibit P6 TRUE COPY OF THE REVISION PETITION BEFORE
THE 2ND RESPONDENT DATED 27.03.2021.
Exhibit P7 TRUE COPY OF THE ORDER
NO.EC1/9279/2021/DGE DATED 23.02.2022
ISSUED BY 2ND RESPONDENT.
Exhibit P8 TRUE COPY OF THE APPLICATION SUBMITTED BY
6TH RESPONDENT DATED 18.12.2017.
Exhibit P9 TRUE COPY OF THE ORDER GOMS
NO.15/97/G.EDN. DATED 16.01.1997 PAGE
NO.1013 TO 1015.
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Exhibit P10 TRUE COPY OF THE JUDGMENT IN WA
NO.2178/2005 DATED 4.3.2009.
Exhibit P11 True copy of the information obtained
under the right to information act dated
1/4/2022
Exhibit P12 True copy of the information obtained
with covering letter and report
Exhibit P13 THE E-COURT STATUS SHOWS THE PERIOD OF
STAY GRANTED AS FOUR MONTHS
Exhibit P14 COPY OF INFORMATION OBTAINED FROM THE
OFFICE OF ASSISTANT EXECUTIVE ENGINEER
PWD, CIVIL STATION, ALAPPUZHA
RESPONDENT EXHIBITS
Exhibit R5(a) True copy of the information received by
the 5th respondent from District
Educational Officer Cherthala, dated
1/4/2022
Exhibit R5(b) True copy of the information given by the
Public Information Officer, District
Educational Officer Alappuzha dated
6/5/2022
Exhibit R5(c) True copy of the newspaper report dated
30/3/2022 published in Mathrubhoomi
Dailyis
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Exhibit R5(e) True copy of the reply given to the 6th
respondent by the 5th respondent dated
26/4/2022
Exhibit R5(d) true copy of the application dated
12/4/2022 submitted by the 6th respondent
before the 5th respondent along with
referred documents
Exhibit R6 (a) True copy of the rulings of this
Honourable Court in Manager, SNGS High
School v. Regi Sagar D.R. and others 2008
1 KHC 922
Exhibit R6(b) True copy of the rulings of this
Honourable Court in Unnikrishnan K.M. v.
Manager, C.A. High School, Peruvamba and
others 2010 1 KHC 285
Exhibit R6 (c) True copy of the rulings of this
Honourable Court in Soopy Haji K.K. v.
State of Kerala and others 2009 2 KHC 702
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APPENDIX OF WP(C) 9268/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER DATED
22.05.2019 ISSUED BY THE 5TH RESPONDENT
TO THE PETITIONER.
Exhibit P2 TRUE COPY OF THE ORDER NO. B6/12975/2019
DATED 21.12.2019 ISSUED BY THE 4TH
RESPONDENT.
Exhibit P3 TRUE COPY OF THE APPLICATION DATED
18.12.2017 SUBMITTED BY THE 6TH
RESPONDENT.
Exhibit P4 TRUE COPY OF THE ORDER DATED 12.4.2017 IN
H.R.M.P. NO. 10764/2016 OF THE HUMAN
RIGHTS COMMISSION.
Exhibit P5 TRUE COPY OF THE ORDER NO. B6/2679/2017
DATED 26.12.2017 ISSUED BY THE 4TH
RESPONDENT.
Exhibit P6 TRUE COPY OF THE ORDER DATED 21.6.2019 OF
THE 5TH RESPONDENT MANAGER.
Exhibit P7 TRUE COPY OF THE COMMUNICATION DATED
30.01.2019 OF THE 4TH RESPONDENT.
Exhibit P8 TRUE COPY OF THE COMMUNICATION DATED
6.7.2019 OF THE 4TH RESPONDENT.
Exhibit P9 TRUE COPY OF THE ORDER NO. B6-2769/19
DATED 1.11.2019 ISSUED BY THE 2ND
RESPONDENT.
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Exhibit P10 TRUE COPY OF THE JUDGMENT IN WPC NO.
21734/2019 DATED 15.1.2021 OF THIS HONBLE
COURT.
Exhibit P11 TRUE COPY OF THE APPEAL DATED NIL,
SUBMITTED BY THE PETITIONER BEFORE THE
3RD RESPONDENT.
Exhibit P12 TRUE COPY OF THE ORDER NO. BI/23111/2019
DATED 19.3.2021 ISSUED BY THE 3RD
RESPONDENT.
Exhibit P13 TRUE COPY OF THE ORDER NO. EC/9279/2021
IDGE DATED 23.2.2022 ISSUED BY THE 2ND
RESPONDENT.
Exhibit P14 TRUE COPY OF THE REVISION PETITION FILED
BY THE PETITIONER BEFORE THE GOVERNMENT
WITHOUT ANNEXURES.
Exhibit P15 TRUE COPY OF THE W.A. NO. 2178/2005 DATED
04.03.2009 OF THIS HONBLE COURT.
Exhibit P16 TRUE COPY OF THE ORDER G.O(RT)
NO.6031/2022/GEDN DATED 2010.2022 ISSUED
BY THE 1ST RESPONDENT.
RESPONDENT EXHIBITS
Exhibit R5(d) True copy of the application dated
12/4/2022 submitted by the 6th respondent
before the 5th respondent along with
refered documents
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Exhibit R5(b) True copy of the information given by the
Public Information Officer, District
Educational Officer Alappuzha dated
6/5/2022
Exhibit R5(a) True copy of the information received by
the 5th respondent from District
Educational Officer Cherthala, dated
1/4/2022
Exhibit R5(c) True copy of the newspaper report dated
30/3/2022 published in Mathrubhoomi Daily
Exhibit R5(e) True copy of the reply given to the 6th
respondent by the 5th respondent dated
26/4/2022