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2001 DIGILAW 691 (KER)

Secretary, K. S. E. B. v. Madhukumar

2001-11-27

K.BALAKRISHNAN NAIR, K.S.RADHAKRISHNAN

body2001
Judgment :- K. Balakrishnan Nair, J. The dispute that is to be resolved in this Appeal is the claim for appointment under dying-in-harness scheme of the dependant of a part time contingent employee who died at the age of 59. The brief facts necessary for the disposal of the case are the following: 2. Late Shri. P.K. Sankaran Nair was a part time sweeper under the Kerala State Electricity Board. He died in harness on 4.7.1995 at the age of 59. The dependant/writ petitioner filed Ext. PI application for appointment in the Board under the dying-in-harness scheme. According to the writ petitioner, Ext. P3 order issued by the Government is applicable to the Electricity Board and the same governed his right to get appointment. But the Electricity Board by Ext. P4 communication rejected his claim. The reason was that employee died after attaining the age of 55 and therefore, according to the Board, the applicant is ineligible. The aggrieved applicant filed O.P. No. 1042/99. It was resisted by the Board reiterating the stand taken by it in Ext. P4. The learned single judge who heard the Original Petition rejected the contention of the Board and quashed Ext. P4. The Board was directed to consider the application of the writ petitioner on merits ignoring the stipulation regarding the date of death of the employee. It was also ordered that if the writ petitioner is entitled to get employment otherwise, he must be given employment. 3. The respondents in the Original Petition feeling aggrieved, filed the present Appeal. Counsel for the appellants took us through Annexure A guidelines dated 29.4.1985 governing appointment under the dying-in-harness scheme. Reference was made to paragraph 4(5) which reads as follows: "A dependant of a part-time contingent Board employee shall be eligible for appointment under these regulations only if the death of such employee takes place before he attains the age of superannuation fixed for last grade employees under the Board." We were also taken through the amendment to the Regulations introduced by notification dated 1.4.1992 produced as Annexure B. In the new Regulations, paragraph 4(5) has been re-numbered as paragraph 4(6). But the rule regarding age limit remains unchanged. 4. From Ext. But the rule regarding age limit remains unchanged. 4. From Ext. P6 produced along with the reply affidavit of the writ petitioner it is seen that a part time contingent employee shall retire on the last day of the month in which he/she completes the age of 70 years. This position is not disputed by the appellants. Relying on the provision's contained in Annexures A and B, counsel for the appellants strenuously contended that since the father of the writ petitioner died after attaining the age of 55, his claim is liable to be rejected. The learned single judge found that such a provision is arbitrary. Since the relevant provisions in the Regulations are not challenged by the writ petitioner, it is not necessary for us to go into the validity or otherwise of the relevant Clause. But we are of the view that even in the face of Cl. 4(5) in Annexure A (Clause 4(6) in Annexure B) the writ petitioner is eligible to get employment. The stipulation therein is that the employee should the before the age of superannuation of a last grade employee. Going by R.60 of Part I of the Kerala Service Rules, the date of retirement of a last grade employee can be 55 or 60 depending upon the date of entry of the concerned employee. If the Board wanted to enforce the age limit of 55, it was sufficient to say that the dependents of employees who died after the age of superannuation of the Class III employees will not be eligible for appointment under the dying-in-harness scheme. Their age of retirement is governed by R.60(a) which says that an employee will retire on the last day of the month in which he attains the age of 55 years. Annexure A was issued on 29.4.1985. At that time, most of the last grade employees retiring from service must have entered service before 7.4.1970 and therefore were retiring at the age of 60. Therefore, the fact that the age of retirement of most of the last grade employees at the relevant time was 60 years must have been noticed by the framers of the Regulations. So, even going by the Regulations, if a part time contingent employee dies before attaining the age of 60, his dependents will be eligible for appointment under the dying-in-harness scheme. 5. So, even going by the Regulations, if a part time contingent employee dies before attaining the age of 60, his dependents will be eligible for appointment under the dying-in-harness scheme. 5. Therefore, though for different reasons, we affirm the directions issued by the learned single Judge. The application of the writ petitioner for appointment under the dying-in-harness scheme shall be considered on merit and he shall be appointed if he is otherwise eligible. This shall be done within a period of two months from the date of receipt of a copy of this judgment. The Writ Appeal is dismissed. No costs.