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2002 DIGILAW 419 (KER)

The Corporate Manager v. E. Jayanarayanan

2002-07-02

CYRIAC JOSEPH, K.THANKAPPAN

body2002
Judgment :- Cyriac Joseph, J. 1. This appeal is against the judgment dated 28.2.2002 in O.P.No.32270/2000. The first respondent in the Original Petition is the appellant herein. 2. The mother of the petitioner in the Original Petition was a U.P.S.A. in St. Mary’s High School, Chengaloor under the management of the first respondent. She died in harness on 29.9.1981 after an approved service of about 20 years. The petitioner’s father was an ex-serviceman and he expired in 1987. The petitioner submitted Ext.P1 representation dated 6.11.1998 to the first respondent requesting for employment assistance as per G.O.(P)No.7/95/P & ARD dated 30.3.1995. In Ext.P1 the petitioner stated that he was aged 34 years and had passed SSLC Examination in September 1980. It was also stated in Ext.P1 that application in the prescribed form with all necessary enclosures would be submitted in due course. Since the petitioner did not get any reply from the first respondent for a long time, he submitted Ext.P2 representation dated 6.1.2000 to the third respondent Deputy Director of Education, Thrissur. In Ext.P2 the petitioner stated that the Manager had not given any reply to his representation dated 6.11.1998 and that several persons were appointed by the Manger as non-teaching staff after the petitioner had submitted the representation. In Ext.P2 the petitioner enquired with the third respondent whether he would get any help from the government in the matter. In response to Ext.P2 representation the third respondent Deputy Director sent Ext.P3 communication dated 15.4.2000 to the petitioner. In Ext.P3 the third respondent stated that the Manger had informed him through the District Educational Officer, Irinjalakkuda that the Manger would not have any objection to appoint the petitioner in the next vacancy of non-teaching staff. The third respondent advised the petitioner to get in touch with the Manager as and when vacancy arose. Thereafter, the petitioner submitted Ext.P4 representation dated 7.6.2000 to the second respondent Director of Public Instruction, Thiruvananthapuram. In Ext.P4 the petitioner requested the second respondent to take all necessary steps for appointing the petitioner in the non-teaching cadre under the first respondent. On receipt of Ext.P4 representation the second respondent sent Ext.P5 communication to the first respondent inviting his attention to the petitioner’s representation dated 6.11.1998 and directing him to settle the claim of the petitioner as per Rule 51-B of Chapter XIV-A KER and to report the fact to the second respondent. On receipt of Ext.P4 representation the second respondent sent Ext.P5 communication to the first respondent inviting his attention to the petitioner’s representation dated 6.11.1998 and directing him to settle the claim of the petitioner as per Rule 51-B of Chapter XIV-A KER and to report the fact to the second respondent. Still the first respondent did not give any appointment to the petitioner and hence he filed the Original Petition praying for a direction to the first respondent to appoint the petitioner in any of the schools under the management of the first respondent as Clerk or Peon or F.T.Menial. There was also a prayer for directing the first respondent to comply with the directions in Ext.P5. The petitioner also prayed for a direction to the third respondent to take action against the first respondent under Rule 7 of Chapter XIV-A KER. 3. In the counter affidavit filed by the first respondent it is admitted that the petitioner’s mother was a U.P.S.A. in St. Mary’s High School, Chengaloor and that she died while in service on 29.9.1981. It is also admitted that the petitioner submitted Ext.P1 representation dated 6.11.1998 to the first respondent requesting for employment assistance under the dying in harness scheme. However, it is pointed out that in Ext.P1 representation itself the petitioner had stated that the application in the prescribed form with all necessary enclosures would be submitted in due course but no such application in the prescribed form was submitted at any time. According to the first respondent (appellant herein) the petitioner is sufficiently rich and he is not eligible for consideration under the dying in harness scheme. Details have been furnished in the counter affidavit. It is also stated that the petitioner is married and he has a child aged 3 years and that the petitioner’s wife had worked as a Teacher in a leave vacancy in A.L.P. School, Chengaloor. According to the first respondent, dying in harness scheme was introduced with the object of helping the parties concerned to tide over the sudden financial crisis caused by the death of the breadwinner. As the petitioner’s mother had died on 29.9.1981 and Ext.P1 representation was given only on 6.11.1998, the petitioner is not eligible for employment assistance under the dying in harness scheme. As the petitioner’s mother had died on 29.9.1981 and Ext.P1 representation was given only on 6.11.1998, the petitioner is not eligible for employment assistance under the dying in harness scheme. It is also contended that since Ext.P1 representation dated 6.11.1998 is not in the prescribed form, there was no proper application from the petitioner to be acted upon by the first respondent. It is further contended that the petitioner had no financial crisis consequent to the death of his mother. According to the first respondent, the petitioner was and he continues to be financially sound. It is also mentioned that against Ext.P5 order of the second respondent the first respondent filed an appeal dated 24.10.2000 before the Government and that the appeal is even now pending before the Government. In the supplementary counter affidavit filed by the first respondent, he has reiterated the contention that since the petitioner had not made an application in the prescribed form which is mandatory as per Clause 19 of the Government Order dated 30.3.1995, the Manager was not bound to respond to his request. According to the first respondent, an application at all. It is also pointed out that employment assistance scheme was made applicable to the aided schools from 16.1.1997 but the petitioner, for the first time, submitted his application only on 6.11.1998, i.e. more than one year and 9 months after the scheme was made applicable. 4. In the impugned judgment the learned Single Judge has declared that the petitioner is entitled to get appointment in the first respondent’s school under the dying in harness scheme if he is otherwise qualified. The learned Single Judge directed the first respondent to accommodate the petitioner notionally in one of the vacancies of non-teaching staff that arose after he submitted the application for appointment under the dying in harness scheme. Respondents 2 to 5 were directed to ensure that the direction of the court is implemented by the Manger. The learned Single Judge directed the first respondent to accommodate the petitioner notionally in one of the vacancies of non-teaching staff that arose after he submitted the application for appointment under the dying in harness scheme. Respondents 2 to 5 were directed to ensure that the direction of the court is implemented by the Manger. Even though the Manager/first respondent relied on a decision of this court in Sreeja v. Chief Postmaster General (2001(1) KLT 3567) and the decisions of the Supreme Court in Mohamead Kavi Mohamad Amin v. Fatmabai Ibrahim ((1997) 6 SCC 71), State of U.P. & others v. Paras Nath ((1998) 2 SCC 412) and Director of Education (Secondary) & another v. Pushpendra Kumar & others ((1998) 5 SCC 192) and contended that the object of the scheme is to give immediate relief to the members of the family of the deceased employee and that it is not meant as a method of recruitment and that stale applications should not be entertained, the learned Single Judge chose to follow the decisions of this court in Sajeev Babu v. State (1996 (2) KLT 542) and Narayanan v. State of Kerala (1998 (2) KLT 446) on the ground that they are decisions directly concerning the interpretation of Rule 51-B of chapter XIV-A KER. According to the learned Single Judge, the decisions relied on by the first respondent relate to appointment to the public services under the dying in harness scheme. Aggrieved by the judgment of the learned Single Judge the Manager (first respondent in the Original Petition) has filed this appeal. 5. The claim of the petitioner in the Original Petition is based on Rule 51-B of Chapter XIV A, KER which is extracted hereunder: “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.” At the time of submitting Ext.P1 application, the government Order in force relating to employment assistance to the dependents of Government servants dying in harness was G.O.(P) No.7/95/6 & ARD dated 30.3.1995. Later, Government issued G.O.(P)No.12/99/P & ARD date 24.5.1999 in supersession of the earlier orders. 6. Later, Government issued G.O.(P)No.12/99/P & ARD date 24.5.1999 in supersession of the earlier orders. 6. The first question that arises for consideration is whether the claim of the first respondent was liable to be considered in the light of the provisions contained in G.O.(P)No.7/95/P & ARD dated 30.3.1995 or G.O.(P)No.12/99/P & ARD dated 24.5.1999. Admittedly the only demand made by the first respondent to the appellant for employment assistance is through Ext.P1 representation dated 6.11.1998. However, Ext.P1 cannot be considered as a proper application as contemplated under G.O.(P)No.7/95/P & ARD dated 30.3.1995 in as much as the application was not in the prescribed form. Even though the first respondent stated in Ext.P1 that application in the prescribed form with all necessary enclosures would be submitted in due course, admittedly no such application in the prescribed form was submitted at any time. Thus, during the period when G.O.(P)No.7/95/P & ARD dated 30.3.1995 was in force, there was no proper application for employment assistance from the first respondent to the appellant. Therefore, the first respondent’s claim for employment assistance was not liable to be considered by the Manager in the light of the provisions contained in G.O.(P)No.7/95/P & ARD dated 30.3.1995. Assuming that the first respondent had raised his claim for employment assistance through Ext.P2 complaint to the Deputy Director of Education, it was submitted only on 6.1.2000. Ext.P2 also was not in the prescribed form and Ext.P2 was not accompanied by any application in the prescribed form. In Ext.P2 the first respondent was only referring to his application dated 6.11.1998 submitted to the appellant. In Ext.P4 representation submitted to the Director of Public Instruction also, the first respondent was referring to his application dated 6.11.1998 and no application in the prescribed form accompanied Ext.P4. 7. The next question to be considered is whether the first respondent’s request for employment assistance under the dying in harness scheme was liable to be granted in the light of the Government Order dated 24.5.1999. As per clause 19 of the said Government Order, the time limit for preferring applications under the scheme will be two years from the date of death of the Government servant. However, in the case of minors, the period will be within three years after attaining majority. Admittedly the first respondent did not submit the application within two years from the date of death of his mother. However, in the case of minors, the period will be within three years after attaining majority. Admittedly the first respondent did not submit the application within two years from the date of death of his mother. Even if it is considered that the first respondent was only 17 years of age when his mother died, he did not raise his claim in the prescribed form within three years after attaining majority. Hence, in the light of the provisions contained in Government Order dated 24.5.1999, the first respondent’s claim for employment assistance under the dying in harness scheme cannot be considered. By prescribing a time limit for preferring application as per Government. Order dated 24.5.1999 the Government have only followed and accepted the principles stated by this court in Sreeja v. Chief Postmaster General (2001 (1) KLT 356) and the decisions of the Supreme Court cited supra. Therefore, the denial of employment assistance to the first respondent on the ground that the application was highly belated, cannot be said to be arbitrary or unjust. We may also observe that the reasoning of the learned Single Judge in the impugned Judgment is not correct. The learned Single Judge has observed that initial appointments in aided schools are always made by pick and choose by the Manager from the open market from among persons having the qualifications and that there is no notification or selection of the candidates on the basis of merit and so if an appointment is denied to an applicant under the dying in harness scheme, the said vacancy will not come to other meritorious candidates and on the contrary, it will be filled up by the person chosen by the Manager. The learned Single Judge has further stated that the principles laid down in the decisions relied on by the respondents cannot have any application to appointments in a private school. We do not agree. The principles stated by the Supreme Court in the above mentioned decisions are equally applicable to appointment under the dying in harness scheme in aided schools as well. Even in the case of appointment under the dying in harness scheme or under Rule 51B of Chapter XIV-A KER there is no scope for considering the merit of a candidate. The principles stated by the Supreme Court in the above mentioned decisions are equally applicable to appointment under the dying in harness scheme in aided schools as well. Even in the case of appointment under the dying in harness scheme or under Rule 51B of Chapter XIV-A KER there is no scope for considering the merit of a candidate. Therefore, better credit cannot be given to the appointment of a person in an aided school under Rule 51-B of Chapter IX-A KER compared to the normal appointment of a person under the provisions of the KER. 8. In the light of the discussion above, the Writ Appeal is allowed and the impugned judgment is set aside. O.P.No.32270 of 2000 is dismissed. No costs.