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2004 DIGILAW 23 (KER)

The Manager Aided U P School v. T N Mahesh

2004-01-20

K.K.DENESAN, N.K.SODHI

body2004
JUDGMENT N.K. Sodhi, J. 1. This Writ Appeal is directed against the order dated September 30, 2003 passed by a learned single Judge disposing of O. P. No. 11444 of 1995 with a direction to the appellants to consider the claim of the first respondent for grant of compassionate appointment. 2. T. P. Narayanan had been working as a peon in the Aided Upper Primary School, Guruvayoor (for short 'the School'). He died on 951995 in harness leaving behind him a widow, two daughters and a son who is the first respondent in this Appeal. The deceased was the only earning member of the family. The first respondent has studied up to metric and has passed the S.S.L.C. examination. On the death of Narayanan his widow filed an application on 30th May, 1995 with the Manager of the School requesting him to appoint her son (the first respondent herein) on compassionate grounds. The first respondent also applied to the manager for appointment. The application was rejected by the manager on 861995 and the first respondent was informed as under: "Your request for appointment as Peon in the School under the scheme for compassionate employment of dependants of Government servants who die in harness cannot be considered since the scheme is not applicable to the aided schools and private colleges as per the existing Govt. orders relating to the subject. Your application for appointment is therefore rejected." 3. The 1st respondent then made a representation on 171995 bringing to the notice of the manager the provisions of R.9A in Chap.24A of the Kerala Education R.1959 (hereinafter referred to as the Rules) and requested him to appoint him on compassionate grounds. Since no reply was sent by the manager the first respondent represented to the Assistant Educational Officer, Chavakkad who sent a reply informing him that the manager was the competent authority in the case of aided schools and that he (first respondent) should contact him. It was then that the respondent filed O. P. No. 11444 of 1995 in this Court. The learned single Judge, after referring to the provisions of R.9A of the Rules quashed the communication dated 571995 and directed the Manager to consider the matter in the light of the statutory provisions and pass an appropriate order in accordance with law within three months from the date of receipt of a copy of the judgment. The learned single Judge, after referring to the provisions of R.9A of the Rules quashed the communication dated 571995 and directed the Manager to consider the matter in the light of the statutory provisions and pass an appropriate order in accordance with law within three months from the date of receipt of a copy of the judgment. Feeling aggrieved by the order of the learned single Judge, the manager and another have filed this Appeal under S.5 of the Kerala High Court Act. 4. We have heard the learned counsel for the parties. R.9A of the Rules which was introduced on 30th March, 1990 reads as under: "9A. The manager shall give employment to a dependent of the non teaching staff of an aided school 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." A reading of the aforesaid Rule would show that by using the word "shall" the intention of the Government has been made clear and that the Rule is mandatory leaving no option with the manager but to appoint a dependent of a non teaching staff of an aided school who dies in harness provided, of course, the applicant is qualified to be appointed on the basis of the norms laid down by the Government. It is not the case of the appellants that the first respondent was not eligible for the post of peon. What is stated on behalf of the manager is that operation of R.9A had been stayed by the State Government by its order dated 851992 and therefore the claim of the first respondent could not be entertained by him. 5. The question which arises for consideration is whether the State Government could by an executive order stay the operation of a Rule, which had been notified on 30th March, 1990. The answer to this question has to be in the negative. The Rule has been framed by the State Government in exercise of the powers conferred by S.36 of the Kerala Education Act 1958 and therefore it has the force of a statute. Such a provision could not have been stayed by the State Government by an administrative order. The answer to this question has to be in the negative. The Rule has been framed by the State Government in exercise of the powers conferred by S.36 of the Kerala Education Act 1958 and therefore it has the force of a statute. Such a provision could not have been stayed by the State Government by an administrative order. The Rule was in operation notwithstanding the administrative order of the State Government and therefore the manager was bound to give employment to the first respondent, who was the dependant of a non teaching staff of the school who died in harness. It is common case of the parties that the State Government has since withdrawn its order dated 851992. It is contended on behalf of the appellants that the vacancy which arose on the death of Narayanan was filled up by appointing the second appellant in May 1995 which appointment was approved by the competent authority and that he is drawing full salary since 1261995. it is also urged on behalf of the manager that there is no vacancy in the school and therefore the claim of the first respondent cannot be considered at this belated stage. We are unable to accept the contention of the manager. The first respondent made an application for appointment on compassionate grounds to the manager soon after the death of his father and there was no delay on his part. It was the manager who rejected the claim on grounds wholly untenable as he was of the view that the operation of the Rule had been stayed by the State Government. It is true that the second appellant was appointed and is continuing on the post since the year 1995, but this does not mean that the claim of the first respondent under R.9A can be ignored. Since the second appellant has been working on the post since June 1995 it would not be fair and equitable to remove him from service and appoint the first respondent in his place. Therefore, in the peculiar facts and circumstances of this case, we direct the first appellant and the second respondent to appoint the first respondent as a peon in the school by creating a supernumerary post because his claim has been rejected for no fault of his and that he was entitled to an appointment under R.9A of the Rules. Therefore, in the peculiar facts and circumstances of this case, we direct the first appellant and the second respondent to appoint the first respondent as a peon in the school by creating a supernumerary post because his claim has been rejected for no fault of his and that he was entitled to an appointment under R.9A of the Rules. In similar circumstances their Lordships of the Supreme Court in Sushma Gosain v. Union of India, AIR 1989 SC 1976 issued an identical direction for the creation of a supernumerary post. The relevant observations in this regard read as under: "Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant. (emphasis supplied) In the result, the Writ appeal fails and the same stands dismissed. The manager will now implement the direction within two months from the date of receipt of a copy of this order. There is no order as to costs.