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2004 DIGILAW 426 (KER)

Sukumaran Nair v. State of Kerala

2004-09-08

A.K.BASHEER, N.K.SODHI

body2004
Judgment :- N.K. Sodhi, C.J. A.V.P. School, Pilachikara (for short 'the School'), Post Office Balal, District Kasaragodis an Aided School receiving grant in aid from the State Government. Respondent No.5 is its Manager. One P. Narayanan Nair was a Peon in the School. He proceeded on leave with effect from 19th May, 1993 preparatory to retirement and the Manager appointed the appellant before us as a Peon in that vacancy. He was appointed on 19th May, 1993. The Manager of the School approached the Assistant Educational Officer seeking approval of the appointment. The application was rejected and the approval declined on the ground that the Manager, while appointing the appellant, had overruled the claim of the 6th respondent who was a claimant under R.51B of Chapter XIV A of the Kerala Education Rules (hereinafter called 'the Rules'). R.51B which was introduced with effect from 30th March, 1990 reads as under: "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." It may be mentioned that the father of respondent No.6 had been working as a teacher. in the School and he died-in-harness on 7th April, 1989. It has been found by the authorities below that the 6th respondent approached 'the Manager through a representation seeking appointment against the leave vacancy caused on 19th May, 1993 when P. Narayanan Nair proceeded on leave preparatory to retirement. This representation was received from the 6th respondent on 8th May 1993, i.e. after more than four years after the death of his father. Since the application for approval was declined by the Assistant Educational Officer, the Manager filed all appeal before the District Educational Officer, Kasaragod who dismissed the same on the same ground. He also observed that since the 6th respondent was a 51B claimant and his claim having been ignored by the Manager, the appointment of the appellant against the leave vacancy could not be approved. Still not satisfied, the Manager filed a Revision Petition before the Director of Public Instructions, Thiruvananthapuram. The Revision Petition was also dismissed and the matter was taken in further revision to the State Government. Still not satisfied, the Manager filed a Revision Petition before the Director of Public Instructions, Thiruvananthapuram. The Revision Petition was also dismissed and the matter was taken in further revision to the State Government. The Additional Secretary in the Department of General Education considered the matter and he too was of the view that the 6th respondent was a R.51B claimant and his claim had been ignored by the Manager while appointing the appellant against the leave vacancy. The Revision Petition was accordingly rejected. It was then that the appellant challenged all the orders of the authorities below by filing O.P. No.5932 of 2000 in this Court out of which the present appeal has arisen. The learned Single Judge also took the same view and held that the 6th respondent was a R.51B claimant and he had to be given preference in the matter of appointment to the post of Peon and that the authorities below were right in not granting approval to the appointment of the appellant. The Writ Petition was accordingly dismissed. Hence, this Writ Appeal. 2. We have heard the learned Counsel for the parties and perused the orders of the authorities below and also the Judgment of the learned Single Judge which is under appeal. The claim for appointment on compassionate grounds on the death of an employee in harness was introduced by the State Government by amending the Rules with effect from 30th March, 1990. R.51B as reproduced above was introduced which provides that the Manager shall give employment to a dependent of an aided school employee dying-in-harness. The Rule further provides that all 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. It is true that the Rule does not prescribe any time-limit within which the claimant has to apply for seeking compassionate appointment but by subsequent Government Orders issued by the State Government, a time-limit has been prescribed which is two years from the date of death or three years from the date of attaining majority by the claimant if he/she was a minor on the death of the employee. The Government Order dated 10th of April, 1992 makes such a provision. It also provides that the claim for compassionate appointment would not be applicable to the employees of aided schools and private colleges. The Government Order dated 10th of April, 1992 makes such a provision. It also provides that the claim for compassionate appointment would not be applicable to the employees of aided schools and private colleges. This clause in the Government Order cannot be relied upon in the light of the statutory provision contained in R.51B itself which provides that all Government Orders applicable to the Government employees regarding appointment under the dying-in-­harness" scheme would be applicable mutatis mutandis. Therefore, we are of the view that the Government Order dated 10th of April, 1992 prescribing the time-limit would apply. According to Cl.21 of this Government Order, an eligible dependent has to apply for appointment within two years from the date of death of the employee. In the present case, the father of respondent No.6 expired on 7th April, 1989 and as found by the authorities below, the 6th respondent approached the Manager of the School for a compassionate appointment only on 8th May, 1993, i.e. after a lapse of more than four years. Therefore, in terms of R.51B read with the Government Orders, the claim of the 6th respondent could not be entertained and, therefore, we are of the view that the respondents were not justified in declining approval to the appointment of the appellant as a Peon against the leave vacancy. 3. Moreover, the Apex Court in Director of Education (Secondary) y. Pushbendra Kulmar (1998) 5 SCC 192), had observed that the underlying object for the grand of compassionate employment under the dying-in-harness scheme is to enable the family of the deceased employee to tide over the sudden crisis resulting due to the death of the bread earner which had left the family without any means of livelihood. It is out of pure humanitarian considerations that such appointments are made and even though they are put in the form of a statutory Rule, the objective of such appointment nevertheless remains the same. Such appointments, as observed by the Apex Court, are an exception to the general rule because every appointment has to be made after following certain procedure. But, when compassionate appointment is made, no such procedure is followed. Such appointments, as observed by the Apex Court, are an exception to the general rule because every appointment has to be made after following certain procedure. But, when compassionate appointment is made, no such procedure is followed. Considering the aforesaid Judgment of the Supreme Court, a Division Bench of this Court in Deepak v. Secretary, General Education Department (2002 (3) KLT 288) had observed that there must be some proximity between the date of death as well as the date of application. The observations in this regard are reproduced hereunder. "We are of the view if an application is made for compassionate appointment, there must be some proximity between the date of death as well as the date of application. The object of compassionate appointment, as the Apex Court observed, is to tide over the sudden financial crisis resulting due to the death of the bread earner. It is not as if on the death of an employee, claim of the dependant is kept open for ever. Once a dependant is not always a dependant. There cannot be reservation of vacancy till such time the applicant becomes major or till such time the applicant acquires qualification. We may indicate provision like R.51B and other Government Orders pertaining to compassionate appointment are all made on humanitarian consideration. It is always in the nature of an exception to the general provision: Exception cannot always occupy the place of the main provision and thereby nullify or dilute the efficacy of the main provision by denuding the right conferred by the main provision to persons otherwise eligible." This judgment was followed by another Division Bench in The Manager v. K.P. Remesh (2002 (2) KLJ 806). We are in respectful agreement with the observations made by the learned Judges in the two Division Bench judgments. 4. In the case before us, the father of the 6th respondent expired on 7th April, 1989 and the 6th respondent applied for a compassionate appointment only on 8th May, 1993. The application was belated and there was no proximity between the date of death and the date of application. The gap of more than four years was sufficient to disentitle the 6th respondent to claim such an appointment. 5. The application was belated and there was no proximity between the date of death and the date of application. The gap of more than four years was sufficient to disentitle the 6th respondent to claim such an appointment. 5. In the result, it has to be held that respondents 1 to 4 were not justified in declining approval to the appointment of the appellant as a Peon against the leave vacancy. In this view of the matter, the orders impugned dated 15th July, 1993, 6th December, 1993, 15th July, 1994 and 5th January, 2000 (Exts.P1, P3, P4 and P5 respectively) cannot be sustained and for the same reason, the judgment of the learned Single Judge too cannot be upheld. 6. For the reasons recorded above, the Writ Appeal is allowed, the judgment of the learned Single Judge set aside and the orders Exts.P1, P3, P4 and P5 quashed and a direction is issued to respondents 1 to 4 to grant approval to the appointment of the appellant as Peon in the School against the leave vacancy caused with effect from 19th May, 1993. Learned Counsel appearing for the appellant has made a grievance that his client has not been paid any salary so far. We make it clear that in case he has been working on the post, he shall be paid his salary d all other benefits in accordance with the rules. No costs.