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2020 DIGILAW 327 (KER)

Indira Cheriya Kadavan v. V. M. Gangadharan

2020-03-16

A.M.SHAFFIQUE, GOPINATH P.

body2020
JUDGMENT : Gopinath, J. These appeals arise out of the common judgment in W.P.(C)Nos.19851/2014 and 18994/2016. W.A.No.1766/2019 arises out of the judgment in W.P.(C)No.19851/2014 and is taken as the lead matter. The Exhibits referred to in this judgment will be as they appear in W.P. (C)No.19851/2014. The parties are referred to as they appear in the cause title in W.A 1766/2019. The brief facts, which are required to be noticed are the following:- 2. The father of the appellant, late A.P. Krishnan died on 22.7.1982 while working as teacher in an aided school managed by the 1st respondent. According to the appellant, she was a minor at that time and attained majority on 29.5.1986. The appellant got her B.Sc Degree in 1990 and B.Ed Degree in 1992. Admittedly, there were no Rules providing for employment of dependants of aided school teachers who die in harness at the time when Late A.P Krishnan passed away. Rule 51B of Chapter XIVA of the Kerala Education Rules was introduced only on 30.3.1990. Rule 51B of Chapter XIVA reads as follows:- “51B. The Manager shall give employment to a dependant of an aided school teacher dying in harness. Government orders relating to employment assistance to the dependants of Government servants dying in harness shall mutatis mutandis, apply in the matter of such appointments.” It must be noticed straightaway that a few days after the aforesaid Rule was introduced, owing to objections from aided school managements, the operation of the said Rule was suspended by the Government till 16.1.1997. 3. The appellant asserts that she had submitted an application seeking appointment in terms of the aforesaid Rule 51B, in the year 1992. However, apart from the assertion of the appellant, there are no documents to prove this fact. The 1st respondent (Manager) denies the existence of such application. However it is seen that on 21.6.1993, the appellant had issued another letter by registered post requesting the Manager of the School to consider her claim for appointment under Rule 51B. However, that letter is stated to have been returned with the endorsement that the Manager had expired. The 1st respondent (Manager) denies the existence of such application. However it is seen that on 21.6.1993, the appellant had issued another letter by registered post requesting the Manager of the School to consider her claim for appointment under Rule 51B. However, that letter is stated to have been returned with the endorsement that the Manager had expired. We must also notice that the cover itself was marked in the following manner :- “Application for the post of P.D Teacher as Dependant (Died in Harness)” The letter along with the postal cover are produced along with the Counter Affidavit dated 4.11.2015 filed by the present appellant in W.P(C) 19851 of 2014 as Exts R5(a) and R5(b). Though a copy of this Counter Affidavit is not annexed to the Memorandum of Writ Appeal, we have been provided with a copy during the course of hearing. The Counter Affidavit is a part of the Judge's papers in W.P(C) 19851 of 2014 and we have perused the same. This act of the Manager, in returning the letter with the endorsement 'expired' was, according to the appellant, done with the malafide intention to deny to the appellant her claim for employment. We notice that one Pushpaja was appointed as an Upper Primary School Assistant (UPSA) by the Manager on 23.6.1993 ignoring the appellant's request under Rule 51B. However, as the provisions of Rule 51B was not operational on account of stay of its operation having been issued by the Government, the appellant could not pursue her case for appointment against the vacancy filled up on 23.6.1993. The stay of operation of Rule 51B was vacated only vide G.O (Ms.)No.15/97/G.Edn dated 16.1.1997. The appellant submitted yet another application on 15.7.1999 (Ext.R5(c) produced along with the Counter Affidavit dated 4.11.2015 in W.P. (c)No.14851/2014) claiming appointment in terms of Rule 51B. The said claim appears to have generated the communication dated 24.3.2000 from the Office of the Director of Public Instructions directing the Manager to appoint the appellant, as and when a suitable vacancy arises, considering her qualifications (Ext.P.8). The appellant also filed O.P.No.2994/2003 before this Hon'ble Court seeking a direction for implementation of the direction contained in Ext.P8. The said claim appears to have generated the communication dated 24.3.2000 from the Office of the Director of Public Instructions directing the Manager to appoint the appellant, as and when a suitable vacancy arises, considering her qualifications (Ext.P.8). The appellant also filed O.P.No.2994/2003 before this Hon'ble Court seeking a direction for implementation of the direction contained in Ext.P8. That writ petition was disposed of by judgment dated 25.10.2006 directing that the appellant (petitioner in that writ petition) may approach the 4th respondent therein (The Director of Public Instructions), who shall take action in accordance with law to ensure the compliance with the instructions contained in Ext.P8. Though the Manager states that he filed a revision petition before the Government of Kerala challenging the directions contained in Ext.P8, it does not appear that any order has been passed thereon. 4. The Manager however issued an appointment order dated 1.6.2005 to the 2nd respondent, who is none other than his daughter. This appointment was not approved by the Assistant Educational Officer through proceedings marked as Ext.P2 in the writ petition, not on the ground that the appellant had a claim under Rule 51B, but on ground that the 2nd respondent does not have the requisite qualification. Ext.P2 was affirmed, in appeal before the District Educational Officer (Ext.P.3). The Manager, thereafter, filed a revision petition before the Director of Public Instructions, who held vide Ext.P5 order dated 13.8.2008 that while there may be no objection in the appointment of a B.Ed. Degree holder as Upper Primary School Assistant (UPSA), the claim of the appellant under Rule 51B had not been considered by the Manager while making the appointment of the 2nd respondent with effect from 1.6.2005. The Director of Public Instructions, therefore, rejected the appeal filed by the Manager requesting for approval of appointment of the 2nd respondent and instead directed that the appellant shall be appointed to that vacancy recognizing her claim under Rule 51B. The Manager approached the Government challenging the order of the Director of Public Instructions through a revision petition. This revision petition filed before the Government was disposed of by Ext.P11 order dated 27.2.2009 upholding the orders issued by the Director of Public Instructions (Order dated 13.8.2008) and rejecting the revision filed by the Manager. The Manager filed W.P.(C)No.14441/2009 before this Court challenging the aforesaid Exts.P2, P3, P5 and P11. This revision petition filed before the Government was disposed of by Ext.P11 order dated 27.2.2009 upholding the orders issued by the Director of Public Instructions (Order dated 13.8.2008) and rejecting the revision filed by the Manager. The Manager filed W.P.(C)No.14441/2009 before this Court challenging the aforesaid Exts.P2, P3, P5 and P11. That Writ Petition was disposed of by Ext.P15 judgment dated 31.10.2013 directing the Director of Public Instructions (the 2nd respondent therein) to consider the matter after hearing the Manager, the 2nd respondent herein and the present appellant, after specifically finding that it is necessary to have a clear picture regarding the date on which the appellant had preferred her claim for appointment under Rule 51B. Pursuant to the directions contained in Ext.P15 judgment, the Director of Public Instructions had issued Ext.P16 order dated 2.6.2014 directing the cancellation of the appointment of the 2nd respondent and the appointment of the appellant in that vacancy in terms of Rule 51B. This order of the Director of Public Instructions was challenged by the Manager, by filing a revision petition before the Government, which culminated in Ext.P18 order upholding the direction to give appointment to the appellant under Rule 51B with effect from 1.6.2005. It was further directed that proceedings to be initiated against the Manager to disqualify him under Rule 7 of Chapter III of the Kerala Education Rules for refusing to comply with the repeated instructions of the Educational Officers regarding the appointment of the appellant in the vacancy that arose on 1.6.2005. The Director of Public Instructions had issued Ext.P19 proposing to initiate proceedings for disqualification of the Manager as directed in Ext.P18 order of the Government of Kerala. It is thus challenging Exts.P2, P3, P5, P11, P16, P18 and P19 orders that W.P. (C)No.19851/2014 was filed (Exts P.18 and P.19 orders were issued when the Writ Petition was pending and were challenged after seeking amendment of the Writ Petition). 5. The learned Single Judge considered W.P.(C)No.19851/2014 together with W.P.(C)No.18994/2016, which is the writ petition filed by one E. Jayachandran whose appointment as Lower Primary School Assistant (LPSA) with effect from 31.7.2013 was rejected by the authorities citing the reason of non-appointment of the appellant herein under Rule 51B. 5. The learned Single Judge considered W.P.(C)No.19851/2014 together with W.P.(C)No.18994/2016, which is the writ petition filed by one E. Jayachandran whose appointment as Lower Primary School Assistant (LPSA) with effect from 31.7.2013 was rejected by the authorities citing the reason of non-appointment of the appellant herein under Rule 51B. We need not, for the purpose of this judgment, note in any further detail, the contentions of the petitioner in W.P.(C)No.18994/2016, in view of the manner in which we propose to dispose of W.A.No.1766/2019 arising out of the judgment in W.P.(C)No.19851/2014. The learned Single Judge allowed W.P.(C)No.19851/2014 and W.P.(C)No.18994/2016 principally on the ground that there was delay on the part of the appellant in claiming compassionate appointment and therefore, in term of the law laid down in Sreejith.L v. Deputy Director (Education), Kerala and others [ 2012(3) KLT 214 (SC)], the appellant was not entitled to claim compassionate appointment after the time prescribed in the Government Orders relating to compassionate appointment. The learned Single Judge, therefore, allowed the writ petition by setting aside the direction issued by the authorities and directed that the claim of the 2 nd respondent as well as the claim of the petitioner in W.P.(C)No.18994/2019 shall be taken up for approval with effect from 1.6.2005 and 31.7.2013 respectively. 6. The learned counsel for the appellant would contend that there is absolutely no delay on the part of the appellant in claiming compassionate appointment under Rule 51B. According to him, the appellant became a major only on 29.5.1986 and points out that the Rule providing for compassionate appointment (Rule 51B) was introduced only on 30.3.1990. According to him, the appellant had originally submitted a claim for compassionate appointment in 1992. This was followed up by a registered letter dated 21.6.1993, which is, however, returned with the endorsement 'expired’. Thereafter, according to the learned counsel, the appellant was disabled from either pursuing or filing any other application for appointment in terms of Rule 51B on account of the fact that the provisions of Rule 51B were apparently not in operation till 16.1.1997. In response, the learned counsel for respondents 1 and 2 vehemently contends that the appellant was not entitled to appointment under Rule 51B on account of the law laid down by the Supreme Court in Sreejith’s case (supra). 7. In response, the learned counsel for respondents 1 and 2 vehemently contends that the appellant was not entitled to appointment under Rule 51B on account of the law laid down by the Supreme Court in Sreejith’s case (supra). 7. We have considered the contentions of the learned counsel for the appellant and the contentions of the learned counsel appearing for respondents 1 and 2 and that of the Government Pleader appearing for respondents 3 to 6. We have also perused the pleadings and documents produced by the appellant and respondents 1 and 2. In the entirety of the facts and circumstances of the case, we find it difficult to accept that the appellant was guilty of delay and laches in making her application claiming the benefit of Rule 51B. Even if we are to discount the finding in Ext.P18 that there was an application made in 1992, it is clear from Ext.R5 (a) & R5(b) that an application was made on 21.6.1993. It is of relevance that the provisions of Rule 51B were not in operation till 16.1.1997. Thereafter, the appellant admittedly had approached the Director of Public Instructions through a request dated 24.7.1999 on the basis of which Ext.P8 direction was issued by the Director of Public Instructions. Ext.P8 is dated 24.3.2000. Though Ext.P8 was challenged through a revision petition (Ext.P8(a)), that order of the Director of Public Instructions does not appear to have been set aside or interfered with in any manner. It is when this order (Ext.P8) was in force that the Manager filled up the vacancy that arose on 1.6.2005, by appointing the 2nd respondent on 10.6.2005. As already noticed the 2nd respondent is the daughter of the Manager. We notice that in the judgment referred to as Sreejith's case (supra), the Supreme Court was considering five different cases each of which were different on facts. In the Civil Appeal arising out of SLP 7556 of 2008 the Court found that the application having been made within 3 years of attaining majority, the claimant under Rule 51B was entitled to get appointment. In the Civil Appeal arising out of SLP 4954 of 2009 the Court found that the application having been made 12 years after attaining majority, the claimant under Rule 51B was not entitled to get appointment. In the Civil Appeal arising out of SLP 4954 of 2009 the Court found that the application having been made 12 years after attaining majority, the claimant under Rule 51B was not entitled to get appointment. In the Civil Appeal arising out of SLP 33421 of 2009 the Court found that the application having been made within time, the claimant under Rule 51B was entitled to get appointment. In the Civil Appeal arising out of SLP 31908 of 2010 and 6607-08 of 2011 the Court found that the application having been made 14 years after attaining majority, the claimant under Rule 51B was not entitled to get appointment. In the Civil Appeal arising out of SLP 4467 of 2009 the Court found that the application was indeed within time and the claimant under Rule 51B was entitled to get appointment. In the light of the above we feel that the law laid down in Sreejith's case (supra) in fact supports the case of the appellant. The application dated 21.6.1993 will, for reasons noticed by the Hon'ble Supreme Court in para 27 of Sreejith's case (supra), have to be treated as a valid application though Rule 51 B was not in operation at that time. Para 27 of the judgment in Sreejith's case (supra) reads as follows:- “27. The fact that an application was submitted to the District Educational Officer is also beyond dispute keeping in view the endorsement made by District Educational Officer, Palaghat, dated 8th October, 2002, a copy whereof has been placed at page 81 of the S.L.P. As a matter of fact the need for making of such application to the District Educational Officer appears to have arisen on account of refusal of the Manager to receive the application addressed to him. Such being the case, the rejection of the application by the District Educational Officer that the same was belated was wholly unjustified and was rightly set aside by the High Court in the earlier proceedings before it. Upon remand the District Educational Officer correctly found respondent No.7 to be eligible for an appointment having made an application in time which was erroneously set aside by the learned single Bench on the ground that the application had been filed beyond the period of limitation. Upon remand the District Educational Officer correctly found respondent No.7 to be eligible for an appointment having made an application in time which was erroneously set aside by the learned single Bench on the ground that the application had been filed beyond the period of limitation. The error was, however, corrected by the Division Bench by holding that the refusal of the Manager in accepting the application filed for appointment of respondent No.7 was only a strategy of the Manager to ward off the claim made before him. ” [Emphasis is ours] We are fortified in taking the view that there was absolutely no delay on the part of the appellant in making the application in view of the recent judgment of another Division Bench of this Court in Thachinganadam Higher Secondary School v. State of Kerala reported in 2019(4) KLT 565 . The Division Bench in the above case was dealing with an almost identical situation. It was held as under:- “10. In order to find out the Government order that was in prevalence at the relevant point of time, it would be appropriate to consider the context in which Rule 51B was introduced, stayed and the stay later vacated. As far as the Government employees in the State are concerned, the Government had, as per G.O.(MS) No.20/70/PD dated 21.1.1970, introduced a scheme to provide employment assistance to the dependants of those employees who die in harness. This Government order underwent several amendments over a period of time. Even then a similar provision was not introduced in the KER, which led to a demand in that regard from the aided school employees. Heeding to the demand, the Government, as per G.O.(P) No.55/90 G.Edn 30.3.1990, incorporated Rule 51B in Chapter XIVA and Rule 9A in Chapter XXIVA of KER, providing for employment to dependents of aided school teachers and non-teaching staff dying in harness. On introduction of Rule 51B and Rule 9A, the Managers of the aided institutions and their association raised objections and relenting to their pressure, the Government, vide order dated 3.4.1990, decided not to implement the Rules. On introduction of Rule 51B and Rule 9A, the Managers of the aided institutions and their association raised objections and relenting to their pressure, the Government, vide order dated 3.4.1990, decided not to implement the Rules. This Court, in its judgment in O.P.No.664 of 1995, took note of this anomalous situation and directed to provide some mandatory provision in the KER to the effect that the Managers shall not have any option but to appoint the dependants of teaching staff or non-teaching staff who die in harness, provided the applicant is qualified to be appointed on the basis of the norms laid down by the Government in the matter relating to the appointment of the Government employees dying in harness. Later, in W.A.No.1207 of 1996, this Court directed the Government to clarify as to which scheme is applicable to the dependants of an aided school teacher dying in harness. In the face of repeated directions issued by this Court, the Government was forced to issue G.O.(MS) No.15/1997/G.Edn. dated 16.1.1997, the relevant portion of which reads as follows:- “i) The stay ordered against the operation of Rule 51B Chapter XIVA, KER will stand vacated with immediate effect. (ii) The Managers of Aided Schools shall give employment to dependants of Aided School teachers/non teaching staff of aided schools dying in harness. The Government orders relating to the compassionate employment scheme as applicable to the dependants of Government servants dying in harness shall, mutatis mutandis, be followed in the aided schools. (iii) The claim of the incumbents under the scheme shall be applicable against the existing and arising vacancies. (iv) If the Manager fails to carry out his obligations, the Educational Officers shall have power to deny approval of such appointments which are made against Rule 51B Chapter XIVA and Rule 9A Chapter XXIV A KER.” 11. In the meanwhile, the Government had issued G.O. (P)No.7/95/P&ARD dated 30.3.1995 to regulate appointments under the Compassionate Employment Scheme. As per Paragraph 9 of G.O.(P) No.7/95/P&ARD, the Scheme therein was not applicable to the employees of aided schools and private colleges. While lifting the stay of implementation of Rule 51B as per G.O.(MS) 15/97/G.Edn, the Government took note of Paragraph 9 of G.O.(P) No.7/95 and observed as follows:- “7. . ...... As per Paragraph 9 of G.O.(P) No.7/95/P&ARD, the Scheme therein was not applicable to the employees of aided schools and private colleges. While lifting the stay of implementation of Rule 51B as per G.O.(MS) 15/97/G.Edn, the Government took note of Paragraph 9 of G.O.(P) No.7/95 and observed as follows:- “7. . ...... According to the amendments made in the KER (Rule 51B of Chapter XIVA and Rule 9A of Chapter XXIV A of KER), Government orders relating to employment assistance to the dependents of the Government servants in dying in harness shall, mutatis mutandis apply in the matter of such appointments in aided schools. Para 9 of G.O.(P) No.7/95/P&ARD dated 30.3.1995 is therefore contradictory to the statutory provisions contained in Rule 51B, Chapter XIV A and Rule 9A of Chapter XXIV A KER and requires review.” 12. Accordingly, as per Paragraph 9 of G.O.(MS) 15/97/G.Edn, the Personnel and Administrative Reforms Department was directed to issue necessary orders deleting the words “aided schools and” from para 9 of G.O.(P) No.7/95/P&ARD and thereby make it applicable for aided schools also. As per paragraph 18 of G.O. (P) No.7/95/P&ARD, no time limit was prescribed for preferring applications under the scheme and dependants could apply for the benefit of the scheme at any time, but within the upper age limit prescribed for direct recruitment to the post requested for by him/her. Hence, the Government order which held the field when Hema V. Nair's application was originally received by the Manager was G.O. (P)No.7/95/P&ARD dated 30.3.1995, wherein no time limit was prescribed for submitting the application. Therefore, as rightly found by the learned Single Judge, the finding of the Government in that regard is unassailable.” We are in respectful agreement with the view taken by the Division Bench in Thachinganadam Higher Secondary School v. State of Kerala. In view of our finding that the application dated 21.6.1993 will have to be treated as a valid application and that the Manager appointed his daughter, the 2nd respondent in the vacancy that arose on 1.6.2005 ignoring the direction of the Director of Public Instructions in Ext.P8, we hold that the denial of employment to the appellant was illegal and a deliberate attempt on the part of the Manager to deny employment to the appellant. We cannot, therefore, shut our eyes to the fact that there appears to have been a deliberate attempt on the part of the Manager to deny to the appellant her statutory right under Rule 51B. 8. In view of our findings, we would normally be required to direct the appointment of the appellant forthwith. However considering the fact that the 2nd respondent has been working since 10.6.2005 and noting the fact that the appellant’s date of birth is 29.5.1968 we feel that the direction issued by the Learned Single Judge to approve the appointment of the 2nd respondent need not be interfered with. That direction of the learned Single Judge shall be complied with. However, we feel that the appellant is entitled to be compensated by the Manager for purposefully denying her claim for appointment under Rule 51B for all these years. In the peculiar facts and circumstances of this case, we direct that the 1st respondent (Manager) shall, within one month from the date of receipt of a copy of this judgment, pay to the appellant an amount of Rs.10 lakhs, as compensation for purposefully delaying the appellant's claim for appointment at the right time, in spite of the fact that there was a clear direction from the statutory authority as early as on 24.3.2000. We are constrained to do this on account of the fact that the Manager clearly misused his position and appointed his daughter as Upper Primary School Assistant (UPSA) with effect from 10.6.2005, conveniently ignoring the direction from the statutory authority as early as on 24.3.2000 thereby denying the rightful claim of the appellant. In the event that the amount is not paid within the time aforesaid, the competent among respondents 3 to 6 shall recover the same through revenue recovery proceedings and pay that amount to the appellant. In such event, the entire cost for realization of the amount under the Revenue Recovery Act shall also be recovered from the 1st respondent. We also direct that if the amount of Rs.10 lakhs is not paid within the time granted, the competent amongst the official respondents shall proceed with the direction in Ext P.18 Government Order to disqualify the 1st respondent Manager in terms of Rule 7 of Chapter III of the Kerala Education Rules. 9. We also direct that if the amount of Rs.10 lakhs is not paid within the time granted, the competent amongst the official respondents shall proceed with the direction in Ext P.18 Government Order to disqualify the 1st respondent Manager in terms of Rule 7 of Chapter III of the Kerala Education Rules. 9. We, therefore, dispose of these Writ Appeals modifying the directions of the learned Single Judge in the manner indicated above. In view of our finding in W.A.No.1766/2019 arising out of the judgment in W.P.(C)No.19851/2014, we do not deem it necessary to consider the challenge to the findings of the learned Single Judge in W.P.(C)No.18994/2016 out of which W.A.No.1012/2019 arises. The directions issued by the learned Single Judge in W.P.(C)No.18994/2016 shall be complied with. In the circumstances, however, there shall be no order as to costs.