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2022 DIGILAW 896 (KER)

RESHMI R. CHANDRAN v. STATE OF KERALA

2022-10-20

RAJA VIJAYARAGHAVAN V.

body2022
JUDGMENT : 1. W.P. (C) No. 17999/2021 is filed by Smt. Reshmi R Chandran seeking a declaration that she is entitled to be appointed in the first vacancy that has arisen in the Vocational Higher Secondary School, Chathiyara, in the posts to which she is qualified in view of the declarations made by this Court and the consequent orders issued by the Government. She has also sought for issuance of directions to the official respondents to initiate action against the Manager in terms of the KER for non-complying with the directions. 2. W.P. (C) No. 26192 of 2021 is filed by the Manager, seeking to quash the orders issued by the educational authorities directing the Manager to appoint Resmi R. Chandran in view of her statutory right under Rule 51B of the KER to the next arising vacancy. 3. Since common issues are involved, both these cases are taken up and disposed of by a common judgment. 4. Brief facts are as outlined below: (a) Smt. R. Remadevi Amma, the mother of Reshmi R Chandran, the petitioner in W.P. (C) No. 17999 of 2021, while working as HSA in the VHSS Chathiyara, managed by the 5th respondent, died in harness on 29.01.1989. Remya R. Chandran and the petitioner herein are her children. (b) Remya, the elder daughter, claiming that she is qualified to be appointed as Clerk/ Peon/Attender/Full-Time Menial in the aided schools under the compassionate employment scheme, submitted an application on 19.08.2002. When her claim was rejected, she approached this Court and filed O.P. No. 38807/2002. (c) A learned Single Judge of this Court in Remya R Chandran vs. D.E.O. Mavelikkara, 2005 (1) KLT 702 , after considering the entire facts and circumstances, took the view that Rule 5 of Chapter XXIV (B) which requires that the person shall have attained 18 years of age as on the first day of January in which the appointment is to be made cannot be ignored. On facts, it was noted that the claimant had not attained 18 years of age in the year 2002 when the vacancy had arisen, and therefore, she was not eligible for appointment to the post. On facts, it was noted that the claimant had not attained 18 years of age in the year 2002 when the vacancy had arisen, and therefore, she was not eligible for appointment to the post. The contention of the Manager that long years had elapsed since the death of her mother, was not accepted and it was held that the rights of the claimant under Rules 51B and 9A being statutory rights, the claimant was entitled to apply. While dismissing the writ petition, this Court took the view that the rights of Smt. Remya under Rule 51B and Rule 9A are statutory rights, and therefore, she was entitled to make an application as and when she became major as of the first January of the year in question. Paragraph No. 9 of Remya R. Chandran (supra) is extracted below for convenience. 9. It is difficult to concede to the position that R.5 of Chap.24B requiring that the person shall be 18 years of age as on the first day of January in which the appointment is to be made, is liable to be ignored. If that be so, I am constrained to take the view that as regards the appointment of the third respondent to the post in the year 2002 cannot be held to be illegal for the reason that it was overlooking the case of the petitioner. This is for the reason that the petitioner was not eligible for appointment to the said post. The further contention taken by the respondents is that 13 years have gone by since the death of the mother of the petitioner and there is no urgent need. The rights of the petitioner under R.51B and 9A are statutory rights. Petitioner is entitled when she became a major, to apply within three years, if the other conditions are satisfied. It is to be noted that though it is true that the petitioner's father is an employee in the Excise Department, he has remarried and has two children. The financial limits as to income not having been breached, it cannot be said that the petitioner cannot be given the benefit of the statutory right. However, the Writ Petition has to fail. The financial limits as to income not having been breached, it cannot be said that the petitioner cannot be given the benefit of the statutory right. However, the Writ Petition has to fail. Having regard to these circumstances, the petition has to fail for the only reason that in terms of the Rules and Order, as more elaborately stated hereinbefore, the petitioner was not a major as on the first January of the year in question. Accordingly, the Writ Petition fails and it is dismissed. While litigation was pending, the Manager proceeded to make appointments ignoring the rights of the claimant. Smt. Remya R. Chandran challenged the action of the Manager before the educational authorities. They proceeded to issue orders directing the Manager to accommodate the elder sister of the petitioner in the next arising vacancy to the post for which she was qualified. The Manager, after exhausting his statutory remedies, filed W.P. (C) No. 11073/2010 before this Court. This Court, by Ext.P3 judgment, directed the Manager to approach the Government and also interdicted the Manager from filling up the vacancies in respect of which the claim was made. (d) In the meantime, the petitioner, submitted Ext.P2 application for compassionate employment on 30.6.2009, appending a copy of the affidavit submitted by her elder sister relinquishing her claims for the post. Without considering the application, the Manager proceeded to fill up 2 posts in the category of Full-Time Menial. (e) The sister of the petitioner challenged the above action of the Manager, and it reached the Government. By Ext.P4 order, the Government took the view that the action of the Manager in having denied the application submitted by the 51A claimants cannot be sustained under law, and directions were issued to appoint the petitioner as a Full-Time Menial in the existing vacancy forthwith if she is otherwise eligible. The said order was taken up by the Manager before this court. (f) A learned Single Judge of this Court, after considering the entire facts, took note of the fact that the two vacancies had arisen on 1.8.2006 and 1.10.2007. However, the records revealed that the petitioner had not attained the age of 18 years as of the 1st of January of the respective years. It was held that the petitioner could not have raised a valid claim insofar as the appointments in respect of the vacancies of 2006 or 2007 are concerned. However, the records revealed that the petitioner had not attained the age of 18 years as of the 1st of January of the respective years. It was held that the petitioner could not have raised a valid claim insofar as the appointments in respect of the vacancies of 2006 or 2007 are concerned. While disposing of the writ petition upholding the rights of the petitioner, but while denying appointment, it was observed by this Court as follows in paragraph No. 7 of the judgment: 7. Evidently, her right as such cannot be said to be without any merit. But her right to claim appointment in the vacancies which arose on 01.08.2006 and 01.10.2007 may not survive. Therefore, Ext.P12 order requires only a modification to that extent. Therefore, the writ petition is disposed of as follows: There will be a direction to approve the appointments made by the Manager as per Exts.P2 and P6 orders. The claim of the fifth respondent will be considered in any of the vacancies in the light of Ext.P12 which may have arisen after 01.10.2007 and in future if so far no vacancies have arisen as she is entitled to be considered for an appointment under Rule 51B of Chapter XIVA K.E.R. No costs. (g) Specific Directions were issued to the Manager to consider the claim of the petitioner in any of the vacancies in the light of Ext.P4 Government Order in any other vacancies which would have arisen after 01.10.2007 and in the future, after holding that she is entitled to be considered for appointment under Rule 51B. Though the matter was challenged in appeal by the Manager, a Division Bench of this court by Ext.P7 judgment dismissed the appeal holding that the petitioner herein would qualify to be the dependent of the mother and entitled to claim compassionate appointment. (Emphasis supplied) (h) In terms of the directions issued by this Court in Ext.P5 judgment, Ext.P6 order was issued by the Government on 24.01.2012 approving the appointment of the Full-Time Menials who were appointed with effect from 01.08.2006 and 01.10.2007. It was further ordered that the Manager would be liable to appoint the petitioner herein in the vacancies which would arise after 01.10.2007 and in the future, in any cadre as per her qualifications as she is entitled to appointment under Rule 51B of Chapter XIV A of the KER. It was further ordered that the Manager would be liable to appoint the petitioner herein in the vacancies which would arise after 01.10.2007 and in the future, in any cadre as per her qualifications as she is entitled to appointment under Rule 51B of Chapter XIV A of the KER. (i) According to the petitioner, she has acquired all the requisite qualifications for being appointed as UPST, HST in English, Teacher in English in the VHSE, Clerk etc. She asserts that among the numerous vacancies that arose after 01.10.2007, two vacancies of UPST and one vacancy in the post of clerk arose in the school in June 2021. According to the petitioner, she is fully qualified in all respects for being appointed as UPST and going by the directions issued by this Court as well as the Government, she ought to have been appointed against the first of the said two vacancies. (j) The petitioner asserts that the Manager, disregarding the statutory claim of the petitioner, carried out appointments with persons of his choice. The petitioner, claiming appointment, submitted Ext.P9 representation before the Manager, which was followed up with Ext.P8. On the strength of Ext.P8, the 4th respondent has also issued Ext.P10 to the Manager directing him to make an appointment in the next arising vacancy. However, no action was taken. In the said circumstances, the petitioner is stated to have submitted Ext.P11 before the 3rd respondent invoking Rule 7 of Chapter III, seeking to initiate action against the Manager. When no action was taken, the petitioner is before this Court seeking the following reliefs: (i) declare that the petitioner is entitled to get appointment in the 5th respondent’s school in the first vacancy that arose after 1.10.2007, commensurate with her qualifications, in view of Exts.P5 and P7 judgments of this Hon’ble Court and Ext.P6 Government Order and the instruction contained in Ext.P10 and that the petitioner is entitled to all consequential service and monetary benefits with retrospective effect from the date of entitlement to such appointment. (ii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 to 4 to ensure that the petitioner is appointed under the Compassionate Employment Scheme in the school of the 5th respondent against the first vacancy in the suitable cadre that arose after 1.10.2007 including the vacancies in the posts of UPST and Clerk that arose in 2021 and that the petitioner is granted all consequential service and monetary benefits. (iii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 to 4 not to approve any appointment made by the 5th respondent Manager in his school, before appointing the petitioner under the Compassionate Employment scheme, in implementation of Exts.P5 andP7 judgments, Ext.P6 Government Order and Ext.P10 direction. (iv) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3rd respondent to pass orders on Ext.P11 forthwith and take appropriate coercive and punitive action against the 5th respondent in terms of Rule 7, Chapter III KER. 5. In W.P. (C) 26192 of 2021 filed by the Manager, it is contended that Rule 51B was added in the Statute book with effect from 30.03.1990 and the same having no retrospective operation, the petitioner cannot raise a claim for Compassionate Appointment as her mother had expired on 29.01.1989, much prior to the incorporation of the Rule and for other reliefs. It is stated that the order issued by the DEO on the strength of the Government Order dated 24.1.2012 was about 32 years after the death of the mother, and in that view of the matter it cannot be said that the object of granting such appointment is of providing mental succor to the family of the deceased. The Manager has sought the following reliefs in the writ petition filed by him: (a) Declare that Rule 51B of Chapter XIVA of the Kerala Education Rules, which was incorporated with effect from 30.3.1990 is not applicable to the claim of the 5th respondent set out on the basis of the death of her mother occurred on 29.1.1989 while working as HSA in the petitioner school. (b) Declare that Ext.P2 judgment is rendered on the basis of concession as laid down by the Hon’ble Supreme Court in Sanjeev Coke Manufacturing Co. (b) Declare that Ext.P2 judgment is rendered on the basis of concession as laid down by the Hon’ble Supreme Court in Sanjeev Coke Manufacturing Co. vs. M/s. Bharat Coking Coal Ltd. AIR 1983 SC 238, P. Nallammal vs. State J.T. 1999 (5) SC 410 and Gopalakrishnan Nair vs. State of Kerala, 2005 KHC 709 and the Hon’ble Court in Gopalakrishnan Nair vs. State of Kerala, 1999 KHC 642 (FB) and that the claim of the 5th respondent based on Ext.P2 is not sustainable. (c) Issue a writ in the nature of certiorari or any other appropriate writ or order quashing Exts.P3 and P4 in as much as the same direct to appoint the 5th respondent as provided under Rule 51B, Chapter XIVA of the Kerala Education Rules. 6. I have heard Sri. V. Varghese, the learned counsel appearing for Reshmi R. Chandran, Dr. V.N. Sankarjee, the learned counsel appearing for the Manager and the learned Government Pleader. 7. Rule 51B was introduced in the statute book on 31.03.1990. After the introduction of the said Rule, a liability is cast on the Managers to give employment to a dependent of an Aided School teacher or a member of the non-teaching staff dying in harness. In Ganesan vs. State of Kerala, 1995 (2) KLT 700 , this Court had laid down the principles that are to be adhered to, while making Rules for Compassionate Appointment. In terms of the directions so issued, the Government of Kerala issued G.O. (P) No. 12/99/P&ARD on 24.05.1999, whereby the time limit for preferring applications under the scheme has been fixed as two years from the date of death of the Government servants. In the case of a minor, the period is fixed as three years from the date of attaining majority. 8. In State of Himachal Pradesh and Another vs. Shashi Kumar, (2019) 3 SCC 653 , it was observed by the Apex Court that Compassionate Appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. Dependants of a deceased employee of the State are made eligible by virtue of the policy on Compassionate Appointment. Dependants of a deceased employee of the State are made eligible by virtue of the policy on Compassionate Appointment. The basis of the policy is that it recognises that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. It is the immediacy of the need which furnishes the basis for the State to allow the benefit of Compassionate Appointment. Where the authority finds that the financial and other circumstances of the family are such that in the absence of immediate assistance, it would be reduced to being indigent, an application from a dependent member of the family could be considered. The terms on which such applications would be considered are subject to the policy which is framed by the State and must fulfill the terms of the policy. In that sense, it is a well-settled principle of law that there is no right to Compassionate Appointment. 9. In Mumtaz Yunus Mulani vs. State of Maharashtra, (2008) 11 SCC 384 , the Apex Court has adopted the principle that appointment on compassionate grounds is not a source of recruitment but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. 10. In the case on hand, it is not disputed that Rema Devi Amma, the mother of the petitioner, had expired on 29.01.1989. It is also not disputed that the petitioner herein filed an application for Compassionate Appointment on 12.06.2009, within three years from the date on which she attained majority. 11. One of the contentions raised by the learned counsel appearing for the Manager is that Rule 51B of Chapter XIVA is only prospective and therefore, the petitioner is not entitled to raise a claim as her mother had expired prior to the introduction of the provision into the Statute Book. This issue was considered by a Division Bench of this Court in Manager, Parli High School vs. Narayanan, 2002 (3) KLT 912 , wherein it was held as follows in paragraph No. 10 of the judgment: One of the issues arising for consideration is whether R.51B of Chap. XIVA, K.E.R. is retrospective or only prospective. This issue was considered by a Division Bench of this Court in Manager, Parli High School vs. Narayanan, 2002 (3) KLT 912 , wherein it was held as follows in paragraph No. 10 of the judgment: One of the issues arising for consideration is whether R.51B of Chap. XIVA, K.E.R. is retrospective or only prospective. After going through that provision, we are clearly of the view that R. 51B operates only prospectively and the fact that the death of the employee occurred before the introduction of R. 51B, does not disentitle the dependent from claiming appointment under that Rule. What is relevant is the date of occurrence of the vacancy. If the occurrence of vacancy is on or after the coming into force of R.51B, the fact that the employee died before such commencement is immaterial. For the mere reason that facts necessary for giving effect to the Rule are drawn from the past, the Rule cannot be held retrospective. One of the facts that go to confer a right on the dependent of a deceased employee to claim appointment under R.51B is the death of that employee while in service. The fact that the death of the employee is prior to the commencement of R. 51B does not mean that R.51B is given effect to retrospectively. Appointments can be claimed only against the vacancies that would arise after the introduction of R.51B. It is therefore clear that the said Rule is enforced only prospectively. 12. The Division Bench held that the fact that the death of the employee prior to the commencement of Rule 51B does not mean that Rule 51B is given effect retrospectively. All that it means is that appointments can be claimed only against the vacancies that would arise after the introduction of Rule 51B. 13. Later in Somasundram vs. State of Kerala, 2003 (1) KLJ 811 , another Division Bench of this Court, though without referring to Parli (supra) held that it is neither just nor reasonable to deny the benefit under Rule 51B to dependents of Aided School teachers who died in harness prior to 30.03.1990. However, it was held that there ought to be some proximity between the date of death and the date of application. 14. In view of the law laid down in Parli and Somasundaram (supra), the contention forcefully advanced by Dr. However, it was held that there ought to be some proximity between the date of death and the date of application. 14. In view of the law laid down in Parli and Somasundaram (supra), the contention forcefully advanced by Dr. Sankarjee that the benefit of Rule 51B cannot be extended to the petitioner on the ground that her mother had died prior to bringing the Rule into the Statute book cannot be sustained. 15. The next contention advanced by the learned counsel is that the mother of the petitioner having expired on 29.01.1989 and more than three decades having elapsed, the benefit of Compassionate Appointment cannot be granted. In the case on hand, the elder sister of the petitioner had filed the application for Compassionate Appointment within the period and though her statutory right was upheld, she was denied the benefit solely on the ground that there was no vacancy on the first of January of the relevant year. Later, the elder sister relinquished her claim and the petitioner herein filed an application for Compassionate Appointment within the statutory period of 3 years from the date on which she attained majority. However, misfortune fell on the petitioner as well, as she had not attained the age of 18 years on the first of January of the respective year. A learned Single Judge as well as the Division Bench repeatedly held that the claim of the petitioner ought to be considered in any of the vacancies which may have arisen after 01.10.2007 and in future. In view of the judgments in the lis inter partes rendered by a learned Single Judge, as confirmed by their Lordships of the Division Bench, the Manager cannot be heard to contend that several years having elapsed, the petitioner cannot claim the benefit of the statutory right under Rule 51B. The Manager cannot be heard to contend that the judgment rendered by this Court was on the basis of her concession and the directions so issued cannot confer any benefit to the petitioner herein. The nature of contentions advanced by the Manager and the long and arduous line of litigation between the parties would make it emphatically clear that the Manager was prepared to spare no effort to ensure that the petitioner is deprived of her statutory claim. The nature of contentions advanced by the Manager and the long and arduous line of litigation between the parties would make it emphatically clear that the Manager was prepared to spare no effort to ensure that the petitioner is deprived of her statutory claim. In that view of the matter, I am of the view that necessary directions can be issued to ensure that the directions issued by this Court are complied with in its letter and spirit. Necessary directions can also be issued to the 3rd respondent to take up Ext.P11 (Produced in W.P. (C) No. 17999/2021) and take appropriate action against the Manager in terms of Rule 7 Chapter III of the KER, if the situation so warrants. 16. Resultantly, these writ petitions are ordered and the following directions are issued: (a) It is declared that the petitioner is entitled to get appointment in the 5th respondent school in the first vacancy that arose after 01.10.2007 in the post in respect of which she is qualified. (b) There will be a direction to respondents 3 and 4 in W.P. (C) No. 17999 of 2021 to ensure that the petitioner is appointed in the school run by the 5th respondent against the vacancy that arose after 1.10.2007 including the vacancies in the post of UPST that arose in 2021. (c) The respondents 3 and 4 in W.P. (C) No. 17999/2021 shall ensure that only after the 5th respondent grants approval to the appointment of the petitioner herein that proposal for approval submitted by the Manager in respect of any other posts that has arisen in the 5th respondent school shall be approved. (d) If the Manager refuses to comply with the directions above, in addition to other actions which may be initiated by the petitioner, the official respondents shall also take up Ext.P11 representation submitted in W.P. (C) No. 17999/2021 and initiate appropriate action in accordance with law.