Allowed

Neena Mathai v. the Corporate Educational Agency

Kerala HC14 Dec 2012WP(C)/8628/2009

Case brief

AI extract

What is this about?

The Court quashed a Government Order granting compassionate appointment without finding facts on the petitioner's dependency on the deceased teacher. Relying on a prior Division Bench judgment, the Court directed the authorities to reconsider the claim based on evidence and binding precedents regarding the necessity of ascertaining dependency.

What did the court decide?

The impugned Government Order is set aside. The First Respondent is directed to reconsider the claim on merits after giving an opportunity of hearing and ensuring relevant files are obtained, within t

Neena Mathai Vs the Corporate Educational… — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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FRIDAY, THE 14TH DAY OF DECEMBER 2012/23RD AGRAHAYANA 1934

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WP(C).No. 8628 of 2009 (W)

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PETITIONER:

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NEENA MATHAI, AGED 38 YEARS, D/O. K.T.MATHAI, KOLENCHERRY, KOLENCHERRY HOUSE MANICKAMANGALAM PO, KALADY, ERNAKULAM DISTRICT.

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BY ADV. SRI.P.CHANDRASEKHAR

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RESPONDENTS:

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1. THE MANAGER

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THE CORPORATE EDUCATIONAL AGENCY, VIMALA PROVINCE CARMELITE, PROVINCIAL HOUSE, ERNAKULAM.

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2. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM.

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3. THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM.

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R1 BY ADV. SRI.T.H.ABDUL LATHEEF

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R2, R3 BY GOVERNMENT PLEADER SMT.LOWSY A.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-12-2012, ALONG WITH WPC. 8950/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 8628 of 2009 (W)

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APPENDIX

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PETITIONER'S EXHIBITS

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EXT.P1. COPY OF LEGAL HEIRSHIP CERTIFICATE DATED 9.9.1997 ISSUED BY TAHSILDAR, ALUVA

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EXT.P2. COPY CERTIFICATE DATED 24.7.1998 OF THE TAHSILDAR, ALUVA

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EXT.P3. COPY OF LETTER OF THE VICAR OF ST. ROCHE'S CHURCH DATE 1.8.1997 TO THE 1ST RESPONDENT.

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EXT.P4 COY OF JUDGMENT WA NO.546/2000 DATED 30.10.2001.

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EXT.P5. COPY OF ORDER DATED 27.3.2002 OF THE 3RD RESPONDENT.

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EXT.P6. COPY OF JUDGMENT DATED 22.6.2006 IN WPC NO.15683 OF 2002 EXT.P7. COPY OF GO (RT) NO.3833/07/G.EDN. DATED 17.8.2007. EXT.P8. COPY OF JUDGMENT DATED 09.7.2008 IN WPC NO.7980/2008.

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EXT.P9. COPY OF G.O. (RT) NO.548/2009/G.EDN. DATED 4.2.2009.

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EXT.P10. COPY OF PETITION DATED 12.2.2009 OF THE PETITIONER TO THE RESPONDENTS 1 AND 3.

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EXT.P11. COY OF THE RECEIPT DATED 12.2.2009 ISSUED BY THE 3RD RESPONDENT.

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EXT.P12. COPY OF LETTER DATED 6.2.2008 ISSUED TO THE 3RD RESPONDENT BY THE HEADMISTRESS OF THE 1ST RESPONDENT'S SCHOOL.

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EXT.P13. COPY OF COVERING LETTER DATED 24.7.1998 OF THE PETITIONER TO THE 3RD RESPONDENT.

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EXT.P14 COPY OF PETITION DATED 23.9.2008 OF THE PETITIONER BEFORE THE GOVERNMENT.

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EXT.P15 COPY OF THE MARRIAGE CERTIFICATE ISSUED BY T V PURAM GRAMA PANCHAYAT.

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EXT.P16. COPY OF EMPLOYMENT CERTIFICATE DATED 2.1.2009 ISSUED BY CHIEF INSPECTOR OF PLANTATIONS, KOTTAYAM.

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RESPONDENT'S EXHIBIT'S : NIL ------------------------

/ TRUE COPY /

P.A. TO JUDGE

P.R. RAMACHANDRA MENON J.

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Dated, this the 14^th day of December, 2012

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JUDGMENT

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Rights and liberties of a person to get appointment under

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Rule 51 B of Chapter XIV A KER is the subject matter involved

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in both these writ petitions; one preferred by the claimant and other prepared by the Manager of the school.

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After different rounds of litigations, the issue came to be decided by the Government by passing an order dated 17.08.2007, whereby it was held that the question of income was not at all a relevant factor to consider and decide claim of eligibility under Rule 51 B, by virtue of relevant Government Orders' then in existence and hence that, the claimant is very much entitled to have the benefit of Rule, thus giving consequential direction to the Manager to appoint the claimant in the vacancy of HSA (Malayalam). This order is sought to be challenged by the Manager in W.P.(C) No. 8950 of 2009,

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W.P.(C) Nos. 8628 & 8950 of 2009

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while the said order is sought to be implemented by the beneficiary in W.P.(C) 8628 of 2009.

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The sequence of events, parties and exhibits are referred to, as given in W.P.(C) No. 8950 of 2009.

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The elder sister of the 3^rd respondent was working as HSA in St. Mary's Convent Girls Hight School, Ernakulam. She was a spinster. While so, she took her last breath on 26.09.1992, when the third respondent was only a student. Subsequently, she completed her graduation in the year 1993 and obtained B.Ed. in the year 1996. It was thereafter, that she submitted an application claiming compassionate appointment under Rule 51 B, which came to be turned down by the Manager as per Ext. P1 communication dated 25.06.1997. The third respondent filed yet another application by way of Ext. P2 before the second respondent DEO, who rejected the application stating that it was not in the prescribed form. Then the third respondent submitted a proper application. Since there was no action from the side of

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W.P.(C) Nos. 8628 & 8950 of 2009

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the Manager and also from the part of the DEO, the third respondent approached this Court by filing O.P. No. 16340 of 1998. The claim was contested stating that the claimant was not at all dependent, her family having extensive landed properties and such other income. Interference was declined by a learned Single Judge of this Court, mainly placing reliance on the income aspect as projected from the side of the respondents in the writ petition. This in turn was challenged by filing W.A. 546 of 2000 leading to Ext. P3 judgment dated 30.10.2001.

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The Division Bench observed that the main dispute was with regard to the 'dependency', which could not be decided on the basis of the affidavits filed before the Court and that it had to be independently considered (paragraph 9). It was accordingly, that the writ petition was allowed, setting aside the verdict passed by the learned Single Judge, directing the DEO to consider the question on merits. In order to ascertain financial position of the appellant (3^rd respondent

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W.P.(C) Nos. 8628 & 8950 of 2009

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herein), the DEO was set at liberty to seek for assistance of the Revenue Officials. The observations made by the Division Bench in paragraph 9 are relevant, which hence is extracted below.

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“9. We heard both sides. Whether the appellant was a dependent of the deceased teacher is a disputed question of fact. The Manager has sworn to an affidavit to the effect that the appellant's family is very rich and that she has sufficient income and she was never dependent on the teacher. The appellant emphatically denied it and contended that the Manager has painted the apple blue while dealing with the financial position of her family. We are of the view that whether the appellant was dependent or not, is a disputed question of fact which cannot resolved on the basis of conflicting affidavits. We cannot agree with the finding of the learned single Judge in this regard relying on the affidavit of the Manager without mentioning anything about the contentions of the appellant in her reply affidavit. In view of the action taken by the Government keeping the provision regarding appointment under the dying-in-harness scheme in aided schools under suspended animation, it cannot be said that there was any delay from her part. After the issuance of Ext. P1 by the Government, the appellant has

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W.P.(C) Nos. 8628 & 8950 of 2009

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applied without delay., Therefore, the application for appointment under the dying-in-harness scheme requires to be considered on merits. Here is a dispute between the Manager and the appellant. The District Educational Officer being the controlling officer who is ensure that the second respondent functions in accordance with law can go into the question and give a decision on merits. To ascertain the financial position of the appellant, the District Educational Officer may seek the assistance of the revenue officials. Therefore, we set aside the judgment of the learned Single Judge. The District Educational Officer is directed to consider the claim of the appellant for appointment under Rule 51(B) with notice to her and to respondents 2 and 3. The District Education Officer shall take decision in matter within four months from today.

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In furtherance to Ext. P3 verdict passed by the

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Division Bench of this Court, the issue was considered by the

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DEO, who passed Ext. P4 order dated 27.03.2002, whereby the claim was turned down. It has been observed by the DEO that, in spite of the opportunities given to produce the materials to substantiate the income and in spite of seeking time to produce income certificate as agreed by the 3^rd

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W.P.(C) Nos. 8628 & 8950 of 2009

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respondent herein (to have it done within one week), it was never produced and later, she, as per letter dated 27.03.2002 took up a contention that there was 'no income limit' for employment assistance under the Dying Harness Scheme. It was in the said circumstances, that interference was declined and the claim was turned down by the DEO.

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The third respondent challenged Ext. P4 by filing W.P (C) 15683 of 2002 before this Court, when she was relegated to approach the Government by way of Revision. The Revision Petition filed by the 3^rd respondent based on the judgment dated 22.06.2006 in O.P. No. 15683 of 2002, was considered and the first respondent passed Ext. P5 order dated 17.8.2007, whereby eligibility was declared in favour of the claimant and a direction was given to the Manager to appoint to the beneficiary concerned. This was subjected to challenge by filing W.P.(C) No. 7980 of 2008 at the instance of the Manager. The said writ petition was disposed of vide judgment dated 09.07.2008 observing that no opportunity of

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W.P.(C) Nos. 8628 & 8950 of 2009

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hearing was given to the Manager before passing Ext.P5 and hence the impugned order was set aside, with a direction to reconsider the matter afresh. Based on the above verdict, the entire issue was reconsidered by the Government, which led to Ext. P8 order dated 04.02.2009, which in turn is sought to be challenged by filing W.P.(C) No. 8950 of 2009 by the Manager, while the beneficiary seeks to have the same enforced , by way of W.P.(C) No. 8628 of 2009.

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The respondents have filed counter affidavit and the petitioner has filed reply affidavit as well.

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The stand taken by the first respondent is that, at the relevant time, the relevant G.O. which governed the field was G.O. (P) No. 7/95/P & ARD dated 03.03.1995, which did not stipulate anything with regard to the income and that income limit was brought into the field for the first time only as per G.O (P) 12/99/P&ARD dated 24.05.1999. It was in the said circumstances that a positive finding was rendered by the Government that there was absolutely no need or necessity to

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W.P.(C) Nos. 8628 & 8950 of 2009

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have considered the income aspect, thus leading to Ext. P8 order.

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The third respondent has filed a counter affidavit, wherein it is stated that DEO at no point of time had required her to produce income certificate, simultaneously adding that Ext. R3(b) issued by the concerned Tahasildar produced as Ext. R3(b) clearly revealed that the petitioner was a dependent of the deceased, which however was not considered by the DEO and hence the revision petition filed before the Government was rightly decided, intercepting the impugned order passed by the DEO. This being the position, no interference is warranted in the writ petition filed at the instance of the Manager; is the case mooted by the 3^rd respondent, who is the petitioner in writ petition 8628 of 2009.

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During the course of hearing, the learned Government Pleader made copies of various Government Orders right from 1990 available, except the relevant

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W.P.(C) Nos. 8628 & 8950 of 2009

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proceeding, whereby the 'ban' on Rule 51B Chapter XIV KER was introduced. Whether the Rule could have been stayed by issuance of a Government order/Government letter is a relevant aspect, which however does not require to be considered in the instant case, as there is 'inter party' judgment passed by the Division Bench vide Ext. P3, whereby the matter has been directed to be decided on merits, clearly observing that the application preferred by the claimant in the year 1997; in respect of the death occurred in 1992, cannot be stated as belated, for the fact that after the introduction of the Rule i.e. Rule 51 B, there was some proceedings whereby the Rule was not given effect to from the part of the Government and that the ban was lifted only as per the G.O (MS) No. 15/97/G.Edn. dated 16.01.1997. It was immediately after lifting the ban as above, that the claimant filed the application, which came to be rejected, leading to further proceedings. It is also borne out by records that the third respondent claimant had approached this Court in the

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W.P.(C) Nos. 8628 & 8950 of 2009

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year 1998 itself and the matter is still to be settled, in view of the on going litigations.

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Coming to the claim, Rule 51B reads as follows:

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“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.

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The issue which requires paramount consideration is 'dependency'. The financial position of the family may be a relevant factor with regard to the 'dependency' to be considered. While considering the question whether the maximum income stipulated as per the G.O (P) 12/99/P&ARD dated 24.05.1999 should have been taken note of in respect of the claim for appointment made in the year 1997, the basic question to be answered is, whether the claimant i.e. 3^rd respondent was a dependent of the deceased so as to claim appointment under Rule 51B. A clear finding has rendered by the Division Bench, holding that, the disputed question of

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W.P.(C) Nos. 8628 & 8950 of 2009

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dependency cannot be adjudicated in a proceeding filed under Article 226 of the Constitution of India; merely based on the affidavits filed by the parties concerned, and that it requires to be decided on the basis of the evidence to be let in. It was in the said context, that the concerned DEO was directed to consider the matter also setting at liberty to seek/avail assistance of the Revenue authorities in this regard. The question is, whether such a course has been pursued by the DEO or at least by the Government while passing Ext. P8 order.

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Coming to the orders passed by the DEO as mentioned above, the claimant was directed to produce income certificate, which admittedly was not produced, but for producing Ext. R3(b), which is a certificate issued by the concerned Tahasildar stating that the claimant was a dependent of the deceased. On what basis the said certificate was issued or what was the nature of enquiry, if any; what were the facts elicited are not discernible from the certificate,

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W.P.(C) Nos. 8628 & 8950 of 2009

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which is a matter to be substantiated. When the order

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passed by the DEO declining the relief sought for was challenged by the third respondent, by filing Revision Petition, it led to the impugned order (Ext. P8) holding that income was never a relevant factor. The Government was only considering whether the issue was to be decided on the basis of G.O (P) 12/99/P&ARD dated 24.05.1999, whereby the income limit was prescribed for the first time, or whether it should be on the basis of G.O. (P) No. 7/95/P & ARD dated 03.03.1995, where there was no income limit.

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This Court finds it difficult to accept the proposition mooted by the learned Government Pleader as well as the learned counsel for the petitioner in W.P.(C) No. 8628 of 2009 (3^rd respondent herein). There is no finding on fact, with regard to the “dependency” aspect. The discussion made by the first respondent in Ext. P8 order, as given in the last two paragraphs, reads as follows :

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W.P.(C) Nos. 8628 & 8950 of 2009

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“On examination of the case it is found as follows:

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As per Rule 9 of Chapter III KER the Manager of an aided school is liable to conduct the school strictly in accordance with the provisions of the KE Act and Rules. The Manager has to respect and obey the Rule 51 B also. As per this Rule the Manager shall give employment assistance to a dependent of an aided school teacher who dies in harness. It is also found that the operation of Rule 51 B of Chapter XIV A KER which was introduced by SRO No. 484/90 published on 30.03.1990 was kept in abeyance until Government issued revised modified orders on 16.01.1997 which says that an application made under Rule 51B cannot be rejected on the ground of delay. Hence the eligibility of Smt. Neena Mathai for employment under Compassionate Employment Scheme can be decided with reference to the date of submission of application of the date of occurrence of the first vacancy after the date of submission of the application. It is also found that the argument of the advocate of the Manager that the family of Smt. Neena Mathai was in sound financial situation and she is not entitled to get the appointment is not sustainable. As per Para 12 of G.O. (P) No. 7/95/P & ARD dated 03.03.1995 there is no income limit in preferring an application under Compassionate

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W.P.(C) Nos. 8628 & 8950 of 2009

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Employment Scheme. The action of the District Educational Officer, Ernakulam in granting approval to the appointment of Smt.Lincy Joseph against the vacancy which arose after the date of submission of the application for employment under Compassionate Employment Scheme is quite irregular. Smt.Neena Mathai is entitled to get appointment as HSA in the vacancy which arose after the date of submission of his application.

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In the above circumstances, Government uphold the decision stated in the G.O (Rt.) No. 3833/07/G. Edn. dated 17.08.07 (Ext. P7) in W.P.(C) No. 7980/2008 that the petitioner is eligible to get appointment under Compassionate Employment Scheme and direct Smt.Neena Mathai to produce all the documents in original in support of her claim as per G.O.(P) No. 7/95/P & ARD to the District Educational Officer, Ernakulam and the District Educational Officer shall retransmit the documents to the Manager and the Manager, Vimala Province Carmelite, Provincial House, Ernakulam shall appoint Smt. Neena Mathai as HSA (Malayalam) in the school immediately on receipt of the documents from the District Educational Officer.

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W.P.(C) Nos. 8628 & 8950 of 2009

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From the above it is explicitly clear that the basic aspect as to the 'dependency ' i.e. whether the claimant was a dependent of the deceased was never considered and discussed with reference to the reliable materials. Unless it is established that the claimant was a dependent of the deceased, the benefits flowing from Rule 51 B Chapter XIV KER are not liable to be extended to the claimant. As such, a finding on fact is necessary, more so in view of the observations made by the Division Bench of this Court in Ext. P3 judgment.

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In the above facts and circumstances, this Court finds that Ext. P8 order in W.P.(C) No.8950 of 2009 is not sustainable and hence the same is set aside. The first respondent is directed to consider the matter in the light of the observation as above and also in the light of the relevant Government Orders with regard to the issue involved and the binding judicial precedents to be cited from both the sides. The proceedings as above shall be finalized, at the earliest, of

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W.P.(C) Nos. 8628 & 8950 of 2009

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course after giving an opportunity to hearing to both the sides and also getting relevant files from the concerned departmental authorities, at any rate, within three months from the date of receipt of a copy of this judgment.

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Both the writ petitions are disposed of as above.

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sd/-

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P. R. RAMACHANDRA MENON, (JUDGE)

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kmd

Neena Mathai v. the Corporate Educational Agency

Case brief

What is this about?

What did the court decide?

Neena Mathai v. the Corporate Educational Agency

Case brief

What is this about?

What did the court decide?

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