Dismissed

Fr.Varghese Koothoor v. State of Kerala

Kerala HC25 Sept 2019WA/2498/2017

Case brief

AI extract

What is this about?

In W.A. Nos. 2485, 2498, 2499, and 2530 of 2017, a bench of the Kerala High Court dismissed appeals filed by a school management and an employee against a Single Judge's judgment which directed that compassionate appointment claims be considered based on the date of death of the first deceased employee. The Court upheld the order dismissing Lijoy's appeal and the appeals of the Headmaster as withd

What did the court decide?

The writ appeals were dismissed; the appointment of both persons shall be considered in accordance with the Kerala Education Rules.

Fr.Varghese Koothoor Vs State of Kerala — Writ and Judicial Review | Kerala HC (2019)

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941

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WA.No.2485 OF 2017

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AGAINST THE JUDGMENT IN WPC NO.17500/2012 DATED 10-10-2017 OF THE HIGH COURT OF KERALA

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APPELLANT/PETITIONER:

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CYRIL MAR BASELIOSE AGED 59 YEARS

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S/O. KUTHOOR CHUMMAR, METROPOLITAN MALABAR INDEPENDENT SYRIAN CHURCH

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THOZHIYOOR P.O., THRISSUR DISTRICT-682 520.

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BY ADV. DAISY A. PHILIPOSE

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF EDUCATION, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001.

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2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM, PIN 695 001.

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3 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR-682 001.

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4 THE DISTRICT EDUCATIONAL OFFICER CHAVAKKAD, THRISSUR DISTRICT-682 001.

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5 V.I KOCHUPAPPY MALABAR INDEPENDENT SYRAIN CHURCH, THOZHIYOOR P.O., THRISSUR DISTRICT 682 520.

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6 P.A SUDHEER S/O.LATE P.C AYYAPPAN, PALLIPARAMBIL HOUSE, P.O THOZHIYOOR, VIA KUNNAMKULAM- 680 520.

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WA.No.2485 OF 2017 & connected cases

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7 ADV. T.K VIJAYAKUMAR THRISSUR, RECEIVER, MALABAR INDEPENDENT SYRIAN CHURCH, THOZHIYOOR P.O., PIN-682 520. [DELETED]

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[R7 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 06/02/2018 IN IA NO.110/2018 IN WA NO.2485/2017.]

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BY SRI.T. RAJASEKHARAN NAIR, SR.GP

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2019, ALONG WITH WA.2498/2017, WA.2499/2017 & WA.2530/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA.No.2485 OF 2017 & connected cases

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941

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WA.No.2498 OF 2017

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AGAINST THE JUDGMENT IN WPC NO.34767/2011 DATED 10-10-2017 OF HIGH COURT OF KERALA

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APPELLANT/ADDL. RESPONDENT NO.5:

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FR.VARGHESE KOOTHOOR S/O.CHERAPPAN, AGED 57 YEARS XX/289-A, N.H.47, KOOTHOOR HOUSE, CALICUT ROAD, KUNNAMKULAM POST, THRISSUR DISTRICT, PIN-682 503.

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BY ADV. SMT.DAISY A.PHILIPOSE

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RESPONDENTS/RESPONDENTS 1 TO 4 & PETITIONER:

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1 THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR AT AYYANTHOLE.680 003.

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2 THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT-680 506.

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3 THE CORPORATE MANAGER, MALABAR INDEPENDENT SYRIAN CHURCH SCHOOL, THOZHIYOOR, THRISSUR DISTRICT-682 520.

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4 MALABAR INDEPENDENT SYRIAN CHURCH EDUCATIONAL SOCIETY, THOZHIYOOR P.O., REPRESENTED BY ITS RECEIVER ADV. T.K. VIJAYAKUMAR, THRISSUR.

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WA.No.2485 OF 2017 & connected cases

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5 P.A. SUDHEER, S/O. LATE P.C. AYYAPPAN, PALLIPARAMBIL HOUSE, THOZHIYOOR P.O., VIA. KUNNAMKULAM-682520.

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BY ADV. SRI.P.A.JACOB BY SRI.T. RAJASEKHARAN NAIR, SR.GP

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2019, ALONG WITH WA.2485/2017, WA.2499/2017 & WA.2530/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA.No.2485 OF 2017 & connected cases

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941

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WA.No.2499 OF 2017

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AGAINST THE JUDGMENT IN WPC NO.6027/2015 DATED 10-10-2017 OF THE HIGH COURT OF KERALA

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APPELLANT/5TH RESPONDENT:

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CYRIL MAR BASELIOSE

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S/O. KUTHOOR CHUMMAR, AGED 59 YEARS, METROPOLITAN, MALABAR INDEPENDENT SYRIAN CHURCH, THOZHIYOOR P.O., THRISSUR DISTRICT-682520.

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BY ADV. DAISY A. PHILIPOSE

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RESPONDENTS/RESPONDENTS 1 TO 4, 6 TO 9 AND PETITIONER:

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1 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR, PIN-680003.

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2 THE DISTRICT EDUCATIONAL OFFICER CHAVAKKAD, THRISSUR DISTRICT-680506.

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3 THE CORPORATE MANAGER MALABAR INDEPENDENT SYRIAN CHURCH, THOZHIYOOR P.O., THRISSUR DISTRICT-682520.

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4 MALABAR INDEPENDENT SYRIAN CHURCH EDUCATIONAL SOCIETY, THOZHIYOOR P.O., REPRESENTED BY ITS RECEIVER ADV. T. K. VIJAYAKUMAR, THRISSUR.

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WA.No.2485 OF 2017 & connected cases

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5 LIJOY VARGHESE CHEERAN

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FULL TIME MENIAL, ST. GEORGE HIGH SCHOOL, THOZHIYOOR P.O., THRISSUR DISTRICT-682520.

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6 THE ASSISTANT EDUCATIONAL OFFICER CHAVAKKAD, PIN-680506.

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7 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHI, THIRUVANANTHAPURAM-695014.

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8 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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9 P. A. SUDHEER S/O. LATE. P. C. AYYAPPAN, PALLIPARAMBIL HOUSE, THOZHIYOOR P.O., VIA KUNNAMKULAM-680520.

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BY SR.GP SRI.T.RAJASEKHARAN NAIR BY ADV. SRI.P.A.JACOB

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2019, ALONG WITH WA.2485/2017, WA.2498/2017 & WA.2530/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA.No.2485 OF 2017 & connected cases

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941

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WA.No.2530 OF 2017

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AGAINST THE JUDGMENT IN WPC NO.3968/2012 DATED 10-10-2017 OF THE HIGH COURT OF KERALA

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APPELLANT/PETITIONER:

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LIJOY VARGHESE CHEERAN

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AGED 37 YEARS, S/O. LATE JOY CHEERAN, FULL TIME MENIAL, ST.GEORGE HIGH SCHOOL, THOZHIYOOR P.O, THRISSUR DISTRICT - 682 520.

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BY ADV. SRI.JAI GEORGE

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM, PIN 695 014.

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3 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR AT AYYANTHOLE - 680 003.

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4 THE DISTRICT EDUCATIONAL OFFICER CHAVAKKAD, THRISSUR DISTRICT - 680 506.

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5 THE CORPORATE MANAGER MALABAR INDEPENDENT SYRIAN CHURCH SCHOOL, THOZHIYOOR, THRISSUR DISTRICT - 682 520.

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WA.No.2485 OF 2017 & connected cases 8

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6 THE HEADMISTRESS [IN-CHARGE] ST. GEORGE HIGH SCHOOL, THOZHIYOOR P.O, THRISSUR DISTRICT - 682 520.

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BY SR.GP SRI.T.RAJASEKHARAN NAIR BY ADV. SRI.P.A.JACOB

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2019, ALONG WITH WA.2485/2017, WA.2498/2017 & WA.2499/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. Nos.2485, 2498, 2499 & 2530 of 2017

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JUDGMENT

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K. Vinod Chandran, J.

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The appeals are against the judgments of a

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learned Single Judge in five writ petitions and the issue adjudicated was the rival claims raised by one Sudheer and Lijoy Varghese Cheeran. The learned Single Judge found that Sudheer, whose father expired first, has a claim to compassionate appointment even before Lijoy's claim can be considered. Sudheer was directed to be confirmed in the first post available and Lijoy in the second post.

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2. The Management, the then Headmaster and

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Lijoy filed the above appeals. The Educational Agency, which has filed W.A. No.2485 Of 2017 & 2499 of 2017 submits before us that they have filed applications to withdraw the appeals. The said appeals are hence dismissed as withdrawn. W.A. No.2498 of 2017 is filed by the then Headmaster. The learned Counsel submits that she has no instructions in the matter.

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WA.No.2485 OF 2017 & connected cases 10

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3. Lijoy, however, urge for consideration

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of his appeal. We have to immediately notice that Sudheer is not a party in the writ petition filed

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by Lijoy. Even then we considered the issues raised by Lijoy for completion, especially since all were represented in the proceedings before the learned Single Judge and the writ petitions were disposed of by a common order.

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4. The contention of Lijoy is that when

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the petitioner's father died, there was no compassionate appointment scheme and if at all the claim of the petitioner has to be considered, it is under Rule 9A of Chapter XXIV-A and not under Rule 51B of Chapter XIV-A of the Kerala Education Rules, 1959 [for brevity, 'the KER'] . It is also the contention of the learned Counsel that earlier the claim raised by Sudheer's mother was declined and hence without a challenge to that refusal for compassionate appointment, he could not revive the claim on the basis of a further representation

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WA.No.2485 OF 2017 & connected cases 11

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made, which is produced at Annexure A4 along with the reply affidavit. It is also submitted that earlier there was a direction by this Court to reconsider the issue and the District Educational Officer had ruled in favour of Sudheer, which is challanged in a revision, which is now pending before the Director of Public Instructions [for brevity, 'the DPI']. The learned Counsel appearing for Sudheer, though not a party in that writ appeal, submits that the issue having been now considered by the Government and ruled in favour of Sudheer, there can be no consideration by the DPI, in conflict with the decision of the Government.

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5. We have to notice the brief facts for

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a complete adjudication. Sudheer's father, a nonteaching staff, died on 22.07.1989 and admittedly at that time there was no scheme for compassionate appointment. Rule 51B in Chapter XIV-A and Rule 9A

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of Chapter XXIV-A was brought in by GO(P)

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WA.No.2485 OF 2017 & connected cases 12

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No.55/90/G.Edn. dated 30.03.1990 published in the Kerala Gazette dated 30.03.1990. The Government, on consideration of a representation made by the Association of Managements, kept the provision in abeyance. Later, there were a number of writ petitions filed before this Court, in which this Court directed the Government to take a final stand on the issue. The Government brought out GO(MS) No.15/97/G.Edn. dated 16.01.1997 vacating the stay of Rule 51B and Rule 9A and also directing the Managers of aided Schools to give employment to the dependents of aided school teachers or non-teaching staff. Hence by the Government Order of 1997, the provisions stand revived. This is with effect from 1990, on which date Rule 51B and Rule 9A were notified.

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6. As between Rule 51B and Rule 9A there

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can be no preference found, since both the dependents of teaching staff and non-teaching staff were entitled for compassionate appointment;

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WA.No.2485 OF 2017 & connected cases 13

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which has to be applied independent of each other. Hence between the claims raised by the dependents, it has to be considered on the basis of first deceased among the teachers or the non-teaching staff.

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7. Admittedly, Sudheer's father died in 1989 and the mother of Sudheer submitted an application for compassionate appointment on 20.06.1993 as is seen from Annexure A4 produced along with the petition to receive additional

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documents. A reading of Annexure A4 representation, which is dated 04.01.1999, indicates that on the application being filed, the Deputy Director of Education [for brevity, 'the DDE'], Thrichur informed the mother of Sudheer by a communication dated 09.07.1993 that

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compassionate appointment does not apply to aided School staff. The order of the DDE is perfectly correct since at that point Rule 9A was kept in abeyance and Sudheer's claim arose from the death

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WA.No.2485 OF 2017 & connected cases 14

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of his father, who was a non-teaching staff, a Peon, in the aided School. Later, as we noticed, the provision for compassionate appointment was revived as per the Government Order of 1997. It was then that the mother of Sudheer again made a representation as per Annexure A4. We are of the opinion that there is absolutely no necessity to challenge the earlier denial, since at that point of time the refusal to grant a compassionate appointment was perfectly in order. The subsequent representation also was on the basis of the revival of the scheme of compassionate appointment in the year 1997. In fact the recitals in Annexure A4 specifically indicate that the representation was given only on the mother of Sudheer being informed of such a revival of the scheme of compassionate appointment.

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8. We also notice that Rule 51B and Rule

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9A specifically speak of the Government Orders on compassionate appointment being applicable mutatis

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WA.No.2485 OF 2017 & connected cases 15

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mutandis insofar as the scheme of compassionate appointment as introduced in the KER. The Government Order at that point of time required an application within three years of attaining of majority of the dependent. On going through Annexure A4 we see that the mother of Sudheer has specified his age to be 26 as on 04.01.1999. His date of birth hence is 1973 and he attains majority in 1991. An application is said to have been made on 20.06.1993 within the three year period of attaining majority. The application stood rejected on the basis of the stay of notification issued by the Government itself and the provision stand revived on the stay being vacated in 1997. Sudheer's claim hence has to be considered in precedence over that of Lijoy.

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9. The learned Single Judge had directed that Sudheer's claim has to be first considered and he be approved in the first vacancy arising and Lijoy accommodated in any subsequent vacancy.

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WA.No.2485 OF 2017 & connected cases 16

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On the facts as noticed above, we see no ground to interfere with the judgment of the learned Single Judge. Hence we dismiss W.A. No.2530 of 2017. The appointment, if any, given to Lijoy in the subsequent vacancy shall not be disturbed merely because of the dismissal of the writ petition, since the learned Single Judge had also directed consideration of the same. The approval of appointment of both the persons shall be considered in accordance with the KER and salary shall be disbursed within a reasonable time.

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10. W.A. No.2498 of 2017 is rejected as

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unnecessary.

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The appeals are ordered accordingly and there is no order as to costs.

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Sd/K. VINOD CHANDRAN, JUDGE.

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Sd/V.G. ARUN, JUDGE.

sp/26/09/19

//True Copy//

P.A. To Judge

WA.No.2485 OF 2017 & connected cases

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APPENDIX OF WA NO.2530/2017

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 A TRUE COPY OF THE REPRESENTATION DATED 15/06/1993, SUBMITTED BY M.K. MALU, BEFORE THE DISTRICT EDUCATION OFFICER.

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ANNEXURE A2 A TRUE COPY OF THE LETTER DATED 08/10/1993, ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD.

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ANNEXURE A3 A TRUE COPY OF GO(MS) NO.15/97/G.EDN. ANNEXURE A4 TRUE COPY OF THE PRESENTATION DATED 04/01/1999 SUBMITTED BY THE MOTHER OF SUDHEER.

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ANNEXURE A5 A TRUE COPY OF GO(P) NO.12/99/P&ARD DATED 24/05/1999. ANNEXURE A6 A TRUE COPY OF THE LETTER DATED 14/06/1999 ISSUED BY THE 4TH RESPONDENT TO THE CORPORATE MANAGER. ANNEXURE A7 A TRUE COPY OF THE LETTER DATED 15/01/2000 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD. ANNEXURE A8 A TRUE COPY OF THE JUDGMENT DATED 22/11/2007 IN OP NO.2429/2001. ANNEXURE A9 A TRUE COPY OF THE LETTER DATED 26/03/2008 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD. ANNEXURE A10 A TRUE COPY OF THE ORDER ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. ANNEXURE A11 A TRUE COPY OF THE REVISION FILED BY THE THEN CORPORATE MANAGER BEFORE THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM ON 02/03/2009.

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WA.No.2485 OF 2017 & connected cases

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ANNEXURE A12 A TRUE COPY OF THE APPLICATION FOR COMPASSIONATE APPOINTMENT DATED 02/03/2000. ANNEXURE A13 A TRUE COPY OF THE LETTER DATED 21/07/2000 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER, CHAVAKKAD.

Fr.Varghese Koothoor v. State of Kerala

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Fr.Varghese Koothoor v. State of Kerala

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