Allowed

The Manager v. State of Kerala

Kerala HC13 Nov 2020WP(C)/22571/2014

Case brief

AI extract

What is this about?

This writ petition challenged an order directing the appointment of a deceased teacher's dependent under the compassionate employment scheme. The court held that the application was filed belatedly, exceeding the three-year limit after attaining majority. Relying on precedents, the court ruled that belated claims do not create a right to appointment and the order was set aside.

What did the court decide?

Ext.P2 and Ext.P8 orders directing appointment of the fourth respondent were set aside.

The Manager Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2020)

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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 BECHU KURIAN THOMAS

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FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942

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WP(C).No.22571 OF 2014(V)

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PETITIONER:

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THE MANAGER KOTTOOR A.U.P. SCHOOL, KOTTOOR, KOZHIKODE DISTRICT.

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BY ADV. SRI.P.R.VENKATESH

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RESPONDENTS:

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

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2 THE DEPUTY DIRECTOR OF EDUCATION KOZHIKODE-673020.

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3 THE ASSISTANT EDUCATIONAL OFFICER PERAMBRA-673525.

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4 SABEER.N. NEDUNGADI HOUSE, NADUVANNUR.P.O., KOZHIKODE-673614.

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SRI.B.VINOD, SR. GOVT. PLEADER SMT.RAHANA N.N., GOVT. PLEADER

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R4 BY ADV. SRI.P.C.SASIDHARAN

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W.P.(C) No.22571/14

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-10-2020, THE COURT ON 13-11-2020 DELIVERED THE FOLLOWING:

W.P.(C) No.22571/14

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JUDGMENT

Dated this the 13^th day of November, 2020

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Time and again it has been stated that, compassionate employment is a scheme, intended to tide over the sudden financial crisis caused due to the death of the earning member of a family. Main question that arises in this writ petition is one of time - time to apply for compassionate employment.

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Under the Kerala Education Rules, 1958, (for short ‘KER’), the scheme for compassionate employment attained statutory recognition through chapter XIVA Rule 51B. Till 1999, there was no time limit specified. However, on the basis of directions issued in Sajeesh Babu v. State [1996 (2) KLT 542], the Government formulated orders in which, a time limit of 2 years from the date of death of the government servant, and 3 years after attaining majority in respect of minors, were fixed as time limits for preferring applications for compassionate employment. Though Sajeev Babu's case (supra) was subsequently overruled in Manager, Parli High School v. Narayanan [2002(3) KLT 912], it was held that the requirement of a time limit, has to be read into the Rules, as it stood prior to

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W.P.(C) No.22571/14

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the date of Government order.

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One Impichi Moidi was a teacher in the petitioner’s school. He died in 1987, when, his son Sabeer - the 4^th respondent was only 9 years old. Sabeer attained majority on 01-05-1996. He applied to the petitioner's school on 12-04-2000 for appointment under Rule 51B of the KER. Since petitioner did not appoint him, 4^th respondent represented to the AEO. Pursuant to the directions by this Court, AEO, by Ext.P2, held Sri.Sabeer as eligible to be appointed as a Rule 51B claimant, overruling the contention of the petitioner that the application was belated. Ext.P2 dealt also with the claim of one Smt. Yeshoda, who sought appointment as a Rule 51A claimant. Both Yeshoda and 4^th respondent claimed appointment to the same vacancy that arose on 01-06-2002. The 4^th respondent had become qualified to hold the post of Junior Hindi Teacher on 10-04-2000. By Ext.P2, petitioner was directed to appoint Yeshoda to the vacancy that arose on 01-06-2002 and also directed the 4^th respondent to be appointed to the next arising vacancy of Hindi Teacher.

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Though, the 4^th respondent filed W.P.(C) No.19783 of 2004, by judgment dated 04-07-2013, this Court directed the

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W.P.(C) No.22571/14

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revision petition filed by the Manager to be disposed of in a time bound manner by the Government. It is in the above background, that the impugned order Ext.P8 came to be passed on 08-08-2014, upholding Ext.P2 order of the AEO, directing the 4^th respondent to be appointed with effect from 01-06-2004, which is the date on which Yeshoda retired.

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Counter affidavits have been filed by the 3^rd respondent, as well as the 4^th respondent. The 3^rd respondent has pleaded that, though the application for compassionate employment submitted by the petitioner was belated, since the same was submitted within a reasonable time after attaining majority, petitioner is not disentitled from getting the benefit of Rule 51B of the KER. The 4^th respondent in his pleadings, refer to the background leading to the judgment directing disposal of the revision petition filed by the Manager (facts of which have no significant impact in the present case and hence omitted from being referred to) and stated that Ext.P2 order of the AEO contained two points- one upholding the claim of Yeshoda as a Rule 51A claimant, while the other dealing with the claim of 4^th respondent as a Rule 51B claimant. It was further pleaded that the order of AEO was challenged by the petitioner before this Court in O.P. No. 17555 of 2002 and in W.A. No. 2423 of 2002,

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W.P.(C) No.22571/14

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limited to the claim of Yeshoda, and both ended in dismissal, thereby affirming Ext.P2 order. By the principle of merger and estoppel, 4^th respondent claimed that, even though the challenge was limited to the claim of Yeshoda, petitioner is bound by the judgment in W.A. No.2423 of 2002 and that challenge in the revision petition against the order relating to the 4^th respondent could not have been proceeded with since the order impugned in the writ petition and writ appeal was a composite order dealing with Yeshoda and the 4^th respondent. It was further pleaded that from 2004 onwards he has been denied employment due to him.

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Adv. P. R Venkatesh, learned counsel for the petitioner argued that, the purpose of giving benefit to a dependent under the scheme of compassionate employment is completely lost in the instant case, as the link between sudden financial crisis occurring on account of death of an earning member and the succour obtaining by granting the relief of employment have been completely snapped, legally as well as factually. It was also argued that the belated application cannot confer any right upon the dependent, especially since Ext.P7 is part of the statutory scheme of things, and the same had to be rigorously followed. The petitioner having attained majority on 01-05-1996, his

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W.P.(C) No.22571/14

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application filed on 12-04-2000 was belated and the same cannot be treated as conferring any right to claim appointment.

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Adv. P.C.Sasidharan, learned counsel for the 4^th respondent, justified the impugned order and submitted that petitioner is estopped from challenging the said order due to the dismissal of W.A. No.2423 of 2002 and also that the 4^th respondent has not been able to obtain employment for the last 16 years, due to the various litigation initiated by the petitioner. The learned Senior Government Pleader Adv. B. Vinod supported the impugned order and pleaded to dismiss the writ petition.

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The contentions raised at the Bar are considered with due seriousness.

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The principle of merger will, if applicable, as contended by Adv. P.C Sasidharan, bar the petitioner from contesting Ext.P2 or Ext.P8 order. So the said argument needs consideration first. A reading of Ext.P2 reveals that both Yeshoda as well as 4^th respondent claimed appointment to the vacancy that arose on 01-06-2002 in the petitioner's school. Yeshoda claimed appointment as a Rule 51A claimant. She had an approved service as a Hindi Teacher earlier (from 10-11-1980 to 12-1-1981) and hence she put forth her claim under Rule 51A and rightfully so. Once her claim was found valid, she was

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W.P.(C) No.22571/14

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directed to be appointed to the first vacancy arising which was on 01-06-2002. The 4^th respondent was found eligible to be appointed as a Rule 51B claimant and it was directed, by the same order, to be appointed to the next arising vacancy.

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The claim of Yeshoda was wholly independent of the claim of the 4^th respondent. Consideration of the claim of Yeshoda is not intertwined with the claim of the 4^th respondent. Both of them, though claimed to the same vacancy, the basis of their claims differed. Since the nature of their claim differed, the aggrieved person is entitled to challenge each of the claims separately. Merely because the order considering their differing claims was passed together, the principle of merger does not get attracted. Principle of merger does not get attracted mechanically. Thus, principle of merger or that of estoppel has no application in such an instance.

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To appreciate the challenge against the validity of Ext.P2 and Ext.P8, it is essential to bear in mind that compassionate appointments to teaching posts under the KER, are, as mentioned at the initial part of this judgment, governed by statutory schemes. They are specified in Chapter XIVA Rule 51B of the KER. The statutory scheme does not envisage a dependent as always a dependent. As per the Rule, the

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W.P.(C) No.22571/14

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government orders relating to employment assistance to the dependents of government servants dying-in-harness shall mutatis mutandis apply.

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Even though till 1999, the government rules did not provide any time limit for applications for employment under the dying in harness scheme, this court in Manager, Parli High School v. Narayanan [2002 (3) KLT 912], held that the requirement of a time limit has to be read into the rules as it stood prior to the date of issue of the government order. Thus, even prior to the coming into force of the government order, there was a necessity to read into rule 51B KER, a requirement of time.

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After coming into force of the Government order dated 24-05-1999, a period of three years after attaining majority, was prescribed, for those dependents who were minors on the death of the government servant, to prefer applications. Admittedly, the 4^th respondent became a major on 01-05-1996 and his application was filed only on 12-04-2000. The application is admittedly belated. The vacancy arose on 1-06-2004. The appointment is made to the vacancy that arose on 1-6-2004. It is almost 17 years after the death of the government servant and 8 years after the dependent attained majority that the

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W.P.(C) No.22571/14

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appointment is directed to be given. It is also submitted that due to orders of stay, 4^th respondent has still not been able to enjoy the fruits of Ext.P2 or Ext.P8 order.

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In Shreejith L. v. Deputy Director (Education), Kerala and Others [(2012) 7 SCC 248], it was held that the availability of vacancy and application for compassionate employment are distinctly different matters and an application ought to be made within the time stipulated whether vacancies are available or not. Following observations in that decision are of considerable importance and guidance in the present case. Paragraph 18 and 19 of the Shreejith' s case (supra) reads thus:

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“ 18. The High Court appears to have confused an application required to be filed within the period stipulated for the purpose with the availability of a vacancy against which such an application could be considered by the Manager. These were two distinctly different matters. What was important was the making of an application for appointment on compassionate basis within the period stipulated for the purpose. Whether or not a vacancy is available had nothing to do with the making of the application itself.

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19. An application could and indeed ought to have been made by Respondent 1 within the time stipulated, regardless whether there was a vacancy already available or likely to become available in the near or distant future. Respondent 1 having failed to do that, could not claim a compassionate appointment especially when there was nothing on record to suggest that the family was in penury notwithstanding the lapse of a considerable period since the demise of the breadwinner; during which period Respondent 1 had got married and settled down in life and supports a family. The High Court was in that view clearly in error in

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W.P.(C) No.22571/14

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issuing a mandamus to the Manager to appoint the respondent on compassionate basis which order calls for interference and is hereby reversed.”

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In the decision in Umesh Kumar Nagpal v. State of

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Haryana and others [(1994) 4 SCC 138], it was held that compassionate employment is a means to tide over the sudden financial crisis that has fallen upon the dependent of a government servant due to his untimely death and belated claims for such employment should not be entertained. In the decision in Sameena. A.R. v. State of Kerala and Others [2015 (5) KHC 497], it was held that when an application is preferred out of time, no right to appointment is created. Similarly, in a recent judgment of the Division Bench in Manager, Naduvathur U.P. School and Another v. Bijeesh

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K. and Others [2019 (3) KHC 472], also it was held that “even according to the petitioner, he attained majority on 25/05/1997. The application seeking for compassionate appointment was filed 14 years after he became a major. The period prescribed for filing application being three years from attaining majority, it has to be held that the petitioner had submitted the application way beyond the prescribed period. That being the case, the Manager cannot be compelled to consider the belated claim”.

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Time, thus lapsed for the 4^th respondent to claim a right

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for compassionate employment.

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Even otherwise considering the totality of the circumstances including the facts like belated application for employment, long lapse of time since the death of the teacher and acquisition of qualification by the 4^th respondent for the post sought for, the delay in arising of vacancy, absence of pleading that the 4^th respondent or his family is in a state of penury or in dire straits, together with the legal position narrated above, this Court finds that the 4^th respondent was not entitled to a right or claim for compassionate employment under Rule 51B of the KER in the school managed by the petitioner. Ext.P2 and Ext.P8 orders to the extent of directing appointment of the 4^th respondent to the next arising vacancy is not legal, and are hence set aside.

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The writ petition is allowed as above.

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Sd/-

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BECHU KURIAN THOMAS, JUDGE

vps

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W.P.(C) No.22571/14

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 21-7-2003 IN OP NO.7554/2003 OF THIS HON'BLE COURT. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 28-9-2003 PASSED BY THE AEO, PERAMBRA. EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 2-11-10 IN WPC NO.19783/04 OF THIS HON'BLE COURT. EXHIBIT P4 TRUE COPY OF THE REVISION DATED 14-7-2004 BEFORE THE GOVERNMENT. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 4-7-2013 IN WPC NO. 19783/2004 OF THIS HON'BLE COURT. EXHIBIT P6 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED ON BEHALF OF THE PETITIONER BEFORE THE GOVERNMENT. EXHIBIT P7 TRUE COPY OF THE GO DATED 24-5-1999. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 8-8-2014 OF THE GOVERNMENT.

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RESPONDENT'S/S EXHIBITS:

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EXT.R4(a) TRUE COPY OF THE JUDGMENT DATED 21.7.2002

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EXT.R4(b) TRUE COPY OF THE ORDER DATED 28.9.2003

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EXT.R4(C) TRUE COPY OF THE JUDGMENT OF THE DIVISION BENCH

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DATED 17.6.2005 IN W.A. NO.2423/2002

The Manager v. State of Kerala

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The Manager v. State of Kerala

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