Sabeer. N vs Sabeer. N
2021 Latest Caselaw 8871 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

          THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                     &

                 THE HONOURABLE MR. JUSTICE GOPINATH P.

    WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942

                           WA.No.116 OF 2021

  AGAINST THE JUDGMENT DATED 13-11-2020 IN WP(C) 22571/2014(V) OF
                       HIGH COURT OF KERALA


APPELLANT/4THRESPONDENT:

               SABEER. N
               AGED 43 YEARS
               SON OF IMBICHIMOIDY,
               RESIDING AT NEDUNGADI HOUSE, NADUVANNUR P.O.,
               KOZHIKODE-673614.

               BY ADVS.
               SRI.V.A.MUHAMMED
               SRI.M.SAJJAD

RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3:

      1        THE MANAGER
               KOTTOOR AUP SCHOOL, KOTTOOR,
               KOZHIKODE DISTRICT-673614.

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

      3        THE DEPUTY DIRECTOR OF EDUCATION,
               KOZHIKODE-673020.

      4        THE ASSISTANT EDUCATIONAL OFFICER,
               PERAMBRA, KOZHIKODE DISTRICT-673525.

OTHER PRESENT:

               R1 ADV SRI. P.R VENKATESH,
               R2 TO R4 SR. GOVT. PLADER SRI. A.J VARGHESE

     THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2021, THE
COURT ON 17-03-2021 DELIVERED THE FOLLOWING:
 WA No.116/2021                       -2-

                             JUDGMENT

Dated this the 17th day of March, 2021.

Gopinath, J:

The appellant is the 4th respondent in W.P (C) No.22571/2014. That

writ petition was filed by the Manager of an aided school challenging

proceedings namely Ext.P2 of the Assistant Educational Officer (AEO),

Perambra and Ext.P8 proceedings of the Government directing that the

appellant's claim for appointment under Rule 51B of Chapter XIV-A of the

Kerala Education Rules be granted by the Manager.

2. Rule 51B of Chapter XIV-A of KER provides a statutory claim

for dependents of employees dying-in-harness while working in an aided

school to claim appointment in a suitable vacancy in the very same school

or in any other school if there are more number of schools under the

Managership of a very same educational agency. Till 24-05-1999 the Rules

did not prescribe any time limit for making an application. A Division

Bench of this court in Manager, Parli High School v. Narayanan

[2002 (3) KLT 912] had observed that considering the purposes for

which compassionate appointment is being granted, a time limit must be

read into the Rules.

3. On 24-05-1999 by a Government order namely G.O (P)

No.12/99/P&RD), the Government issued orders regulating the scheme for

compassionate employment in respect of dependents of Government

servants dying-in-harness which is also applicable to claimants under Rule

51B on account of the fact that Government orders issued from time to time

are made applicable to claims under Rule 51B. Through the Government

order of 24-05-1999, it was, inter-alia, provided that the dependent of a

Government servant who dies in harness should make an application for

the benefit of the compassionate employment scheme within an outer time

limit of 2 years from the date of death of the Government servant or if the

dependent in question is a minor within 3 years from the date of attaining

majority. In the facts of the present case, the claim was made only on 12-

04-2000 which is admittedly after the time limit prescribed by the

aforesaid Government order.

4. It is the case of the appellant that insofar as aided schools are

concerned the number of vacancies is limited and its availability depends

on a variety of factors. It is his case that in the school in question a vacancy

to which he could have been accommodated or appointed under the dying-

in-harness scheme was to arise only with effect from 01-06-2000 and

therefore that he was well within his rights to make an application on

12-04-2000. It is also his case that this vacancy was the first arising

vacancy to which he could have aspired for appointment after the date on

which he attained the age of majority.

5. The learned Single Judge, on a consideration of the matter and

after an exhaustive review of all the precedents governing the subject came

to the conclusion that the purpose of the dying-in-harness scheme was to

provide succour to a family on account of the sole breadwinner and the

delay would frustrate the object. The learned Single Judge also considered

the background in which the Government order of 24-05-1999 had been

issued providing a time limit for making the application. In the totality of

the facts and circumstances of the case, the learned Single Judge took the

view that the appellant was not entitled to claim compassionate

appointment.

6. We have heard the learned counsel for the appellant, the

learned Senior Government Pleader for the official respondents and

learned counsel appearing for the 1st respondent Manager. The learned

counsel for the appellant vehemently contends that the claim under Rule

51B is a statutory claim which cannot be defeated on account of any

stipulation in any Government order and also that in the facts of the case

the vacancy to which the appellant could have been appointed was to arise

only on 01-06-2000. We are unable to accept the case of the appellant on

account of the fact that nearly more than 33 years have been passed since

the unfortunate demise of the appellant's father. That apart the application

for appointment was made on 12-04-2000. The appellant attained the

majority in the year 1996. Considering the fact that almost 25 years have

been passed since the appellant attained the age of majority and also

considering the fact that almost 21 years have passed since he made an

application for appointment under the compassionate appointment

scheme, we are of the opinion that no fruitful purpose will be served by

examining the claim of the appellant for compassionate appointment. The

Learned Single Judge found that there was no pleading regarding the

impecunious circumstances (if any) of the family which would justify the

consideration of the claim on merits. As already observed, the purpose of

the compassionate scheme is to give immediate succour to the family which

lost the earnings of the sole breadwinner and the benefits of such a scheme

obviously cannot be extended to a dependent after 33 years of the demise

of the employee in question. For the same reason, we are in complete

agreement with the view taken by the learned single Judge. We see no

reason to upset the findings recorded by the learned Single Judge. The Writ

Appeal fails and is accordingly dismissed.

(Sd/-) A.K. JAYASANKARAN NAMBIAR JUDGE

(Sd/-) GOPINATH P.

JUDGE AMG