Chinju Prabha.L vs Travancore Devaswom Board
2021 Latest Caselaw 18064 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943
                         WP(C) NO. 5895 OF 2021
PETITIONER :-

           CHINJU PRABHA.L.,
           W/O.OF SHRI.DHANESH, DHANESH BHAVANAM, ERICKAVU,
           KARTHIKAPPALLY P.O., ALLEPPEY DISTRICT,
           KERALA, PIN - 690 516.

           BY ADVS.
           SRI.K.N.SASIDHARAN NAIR
           SRI.LEO GEORGE


RESPONDENTS :-

    1      TRAVANCORE DEVASWOM BOARD
           REP.BY ITS SECRETARY, TRAVANCORE DEVASWOM BOARD,
           THIRUVANANTHAPURAM - 695 003.

    2      SECRETARY
           TRAVANCORE DEVASWOM BOARD,
           THIRUVANANTHAPURAM - 695 003.

    3      DEVASWOM COMMISSIONER
           TRAVANCORE DEVASWOM BOARD,
           THIRUVANANTHAPURAM - 695 003.

  ADDL.4   NANDAGOPAN, AGED 26 YEARS,
           S/O.GOPAKUMAR, SREEPADMAM,
           OPPOSITE TO MAHADEVA TEMPLE, KATTAKADA,
           THIRUVANATHAPURAM, PIN-695 572.

           ADDL.R4 IMPLEADED AS PER ORDER DATED 26/07/2021 IN
           IA.1/2021 IN WP(C)

           BY ADVS.
           SRI.G.BIJU, SC, TRAVANCORE DEVASWOM BOARD
           SRI.GOPAKUMAR R.THALIYAL

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.8.2021, ALONG WITH WP(C).12476/2021, THE COURT ON 3.9.2021
DELIVERED THE FOLLOWING:
 WP(C) NOS.5895 & 12476 OF 2021

                                 -: 2 :-


                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943
                         WP(C) NO. 12476 OF 2021
PETITIONER :-

           NANDAGOPAN, AGED 26 YEARS
           S/O.GOPAKUMAR, SREEPADMAM, OPPOSITE TO MAHADEVA TEMPLE,
           KATTAKKADA, THIRUVANANTHAPURAM - 695 572.

           BY ADVS.
           GOPAKUMAR R.THALIYAL
           M.S.VIJAYACHANDRA ABABU


RESPONDENTS :-

     1      TRAVANCORE DEVASWOM BOARD,
            NANTHANCODE, THIRUVANANTHAPURAM - 695 004,
            REPRESENTED BY ITS SECRETARY.

     2      THE COMMISSIONER,
            TRAVANCORE DEVASWOM BOARD,
            NANTHANCODE, THIRUVANANTHAPURAM - 695 004.

     3      SMT.CHINJU PRABHA.L.,
            W/O.DHANESH, DHANESH BHAVANAM, ERICKAVU,
            KARTHIKAPPALLY (P.O.), ALAPPUZHA DISTRICT - 690 516.

           BY ADVS.
           SRI.G.BIJU, SC, TRAVANCORE DEVASWOM BOARD
           SRI.K.N.SASIDHARAN NAIR
           SRI.LEO GEORGE

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.8.2021, ALONG WITH WP(C).5895/2021, THE COURT ON 03.09.2021
DELIVERED THE FOLLOWING:
 WP(C) NOS.5895 & 12476 OF 2021

                                   -: 3 :-


                              JUDGMENT

[WP(C) Nos.5895/2021 & 12476/2021] Dated this the 3rd day of September, 2021

W.P.(C).No.5895 of 2021 is filed seeking directions to the

respondents to appoint the petitioner as Lower Division Clerk or Sub

Group Officer (2nd grade) or any other appropriate post in the next

arising vacancy under the compassionate appointment Scheme.

2. The learned counsel for the petitioner submits that the

petitioner's father Sri.Ramachandran Pillai died on 28.7.2010 while

working as Watcher in the service of the Travancore Devaswom

Board. It is submitted that the petitioner's mother had made an

application for compassionate appointment on 25.7.2011. Thereafter,

the said application was withdrawn and the petitioner submitted

Exhibit P2 application dated 9.7.2012 for compassionate

appointment. When no orders were passed thereon, she again

preferred Exhibit P3 application dated 05.05.2015. This Court, by

Exhibit P4 judgment dated 8.03.2017 directed the 3 rd respondent to

consider the petitioner's application within six weeks. It is submitted

that Ext.P6 list dated 10.11.2017 had been approved by the Board,

containing 45 candidates seeking compassionate appointment and

the Board had not included the name of the petitioner in the list. WP(C) NOS.5895 & 12476 OF 2021

Being aggrieved the petitioner submitted Ext.P7 petition before the

Board. However, orders were not passed which prompted the filing

of this writ petition.

3. W.P.(C).No.12476/2021 is filed by the additional 4 th

respondent in W.P.(C).No.5895/2021 seeking the following reliefs:-

"i) to issue a writ of certiorari, or any other appropriate writ, direction or order,

quashing Exhibit P6 order as highly arbitrary, illegal, unreasonable and unjust.

ii) to declare that any selection under the dying-in-harness scheme in the 1 st

respondent Board should be made from Exhibit P1 list starting from serial number

9 onwards ending with serial number 31.

iii) to issue a writ of mandamus, or any other appropriate writ, direction or order,

directing the respondents 1 and 2 to make appointments under the dying-in-

harness scheme either on temporary basis or on permanent basis from Exhibit P1

on priority basis as per serial numbers in the list. "

The learned counsel for the petitioner submits that the petitioner is

an applicant under the dying-in-harness scheme in the 1 st respondent

Board. For appointment under the dying-in-harness scheme, the 1 st

respondent published Exhibit P1 list provisionally selecting 31

qualified candidates for regular selection as per the 10% quota

earmarked for dying-in-harness scheme. The petitioner is serial

number 21 in Exhibit P1 list. The dependents of the persons who died

in harness have to wait 4 to 8 years for being included in Exhibit P1 WP(C) NOS.5895 & 12476 OF 2021

list. Under the dying-in-harness scheme, only 7 persons were

regularised from Exhibit P1 list published on 21.11.2017 and the

remaining 23 persons in Exhibit P1 list are still waiting for regular

appointment. Now the 1st respondent as per Exhibit P6 order has

decided to give permanent appointment to the 3 rd respondent under

the dying-in-harness scheme in the next first arising vacancy

overlooking the seniority of the petitioner, who is included in Exhibit

P1 list. Hence this Writ Petition is filed.

4. The petitioner contends that what is to be considered is

the date of application for compassionate appointment and the

consideration of the application made by Smt.Chinju Prabha, the

petitioner in W.P.(C).No.5895 of 2021 is illegal. It is submitted that

Exhibit P1 list had been prepared as early as on 21.11.2017 in which

the petitioner's name is included as Sl.No.21. It is submitted that

the decision taken to appoint the petitioner in W.P.(C).No. 5895/2021

in the next arising vacancy by Exhibit P6 order is illegal and

arbitrary. It is further contended that the application preferred by

the 3rd respondent's mother cannot be considered as a valid

application and that the claim of the 3rd respondent itself was belated.

5. In support of the contentions, the learned counsel places

reliance on the decisions of this Court in Cochin Dock Labour WP(C) NOS.5895 & 12476 OF 2021

Board v. Leenamma Samuel and others [ 1998 (9) SCC 87], State

Bank of India and another v. Raj Kumar [2010 (11) SCC 661] and

Chairman-cum-Managing Director, BSNL and another v. Syam

Kumar B [2017(3) KHC 785].

6. A counter affidavit has been placed on record in W.P.

(C).No.12476 of 2021 by the 3rd respondent. It is contended therein

as follows:-

"10.As regards the contentions raised in grounds A to D, it is submitted that Exhibit P6 order has been issued in accordance with the principle of seniority. Exhibit P6 order is perfectly legal and valid and does not suffer from any infirmity. Contentions to the contrary raised in grounds A to D are devoid of merit. With reference to the contentions raised in ground E, it is submitted that this respondent submitted Exhibit R3(a) application for employment on 09/07/2012 and Exhibit R3(b) application on 05/05/2015. This Hon'ble Court by Exhibit P4 judgment had categorically directed the 2 nd respondent to consider and pass orders on R3(a) application. Hence contention regarding failure to apply for appointment within two years of death of the deceased employee is devoid of substance. There is no bar under the extant rules/instructions governing employment under the 'dying-

in-harness scheme' to married daughters applying for such employment, Contention regarding the employment and income of the spouse of this respondent is baseless. The spouse of this respondent is a non-matriculate and unemployed. A true copy of the income certificate No.11226929 dated 21/04/2015 issued by the Kumarapuram Village Office, Alleppey District, is produced herewith WP(C) NOS.5895 & 12476 OF 2021

marked as Exhibit R3(f). Exhibit R3(f) will show that the annual income of this respondent's family is Rs.30,000/- (Rupees Thirty Thousand Only). It is further submitted that Exhibit P6 order is in conformity with the principle of seniority and does not overlook the seniority of any candidate waiting for compassionate appointment under the 'dying-in-harness scheme' of the Board. "

A reply is also on record, stating as follows:-

"7.In this context, it is to be noted here that the 3 rd respondent cannot claim death seniority for getting appointment under the dying-in-harness scheme. The reason is that the rule then in force at the time of the death of the father of the 3rd respondent prescribed an income limit to get an employment under the scheme. Though the 3 rd respondent's mother applied for appointment under the scheme, the same was rejected as the income limit of the family exceeded the limit prescribed in the rules. Subsequently, the mother of the 3 rd respondent relinquished her claim and requested the Board to provide the appointment under the scheme to her daughter, the 3rd respondent herein as per Exhibit P8 representation. Thereafter, the 3 rd respondent submitted Exhibit R3(b) application on 05.05.2015. Therefore, the eligibility of the 3 rd respondent has to be considered from the date of the said application. Hence, she will be getting Seniority for appointment only from 05.05.2015."

7. A statement is on record in W.P.(C).No.12476/2021 by the

Travancore Devaswom Board as well. It is contended that there are

currently two lists of applicants under the Rules for the Appointment

of Relatives/Dependants of Devaswom Employees Dying-in-harness, WP(C) NOS.5895 & 12476 OF 2021

1989. It is submitted that the first list was published on 10.11.2017

and the 2nd list on 25.01.2018. Permanent appointment had been

given to 30 applicants from 24.6.2019 and 25 are waiting for

appointment from the 1st list. It is submitted that there are 44

applicants waiting for appointment in the 2 nd list. It is submitted that

the writ petitioner's father passed away on 22.3.2013 and he

submitted an application for compassionate appointment on

18.7.2013. He was included as Sl.No.37 in the 1 st list. It is submitted

that the 3rd respondent's father passed away on 28.7.2010 and her

mother had made an application for compassionate appointment on

25.07.2011. The said application was withdrawn on 7.11.2014 and a

fresh application was submitted on 5.5.2015 seeking appointment of

the 3rd respondent under the Scheme. It is submitted that thereafter,

Exhibit P4 judgment had been issued by this Court directing

consideration of the claim of the 3 rd respondent and a Board Order

dated 24.5.2017 had been issued directing the Devaswom

Commissioner to include the 3 rd respondent's name in the list of

applicants under the Dying-in-harness Scheme. It is submitted that

Exhibit P4 judgment went unnoticed by the Devaswom Commissioner

while issuing Exhibit P6 list (in W.P.(C).No.5895/2021) which was

the reason for non-inclusion of her name in the list. It is submitted WP(C) NOS.5895 & 12476 OF 2021

that the writ petition filed without challenging the Board Order is

unsustainable.

8. A reply affidavit is also placed on record by the petitioner

as against the statement filed by the Board. It is contended therein

that the application of the 3rd respondent was highly belated having

been filed only on 5.5.2015. It is contended that no list, as stated in

the statement, has been prepared or published by the Devaswom and

that the petitioner who had made an application soon after the death

of his father is eligible for appointment in preference to the 3 rd

respondent, whose application was clearly belated.

9. I have considered the contentions advanced on all sides. It

is trite law that the right for compassionate appointment under the

Dying-in-harness Scheme is not a vested right or an absolute right.

However, when a scheme is improvised for providing compassionate

appointment to dependents of employees dying-in-harness,

appointments have to be made in accordance with such scheme. The

petitioner in W.P.(C).No.12476 of 2021, whose father admittedly

passed away in the year 2013 had made an application for

compassionate appointment in the same year. His name was also

included in the list. It is a specific case of the Devaswom that going

by the rules what is to be taken into account is the seniority on the WP(C) NOS.5895 & 12476 OF 2021

basis of date of death of the deceased employee.

10. It is submitted that the 3 rd respondent's mother had made

a specific request to withdraw her application and to permit the 3 rd

respondent to prefer a request for compassionate appointment in

terms of the Rules. The said request was allowed by the Board on

7.4.2015. Pursuant thereto, the petitioner submitted an application

under the Dying-in-harness Scheme on 15.5.2015. When no steps

were taken to consider the same, the 3rd respondent approached this

Court. This Court in Exhibit P4 judgment had directed the

consideration of the claim of the 3 rd respondent in accordance with

the Scheme in force. It is contended by the Devaswom Board that

pursuant to Exhibit P4 judgment, the Board had considered the issue

and had passed order dated 24.5.2017 directing the inclusion of the

3rd respondent in the list prepared by the Devaswom Commissioner

for appointment of employees under the dying-in-harness scheme.

Thereafter, appropriate follow-up action had been taken by the

Devaswom Commissioner and the 3rd respondent was directed to be

appointed in the next arising vacancy, taking note of the seniority

based on the date of death of the deceased employee. Though all

these orders are specifically referred to in Ext.P6 and such a specific

case had been raised by the respondents in the statement, no attempt WP(C) NOS.5895 & 12476 OF 2021

has been made by the petitioner in W.P.(C).No.12476/2021, either to

challenge the Board order or to establish before this Court that the

direction for appointment of the 3 rd respondent in the next arising

vacancy was in any manner against the provisions of the relevant

rules.

11. In Cochin Dock Labour Board v. Leenamma Samuel

and others [ 1998 (9) SCC 87] this Court was considering the case of

a widow, who had made an application for appointment on

compassionate grounds under the Cochin Dock Labour Board. The

Board had submitted that there were several applications filed by

dependants of workmen pending before the Board and that the

consideration of the claim of one such applicant in isolation would

result in unfairness to the other applicants. The learned single Judge

of this Court allowed the writ petition and directed the appointment

of the applicant in the next arising vacancy. The writ appeal filed by

the Board was dismissed. The matter was taken up before the Apex

Court and it was held that in view of the fact that there were several

applicants, the direction given to consider the 1st respondent against

the next arising vacancy was unwarranted.

12. In Chairman-cum-Managing Director, BSNL and

another v. Syam Kumar B [2017(3) KHC 785], a Division Bench of WP(C) NOS.5895 & 12476 OF 2021

this Court considered the Scheme for Compassionate Appointment

under the BSNL and held that the relevant date for consideration of

an appointment on compassionate ground is not the date of death,

but the date of consideration of the application for appointment.

13. In the instant case, the Rules for Appointment of

Relatives/Dependents of Devaswom Employees Dying-in-harness,

1989 provided for preparation of a list according to seniority based

on the date of death of the employee. It is apparent from the list

produced and relied on in the instant case itself that the seniority

therein is reckoned on the basis of the date of death and not the date

of application. The Devaswom Board in 2015 allowed the request of

the 3rd respondent's mother to withdraw her application and for a

consideration of the application submitted by the 3 rd respondent.

Thereafter, pursuant to Ext.P4 judgment, the application submitted

by the 3rd respondent was favourably considered and the 3 rd

respondent was directed to be appointed against the next arising

vacancy. I am of the opinion that the decisions referred to and relied

on by the learned counsel for the petitioner in W.P.

(C).No.12476/2021 have no application to the facts of the instant

case. The decisions were rendered in completely different factual

circumstances and considering totally different schemes for WP(C) NOS.5895 & 12476 OF 2021

compassionate appointments and therefore cannot have an

application in the facts of the instant case as narrated above.

In the facts and circumstances of the instant case, I find

that in the light of the orders passed by the Board on 7.4.2015

permitting the 3rd respondent to submit an application after

permitting the withdrawal of the application already submitted by her

mother and in the light of the Board order dated 25.5.2017, the

challenge raised by the writ petitioner in W.P.(C).No.12476/2021 as

against Ext.P6 order is not sustainable. In the result the said writ

petition is dismissed.

W.P.(C).No. 5895/2021 is allowed. There will be a direction

to the respondents in W.P.(C).No.5895/2021 to give effect to the

order issued by the Board dated 21.04.2021 and to take necessary

follow-up action in the matter without delay.

Sd/-

Anu Sivaraman, Judge sj WP(C) NOS.5895 & 12476 OF 2021

APPENDIX OF WP(C) 5895/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF DEATH CERTIFICATE ISSUED BY THE CORPORATION OF COCHIN BEARING NO.D0150169 - 100 7305 DATED 17.8.2010

EXHIBIT P2 TRUE COPY OF THE PETITIONER'S APPLICATION FOR COMPASSIONATE APPOINTMENT DATED 9.7.2012

EXHIBIT P3 TRUE COPY OF THE PETITIONER'S SECOND APPLICATION FOR COMPASSIONATE APPOINTMENT DATED 5.5.2015

EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.1611 OF 2016 DATED MARCH 8,2017

EXHIBIT P5 TRUE COPY OF THE ACKNOWLEDGMENT OBTAINED FROM THE THIRD RESPONDENT DATED 20.3.2017

EXHIBIT P6 TRUE COPY OF THE LIST OF 45 CANDIDATES, APPROVED BY THE BOARD AS PER BOARD ORDER NO.ROC 12234/17/EST 4 DATED 10.11.2017

EXHIBIT P7 TRUE COPY OF THE PETITION SUBMITTED TO THE THIRD RESPONDENT DATED 15.2.2021

RESPONDENTS' EXHIBITS :-

EXHIBIT R4(a) : TRUE COPY OF THE JUDGMENT IN W.P.(C)No.39767/ 2017 PASSED BY THIS HON'BLE COURT DATED 11.04.2018. WP(C) NOS.5895 & 12476 OF 2021

APPENDIX OF WP(C) 12476/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 21.11.2017.

Exhibit P2 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 20.12.2014.

Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 08.06.2015.

Exhibit P4 TRUE COPY OF THE JUDGMENT PASSED BY THIS HONBLE COURT I WPC NO. 1611/2016 DATED 08.03.2017.

Exhibit P5 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 12.05.2017.

Exhibit P6 TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 21.04.2021.

Exhibit P7 TRUE COPY OF THE ORDER PASSED BY THIS HONBLE COURT IN WPC NO. 28317/2020 DATED 18.12.2020.

RESPONDENTS' EXHIBITS :-

EXHIBIT R3(a) : TRUE COPY OF THE THIRD RESPONDENT'S APPLICATION FOR COMPASSIONATE APPOINTMENT DATED 09/07/2012.

EXHIBIT R3(b) : TRUE COPY OF THE 3RD RESPONDENT'S SECOND APPLICATION FOR COMPASSIONATE APPOINTMENT DATED 05/05/2015.

EXHIBIT R3(c) : TRUE COPY OF THE ACKNOWLEDGMENT FROM THE 2ND RESPONDENT DATED 20/03/2017.

EXHIBIT R3(d) : TRUE COPY OF THE LIST OF CANDIDATES PREPARED AS PER BOARD ORDER No.ROC.12234/17/Est.4. DATED 10.11.2017.

EXHIBIT R4(e) : TRUE COPY OF THE PETITION SUBMITTED TO THE 2ND RESPONDENT DATED 15/02/2021.

WP(C) NOS.5895 & 12476 OF 2021

EXHIBIT R3(f) : TRUE COPY OF THE INCOME CERTIFICATE ISSUED BY THE KUMARAPURAM VILLAGE OFFICE, ALLEPPEY DISTRICT, BEARING No.11226929 DATED 21/04/2015.