Manu Kumar M.K vs The State Of Kerala
2022 Latest Caselaw 9028 Ker

                        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                              PRESENT

                      THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

               WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944

                                    WP(C) NO. 13889 OF 2021

PETITIONER:

                   SUJITH S
                   AGED 36 YEARS
                   S/O. LATE SUDHAKARAN PILLAI, RESIDING AT V.S BHAVANAM, CHOLA,
                   PANMANA, PUTHENCHANDHA P.O, KOLLAM 691 587

                   BY ADVS.
                   SAJITH KUMAR V.
                   VIVEK A.V.
                   GODWIN JOSEPH



RESPONDENTS:

        1          STATE OF KERALA
                   REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA,
                   GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001

        2          SECRETARY
                   HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT
                   SECRETARIAT,, THIRUVANANTHAPURAM 695 001

        3          THE DIRECTOR OF COLLEGIATE EDUCATION
                   OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION,
                   THIRUVANANTHAPURAM 695 001

        4          THE SECRETARY/MANAGER
                   N.S.S CORPORATE EDUCATIONAL AGENCY, HEAD OFFICE, PERUNNAI,
                   CHANGANACHERRY 686 102

                   BY ADV P.GOPAL



OTHER PRESENT:

                   SMT PARVATHY K-GP




        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2022,

ALONG       WITH   WP(C).30704/2021,    THE    COURT    ON   THE   SAME   DAY   DELIVERED   THE

FOLLOWING:
 WP(C) NOs. 13889 & 30704 OF 2021

                                                 2




                        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                              PRESENT

                      THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

               WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944

                                    WP(C) NO. 30704 OF 2021

PETITIONER:

                   MANU KUMAR M.K.
                   AGED 33 YEARS
                   SON OF LATE MOHANA KUMARAN, KALATHIL, THRIKKODITHANAM,
                   CHANGANASSERY 686 105, KOTTAYAM DISTRICT

                   BY ADVS.
                   V.A.MUHAMMED
                   M.SAJJAD



RESPONDENTS:

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

        2          THE DIRECTOR OF COLLEGIATE EDUCATION
                   CORPORATION BUILDINGS, VIKAS BHAVAN, THIRUVANANTHAPURAM 695 033

        3          THE SECRETARY
                   N S S COLLEGES CENTRAL COMMITTEE, CHANGANASSERY 686 105,
                   KOTTAYAM DISTRICT

                   BY ADV P.GOPAL

                   SMT.PARVATHY - GP




        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2022,

ALONG       WITH   WP(C).13889/2021,    THE    COURT    ON   THE   SAME   DAY   DELIVERED   THE

FOLLOWING:
 WP(C) NOs. 13889 & 30704 OF 2021

                                      3




                              JUDGMENT

The petitioners in these two cases are seeking compassionate

appointments, consequent to the death of their relatives while, in-

harness, under the Scheme for Compassionate appointment approved

by the Government through order No.10/2020/H.Edn dated 17.02.2020.

2. However, it is conceded that going by the said Government

Order, a person would be entitled to seek compassionate appointment

only if the deceased died after 07.10.2013. The sole reason stated in

the order for fixing this date is that, it was with effect from that date

that Government issued orders implementing the Compassionate

appointment Scheme in Aided Colleges.

3. The petitioners assert that the afore cut-off date in the

Government Order is illegal because, even though the benefits under it

could have been granted prospectively, it could not have denied

benefits to persons like them, who had been fighting for such

appointment for the last several years prior to the coming into force of

the said order. The petitioners, therefore, pray that the Management in

these cases be directed to appoint them on Compassionate basis de

hors the afore stipulation in the Government Order dated 17.02.2020.

4. I have heard Sri.V.Sajith Kumar - learned counsel for the

petitioner in W.P.(C)No.13889/2021; Sri.V.Rajasekharan Nair - learned

counsel for the petitioner in W.P.(C)No.30704/2021; Sri.P.Gopal - WP(C) NOs. 13889 & 30704 OF 2021

learned counsel appearing for the Management in both cases and

Smt.Parvathy K - learned Government Pleader appearing for the

official respondents.

5. Even though I have heard this matter in great detail,

particularly in the context of the objections raised by the Management

to the claim of the petitioners on the ground that their relatives had

died prior to 07.10.2013, the fact remains that as long as the view of

the Government is as recorded in the aforementioned Government

Order, it will be difficult for the petitioners to seek appointment under

the Compassionate Scheme.

6. However, it must be borne in mind that these are the

persons who had been fighting all this while for getting the benefits

under the Scheme. They were earlier denied appointments solely

saying that the Scheme had not been put into operation, but when it

was done - which ironically, was at the instance of the petitioner in

W.P.(C)No.13889/2021, who had earlier obtained a judgment from this

Court in W.P.(C)No.21632/2014 - they have been denied the benefits

thereunder solely because the aforementioned cut-off has been

implemented.

7. Pertinently, in the case of the petitioner in W.P.

(C)No.13889/2021; the Government thereafter issued Ext.P9 order in

his favour asking the Management to appoint him; however, subject to WP(C) NOs. 13889 & 30704 OF 2021

the conditions in the aforementioned Government Order.

8. The sum total is that even though the petitioners were in

the forefront of obtaining a Scheme for Compassionate appointment,

they have been now denied benefits under it only because the

Government thought it fit to incorporate a condition in their order that

such benefits can be given only in the case of employees who died after

07.10.2013.

9. This Court does not intend to go into the merits of the rival

contentions at this stage, but suffice to say that there are precedents

holding the field to the effect that even when Schemes are made

prospective, the denial of benefits to persons based on a cut-off date

perhaps may not be fully tenable.

10. I am, therefore, of the firm view that the matter must

engage the mind of the Government appropriately, particularly when,

as I have already said above, the petitioners before this Court are the

persons who are instrumental in getting the Scheme approved; but who

have now been left high and dry for no fault that can be attributable to

them.

11. This is, prima facie, inequitable because, normally, the

fruits of their efforts should have been made available to the

petitioners, but they have been now left without it singularly because of

the cut-off date imposed by the Government. WP(C) NOs. 13889 & 30704 OF 2021

12. In the afore circumstances, I am certain that Government

must reconsider the matter, particularly with respect to the cut-off

date; clarifying that even if such a date is found necessary, then to

decide whether the benefits thereunder can be prospective, without

denying it to those people, whose relatives died prior to it.

In the afore circumstances, I order these writ petitions to the

limited extent of directing the competent Authority of the Government

to hear the petitioners, as also the authorized official of the

Management; and to issue appropriate orders adverting to my

observations above, as expeditiously as is possible but not later than

three months from the date of receipt of a copy of this judgment.

I reiteratinlgy clarify that if, for any reason, Government is unable

to accede to the request of the petitioners with respect to the cut-off

date, it will also be left to them - taking note of the peculiar

circumstances involved as regards the petitioners - to grant them any

benefit which may be apposite, taking note of the fact that they have

been pursuing their request and even litigating for the same.

Needless to say, if, after the afore exercise, the Government is to

find in favour of the petitioners, then, subject to the rights of the

Management, they shall implement the same, giving the petitioners

suitable appointments in terms of law, without any avoidable delay

thereafter.

WP(C) NOs. 13889 & 30704 OF 2021

It goes without saying that liberty is also reserved to the

petitioners to challenge any order that may be issued by the

Government subsequent to the afore exercise; for which purpose, all

their contentions are left open.

SD/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NOs. 13889 & 30704 OF 2021

APPENDIX OF WP(C) 30704/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE JUDGMENT IN W.P(C) NO 30738/2004 DATED 20-12-2011

Exhibit P2 TRUE COPY OF THE JUDGMENT IN W.A NO. 248/2012 DATED 01-10-2014

Exhibit P3 TRUE COPY OF THE ORDER IN SPECIAL LEAVE TO APPEAL (C0 NO. 34891/2014 OF THE HON'BLE SUPREME COURT DATED 25-10-2017

Exhibit P4 TRUE COPY OF THE JUDGMENT IN W.P(C) NO. 21632/2014 DATED 05-11-2019

Exhibit P4A TRUE COPY OF THE G.O(RT) NO. 520/2020/HEDN DATED 12-04-2020 OF THE GOVT.

Exhibit P5 TRUE COPY OF THE G.O(P) NO. 10/2020/H.EDN DATED 17-

02-2020 OF THE GOVT.

Exhibit P6 TRUE COPY OF THE JUDGMENT IN W.P9C) NO. 2520/2020 DATED 04-03-2021

Exhibit P7 TRUE COPY OF THE LETTER ADDRESSED TO THE 3RD RESPONDENT DATED 11-12-2008 ALONG WITH ENGLISH TRANSALATION

Exhibit P7A TRUE COPY OF THE LETTER ADDRESSED TO THE PRINCIPAL DATED 11-12-2008 ALONG WITH ENGLISH TRANSLATION

Exhibit P8 TRUE COPY OF THE LETTER ADDRESSED TO THE EDUCATION SECRETARY DATED 14-02-2013 ALONG WITH ENGLISH TRANSLATION

Exhibit P9 TRUE COPY OF THE LETTER NO. D3/147/2015-HEDN DATED 15-06-2016 OF THE GOVT.

Exhibit P10 TRUE COPY OF THE LETTER NO. E4/47419/2015/COLL. EDN DATED 28-07-2017 OF THE 2ND RESPONDENT ALONG WITH ENGLISH TRANSLATION

Exhibit P11 TRUE COPY OF THE LETTER ADDRESSED TO THE MINISTER WP(C) NOs. 13889 & 30704 OF 2021

FOR EDUCATION ALONG WITH ENGLISH TRANSLATION

Exhibit P12 TRUE COPY OF THE LETTER ADDRESSED TO THE CHIEF MINISTER ALONG WITH ENGLISH TRANSLATION

Exhibit P13 TRUE COPY OF THE LETTER ADDRESSED TO THE PRINCIPAL, NSS HINDU COLLEGE DATED 06-10-2021 ALONG WITH ENGLISH TRANSLATION

Exhibit P14 TRUE COPY OF THE JUDGMENT IN W.A NO. 1621/1998 DATED 11-11-2002 WP(C) NOs. 13889 & 30704 OF 2021

APPENDIX OF WP(C) 13889/2021

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE APPLICATION DATED 07-07-2012 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

Exhibit P2 A TRUE COPY OF THE CERTIFICATE DATED 29-11-2010 ISSUED BY THE TAHSILDAR, KARUNAGAPALLY.

Exhibit P3 A TRUE COPY OF THE DEATH CERTIFICATE DATED 26-05-

2011 ISSUED BY THE THIRUVANANTHAPURAM CORPORATION.

Exhibit P4 A TRUE COPY OF THE GO(MS) 636/2013/H.EDN DATED 07-

10-2013 ON BEHALF OF THE 2ND RESPONDENT.

Exhibit P5 A TRUE COPY OF THE RTI APPLICATION DATED 07-03-2014 SUBMITTED TO THE 3RD RESPONDENT.

Exhibit P6 A TRUE COPY OF THE RTI REPLY LETTER DATED 14-03-

2014 ISSUED ON BEHALF OF THE 3RD RESPONDENT.

Exhibit P7 A TRUE COPY OF THE JUDGMENT DATED 05-11-2019 IN WP(C) NO 21632/2014 OF THIS HON'BLE COURT.

Exhibit P9 A TRUE COPY OF THE G.O(RT) NO 520/2020/HEDN DATED 12-04-2020 BY THE 2ND RESPONDENT.

Exhibit P10 A TRUE COPY OF THE REPRESENTATION DATED 20-05-2020 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT.

Exhibit P11 A TRUE COPY OF THE ACKNOWLEDGMENT CARD DATED 28-05-

Exhibit P12 A TRUE COPY OF THE APPLICATION DATED 28-06-2021 SUBMITTED BY THE PETTIONER TO PRINCIPAL, N.S.S COLLEGE, PANDALAM WITH ITS RECEIPT.