Kerala High Court
Mohammed Shaluf vs The Kerala State Co-Operative ... on 3 April, 2024
1
WPC 6546/24
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946
WP(C) NO. 6546 OF 2024
PETITIONER/S:
MOHAMMED SHALUF, AGED 26 YEARS S/O.MOHAMMED MOIDEEN,
MANAKULANGARA PARAMBIL HOUSE, KOMBIDINJAMAKKAL, THAZHAKKAD
P.O, THRISSUR DISTRICT, PIN - 680697
BY ADVS. ARJUN RAGHAVAN T.R.HARIKUMAR POOJA PANKAJ
RESPONDENT/S:
1 THE KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK LTD NO.T 4017 REPRESENTED BY ITS MANAGING
DIRECTOR, AGRICULTURAL DEVELOPMENT BANK BUILDING, STATUE
JUNCTION, THIRUVANANTHAPURAM, PIN - 695001
2 THE BOARD OF DIRECTORS OF THE KERALA STATE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD NO.T 4017
REPRESENTED BY ITS PRESIDENT, AGRICULTURAL DEVELOPMENT BANK
BUILDING, STATUE JUNCTION, THIRUVANANTHAPURAM, PIN - 695001
3 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, JAWAHAR SAHAKARANA
BHAVAN, DPI JUNCTION, THYCAUD P.O, THIRUVANANTHAPURAM, PIN -
695014
4 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,
CO-OPERATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695014
OTHER PRESENT:
SR GP SMT MARY BEENA JOSEPH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WPC 6546/24
JUDGMENT
(Dated this the 3rd day of April 2024)
The petitioner's father was an employee under the 1st
Respondent Bank. He met with a tragic accident on 21.8.2020
and became permanently disabled. Ext.P4 is the disability
certificate issued by the Medical Board attached to the
Government Government Medical College Hospital,
Mulankunathukavu, Thrissur, which certifies that the father of
the petitioner has 100% disability.
2. The petitioner is a Bachelor's degree holder in
Mechanical engineering. After the tragic accident of his father,
the family finds it very difficult to pull on and meet the two
ends meet. Therefore, the petitioner submitted Ext.P11
application before the 1st respondent seeking compassionate
appointment under the dying in harness scheme under Rule
188A of the Kerala Co-operative Societies Rules (for short 'the
Rules'). The petitioner was informed through Ext.P12 letter
dated 24.6.2021 that the request of the petitioner cannot be
considered under the present scheme. On 1.1.2022, the
petitioner was issued with Ext P13 letter directing him to
produce certain requisite documents for considering his
application for compassionate appointment by the
Government. Though he has produced all the medical
certificates and documents, by EXt.P14 communication dated
10.2.2023 it was informed that the application cannot be
considered since compassionate appointment under the dying
in harness scheme can only be given to dependant persons of
the employees who had died while in service. Ext.P14 is issued
pursuant to Ext.P15. The petitioner has approached this court
with the following prayers;
i) to issue a writ of certiorari calling for the records leading
to the issuance of Exts-P14 and P15 communications issued by
respondents 1 and 3, and quash the same;
ii) to issue a writ of mandamus or any other appropriate writ
of direction, directing respondents 1 to 4 to reconsider Ext-P11
application submitted by the petitioner, by treating the case of
the petitioner's father under Rule 188A of the Kerala Co-
operative Societies Rules;
iii) to declare that Rule 188A of the Kerala Co-operative
Societies Rules would also include the cases of employees who
are permanently incapacitated;
iv) to declare that the stand of respondents 3 and 4 as
discernable from Exts-P14 and P15 communications that the
petitioner's application cannot be considered as his father is still
alive, is arbitrary and capricious;
v) to dispense with filing of the translation of vernacular
documents;
vi) to grant such other relief's as this Honourable Court may
deem fit in the circumstances of this case.
3. Heard the counsel on both sides.
4. The counsel for the petitioner relied on a judgment of
this court in Rita Bella R. v. State of Kerala and others [2015
(1) KHC 590], wherein a learned Single Judge of this court
held that an employee, who has 100% permanent disability and
permanently incapacitated has to be provided with a
compassionate appointment. The said judgment was affirmed
by a Division Bench of this court in W.A.No.1100 of 2015. The
petitioner also relies on the judgment of this court in
Sivamurthy v. State of Andhra Pradesh [(2008) 13 SCC
730].
5. The learned Government Pleader submitted that going
by Rule 188A of Kerala Cooperative Societies Rules, 1969 (for
short 'the KCS Rules') employment assistance is only given to
dependants of employees who die while in service and not to
dependants of persons who have been incapacitated. Therefore,
contended that the rejection of petitioner's application under
the said Rule, is perfectly right. She distinguished the judgment
in Rita Bella R (supra) by arguing that it was a case in which
a claim was made by a dependant where the employee was
working under Kerala State Electricity Board on the basis of
the Kerala State Electricity Board (Appointment of dependants
of Board employees who die-in-harness or are permanently
disabled and are retiring on invalid pension) Regulations, 1985.
As per the said scheme, compassionate appointments can be
given to employees who are permanently disabled also. But
going by Rule 188A of KCS Rules, compassionate
appointment is given to dependant of the employees, who die
in service. Therefore, the dictum laid down in Rita Bella R
(supra) is not applicable to the facts of this case.
6. Rule 188A of KCS Rules is the only Rule by which a
dependant can claim employment assistance. When the Rule is
very clear regarding the persons who are entitled to claim
appointments, notice to respondents 1 and 2 is dispensed with,
as they only acted in accordance with Ext.P15 letter issued by
the Registrar of Co-operative Societies.
7. Taking into consideration of the facts and
circumstances of the case and specifically Rule 188A of the
KCS Rules, I am of the considered opinion that the petitioner
is not entitled to get an appointment under the dying-in-harness
scheme as the petitioner's father who was an employee under
the 1st respondent is still alive, though he is with 100%
disability. Only if the Scheme or Rule allows appointment for
dependant persons of the employee, who is permanently
disabled, this court can come to the aid of the petitioner.
8. The apex court in Bhawani Prasad Sonkar v. Union
of India [(2011) 4 SCC 209] has held that in respect of
compassionate appointment, the Rule or the Scheme has to be
strictly complied with and no deviation is possible. The
relevant portion of the judgment in paragraph 20(i) reads as
follows:
"Compassionate employment cannot be made in the
absence of rules or regulations issued by the Government or a
public authority. The request is to be considered strictly in
accordance with the governing scheme, and no discretion as such
is left with any authority to make compassionate appointment
dehors the scheme."
In the result, the Writ Petition fails and it is dismissed.
9. Before parting this court is of the opinion that as far as
an employee, who is permanently disabled and who had to quit
the job is in a precarious situation where the dependants have
to look after him with extra care which calls for more financial
burden on the family. Merely for the reason that the Rule or
Scheme does not provide for compassionate appointment to
a dependant of an employee who is 100 % disabled is a matter
to be looked into with serious concern in the present scenario.
The apex court in Sivamurthy (supra) has taken note of the
situation and held as follows:
"26. As an incidental reason for holding that compassionate
appointments are not permissible in cases of medical invalidation,
the High Court has observed that death stands on a "higher footing"
when compared to sickness. The inference is compassionate
appointment in case of medical invalidation cannot be equated with
death-in-harness cases, as medical invalidation is not of the same
degree of importance or gravity as that of death; and that as medical
invalidation is not as serious as death-in-harness, exception can be
made only in cases of employees dying-in-harness. But what is lost
sight of is the fact that when an employee is totally incapacitated (as
for example when he is permanently bedridden due to paralysis or
becoming a paraplegic due to an accident or becoming blind) and
the services of such an employee is terminated on the ground of
medical invalidation, it is not a case of mere sickness. In such cases,
the consequences for his family may be much more serious than the
consequences of an employee dying-in-harness.
27. When an employee dies in harness, his family is thrown
into penury and sudden distress on account of stoppage of income.
But where a person is permanently incapacitated due to serious
illness or accident, and his services are consequently terminated, the
family is thrown into greater financial hardship, because not only
the Income stops, but at the same time there is considerable
additional expenditure by way of medical treatment as also the need
for an attendant to constantly look after him. Therefore, the
consequences in case of an employee being medically invalidated
on account of a serious illness/accident, will be no less, in fact far
more than the consequences of death-in-harness. Though generally
death stands on a higher footing. than sickness, it cannot be gainsaid
that the misery and hardship can be more in cases of medical
invalidation Involving total blindness, paraplegia, serious
incapacitating illness etc."
Therefore, it is high time that the State has to re-look into
the matter to take a decision regarding compassionate
employment to the dependants of those employees who have
become 100% disabled while in service.
The registry shall forward a copy of the judgment to the
Chief Secretary of the State for further action.
sd/-
BASANT BALAJI, JUDGE
dl/downloads
APPENDIX OF WP(C) 6546/2024
PETITIONER EXHIBITS
Exhibit-P1 A TRUE COPY OF THE FIR IN CRIME NO.828 DATED 22-08-2020
REGISTERED BY THE ALOOR POLICE STATION
Exhibit-P2 A TRUE COPY OF THE SALARY SLIP OF SRI.MOHAMMED MOIDEEN
DATED 28-09-2020
Exhibit-P3 A TRUE COPY OF THE CERTIFICATE DATED 08-10-2020 ISSUED
FROM RAJAGIRI HOSPITAL
Exhibit-P4 A TRUE COPY OF THE DISABILITY ASSESSMENT CERTIFICATE DATED
05-01-2022
Exhibit-P4(a) PHOTOGRAPH OF THE PETITIONER'S FATHER
Exhibit-P5 A TRUE COPY OF THE AADHAAR CARD OF THE PETITIONER
Exhibit-P6 A TRUE COPY OF THE SECONDARY SCHOOL EXAMINATION
CERTIFICATE (10TH CLASS) DATED 19-05-2014
Exhibit-P7 A TRUE COPY OF THE COURSE COMPLETION AND CONDUCT
CERTIFICATE ISSUED TO THE PETITIONER DATED 29-07-2021
Exhibit-P8 . A TRUE COPY OF THE TRANSFER CERTIFICATE DATED 25-08-2021
ISSUED TO THE PETITIONER FROM THE COLLEGE
Exhibit-P9 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE ANNA
UNIVERSITY DURING SEPTEMBER, 2023
Exhibit-P10 A TRUE COPY OF THE INCOME CERTIFICATE DATED 20-03-2021
ISSUED BY THE VILLAGE OFFICER, THAZHAKKAD VILLAGE OFFICE
Exhibit-P11 A TRUE COPY OF THE APPLICATION DATED 26-03-2021 SUBMITTED
BY THE PETITIONER BEFORE THE 1ST RESPONDENT
Exhibit-P12 A TRUE COPY OF THE COMMUNICATION DATED 24-06-2021 ISSUED
BY THE GENERAL MANAGER OF THE 1ST RESPONDENT
Exhibit-P13 A TRUE COPY OF THE COMMUNICATION DATED 01-01-2022 ISSUED
BY THE GENERAL MANAGER-IN-CHARGE OF THE 1ST RESPONDENT TO
THE PETITIONER
Exhibit-P14 A TRUE COPY OF THE COMMUNICATION DATED 10-02-2023 ISSUED
BY THE GENERAL MANAGER-IN-CHARGE OF THE 1ST RESPONDENT TO
THE PETITIONER
Exhibit-P15 A TRUE COPY OF THE COMMUNICATION DATED 20-12-2022 ISSUED
BY THE 3RD RESPONDENT
