Amarnath G.K vs State Of Kerala

P.B.Suresh Kumar, J.

These appeals are preferred against the common judgment dated 12.01.2023 in two writ petitions namely, W.P(C) Nos.11793 of 2020 and 22031 of 2022. Among the appeals, W.A.No.395 of 2023 is preferred against the judgment in W.P.(C) No.11793 of 2020 and W.A.No.303 of 2023 is preferred against the judgment in W.P.(C) No.22031 of 2022. Parties and documents are referred to in this judgment for convenience, as they appear in W.P.(C) No.11793 of 2020.

The matter relates to the claim made by the petitioner for employment assistance in an aided school namely, AMUP School, Kayakkodi (the School).

The father of the petitioner was a teacher in the School. He died on 07.04.2015. It is alleged by the petitioner that he preferred an application before the Manager of the School seeking compassionate appointment in terms of Rule 51B of Chapter XIVA of the Kerala Education Rules (the KER) on 15.06.2016 and since there was no response to the said application, he preferred another application before the Manager for the said purpose on 23.08.2017. Exts.P1 and P3 are the applications stated to have been preferred by the petitioner on 15.06.2016 and 23.08.2017 respectively. It is stated by the petitioner that yet another application was submitted by him before the Manager for the very same purpose later on 03.04.2019. Ext.P4(b) is the application submitted by the petitioner on 03.04.2019. Ext.P4(b) application was turned down by the Manager on 08.06.2019 as per Ext.P6 communication stating, among others, that the petitioner had not preferred an application seeking employment assistance within the prescribed time limit namely, two years from the date of death of the employee. On 19.06.2019, the petitioner preferred a representation before the Educational Officer informing him that the Manager is making appointments in the School in preference to his claim for compassionate appointment. Ext.P5 is the representation preferred by the petitioner before the Educational Officer in this regard. On Ext.P5 representation, the Educational Officer issued Ext.P7 order directing the Manager to appoint the petitioner as a teacher in the School. The Manager challenged Ext.P7 order in revision before the Government. Ext.P11 is the revision petition preferred by the Manager in this connection. Ext.P11 revision petition was allowed by the Government in terms of Ext.P14 order stating, among others, that the petitioner has not made available satisfactory materials to show that he preferred application seeking employment assistance within two years from the date of death of the employee, in terms of the orders issued by the Government in this regard. Ext.P14 order was under challenge in W.P.(C) No.11793 of 2020.

Although this Court ordered notice to the respondents in W.P.(C) No.11793 of 2020, there was no interim order in the said case. While so, one Roshni P.T. was appointed in the School as Upper Primary School Teacher on 16.7.2021. The Educational Officer did not, however, approve the said appointment. One among the reasons stated by the Educational Officer for declining approval of the appointment of Roshni P.T. was the pendency of W.P.(C) No.11793 of 2020. Roshni P.T. challenged the said decision of the Educational Officer in revision before the Government. Ext.P15 in W.P.(C) No.22031 of 2022 is the order issued by the Government in the said revision. As per Ext.P15, the Government directed the Educational Officer to approve the appointment of Roshni P.T. subject to the outcome of W.P.(C) No.11793 of 2020. W.P.(C) No.22031 of 2022 was preferred by the petitioner challenging the said Government order.

A counter affidavit was filed by the Manager in W.P.(C) No.22031 of 2022 asserting that the petitioner has not submitted any application seeking compassionate appointment either on 15.06.2016 or on 23.08.2017 as claimed by him. It is stated by the Manager that the petitioner has submitted application seeking employment assistance for the first time only on 03.04.2019, which was beyond the time limit prescribed by the Government in terms of Rule 51B of Chapter XIVA KER.

Having noticed that the right of the dependents of teachers of aided schools dying in harness to claim employment assistance in terms of Rule 51B of Chapter XIVA KER is governed by the orders issued by the Government from time to time relating to employment assistance to the dependents of Government servants dying in harness and that applications for employment assistance are to be filed within two years from the date of death of the employee concerned in terms of G.O.(P) No.12/99/P&ARD dated 24.05.1999 issued by the Government, the learned Single Judge proceeded to consider the correctness of the finding rendered by the Government in Ext.P14 order that the petitioner has not made available satisfactory materials to show that he preferred application seeking compassionate appointment within two years. In order to show that the petitioner has in fact preferred Ext.P1 application within the time prescribed, the petitioner has relied on Ext.P2 affidavit sworn to by a colleague of his deceased father. The learned Single Judge took the view that no reliance can be placed on Ext.P2 affidavit, and consequently, concluded that there are no records to substantiate that the petitioner had preferred application seeking employment assistance within two years. In the light of the said finding, the learned Single Judge dismissed the writ petitions. It is aggrieved by the said decision of the learned Single Judge that these appeals are preferred.

Heard the learned counsel for the petitioner, the learned counsel for the Manager, the learned counsel for Roshni P.T., who is arrayed as sixth respondent in W.P.(C) No.22031 of 2022 as also the learned Government Pleader.

The learned counsel for the petitioner contended that in the light of Ext.P2 affidavit, the learned Single Judge ought to have accepted the case of the petitioner that he preferred Ext.P1 application seeking employment assistance on 15.06.2016. In fact, while rejecting the case put forward by the petitioner based on Ext.P2 affidavit, the learned Single Judge observed that the deponent of Ext.P2 affidavit is not a party to the proceedings. In this context, it was pointed out by the learned counsel for the petitioner that the deponent of Ext.P2 affidavit has in fact filed an application for impleading in one of the writ petitions and it is without taking note of the said fact that the learned Single Judge has made the observation aforesaid. It was also argued by the learned counsel placing reliance on paragraphs 23, 24 and 38 of the decision of the Apex Court in Shreejith L. v. Deputy Director (Education) Kerala, (2012) 7 SCC 248 that the scheme evolved by the State Government to provide employment assistance is a beneficial scheme aimed at helping those in need of employment assistance, and it was, therefore, obligatory for the Manager to provide employment assistance to the petitioner even without there being a request from the side of the petitioner. The learned counsel has also contended persuasively that Ext.P15 order in W.P.(C) No.22031 of 2022 is illegal inasmuch as the same was one rendered without affording the petitioner an opportunity of hearing, even after noticing that the claim made by Roshni P.T. before the Government, if accepted, would affect the interests of the petitioner adversely.

If it is found that challenge against Ext.P14 order is liable to be repelled, the petitioner may not have any right to be heard in the revision petition preferred by Roshni P.T. and in that event, it is unnecessary to consider the challenge against Ext.P15 order in W.P.(C) No.22031 of 2022. The first and foremost question to be considered therefore, is whether Ext.P14 order of the Government is sustainable in law. Let us consider the said question.

Rule 51B of Chapter XIVA KER reads thus:

“51B. The Manager shall give employment to a dependent of an aided school teacher dying in harness. Government orders relating to employment assistance to the dependents of Government servants dying in harness shall mutatis mutandis, apply in the matter of such appointments.”

As evident from the extracted Rule, it only provides that the Manager shall give employment to a dependent of an aided school teacher dying in harness. The Rule does not lay down the procedure to be followed for seeking employment assistance. Instead, the Rule provides that the Government orders relating to employment assistance to the dependents of Government servants dying in harness shall mutatis mutandis, apply in the matter of such appointments also. In other words, the procedure to be followed for seeking employment assistance under Rule 51B of Chapter XIV A KER is the procedure laid down by the Government for providing employment assistance to the dependents of Government servants dying in harness. It is beyond dispute that in terms of G.O.(P)No.12/19/P & ARD dated 24.05.2019, the Government prescribed revised norms for extending employment assistance to the dependents of Government servants dying in harness, and the said Government Order categorically provides that the time limit for preferring application under the Scheme shall be two years from the date of death of the Government servant. The petitioner does not have a case that the said Government Order does not apply to him. The petitioner does not also challenge the prescription in the Government Order as regards the time limit for preferring application seeking employment assistance. Even otherwise, it is now trite that a claim for compassionate appointment cannot be kept open for ever as the object of the compassionate appointment is to enable the dependents of the deceased to tide over the sudden financial crisis resulting due to the death and if the claim is kept open for ever, the same will denude the right to equality guaranteed to persons otherwise eligible to claim appointment.

Paragraphs 23, 24 and 38 of the judgment of the Apex Court in Shreejith (supra) read thus:

“23. Mr Rajan, learned Senior Counsel, argued that the first application submitted by Respondent 4 for compassionate appointment on 2-5-1990 was no doubt within the time prescribed but the same was not in proper format. It was, argued the learned counsel, essential that the application should be not only within the time stipulated for the purpose but also in the prescribed format. Inasmuch as that was not so in the instant case the application must be deemed to be non est.

We  regret  our  inability  to  accept  that  submission.  The Manager of the school had on receipt of the application from Respondent 4 not only acknowledged the request for appointment but also recognised that Respondent 4 possessed the requisite qualification for appointment as a Hindi teacher. The request was not, however, granted as no vacancy in the cadre was available in the school at that time. What is noteworthy is that the Manager did not reject the application on the ground that the same was not in the prescribed format or that the application was deficient in disclosing information that was essential for consideration of the prayer for a compassionate appointment. If the authority concerned before whom the application was moved and who was supposed to consider the request, did not find the format of the application to be a disabling factor for a proper consideration thereof, it could not be set up as a ground for rejection of the prayer, by the beneficiary of the appointment made in derogation of the rights of Respondent 4. At any rate, what was important was the substance of the application and not the form. If the application in substance conveyed the request for a compassionate appointment and provided the information which the Manager required for considering the request, the very fact that the information was not in a given format would not have been a good reason to turn down the request. We need to remind ourselves that the scheme is meant to be a beneficial scheme aimed at helping those in need of assistance on account of an untimely demise in the family. Inasmuch as the Assistant Educational Officer and even the High Court found Respondent 4 to be eligible for appointment and directed the Manager to make such an appointment, they committed no error to warrant our interference under Article 136 of the Constitution. The civil appeal is, therefore, liable to be dismissed.

x x x x x x x x x

Having said that, we have no manner of doubt that in case an application is made by the legal heirs of a deceased employee claiming the benefit of the scheme for compassionate appointment, the deficiencies and defects, if any, in the said application ought to be pointed out to the person concerned to enable him to remove the same within a reasonable time. But if the defects are not removed within the time granted, an adverse inference could be drawn against the person in default. On the contrary, where an application is filed, entertained and eventually declined for a reason other than the form in which the same ought to have been filed, the rejection cannot be supported before the higher authority or in the court on the ground that application was non est as the same was not in the prescribed form. The application for appointment filed on behalf of the respondent could not therefore have been rejected on the ground that the same was not in the prescribed form.”

The quoted paragraphs cannot be relied on to contend that it is unnecessary to prefer application seeking employment assistance within the time limit prescribed or within a reasonable time after the death of the employee. On the other hand, the quoted passages also emphasise the need to prefer application seeking employment assistance and what was held by the Apex Court in the said case is only that there has to be a liberal approach and the technicalities shall not stand in the way of providing employment assistance to the dependents of the person dying in harness.

There is no dispute to the fact that the petitioner had preferred an application on 03.04.2019 before the Manager seeking employment assistance. Similarly, there is also no dispute to the fact that the application of the petitioner dated 03.04.2019 was beyond the time limit prescribed by the Government for preferring application seeking employment assistance. In the circumstances, in the light of the discussion aforesaid, the only question to be considered is whether the finding rendered by the Government in Ext.P14 order that there is no satisfactory material to show that the petitioner has preferred an application seeking employment assistance within two years, as claimed by him.

The question aforesaid is a pure question of fact. It is on an evaluation of the materials on record that the Government rendered a finding that satisfactory materials are not available to show that the petitioner has submitted either Ext.P1 application before the Manager on 15.06.2016 or Ext.P3 application before the Manager on 23.08.2017. It is seen that the learned Single Judge has examined the entire materials afresh and affirmed the view aforesaid of the Government. We do not think that we will be justified in examining the correctness of the said factual findings in an appeal under Section 5 of the Kerala High Court Act.

Be that as it may, in our anxiety to ensure that the factual findings rendered by the Government as also the learned Single Judge are correct, we have also examined meticulously the documents relied on by the petitioner to contend that he preferred applications seeking employment assistance on 15.06.2016 as also on 23.08.2017. As noted, the application stated to have been filed by the petitioner before the Manager on 15.06.2016 has been produced by the petitioner as Ext.P1 in the writ petition. What is stated in Ext.P1 is that he has secured Post Graduation in English Literature and that he is undergoing B.Ed Course. Ext.P1 does not indicate the purpose for which such a letter is given. At the most, what could be inferred from Ext.P1 is that the petitioner contemplates an application seeking employment assistance. Ext.P1 cannot, therefore, be construed as an application seeking employment assistance. It is therefore, unnecessary, to examine whether the contents of Ext.P2 affidavit sworn to by a colleague of the deceased father of the petitioner would improve the case of the petitioner that he submitted Ext.P1 request on 15.06.2016. Coming to Ext.P3, it is certainly a document styled as a request for appointment. But the same is one submitted after two years of the death of the deceased father of the petitioner. That apart, there is no reference about Exts.P1 and P3 applications either in Ext.P4(b) application sent by the petitioner to the Manager or in Ext.P5 representation sent by the petitioner to the Educational Officer. Further, the recitals in Ext.P4(b) application and Ext.P5 representation would indicate that Ext.P4(b) is the first application preferred by the petitioner on coming to know of his right to be considered for employment assistance under Rule 51B of Chapter XIVA KER. In other words, we are also in agreement with the factual findings rendered by the Government in Ext.P14 order, as also the learned Single Judge in the impugned judgment.

The writ appeals, in the circumstances, are devoid of merits and are, accordingly, dismissed.