Kerala High Court
Deepak vs Secretary, General Education ... on 10 October, 2001
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, K. Balakrishnan Nair
JUDGMENT K.S. Radhakrishnan, J.
1. Writ Petitioner is the appellant. Writ Petition was preferred challenging Ext. P2 order dated 15.7.1999 by which District Educational Officer disposed of the petitioner's application for compassionate appointment in the S.N.V. Sanskrit Higher Secondary School. Ext. P2 order was happened to be passed by the District Educational Officer on a direction given by this Court in O.P. No. 3592 of 1999 filed by the writ petitioner. Claim for compassionate appointment was considered by the District Educational Officer and the same was rejected holding that the writ petitioner has no legal right to compassionate appointment under Rule 51B of Chapter XIV-A of the Kerala Education Rules since the Rule has no retrospective effect. Learned Single Judge upheld the impugned order. Aggrieved by the same this Writ Appeal has been preferred.
2. Writ petitioner's mother, who was a teacher in the S.N.V. Sanskrit High School, died in harness on 7.2.1978. On 5.1.1999 writ petitioner submitted an application before the Manager of the school for appointment under dying in harness scheme in accordance with Rule 51B of Chapter XIV-A. Application was considered by the District Educational Officer with notice to the Writ Petitioner as well as the Manager of the school. The District Educational Officer noticed that the writ petitioner is seeking employment as Lab Assistant or Peon in the Higher Secondary School on the basis of Rule 51B of Chapter XIV-A which came into force on 30.3.1990. District Educational Officer rejected the application presumably on the ground that the said rule has no retrospective effect.
3. Counsel for the appellant Sri. S.P. Aravindakshan Pillay submitted that the District Educational Officer has committed a grave error in rejecting the application of the appellant on the ground that the death occurred prior to the coming into force of Rule 51B of Chapter XIV-A. Placing reliance on the decision of this Court in Narayanan v. State of Kerala (1998 (2) KLT 446) counsel contended that there is nothing to show that an application under the dying in harness scheme could be entertained only if death occurred after the coming into force of Rule 51B. Counsel submitted that the expression "dying in harness" seems to have used in Rule 51B in order to give benefit to the dependants of persons who died in harness, whether the death occurred prior to or subsequent to the introduction of Rule 51 B of Chapter XIV-A. Counsel submitted that in any view, appellant's application should have been entertained and the question as to whether he is entitled to get the benefit of Rule 51B should have been decided by the District Educational Officer on merits.
4. Counsel appearing for the Management Sri. M.V. Bose submitted even if the appellant's application is maintainable, the same does not merit consideration since the application has been filed after twenty one years from the date of death of his mother.
Counsel submitted that if the appellant was a dependant and if he was eligible, he should have moved the application at the appropriate time and not at this distance of time. Counsel also placed reliance on the decision of this Court in Union of India v. Kumaran (1998 (2) KLT 166) as well as the decision in Sreeja v. Chief Postmaster General (2001 (1) KLT 356). Counsel submitted that right of dependent to get appointment on compassionate ground is not a vested right and the discretion could always be exercised by the employer. Further it was pointed out that the burden is on the applicant to establish that he was a dependent of the employee and is still in a state of penury when application has been made.
5. The scope of Rule 5IB was considered by this Court in various decisions. We may reiterate the rule for easy reference.
"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."
Aforementioned rule confers power on the Manager to appoint dependant in case an application is made if servants dying in harness shall mutatis mutandis apply in the matter of such appointments. Although Government issued various orders extending employment assistance to dependents of Government servants dying in harness, there were no such provisions in the Kerala Education Rules. Government received large number of representations from teachers of Government as well as aided schools demanding employment assistance in Government as well as aided schools. Government after considering all the aspects of the matter introduced Rule 51B of Chapter XIV-A, as per notification G.O.(P) No. 55/90/G.Edn. dated 30.3.1990 extending the benefit of dying in harness employment scheme to Government and aided schools also. On introduction of the aforesaid rule, Government as well as aided school Managers received large number of applications from dependents of employees died in harness demanding employment assistance. There was protest from the Management. The matter also came up for consideration before this Court in O.P. No. 664 of 1995 and the court highlighted the necessity of making such mandatory provisions in the Kerala Education Rules. The Division Bench in W.A. No. 1207 of 1996 directed the State Government to clarify whether the scheme is applicable to such employment to the dependents of aided school teacher dying in harness. It is after considering the entire matter Government passed an order on 16.1.1997.
6. The object and purpose of introduction of Rule 51B as well as the other scheme for compassionate appointment is to give some assistance to the family of the employee to tide over the sudden crisis due to the untimely death of the earning member. The Apex Court in Haryana State Electricity Board v. Hakim Singh, (1997) 8 SCC 85 has highlighted the purpose of the said scheme. The Apex Court in LIC of India v. Mrs. Asha Ramachandra Ambekar, AIR 1994 SC 2148, Umesh Kumar Nagpal v. State of Haryana, 1994 (4) SCC 138, Union of India and Ors. v. Bhagwan Singh, 1996 (1) LLJ 1127, and State of Bihar v. Samsuz Zoha, AIR 1996 SC 1961, reiterated that compassionate appointment can be granted only to tide over the immediate financial crisis resulting from the employee's death and the same cannot be insisted upon as a matter of course. The object being to enable the family to tide over the financial crisis which they face at the time of death of the sole bread winner, compassionate appointment cannot be claimed and offered whatever the lapse of time and after the crisis is over. The Apex Court in Director of Education (Secondary) v. Pushpendara Kumar, 1998 (5) SCC 192, has highlighted the object of such schemes as follows:
"The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that aprovision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee".
In Sanjay Kumar v. Sate of Bihar, 2000 (7) SCC 192, the Apex Court was dealing with appointment in the State of Bihar. It was a case where the applicant's mother died when he was ten years old. Mother was working as an Excise Constable. Application was made soon after the death of the mother seeking compassionate appointment. That was rejected on 10.12.1996 as time-barred. He made another application on 26.12.1996 and that was also rejected on 21.4.1997. Contention was raised that at the time of death of the mother, applicant was a minor and consequently he could not make an application at that time. It was pointed out that he made yet another application as soon as he became major. Rejecting the claim the Apex Court held as follows:
"It is also significant to notice that on the date when the first application was made by the petitioner on 2.6.1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief.
We are of the view if an application is made for compassionate appointment, there must be some proximity between the date of death as well as the date of application. The object of compassionate appointment, as the Apex Court observed, is to tide over the sudden financial crisis resulting due to the death of the bread-earner. It is not as if on the death of an employee, claim of the dependant is kept open for ever. Once a dependant is not always a dependant. There cannot be reservation of vacancy till such time the applicant becomes major or till such time the applicant acquires qualification. We may indicate provision like Rule 51B and other Government orders pertaining to compassionate appointment are all made on humanitarian consideration. It is always in the nature of an exception to the general provision. Exception cannot always occupy the place of the main provision and thereby nullify or dilute the efficacy of the main provision by denuding the right conferred by the main provision to persons otherwise eligible.
7. We may indicate in this connection that learned Single Judge of this Court in Sajeesh Babu v. State (1996 (2) KLT 542) expressed the necessity of laying down time limit for submitting application for appointment on compassionate ground under Rule 51B. We are informed that Government has issued order dated 24.5.1999 recently fixing two years as the time limit for making application for appointment on compassionate ground. As far as the present case is concerned, evidently application has been made after a period of twenty-one years after the death of the mother of the applicant. We may indicate there is no proximity with the date of the death of the mother and the date of application made by the dependant applicant. It is difficult to believe that the applicant, even if he was a dependant, has not got over the arduous situation even after a period of twenty-one years ago. In such circumstances, we find no reason to interfere with the judgment of the learned Single Judge. The appeal lacks merits and the same is accordingly dismissed.