V. Shircy, J.
1. These appeals arise out of the common judgment of the learned Single Judge in W.P.(C)Nos.3237/2012 and 7160/2012. The writ petitioner (hereinafter referred to as the 'claimant') had filed W.P.(C)No.3237/2012 claiming appointment on compassionate grounds as per Rule 51-B of Kerala Education Rules (for short 'KER').
2. The mother of the claimant was a lower grade Hindi Teacher in St.Antony's Upper Primary School, Puthenpeedika, which is under the corporate management of Archdiocese of Thrissur. She expired on 12.9.1993 while in service. The claimant was a minor at the time of the death of her mother. Her date of birth is 31.5.1988 and she attained the age of majority on 31.5.2006. She had filed an application seeking employment under Rule 51-B of Chapter XIV-A of KER for compassionate appointment in the month of April 2007. Her application was rejected by the corporate manager vide Ext.P1 order dated 16.4.2007. The claimant again submitted an application after completing her Teachers Training Course (TTC) but the second request was also rejected on 28.10.2009 by Ext.P2. Aggrieved by the same, she preferred a revision petition before the Government against the order of the corporate manager. But as no action was taken in her petition, she preferred W.P. (C)No.8878/2010 seeking the issue of appropriate directions to the Government for an early disposal of the revision petition. The writ petition was allowed and the Government was directed to pass appropriate orders after affording an opportunity of hearing to all the parties. In compliance of the said direction, the Government on 17.11.2011 as per Ext.P5 directed the manager to appoint the claimant/petitioner in the existing vacancy or arising vacancy, if no vacancy is existing in the school. Thereafter, the claimant/petitioner submitted Ext.P6, a revised application with all the required details. Though the manager received the same, he did not appoint her in the school as LPSA/UPSA. Hence, she approached this Court with W.P.(C) No.3237/2012 seeking the following reliefs:
i) call for the records relating to Exhibits P1 and P2 and quash the originals of the same by the issue of a writ of certiorari or other appropriate writ order or direction
ii) issue a writ of mandamus or other appropriate writ order or direction commanding the 4th respondent Corporate Manager to appoint the petitioner as Upper Primary School Assistant or Lower Primary School Assistant in existing/arising vacancies under dying-inharness scheme implementing Exhibit P5 order forthwith,
iii) issue a writ of mandamus or other appropriate writ order or direction commanding the 3rd respondent District Educational Officer to approve the appointment of the petitioner from the date of appointment and disburse salary and allowances forthwith,
iv) pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case.
3. The Corporate Manager/4th respondent (hereinafter referred to as the 'manager') opposed the application, inter alia, contending that the claimant was not entitled for an appointment under the Scheme. Her first application was rejected as she was not qualified for the post, as well as for the reason that the said application was submitted without the required documents, namely legal heirship certificate, TTC qualification certificate etc. The second application was also dismissed due to the non-production of the death certificate of her mother, consent letter of her father and also for the reason that there was no provision to keep the post vacant till she acquires qualification. Moreover, her father was employed at the time of her mother's death and there was no financial crisis due to the death of her mother. Her father had remarried a Government L.P. School Teacher two years after the death of her mother and her step mother was also employed. The claimant acquired the qualification to be appointed as LPSA/UPSA only on 15.10.2009, that is after the time limit. In short, it was contended that the claimant was not entitled to get appointment as LPSA/UPSA under the dying in harness scheme.
4. In W.P(C)No.7160/2012, the manager as the petitioner raising the very same contentions had challenged the G.O dated 17.11.2011 (Ext P5 in W.P(C)No.3237/12 and Ext.P6 in W.P(C)No.7160/12) directing him to appoint the claimant under the dying in harness scheme. The reliefs sought for in the writ petition are as follows:
1) issue a writ of certiorari or other appropriate order or direction to quash Ext.P6
2) to declare that 2nd respondent is not entitled to be appointed as LPSA/UPSA under the dying in harness scheme which limits appointment to Class III & Class IV post.
3) to declare that Ext.P6 is illegal
4) to declare that 2nd respondent is not entitled for the benefit of dying in harness scheme since she did not apply within the time limit.
5) to declare that the petitioner is not liable to give employment to the 2nd respondent under the dying in harness scheme for suppression of material facts.
6) to declare that 2nd respondent is not entitled to any benefit under dying in harness scheme.
7) to issue a writ of certiorari or other appropriate order or direction to quash/set aside Ext.P6 to the extent it adversely affects petitioner.
8) to declare that the finding in Ext.P6 that manager should have given reasonable time to 2nd respondent for resubmitting application after the rejection of her first application is illegal.
9) to declare that the stand of Manager that 2nd respondent did not submit application within time is valid and the contrary stand in Ext.P6 is illegal.
10) grant such other reliefs as are just and proper in the nature of this case.'
5. By the impugned judgment, the learned Single Judge has disposed of both the writ petitions with the following directions:
(i) The direction in the impugned revisional order as per G.O(Rt.)No.5081/2000/G.Edn. dated 17.11.2011 to the extent it orders that the claimant is eligible to be considered for the post of L.P.S.A./U.P.S.A. under the compassionate appointment scheme, is illegal and ultra vires. To that extent, the said direction will stand rescinded.
(ii) The direction issued in the above referred impugned revisional order that 'The Manager is directed to appoint the petitioner in the existing vacancy or arising vacancy, if no vacancy is existing, in the school, only if the applicant satisfies all conditions laid down in G.O(P) No.12/99/ dated 24.5.1999.. .... .' will stand upheld to the extent it is applicable to any posts other than L.P.S.A/U.P.S.A., for which the claimant had acquired all the qualifications as on 30.5.2009.
(iii) As the claimant contends that she had all the requisite qualifications for holding the post of Full Time Menial, even as on the date of submission of the claim in April, 2007, the respondent corporate manager will consider the eligibility of the claimant for appointment to the said post and examine whether she had attained all the requisite qualifications to hold that post at least as on 30.5.2009 (prescribed last date for submission of the application) and examine whether the claimant satisfies all the conditions laid down in G.O(Rt.)No.12/99/P&ARD dated 24.5.1999 and consider the claim of the claimant for appointment to the post of Full Time Menial in terms of the directions issued in the impugned revisional order and in terms of the provisions contained in Ext.R-1(a) scheme. In that regard, it is made clear that the income criteria that is to be reckoned by the manager is as to whether the claimant has satisfied the prescribed income limit criteria as on April 2007, in case the claimant has satisfied all the qualifications to hold the post of Full Time Menial at that time. Necessary steps in this regard should be completed by the corporate manager without much delay, at any rate, within a period of 3 months from the date of production of a certified copy of this judgment.
(iv) The contentions raised by the claimant regarding consequential benefits are left open and it is for the claimant to agitate such claims as mentioned hereinabove, before the appropriate authorities, at the appropriate time.
(v) The Chief Secretary to Government of Kerala will take necessary steps in regard to the matters covered by paras 36 and 39 of this judgment, within a reasonable time, at any rate, within a period of 6 months from the date of production of a certified copy of this judgment.
6. Heard the learned counsel for the appellant, the learned counsel for the respondents in both the cases and also the learned Government Pleader.
7. The principal question is whether the claimant is entitled for an appointment as LPSA/UPSA under the dying in harness scheme by enforcing Ext.P5 Government Order dated 17.11.2011 in W.P.(C)No.3237/2012. The said order is Ext.P5 in W.P.(C)No.3237/2012 filed by the claimant and Ext.P6 in W.P.(C)No.7160/2012 filed by the corporate manager. Certain facts are not in dispute. Smt.P.I.Rosy, the mother of the claimant while working as Junior Hindi Teacher in St.Antony's Upper Primary School, Puthenpeedika died on 12.9.1993. The claimant was a minor at the time of her death. Her date of birth is 31.5.1988. She attained the age of majority on 31.5.2006. Her first application for compassionate appointment as a dependant of late Smt.Rosy under Rule 51-B of Chapter XIVA KER was submitted in the month of April 2007. As per Ext.P1 (WP(C)No.3237/2012) the said application was rejected by the manager on 16.4.2007. She again submitted another application on 23.10.2009, which was also rejected as per Ext.P2 (WP(C)No.3237/2012). Thereafter, a revision petition was filed before the Government. When the disposal of the same was delayed the claimant filed writ petition (W.P. (C)No.8878/2010) before this Court and the said writ petition was disposed of directing the Government to take a decision in the issue after affording an opportunity to all the parties for hearing. After complying with the direction, the Government passed G.O.(Rt)No.5081/2011/G.Edn.dated 17.11.2011 (Ext.P5/Ext.P6)
8. In Ext.P5/ Ext.P6 Government Order, the Government had made it clear that the claimant had submitted application within the specified time limit, but as the application did not contain all the documents required, the manager should have given reasonable time to the claimant for re-submitting the application. So also, the plea taken by the manager that the claimant did not submit application within the specified time limit is not correct. Therefore, the Government had directed the manager to appoint the petitioner (claimant) in the existing vacancy or arising vacancy, if the applicant satisfies all the conditions laid down in G.O.(P)No.12/99/ G.Edn.dated 24.5.1999.
9. The relevant provisions for compassionate appointment under KER are Rule 9A of Chapter XXIV-A and Rule 51-B of Chapter XIV A reads as follows:
Rule 9A of Chapter XXIV-A of KER
'9A. The manager shall give employment to a dependent of the non-teaching staff of an aided school dying in harness. Government orders relating to employment, assistance to the dependants of Government servants dying in harness shall, mutatis mutandis, apply in the matter of such appointments.'
Rule 51B of Chapter XIV-A of KER:
'R.51B. The Manger 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.'....
The relevant Clauses in Government Order dated 24th May 1999 which deals with the Scheme to provide employment assistance to the dependent of Government servants, who died in harness are clauses 16, 17,19 & 20. The relevant clauses are reiterated here for the sake of convenience.
'Category of appointment
16. Appointment under the scheme will be limited to Class III and Class IV posts in the Subordinate Service, Last Grade Service and in part time contingent service to which direct recruitment is one of the methods of appointment. In the case of posts for which different methods of appointment are prescribed, the appointment under the scheme shall be set off against the quota earmarked for direct recruitment.'
'Qualification for posts
17. The qualification prescribed for direct recruitment to the post will apply. No relaxation in the qualifications will be allowed under the scheme.'
'Time limit for preferring application
19. The time limit for preferring applications under the scheme will be 2 years from the date of death of Government Servants. In the case of minor, the period will be within 3 years after attaining majority.'
'Procedure for appointment
20. Applications for appointment from dependents of Government Servants who die-in-harness will be entertained only in the prescribed form given in Appendix 'A' with a court fee stamp of Rs.2 affixed thereon. The applications shall be submitted in the office where the Government Servants had last worked. Legal heirship certificate issued by the Tahsildar concerned, income certificate and death certificate should invariably be enclosed with the application. An applicant under the Compassionate Employment Scheme will be permitted to indicate the order of priority of the posts applied for. To the extent possible this order of priority will be accepted. However, if this is not possible the applicant will be appointed to any available vacancy in any of the subordinate services.'
10. The learned counsel for the manager would point out that as per Clause 19 of Ext.R1(a) Government Order dated 24.5.1999, the time limit prescribed for preferring application under the compassionate ground will be two years from the date of death of the employee and in case of a minor, the period will be three years after attaining majority. The learned counsel for the manager submitted that the period of limitation expired on 30.5.2009 as the claimant had attained the age of majority on 31.5.2006. The first application, i.e. Ext.P1 was submitted by her on 13.4.2007 and it was rejected by an order dated 16.4.2007 by the manager. But in fact, the first application was submitted in the prescribed format on 13.4.2007 within the prescribed period of time limit for the post of LPSA/UPSA. Of-course, she was not qualified to hold the post of LPSA/UPSA on the date of submission of the application dated 13.4.2007. Admittedly, she secured the minimum qualification of TTC only on 15.10.2009. Her application was rejected on the ground that it was not accompanied by legal heirship certificate, qualification certificates etc. The second application submitted on 23.10.2009 was also rejected by the corporate manager by an order dated 28.10.2009. Ext.P2 rejection order indicates that the said application was also not accompanied with the consent letter of her father and death certificate of the deceased. It was also specifically mentioned that she did not possess the requisite qualification. However, the Government had considered the second application as continuation of the original one and that the same was submitted within the prescribed time limit. It was observed that no notice or opportunity to convince the claimant that her application lacks certain details and to cure the defects, was afforded to the claimant. In Ext.P5/Ext.P6 order, it was further observed that the rejection of the application by the manager without affording an opportunity to the claimant to cure the defects was not correct .
11. While dealing with an appointment under the dying in harness scheme, the Apex Court in Shreejith v. Deputy Director(Education)Kerala,(2012(3)KLT 214(SC)) held that the terms of Government orders issued by G.O dated 24th May 1999(Ext.R1(a)) are relevant.
12. In paragraph No.11 while referring to Clause 19, which deals with the time limit, it has been observed as follows:
'11. A conjoint reading of the Statutory Rules and para 19 of the Government Order extracted above would show that the compassionate appointment scheme itself permits applications to be made within two years from the date of death of the government servant. In the case of minors the permissible period for making applications is three years from the date the minor attains majority. It is not in dispute that the application for appointment as a Lower Grade Sanskrit Teacher was made by the respondent on 7th February, 2005 i.e., within three years of his attaining majority. Such being the position under the terms of the scheme, the validity or wisdom whereof is not under challenge before us, it is manifest that the scheme not only permitted making of an application but when read in conjunction with R.9A entitled respondent No.5 to seek such an appointment subject to his fulfilling other requirements stipulated in the scheme. It is nobody's case that respondent No.5 did not satisfy other conditions stipulated in the Government Order nor was his request for appointment as Junior Grade Sanskrit Teacher rejected on any such ground. That being so, the High Court was justified in holding that the prayer for appointment made to respondent No.5 should have been allowed.''
It was further observed in paragraph No.15 of the judgment that 'what was important was the making of an application for appointment on compassionate basis within the period stipulated for the purpose. Whether or not a vacancy is available had nothing to do with the making of the application itself.'
13. It was also observed by the Apex Court in Shreejith's case (supra)as follows: 'When an application is made by 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 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'.
14. Therefore, it could be seen that the Apex Court has categorically stated in the decision that it is not proper to reject an application submitted by the legal heirs of the deceased employee claiming the benefit of scheme for compassionate appointment without pointing out the defects so as to give an opportunity to them to rectify the deficiencies and defects. However, it appears that here the corporate manager has not provided an opportunity to the claimant to rectify the defect though in the rejection order the defects have been mentioned.
15. It is important to note that the provision for compassionate appointment given to the legal heirs of a deceased who died in service, is definitely to enable the family to meet the financial crisis, they had to face all on a sudden; unexpectedly due to the demise of the sole bread winner of the destitute family. The scheme is introduced to extend a helping hand to the destitute family as a solace to meet the financial crisis and in such a situation it is always proper and justifiable to give an opportunity to the claimants to put forth their claims correctly and clearly to secure an employment to tide over the financial crisis, poverty which the family was thrown to, due to the unexpected death of the employee. Rejecting an application without considering the penurious condition of the family on mere technicalities, that too without affording an opportunity to the applicant to rectify the defects is not definitely the intention of the scheme. An appointment deviating from the regular mode of appointment, on compassionate grounds, is permitted only in very exceptional circumstances. The object of such an appointment is to enable the family to get over the sudden financial crisis or financial destitution which it faces all on a sudden as a result of the unexpected death of the breadwinner of the family. Such being the whole object of granting compassionate employment, when some defects or information required are found lacking, the competent authority is duty bound to point out the same and direct the applicant to rectify the defects/supply the information lacking within a prescribed time limit rather than straight away rejecting the application. The attempt of the competent authority should not be, to deny the benefit somehow or other but to assist or help the beneficiaries in their distress. Then only the object and spirit of scheme is achieved. It is true that compassionate appointment cannot be granted after a lapse of a reasonable period as it will not give any vested right which can be exercised at his/her will and pleasure. But as long as the claim is preferred within the prescribed time limit, the minor defects in the application ought to have been rectified by pointing out the same at the instance of the manager. Here, of course there was some delay on the part of the claimant in submitting the revised application after the first rejection order, but the revision was filed by the claimant before the Government and the Government was convinced of the fact that the claimant had not suppressed any crucial aspect but had only omitted to mention certain facts and hence, such a direction was issued to the manager treating the second application as the continuous application of the first one in the year 2007. As she attained age of majority only on 31.5.06 her application in the year 2007 was well within the specified time limit as per the rules. Such being the case we are unable to accept the argument of the learned counsel for the manager that the revision was considered by the Government on a wrong perspective that the first application was within time limit and hence the order was not valid, for the main reason that the Scheme is introduced to ensure the welfare of the affected people in an ethical manner on the sudden death of an earning member of the family. Admittedly, she attained the age of majority on 31.5.2006 and her first application was in the year 2007. Therefore, no tangible logic has been assigned to discard the just finding of the Government upheld by the learned Single Judge regarding Clause 19 of Ext.R1 (a) G.O. dated 24.5.1999.
16. However, it is pertinent to note that she possessed the requisite qualification of TTC only on 15.10.2009. So she was not qualified to the post of LPSA or UPSA at the time of submitting her application. But it is not disputed that she possessed the requisite qualification for the post of Full Time Menial in the aided school even as on the date of her original application dated 13.4.2007 which was rejected on 16.4.2007. So it is clear that she was not qualified to be appointed to the post of LPSA/UPSA by 30.5.2009.
17. On a perusal of the records, it could be seen that though there was no alternative prayer in her writ petition that she should be given an appointment in some other post such as Full Time Menial etc, the learned Single Judge held that the court can modify the prayer for granting a lesser relief and thus the court has disposed of the petition as referred above. Another important matter to be noted is that after disposal of the revision in compliance of the order, she submitted Ext P6 revised application with all details on 26.12.11. The said application was received by the manager as evident by Ext. P7. But unfortunately no post was offered to her, even after the lapse of a reasonable period.
18. Now the question to be considered is whether the claimant is eligible for compassionate appointment on the basis of the income criteria of the family of the deceased. Relevant clauses in Ext.R1(a) Government Order dated 24.5.1999 reads as follows:
12. The maximum income of the family of the deceased Government Servant should not exceed Rs.1,50,000 (Rupees one lakh and fifty thousand only) per annum to make a dependent eligible for the Compassionate Employment and this limit will be revised from time to time.
13. Family income to be reckoned is the actual income available to all members of the family from all sources other than family pension. Income from the properties of the members of the family should also be reckoned. Income of the married sons and daughters and other members of the family living separately shall not be reckoned for calculating the Family income. In case of disputes on income, the case shall be referred to the concerned District Collector and the income reported by the Collector shall be accepted as the actual income. When salary based income is calculated the pay including all allowances except Travelling Allowance shall be reckoned for the purpose. For this purpose, necessary amendments in the guidelines in G.O. (MS)No.192/85/RD dated 23.3.1985 will be issued, separately.'
Clause (iii) of paragraph 40 of the result portion of the judgment of the learned Single Judge under challenge reads as follows:
'(iii) As the claimant contends that she had all the requisite qualifications for holding the post of Full Time Menial, even as on the date of submission of the claim in April, 2007, the respondent corporate manager will consider the eligibility of t
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he claimant for appointment to the said post and examine whether she had attained all the requisite qualifications to hold that post at least as on 30.5.2009 (prescribed last date for submission of the application) and examine whether the claimant satisfies all the conditions laid down in G.O(Rt.)No.12/99/P&ARD dated 24.5.1999 and consider the claim of the claimant for appointment to the post of Full Time Menial in terms of the directions issued in the impugned revisional order and in terms of the provisions contained in Ext.R-1(a) scheme. In that regard, it is made clear that the income criteria that is to be reckoned by the manager is as to whether the claimant has satisfied the prescribed income limit criteria as on April 2007, in case the claimant has satisfied all the qualifications to hold the post of Full Time Menial at that time. Necessary steps in this regard should be completed by the corporate manager without much delay, at any rate, within a period of 3 months from the date of production of a certified copy of this judgment.' (emphasis supplied) 19. The fact that the father of the claimant has remarried and his 2nd wife (Smt.Lissy) is employed are not in dispute. The village officer who issued Ext.P8(6)(W.P. (C)No.3237/2012) had certified on 11.4.2007 that the family income of the claimant was Rs.1,87,836/- The manager had admitted in his counter (paragraph 34 of W.P. (C)No.3237/2012) that the income limit during 2007 as well in 2009 was Rs.3,00,000/-. We are therefore, unable to agree with the conclusion arrived at and direction by the learned Single Judge in the judgment (more specifically clause (iii) of paragraph 40) that the manager has to verify whether the claimant will satisfy the income criteria as on 2007 to get an appointment under Scheme. Such a direction to the manager by the learned Single Judge in the judgment, in our view, was therefore, unjustified in the light of the reasons mentioned above. The Certificate dated 11.4.2007 of the Village Officer has to be reckoned as her income certificate as on the date of her 1st application and it has to be treated as a valid one submitted within the prescribed time limit. Therefore, the judgment of the learned Single Judge is modified to that extent alone and the said direction is set aside. 20. In short, we find that there is no substantial or compelling reasons warranting interference with the other findings of the learned Single Judge directing the corporate manager to consider her claim for appointment to the post of Full Time Menial in terms of the directions in the Judgment under challenge. Since the matter is quite old, we direct the manager to appoint her as expeditiously as possible, at any rate, within a period of two months from date of receipt or production of a copy of this Judgment. The Writ Appeals are, accordingly, dismissed.