GOVT OF KERALA Vs. THULASEEDHARAN

JUDGEMENT

(1.) THESE three appeals are by the State of Kerala and are directed against the common judgment of the learned single Judge in Writ Petitions O. P. Nos. 1827 of 1991, 6393 of 1988, 5294 of 1988 and other cases dated August 16, 1991 [1991 (2) KLT 683]. All the cases raise questions relating to claims made under the Dying-in-Harness Scheme of the Government of Kerala providing 'employment Assistance' to the relatives and dependants of Government servants. The scheme has its origin in an executive order, G. O. M. S. No. 20/70/pd dated January 21, 1970 and had been periodically amended over the years and replaced by orders consolidating the amendments. The last of such orders whose interpretation falls for consideration in these cases are G. O. (P) 64/86 GAD dated February 28, 1986 and G. O. (P) No. 34/87/p and ARD dated December 17, 1987 (Ext. P9 ). In fact, the last part of clause 34 in Ext. P9 i. e. , G. O. (P) No. 34/87/p and ARD dated December 17, 1987, which is applicable to the "second applicant" in the family to the effect-"this concession shall be made operative with respect to cases of deaths occurred on or after July 1, 1983" has been now questioned on the ground that July 1, 1983 has no nexus with the object of G. O. and the learned single Judge has under the impugned judgment, quashed that part alone, following the decision of the Supreme Court in D. S. Nakara v. Union of India 1983i-LLJ-104.

(2.) AT the outset, it is necessary to note that, in all the three appeals, the writ petitioner-respondent is a "second applicant" from the family of the deceased Government servant, seeking employment consequent to the rejection of the application of another person from the same family. It is common ground that for the first time a "second applicant" in the family of the deceased Government servant had been made eligible to apply for employment in Government after the rejection of the application of another person from the same family and while conferring such a new right, a restriction has been imposed that the cases of such "second applicants" are liable to be considered only if the death of the Government servant in question had taken place on or after July 1, 1983. It is this date that has been struck down as arbitrary by the learned single Judge.

(3.) BEFORE going further into the matter, we shall refer to the facts in the three cases : (1) In W. A. No. 464 of 1992 (O. P. No. 1827 of 1991), the Writ Petitioner is Sri. N. K. Thulaseedharan. His father, Sri. V. Neelakantan Pillai, died on December 26, 1963 while working as a teacher in a Government owned Lower Primary School leaving behind him, his widow, two sons and a daughter. The Writ Petitioner's brother Sri. N. K. Somasekharan applied for employment under the Dying-in-Harness Scheme on June 13, 1983 but the same was rejected under Ext. P2 dated April 26, 1984 on the ground that it was belated. The petitioner's date of birth is May 25, 1961 and he attained majority on May 25, 1979. In G. O. M. S. 46/79/gad dated January 16, 1979, the Government had prescribed a time limit of one year from the date of attaining majority in the case of minors. That period expired on May 25, 1980 but the petitioner did not apply on the ground that his brother's application was pending. After his brother's application was rejected on April 26, 1984 the petitioner applied (the date of application is not given) but the Government rejected the same as per Ext. P4 dated February 23, 1988 as being "inadmissible as per existing rules". Thereafter, the petitioner applied again for condonation of delay and the same was condoned as per Ext. P5 dated May 17, 1988 by the Chief Minister, under his special powers. Then the petitioner submitted his application afresh on May 30, 1988 as per Ext. P6. The Director of Public Instruction called for a report on June 13, 1988 as per Ext. P-7 from other offices, the report was sent as per Ext. P8 dated March 20, 1989. The application is still pending. The petitioner then filed the present writ petition O. P. 1827 of 1991 on February 19, 1991 seeking a writ of mandamus for suitable appointment and for striking down the last sentence in clause 34 of Ext. P9-G. O. (P) No. 34/87/ P and ARD dated December 17, 1987: (ii) In W. A. No. 486 of 1992 (O. P. No. 6393 of 1988), the writ petitioner is Joy Joseph. His father late Sri. S. Joseph died in harness on April 12, 1982 while working as U. D. C. in the Public Health Engineering Department of the Government, leaving behind him, his widow, two sons and three daughters. The elder brother of petitioner, one J. Gilbert applied (see paragraph 9 of the O. P.) and that application was rejected as the income of the family exceeded the prescribed limit. The petitioner's date of birth is February 25, 1963 and he attained majority on February 25, 1981 and applied and the same was rejected on August 29, 1983 as per letter dated December 9, 1985 by the Chief Engineer on the ground that the family income was more than the prescribed Rs. 9000/- per annum. Then the petitioner again applied to the Hon'ble Minister for relaxing the rules as per Ext. P1 dated September 2, 1985 and the Chief Engineer recommended rejection as per Ext. P. 2 dated December 9, 1985. On the plea that in G. O. (P) No. 424/86/gad dated October 31, 1986 and G. O. (P) No. 28/87/gad dated January 15, 1987 the Government has dispensed with income limit in case of deaths of Government servants after July 1, 1983, the petitioner applied again as per Exts. P5 and P5 (a) dated January 1, 1987 and by petition dated January 18, 1988. He did not disclose that his brother's application was rejected earlier. By Ext. P7 dated February 25, 1989, the petitioner's application dated January 18, 1988 was rejected by the Government on the ground that his brother J. Gilbert's application was rejected earlier on the ground that the family income exceeded the then existing family income ceiling. Questioning Ext. P7 and challenging the last sentence in paragraph 34 of the G. O. dated December 17, 1987, the writ petition was filed: (iii) WA. No. 590 of 1992 (O. P. No. 5294 of 1988): The Writ Petitioner Kum. Elsamma Methew is the daughter of a Junior Engineer in the Public Works Department. Her father Sri. Mathulla died on November 16, 1977 leaving behind him, his wife, one son and four daughters. The petitioner's mother is a primary school teacher and she was to retire in March 1989, after the filing of the O. P. Initially, the petitioner's brother Sri. Abraham Mathew applied on January 21, 1978 under the Dying-in-Harness Scheme and his application was rejected as per Ext. Pl dated July 5, 1980 on the ground that the income of the family was in excess of the ceiling limit. Thereafter the Government issued a G. O. dated February 28, 1986 raising the income limit to Rs. 9000/- per annum in cases of death of Government servant on or after January 1, 1982, while in cases of death prior to January 1, 1982, the income limit would be Rs. 6000/-Then Government issued G. O. (P) 424/86/gad dated October 31, 1986 dispensing with ceiling on income in cases of Government servants dying on or after July 1, 1983. G. O. (P) 78/87 dated January 15, 1987 provided three year period after majority for applications to be filed by minor children of Government servant, if such Government servant had died prior to July 1, 1983 and if the minor has become a major later and is filing an application after July 1, 1983. The petitioner became a major on April 25, 1984 and filed the application on February 23, 1987 but the Government rejected the application on March 1, 1988 by Ext. P6 and the reasons were given in Ext. P7 dated April 16, 1988 saying that the petitioner's elder brother's application having been rejected earlier, the petitioner cannot apply unless the case was one where the Government servant died on or after July 1, 1983. Questioning the limitation as to date, the present writ petition is filed.