SUKUMARAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) A. U. P. School, Pilachikara (for short 'the School'), Post Office Balal, District Kasaragod is an Aided School receiving grant in aid from the State Government. Respondent No. 5 is its Manager. One P. Narayanan Nair was a Peon in the School. He proceeded on leave with effect from 19th May 1993 preparatory to retirement and the Manager appointed the appellant before us as a Peon in that vacancy. He was appointed on 19th May 1993. The Manager of the School approached the Assistant Educational Officer seeking approval of the appointment. The application was rejected and the approval declined on the ground that the Manager, while appointing the appellant, had overruled the claim of the 6th respondent who was a claimant under R.51B of Chap.14 of the Kerala Education Rules (hereinafter called 'the Rules'). R.51B which was introduced with effect from 30th March 1990 reads asunder

(2.) We have heard the learned Counsel for the parties and perused the orders of the authorities below and also the Judgment of the learned Single Judge which is under appeal. The claim for appointment on compassionate grounds on the death of an employee in harness was introduced by the State Government by amending the Rules with effect from 30th March 1990. R.51B as reproduced above was introduced which provides that the Manager shall give employment to a dependent of an aided school employee dying in harness. The Rule further provides that all 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. It is true that the Rule does not prescribe any time limit within which the claimant has to apply for seeking compassionate appointment but by subsequent Government Orders issued by the State Government, a time limit has been prescribed which is two years from the date of death or three years from the date of attaining majority by the claimant if he/she was a minor on the death of the employee. The Government Order dated 10th of April, 1992 makes such a provision. It also provides that the claim for compassionate appointment would not be applicable to the employees of aided schools and private colleges. This clause in the Government Order cannot be relied upon in the light of the statutory provision contained in R.51B itself which provides that all Government Orders applicable to the Government employees regarding appointment under the dying in harness scheme would be applicable mutatis mutandis. Therefore, we are of the view that the Government Order dated 10th of April, 1992 prescribing the time limit would apply. According to Clause.21 of this Government Order, an eligible dependent has to apply for appointment within two years from the date of death of the employee. In the present case, the father of respondent No. 6 expired on 7th April 1989 and as found by the authorities below, the 6th respondent approached the Manager of the School for a compassionate appointment only on 8th May 1993, i.e. after a lapse of more than four years. Therefore, in terms of R.51B read with the Government Orders, the claim of the 6th respondent could not be entertained and, therefore, we are of the view that the respondents were not justified in declining approval to the appointment of the appellant as a Peon against the leave vacancy.

(3.) Moreover, the Apex Court in Director of Education (Secondary) v. Pushbendra Kumar ( 1998 (5) SCC 192 ), had observed that the underlying object for the grand of compassionate employment under the dying in harness scheme is to enable the family of the deceased employee to tide over the sudden crisis resulting due to the death of the bread earner which had left the family without any means of livelihood. It is out of pure humanitarian considerations that such appointments are made and even though they are put in the form of a statutory Rule, the objective of such appointment nevertheless remains the same. Such appointments, as observed by the Apex Court, are an exception to the general rule because every appointment has to be made after following certain procedure. But, when compassionate appointment is made, no such procedure is followed. Considering the aforesaid Judgment of the Supreme Court, a Division Bench of this Court in Deepak v. Secretary, General Education Department (ILR 2002 (2) Kerala 513) had observed that there must be some proximity between the date of death as well as the date of application. The observations in this regard are reproduced hereunder: