REMYA R CHANDRAN Vs. DISTRICT EDUCATIONAL OFFICER

JUDGEMENT

(1.) The petitioner's mother died in harness on 29.1.1989 while working as H.S.A. Petitioner says that she is a major. Her mother was survived by her husband and another daughter. The petitioner has passed Plus Two Examination. She contends that she is qualified to be appointed as Clerk/Peon/Attender or full time Menial in Aided Schools. According to her, on the basis of her being a dependent of her late mother, who died in harness on 29.1.1989, she submitted an application on 19.8.2002. Since the first respondent informed her that she has to send the application to the second respondent, application was submitted on 19.8.2002 before the second respondent, who is the Manager of the Aided School. By order dated 13.11.2002, her application for compassionate appointment was rejected. She preferred an appeal before the D.E.O., Mavelikkara. She contends that she had produced the prescribed proforma duly filled in and Income Certificate issued by the Village Officer. It was also accompanied by an Affidavit duly attested by a Notary Public to the effect that the other legal heirs of her deceased mother have no objection to the petitioner being appointed. It is stated that while appeals were pending, the second respondent appointed the third respondent in his School as full time Menial with effect from 2.9.2002. It is her case that despite her above efforts, she could not get a copy of the appointment order. She also sent a representation requesting that the appointment of the third respondent may not be approved. She has approached this Court challenging Ext.P2, the order rejecting her claim. She further prays that this Court may command the first respondent to ensure that the petitioner is appointed and further that there will be a declaration that the petitioner is entitled to be appointed under Rule 51B of Chapter XIVA K.E.R. to any suitable post existing or in an arising vacancy with effect from the date of application, and for a further declaration that the appointment of the third respondent is illegal and ab initio void. She also seeks a declaration that no appointment was liable to be made in the School from the date of Ext.P1 against any suitable post for which the petitioner is qualified. There is a further relief sought in the form of a mandamus directing respondents 1 and 2 to appoint the petitioner to any suitable post commensurate with her qualifications.

(2.) A counter affidavit was filed by respondents 2 and 3. In the said counter affidavit, it is stated that under C1.20 of the Government Order dated 24.5.1999 that application shall be only in the prescribed form. It is stated that the application Ext.P4 is submitted only very late. It is further contended that the letter evidenced by Ext.P1 is not a proper application. A letter issued by the D.E.O. to the Manager wherein the petitioner was informed that the petitioner should send a proper application. Therefore, it is contended that the contention of the petitioner that she had submitted application vide Ext.P1 dated 19.8.2002 is incorrect. It is further stated that, however, an application in the prescribed form was given on 27.11.2002. The application was accompanied by Ext.R2(b) covering letter. It is stated that on receipt of letter dated 19.8.2002, the second respondent had informed the petitioner by Ext.P2 that she was not eligible. It is stated that by the time Ext.P4 was submitted, the third respondent was already appointed in a temporary vacancy as the service of a full time Menial was absolutely necessary for the School on 2.9.2002. It is stated that the appointment of the third respondent was only till 30.12.2002 and Shri K.K. Vasu rejoined duty on 31.12.2002. It is stated that the later decision of this Court in P.S. Deepak v. Secretary, General Education Department (2002 (3) KLT 288 = 2002 (2) KLJ 79) is what is applicable. It is stated that the conditions mentioned in the said Ruling are not available here. It is further stated that the petitioner's mother died in 1989, but her father had been in Government service in the Excise Department and is even now in service in the Excise Department. It is further stated that the financial condition of the petitioner's family was not at all weak at the time of death of her mother and even now, after twelve years. It is further stated that the appointment of the petitioner is not absolutely essential to get over any financial crisis at any time at all. It is specifically stated that the third respondent has no independent income and his family income is very little. The only income of the family being the pension amount of his father who retired on superannuation as a Lower Division Clerk. The third respondent, it is stated, has two brothers who are also unemployed. It is stated that the third respondent and his brothers had passed S.S.L.C. and that in the family five members are depending on the above said pension amount. An additional counter Affidavit has been filed by respondents 2 and 3 wherein it is stated that even according to the petitioner, she completed 18 years of age on 17.8.2002. It is stated that as on 19.8.2002, the petitioner was not eligible to submit the application as per Chapter XXIVA Rule 1 of the K.E.R. It is also stated that thirteen years have already gone by from the date of death of the mother and reference is made to the decision in Sunilkumar v. Union of India (2003 (1) KLT SN Page 23 Case No. 32). It was also stated that the Manager is obliged to entertain only proper application submitted in the prescribed form as per the Government Order. It is reiterated that the third respondent is financially very poor and he seeks sympathetic consideration at the hands of this Court also.

(3.) A reply affidavit has been filed wherein it is stated that the petitioner attained majority on 17.8.2002, and that the time limit for preferring an application under the Scheme will be two years from the date of death. It is stated that in the case Of a minor, the period is 3 years from the date of attaining majority. It is stated that the application accompanied by Ext.R2(b) is a valid application and the clerical error therein is to be ignored. It is stated that the income of her family does not disqualify her from getting an employment under the dying-in-harness scheme, and that her father is employed and he remarried after the death of her mother. He has got two daughters in the second marriage also. Petitioner and her sister were depending on the mother. Dependance even now continues and it is stated that she is yet to tide over the financial difficulty. It is stated that the provisions of Rule 1(2) of Chapter XIVA K.E.R. will not operate against her submitting an application on 19.8.2002.