NARAYANAN Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER is the son of one Rajagopalan Unni, who died in harness in the year 1977 while working as a teacher in Parli High School . Rajagopalan Unni had put in about 21 years service at that time. The sudden death of Unni caused considerable difficulties to the family. PETITIONER at that time was only a student aged about 14 years. Due to financial difficulties he could not complete his studies. He completed only Pre-degree. At that time, in the school there was no post in which petitioner could be accommodated. The post of a clerk fell vacant in the High School on 1. 4. 1997 as the incumbent retired. PETITIONER then made an application before the third respondent in prescribed form so as to appoint him in that vacancy. Since no action was taken he has sent several letters to the Educational Authorities. The complaint of the petitioner is that disregarding Ms application, third respondent is taking steps to fill up this post. This according to the petitioner is illegal. According to petitioner, he is entitled to get the benefit of R. 51b of Chapter xiv-A of the Kerala Education Rules.

(2.) A counter affidavit has been filed on behalf of the third respondent. According to him petitioner's father died as early as 1977 and he is raising his claim only after 12 years. It is also stated, petitioner became a major in the year 1981 and no claim was put forward. He is also relying on the decision of the Supreme Court in Haryana State Electricity Board and Ann v. Hakim Singh (1977) 8 SCC 85 and contended that the object of such provision is to give succour to the family to tide over the sudden financial crisis befallen the dependants on account of the untimely demise of its sole earning member. According to the counsel since death occurred as early as in 1977 it should be taken that the family has already tide over the financial difficulties. Counsel also relied on the decision of this Court in Ganesan v. State of Kerala, 1995 (2) KLT 700 and contended that the principle laid down therein have to be adhered to in the matter of compassionate appointment. Counsel for the petitioner on the other hand, relied on the decision of this court in Sajeesh Babu v. State, 1996 (2) KLT 542 and contended that R. 51b of chapter XIVA of K. E. R. creates a statutory right and therefore manager is duty bound to give appointment to dependants. Counsel for the petitioner however submitted that R. 51b can have only prospective effect. It is his contention that only if the death occurred subsequent to the introduction of R. 51b, if at all petitioner has got any claim the same could be raised. 2a. In order to understand the meaning of the expression "dying in harness" it is profitable to refer to R. 51b of Chapter XIVA ker which is extracted below: "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 dependants of Government servants dying in harness shall, mutatis mutandis, apply in the matter of such appointments". According to the counsel, the expression used in R. 51b is "dying in harness" and not "died in harness". I am of the view, the interpretation given by the learned counsel for third respondent cannot be accepted. Government as early as 1990 introduced the Scheme to provide employment assistance to dependants of Government servants who died in harness. However, similar provision was not introduced in the Kerala Education rules. Since Government have received large number of applications from employees of the aided school demanding employment assistance Government considered all aspects of the matter and amended R. 51b of Chapter XIVA and R. 9a of Chapter XXIV-A of K. E. R. as per notification dated 30. 3. 1990 extending the benefit of compassionate employment scheme to aided school staff also. This was objected to by the representatives of the managements and their association. Government held a discussion with the representatives of the managements also. In the meantime, this Court also in the judgment in O. P. 664/95 highlighted the necessity of making such mandatory provisions in the Kerala education Rules also. This Court also in W. A 1207/96 directed Government to clarify whether the scheme is applicable to such employment to the dependants of aided school teacher dying in harness. After considering the entire matter government have passed Ext. P1 order dated 16. 1. 97 which states as follows: "i. The stay ordered against the operation of R. 51b chapter XIVA and R. 9a Chapter XXIV A, KER will stand vacated with immediate effect. ii. Managers of aided schools shall give employment to dependant of aided school teachers/nonteaching staff of aided schools dying in harness. The Government orders relating to the compassionate employment scheme as applicable to the dependants of Government servants dying in harness shall, mutatis mutandis, he followed in the aided schools. iii. The claim of the incumbents under the scheme shall be applicable against the existing and arising vacancies. iv. If the manager fails to carry out his obligation, the educational Officers shall have power to deny approval of such appointments which are made against R. 51b Chapter XIV A and R. 9a Chapter XXf V A KER. "