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Wednesday, July 4, 2012

Appointments on compassionate basis are recognised as a permissible mode of induction into service under the Kerala Education Rules framed under the Kerala Education Act. Rule 9A appearing in Chapter XXIVA and Rule 51B appearing in Chapter XIVA of the said Rules are relevant in this regard. While Rule 9A deals with employment of dependants of the non- teaching staff of an aided school dying-in-harness, Rule 51B deals with employment of dependants of an aided school teacher dying-in-harness. The said rules are as under:- “9A: The manager shall give employment to a dependant of the non- teaching staff of an aided school 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 appointment.” (emphasis supplied) “51B: The Manager shall give employment to a dependant 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.” “19. The time limit for preferring applications under the scheme will be 2 years from the date of death of govt. Servants. In the case of minor, the period will be within 3 years after attaining majority.” if an employee of the school died in harness and his legal representatives required any assistance in the form of compassionate appointment it is for them to approach the school in that regard by making an application in the manner prescribed. If the legal heirs did not do so, the Manager could reasonably assume that they were not in need of any assistance for otherwise they would ask for the same.


                                                   REPORTABLE

                         IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO. 4848    OF 2012
                   (Arising out of S.L.P. (C) 7556 of 2008




Shreejith L.                                       …Appellant

                 Versus

Deputy Director (Education) Kerala & Ors.    …Respondents

                                    WITH

            CIVIL APPEAL NOS.  4852, 4851, 4854, 4853, 4849-4850
                                         OF 2012
    (Arising out of SLP (C) No.4954/2009, SLP (C) No.33421/2009, SLP (C)
      No.4467/2010, SLP (C) No.31908/2010, SLP (C) Nos.6607-6608/2011)






                               J U D G M E N T



T.S. THAKUR, J.

1.    Leave granted.

2.    These appeals arise out of similar but different orders passed by  the
High Court of Kerala at Ernakulam whereby the High  Court  has  allowed  the
claim for compassionate appointment made by  the  respondents  and  directed
the institutions concerned to appoint them to posts against which  they  are
otherwise eligible for appointment. The factual backdrop in which  the  writ
petitions came to be filed by the  respondents  and  eventually  allowed  is
different in each case but  the  underlying  principle  on  which  the  said
petitions have been allowed and the provisions  on  the  basis  whereof  the
same have been allowed being common, we propose to dispose of these  appeals
by this common judgment.

3.    In Civil Appeal arsing out of Special Leave Petition  (C)  No.7556  of
2008 father of respondent No.5 who was working  as  a  ‘Peon’  in  a  school
known  as  SHGSHS,  Kadakkodu,  died-in-harness  on  14th   October,   2000.
Respondent No.5 was a minor aged about 16 years at that time.   He  attained
majority on 21st April,  2002.  His  mother  all  the  same  applied  for  a
compassionate  appointment  under  the  prevalent  Compassionate  Employment
Scheme to the Deputy Director (Education) who informed her  that  respondent
No.5 could apply to the  management  for  an  appointment  as  and  when  he
attained majority. The petitioner accordingly applied for appointment  as  a
Sanskrit Teacher on 7th February, 2005.  It is not in dispute  that  he  had
the requisite qualification for appointment against the said post.

4.    The post of a Lower Grade Sanskrit Teacher fell vacant in  the  school
on 1st June, 2005, but respondent No.5 was informed that his claim  will  be
considered in the next arising  vacancy  of  a  non-teaching  staff  in  the
school.  Even though a  representation  made  to  the  District  Educational
Officer resulted in a  direction  to  the  Manager  of  the  institution  to
consider the claim of respondent No.5 yet an appointment  order  was  issued
by the Manager in favour of the appellant herein in preference to the  claim
made by the former.

5.    Aggrieved by the denial of an appointment in  his  favour,  respondent
No.5 filed W.P. (C) No.21503/2006 in the High Court of Kerala at  Ernakulam.
During the pendency of the said petition a vacancy of a ‘Peon’ arose in  the
school, which was offered to him by the Manager. The High Court disposed  of
the writ petition permitting respondent No.5 to accept  the  offer  made  to
him by the Manager and to file a separate  petition  for  redressal  of  his
grievance if he continued to feel aggrieved. His appointment as ‘Peon’  thus
remained without prejudice to the respondent-petitioner’s claim against  the
post of Junior Sanskrit Teacher in the school.

6.    Pursuant to the liberty reserved in his favour, respondent No.5  filed
W.P. (C) No.16399/2007 in the High Court praying for a  certiorari  quashing
the appointment of  the  appellant  herein  and  a  mandamus  directing  the
Manager to appoint respondent No.5-writ petitioner in his place  as  a  full
time Junior Sanskrit Teacher.  A single Bench of the High Court allowed  the
said  petition  by  an  order  dated  10th  December,  2007   quashing   the
appointment of the appellant herein and directing  the  Manager  to  appoint
respondent No.5 in his place effective from 1st  August,  2006.   The  above
order passed by the High Court was then assailed by the appellant herein  in
Writ Appeal No.149 of 2008 which appeal  has  been  dismissed  by  the  High
Court in terms of the order under challenge before us.

7.    Appearing for the appellant, Mr. C.S. Rajan, learned  senior  counsel,
contended that appointments on compassionate basis are  made  only  to  give
succour to a family in financial distress on account of the  untimely  death
of an earning member.  Such appointments cannot, therefore,  be  made  where
the family concerned has managed to survive for  several  years  before  the
claim for  appointment  is  made  by  someone  who  was  eligible  for  such
appointment.  He contended that the claim for  appointment  in  the  instant
case had been made nearly five years after  the  demise  of  the  father  of
respondent No.5 which was liable to be  rejected  on  the  ground  of  being
highly belated. The High Court was,  argued  Mr.  Rajan,  not  justified  in
setting aside the appointment of the appellant who had worked as  a  teacher
and had been regularly appointed, which appointment  was  approved  even  by
the Competent Authority in the Department of Education.

8.     On  behalf  of  respondent  No.5  it  was  per  contra  argued   that
appointments on  compassionate  basis  were  regulated  by  statutory  rules
framed under the Kerala Education Act and the Government Orders  which  were
made applicable to such  appointments.   An  application  filed  within  the
period of limitation under the prescribed rules  could  not,  contended  the
learned counsel, be rejected on the ground  of  delay  especially  when  the
intervening period was not shown to have resulted in any material change  in
the economic status of the family who continued to suffer in  penury  as  on
the date of demise of the bread-winner of the family.

9.    Appointments on compassionate basis are recognised  as  a  permissible
mode of induction into service  under  the  Kerala  Education  Rules  framed
under the Kerala Education Act. Rule 9A appearing in Chapter XXIVA and  Rule
51B appearing in Chapter XIVA  of  the  said  Rules  are  relevant  in  this
regard. While Rule 9A deals  with  employment  of  dependants  of  the  non-
teaching staff of an aided school  dying-in-harness,  Rule  51B  deals  with
employment of dependants of an aided school  teacher  dying-in-harness.  The
said rules are as under:-

         “9A: The manager shall give employment to a dependant of  the  non-
         teaching staff of an aided school  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 appointment.”

                                        (emphasis supplied)

         “51B: The Manager shall give employment to a dependant 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.”




10.   It is evident from a plain reading  of  the  above  that  appointments
under the statutory rules are further regulated by the terms  of  government
orders issued on the subject.  Government order dated 24th May, 1999  is  in
this regard relevant,  for  it  stipulates  the  conditions  of  eligibility
including the family income and the category of  appointments  that  can  be
made under the compassionate scheme. Qualification for the post,  age  limit
for making appointments and time for filing applications  for  compassionate
appointments are matters regulated  by  the  said  order.  Para  19  of  the
Government  order  stipulates  the  period  of  limitation  for   preferring
applications and may be extracted:

         “19.     The time  limit  for  preferring  applications  under  the
         scheme will be 2 years from the date of death  of  govt.  Servants.
         In the case of minor, the period  will  be  within  3  years  after
         attaining majority.”




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 Rule 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.

12.   It is true that the appellant had worked for nearly five  years  after
his appointment against the vacancy but it is equally  true  that  he  could
not legally oppose or grudge the claim made by respondent No.5 in the  light
of the provisions of the scheme and the  statutory  rules  on  the  subject.
That was particularly so when the appointment of the  appellant  itself  was
not made on the basis of any fair or competitive selection  process  or  any
other transparent method aimed at evaluating the comparative  merit  of  all
those qualified & interested in taking  the  job.  The  appointment  of  the
appellant, it was fairly conceded by Mr. Rajan, had been  made  entirely  at
the discretion of the Manager of the institution, and was  not  preceded  by
any public notice or advertisement inviting candidates from the open  market
to apply for appointment against the available vacancy.  Be that as it  may,
we are not so much concerned with the validity of  the  appointment  of  the
appellant in these proceedings as we are with the entitlement of  respondent
No.5 to seek an  appointment  in  terms  of  the  Statutory  Rules  and  the
prevalent scheme.  We, therefore, see no reason to interfere with  the  view
taken  by  the  High  Court.  The  appeal  filed  by  the   appellant   must
consequently fail.

13.   In Civil Appeal arising out of Special Leave Petition (C)  No.4954  of
2009, father of respondent No.1 had been  working  as  the  ‘Headmaster’  of
East Valliyai, U.P. School,  who  died  in  harness  on  27th  April,  1995.
Respondent No.1 was a minor at that time who attained majority only  on  8th
May, 1995 and  has  got  married  since  then.   On  21st  July,  2007,  the
appellant-petitioner No.2 was appointed as a ‘Peon’ in  the  East  Valliyai,
U.P. School.  It was thereafter on  10th  September,  2007  that  respondent
No.1 claimed a compassionate  appointment.   Assistant  Educational  Officer
directed the Manager to consider the said  application  by  an  order  dated
24th April, 2008. The Manager, however, rejected the  claim  on  the  ground
that  the  prayer  for  appointment  was  made  belatedly.    The   District
Educational Officer upheld the rejection in terms of his  order  dated  24th
June, 2008.  The matter was then brought up before the High Court of  Kerala
at  Ernakulam  in  W.P.(C)  No.16815/2008  in  which  the  writ  petitioner,
respondent No.1 before  us,  challenged  the  rejection  of  her  claim  for
appointment on compassionate basis.  By an order dated 20th  October,  2008,
a single Bench of the High Court allowed the said petition and directed  the
Manager of the institution  to  appoint  the  writ  petitioner  against  the
vacancy of ‘Peon’ that had arisen on 30th  June,  2008.   Aggrieved  by  the
said order, the Manager of the school filed  Writ  Appeal  No.2211  of  2008
before a Division Bench of the High Court which appeal was dismissed by  the
High Court in terms of its order dated 13th January, 2009 impugned  in  this
appeal.

14.   Appearing for the appellant it was contended by  Mr.  Rajan  that  the
application filed by respondent No.1 was belated inasmuch as  the  same  was
filed 12 years after her attaining majority. He submitted  that  during  the
intervening period respondent No.1 had  got  married  which  clearly  showed
that the family was not in penury to call for any sympathy towards  it.  The
High Court had according to Mr. Rajan,  fallen  in  error  in  holding  that
delay in the filing of the application was only technical in nature  as  the
vacancy against which the prayer  for  compassionate  appointment  had  been
made had occurred after about 13 years  of  the  demise  of  the  father  of
respondent No.1.

15.   There is considerable merit in the contention urged by Mr. Rajan.   It
is not in dispute that respondent No.1 had attained majority on the  8th  of
May, 1995 whereas the application for compassionate appointment was made  on
10th September, 2007. This application was, on the face of  it,  beyond  the
period stipulated in the scheme for making such a  claim.   The  High  Court
appears to have confused an application required  to  be  filed  within  the
period stipulated for  the  purpose  with  the  availability  of  a  vacancy
against which such an  application  could  be  considered  by  the  Manager.
These were two distinctly different matters.  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.    An
application could and indeed ought to have  been  made  by  respondent  No.1
within the time stipulated, regardless whether there was a  vacancy  already
available or likely to become available  in  the  near  or  distant  future.
Respondent No.1 having failed to do that, could not  claim  a  compassionate
appointment especially when there was nothing on record to suggest that  the
family was in penury notwithstanding the  lapse  of  a  considerable  period
since the demise of the bread-winner; during which  period  respondent  No.1
had got married and settled down in life and supports  a  family.  The  High
Court was in that view clearly  in  error  in  issuing  a  mandamus  to  the
Manager to appoint the respondent on compassionate basis which  order  calls
for interference and is hereby reversed.

16.   In Civil Appeal arising out of Special Leave Petition (C) No.33421  of
2009 father of respondent No.4 was working as a ‘Peon’  who  died  while  in
service on 9th September, 1988.  Respondent No.4 applied to the  Manager  of
the institution for a  compassionate  appointment  on  2nd  May,  1990.  The
Manager intimated to respondent No.4 by a letter dated 4th June,  1990  that
as and when a vacancy  occurs,  he  would  be  considered  for  appointment.
Respondent No.4 applied again in the prescribed format against a vacancy  on
25th May, 2002.

17.   On 5th June, 2002 the appellant herein  was  appointed  as  a  teacher
against the available vacancy of  a  Hindi  Teacher.  The  request  made  by
respondent No.4 was shortly thereafter rejected  by  the  Manager  by  order
dated 17th June, 2002. The Assistant Educational Officer, however,  accepted
the claim made by respondent No.4 and declined approval to  the  appointment
of the appellant by its order dated  23rd  September,  2002.  The  Assistant
Educational Officer held that respondent No.4 was qualified for  appointment
against the post of Hindi Teacher and the Manager ought to  have  considered
his prayer and  appointed  him.  He  accordingly  directed  the  Manager  to
appoint respondent No.4 against the available vacancy.

18.   Aggrieved by the said order  the  appellant  preferred  Writ  Petition
No.7413 of 2007 before the High Court which was dismissed by a single  Bench
by its order dated  25th  September,  2009.  Writ  Appeal  No.2186  of  2009
preferred against the said order was also dismissed by  the  Division  Bench
of the High Court in terms of its order dated 6th October, 2009.

19.   Mr. Rajan, learned senior counsel, argued that the  first  application
submitted by respondent No.4 for compassionate appointment on 2nd May,  1990
was no doubt within the time prescribed but  the  same  was  not  in  proper
format.  It was, argued the learned counsel, essential that the  application
should be not only within the time stipulated for the purpose  but  also  in
the prescribed format.  Inasmuch as that was not so in the instant case  the
application must be deemed to be non est.

20.   We regret our inability to accept that  submission.   The  Manager  of
the school had on receipt of the application from respondent No.4  not  only
acknowledged  the  request  for  appointment  but   also   recognised   that
respondent No.4 possessed the requisite qualification for appointment  as  a
Hindi Teacher.  The request was not, however, granted as no vacancy  in  the
cadre was available in the school at that time. What is noteworthy  is  that
the Manager did not reject the application on the ground that the  same  was
not in the prescribed format  or  that  the  application  was  deficient  in
disclosing information that was essential for consideration  of  the  prayer
for a compassionate appointment. If the authority concerned before whom  the
application was moved and who was supposed to consider the request, did  not
find the format of the application to be a disabling  factor  for  a  proper
consideration thereof, it could not be set up as a ground for  rejection  of
the prayer, by the beneficiary of the appointment made in derogation of  the
rights of respondent  No.4.   At  any  rate,  what  was  important  was  the
substance of the application  and  not  the  form.  If  the  application  in
substance conveyed the request for a compassionate appointment and  provided
the information which the Manager required for considering the request,  the
very fact that the information was not in a  given  format  would  not  have
been a good reason to turn down the request.   We need to  remind  ourselves
that the scheme is meant to be a beneficial scheme aimed  at  helping  those
in need of assistance on account  of  an  untimely  demise  in  the  family.
Inasmuch as the Assistant Educational Officer and even the High Court  found
respondent No.4 to be eligible for appointment and directed the  Manager  to
make  such  an  appointment,  they  committed  no  error  to   warrant   our
interference under Article 136 of the Constitution.  The  Civil  Appeal  is,
therefore,           liable           to            be            dismissed.


21.   In Civil Appeals arising out of Special Leave Petition  (C)  Nos.31908
of 2010 and 6607-08 of 2011, the mother of respondent No.1 was working as  a
‘Teacher’ who  died-in-harness  on  4th  September,  1979.  Respondent  No.1
attained majority on 6th December, 1991 and passed her SSLC  examination  in
the year 1993 and Teacher Training Course  in  the  year  2003.   Respondent
No.1 then applied for a  compassionate  appointment  as  a  teacher  on  9th
September, 2005 which request was turned down by the  Manager  in  terms  of
his letter dated 12th June, 2006.  The Manager pointed out  that  respondent
No.1 was a married woman and thus a member of another  family.  The  Manager
also pointed out that the father of respondent No.1 being  a  Naval  Officer
the family income at the time of demise of her mother was beyond  the  limit
prescribed under the scheme.  He also pointed out that the  application  for
appointment was belated having been made nearly 24 years  after  the  demise
of her mother.

22.    Aggrieved  by  the  said  order,  respondent  No.1  appears  to  have
approached the District Educational Officer, who allowed the claim  made  by
the said respondent in terms of  his  order  dated  22nd  October,  2007.  A
revision was then filed by the Manager against the  said  order  before  the
Government which was dismissed by order dated 27th June, 2009.   Challenging
the said order, the Manager filed Writ Petition (C) No.21384 of 2009  before
the High Court which was dismissed by a single Bench of the  High  Court  by
order dated 12th November, 2009.  Writ Appeal No.  2791  of  2009  preferred
against the said order having failed, the Manager  of  the  institution  has
preferred the present appeal. The very same order has been assailed  by  the
appellant in Special Leave Petition (C) Nos.6607-6608 of 2011.

23.   It was contended by learned counsel for the appellants that  the  High
Court was in error in dismissing the writ petition filed by the  Manager  of
the institution disregarding the fact that the  prayer  for  appointment  on
compassionate basis had  been  made  14  years  after  respondent  No.1  had
attained majority. During the intervening period  the  respondent  not  only
got married and settled down with her husband in another family but did  not
in principle qualify for compassionate appointment being the member  of  the
family of her husband. It was also contended that the orders passed  by  the
District Educational Officer and that passed by  the  Government  dismissing
the revision petition were unsustainable and ought to be reversed.

24.   There is, in our view, considerable merit in the contentions urged  on
behalf of the petitioners. The application  filed  by  respondent  No.1  was
indeed belated having been filed 14  years  after  the  respondent  attained
majority.   No explanation, muchless a worthwhile one  is  forthcoming,  for
this kind  of  inordinate  and  unexplained  delay.  Delay  assumes  greater
significance keeping in view the fact that respondent No.1 has  got  married
and has now settled with her  husband  comprising  a  separate  family.  The
appointment of the said  respondent  may  not  in  that  view  lead  to  any
financial help for the other members  of  the  family  left  behind  by  the
deceased.  While it is true that marriage by itself does not in view of  the
language employed in  the  scheme,  disqualify  the  person  concerned  from
seeking a compassionate appointment, the fact remains  that  delay  of  more
than 14 years could itself prove fatal to the  prayer  for  a  compassionate
appointment.   The  orders  passed  by  the  Educational  Officer  and   the
Government and those by the High Court in Writ Petition and in  Writ  Appeal
are therefore unsustainable and, hence liable to be set aside.

25.   That leaves  us  with  Civil  Appeal  arising  out  of  Special  Leave
Petition (C) No.4467 of 2010. In this case also  the  High  Court  had  upon
consideration of the facts of the case and  the  provisions  of  the  scheme
directed appointment of respondent No.7 as a ‘Full-time Menial’ against  the
first vacancy that became available in  the  school  concerned.   Father  of
respondent No.7, it appears, was a ‘Full-time Menial’  who  passed  away  on
19th July, 2000. Since respondent No.7 was a minor at that time, his  mother
sent an application addressed to the Manager of the school stating that  she
was agreeable to the grant of the job to her son-respondent No.7 in view  of
the death of her husband. The said letter was  returned  to  the  mother  of
respondent No.7 with a  postal  endorsement  ‘unclaimed’.  In  October  2002
respondent No.7 submitted an application in the  prescribed  format  to  the
District Educational Officer who returned it to the said  respondent  to  be
given to the Manager of the school for  consideration.  Without  considering
the said application respondent No.1 appointed appellant No.1  as  a  ‘Full-
time Menial’ on 11th April, 2003. On 2nd  June,  2003,  appellant  No.3  was
also appointed against the  vacancy  of  a  ‘Full-time  Menial’.  Similarly,
appellant No.2 was appointed as ‘Full-time Menial’  on  1st  February,  2005
when appellant No.1 was upgraded from the post of a ‘Full-time  Menial’,  to
that of a  ‘Peon’.  The  prayer  made  by  respondent  No.7  was  eventually
rejected by the District Educational Officer  on  the  ground  that  it  was
belated and was not in terms of the Government Order. Similar claim made  by
Mrs. Rajeswari was also rejected by the District Educational Officer.   Both
of them filed separate writ petitions which were disposed  of  by  the  High
Court remanding the matter to the District Educational Officer for  a  fresh
hearing.  Upon remand the District  Educational  Officer  upheld  the  claim
made by respondent No.7 and Mrs. Rajeswari. Aggrieved  by  the  said  order,
petitioner preferred revision  petition  before  the  Government  which  was
dismissed.  Appellants  No.1  &  2  and  respondent  No.1  then  filed  writ
petitions in which it was submitted that respondent No.7 and Mrs.  Rajeswari
were gainfully employed. A Single Bench of the High Court allowed  the  said
petitions  holding  that  respondent  No.7  and  Mrs.  Rajeswari  were  both
disentitled to claim compassionate appointment.  In  the  meantime  on  15th
December, 2007 appellant No.4 was  appointed  as  ‘Full-time  Menial’.  Writ
Appeal No.780 of 2008 filed by Mrs. Rajeswari against the  judgment  of  the
single Bench was dismissed by the High Court.  By  a  separate  order  dated
11th December, 2009, the High Court allowed the appeal filed  by  respondent
No.7, reversed the judgment of the Single  Bench  in  so  far  as  the  said
respondent was concerned.

26.   The material facts are not in dispute. That an application  was  filed
by the mother of respondent No.7 which  was  returned  with  an  endorsement
“unclaimed” is admitted. In para  2  of  the  writ  petition  filed  by  the
appellants it was stated as under:

         “The 4th respondent’s father Sri. CV Kesavan was a full time menial
         at CA High School, Purvamba from 4.6.1962.  On  the  verge  of  his
         retirement namely on 19.7.2000, Sri Kesavan died.  Accordingly, the
         wife of  Sri.  Kesavan,  namely  Smt.  KM  Chandrika  submitted  an
         application on a plain paper on 22.7.2000 before the 1st petitioner
         seeking appointment under Rule 9A, Chapter XIV KER.”



27.    The  fact  that  an  application  was  submitted  to   the   District
Educational Officer is also beyond dispute keeping in view  the  endorsement
made by District Educational Officer, Palaghat, dated 8th October, 2002,   a
copy whereof has been placed at page 81 of the S.L.P.  As a matter  of  fact
the need for making of such application to the District Educational  Officer
appears to have arisen on account of refusal of the Manager to  receive  the
application addressed to him. Such being the  case,  the  rejection  of  the
application by the District Educational Officer that the  same  was  belated
was wholly unjustified and was rightly set aside by the High  Court  in  the
earlier  proceedings  before  it.   Upon  remand  the  District  Educational
Officer correctly found respondent No.7 to be eligible  for  an  appointment
having made an application in time which was erroneously set  aside  by  the
learned single Bench on the ground  that  the  application  had  been  filed
beyond the period of limitation. The error was, however,  corrected  by  the
Division Bench by holding that the refusal of the Manager in  accepting  the
application filed for appointment of respondent No.7 was only a strategy  of
the Manager to ward off the claim made before him. The Division  Bench  also
correctly held that if the application was found to  be  defective  for  any
reason the Manager should have, instead  of  rejecting  the  same  summarily
given an opportunity to respondent No.7 to correct the mistake by  filing  a
proper application in accordance with rules. The High Court observed:

         “In this case, the appellant’s application was  defective,  but  we
         are not inclined to hold that the appellant did not raise any claim
         in time.  It was raised by the widow of the employee, who  died  in
         harness, on the fourth day of  his  death.   An  application  or  a
         representation from the widow, cannot be said to be relevant, going
         by the relevant GO, because, as per the  GO,  the  widow  gets  the
         first preference for employment under the  dying-in-harness  scheme
         and only with her consent, somebody else’s claim can be considered.
          That is the reason, why she submitted in  Ext.  P3  that  she  was
         agreeing to give employment  to  the  appellant  and  also  made  a
         request for the same.  So, definitely, if was a claim, in terms  of
         the Government Order, governing  appointment  under  the  dying-in-
         harness scheme, but, it was  defective,  in  as  much  it  was  not
         submitted in the prescribed format.   As  held  by  this  Court  in
         Baijukumar’s case mentioned above, it is the duty of the Manager to
         alert the claimant, regarding the existence of  a  vacancy  in  his
         School and ask him to apply in the prescribed format.  He has  also
         got a duty to ask the claimant to cure the defects, if any, in  the
         application submitted by him.”




28.   Learned counsel argued that there was no obligation  on  the  part  of
the Manager of the school to go in search of the legal heirs left behind  by
an employee who had died in harness. It was submitted,  if  an  employee  of
the school died in  harness  and  his  legal  representatives  required  any
assistance in the form of  compassionate  appointment  it  is  for  them  to
approach the school in that regard by making an application  in  the  manner
prescribed.  If the legal heirs did not do so, the Manager could  reasonably
assume that they were not in need  of  any  assistance  for  otherwise  they
would ask for the same.  There is merit in that contention. We  do  not  see
any obligation on the part of the  institution  or  the  Manager  to  go  in
search of the legal heirs of deceased employees or educate them about  their
right to seek an appointment under the scheme. If a person is  eligible  for
a benefit under the scheme he can and indeed should on his own approach  the
institution and seek such an appointment.  The view expressed  by  the  High
Court in Baiju Kumar v. D.E.O., Trivandrum (2003) 3  KLT  240,  to  which  a
reference has been made in the judgment, appears to be  unreasonable  albeit
in favour of the legal heirs of the employee.  Having said that, we have  no
manner of doubt that in case 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.   The  application   for
appointment filed on behalf of the respondent could not therefore have  been
rejected on the ground that the same was not in the prescribed form.

29.   It was next argued by learned counsel for the appellant  that  out  of
the four appointments made by the institution the one  appointed  last  will
have to make way for the appointment of respondent No.7.  Mr.Giri ,  learned
counsel appearing for respondent No.7 did not have  any  quarrel  with  that
proposition, so long as the appointment so made is related back to the  date
when the first vacancy had become available in the school,  those  appointed
subsequently being adjusted against the subsequent vacancies.  It  was  also
fairly conceded by Mr. Giri that since respondent No.7 has not been  allowed
to work, despite the order passed by the High  Court,  the  salary  for  the
period the  appellant  had  worked  could  be  paid  to  him  including  the
petitioner who may have to be ousted to make room  for  the  appointment  of
respondent No.7.  The appointment of respondent No.7 shall in that  view  be
effective from the date he is actually  appointed  by  the  Manager  of  the
institution. The appeal filed by the  petitioners  shall  accordingly  stand
dismissed with the above clarification.

30.   In the result;

 (i) Civil Appeal arising out of Special Leave Petition (C) No.7566 of 2008
      is dismissed.

 (ii) Civil Appeal arising out of Special Leave  Petition  (C)  No.4954  of
      2009 is however allowed, the judgment and order  passed  by  the  High
      Court in W.P. (C) No.16815 of 2008 and in Writ Appeal No. 2211 of 2008
      set aside.

 (iii) Civil Appeal arising out of Special Leave Petition (C)  No.33421  of
      2009 is dismissed.

 (iv) Civil Appeals arising out of Special Leave Petition (C) Nos.31908  of
      2010 and 6607-08 of 2011 are allowed, the judgment and  orders  passed
      by the High Court in W.P. No.21384 of 2009 and in Writ Appeal  No.2791
      of 2009 are set aside. The order passed by the Government in  revision
      and that  passed  by  the  District  Educational  Officer  dated  22nd
      October,  2007  shall  stand   quashed.   Prayer   for   compassionate
      appointment made by respondent No.1 is consequently rejected.

 (v) Civil Appeal arising out of Special Leave Petition (C) No.4467 of 2010
      is dismissed.

31.   The parties are left to bear their own costs in all the appeals.




                                                        ……………………..……………..…J.
                                         (T.S. THAKUR)




                                                          ……………………………….………J.
                                     (GYAN SUDHA MISRA)
New Delhi
July 3, 2012

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