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TMI Blog2012 (7) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 arising 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 XIV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed'. 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 Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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