Fr. Antony Kavalakkat vs District Educational Officer and Others

K.S. Radhakrishnan, J.—Question that has come up for consideration in this case is whether the management is justified in evaluating comparative merits of two applicants, who submitted applications for appointment under Rule 51-B of Chapter XIV-A of the Kerala Education Rules, under the dying-in-harness scheme. The said provision is extracted below:

51-B-The Manager shall give employment to a dependant 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 appointment.

A vacancy of Clerk arose in the St. Thomas High School on 31st January 1998. Second Petitioner and second Respondent submitted applications for appointment under the dying-in-harness scheme. Second Respondent''s father was a teacher in the School, who passed away on 17th March 1987. Second Petitioner''s mother was a teacher in the St. Mary''s L.P. School, Malayattoor, who passed away on 21st July 1991. Both the schools are under the management of the first Petitioner. Claim for appointment of second Petitioner and second Respondent was recognised by the management, and consequently, both of them were called for interview on 17th November 1997. Board of interview decided to appoint second Petitioner in the vacancy of Clerk which arose in the school on 31st January 1998. Aggrieved by the same, second Respondent filed a complaint before the District Educational Officer. Since no action has been taken by the District Educational Officer second Respondent approached this Court and filed O.P. No. 1958 of 1998, which was disposed of by this Court directing the District Educational Officer to pass appropriate orders on the complaint of the second Respondent in accordance with law.

District Educational Officer passed Ext. P-4 order dated 18th March 1998 and took the view that second Respondent, having prescribed qualification of S.S.L.C. for the post of Clerk under Rule 2(1) of Chapter XXIV-A of the K.E.R., is a better claimant under Rule 51-B of Chapter XIV-A of the K.E.R. for the post of Clerk which arose on 31st January 1998, due to retirement of a Clerk. Management was therefore directed to take appropriate action to give appointment to the rightful claimant. Manager as well as the appointee have approached this Court challenging the order of the D.E.O.

Counsel for the Petitioners submitted that management is competent to examine the rival claims of second Petitioner as well as second Respondent and to effect appointment in the school under Rule 51-B of Chapter XIV-A of the K.E.R. According to counsel, since the second Respondent''s father had died on 17th March 1987, prior to the introduction of Rule 51-B, he is not entitled to get the benefit of the said Rule. According to counsel, Rule 51-B operates only prospectively. Counsel further contended that the mother of the second Petitioner died on 21st July 1991, after the introduction of Rule 51-B, and therefore he is entitled to the benefit of Rule 51-B of Chapter XIV-A of the K.E.R. Counsel also relied on decisions of the Supreme Court in Managing Director, MMTC Ltd., New Delhi v. Pramoda Dei alias Nayak, (1997) 11 SCC 390 as well as in Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others, , and contended that the object underlying a provision for grant of compassionate employment is to enable the family of deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. As far as second Respondent is concerned, since the death of his father occurred in 1987, there is every reason to think that family has tied over the difficulties and therefore he is not entitled to get employment under the scheme.

This Court had occasion to consider the scope of Rule 51-B in Narayanan v. State of Kerala (1998) (2) KLT 446, wherein this Court took the view that in the matter of giving compassionate employment, whether the death occurred prior to the introduction of Rule 51-B, is of no consequence. This Court noticed that there is no time limit fixed in the Rules as to when the application is to be made. Further statute made all the Government Orders applicable mutatis mutandis. In fact G.O. (P) No. 7/95/P and A.R.D., dated 30th March 1995 is passed in supersession of all the existing orders to regulate the appointment under the compassionate employment scheme. Paragraph 7 of the G.O. categorically says that dependants of Government servants who died prior to the inception of the scheme (21st January 1970) shall also be eligible for employment assistance under the Scheme. In paragraph 8(ii) of G.O. MS. No. 15/97/G. Edn., dated 16th January 1997, it is stated that the Managers of aided schools shall give employment to dependants of aided school teachers/non-teaching staff of aided schools dying-in-harness. The Government Order''s relating to the compassionate employment scheme as applicable to the dependants of Government servants dying-in-harness shall mutatis mutandis be followed in the aided schools. Therefore the contention of management that the death occurred in 1987, and therefore second Respondent cannot be considered for appointment cannot be accepted. In any view of the matter, management has no case that the second Respondent was ineligible to apply under the Scheme. In fact, management entertained the application submitted by the second Respondent, and after having found that he has got a claim for appointment, he was called for interview. After evaluating comparative merits of persons who have applied under Rule 51-B of Chapter XIV-A of the K.E.R., management came to the conclusion that the second Petitioner was a better claimant. In other words, claim of the second Petitioner under Rule 51-B was recognised by the management, and was selected on comparative evaluation of merits.

I am of the view, in the matter of claims under Rule 51-B of Chapter XIV-A, there is no question of evaluation of comparative merits. There is no element of selection. When an application is made under Rule 51-B the only question to be considered is whether the applicant is qualified under the K.E.R. If comparative merit is taken as the criterion then the object of Rule 51-B would be defeated. That is not the purpose and intent of Rule 51-B. Evidently those applications preferred by dependants of persons who died earlier will be given preference. In the instant case, as far as second Respondent is concerned, his father died in 1987 and as far as second Petitioner is concerned, his mother died in 1991, and therefore second Respondent has to be preferred, provided he continues to be dependant even now. There is no material in this case to establish that the second Respondent has tied over the difficulties due to the death of his father. In fact, there is no such case for the management. Management has entertained the application, which presupposes that second Respondent has not got over the difficulties.

In the above-mentioned circumstances, I do not find any justification in interfering with the decision taken by the District Educational Officer. Accordingly, this Writ Petition lacks merits and the same is dismissed.

*A reproduction from ILR (Kerala Series).