Sajeesh Babu, K. vs District Education Officer and Others

K.A. Abdul Gafoor, J.—The Petitioner''s father was a teacher in Perambra Higher Secondary School, an aided school managed by the 2nd Respondent. His father died in the year 1991. The Petitioner possessed S.S.L.C. and is therefore fully qualified to be appointed as a Clerk or in any post in the last grade or as Laboratory Attendant in the school. A vacancy in a post in the last grade arose on 31st March 1995 consequent on retirement of one Sri Madhava Kurup. Invoking the rights under Rule 51B, Chapter XIVA K.E.R. the Petitioner, sufficiently earlier than the date of occurrence of the vacancy applied to the 2nd Respondent, claiming appointment to that vacancy. The Petitioner was asked to submit an application in the form prescribed which the Petitioner did. In spite of that the 2nd Respondent, issued Ext. P-3 notification inviting application to the post including that of the Class IV and Laboratory Attender. The Petitioner was replied in Ext. P-4 that the employees of private school do not have the benefit of the scheme for employment assistance to the Defendants of those died-in-harness. The Petitioner appraised his grievances before the District Educational Officer, Vadakara, the 1st Respondent. There was no action. So, he has approached this Court challenging Ext. P-4 and seeking a direction to appoint him to the post of Peon/Lab Assistant in terms of Rule 51B Chapter XIVA K.E.R. Rule 51B, Chapter XIVA K.E.R. reads:

The Manager shall give employment to a Defendant 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.

This rule, like the one in Rule 51A, Chapter XIVA K.E.R., creates a right in the incumbent concerned. It also creates a corresponding liability on the Manager that he ''shall give employment to a Defendant of an aided school teacher dying-in-harness''. Thus, the Manager cannot avoid this statutory liability. Communication to the Petitioner as contained in Ext. P-4 letter that G.O. (P) No. 7/95/P and A.R.D, dated 30th March 1995 supersede all previous orders, is not correct. The said Government order is only an executive order and that too concerning a scheme evolved by the Government for employment assistance to the dependants of Government employees died in harness. That is not a statutory claim. But, rule 51B is a statutory provision which cannot be superseded by any executive order. There was no amendment to the rules taking away rule 51B. Therefore, the rights available under rule 51B has to be honoured and the liabilities arising out of the said rule shall be discharged. So, there is a liability on the Manager to give employment to a Defendant of an aided school teacher dying-in-harness. The Manager cannot dispute and shirk awayfrhis and avoid the liabilities arising out of that statutory provision.

That the Petitioner''s father was a teacher under the 2nd Respondent, is not disputed. It is also not disputed that his father died-in-harness. There is no dispute to the fact that the Petitioner is qualified for the post of Peon/Lab Attender. There is also no dispute that the Petitioner is the son of deceased teacher Raghava Marar. There is no other claimant. That is why the vacancies are notified for direct recruitment. Thus, when there is a vacancy and when the Petitioner is a Defendant of a teacher died-in-harness, and when the Petitioner is qualified; the Manager is liable to give employment to the Petitioner as applied for by him.

The claim is resisted by the Manager, stating that the Government order introducing the rule is cancelled. It is not correct. The rule is still in the Statute Book. It is further submitted that the Petitioner applied only after a lapse of six years of his father''s death. The Petitioner can apply only when a vacancy arises. The Manager cannot appoint a person without a vacancy. The Petitioner applied to the vacancy first arose. Therefore, it cannot be said that there was delay. The Manager further submits that the very object of appointing a Defendant of a deceased employee who died in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. In support of this, the Manager relies on the decisions in Umesh Kumar Nagpal v. State of Haryana and Ors. 1994 (2) S.C.C. 138 Jagdish Prasad Vs. State of Bihar and Another, and Haryana State Electricity Board Vs. Naresh Tanwar and Another, . All these are cases relating to employment assistance to be given in Government service or in the statutory boards. All these cases relate to employment in public service or the service of the "State" covered by Articles 14 and 16 of the Constitution of India. In all these cases, the scheme for employment assistance are non-statutory, by way of concession. Therefore, those decisions do not apply to the case on hand, because in aided schools, the employment assistance is governed by a statutory provision. So, a valid right is created in a Defendant. That statute does not contemplate any time limit. Therefore, the Manager cannot avoid his liability arising out of rule 51B stating that six years have elapsed since the death of father of the petitioner.

The Petitioner''s application has been rejected in Ext. P-4 by the Manager. Therefore, the Petitioner had appraised this fact to the Controlling Officer in Ext. P-5. The 1st Respondent is liable to consider Ext. P-5 and see that the Manager acts in accordance with Rule 51B, Chapter XIVA K.E.R.

In the judgment in W.A. 316/95 concerning a case under Rule 51B this Court issued direction "the D.P.I, to issue necessary directions to the management as contemplated by the Kerala Education Rules to pass appropriate orders on the application put in by the Petitioner seeking employment assistance". Following that view, the 1st Respondent is directed to consider Ext. P-5 and pass appropriate orders directing the Manager to see that the Petitioner is appointed under Rule 51B, Chapter XIVA K.E.R. Till that time, the order dated 13th October 1995 in C.M.P. 28912/95 in C.M.P. 26726/95 shall remain in force.

O.P. is disposed of as above. No costs.