V K SOMASUNDARAN Vs. STATE OF KERALA
HIGH COURT OF KERALA
STATE OF KERALA
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(1.) This appeal is against the judgment in O.P. No. 6412 of 1991 which was dismissed by the learned Single Judge. The appellant is the petitioner in the original petition.
(2.) The appellant's father Sri. A. Chathu Mannadiar was a teacher of Aided Upper Primary School, Keralassery. While in service Sri. Chathu Mannadiar died of heart attack on 27-6-1978. He had served as a teacher in the said school for nearly 27 years from 1951 to 27-6-1978. He left behind him his only son (the appellant) who was then a minor aged 16 years and two unmarried daughters. The appellant studied only upto S.S.L.C. On attaining majority the appellant submitted an application dated 28-9-1982 to the Government requesting for employment under the Dying in Harness Scheme. As per Ext. P1 letter dated 9-11-1982 the Government informed the appellant that the Government had prescribed an application from for applying for employment assistance under the provisions of G.O. (Ms) 20/70 / PD dated 21-1-1970 and that he might apply in that form provided his father was a government servant. Admittedly the appellant's father was not a government servant and the benefit under the above mentioned Government Order could not be claimed by the appellant. R.51B was inserted in Chap.14A of the Kerala Education Rules (hereinafter referred to as 'the K.E.R.') as per G.O. (P) No. 55/90 / G. Edn. dated 30-3-1990. R.51B provided as follows :
"51B. The manager shall give employment to a dependent of an aided teacher dying in harness. Government orders relating to employment assistance to the dependenschoolts of Government servants dying in harness shall mutatis mutandis apply in the matter of such appointments".
After the introduction of R.51B, the appellant submitted Ext. P4 representation dated 18-4-1991 to the Deputy Director of Education, Palakkad requesting for employment under the Dying in Harness Scheme. A similar request was made by the appellant to the Assistant Educational Officer, Parali, Palakkad as per Ext. P5 representation dated 17-4-1991. Ext. P5 representation was returned by the Assistant Educational Officer on 23-4-11991 with the following endorsement:
"Returned. Your request cannot be considered as per the existing Rules".
Thereupon the appellant submitted Ext. P6 representation dated 7-6-1991 to the District Educational Officer, Palakkad requesting that directions may be given to the manager of the school to appoint the appellant in the vacancy of Peon which was likely to arise shortly. Apprehending that the said vacancy of Peon would be filled up without considering the appellant's claim the appellant filed the original petition (O.P. No. 6412 of 1991) praying for the following reliefs :
a) Issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to appoint the petitioner in the existing vacancy of Peon in the 5th respondent's school.
b) Issue a writ of certiorari or other appropriate writ, order or direction, calling for the records leading to Exts. P2 and P5A and to quash the same.
c) Grant such other reliefs as this honourable Court may deem fit and proper in the circumstances of the case including cost of this petition".
(3.) The 5th respondent Manager of A.U.P. School, Keralassery filed a counter affidavit raising the following contentions : The petitioner's father died on 27-6-1978. The date of birth of the petitioner is 15-4-1962. The petitioner attained majority two years after the death of his father. R.51B of Chap.14A of K.E.R. was inserted in the statute Book by publication in the Kerala Gazette dated 30-3-1990. Before 30-3-1990 there was no provision of law imposing an obligation on the managers of aided schools to appoint dependents of aided school teachers dying in harness. Since the statutory obligation of managers to appoint dependents of aided school teachers came into existence only with effect from 30-3-1990 the petitioner is not entitled to get any benefit based on R.51B of Chap.14A of K.E.R. R.51B has no retrospective operation. Hence those dependents of "aided school teachers who died in harness subsequent to the introduction of R.51B alone could claim the benefit under R.51B. . Since the petitioner has no right to claim appointment in the school Mr. M. Sasidharan was appointed as Peon in the vacancy which arose on 1-7-1991 and he joined duty as Peon on 1 - 7-1991. The Managers' Association had made a representation to the Government against the introduction of R.51B and the Government had issued an order directing not to give effect to the provisions contained in R.51B. As per R.51B of Chap.14A of K.E.R. Government orders relating to employment assistance to the dependents of government servants dying in harness shall mutatis mutandis apply in the matter of appointments under R.51B of Chap.14A of K.E.R. The Government order governing the field is G.O.(P) No. 34/87 / P & ARD dated 17-12-1987 (Ext. R5(b)). As per the said Government order the time limit prescribed for preferring applications for appointment under the Dying in Harness Scheme is a period of one year from the date of death of the Government servant. In case the dependent is a minor the period is three years after attaining majority. In the case of dependents of government servants dying in harness on or after 1-7-1988 the time limit for submitting application will be two years. Hence the petitioner should have submitted his application for appointment under the Dying in Harness Scheme within three years from the date of attaining majority. The petitioner has no right to challenge Ext. P5.;
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