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  Judgement - 10KLC-3591
 
   
   
 

Before K. Balakrishnan Nair & P.N. Ravindran, JJ
Friday, the 19th day of March 2010/28th Phalguna 1931

Party Array / Case No.


 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 1775 of 2007()


1. MANAGER,
                      ...  Petitioner

                        Vs



1. DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA.
                       ...       Respondent

2. DEPUTY DIRECTOR (EDUCATION), ALAPPUZHA.

3. DIRECTOR OF PUBLIC INSTRUCTIONS,

4. GOVT. OF KERALA, REPRESENTED BY

5. R.RAJESH, THEIVEEPIL HOUSE,

6. SREEKUMAR, K.V.SANSKRIT HIGHER

                For Petitioner  :SRI.GEORGE POONTHOTTAM

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :19/03/2010

Judgement






     O R D E R
          K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
                         ------------------------------
                        W.A.Nos.1771 & 1775/2007
                         ------------------------------

                     Dated this, the 19th day of March, 2010


                                   JUDGMENT

    Balakrishnan Nair, J.

    W.A.No.1775/2007:

          The appellant was the writ petitioner.        He is the Manager of

    K.V.Sanskrit Higher Secondary School, Muthukulam. The dispute raised

    in the Writ Petition was concerning the right of the 5th respondent to get

    employment under the dying-in-harness scheme.

          2. The brief facts of the case are the following:

    Sri.A.Ramakrishnan was a Part-time Menial working in the appellant's

    school since 8.6.1966. He died in harness on 4.3.1995. At the time of his

    death, the 5th respondent was a minor.        He attained majority only on

    20.5.2000.    Even before attaining majority, he moved the District

    Educational Officer (DEO), Alappuzha, by filing a representation dated

    18.9.1999, praying for the said officer's help to get employment under the

    dying-in-harness scheme in the school of the appellant. The D.E.O replied

    by Ext.P1 communication dated 25.10.1999, stating that Part-time Menial

    is not covered by G.O.(Ms) No.15/97/G. Edn dated 16.1.1997, governing

    W.A.Nos.1771 & 1775/07
                                       - 2 -

    appointment under the dying-in-harness scheme.        Thereafter, the 5th

    respondent moved the Director of Public Instruction (DPI) by filing a

    petition on 27.12.1999. The D.P.I., by Ext.P2 communication, informed

    him that he is not eligible to get employment under the aforementioned

    scheme. Challenging Ext.P2, the 5th respondent filed a revision before the

    Government. This Court, by judgment in O.P.No.22656/2000 filed by the

    said respondent, directed the Government to consider his representation.

    The Government, after hearing both sides, issued Ext.P4 communication

    dated 9.1.2001, upholding the claim of the 5th respondent. The Manager

    was directed to appoint the said respondent under the compassionate

    employment scheme in the school without delay. The Manager filed a

    petition dated 24.1.2001, requesting the Government to review Ext.P4.

    That review petition was dismissed       by the Government by Ext,.P5

    communication.     When Ext.P4 order was not implemented, the 5th

    respondent filed O.P.No.18342/2001, praying for a direction to the

    Manager to implement Ext.P4. In the meantime, on 31.9.1999 a vacancy

    of Full-time Menial arose in the school. The appellant-Manager kept it

    vacant and finally he filled that vacancy by appointing the 6th respondent

    on 10.1.2005. The said appointment was placed before the D.E.O for

    W.A.Nos.1771 & 1775/07
                                       - 3 -

    approval. But, the said request was rejected by the D.E.O by Ext.P6

    communication dated 26.2.2005. Against that order, the appellant

    preferred an appeal before the Deputy Director of Education. The said

    appeal was rejected by the Deputy Director by Ext.P7 order dated

    4.5.2005. Subsequently, the Deputy Director took steps to disqualify the

    appellant, who was holding the office of Manager. Ext.P8 dated 14.1.2005

    is the notice issued by the Deputy Director to the appellant concerning the

    matter. In the above factual background, the present Writ Petition was

    filed on 18.11.2005, challenging Exts.P1, P2 and P4 to P8 and seeking

    consequential reliefs.    The 5th respondent filed a counter affidavit,

    supporting the impugned orders and resisting the prayers in the Writ

    Petition.

           3.   The learned Single Judge heard and disposed of the

    aforementioned Writ Petitions filed by the Manager and the 5th respondent

    by a common judgment dated 14.6.2007. The Writ Petition filed by the

    appellant herein was dismissed and the Writ Petition filed by the 5th

    respondent was allowed, awarding an amount of Rs.2 lakhs towards costs

    and compensation. The appellant herein was also directed to appoint the

    5th respondent forthwith as Full-time Menial in the school. Challenging

    W.A.Nos.1771 & 1775/07
                                       - 4 -

    the said common judgment, this Writ Appeal and W.A.No.1771/2007 were

    filed by the Manager.

          4. We heard the learned counsel Sri.George Poonthottam for the

    appellant and Sri. M.V.Mathew for the 5th respondent. We also heard the

    learned Government Pleader Smt.T.B.Remani for the official respondents.

          5. In the appeal the appellant has raised the following grounds.

    According to the appellant, the 5th respondent has not submitted any

    application in the prescribed format. The said point is plainly untenable,

    as the 5th respondent was fighting his cause from 1999 onwards. When the

    matter was pending before the statutory authorities, the appellant never

    had a case that the 5th respondent did not apply in the prescribed format

    and therefore, he could not be appointed. In fact, the said contention is an

    abuse of the process of court and it is only to be rejected and we do so.

    Further, the said point is covered against the appellant by the decision of

    the Division Bench of this Court in Unnikrishnan v. Manager, C.A.H.S.

    [2010(1) KLT 354].

          6.    The next point raised is that the death took place in 1995 and

    therefore, employment cannot be provided after a long delay of more than

    5 years. The appointment under the dying-in-harness scheme, prevailing

    W.A.Nos.1771 & 1775/07
                                      - 5 -

    in aided schools in Kerala, cannot be compared with the said scheme in

    Central Government Service or Public Sector Undertakings.          It is a

    statutory scheme providing for preference in appointment to dependents in

    aided schools. The point raised by the appellant in this regard is also

    covered against him by the decision of this Court in S.N.G.S. High School

    v. Reji Sagar [2008(1) KLT 1026].     Further, the 5th respondent attained

    majority only on 20.5.2000. As per the relevant Government order, a

    minor claimant can apply for appointment within three years of his

    attaining majority. In the absence of any challenge to that order which

    forms part of the Kerala Education Rules, the Manager is bound by that

    Rule.        So,    the   said   contention     is    plainly   untenable.

           7. The next point canvassed is concerning the applicability of the

    provisions of Chapter XXIVB of the Kerala Eduction Rules (K.E.R.) and

    the alleged redundancy of the provisions of Chapter XXIVA of the K.E.R..

    The said point is also covered against the appellant by the decision of the

    Division Bench of this Court in Saraswathi Vilasam U.P.School v.

    Priyesh Aramana [2007(3) KLT 648]. We are in respectful agreement

    with the view taken by the Division Bench in that decision.

            8.   Further, the Government have as early as on 9.1.2001, by

    W.A.Nos.1771 & 1775/07
                                        - 6 -

    Ext.P4 order, directed the appellant to appoint the 5th respondent in his

    school. The said order was challenged after the lapse of about 5 years, in

    November, 2005. Exts.P4 to P8 are dependent proceedings issued based

    on Ext.P4. Since the challenge against Ext.P4 fails owing to delay, the

    challenge against Exts.P5 to P8 also fails.     In the result, we affirm the

    judgment of the learned Single Judge, in so far as it repels the challenge

    against Exts.P4 to P8 and directs the appellant to appoint the 5th

    respondent     in    his    school    as   Full-time   Menial     forthwith.

           9.   Now, the point which remains to be considered is the validity

    of the direction to the appellant to pay Rs.2 lakhs towards costs and

    compensation to the 5th respondent. The jurisprudential basis for the award

    of such a huge amount as compensation is the alleged violation of the

    fundamental rights of the 5th respondent under Article 21 of the

    Constitution of India by the appellant-Manager.

          10. The guarantee under Article 21, in fact, is an injunction against

    the State. The Manager is a statutory authority and is, therefore, amenable

    to the writ jurisdiction of this Court concerning his functions as Manager.

    But, it is not yet settled whether he can be compelled by this Court under

    Article 226 to obey the various injunctions against the State, contained in

    W.A.Nos.1771 & 1775/07
                                         - 7 -

    Part III of the Constitution of India. The denial of employment may result

    in denial of a decent living, which is now treated as part of right to life

    flowing from Article 21. But, if a private person violates the fundamental

    rights of a citizen under Article 21, the person who suffered the injury has,

    ordinarily,   to seek reliefs before the competent civil court or other

    statutory forums, if any, provided. If, as a result of the commissions and

    omissions of the Manager, if the 5th respondent has lost salary, the Deputy

    Director of Education can take action against the Manager under Rule 7 of

    Chapter III of the K.E.R., recover the loss suffered by the 5th respondent

    from the Manager and pay it to the 5th respondent. Going by Ext.P8, it

    appears, action under Rule 7 of Chapter III of the K.E.R., to disqualify the

    appellant to hold the office of Manager, has already been initiated. In

    view of the above position, we think, the direction to pay Rs.2 lakhs

    towards costs and compensation to the 5th respondent is not justified.

    Accordingly, the said direction is vacated. But, the 5th respondent is

    entitled to get costs throughout, which we fix as Rs.10,000/-. Subject to

    the above modification, the Writ Appeal is dismissed.

    W.A.No.1771/2007:

           11.     In view of the judgment in W.A.No.1775/2007, this appeal is

    W.A.Nos.1771 & 1775/07
                                      - 8 -




    also dismissed. No separate order as to costs is made in this appeal.




                                               K. Balakrishnan Nair,
                                                          Judge.




                                                     P.N.Ravindran,
                                                          Judge.

    nm.




     
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