IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14311 of 2006(D)
1. C.CHANDRIKA, CHOORATHIL HOUSE,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE ASSISTANT EDUCATIONAL OFFIER,
3. THE MANAGER,
4. E.JAYAKUMAR,
For Petitioner :SRI.V.N.ACHUTHA KURUP (SR.)
For Respondent :SRI.V.RAJENDRAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :03/12/2008
O R D E R
ANTONY DOMINIC, J
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W.P.(C).No.14311/2006
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Dated this the 3rd day of December, 2008
JUDGMENT
Challenge in this writ petition is against Ext.P4.
2. Petitioner submits that her father was a Craft Teacher working in
the school, of which the 3rd respondent is the Manager. He expired on
29.1.1972, when the petitioner was a minor. Claiming the benefit of Rule
51-B of Chapter XIV-A KER, petitioner submitted Ext.P1 application dated
8.10.1998, claiming appointment to the vacancy of Peon, which was to
arise on 28.2.1999. That claim was rejected by Ext.P2, following the
judgment of this court in Reni K. Abraham V. State of Kerala (1999(1)
KLT 249), on the ground that the married daughter of the deceased teacher
was ineligible. That order was challenged before this court in
O.P.No.8019/99. The Original Petition was disposed of by Ext.P3 judgment
quashing Ext.P3 order in that Original Petition, in view of the Division
Bench judgment reported in St. Ignatius High School V. State of Kerala
( 2005(3) KLT 1000). On that basis the matter was directed to be
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reconsidered. Accordingly, the claim was reconsidered and by Ext.P4 order,
the 3rd respondent again rejected the claim and this order is under challenge
in this writ petition.
3. Counsel for the petitioner contends that, the fact that she is a
married daughter does not result in her ceasing to be eligible for the benefit
of Rule 51B. This is one of the aspects which has been found against her in
Ext.P4. This contention of the learned counsel for the petitioner is fully
supported by the Division Bench judgment reported in Rev. Mother
Delphine Mary V. State of Kerala (2002(1)KLT 137) where this court has
held that;
“married son or daughter are eligible for the benefit of
Rule 51-B of Chapter XIV-A KER provided they can
show that in spite of the marriage, he/she was a dependent
of the deceased and could not tide over the crisis brought
due to the death of the breadwinner in the family.”
4. It is true that delay is one of the aspects that is found against the
petitioner but then the fact remains that Rule 51-B came into the statute
book only in 1990 and remained suspended till 16.1.1997. Soon thereafter
the petitioner submitted ExtP1 application on 8.10.1998. If that be so, the
WP(c).No.14311/2006 3
reason of delay is not justified.
5. I am satisfied that the matter needs to be reconsidered. However,
learned counsel for the 4th respondent referred to me paragraph 5 of the
counter affidavit, where it has been stated thus;
“It is submitted that the petitioner is now employed as a Part
Time Menial in Government Lower Primary School,
Manalady at Thenkara near Mannarkkad. The said
appointment is against a permanent post. Apart from owning
landed properties she is also having a Vaidya Sala Agency, a
Public Telephone Booth and a Photostat Center at
Kumaramputhoor. Petitioner is financially well off and she is
venturing in an experimental litigations. But I am the only
earning member of my family consisting of my wife and a
daughter. It may also be noticed that my appointment was to
the vacancy caused by the retirement of my father. Any kind
of preference or priority to the petitioner will result in great
injustice to me.”
6. Certainly, the above averments, which have not been contradicted
by the reply affidavit discloses relevant facts, when the dependency of the
petitioner or the is decided. Though the counsel for the 4th respondent
WP(c).No.14311/2006 4
pleaded that his appointment or its approval has not been challenged by
the petitioner, the fact remains that on an earlier occasion this court had
considered the matter and directed reconsideration as per Ext.P3. If at all
this argument was available, it should have been urged on that occasion. At
this distance of time, this technical plea cannot be raised against the
petitioner. Ext.P4 will therefore stands set aside.
7. The 3rd respondent shall reconsider the claim of the petitioner and
decide as to whether the petitioner was a dependent of the deceased,
irrespective of the marriage. While deciding that factual issue,the 3rd
respondent shall take note of the contentions raised by the 4th respondent in
paragraph 5 of the counter affidavit which has been extracted in the earlier
part of this judgment. While deciding the matter as above, notice shall be
given to the petitioner and the 4th respondent and they shall also be heard.
Writ Petition is disposed of as above,
ANTONY DOMINIC
JUDGE
vi.
WP(c).No.14311/2006 5