High Court Kerala High Court

C.Chandrika vs State Of Kerala on 3 December, 2008

Kerala High Court
C.Chandrika vs State Of Kerala on 3 December, 2008
       

  

  

 
 
  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

     -----------------------------------------------------------
                        W.P.(C).No.14311/2006
     -----------------------------------------------------------
            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

WP(c).No.14311/2006 2

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