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Manager vs Government Of Kerala on 17 September, 2009

Kerala High Court
Manager vs Government Of Kerala on 17 September, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 36445 of 2008(L)


1. MANAGER, S.S.M.U.P.SCHOOL,
                      ...  Petitioner

                        Vs



1. GOVERNMENT OF KERALA, REPRESENTED BY
                       ...       Respondent

2. PREETHA J.W., CHADAYAVILAKAM, CHRIST

3. DIRECTOR OF PUBLIC INSTRUCTION,

4. ASSISTANT EDUCATIONAL OFFICER,

                For Petitioner  :SRI.P.N.MOHANAN

                For Respondent  :SRI.M.BALAGOVINDAN

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :17/09/2009

 O R D E R
                        ANTONY DOMINIC, J.
                        ------------------
                     WP(C) Nos.36445 of 2008
                                   &
                            1495 of 2009
           Dated,-------------------------- 2009
                  this the 17th day of September,
                ------------------------------

                           J U D G M E N T

WP(C) No.36445/2008 is filed by the Manager of S.S.M.U.P.

School, Thiruvananthapuram seeking to quash Ext.P7 order dated

21/11/2007 issued by Government of Kerala. WP(C) No.1495/2009

is filed by the beneficiary of Ext.P7 referred to above, praying for its

implementation.

2. Shortly stated, the facts pleaded in WP(C)

No.36445/2008 are that, the mother of one Smt.Preetha J.W., who is

the 2nd respondent in WP(C) No.36445/2008 and the petitioner in

WP(C) No.1495/2009, was the Head Mistress of the aforesaid UP

School. She expired while in service on 15/07/2001. Ext.P1

Government order provides a scheme for compassionate

appointment for dependents of employees who die in harness.

3. It would appear from the records that on the allegation

that applications made to the Manager did not yield any result, the

2nd respondent filed a complaint before the Committee for the

WP(C) No.36445/08 & 1495/09
-2-

Welfare of Women, Children and Physically Handicapped of the

Kerala Legislature, on which parties were heard, and finally Ext.P7

order was issued by the 1st respondent directing the Manager that

she be appointed as U.P.S.A. in the vacancy which arose after

15/06/2002, provided there is no other better claimant under Rules

43 and 51A of Chapter XIV-A K.E.R. It is this order which is under

challenge at the instance of the Manager.

4. The contention raised by the petitioner is mainly that

there was delay in making the claim, and that the claim made was

an improper one. The averments in this behalf as made in Ground

‘C’ in the writ petition reads as under:-

“C. The Ext.P7 order was passed by one Mr.Jabapalan Oliver
who is a relative of the father of the 2nd respondent. The hearing
was scheduled to be held on 13/07/07. On that day petitioner
was present, but the 2nd respondent was absent. Then it was
posted on 18/08/2007 on that day petitioner was present and the
2nd respondent was absent. During the interregnum period of
hearing on 13/07/07 to 18/08/07 as instructed by the Jabapalan
Oliver who heard the petition instructed the 2nd respondent to sent
the Ext.P2 in the address of the Manager. So 2nd respondent sent
the Ext.P2 application with a prior date dated 15/6/02 and it was
received on 03-08-07 by the manger during the above mentioned
interregnum period. But the 2nd respondent failed to understand
that the enclosures such as income certificates where obtained on
23-7-07 and 24-7-07 and the stamp paper to prepare consent

WP(C) No.36445/08 & 1495/09
-3-

letter was purchased on 26.7.07. From this it is clear that the
Ext.P2 application is an after thought and it could not be
considered as it was sent to the Manager in time before the
appointment of the said teachers. So Ext.P7 order is illegal and
arbitrary.”

5. Ext.P2 application, though dated 15/06/2002, was sent

under Ext.P3 cover, which shows that it was registered only on

01/08/2007, and delivered to the addressee, the Manager, only on

03/08/2007. It also shows that Ext.P2(5) income certificate is dated

24/07/2007, Ext.P2(6) income certificate is dated 23/07/2007 and

Ext.P2(12) consent of other legal heirs has been drawn on a stamp

paper purchased on 24/07/2007, and the consent is dated

27/07/2007. Since these documents were also enclosed to Ext.P2

application, Ext.P2 could not have been sent any time before the

aforesaid dates.

6. Clause 19 of Ext.P1 scheme provides that the time limit

for preferring application under the Scheme will be two years from

the date of death of the Government servant. If that be so, Ext.P2

application and its enclosures, which was made only in 2007, is

clearly much more than two years of 15/07/2001, the date of death

of the Government servant.

WP(C) No.36445/08 & 1495/09
-4-

7. Further, there is no counter affidavit filed by any one of

the respondents answering the allegations in ground ‘C’ extracted

above. That apart, it is also the specific case of the petitioner, as

contended in Ground ‘A’, that if at all the 2nd respondent had a claim

under Rule 51B of Chapter XIV-A K.E.R., that ought to have been

raised and adjudicated before statutory authorities, and that the 1st

respondent had no jurisdiction to have entertained the

representation resulting in Ext.P7. This allegation is also

unanswered.

8. In the light of all these, I see no justification to sustain

Ext.P7, and therefore, Ext.P7 will stand set aside. The writ petition

is, therefore, allowed as above.

In view of the judgment allowing WP(C) No.36445/2008

quashing Ext.P7, the Government Order referred to above, there is

no question of directing implementation of the said order, which is

prayed for by the beneficiary of the said order in WP(C)

No.1495/2009 filed by her. Therefore, WP(C) No.1495/2009 will

stand dismissed.

(ANTONY DOMINIC, JUDGE)
jg

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