V.E.MOYI HAJI v. STATE OF KERALA

T.R. RAMACHANDRAN NAIR, J.~~~~~~~~~~~~~~~~~~~~~~~~~~~W.P.(C). Nos.30021/2011-C & 32889/2011-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 21st day of May, 2012J U D G M E N TThese writ petitions respectively are filed at the instance of theManager of an aided school and the claimant under Rule 51B of ChapterXIV A Kerala Education Rules for appointment. The Government byExt.P11 order produced in W.P.(C).No.30021/2011 directed the Manager toappoint the claimant in terms of Rule 51B and she is seekingimplementation of the said order in W.P.(C).No.32889/2011.2.The question which emerges for consideration is whether theapplication filed by the claimant, namely, the petitioner in W.P.(C).No.32889/2011, who is the third respondent in W.P.(C).No.30021/2011, isbelated. The Management has got a further case that the claimant at thetime of the date of death of the parent was not having the qualification forappointment as Teacher and waited till the acquisition of B.Ed qualificationand this circumstance also will have its own bearing in the matter.3.I shall refer to the facts of the case as stated in W.P.(C).No.30021/2011. The Manager represents a Corporate Educational Agencyunder the name “Mukkom Muslim Orphanage Committee”. They arehaving several educational institutions which are being conducted for the W.P.(C). Nos.30021 & 32889/2011-:2:-welfare of the inmates of the Orphanage. It is stated that there are 1350inmates in the Orphanage which was started in the year 1956. It ismentioned in para.2 of the writ petition that the Orphanage was graded asthe best one in India for the years 1983 and 2009 and one of the inmatessuccessfully got through the Civil Services Examination for the year 2011.It is also stated that in the matter of appointment of staff top priority is beinggiven to the inmates of the Orphanage and a list of such appointees isproduced as Ext.P4. Ext.P5 is a list of appointees during the year 2010-11,out of which two have been appointed in the post of High School Assistants.4.The third respondent’s father was the Principal of M.A.M.T.T.I,Mukkom, who died on 8/1/2008 while in service. According to theManagement, the financial position of the family is very sound. Ext.P6 isthe copy of G.O.(P).No.12/99/P&ARD, dated 24/05/1999 which containsthe guidelines for compassionate appointment which have been madeapplicable going by Rule 51B of K.E.R. Clause 19 therein stipulates twoyears time limit for preferring an application under dying-in-harness schemein an aided school.5.It is alleged that as on the date of death of the thirdrespondent’s father, she was only a graduate and the application wassubmitted on the acquisition of B.Ed on 30/04/2010 which was received by W.P.(C). Nos.30021 & 32889/2011-:3:-the Manager on 15/05/2010 by registered post. It is averred in para.9 thatthe application was rejected by the petitioner-Manager by proceedings dated19/07/2010 (Ext.P7).6.The present controversy arose from that stage. Ext.P8 is acommunication by the District Educational Officer to the Managementdirecting to appoint the third respondent. The Government later issued aletter as per Ext.P9 to the District Educational Officer to initiate actionagainst the Manager for not implementing the direction by the DistrictEducational Officer, contained as Ext.P8. The parties took up the matterbefore this Court in W.P.(C).No.1442/2011 filed by the Management andW.P.(C).No.30311/2010 filed by the claimant which were disposed of byExt.P10 Judgment. Therein, the Government was directed to reconsider thematter after hearing the parties and to take a fresh decision.7.In W.P.(C).No.32889/2011 filed by the claimant, it is averredthat the application was submitted on 30/04/2010 along with all requireddocuments produced as Exts.P1 to P1(l) with a copy to the DistrictEducational Officer, Thamarassery. It is also averred that overlooking theclaim of the petitioner, the Manager appointed respondents 5 and 6 as HighSchool Assistants (Social Studies) from 01/06/2010 onwards. Theapplication submitted by the petitioner has not been rejected by the Manager W.P.(C). Nos.30021 & 32889/2011-:4:-but he has only sent a report to the District Educational Officer as Ext.P3(Ext.P7 produced in W.P.(C).No.30021/2011). It is pointed out that on thebasis of the report of the District Educational Officer, the Governmentissued Ext.P4 letter (Ext.P9 produced in W.P.(C).No.30021/2011.8.It is submitted that the claimant satisfies all the criteria. Theincome limit prescribed was Rs.3 lakhs as per G.O.(P).No.37/2002/P&ARDdated 15/07/2002. The same stood enhanced by the Government to Rs.4.5lakhs as per G.O.(P).No.14/10/P&ARD dated 12/04/2010, which wasapplicable at the time of the date of application of the claimant.9.Heard the learned Senior Counsel for the ManagerSmt.V.P.Seemanthini and Shri K.E.Hamsa learned counsel appearing for theclaimant and the learned Government Pleader Smt.Lowsy A.10.The learned Senior Counsel for the petitioner in W.P.(C).No.30021/2011 submitted that the view taken by the Government inExt.P11 order cannot be supported. Rule 51B of Chapter XIV A K.E.Rmakes applicable the various Government Orders and the usage of the word“shall” makes the conditions of the Government Order, namely, Ext.P6herein mandatory. It is submitted that clause 19 of Ext.P6 GovernmentOrder prescribes a time limit of two years for making an application by thedependant for employment assistance and herein the application is W.P.(C). Nos.30021 & 32889/2011-:5:-submitted after two years and, hence, it could not have been entertained atall. The learned Senior Counsel also invited my attention to the fact thatvarious appointments made by the Management have been kept withoutapproval merely for the reason of the claim raised by the third respondentwhich itself is illegal. A list of appointees awaiting such approval has beenproduced as Ext.P13. It is submitted that various claimants under Rule 51Bhave been appointed by the Management from time to time. It is also one ofthe contentions of the petitioner that the claimant does not satisfy the otherconditions, especially, with regard to the income limit.11.Various Judgments of this Court and that of the Supreme Courthave been relied upon by the learned Senior Counsel in support of the aboveargument. My attention was invited to the following decisions:Deepak v. Secretary, General Education Department [2002 (3) KLT288], Manager, Parli High School v. Narayanan [2002 (3) KLT 912],Corporate Manager, Diocese of Thrissur v. Jayanarayanan [2003 (1)KLT SN. Case No.45 Pg.33], Sreeja v. Chief Postmaster General [2001(1) KLT 356], Union of India v. Kumaran [1998 (2) KLT 166], PriyeshVasudevan v. Shameena [2005 (4) KLT 1003], Umesh Kumar Nagpal v.State of Haryana and others [(1994) 4 SCC 138], Bhawani PrasadSonkar v. Union of India and others [(2011) 4 SCC 209], Santosh W.P.(C). Nos.30021 & 32889/2011-:6:-Kumar Debey v. State of Uttar Pradesh and others [(2009) 6 SCC 481],General Manager, Corporate Educational Agency of Discalced v. Stateof Kerala and others [2007 (3) KLT Suppl.Pg.32].12.Shri K.E.Hamsa learned counsel appearing for the petitioner-claimant in W.P.(C).No.32889/2011 submitted that the various otherJudgments of this Court have held that the right conferred in Rule 51B isstatutory. The Manager will have to inform the claimant about the existenceof vacancy and the said obligation of the Manager has never been compliedwith in this particular case. It is submitted that clause 19 of the GovernmentOrder [G.O.(P).No.12/99/P&ARD, dated 24/05/1999] has been helddirectory by this Court. It is also submitted that the scheme under Rule 51Bbeing one for benefit of the dependant of the teacher, the only question iswhether the application has been submitted within a reasonable time afterthe Manager informs about the vacancy. He drew support from variousdecisions of this Court, namely, Baiju Kumar v. D.E.O., Trivandrum[2003 (3) KLT 240], S.N.G.S High School v. Reji Sagar and others [2008(1) KLT 1026], Snineesh v. State of Kerala [2009 (4) KLT 719], SoopyHaji v. State of Kerala [2009 (3) KLT 142] and the Judgments in WritAppeal Nos.688/2008 and connected cases, W.A.No.1164/2005,W.A.No.2211/2008, W.A.No.2791/2009 and W.P.(C).No.21384/2009. W.P.(C). Nos.30021 & 32889/2011-:7:-Learned counsel therefore, submitted that the view taken by the Governmentherein is perfectly legal and valid. It is submitted that the Manager has beentaking an adamant attitude not to recognize the claim inspite of the fact thatthe petitioner’s father was the Principal under the very same Management.The two appointments itself have been made only after the receipt of theapplication. Apart from the same, the learned counsel also pointed out thatherein the Manager never rejected the application on the plea that it was notsubmitted within two years. My attention was invited to Ext.P7 produced inW.P.(C).No.30021/2011 which is a report forwarded by the Manager to theDistrict Educational Officer. It is submitted that a reading of the same willshow that it does not reflect a rejection of the application and only certainalleged defects alone have been pointed out. At no point of time theManager has communicated any decision rejecting the application of theclaimant. Ext.P7 submitted before the District Educational Officer is afterthe receipt of Ext.P8 communication from the District Educational Officerto see that the petitioner in W.P.(C).No.32889/2011 is appointed. It istherefore, submitted that there are no bona fides in the disputes later raisedby the Manager, which are clearly an after thought.13.Various decisions of this Court relied upon by both sides haveconsidered the impact of Rule 51B under different circumstances. I shall W.P.(C). Nos.30021 & 32889/2011-:8:-first consider the question whether the application filed by the claimantherein is hit by clause 19 of the relevant Government Order, namely, Ext.P6produced in W.P.(C).No.30021/2011. The said Government Order containsthe scheme for compassionate appointment of the dependants ofGovernment servants who died in harness. In the light of Rule 51B, theprovisions of the said Government Order have been made applicable toappointments of dependants in aided schools. Clause 19 therein reads asfollows:“The time limit for preferring applications under the schemewill be 2 years from the date of death of Government Servants.In the case of minor, the period will be within 3 years afterattaining majority.”Thus, in respect of an aided school a period of two years from the date ofdeath of the teacher and three years in the case of minor after attainingmajority is the time limit for preferring the application by the dependant.14.One thing that is discernible from the said clause is that noconsequence is provided if at all there is a delay in filing the application. 15.Therefore, first we will have to understand the way in whichthe Government has approached the said question in Ext.P11. Therein, theGovernment is of the view that; (a) mere delay in the application will not be W.P.(C). Nos.30021 & 32889/2011-:9:-a mitigating circumstance for absolving of the Management to offer anentitlement under Rule 51B, especially when the statute prescribes no suchminimum period; (b) the executive order G.O.(P).No.12/99/P&ARD, dated24/05/1999 which prescribes two years time limit from the date of death ofthe employee cannot be construed inconsistent with the substantiveprovision of the relevant statute, provided there is no unreasonable delay inmaking the application, and that the Manager should have offered a vacancyto the immediate family of the deceased, or have reserved a vacancy tillsuch mandatory time limit expires; (c) G.O.(P).No.12/99/P&ARD, dated24/05/1999 does not restrain the appropriate authorities to condone delay incase of Government servants by following the procedure in CircularNo.6678/Adv.C2/2004/P&ARD dated 18/05/2004; (d) Rule 51B is abenevolent legislation and, hence it cannot be denied to any legitimateapplicant unless there is compelling evidence otherwise; (e) the deficiencyin application or requisite documents will not lead to disentitlement of theclaim. Therefore, the Government was mainly of the view that even if thereis some delay, the same can be condoned and it is not fatal and it is in theabove factual background, the principles will have to be assessed. 16.Smt.Seemanthini, learned Senior Counsel further pointed outthat many of the earlier Judgments of this Court have considered the W.P.(C). Nos.30021 & 32889/2011-:10:-principle that there should be some proximity with the date of death of theemployee as well as the date of application and said principle also will haveapplication here. 17.In fact, I had an occasion to consider the entire statutoryscheme in the Judgment in W.P.(C).No.21384/2009 produced along withcounter affidavit of the third respondent as Ext.R3(o) in W.P.(C).No.30021/2011. The views taken by the various Benches of this Court inthe decisions cited herein have been discussed therein. The said Judgmenthas become final as the writ appeal filed against the same, namely,W.A.No.2791/2009 stands dismissed by Judgment dated 20/08/2010. 18. I shall now examine the principles stated in various decisionsrelied on by the learned Senior Counsel for the petitioner in W.P.(C).No.30021/2011. First of the decisions is Deepak v. Secretary, GeneralEducation Department [2002 (3) KLT 288]. Therein Rule 51B came upfor consideration. The facts of the case show that the date of death was07/02/1978 and the application was on 05/01/1999. There, the questionwhether, there should be some proximity between the date of death as wellas the date of application was considered. In the light of the above factualsituation it was held as follows in para.6:- W.P.(C). Nos.30021 & 32889/2011-:11:-“The object and purpose of introduction of Rule 51B aswell as the other scheme for compassionate appointment is togive some assistance to the family of the employee to tide overthe sudden crisis due to the untimely death of the earningmember. .....” Various decisions of the Apex Court have been referred to and finally, itwas held as follows:“We are of the view if an application is made forcompassionate appointment, there must be some proximitybetween the date of death as well as the date of application. .....”Finally, the claim was rejected in the following words in para.7:-“.......... We are informed that Government has issuedorder dated 24/05/1999 recently fixing two years as the timelimit for making application for appointment on compassionateground. As far as the present case is concerned, evidently theapplication has been made after a period of twenty-one yearsafter the death of the mother of the applicant. We may indicatethere is no proximity with the date of death of the mother andthe date of application made by the dependant applicant. ......” W.P.(C). Nos.30021 & 32889/2011-:12:-19.The next is by another Division Bench in Manager, Parli HighSchool v. Narayanan [2002 (3) KLT 912] wherein the above Judgmentwas also referred to. The facts of the cases considered by the DivisionBench also show that therein, the time lag between the date of death and thetime of application are 16 years, 14 years etc. Rule 51B came up forconsideration in the said case also. The question whether there should be aproximity between the date of death of the employee and the date ofapplication was considered in para.11. The Division Bench in para.11, afterreferring to the Deepak’s case (supra) held as follows:“............. In the light of the decisions of the Supreme Courtthere cannot be any doubt that right conferred on thedependants of the deceased employee for compassionateappointment is neither absolute nor unlimited. The aboveprinciple has to be read into the executive orders as alsostatutory provisions governing such appointments. Thisrequirement has been duly emphasised in Ganesan v. State ofKerala also. In the instant case the provision that governs theright of appointment is R.51B. Though this Rule did notinitially prescribe any time limit for making a claim forcompassionate appointment, the Government order in itsmodified form which has to be read as part of the above Rule,has incorporated a provision prescribing time limit vide para 19of G.O.(P)12/99/P&ARD dated 24.5.1999. Supreme Court has W.P.(C). Nos.30021 & 32889/2011-:13:-held that there cannot be reservation of a vacancy till such timeas the dependent becomes a major after a number of years. Inthat view of the matter a provision which does not prescribe atime limit may not stand the test of law. Hence considering theobject of a statutory provision like R. 51B we are of the viewthat requirement of the time limit has to be read into the saidRule, as it stood prior to the date of issuance of the modifiedGovt. Order in G.O.(P) No. 12/99/P&ARD dt.24.5.1999. ...............”Actually, the Bench was considering the cases where the death occurredprior to the introduction of G.O.(P).No.12/99/P&ARD, dated 24/05/1999.The Bench was mainly of the view that there should be proximity betweenthe date of death of the employee and the application for compassionateappointment.20.In Corporate Manager, Diocese of Thrissur v.Jayanarayanan [2003 (1) KLT SN. Case No.45 Pg.33], the view taken isthe following:“Admittedly the first respondent did not submit theapplication within two years from the date of death of hismother. Even if it is considered that the first respondent wasonly 17 years of age when his mother died, he did not raise hisclaim in the prescribed form within three years after attainingmajority. Hence, in the light of the provisions contained in W.P.(C). Nos.30021 & 32889/2011-:14:-Government Order dated 24.5.1999, the first respondent's claimfor employment assistance under the dying in harness schemecannot be considered. Therefore, the denial of employmentassistance to the first respondent on the ground that theapplication was highly belated, cannot be said to be arbitrary orunjust.”That was a case where the claim was not raised within three years afterattaining majority, which is noticeable. 21.The next one is by another Division Bench in Sreeja v. ChiefPostmaster General [2001 (1) KLT 356]. It was a non statutory schemeapplicable to the Postal Department. Therein, the petitioner was 10 monthsold when the mother died and the application was submitted after thepetitioner became a major. It was held that “......... Evidently, the family has got over the suddencrisis befallen on them due to the death of the bread winner.Over and above, there is no evidence to show otherwise. Themere statement by the petitioner that she has no means to makeher livelihood or that she is in need of a job is not sufficient tomake a claim for compassionate appointment. The burden ison the person who claims compassionate appointment to showeven though the bread winner died on 04/11/1979, for the last W.P.(C). Nos.30021 & 32889/2011-:15:-two decades the family is still in penury and without any meansof livelihood. ........”22.In Union of India v. Kumaran [1998 (2) KLT 166], theDivision Bench took the view that the right of a dependant for gettingappointment on compassionate basis is not a vested right. The scheme wasfor appointment in public service viz. General Reserve Engineering Force(GREF) and the view taken is that the compassionate appointment can begranted only to tide over the immediate financial crisis resulting from theemployees death and the same cannot be insisted upon as a matter of course.23.In Umesh Kumar Nagpal v. State of Haryana and others[(1994) 4 SCC 138] the Apex Court took the view that “the compassionateemployment cannot be claimed and offered whatever the lapse of time andafter the crisis is over”. Therefore, therein also, the proximity principle wasapplied. 24.In Santosh Kumar Debey v. State of Uttar Pradesh andothers [(2009) 6 SCC 481] it was held in paras.11 and 12 thus:- “11.The very concept of giving a compassionate appointmentis to tide over the financial difficulties that are faced by thefamily of the deceased due to the death of the earning memberof the family. There is immediate loss of earning for which the W.P.(C). Nos.30021 & 32889/2011-:16:-family suffers financial hardship. The benefit is given so thatthe family can tide over the financial constraints.12.The request for appointment on compassionate groundsshould be reasonable and proximate to the time of death of thebread earner of the family, inasmuch as the very purpose ofgiving such benefit is to make financial help available to thefamily to overcome sudden economic crisis occurring in thefamily of the deceased who has died in harness. .........”25.In Bhawani Prasad Sonkar v. Union of India and others[(2011) 4 SCC 209] these principles were reiterated in para.20, which areextracted below:“Thus, while considering a claim for employment oncompassionate ground, the following factors have to be bornein mind:(i) Compassionate employment cannot be made in theabsence of rules or regulations issued by the Government or apublic authority. The request is to be considered strictly inaccordance with the governing scheme, and no discretion assuch is left with any authority to make compassionateappointment dehors the scheme. W.P.(C). Nos.30021 & 32889/2011-:17:-(ii)An application for compassionate employmentmust be preferred without undue delay and has to be consideredwithin a reasonable period of time.(iii)An appointment on compassionate ground is tomeet the sudden crisis occurring in the family on account of thedeath or medical invalidation of the breadwinner while inservice. Therefore, compassionate employment cannot begranted as a matter of course by way of largesse irrespective ofthe financial condition of the deceased/incapacitatedemployee's family at the time of his death or incapacity, as thecase may be.(iv)Compassionate employment is permissible only toone of the dependants of the deceased/incapacitated employeeviz. parents, spouse, son or daughter and not to all relatives,and such appointments should be only to the lowest categorythat is Class III and IV posts.”26.The clause 19 of the guidelines was subject matter ofconsideration in General Manager, Corporate Educational Agency ofDiscalced v. State of Kerala and others [2007 (3) KLT Suppl.Pg.32] .Therein the application was filed by the claimant beyond 3 years after W.P.(C). Nos.30021 & 32889/2011-:18:-attaining majority. The date of death was 09/10/1989 and the claimantattained majority on 22/05/1997. It appears that the application wassubmitted on 15/05/2002 when a vacancy arose. In that context, theDivision Bench in para.3 held as follows:“........ Time limit mentioned in clause 19 has to be strictlyapplied, especially in the case of compassionate appointment.” and reliance is placed on the Judgment in Deepak’s case [2002 (3) KLT288]. In para.4 it was held that “clauses 19 and 20 have to be interpretedstrictly”.27.When we analyse these decisions, it can be seen that theproximity principle was mainly put forth in opposing the claim of theapplicants. The decisions of the Division Benches in Deepak's case [2002(2) KLT 288] and Manager, Parli High School's case [2002 (3) KLT 912]actually considered the cases prior to the introduction of Ext.P6Government Order. In later decisions of this Court, as I have alreadyreferred to, the fact that the right under Rule 51B is statutory in nature andthe situation available in Government services as well as in Public Servicesis in contra distinction to aided schools has been analysed. As far as nonstatutory scheme for appointment in Government/Public services isconcerned, a time limit was thought of and the proximity principle was W.P.(C). Nos.30021 & 32889/2011-:19:-applied after noticing the fact that in such services vacancies may be arisingfrom time to time, which is not the case as far as aided schools areconcerned. The date of occurrence of vacancy in an aided school is onlyknown to the Manager. It is in that context, the issue will have to beconsidered, which is the considered view taken in most of decisions of thisCourt starting from Baiju Kumar's case [2003 (3) KLT 240].28.A learned Single Judge of this Court in Baiju Kumar's case[supra] considered the statutory scheme under Rule 51B and the differencein approach to be made in the matter. In para.7, the following principleswere laid down.“7. A number of cases are coming up before this Courtunder R.51B of Chap.XIVA of the K.E.R. The Managers inmost of the cases contend that the application was notsubmitted in time, it was not in the prescribed format etc. Allthese contentions illcome from the mouth of the Manager in thelight of the mandatory provision in R.51B which says that theManager shall give employment to a dependent of an aidedschool teacher dying in harness. When a teacher of his schooldies, it must be presumed that the Manager knows who are thedependents and whether anyone of them is eligible forappointment. Going by the provisions of the Act and Rules, hehas to offer appointment to them whenever a suitable vacancyarises. He cannot take shelter behind the plea that the W.P.(C). Nos.30021 & 32889/2011-:20:-dependent did not apply in time etc. The Manager aloneknows, when the vacancy arises. It is impossible for thedependent to keep track of the vacancies that may arise in aschool or schools under the management. The claimant cannotknow whether anybody else is appointed overlooking his claim.The Manager can inform the dependent about the vacancy anddirect him to apply in the prescribed format within a timeframe. Atleast these positive actions can be implied from themandatory words of R.51B. It cannot be read down to meanthat only if the dependent applies in time and pesters him, heneed act under R.51B. In the absence of provisions containingprocedures or orders for filling up the lacunae, this grey area isa breeding ground for so many disputes and litigations. I thinkthe Government should bestow its attention to this aspect.”Therefore, as far as the right of a claimant under the mandatory provisionunder Rule 51B is concerned, this Court was of the view that since theManager alone knows when the vacancy arises, he will have to take thefollowing steps (a) inform the dependant about the vacancy; (b) direct himto apply in the prescribed format within a time frame; (c) Rule 51B cannotbe read down to mean that only if the dependant applies in time, theManager need act under Rule 51B. Specifically it was held that theManager cannot take shelter behind the plea that the dependant did notapply in time if he has not offered the appointment. This Court considered W.P.(C). Nos.30021 & 32889/2011-:21:-the Judgment of the Division Bench in Deepak’s case (supra) and theprinciples stated by the Apex Court in various cases starting from State ofHaryana v. Umeshkumar Nagpal [(1994) 3 SC 525] in para.11 and thedifferences in approach to be made have been explained thus:“........... The Manager of an aided school can appoint anyperson having the prescribed qualification. Merit is never acriterion for many educational agencies. In most of theschools, appointments are made on other considerations. Onlya very few managements are concerned with the merit of thecandidates. So the provisions of Arts.14 and 16 are notapplicable while making appointment to the vacancies in aidedschools. Therefore, the observations made by the Apex Courtare not applicable to the appointments on compassionateground in aided schools with its full vigour. Apart from that,the right to get appointment in an aided school oncompassionate ground is not a concession granted by anyexecutive order. It is a statutory right. The executive ordersgoverning appointment on compassionate ground in publicservices is incorporated in the Rule by adoption. It islegislation by reference (See the decision in Mahindra andMahindra Ltd. v. Union of India (1979 (2) SCC 529). UnlessR.51B and the relevant orders which form part of that Rule arechallenged, the Manager cannot rely on the generalobservations of the Apex Court to reject the claim of anapplicant under R.51B.” W.P.(C). Nos.30021 & 32889/2011-:22:-Significantly, therefore, it was held that the right to get appointment in anaided school on compassionate ground is not a concession granted by anexecutive order . It is a statutory right.29.The above view of the learned Single Judge was upheld by aDivision Bench in W.A.No.1164/2005 wherein the various issues wereconsidered elaborately. Therein also, the Manager contended that there wassome delay. In that case, the application was not made strictly within thetwo year period provided under clause 19. Therein, the date of death was on24/10/1999, a vacancy arose on 01/04/2002 and the application wassubmitted on 14/08/2002. The Division Bench considered the interpretationof Rule 51B, especially in the light of the procedure prescribed under Rule51A also. In para.6, the view taken in Baiju Kumar's case [2003 (3) KLT240] was upheld and it was further held thus: “...........Since provisions like the one under Note 2 of Rule 51Aregarding sending of registered notices are absent in Rule 51Bthe learned Single Judge expressed the hope that theGovernment would bestow its attention to those aspectsreferred to above. Apparently nothing has been done by theGovernment. Be that as it may, even in the absence of anyspecific procedure regarding registered notice, prescribed time W.P.(C). Nos.30021 & 32889/2011-:23:-etc., in view of the mandatory expressions used in Rule 51B ofChapter XIV-A KER, it is fairly clear that it is the duty of theManager to request the dependants of a deceased aided schoolteacher to apply in the prescribed format as and when avacancy arises. If only there is no response from the dependantwithin a reasonable time as noted in the request, the Managerwould be in a position to make appointment from the openmarket ignoring the statutory claim available to the dependant.In case of ineligibility or if the application otherwise does notrequire consideration, the Manager has to enter a finding andinform the applicant accordingly. Then alone the Manager canproceed to make appointment ignoring the statutory claim. Thebenevolent piece of legislation would get force and life only ifsuch an interpretation as above is given.” Further, the decision of a Division Bench in Corporate Manager, Dioceseof Thrissur's case [2003 (1) KLT SN. Case No.45 Pg.33] was explained inpara.7 and it was held that the same was rendered on the peculiar facts ofthe said case. 30.Therefore, the view taken by the Division Bench, above, is thatthe Manager will have to request the dependant as and when the vacancy W.P.(C). Nos.30021 & 32889/2011-:24:-arises to submit the application and if there is no response from thedependant within a reasonable time, the Manager can make appointmentfrom open market. SLP No.18645/2006 filed against the said Judgment wasdismissed as per order dated 24/11/2006 by the Supreme Court. These twodecisions came up for consideration before another Division Bench inS.N.G.S High School's case [2008 (1) KLT 1026] in a similar matter underRule 51B. The Bench was significantly of the view in para.7 that thegeneral principles stated by the courts concerning the appointment under thedying-in-harness scheme in Government service have no application whileconsidering the matter under the Kerala Education Rules. The followingfindings were rendered in that context in para.7“We notice that the right of the dependent of a teachingstaff or a non-teaching staff, who died in harness, is a statutoryright. It is not a concession granted to the dependents.Whenever there is a vacancy, the Manager has to make theappointment. So, he should alert the dependents of thedeceased employee regarding the occurrence of the vacancy, sothat any one among them who is qualified, can apply for thepost. If there is any defect in the application, the Manager hasto give the applicant time to rectify the mistake and thereafter,he should appoint him. The general principles stated by thecourts concerning the appointment under the dying-in-harness W.P.(C). Nos.30021 & 32889/2011-:25:-scheme in Government service have no application here. Avacant post in the Government will have to be filled up byinviting applications and giving every one a chance to apply, inaccordance with the Rules governing appointment to suchposts. The mandate of Arts.14 and 16 of the Constitution ofIndia compels to follow the above course. The appointment ofthe dependent of an employee, who died in harness is anexception to the above rule and is a concession granted by theGovernment. The said right should be exercised, subject to themandate of Arts.14 and 16 of the Constitution of India. But, ifa vacancy arises in an aided school, no advertisement is madeand no selection is made from among the best candidates, whoapply pursuant to the advertisement. The Manager appoints aperson of his choice. So, the principles laid down by the courtsrelating to appointment under the dying-in-harness scheme inpublic services cannot be mechanically imported or applied tothe appointments under R. 51B or R.9A in an aided school.”After referring to Baiju Kumar's case [2003 (3) KLT 240] it was noticedby the Bench that in W.A.No.1164/2005 supra, the said Judgment wasapproved and that the Special Leave Petition was also dismissed. TheBench reiterated the view taken in W.A.No.1164/2005. The variousdecisions of the Apex Court laying down the principle that the claim shouldbe made for immediate succour of the family were also considered and thesame were distinguished in the following words: W.P.(C). Nos.30021 & 32889/2011-:26:-“...........vancancies in aided schools arise onlyoccasionally. Therefore, the principles laid down by the ApexCourt concerning appointment to public services under thedying-in-harness scheme, like grant of appointment,immediately after the death of the bread-winner to bringimmediate succour to the family etc., are not applicable andunworkable, as far as aided schools are concerned.” Thus it was held that those principles may not be workable as far as aidedschools are concerned. These decisions were later considered by a DivisionBench in common Judgment in W.A.Nos. 688, 706, 736 and 761 of 2008and the legal position was reiterated. Para.7 will show that the contentionwas that the application was not submitted within the two year periodprescribed under clause 19. This contention was rejected in para.8 in thefollowing words:“...........As held by us earlier in S.N.G.S. High School v. RejiSagar (2008 (1) KLT 1026) the Manager had a statutory duty toinform Smt.V.S.Prasobha before the appointment of the sixthrespondent on 12/08/2003 that a vacancy of UPSA has arisenor is likely to arise in his school and that she or one among herchildren has to apply in the prescribed form claiming W.P.(C). Nos.30021 & 32889/2011-:27:-appointment to that post. The Manager, instead of adopting thesaid course kept quite without replying to the representationssubmitted by Smt.N.S.Prasobha on 17/11/2001 and 08/07/2003and appointed the sixth respondent as UPSA on 12/08/2003.”S.L.P (Civil) No.17444 to 17447/2008 filed against the said Judgmentstands dismissed by the Apex Court by order dated 01/08/2008. 31.W.A.No.2211/2008 is another important Judgment concerninginterpretation of clause 19 wherein various Judgments were referred toincluding Deepak’s case [2002 (3) KLT 288] and Corporate Manager,Diocese of Thrissur's case [2003 (1) KLT SN. Case No.45 Pg.33] apartfrom S.N.G.S High School's case [2008 (1) KLT 1026]. The Bench was ofthe view that the time limit prescribed is only directory. That was a casewhere the Manager contended that the 3 years period provided for a minorwas breached. The plea was considered in para.6 thus:“Ext.R1(a) order is the order governing appointmentunder the dying-in-harness scheme in Government service.Normally, in the government service, hundreds of vacanciesarise every year and a portion of those vacancies are set apartfor appointment of candidates under the dying-in-harnessscheme. Therefore, the candidates should apply within a W.P.(C). Nos.30021 & 32889/2011-:28:-reasonable time limit so that the Government can process them,prepare wait list of them and give appointment as and when thevacancies are available in the quota set up for appointment inthe dying-in-harness scheme. But, in the case on hand, wenotice that the first vacancy to which the 1st respondentapplicant can be considered arose only after 13 years of thedeath of the incumbent's father. Therefore, the delay in makingapplication canvassed by the Manager is only technical. Thetime limit prescribed in Ext.R1(a) can only be treated asdirectory in nature and not mandatory, as far as aided schoolsare concerned.”It is clear that the Bench was of the view that the time limit prescribed canonly be treated as directory as far as aided schools are concerned. This willin a long way support the contentions of the third respondent in W.P.(C).No.30021/2011. 32.The next decision relied upon by Shri K.E.Hamsa is Snineeshv. State of Kerala [2009 (4) KLT 719]. The same is also of a DivisionBench and the various principles were reiterated therein.33.I had occasion to consider practically all these decisions in theJudgment in W.P.(C).21384/2009 . The vehement argument raised on W.P.(C). Nos.30021 & 32889/2011-:29:-behalf of the Manager therein was that the application was not proximate tothe time of death. The earlier view taken by the various Benches withregard to the said requirement of proximity to the time of death and thedifferent view taken from the Judgment of this Court in Baiju Kumar‘scase [2003 (3) KLT 240] onwards have been adverted to in detail and itwas held in para.16 thus:“Therefore, even though the earlier Division Bencheshave viewed that there should be some proximity with the dateof death of the employee, later decisions by other DivisionBenches are of the view that in the light of the obligation of theManager under the statutory provisions, the Manager has tooffer an appointment whenever a vacancy arises. The aspectwhether there is a vacancy, is a matter exclusively within theknowledge of the Manager. Therefore, the Manager cannottake a stand that there is delay in making the application. Asheld by the Division Bench in W.A. No.1164/2005, which isrelied on in S.N.G.S. High School's case ( 2008 (1) KLT1026) there is an obligation cast on the Manager to giveemployment to the dependent of a deceased aided schoolteacher, going by the mandatory requirements under Rule 51- W.P.(C). Nos.30021 & 32889/2011-:30:-A. It was also held that if only there is no response from thedependent within a reasonable time as noted in the request, theManager would be in a position to make appointment from theopen market ignoring the statutory claim available to thedependent.”As already noticed the Division Bench in W.A.2791/2009 has upheld theabove Judgment.34.Smt.V.P.Seemanthini learned Senior Counsel for the petitionerin W.P.(C).No.30021/2011 submitted that the view taken by the DivisionBench in General Manager, Corporate Educational Agency of Discalcedv. State of Kerala and others [2007 (3) KLT Suppl.Pg.32] that the timeprescribed in clause 19 is mandatory will have to be accepted. 35.The Division Bench in General Manager, CorporateEducational Agency of Discalced's case (supra) did not consider theimpact of the view taken in Baiju Kumar's case [2003 (3) KLT 240] whichwas affirmed in W.A.No.1164/2005. There is a duty cast on the Manager toinform about the vacancy, and direct to file an application. If there is noresponse, he can proceed to make a fresh appointment. Herein also theManager failed to inform the claimant about the vacancy. Hence, the view W.P.(C). Nos.30021 & 32889/2011-:31:-taken in W.A.No.2211/2008 that the time limit provided in Clause 19 isdirectory will apply here. 36.The decision of the Division Bench in Priyesh Vasudevan'scase [2005 (4) KLT 1003] relied upon by the learned Senior Counselactually concerns, the claim of a posthumous child of a teacher in an aidedschool, who died in harness, for appointment under the compassionatescheme after attaining majority. This Court upheld the said claim afterelaborately considering the various aspects. The question consideredtherein is different from those raised in this particular case. Therefore, I amnot elaborately discussing the points and the dictum laid down therein.Significantly, in para.34, the Division Bench was also of the view that “itwould not be hence proper, to restrict the scope and application of thescheme on the basis of the law laid down by the Supreme Court in referenceto the Schemes which are quite different from the Scheme in force in theState of Kerala”.37.Shri K.E.Hamsa in this context submitted that even if this Courtfinds that there is a conflict in the views of two Division Benches, in thelight of the principles stated by the Full Bench of this Court in Raman Gopiv. Kunju Raman Uthaman [2011 (4) KLT 458], the Judgment in W.P.(C). Nos.30021 & 32889/2011-:32:-W.A.No.2211/2008 being the later at point of time will have to be followedby this Court. Therein, the Full Bench was of the view in para.60 that:“In case of conflicting views taken in the decisions of twoBenches of equal strength of the Apex Court, the decision laterin point of time, will prevail over the earlier one.”38.Thus, an analysis of the legal position will support the viewtaken by the Government in Ext.P11. The date of death is 08/01/2008 andthe date of application is 30/04/2010. Exts.P1 to P1(l) produced in W.P.(C).No.32889/2011 will show that the application was submitted in theprescribed form with all the required documents. Significantly, theapplication was never rejected by the Manager. Even though it is stated inpara.9 in W.P.(C).No.30021/2011 that the application was rejected as perExt.P7 produced therein, Shri K.E.Hamsa, learned counsel for the thirdrespondent-claimant submitted that no communication has been served onthe claimant rejecting the application and Ext.P7 is not at all a rejection atall. A reading of Ext.P7 shows that it is actually in reply to Ext.P8communication to the District Educational Officer which directed theManager to consider the claim of the third respondent in that writ petition.In Ext.P7 what is pointed out is that along with annual income, familypension component has not been shown, that the mother actually wanted W.P.(C). Nos.30021 & 32889/2011-:33:-appointment either as High School Assistant (S.S) or Upper Primary SchoolAssistant, but the applicant has only shown the post of H.S.A (S.S.). It isalso stated that 42 appointments made by the Management in teaching andnon teaching posts are remaining for approval. What is indicated in Ext.P7is only that in the light of the above circumstances, the District EducationalOfficer’s letter cannot be considered. Evidently, it does not finally rejectthe application of the claimant, on the basis of the pleas now raised in thewrit petition. Therefore, it can be taken that the Manager has never taken astand in Ext.P7 that the application is belated and, therefore, it cannot beconsidered. The Government in Ext.P11 has clearly held that the familypension amount is not liable to be added along with the family income in thelight of para.13 of the Government Order Ext.P6 itself. As on the date ofapplication, the income limit was enhanced to Rs.4.5 lakhs as per G.O.(P).No.14/10/P&ARD dated 12/04/2010.39.Therefore, the question is whether the Government has in anyway erred in passing Ext.P11. As already noticed, in Ext.P11 theGovernment was of the view that there was an obligation on the part of theManager to inform the claimant about the vacancy. It was never compliedwith. The Government has also chosen to take the view that merely becauseof delay of a few months, it cannot be taken as a mitigating circumstance for W.P.(C). Nos.30021 & 32889/2011-:34:-absolving the Management to offer entitlement under Rule 51B as the ruledoes not prescribe a minimum period. It was also the view that there was nounreasonable delay for making the application and there is no remotenessbetween the date of death of the employee and the application forcompassionate appointment. It was further pointed out that there is powerto condone delay. 40.In terms of the principles evolved in Baiju Kumar's case[2003 (3) KLT 240] and S.N.G.S High School's case [2008 (1) KLT 1026]and the other later decisions relied upon by Shri K.E.Hamsa, it can be seenthat herein there was no communication by the Management to the claimantabout the occurrence of vacancy and no request was made to the dependantto submit an application. Actually, if there was such a direction and theapplicant had failed to submit the application in time alone, the Managercan take a contention that there is delay in submitting the application. Meredefects in the application, if any, will not make the application invalid asopportunities can be given to cure the alleged defects, if any. Therefore, theview taken by the Government in Ext.P11 cannot be said to be illegal orarbitrary or unreasonable in the light of the decision of this Court in BaijuKumar v. D.E.O., Trivandrum [2003 (3) KLT 240], S.N.G.S HighSchool v. Reji Sagar and others [2008 (1) KLT 1026], Writ Appeal W.P.(C). Nos.30021 & 32889/2011-:35:-Nos.688/2008, 706/2008, 736/2008 & 761/2008, W.A.No.1164/2005 andthe Judgment in W.A.No.2211/2008, which I prefer to follow. 41.Learned Senior Counsel Smt.V.P.Seemanthini submitted thatthe Department was not right in keeping the entire appointments undercheck and the fate of those appointees in a fluid state, merely because of theclaim raised by an applicant under Rule 51B. Shri K.E.Hamsa pointed outthat on 01/06/2010 two vacancies had arisen and the Manager filled up thesame in spite of the receipt of the application by the claimant before the dateof filling up of the vacancies. Going by the pleading of the Manager inW.P.(C).No.30021/2011, the application submitted by the third respondentwas received on 15/05/2010. Evidently, the two vacancies of H.S.A aroseon 01/06/2010. The Government's direction in Ext.P11 is to appoint thethird respondent in the first vacancy that arose after the date of filing of theapplication for compassionate appointment. The same will have thereforeto be complied with by the Management. 42. The Management will have to rearrange the appointments madeand resubmit the proposals for approval after the appointment of thepetitioner in W.P.(C).No.32889/2011 is made, and the Departmentthereafter, will be able to process all the proposals for approval. As rightlypointed out by the learned counsel Shri K.E.Hamsa, if all other W.P.(C). Nos.30021 & 32889/2011-:36:-appointments are approved, then there will not be any vacancy to appointthe Rule 51B claimant. In the light of the statutory right of the saidclaimant, the vacancy cannot be filled up by a fresh hand.43.W.P.(C).No.30021/2011 is dismissed and W.P.(C).No.32889/2011 is allowed. There will be a direction to the Manager toappoint the petitioner in W.P.(C).No.32889/2011 as H.S.A (Social Science)in one of the vacancies which arose on 01/06/2010 within a period of threeweeks from the date of receipt of a copy the Judgment and forward theappointment order and other documents to the District Educational Officerfor approval within a further period of two weeks and the DistrictEducational Officer will pass appropriate orders with regard to the grant ofapproval within a further period of one month. Depending upon the saidorder, the proposal for approval of other teachers and non teaching staff ofthe institutions which are kept pending due to the present dispute will betaken up and the orders will be passed accordingly without further delay.No costs.Sd/- (T.R. Ramachandran Nair, Judge.)ms