Cyriac Joseph, J.@mdashThis appeal is against the Judgment in O.P. No. 6412 of 1991 which was dismissed by the learned Single Judge. The Appellant is the Petitioner in the original petition.
2. The Appellant''s father Sri A. Chathu Mannadiar was a teacher of Aided Upper Primary School, Keralassery. While in service Sri Chathu Mannadiar died of heart attack on 27th June 1978. He had served as a teacher in the said school for nearly 27 years from 1951 to 27th June 1978. He left behind him his only son (the Appellant) who was then a minor aged 16 years and two unmarried daughters. The Appellant studied only upto S.S.L.C. On attaining majority the Appellant submitted an application dated 28th September 1982 to the Government requesting for employment under the Dying-in-harness Scheme. As per Ext. P-1 letter dated 9th November 1982 the Government informed the Appellant that the Government had prescribed an application form for applying for employment assistance under the provisions of G.O. (Ms.) 20/70/PD dated 21st January 1970 and that he might apply in that form provided his father was a Government servant. Admittedly the Appellant''s father was not a Government servant and the benefit under the above-mentioned Government Order could not be claimed by the Appellant. Rule 51B was inserted in Chapter XIV-A of the Kerala Education Rules (hereinafter referred to as ''the K.E.R.'') as per G.O. (P) No. 55/90/G. Edn., dated 30th March 1990. Rule 51B provided as follows:
51B. The manager shall give employment to a dependent of an aided school teacher dying-in-harness. Government orders relating to employment assistance to the dependents of Government servants dying-in-harness shall mutatis mutandis apply in the matter of such appointments.
After the introduction of Rule 51B, the Appellant submitted Ext.P-4 representation dated 18th April 1991 to the Deputy Director of Education, Palakkad requesting for employment under the Dying-in-harness Scheme A similar request was made by the Appellant to the Assistant Educational Officer, Parali, Palakkad as per Ext.P-5 representation dated 17th April 1991 Ext.P-5 representation was returned by the Assistant Educational Officer on 23rd April 1991 with the following endorsement:
Returned. Your request,cannot be considered as per the existing Rules.
Thereupon the Appellant submitted Ext.P-6 representation dated 7th June 1991 to the District Educational Officer, Palakkad requesting that directions may be given to the manager of the school to appoint the Appellant in the vacancy of Peon which was likely to arise shortly. Apprehending that the said vacancy of Peon would be filled up without considering the Appellant''s claim the Appellant filed the original petition (O.P. No. 6412 of 1991) praying for the following reliefs:
(a) Issue a writ of mandamus or other appropriate writ, order or direction directing the Respondents to appoint the Petitioner in the existing vacancy of Peon in the 5th Respondent''s school.
(b) Issue a writ of certiorari or other appropriate writ, order or direction, calling for the records leading to Ext.P-2 and P-5A and to quash the same.
(c) Grant such other reliefs as this honourable Court may deem fit and proper in the circumstances of the case including cost of this petition.
3. The 5th Respondent-Manager of A.U.P. School, Keralassery filed a counter-affidavit raising the following contentions: The Petitioner''s father died on 27th June 1978. The date of birth of the Petitioner is 15th April 1962. The Petitioner attained majority two years after the death of his father. Rule 51B of Chapter XIV-A of K.E.R. was inserted in the statute book by publication in the Kerala Gazette dated 30th March 1990. Before 30th March 1990 there was no provision of law imposing an obligation on the managers of aided schools to appoint dependents of aided school teachers dying-in-harness. Since the statutory obligation of managers to appoint dependents of aided school teachers came into existence only with effect from 30th March 1990 the Petitioner is not entitled to get any benefit based on Rule 51B of Chapter XIV-A of K.E.R. Rule 51B has no retrospective operation. Hence those dependents of aided school teachers who died-in-harness subsequent to the introduction of Rule 51B alone could claim the benefit under Rule 51B. Since the Petitioner''s father died in 1978 and the Petitioner himself attained majority in 1980 he has no right to claim any benefit based on Rule 51B. Since the Petitioner has no right to claim appointment in the school Mr. M. Sasidharan was appointed as Peon in the vacancy which arose on 1st July 1991 and he joined duty as Peon on 1st July 1991. The Manager''s Association bad made a representation to the Government against the introduction of Rule 51B and the Government had issued an order directing not to give effect to the provisions contained in Rule 51B. As per Rule 51B of Chapter XIV-A of K.E.R. Government Orders relating to employment assistance to the dependents of Government servants dying-in-harness shall mutatis mutandis apply in the matter of appointments under Rule 51B of Chapter XIV-A of K.E.R. The Government Order governing the field is G.O. (P) No. 34/87/P and A.R.D., dated 17th December 1987 [Ext. R-5(b)]. As per the said Government Order the time-limit prescribed for preferring applications for appointment under the Dying-in-harness Scheme is a period of one year from the date of death of the Government servant. In case the dependent is a minor the period is three year''s after attaining majority. In the case of dependents of Government servants dying-in-harness on or after 1st July 1988 the time-limit for submitting application will be two years. Hence the Petitioner should have submitted his application for appointment under the Dying-in-harness Scheme within three years from the date of attaining majority. The Petitioner has no right to challenge Ext. P-5.
4. A counter-affidavit was filed on behalf of the first Respondent, State of Kerala, also. According to the first Respondent the Petitioner is eligible for the post of Peon in the existing vacancy in the A.U.P. School, Keralassery in view of G.O. (P) No. 55/90/G. Edn. dated 30th March 1990. His application for employment assistance was returned by the Assistant Educational Officer, Parali as the Assistant Educational Officer was not competent to consider his request since the appointing authority in aided schools is the Manager. It is also stated in the counter-affidavit of the first Respondent that the entire scheme of employment assistance to the dependents of employees dying-in-harness is a concession and not a statutory right.
5. The learned Single Judge dismissed the original petition on the ground that the Petitioner is not eligible to get the employment by invoking Rule 51B of Chapter XIV-A of K.E.R. According to the learned Single Judge there is no indication in G.O. (P) No. 55/90/G. Edn., dated 30th March 1990 to suggest that the amendment introduced to the Kerala Education Rules has retrospective effect. Giving retrospective operation to the said Government Order would virtually unsettle all the appointments made by the manager for the past several years. Since the intention to give retrospective operation is not manifested in the Government Order and since such an inference cannot be drawn by necessary implication it has to be found that the Government Order was intended only to be prospective in operation. The learned Single Judge has also held that since the scheme has been made applicable to private schools for the first time by the Government Order dated 30th March 1990 it necessarily follows that the dependents of teachers who died before that date are not eligible to seek employment under that Scheme.
6. It is true that there is nothing in G.O. (P) No. 55/90/G. Edn., dated 30th March 1990 or in Rule 51B of Chapter XIV-A of K.E.R. to indicate that Rule 51B is retrospective in operation. We agree with the learned Single Judge that Rule 51B has only prospective operation. But it does not mean that the dependents of aided school teachers who died-in-harness prior to 30th March 1990 cannot claim the benefit under Rule 51B of Chapter XIV-A of K.E.R. Rule 51B does not state that the benefit under the said rule will be available only to the dependents of aided school teachers dying-in-harness on or after 30th March 1990 or that the benefit will not be available to the dependents of those who died prior to 30th March 1990. In the absence of any such stipulation in the rule, it is neither just nor reasonable to deny the benefit under the rule to dependents of aided school teachers who died-in-harness before 30th March 1990. Hence, in our view, the claim of the Appellant cannot be rejected only on the ground that his father died prior to 30th March 1990.
7. Rule 51B as such does not stipulate the method of submitting application for the benefit under the said rule or the procedure to be followed in considering such applications or any time-limit for making such application. Instead, Rule 51B specifically provides that Government Orders relating to employment assistance to the dependents of Government servants dying-in-harness shall mutatis mutandis apply in the matter of such appointment. Hence the time-limit prescribed under the Government Orders for submitting application for employment assistance to the dependents of Government servants dying-in-harness shall be applicable in the case of applications submitted by the dependents of aided school teachers dying-in-harness. Along with the counter-affidavit of the 5th Respondent Manager a copy of G.O. (P) No. 34/87/ P and A.R.D., dated 17th December 1987 was produced as Ext. R-5(b). No reply was filed by the Petitioner in the original petition denying the existence or applicability of Ext. R-5(b) Government Order. Paragraph 22 of Ext. R-5(5) Government Order is extracted hereunder:
22. (a) The applications for appointment under the scheme should be submitted to the Government within a period of one year from the date of death of the Government servant. In the case of minor children the period will be within three years after attaining the age of majority.
(b) The time-limit for submission of application in the case of dependents of Government servants dying-in-harness on or after 1st July 1983 will be two years.
(c) Eligible cases arising prior to 1st July 1983 in which applications were being preferred within the earlier prescribed period of one year will also be covered by the increased period of two years for making application.
(d) The Chief Minister will have discretionary powers to entertain belated applications irrespective of the duration of the delay.
It has been brought to our notice that as per G.O. (P) No. 12/99/P and A.R.D., dated 24th May, 1999 the Government have issued revised orders, in supersession of all the existing orders, to regulate the appointment under the Compassionate Employment Scheme. According to Clause 19 of the said Government Order the time-limit for preferring applications under the Scheme will be two years from the date of death of Government servant and in the case of minor the period will be within three years after attaining majority. If the provisions of Rule 51B of Chapter XIV-A of K.E.R. and the provisions contained in the Government Orders are read together, the Appellant ought to have submitted the application for the benefit under Rule 51B within three years after attaining the age of majority. There is nothing to indicate that the Appellant at any time addressed any application to the 5th Respondent Manager claiming the benefit under Rule 51B. It is true that a copy of Ext. P-5 representation dated 17th April 1991 submitted to the Assistant Educational Officer, Parali is seen marked to the Manager also. Even if it is taken as a request to the Manager for the benefit under Rule 51B the said request was beyond the time-limit mentioned in Ext. R-5(b) Government Order. Hence the Appellant is not entitled to the benefit under Rule 51B of Chapter XIV-A of K.E.R.
8. It was contended by the learned Counsel for the Appellant that the Appellant could not have claimed the benefit under Rule 51B before the introduction of the said rule and that long before the introduction of Rule 51B the time-limit for submitting application had expired and therefore the Appellant would be deprived of an opportunity to claim the benefit under the said rule. In the absence of any specific provision in the rule enabling dependents like the Appellant to apply for the benefit, the Appellant is not entitled to the benefit under the said rule.
9. It was also contended by the learned Counsel for the Appellant that if the Appellant was denied the benefit under Rule 51B on the ground that he did not make any claim within three years of attaining the age of majority, serious injustice would be caused. We are not impressed by this argument. Admittedly the Appellant''s father died on 27th June 1978. The date of birth of the Appellant is 15th April 1962. When Rule 51B was introduced the Appellant was about 28 years old and a period of about 12 years had elapsed after the death of the Appellant''s father. In
The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family....
It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned....
.... The compassionate employment cannot be granted after the lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.
The same view was taken by the Supreme Court in
8. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee.
In the present case, the Appellant''s father had died around 12 years before the introduction of Rule 51B. By the time the benefit under Rule 51B was introduced the family had overcome the sudden crisis caused by the death of the father. In our view no injustice would be caused by refusing to entertain the Appellant''s claim raised 12 years after the death of his father.
10. We may also observe that in the Judgment in P.S. Deepak v. Secretary, General Education Department and Ors. W.A. No. 25 of 2000 another Division Bench of this Court had considered the scope of the right and obligation under Rule 51B of Chapter XIV -- A of K.E.R. and had held that "if an application is made for compassionate appointment there must be some proximity between the date of death as well as the date of application".
11. In the light of the above discussion, we hold that the Appellant is not entitled to the benefit under Rule 51B of Chapter XIV-A of K.E.R. Hence the Writ Appeal is dismissed.
