1. The object and the purpose of R.51(B) of Chapter XIVA of Kerala Educational Rules arise for consideration in these writ appeals. Hence they are disposed of by this common judgment.

W.A. No. 1621 of 1998

Appellant is the Manager of Parli High School, which is an aided private school. The 1st respondent filed O.P. No. 5572 of 1997 claiming appointment against the post of Clerk fell vacant in the High School on 1.4.1997. His father who was working as a Teacher in the High School died in harness in the year 1977. The claim under R.51(B) was made 20 years after the death of his father and 16 years after attaining majority. The learned Single Judge allowed the O.P. holding that no time limit is fixed in the Kerala Education Act or Rules for the purpose of filing application for appointment under R.51(B). It was also held that the object of R.51(B) was to give benefit to the dependents of persons who died in harness, whether the death occurred prior to or subsequent to the introduction of that rule. The appellant was directed to consider the 1st respondent for appointment to the post of Clerk in the vacancy which arose on 1.4.1997. The judgment of the learned Single Judge is reported in Narayanan v. State of Kerala (1998 (2) KLT 446).

W.A. No. 2820 of 2000

Appellant is the Manager of H.S. Katampazhipuram who is respondent No. 4 in O.P. No. 15097 of 1998. The 1st respondent herein filed the above Writ Petition praying for directions to appoint him as Lower Division Clerk in the school under R.51(B) against the vacancy that arose on 1.11.1997. His mother who was a Sewing Teacher in the school died on 7.3.1981 while in service. The appellant filled up the vacancy by promoting a R.43 claimant who is respondent No. 5 in this appeal. Learned Single Judge allowed the Original Petition in the light of the decision in Narayanans case supra and directed the appellant to consider the case of the 1st respondent for appointment against the next arising vacancy. Hence this appeal.

W.A. No. 423 of 2002

Appellant is the petitioner in O.P. No. 8573 of 2001 which was heard and disposed of by a learned Single judge along with O.P. No. 19401 of 2001 filed by the Manager A.M.U.P. School, Kanhirakole. Appellant was appointed on 1.6.1999 as an Asst. Teacher in the school by the Manager who is the petitioner in O.P. No. 19401 of 2001. Educational Officers and the Government held that the appointment cannot be approved on the ground that the 3rd respondent who is a claimant under R.51(B) ought to have been appointed in that vacancy. Writ petitions were filed challenging the orders passed by the Educational Officers and the Government. Third respondents father was an employee of the school. He died in harness in the year 1985. Time lag between the death of the father of the 3rd respondent and the vacancy against which claim for appointment is made is 14 years. Learned Single Judge dismissed the above two writ petitions holding that the Manager of an aided school cannot press into service the lapse of time as a ground for rejecting the claim for appointment under the rule relating to dying in harness in the peculiar circumstances in which private school managers are making appointments. Appellant submits that the above reasoning is unsustainable.

W.A. No. 424 of 2002

Appellant is the petitioner in O.P. No. 19401 of 2001. He is the Manager of the school already referred to in connection with W.A. No. 423 of 2002.

W.A. No. 974 of 2002

Appellant herein is the first petitioner in O.P. No.12711 of 2001. He is the Manager of St. Josephs High School, Mathilakam. Respondent No. 4 made a claim for appointment under R.51(B). His father was a Teacher in the school. He died in harness on 19.6.1984. The 4th respondent attained majority in 1996 and he applied for appointment on 24.10.1998 relaying on R.51(B). The Educational Officer directed the appellant Manager to appoint the 4th respondent in the school. Appellant filed a revision before the Government against that direction. Government rejected that revision. Manager filed the Writ Petition challenging the order of the District Educational Officer and the Government. Learned Single Judge dismissed the Original Petition pointing out the peculiar circumstances under which the Managers of private aided schools exercise the power to appoint teaching and non-teaching staff. The learned judge also found that the principles stated by the Supreme Court in the matter of appointment under the dying in harness scheme have no application to the appointment in aided schools.

2. Having briefly stated the facts of the above writ appeals, we may extract R.51(B) of Chap. XIV A, K.E.R. which reads 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."

3. The above rule was introduced in the statute book on 30.3.1990. Government of Kerala had issued various orders giving employment assistance to dependents of Government servants dying in harness. However, those orders were not directly applicable to the aided private school staff who are governed by the Kerala Education Act and the Rules. By the introduction of R.51(B) in Chap. XIV A of the Kerala Education Rules, a liability is cast on the managers to give employment to a dependent of an aided school teacher or a member of the non-teaching staff dying in harness. That rule specifically states that Government orders applicable to the dependents of Govt. servant dying in harness shall apply mutatis mutandis in the matter of such appointments. Those Govt. orders on this subject serve the field. The appellants do not deny the liability thus imposed on them by the aforesaid rule. However, based on the decisions of the Supreme Court on the right to claim appointments under the dying in harness scheme, the appellants contend that the right under R.51B would be available only if it is exercised within a reasonable period of time.

4. The respondents who seek appointments under R.51B, on the other hand, contended that their applications cannot be rejected on the ground of delay since the statutory rule conferring the right for appointment was introduced only in 1990 and was made effective still later.

5. In this connection, we consider it useful to extract the following paragraphs from the judgment of Usha, J. (as Her Lordship then was) in Ganesan v. State of Kerala (1995 (2) KLT 700):

"10. Supreme Court further held that for the very same reason as mentioned above compassionate employment cannot be granted after a lapse of reasonable period, which must be specified in the Rules. 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 death of the sole breadwinner. The compassionate employment cannot be claimed and offered whatever be the lapse of time and after the crisis is over.

11. From the above findings of the Supreme Court it is clear that the following principles are to be adhered to while making rules for compassionate appointment.

i. The appointment shall be claimed and made within a reasonable period from the death of the employee and such period must be specified in the rules.

ii. Employment can be offered only to the widow (widower) son or daughter of the deceased employee and to no other relative.

iii. The financial condition of the family of the deceased is a relevant factor and only if after enquiry it was found that the family will not be able to meet the crisis of the death of the breadwinner that a job is to be offered to the eligible member of the family.

iv. No post above Class III and Class IV shall be offered for compassionate employment."

6. Government of Kerala issued G.O. (P)12/99/P&ARD dated 24.5.1999 which is a revised order governing compassionate employment to the dependents of Government servants who die in harness. Among other eligibility conditions, the modified order prescribes a time limit for preferring applications vide 19 of the above Government Order. The same reads as follows:

"19. The time limit for preferring applications under the scheme will be 2 years from the date of death of Govt. servants. In the case of minor, the period will be within 3 years after attaining majority."

7. In our opinion the condition extracted above assumes relevance in the context of the language used in R.51B itself, namely, Government Order relating to employment assistance to the dependents of Government servants dying in harness shall mutatis mutandis, apply in the matter of such appointments as also the directions issued by this Court in Ganesan v. State of Kerala (supra).

8. Respondents invited our attention to the judgment of Abdul Gafoor, J. in Sajeesh Babu v. State (1996 (2) KLT 542). It is contended that the learned judge while dealing with the scope of R.51B has distinguished the decisions of the Supreme Court on compassionate appointments under dying in harness scheme in the following words:

"All these are cases relating to employment assistance to be given in Government service or in the statutory Boards. All these cases relate to employment in public service or the service of the "State" covered by Art.14 and 16 of the Constitution of India. In all these cases, the scheme for employment assistance are non-statutory, by way of concession. Therefore, those decisions do not apply to the case on hand because in aided schools, the employment assistance is governed by statutory provisions. So, a valid right is created in a dependent. That statute does not contemplate any time limit. Therefore, the Manager cannot avoid his liability arising out of R.51B stating that six years have elapsed since the death of father of the petitioner."

Another decision relied on by the respondents is the one rendered by Radhakrishnan,J. in Narayanan v. State of Kerala (1998 (2) KLT 446). In that decision the learned judge has held:

"I am of the view that the decision of the Supreme Court in Haryana State Electricity Board v. Hakim Singh (1997) 2 SCC 85 is not applicable to the facts of this case. In that case benefit was sought for not on the basis of statutory provision. In the instant case petitioner is only claiming a statutory right which he is entitled to. In the absence of any time limit prescribed in the rules I am of the view petitioner is perfectly justified in submitting an application for employment under R.51B of Chap. XIV-A K.E.R. when vacancy arose."

It is to be pointed out that one of the writ appeals, now under consideration is directed against the above judgment. We may also notice that in the said judgment there is reference to the decision of Usha, J. in Ganesans case and Abdul Gafoor, J. in Sajeesh Babus case.

9. After the arguments were over and the cases were adjourned by reserving judgment, the decision of the Division Bench in Deepak v. Secretary, General Education Department was reported in ILR 2002 (2 [LQ/KerHC/2002/68] ) Kerala 513 = 2002 (3) KLT 288. This judgment was rendered by the Division Bench consisting of K.S. Radhakrishnan and K. Balakrishnan Nair, JJ. In the light of the view taken in the above decision, we posted the writ appeals on 1.11.2002 to be spoken to. After thus affording counsel on both sides to make further submissions, we have examined the merits of the contentions raised in these appeals.

10. One of the issues arising for consideration is whether R.51B of Chap. XIVA, K.E.R. is retrospective or only prospective. After going through that provision, we are clearly of the view that R.51B operates only prospectively and the fact that the death of the employee occurred before the introduction of R.51B, does not disentitle the dependent from claiming appointment under that Rule. What is relevant is the date of occurrence of the vacancy. If the occurrence of vacancy is on or after the coming into force of R.51B, the fact that the employee died before such commencement is immaterial. For the mere reason that facts necessary for giving effect to the Rule are drawn from the past, the Rule cannot be held retrospective. One of the facts that go to confer a right on the dependent of a deceased employee to claim appointment under R.51B is the death of that employee while in service. The fact that the death of the employee is prior to the commencement of R.51B does not mean that R.51B is given effect to retrospectively. Appointments can be claimed only against the vacancies that would arise after the introduction of R.51B. It is therefore clear that the said Rule is enforced only prospectively.

11. The next question is, should there be proximity between the date of death of the employee and the date of the application for employment under R.51B. A Bench decision of this Court in Deepak v. Secretary, General Education Department reported in 2002 (3) KLT 288 = ILR 2002 Kerala 513 has held that there must be some proximity between the date of death and the date of application for compassionate appointment. In the light of the decisions of the Supreme Court there cannot be any doubt that right conferred on the dependants of the deceased employee for compassionate appointment is neither absolute nor unlimited. The above principle has to be read into the executive orders as also statutory provisions governing such appointments. This requirement has been duly emphasised in Ganesan v. State of Kerala also. In the instant case the provision that governs the right of appointment is R.51B. Though this Rule did not initially prescribe any time limit for making a claim for compassionate appointment, the Government order in its modified form which has to be read as part of the above Rule, has incorporated a provision prescribing time limit vide para 19 of G.O.(P)12/99/P&ARD dated 24.5.1999. Supreme Court has held that there cannot be reservation of a vacancy till such time as the dependent becomes a major after a number of years. In that view of the matter a provision which does not prescribe a time limit may not stand the test of law. Hence considering the object of a statutory provision like R.51B we are of the view that requirement of the time limit has to be read into the said Rule, as it stood prior to the date of issuance of the modified Govt. Order in G.O.(P) No.12/99/P&ARD dt. 24.5.1999. Interpreting R.51B in the above manner, is consistent with the view expressed by Usha, J. in Ganesans case (supra) and that by the Division Bench in Deepaks case (supra). The Apex Court in Director of Education (Secondary) v. Pushpendara Kumar (1998 (5) SCC 192 [LQ/SC/1998/600] ) held as follows:

"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 dependants 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."

Considering the decisions of the Supreme Court, the Division Bench held in Deepaks case as follows:

"We are of the view 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. The object of compassionate appointment, as the Apex Court observed, is to tide over the sudden financial crisis resulting due to the death of the bread-earner. It is not as if on the death of an employee, claim of the dependant is kept open for ever. Once a dependant is not always a dependant. There cannot be reservation of vacancy till such time the applicant becomes major or till such time the applicant acquires qualification. We may indicate provision like R.51B and other Government orders pertaining to compassionate appointment are all made on humanitarian consideration. It is always in the nature of an exception to the general provision. Exception cannot always occupy the place of the main provision and thereby nullify or dilute the efficacy of the main provision by denuding the right conferred by the main provision to persons otherwise eligible."

We are in respectful agreement with the above views.

12. In this connection we may refer to the decision of the Supreme Court in Sanjay Kumar v. State of Bihar & Others reported in (2000) 7 SCC 192 [LQ/SC/2000/1281] wherein the Apex Court has held:

"There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions."

To sum up, our conclusion is that, reservation of a vacancy for compassionate appointment to the dependent of an employee who died in harness is permissible for a reasonable period under specific provisions; such reservation cannot be either absolute or unlimited. There should be proximity between the date of death of the employee and the application for compassionate appointment.

13. In this view of the matter, we direct the managers of the schools and the educational officers to consider afresh the claim for appointment made by the applicants in the respective cases in terms of R.51B of Chap. XIV A, K.E.R. read along with G.O.(P) 12/99/P&ARD dated 24.5.1999 which is made applicable to such appointments, for the time being. Appropriate orders shall be passed by the educational officers as directed above within four months from the date of receipt of a copy of the judgment.

Writ appeals are disposed of accordingly.