1. Since a common issue is involved in both these writ petitions, they were heard and disposed of by a common judgment.

W.P.(C) No.9268 of 2022

2. The 5th respondent, the Manager of an aided school appointed the petitioner herein as Full Time Menial in the promotion vacancy of one Smt.G.S.Ambily as per Ext.P1. When the proposal for approval of appointment of the petitioner was forwarded, the same was rejected by the 4th respondent as per Ext.P2 for the reason that the 6th respondent who is having a 51B claim has not been given appointment. Aggrieved by the same the Manager preferred an appeal before the 3rd respondent. The father of the 6th respondent, late K.A.Vijayan, who was working as Physical Education Teacher in the School, died in harness on 29.02.1996. However, his children did not submit an application within time. The 1st respondent has specified time limit of 2 years from the date of death to submit the application and in case of minors, application has to be made within 3 years from the date of attaining majority. The 6th respondent did not submit any application within the prescribed time limit. In fact Ext.P3 application was submitted by the 6th respondent only on 18.12.2017. The 6th respondent had approached the Kerala State Human Rights Commission and the said Commission by Ext.P4 order directed respondents 2 and 3 to consider the application of the 6th respondent sympathetically. Based on Ext.P4, the 4th respondent directed the 5th respondent Manager as per Ext.P5 to consider the application submitted by the 6th respondent, which was rejected as per Ext.P6 order. However, by Ext.P7 order the 4th respondent directed the 5th respondent to appoint the 6th respondent in the first vacancy as per the qualification. Later, the 4 th respondent by Ext.P8 again issued a direction to appoint the 6th respondent in the existing vacancy. The petitioner, the 5th respondent Manager and one Sri. Yadhukrishnan A. (the petitioner in W.P.(C)No.7941 of 2022) who was appointed as Clerk, approached this Court by filing W.P.(C) No.21734/2019. While so, the proposal for approval of appointment of the petitioner as Clerk was rejected by the 4th respondent as per Ext.P9 order. Thereupon the above said writ petition was disposed of as per Ext. P10 judgment relegating the petitioner to file an appeal against Ext.P9 order. Ext.P11 appeal was preferred, which was rejected by Ext.P12 order. In Ext.P12 the 3rd respondent entered into a finding that the dependents of late Vijayan had submitted applications for compassionate employment during various periods and the same was not considered by the Manager and therefore, the claim of the 6th respondent under Rule 51B KER is sustainable. Aggrieved by the same, the petitioner has filed appeal before the 2 nd respondent. The said appeal was reject by the 2nd respondent as per Ext.P13. Aggrieved by Ext.P13, Ext.P14 revision petition was preferred by the petitioner before the 2nd respondent and the said revision petition was rejected as per Ext.P16. It is aggrieved by the same that the above writ petition has been filed.

W.P.(C)No.7941 of 2022

3. The petitioner was appointed as a Clerk by the 5th respondent in the retirement vacancy of one K.G.Vipin, the vacancy which arose on 22.05.2019 as per Ext.P1. The approval of appointment was refused by the 4th respondent DEO for the reason that the 6th respondent - a 51B claimant was not appointed in spite of the direction issued by the Human Rights Commission in this regard. Pursuant to the direction issued by this Court in Ext.P4 judgment, the issue was considered by the 3rd respondent and by Ext.P5 the request for approval of appointment of the petitioner was rejected and held that the 6th respondent is entitled for appointment as he is 51B claimant. An appeal was preferred as Ext.P6 and the same was rejected as per Ext.P7 order. Ext.P8 is the copy of the application submitted by the 6th respondent for appointment under the compassionate appointment scheme dated 18.12.2017 for the post of full time menial and the present vacancy is that of the Clerk. The petitioner would contend that the 6 th respondent cannot take a claim to the said post. It is aggrieved by the rejection as per Ext.P7 that the above writ petition has been filed.

4. A detailed counter affidavit has been filed by the 4th respondent Government in W.P.(C)No.9268 of 2022 contending that going by Rule 51B of Chapter XIV A Kerala Education Rule(KER), the Manager shall give employment to a dependent of an aided school employee dying in harness. The Government Order relating to employment assistance to the dependents of Government servants dying in harness shall apply in the matter of such appointments in aided schools and the existing Government orders in this regard is G.O(P) No.12/99/P&ARD dated 24.05.1999. It is further contended that going by the said Government Order, the time limit for preferring applications for the Scheme will be 2 years from the date of death of employee and in the case of minor dependents, the period will be within 3 years after attaining majority. It is also stated that Sri.K.A.Vijayan died on 28.02.1996 and thereafter his wife Smt.C.R.Chandramathy submitted an application for employment before the District Educational Officer, Alappuzha and the same has been handed over to the Manager vide letter No.B2/5799/1996 dated 15.05.1996. Thus the application submitted was within the time limit and hence valid. But the Manager rejected the application saying it was defective. It is further contended that going by para 26 of GO(P) No.12/1999/P&ARD dated 24.05.1999 referred to above, the applicant will have right to withdraw the application at any time before the job is accepted so as to enable another dependent of the family to make his/her application for employment assistance. The 6th respondent submitted his application on this basis and it is not belated. The Human Rights Commission has also as per order dated 12.04.2017 ordered the 4th respondent to consider the claim of the 6th respondent. It is further stated in the counter affidavit that the original applicant Smt.Chandramathy submitted several representations, but the same was not considered and later the elder son of the deceased, Sri.K.V.Aji has also submitted application in the prescribed format. However, all these applications were rejected by the 5th respondent. It is further contended that after submission of the application on 18.12.2017, there arose two vacancies in the school for which the 6th respondent was eligible, was filled up by granting appointment to fresh employees. The 5th respondent Manager is bound to give appointment to the 6th respondent by accepting his claim under Rule 51 B of Chapter XIV A KER.

5. The 6th respondent has adopted the counter affidavit in W.P.(C)No.7941 of 2022 in W.P.(C)No.9268 of 2022. It is contended that the writ petition is not maintainable as no ground warranting the interference of the impugned orders have been made out by the petitioner. Though the direction of the Human Rights Commission was challenged, the petitioner could not get any relief. Though the mother of the 6th respondent made an application for employment assistance before the 5th respondent on 15.05.1996 and the same was forwarded by the District Educational Officer, the 5th respondent did not take any action. Subsequently, a Full Time Menial vacancy had arisen in the school and the brother of the 6th respondent made a request but the same was rejected on the ground that the same has been submitted beyond the permissible time limit. Thereafter, the Manager made a fresh appointment in the said post of Full Time Menial and it was thereafter that the 6th respondent has made an application for employment assistance. The appointment now made is overlooking the statutory claim of the 6th respondent as provided in Rule 51B of Chapter XIV A KER. It is submitted that the issues raised in these writ petitions are settled in favour of the 6th respondent by a series of judgments of the Apex Court as well as this Court. It is also contended that the petitioner in W.P.(C)No.7941 of 2022 has got an alternative remedy of revision under Rule 92 of Chapter XIV A KER against Ext.P8 order produced in that writ petition and therefore, W.P.(C)No.7941 of 2022 is not maintainable. Since the 1 st application submitted by the mother of the 6th respondent was within time, the claim of the 6th respondent cannot be rejected on the ground that there is delay in submitting the application.

6. The 5th respondent Manager has filed a counter affidavit in W.P.(C) No.9268 of 2022. It is submitted in Ext.P12 order of the Deputy Director of Education, Alappuzha that the mother of the 6th respondent has submitted application under Compassionate Employment on 15.05.1996 on behalf of Shri K. V. Aji who is the brother of the 6th respondent and the same is forwarded by the District Educational Officer, Alappuzha on 28.06.1996 and in the information sought by the Manager before the District Educational Officer, Cherthala regarding the same, Ext.R5(a) reply was submitted stating that the said information regarding forwarding of the application as per letter dated 28.06.1996 is not from the said office. Thereupon the 5th respondent approached the District Educational Officer, Alappuzha seeking the very same information and he was informed as per Ext.R5(b) that such an application number is not available with the said office. Based on the same it is the case of the 5th respondent that the statement in Ext.P12 by the Deputy Director of Education appears to be a fabricated one, so as to help the 6th respondent. It is further contended by the 5th respondent Manager that if such an application is forwarded by the District Educational Officer as per file No.B2/5997/1996, the District Educational Officer, Alappuzha will not have approved the appointment of Sri.V.J Yeshudas and also Smt.A.S.Ambily in 2011. Therefore the contention taken in Ext.P12 that an application was submitted and forwarded by the DEO to the Manager is only to be rejected. It is further contended that the 6th respondent has having sufficient income from his farm and thereupon he has voluntarily retired from Maruthy Udyoga Mandal Ltd and further that recently on 12.04.2022, Ext.R5(d) application was submitted by the 6th respondent under the Compassionate Employment Scheme to the post of Clerk in which his annual family income is stated to be Rs.60,000/-. It is also submitted that the mother of the 6th respondent is getting family pension which will come around Rs. 20,000 per month and the 6th respondent's wife is working as a teacher earning more than Rs.10,000/- per month and therefore the details of the income shown in the application is fabricated.

7. In W.P.(C)No.7941 of 2022, the petitioner has produced certain documents obtained as per the provisions of the Right to Information Act to substantiate that there is no evidence to show that the mother of the 6th respondent has submitted any application under the Compassionate Appointment Scheme. Ext.P11 communication would reveal that there is no records available regarding the application submitted by the mother of the 6 th respondent and the decision taken thereon. It is further submitted that based on Ext.P14 communication that the brother of the 6th respondent who had submitted an application earlier, was appointed as a permanent employee in the Public Works Department as Driver(Grade-I). The learned counsel for the petitioners relies on Ext.P15 judgment in W.A.No.2178 of 2005 and the judgments in Manager, Kottor A.U.P.School v. State of Kerala and Others [2020 KHC 845], Umesh Kumar Nagpal v. State of Haryana and Others [1994 KHC 1178], Sameena A.R. v. State of Kerala and Others [2015 (5) KHC 497], Naduvathur U.P.School and Another v. Bijeesh K. and Others [2019 (3) KHC 472], Deepak v. Secretary, General Education Department [2002 KHC 771], Lakshmi K.T. v. State of Kerala and Others [2021 (6) KHC 448], Shreejith L. v. Deputy Director(Education) Kerala and Others [2012 KHC 4348], Sivamurthy v. State of Anjdhrapradesh [2008 KHC 4869], State of Himachal Pradesh and Another v. Shashi Kumar [2019 KHC 6077] and the judgment in Shimjuraj K. P. and Others v. State of Kerala and Others [2016 (3) KHC 782] in support of his contentions, whereas the respondents relies on the judgments in Manager, S.N.G.S. High School v. Reji Sagar D.R. and Others [2008 (1) KHC 922], Unnikrishnan K.M. v. Manager, C.A. High School, Peruvamba and Others [2010 (1) KHC 285] and the judgment in Soopy Haji K. K. v. State of Kerala and Others [2009 (2) KHC 702] in support of their contentions.

8. I have heard the rival contentions on both sides.

9. Before going into the merits of the contentions raised, it is profitable to consider the manner of disposal of the revision petition submitted by the petitioner in W.P.(C) No.9268/2022. The said revision has been filed invoking the provisions of Rule 92 Chapter XIV A KER. Rule 92 provides the power of the Government on their own motion or otherwise to call for the records of the case, and revise any order passed by a subordinate authority. When the revision is filed it was incumbent on the part of the Government to consider the contentions of the petitioners and take a decision on the revision petition on merits. Ext.P16 is the revisional order in respect of the petitioner in W.P. (C)No.9268/2022. A strange reason has been stated for rejecting the revision that the Manager has not obeyed the original order and the orders in appeal and therefore, there is violation of the provisions of the Kerala Educational Act and Rules, and in view of the same the revision petition is liable to be dismissed. I am of the view that the said reason for rejecting the revision petition is absolutely arbitrary and unjust. It is those original orders and appellate orders which are sought to be revised by filing the revision petition under Rule 92 Chapter XIV A KER and therefore the Government was bound to hear and dispose of the revision on its merits but on the other hand the Government has rejected the revision petition stating that the order under revision is not complied by the Manager. Such a stand of the Government cannot be accepted at all.

10. Going by the averments in the counter affidavit of the 6th respondent, on the death of the father of the 6th respondent, his mother submitted an application on 15.05.1996 for compassionate appointment and no action was taken on the same. Later, when a Full Time Menial vacancy has arisen in the school, the brother of the 6th respondent, who is the elder son of deceased Vijayan, on 24.02.2004, submitted an application, ie., almost after 8 years after submitting the initial application by the mother of the 6th respondent and the 6th respondent herein has admittedly submitted Ext.P3 application only on 12.04.2017, ie., almost 21 years of the alleged application submitted by his mother. Though it is claimed that an application has been submitted by the mother of the 6th respondent as early as in 1996 and it is contended that no decision has been taken on the application, no action has been taken on the non-consideration of the application or the rejection of the application if any submitted by the mother of the 6th respondent. Further, it is admitted by the counter affidavit of the 6 th respondent that later on when the vacancy of Full Time Menial occurred, the 6th respondent's brother has made an application, which was rejected for not having filed the application within time. The said rejection order is also not challenged. It is very long thereafter that the 6th respondent has filed this application. The claim of the 6th respondent is that since original application was filed by the mother as early as in 1996, delay cannot be attributed on the part of the 6th respondent in submitting an application in 2017 and the said contention has been accepted by the authorities as per the impugned orders. Another aspect to be noted is that after the mother made an application and according to the 6th respondent, the same was pending consideration, two appointments were made ie., V.J. Yesudas and A.S. Ambily. Both these appointments were approved by the District Educational Officer. If the 6th respondent's mother had a claim to the said post, naturally she would have challenged the appointment of V.J. Yesudas and A.S. Ambily, since the same was made overlooking the superior claim of the 6th respondent's mother being a 51 B claimant of Chapter XIV A KER. Admittedly there is no averment in the counter affidavit that the said appointment was challenged at any point of time and it is only when the petitioners in these cases were appointed, the 6th respondent has made a claim based on Ext.P3 application filed in 18.12.2017 under the Compassionate Appointment Scheme. It is in the above said factual background that the issue involved in these cases has to be considered.

11. Rule 51 B of Chapter XIV A KER deals with compassionate appointment to dependent of an aided school teacher dying in harness. Rule 51B 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”

Rule 9A of Chapter XXIV A KER deals with similar provisions for appointment to dependent of non-teaching staff of an aided school dying in harness. Therefore, going by Rule 51B Chapter XIV A KER, the appointment shall be governed by the Government order relating to employment assistance to the dependents of Government servants dying in harness. Going by the counter affidavit filed by the 4th respondent, the rule applicable in the facts of the present case is G.O.(P)No.12/99/P&ARD dated 24.05.1999. The said Government Order dated 24.05.1999 was issued in supersession of all existing orders to regulate appointment under the Compassionate Appointment Scheme where the provisions have been made most stringent, especially the time limit for preferring application. Clause 19 of the said Government Order dealing with 'the time limit for preferring application' reads as follows:

“The time limit for preferring application

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

Admittedly the teacher, who is the father of the 6th respondent died on 29.02.1996. Therefore, going by the said rules application ought to have been filed within a period of two years from the date of death and in case of a minor, within a period of three years after attaining majority. A perusal of Ext.P6 order, whereby the claim of the 6th respondent was rejected reveal that 6th respondent is born on 30.04.1980 and therefore, he ought to have made an application on or before 30.04.2001, the date on which three year period is over after he attained majority. But the present application has been filed only in 2017, ie., after 16 years of the 6th respondent being a major. A perusal of the orders impugned in these writ petitions would reveal that the claim of the 6th respondent was found to be sustainable based on the fact that the original application submitted by his mother for herself was within the time limit prescribed and therefore, this being a continuation of the claim, the application submitted by the 6th respondent should be treated as filed within time. Yet another reason stated for allowing the claim of the 6th respondent is that the Human Rights Commission as per Ext.P4 proceedings directed the Education Authority to consider the claim on a finding that the non-grant of appointment to the wife or children of the deceased appears to be a fault on the part of the Manager and the authorities of the Education Department while considering the claim has also relied on Ext.P4 order passed by the Human Rights Commission. The reliance placed on Ext.P4 order of the Human Rights Commission is in violation of the direction issued in Ext.P10 judgment, where in paragraph 10, this Court has directed consideration of the statutory appeal preferred by the petitioners and the authority concerned was directed to consider the claim of the 6th respondent herein(51 B claimant) untrammelled by anything contained in Ext.P4 order of the Kerala Human Rights Commission, but strictly in terms of the provisions of the Kerala Education Act and Rules, as also the judicial precedents covering the filed. Therefore, there is a clear interdiction regarding placing reliance on Ext.P4 order of the Kerala Human Rights Commission by this Court but overlooking the same that the order impugned was passed clearly relying on the said order of the Human Rights Commission for finding that the 6th respondent is entitled for appointment under the Compassionate Appointment Scheme.

12. Now what remains to be considered is finding by the authorities that since the mother of the 6th respondent made an application within the time and therefore, treating the application submitted by the 6th respondent as a continuation of the earlier claim, the same could be treated to have been filed within time. The 6th respondent has placed reliance on three judgments of this Court in support of his contention. First of which is the case of Manager, S.N.G.S. High School's case cited (Supra) wherein this Court has held that the right of appointment of a dependant of a teaching staff or non teaching staff who died in-harness, is a statutory right and whenever there is a vacancy the Manager has to inform the dependant about the vacancy and if there is any defect in the said application, it is for the Manager to get it cured and that cannot be stated as reason for denying the claim of the applicant. Further, it is held that the Manager can make appointment from the open market, only if there is no claimant under Rule 43 or Rule 51A or Rule 51B of Chapter XIV A or Rule 9A of Chapter XXIV A KER. Going by the said judgment, it is the duty of the Manager to alert the dependant of a teaching staff or a staff who died in harness about the vacancy that has arisen and the entitlement of the legal heir for appointment under the Compassionate Appointment Scheme. I am of the view that the said principle laid down by this Court in the above stated judgment cannot be applied in the facts of the present case, inasmuch as even going by the averments of the 6th respondent an application has been filed as early as in 1996, though refuted by the 5th respondent Manager in the counter affidavit producing document contended that no such application was ever preferred by the mother of the 6th respondent. Whatever that be, since an application has been submitted soon after the death of the deceased employee, the issue regarding the duty of the Manager to alert the legal heirs about the availability of the vacancy does not arise in the facts and circumstances of the present case. Yet another aspect to be noted is that even if the contention of the 6th respondent is accepted that the mother of the 6th respondent has submitted an application and the same was not considered, but two other persons as stated above, ie., V.J.Yesudas and A. S. Ambily were appointed. If the said appointments were made overlooking the claim of the applicant, the District Education Officers ought not have approved the same and even if it is approved, it is for the mother of the 6th respondent who was the applicant at that point of time to challenge the same in appropriate proceedings. As regards the non-consideration of the application submitted by the mother and as regards the appointment of Sri.V.J.Yesudas and Smt.A.S.Ambily overlooking her claim, no steps were taken by the mother of the 6th respondent for challenging the said appointment. Therefore, I am of the view that the judgment in Manager, S.N.G.S. High School's case cited (Supra) will not apply to the facts and circumstances of the present case. Similar findings were entered by this Court in Unnikrishnan K.M.'s case cited(Supra) wherein also this Court has found that the Manager has a duty to give compassionate employment to a claimant, if he is eligible and applies as per the relevant Government Order. This Court in Soopy Haji K. K.'s case cited (Supra) has held that whenever a vacancy arises in which a candidate for compassionate appointment could be accommodated under Rule 51B, the Manager has to do so and it is not for the dependant of the employee to make any application at that time and further that the fact that there was no vacancy in the school during the relevant period is not a ground for rejection of the application. Since the application of the 6th respondent was submitted in 2017, the relevant Rule applicable is the Government Order dated 24.05.1999, which contains a rider that the applications should have been filed within two years of the death of the deceased employee or within the period of three years from the date of attaining majority in case of a minor.

13. In Ext.P15 judgment passed by this Court in W.A.No.2178 of 2005, an application for employment under the dying in harness scheme was filed in December, 1994, that is after the lapse of almost 15 years of the death of their bread-winner. The said application was rejected by the Manager and the learned Single Judge has upheld the said contention and dismissed the original petition and the Division Bench of this Court has considered the appeal and held that Section 51 B of Chapter XIV A KER is meant for giving employment to one of the dependants of the deceased employee and not to one of his legal heirs. The Court further held that though the appellant might have been a dependant of the deceased employee in 1979, it cannot be said that he was a dependant when he made the application in 1994, after a lapse of 15 years and dismissed the appeal. In Manager, Kottor A.U.P.School 's case cited (Supra) this Court has held that the statutory scheme does not envisage a dependant as always a dependant under the KER. The Scheme for compassionate employment attained statutory recognition through Rule 51B of Chapter XIV A KER and till 1999 there was no time limit prescribed and later on the basis of the decision of this Court in Sajeesh Babu v. State[1996 KHC 355] the Government came up with the present Government Order dated 24.05.1999, in which a time limit of two years from the date of death of the Government servant and three years after attaining majority in respect of minor were fixed as the time limit for preferring application of compassionate appointment. Taking into consideration the delay in making an application, it was held that the delay in making the application will dis-entitle the petitioner therein for getting appointment under the Compassionate Appointment Scheme as the said Scheme is meant to tide over the sudden financial crisis that has fallen upon the dependant of the Government servant due to his untimely death and the belated claims for such employment should not be entertained. A similar view was taken by the Apex Court in Umesh Kumar Nagpal's and Lakshmi K.Ts cases cited (Supra). In Sameena A.R. 's case cited (Supra) it was held that when an application is preferred out of time, no right for appointment is created. Later this Court in Naduvathur U.P.School 's case cited (Supra) has held that an application seeking compassionate appointment filed 14 years after an incumbent became a major, the Manager cannot be compelled to consider such belated claim, since the period prescribed for filing application is three years from attaining majority. Since the object of compassionate appointment is to enable the family to overcome financial crisis which it faces at the time of death of the sole breadwinner, the compassionate appointment cannot be claimed and offered after long lapse of time and after the crisis is over. This Court in Deepak 's case cited (Supra) has also held that to get the benefit under the dying in harness scheme, the date of death and the date of application must have some proximity and the claim of the dependant will not be kept open for ever on the death of any employee. In Sivamurthy 's case cited (Supra) the Apex Court considered the entitlement for appointment under the Compassionate Appointment Scheme and held that the compassionate appointment being an exception to the general rule of appointment, it can only be claimed strictly in accordance with the terms of the Scheme and not by seeking relaxation of the terms of the Scheme. Similar view was taken in the case of Shashi Kumar 's case cited (Supra). This Court in Shimuraj K.P.'s case cited(Supra) has held that once the right of  compassionate appointment was exercised and left abandoned or lost, for the fault of the candidate, it cannot be exercised again as the said right is not a persisting right for ever.

14. In the light of the above facts and circumstances and the law on the point, the 6th respondent cannot take on the application submitted by his mother in 1996 to claim the benefit of Rule 51B of Chapter XIV A KER. The application which is claimed to be filed by the mother though not considered going by the contention of the 6th respondent and admittedly two other persons were appointed after the said application was filed, no challenge was made by the mother of the 6th respondent. Later the brother of the 6 th respondent applied, which was also rejected for not having filed the said application within the time limit prescribed as per the Government Order. Now the 6th respondent has filed application long after he has attained majority. In view of the above facts and circumstances, I am of the view that the claim of the 6th respondent for compassionate appointment cannot be considered at this distance of time.

15. In view of the above, the orders impugned in these writ petitions are accordingly quashed and consequently there will be a direction to the authority concerned, ie., the 4th respondent in W.P. (C)No.9268 of 2022 to approve the appointment of the petitioners in both these writ petitions as Full Time Menial and as Clerk and grant all consequential benefits including arrears of salary. A decision in this regard shall be taken within an outer limit of three months from the date of receipt of a copy of this judgment.

16. With the above said directions these writ petitions are disposed of.