The Judgment of the Court was delivered by

K. Balakrishnan Nair, J.:— The point that arises for decision in these appeals is the sustainability of the claim for appointment of the dependent of anon-teaching staff, who died in harness, in an aided school as a Teacher. W.P(C) Nos. 16399 & 10200/2007 were disposed of by the learned single Judge by a common judgment dated 10.12.2007 The Manager, S.N.G.S.H.S, Kadakkodu has filed W.A Nos. 98, & 138/2008, challenging the judgments in those Writ Petitions. W.A No. 149/2008 is filed by an affected teacher, challenging the judgment in W.P(C) No. 16399/2007. These three appeals are heard and disposed of together by this common judgment.

W.A No. 98/2008:

2. The above Writ Appeal filed by the Manager against the judgment in W.P(C) No. 16399/2007 is treated as the main case. The brief facts of the case are the following: The 1st respondent is the writ petitioner. His father was a Peon in the school managed by the appellant The said employee died on 14.10.2000 At the relevant time, the 1st respondent was a minor, aged 16. The claim of the said respondent for appointment under the dying-in-harness scheme is the subject-matter of this appeal. The 1st respondent's mother, soon after the death of her husband, submitted an application for employment under the dying-in-harness scheme to the Deputy Director. The said officer by Ext. P5 communication, informed her that the writ petitioner can apply for appointment under the dying-in-harness scheme, as and when he attains majority and thereupon, his application will be considered by the Manager in accordance with law. The writ petitioner passed the S.S.L.C examination in March, 1999 and he attained majority on 21.4.2002 He cleared the Sanskrit Teachers Examination held in April, 2003. The writ petitioner soon thereafter, moved the Manager and the Deputy Director of Education for employment under the dying-in-harness scheme. His application was forwarded by the Deputy Director to the Manager, by Ext. P6 communication dated 27.11.2003, directing to consider his claim for appointment under R. 51B of Chap. XIVA, K.E.R Thereafter, the Writ Petitioner submitted an application for appointment in the prescribed form to the Manager on 7.2.2005, a copy of which was produced as Ext. P7 in the Writ Petition. The post claimed by him in Ext. P7 was Lower Grade Sanskrit Teacher. The Manager by Ext. P8 communication dated 14.3.2005 informed the writ petitioner that since his father was working as a Peon, he is entitled to be considered for appointment only to the category of non-teaching staff under R. 9A of Chap. XXIV A, K.E.R It was also informed that a vacancy of Clerk arose in the school on 1.10.2002, but he failed to apply for the same, though he attained majority on 21.4.2002 The Writ Petitioner was also told that his claim for appointment under the compassionate employment scheme will be considered in the next arising vacancy of non-teaching staff in the school. Aggrieved by Ext. P8, the writ petitioner preferred Ext. P9 representation before the District Educational Officer, Kottarakkara, claiming appointment in the vacancy of Lower Grade Sanskrit Teacher, which arose with effect from 1.6.2005 On receipt of the said representation, the D.E.O forwarded the same to the Manager along with Ext. P10 covering letter dated 16.1.2006, directing him to consider the writ petitioner's claim for appointment under R. 51B of Chapter XIV A of the K.E.R But, ignoring his claim, the Manager appointed the 4th respondent as Junior Sanskrit Teacher with effect from 1.8.2006, by Ext. P11 order. The writ petitioner, aggrieved by Ext. P11, filed W.P(C) No. 21053/2006, challenging the said order. During the pendency of the case, a vacancy of Peon arose in the school and the Manager appointed the Writ Petitioner in that vacancy. So, W.P(C) No. 21053/2006 was disposed of, giving liberty to the Writ Petitioner to ventilate his grievance, if he is aggrieved by his appointment as Peon. Though, the petitioner was appointed as Peon, neither his appointment was approved nor his salary was paid, as there was a Full Time Menial, who is the 5th respondent herein, who staked his claim for appointment to the post of Peon. W.P(C) No. 10200/2007 filed by him, claiming the post of Peon, was pending before this Court. In view of the above background, the writ petitioner filed Ext. P14 representation dated 3.4.2007 before the D.E.O, praying not to approve the appointment of the 4th respondent. Thereafter, W.P(C) No. 16399/2007 was filed, challenging Exts. P8 and P11 and also seeking consequential reliefs. Acounter affidavit was filed by the appellant herein on behalf of himself and the 4th respondent. In the counter affidavit, it was submitted by the Manager that a vacancy in the post of Clerk arose in the school on 1.10.2002 But, the petitioner did not apply for the said post. Later, a Junior Sanskrit Teacher retired on 30.6.2005 and in that vacancy, the 4th respondent, who is fully qualified for the post, was appointed by Ext. P11 order on 1.8.2006 It was also submitted that pursuant to Ext. R3(a) interim order of this Court in W.P(C) No. 21053/2006 filed by the writ petitioner, he was appointed as Peon without prejudice to his contentions. The application submitted by him on 7.2.2005 for the post of Lower Grade Sanskrit Teacher was defective. He cured the defect only when the same was pointed out by the Manager. The Manager is not bound to appoint the petitioner in the post of his choice. He was rightly offered the post of Peon. He cannot demand the post of a Teacher as of right. Since the post of Teacher is already filled up, he cannot be considered for appointment to that post. Therefore, the Manager prayed for dismissal of the Writ Petition. The writ petitioner filed areply affidavit, dealing with the averments of the Manager in the counter affidavit.

3. The learned single Judge after hearing both sides, allowed the Writ Petition, quashing Ext. P11 order of appointment of the 4th respondent and also directing to appoint the writ petitioner in his place. The Manager was directed to appoint the petitioner within two weeks from the date of receipt of the copy of the judgment and the 2nd respondent D.E.O was directed to approve the same within one month. It was also ordered that the appointment shall take effect from 1.8.2006 Feeling aggrieved by the judgment of the learned single Judge, the Manager has preferred this appeal.

4. The appellant raised the following grounds, to impugn the judgment of the learned single Judge. Since the writ petitioner is already appointed to the post of Peon, he cannot seek further appointment to a higher post. As the application of the petitioner was defective, the same was not considered. The judgment of the learned Single Judge is against the decisions of the Apex Court in Life Insurance Corporation of India v. Asha Ramachhandra Ambekar (Mrs.) ((1994) 2 SCC 718) and Umesh Kumar Nagpal v. State of Haryana ((1994) 4 SCC 138). The Writ Petitioner cured the defect in his application only on 4.8.2006 and therefore, he can aspire for the vacancy which arose only thereafter.

5. We heard learned counsel Sri. V.A Muhammed for the appellant. He reiterated the aforementioned contentions. We also heard Sri. M.V Thamban, learned counsel for the appellant in the connected Writ Appeal No. 149/2008.

6. The relevant Rule governing the right of the dependent of a non-teaching staff who died in harness, to get appointment, is R. 9A of Chap. XXIV A, K.E.R The said Rule reads as follows:

“9A. The manager shall give employment to a dependent of the non-teaching staff of an aided school 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 appointment.”

(Emphasis supplied)

7. The words of R. 9A are identical to R. 51B of Chap. XIV A, K.E.R The said Rule 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.”

(Emphasis supplied)

8. We notice that the right of the dependent of a teaching staff or a non-teaching staff, who died in harness, is a statutory right. It is not a concession granted to the dependents. Whenever there is a vacancy, the Manager has to make the appointment. So, he should alert the dependents of the deceased employee regarding the occurrence of the vacancy, so that any one among them who is qualified, can apply for the post. If there is any defect in the application, the Manager has to give the applicant time to rectify the mistake and thereafter, he should appoint him. The general principles stated by the courts concerning the appointment under the dying-in-harness scheme in Government service have no application here. A vacant post in the Government will have to be filled up by inviting applications and giving every one a chance to apply, in accordance with the Rules governing appointment to such posts. The mandate of Arts. 14 and 16 of the Constitution of India compels to follow the above course. The appointment of the dependent of an employee, who died in harness is an exception to the above rule and is a concession granted by the Government. The said right should be exercised, subject to the mandate of Arts. 14 and 16 of the Constitution of India. But, if a vacancy arises in an aided school, no advertisement is made and no selection is made from among the best candidates, who apply pursuant to the advertisement. The Manager appoints a person of his choice. So, the principles laid down by the courts relating to appointment under the dying-in-harness scheme in public services cannot be mechanically imported or applied to the appointments under R. 5IB or R. 9A in an aided school. One of us had occasion to consider a similar case in Baiju Kumar K.C v. The District Educational Officer & Another (2003 (3) KLT 240). In the said decision it was held as follows:

“6…………The opening sentence in R. 51B is couched in mandatory words. S. 7(2) of the Kerala Education Act says that ‘the Manager shall be responsible for the conduct of the school in accordance with the provisions of the Act and Rules made thereunder.’ R. 9 of Chap. III also states that the Manager shall be responsible for the conduct of the school strictly in accordance with the provisions of the Kerala Education Act and Rules thereunder. So, in the light of the provisions contained in S. 7 of the Act and R. 9 of Chap. III of the Rules, the Manager is bound to run the school in accordance with the provisions of the Act and Rules. He has to respect and obey the mandate of R. 51B also. The said Rule creates a corresponding right in the dependent of a deceased employee. R. 51B does not say that the dependent of a teacher cannot be appointed as a non-teaching staff. If the vacancy of Peon/Attender had to be filled up by a R. 43 claimant and only the vacancy of Full Time Menial was available, the Manager should have informed the petitioner regarding the availability of that vacancy and offered him appointment as Full Time Menial.

9. A number of cases are coming up before this Court under R. 51B of Chap. XIVA of the K.E.R The Managers in most of the cases contend that the application was not submitted in time, it was not in the prescribed format etc. All these contentions illcome from the mouth of the Manager in the light of the mandatory provision in R. 51B which says that the Manager shall give employment to a dependent of an aided school teacher dying in harness. When a teacher of his school dies, it must be presumed that the Manager knows who are the dependents and whether anyone of them is eligible for appointment. Going by the provisions of the Act and Rules, he has to offer appointment to them whenever a suitable vacancy arises. He cannot take shelter behind the plea that the dependent did not apply in time etc. The Manager alone knows, when the vacancy arises. It is impossible for the dependent to keep track of the vacancies that may arise in a school or schools under the management. The claimant cannot know whether anybody else is appointed overlooking his claim. The Manager can inform the dependent about the vacancy and direct him to apply in the prescribed format within a time frame. Atleast these positive actions can be implied from the mandatory words of R. 51B. It cannot be read down to mean that only if the dependent applies in time and pesters him, he need act under R. 51B. In the absence of provisions containing procedures or orders for filling up the lacunae, this grey area is a breeding ground for so many disputes and litigations. I think the Government should bestow its attention to this aspect.

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11. The decisions of the Apex Court in State of Haryana v. Umeshkumar Nagpal (1994 (3) SC 525) and other cases were concerning appointment to public services under the dying in harness scheme. So, if a candidate is not appointed on compassionate ground, the said vacancy will go to a meritorious candidate. So, any appointment to an ineligible candidate to public service otherwise than in accordance with the Rules will result in denial of opportunity to a meritorious candidate. The observations of the Apex Court has to be understood in the light of this crucial aspect. The appointment under the dying in harness scheme is a concession granted by the Government. Normally, in the light of Arts. 14 and 16 of the Constitution of India, every vacancy should be filled up after giving a fair opportunity to all eligible candidates and the most meritorious among them should be appointed. An exception to that Rule is made when an appointment is made on compassionate ground. Therefore, the executive orders granting this concession should always be subject to the mandate contained in Arts. 14 and 16 of the Constitution of India. This is the principle underlying the decisions of the Apex Court. But those decisions cannot be mechanically imported while considering an appointment on compassionate ground in an aided school. The Manager of an aided school can appoint any person having the prescribed qualification. Merit is never a criterion for many educational agencies. In most of the schools, appointments are made on other considerations. Only a very few managements are concerned with the merit of the candidates. So the provisions of Arts. 14 and 16 are not applicable while making appointment to the vacancies in aided schools. Therefore, the observations made by the Apex Court are not applicable to the appointments on compassionate ground in aided schools with its full vigour. Apart from that, the right to get appointment in an aided school on compassionate ground is not a concession granted by any executive order. It is a statutory right. The executive orders governing appointment on compassionate ground in public services is incorporated in the Rule by adoption. It is legislation by reference (See the decision in Mahindra and Mahindra Ltd. v. Union of India ((1979) 2 SCC 529). Unless R. 51B and the relevant orders which form part of that Rule are challenged, the Manager cannot rely on the general observations of the Apex Court to reject the claim of an applicant under R. 51B.”

10. A Division Bench of this Court has referred to the above decision with approval while dealing with the claim of a dependent for appointment under R. 51B in W.A No. 1164/2005. Kurian Joseph, J., speaking for the Bench, held as follows:

“6. While R. 51A deals with the preferential right of the teachers, R. 51B provides for the obligation on the part of the manager to give employment to a dependent of an aided school teacher dying in harness, subject of course to the said dependent satisfying the required conditions. In view of the mandatory expressions used under R. 51B casting an obligation on the Manager to give employment to the dependent of a deceased aided school teacher, the Manager has to offer appointment to the dependent whenever a suitable vacancy arises. As rightly held by a learned single Judge of this court in Baiju Kumar K.C v. The District Educational Officer & Another (2003 (3) KLT 240). ‘he cannot take shelter behind the plea that the dependent did not apply in time etc. The Manager alone knows when the vacancy arises. It is impossible for the dependent to keep track of the vacancies that may arise in the school or schools under the management The Manager can inform the dependent about the vacancy and direct him to apply in the prescribed format within a time frame. Atleast these positive actions can be implied from the mandatory words of R. 51B. It cannot be read down to mean that only if the dependent applies in time and pesters him, he need act under R. 51B’. Since provisions like the one under Note 2 of R. 51A regarding sending of registered notices are absent in R. 51B the learned single Judge expressed the hope that the Government would bestow its attention to those aspects referred to above. Apparently nothing has been done by the Government. Be that as it may, even in the absence of any specific procedure regarding registered notice, prescribed time etc., in view of the mandatory expressions used in R. 51B of Chap. XIV-A, K.E.R, it is fairly clear that it is the duty of the Manager to request the dependents of a deceased aided school teacher to apply in the prescribed format as and when a vacancy arises. If only there is no response from the dependent within a reasonable time as noted in the request, the Manager would be in a position to make appointment from the open market ignoring the statutory claim available to the dependent. In case of ineligibility or if the application otherwise does not require consideration, the Manager has to enter a finding and inform the applicant accordingly. Then alone the manager can proceed to make appointment ignoring the statutory claim. The benevolent piece of legislation would get force and life only if such an interpretation as above is given.”

11. The Special Leave Petition attempted against the above judgment of the Division Bench was dismissed by the Hon'ble Supreme Court on 24.11.2006 We are in respectful agreement with the above statement of the Division Bench regarding the duties of the Manager, emanating from R. 51B. So, when the post of a Clerk arose in the school, the Manager was bound to appoint the writ petitioner. He cannot take shelter behind the plea that the petitioner did not submit any application. Further, the petitioner admittedly applied for appointment to the post of Lower Grade Sanskrit Teacher by submitting Ext. P7 application on 7.2.2005 If there was any defect in that application, it was for the Manager to get it cured. In Ext. P8 communication of the Manager issuedon receipt of Ext. P7 application, he has no case that the said application is defective. The Manager pointed out the alleged defect in the application for the first time only by Ext. R3(c) dated 12.8.2006 The same was done only after appointing the 4th respondent as Lower Grade Sanskrit teacher on 1.8.2006 Soon thereafter the petitioner has cured the defect pointed out by him. The defect in the application is a poor defence for delaying the appointment of the petitioner and appointing a fresh hand, the 4th respondent herein, in the vacancy claimed by the Writ Petitioner. The writ petitioner has accepted the appointment to the post of Peon without prejudice to his contentions, as evident from Ext. R3(a) interim order. The said order reads as follows:

“It is submitted by learned counsel for the petitioner that Manager has offered the post of Peon in the school to the petitioner though he had staked a claim for the post of Junior Sanskrit Teacher. Learned counsel submits that petitioner is prepared to accept the offer and join as Peon in the school without prejudice to his right to claim the above post and also to challenge the appointment of respondent No. 4 as Junior Sanskrit Teacher and also the contentions raised by him in Ext. P10 appeal preferred by him before the District Educational Officer. The above submission is recorded. It will be open to the petitioner to join duty as Peon in the above terms, if so advised.”

12. So, the acceptance of the post of Peon pursuant to the above quoted order will not preclude the writ petitioner from claiming the post of Lower Grade Sanskrit Teacher. It is not a case of accepting one post unconditionally and thereafter seeking a better post. Having regard to the facts of the case, the decisions of the Apex Court cited by the learned counsel for the appellant have no application. The decision in L.I.C v. Asha Ramachhandra Ambekar, (1994) 2 SCC 718) only lays down the principle that the claim of the applicant for appointment under the dying-in-harness scheme hasto be considered in accordance with the regulations framed by the L.I.C It was held that no benevolence can be shown de hors the provisions of law. The principles laid down in that case have no application to the facts of this case. The decision in Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138), for the reasons explained above, will not apply to appointments in aided schools under the dying-in-harness scheme. The said decision deals with appointment to public services. The Government order governing appointment under the dying-in-harness scheme is incorporated in R. 9A of Chap. XXIV-A and in R. 51B of Chap. XIV-A of the K.E.R The said G.O provides for considering the claim for appointment of a minor when he becomes major. Further, vacancies in aided schools arise only occasionally. Therefore, the principles laid down by the Apex Court concerning appointment to public services under the dying-in-harness scheme, like grant of appointment, immediately after the death of the bread-winner to bring immediate succour to the family etc., are not applicable and unworkable, as far as aided schools are concerned. Further, the writ petitioner was appointed to the post of Peon, to which the 5th respondent has staked his claim. Therefore, the appointment of the petitioner to the post of Peon is not approved also. Having regard to the facts of the case, we have no doubt in our mind that the writ petitioner was the rightful claimant for appointment to the post of Lower Grade Sanskrit Teacher. The appointment of a candidate from the open market in the vacancy of a Lower Grade Sanskrit Teacher long after the receipt of application from the petitioner for the same, is plainly untenable. The Manager can make appointment from the open market, if only there is no claimant under R. 43 or R. 51A or R. 51B of Chap. XIV A or R. 9A of Chap. XXIV A, K.E.R The learned single Judge has, therefore, rightly interfered with Ext. P11. We agree with the reasons and conclusions of the learned single Judge. No ground has been made out warranting interference with the judgment under appeal. In the result, the appeal fails and it is dismissed.

W.A No. 149/2008: In view of the judgment in W.A No. 98/2008, this Writ Appeal also fails and it is accordingly dismissed.

W.A No. 138/2008:

13. This appeal is filed against the judgment in W.P(C) No. 10200/2007. The 1st respondent herein was the writ petitioner. He is a Full Time Menial, working in the school. He staked his claim for appointment to the post of Peon, in which the 5th respondent was appointed under the dying-in-harness scheme. The claim of the writ petitioner was resisted by the Manager, contending that the scale of pay of Full Time Menial and that of Peon is one and the same and therefore, his claim for promotion is unsustainable. But, going by R. 1 of Chap. XXIV-A, K.E.R, it can be seen that the category of Sweeper/Watcher etc., is a feeder category for appointment to the post of Peon. This is clear from Explanation I to sub-r. (2) of R. 1 of the said Chapter. Therefore, the Writ Petitioner's claim for appointment as Peon, in which the 4th respondent was appointed, was rightly upheld by the learned single Judge. So, we find no reason to interfere with the judgment of the learned single Judge. In the result, the Writ Appeal is dismissed.