JUDGMENT

Ramesh Ranganathan, C.J. (Oral)

Delay Condonation Application No. (CLMA) No. 8270 of 2019

The application, seeking condonation of delay of 25 days in preferring the appeal, is not opposed, and the delay is, therefore, condoned.

2. This appeal is preferred by the Committee of Management (fifth respondent in WPSS No. 3088 of 2018). The fifth respondent in this appeal filed WPSS No. 3088 of 2018 seeking a mandamus commanding the respondents to appoint the petitioner under the provisions of the dying in harness rules; and a mandamus commanding and directing respondent Nos.5 & 6 to send necessary papers for his appointment under the provisions of the dying in harness Rules.

3. Facts, to the limited extent necessary, are that the petitioner's father was working as an Assistant Teacher (L.T. Grade) in the applicant-College when he was found to be suffering from lung cancer. On completion of 20 years of service, he sought voluntary retirement by his letter dated 01.08.2015. The appellant passed resolution dated 15.08.2015 (allegedly in his presence) accepting his request for voluntary retirement. This resolution, passed by the Committee of Management on 15.08.2015, was forwarded to the Chief Education Officer, through the Block Education Officer, on 17.08.2015. The Block Education Officer, in turn, forwarded the proposal to the Chief Education Officer, who received it on 21.08.2015. The Chief Education Officer did not pass any orders, on the proposal forwarded to him by the Committee of Management through the Block Education Officer, for nearly two months before which the appellant-writ petitioner's father died because of lung cancer on 26.09.2015.

4. The appellant-writ petitioner submitted an application, for being provided compassionate appointment under the dying in harness rules, on 16.05.2018; and, despite the Chief Education Officer directing the appellant to submit such a proposal, they failed to do so. Aggrieved thereby, the appellant-writ petitioner invoked the jurisdiction of this Court. It is not in dispute that the Dying in Harness Rules are applicable to Government aided institutions, including the appellant herein; and, but for the voluntary retirement application submitted by his father, the petitioner would have been entitled to the benefit of compassionate appointment, under the dying in harness rules, treating his father to have died while in service.

5. The appellant's claim, however, is that the request for voluntary retirement was accepted by resolution dated 15.08.2015 and, on such acceptance, the master and servant relationship ceases; since the petitioner's father was alive on 15.08.2015, when he retired from service, the provisions of the dying in harness rules, which are applicable only to employees who died while in service, would not apply to the case on hand; pursuant to the resolution dated 15.08.2015, whereby the Committee of Management accepted the VRS application of the father of the appellant-writ petitioner, they had forwarded the pension papers of the petitioner's father; in any event, the delay on the part of the Chief Education Officer, in considering the resolution, cannot result in the Committee of Management being forced to provide the petitioner compassionate appointment under the dying in harness rules, when these Rules do not apply to an employee who had retired from service.

6. In the order under appeal, the learned Single Judge took note of the content of the counter affidavit, filed on behalf of the Director and the Chief Education Officer, that the voluntary retirement application of the petitioner's father was not accepted till his death; the Chief Education Officer had called upon the management of the concerned school to produce the relevant records to appoint the petitioner on compassionate grounds; and the Committee of Management had not supplied the records as desired. The learned Single Judge observed that the relationship of master and servant continued between the petiti