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KERALA HIGH COURT
K.M. Joseph & K.Harilal, JJ.
Divya —Petitioner
versus
State of Kerala —Respondent
W.P. (Civil) No. 23964 of 2011
Decided on 25.05.2012
For the Petitioner:Mr. S. James Vincent, Advocate.
For the Respondents:Mr. G. Sreekumar (Chelur), Mr. K. Ravi (Pariyarath) & Mr. C. R. Shyam Kumar, GP, Advocates.
IMPORTANT POINT
The grant or with holding of consent is done by a private party. The law does not mandate that the party must give consent.
Headnote:Civil Procedure Code, 1908— Order 39 Rules 1 and 2 —Compassionate Appointment—Petitioner’s father dying in harness— Petitioner filed suit for an interim mandatory injunction against respondent, whom her father had remarried alter divorce from her mother, compelling her to give consent to compassionate appointment sought by petitioner—It justified—Held unless there is a legal right with the party seeking mandatory injunction and a duty on part of respondent, who is faced with an application for interim mandatory injunction, party seeking a mandatory injunction must be turned off the gates—Petitioner had no legal right to insist that respondent must give her consent—Equally respondent had no legal duty enforceable in law to give her consent—No error found in the order of court below refusing to grant of interim mandatory injunction—Both writ petition and appeal held liable to be dismissed. (Para 13 to 15)
Result: Ordered Accordingly
K.M. Joseph, J.—The Writ Petition and the first appeal are filed by the same person. The Writ Petition came to be filed first. The prayers in the Writ Petition are as follows:
“i) Issue a writ of certiorari, quashing Ext.P12 to the extent it holds “it is for the Authority which intends to act upon compassionate ground to consider the same”, and “the Civil Court can enforce only individual civil rights;
ii) Direct the 6th respondent to give the consent in terms of Clause 14 of G.O(P) No. 12/99/P&ARD dt.24.05.1999, forthwith.
iii) Alternatively, grant a declaration that the petitioner is not liable to furnish the consent from the 6th respondent for securing compassionate appointment in terms of Clause 14 of GO.(p)No.12/99/P&ARD dated 24.05.1999; and direct the 4th respondent to waive the condition for furnishing the letter of consent from the 6th respondent for . securing compassionate appointment in terms of the GO. dt.24.05.1999, as prayed for in Ext.P7 representation and suggested by the 4th respondent in Ext.P8Ietter, and as directed by the learned Subordinate Judge in Ext.P12 order.” -
2. Subsequently, it appears that the petitioner in the Writ Petition has filed the appeal challenging Ext.P12 in the Writ Petition. Briefly put, the facts may be noticed.
The petitioner/appellant is the daughter of one late Mr. Sathyakumar, who was employed as an Assistant Sub-Inspector of Police. He died in harness on 20.04.2008. Sri. Sathyakumar and the mother of the petitioner/appellant got divorced as per the judgment of the Family Court, Trivandrum. Further the case of the petitioner is that the late Sathyakurnar got married to 6th respondent in the Writ Petition, who is the respondent in the appeal hereinafter referred to as the respondent. It is not in dispute that the petitioner/appellant has filed O.S.No.163/2010 claiming partition before the Subordinate Judges Court Nedumangad. The petitioner/appellant applied for compassionate appointment on 22.09.2008 vide Ext.P2 in the Writ Petition. It was returned vide Ext.P3 directing her to produce various documents including the consent of family members, as per the Heirship Certificate. The petitioner/appellant issued Ext.P4 notice requesting the 6th respondent to give consent. The petitioner/appellant sought information under the Right to Information Act.Ext.P5 and P5( a) are the copies of the reply given by the 4th respondent in the Writ Petition. It is inter alia stated that various retiral benefits, of which the petitioner has 2/3rd right allegedly excepting P.F., which the deceased had received and the monthly family pension has been sanctioned. Thereafter the petitioner/appellant applied as per a fresh perform a vide Ext.P6. The petitioner/appellant also made a representation as Ext.P7. Then the petitioner/appellant filed Ext.P10 I.A. before the Subordinate Judges Court in the partition suit for an interim mandatory injunction against the respondent compelling her to give consent to the compassionate appointment sought by the petitioner/appellant in terms of C1.14(c) of G.O(p) No.12/99/P&ARD dated 24.05.2009. Ext.P12 in the Writ Petition purports to be the order passed by the learned Subordinate Judge, Nedumangad rejecting the application. It is the very same order which has been challenged in the appeal. It is the case of the petitioner/appellant that the appeal came to be filed on the basis of the observations made by the Court that the appeal is the proper remedy.
3. We heard the learned counsel for the petitioner/appellant, the learned counsel appearing on behalf of the respondent and also the learned Government Pleader.
4. The learned counsel for the petitioner would submit that the petitioner is a co-owner. The court below ought to have directed in the circumstances of the case the respondent to give consent. He would further point out that the respondent is actually employed. She had already received various benefits. On the other hand the petitioner/appellant is
