Madras High Court
V.Rajasekaran vs The Government Of Tamilnadu on 20 September, 2010
Author: D. Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.09.2010 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.No.41474 of 2006 (T) (O.A.No.2324 of 2000) V.Rajasekaran ... Petitioner vs. 1. The Government of Tamilnadu, rep. by its Secretary to Govt., Rural Development Department, Fort St. George, Chennai 9. 2. The District Collector, Kanyakumari District at Nagercoil. ... Respondents PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.2324 of 2000 to set aside the order of the first respondent made in Letter No.36514/P.A/2/98-6 dated 4.1.2000 and the consequential order of the second respondent issued inNa.Ka.No.D7/4466/2000 dated 6.2.2000 and direct the respondents to regularise the services of the applicant from 31.05.1994 with all attendant benefits. For Petitioner : Mr.L.Chandra Kumar. For Respondents : Mrs.Lita Srinivasan Government Advocate. O R D E R
The petitioner's father was employed as an Office Assistant in the office of the District Collector, Nagercoil. He died on 16.05.1987 while in service, leaving behind his wife and three sons. The petitioner is the 3rd son and he applied for compassionate appointment. The 2nd respondent issued an order dated 04.02.1988, appointing the petitioner as Junior Assistant. While so, the petitioner was terminated by the order of the 2nd respondent dated 21.11.1989 on the ground that the petitioner was not eligible for compassionate appointment.
2. The petitioner's mother made a representation dated 02.08.1993, stating that though there are two elder sons besides the petitioner, those elder sons were not supporting her and are living separately and she requested re-appointment on compassionate grounds to the petitioner. Based on that representation, the 2nd respondent directed the Tahsildar, Thovalai at Puthapandi, to enquire into the indigent circumstance of the family and submit a report. The Tahsildar, submitted a report dated 18.02.1994. He found that the elder sons of the deceased Government employee did not support the family and enclosed the certificates produced by the petitioner along with his report.
3. Based on the report of the Tahsildar, the 2nd respondent again issued the appointment order dated 30.05.1994. However, the 1st respondent issued the order dated 04.01.2000, cancelling the appointment issued to the petitioner on the ground that the eldest son got married only after the death of his father and that both the elder brothers of the petitioner were in employment at the time of the death of the father. Based on the said order dated 04.01.2000, the 1st respondent issued consequential order dated 06.02.2000, terminating the services of the petitioner.
4. The petitioner filed O.A.No.2324 of 2000 (W.P.No.41474 of 2006) to quash the orders dated 04.01.2000 and 06.02.2000 and obtained interim orders. By virtue of the interim order, he continues in service.
5. The respondents filed the reply affidavit and the petitioner filed rejoinder affidavit.
6. Heard Mr.L.Chandra Kumar, learned Counsel appearing for the writ petitioner and Mrs.Lita Srinivasan, learned Government Advocate.
7. The learned Counsel for the petitioner submits that when the petitioner was given appointment by order dated 04.02.1988, the same was terminated by the 2nd respondent by an order dated 21.11.1989, without disclosing how the petitioner was not eligible for the compassionate ground appointment. Further the order dated 21.11.1989 as well as the subsequent cancellation orders and consequential order terminating the petitioner, were passed without hearing the petitioner. Hence the impugned orders are violative of principles of natural justice. Had he been heard, he could have explained that the conclusions in the order dated 04.01.2000 of the 1st respondent was erroneous and it was contrary to G.O.Ms.No.155, Labour and Employment Department, dated 16.07.1993.
8. According to the learned counsel, the Government order contemplates for providing compassionate appointment, to a legal heir, who is not in employment, even if some of the legal heirs are in employment and are not supporting the family of the deceased. In this case the Tahsildar, gave the report that the elder brothers of the petitioner did not support the family of the deceased. Further more the elder brothers were in receipt of a meagre salary when the Tahsildar made enquires and were residing far away from the family of the deceased.
9. The learned counsel also relies on the judgments of the Hon'ble Apex Court, in Union of India and others V. K.P.Tiwari, reported in 2003(9) SCC 129 and also Division Bench of this Court in V.Balakrishnan V. The Joint Director of Agriculture & 3 Ors in W.A.No.1559 of 2009, in this regard.
10. On the other hand, the learned Government Advocate submits that out of the three sons of the deceased Government Servant, two of them were in employment even at the time of the death of the Government Servant. The learned Government Advocate further submits that the Government Servant died on 16.5.1987 and the 1st eldest son got married only on 04.12.1988, i.e. after the death of his father and therefore, the impugned orders are justified and prayed for dismissal of the writ petition.
11. I considered the submissions made on either side. The 2nd respondent issued the order dated 04.02.1988, appointing the petitioner as Junior Assistant on compassionate basis. While so, the 2nd respondent issued the termination order dated 21.11.1989, stating that he was not eligible for compassionate appointment. It is a brief order without reasons therefor. The order dated 21.11.1989 is as follows:
"Thiru.V.Rajasekaran, S/o. Late Thiru Vethamoorthy was temporarily appointed as Junior Assistant in Agasteeswaram Panchayat Union as per Collector's proceedings first cited. The service of Thiru. V.Rajasekaran, Junior Assistant are terminated with immediate effect as he is not eligible for appointment on compassionate ground."
12. As rightly contended by the learned counsel for the petitioner, the order does not contain any reason except simply stating that the petitioner was not eligible. Before passing the said order, the petitioner also was not heard. When the mother of the petitioner made the representation dated 02.08.1993, stating that she was without any support, though her two sons were in employment after the death of the Government Servant, and she wanted re-appointment for the petitioner, her representation was forwarded by the 2nd respondent to the Tahsidar, Thovalai to hold an enquiry and to give a report as to the indigent circumstance of the family of the deceased Government Servant.
13. The Tahsildar submitted a detailed report and the same is enclosed at Page No.20 of the typed set of papers. As per the report of the Tahsildar, the eldest son was in receipt of Rs.4,395/-P.M. as per the pay certificate issued by his employer. Likewise, the 2nd son was in receipt of Rs.1,300/-P.M. as per his pay certificate. But, the counter affidavit states that the 1st son was in receipt of Rs.8,000/- as basic pay. This was controverted by rejoinder stating that during the Tahsildar enquiry, the total pay drawn by the 1st son was only Rs.4,395/- as per the certificate issued by the Government organisation. The Tahsildar also believed the same. Likewise, salary certificate was produced with regard to the salary of the 2nd son. As per the salary certificate, it was Rs.1,300/-. Further, from the certificates relating to Income of the family, Income certificate was issued by the Village Administrative Officer and the same was also enclosed by the Tahsildar along with his report. Based on the said report, the 2nd respondent issued the re-appointment order dated 30.05.1994.
14. While so, the same was sought to be cancelled by the impugned order dated 04.01.2000, issued by the 1st respondent. Before passing the said order dated 04.01.2000, the petitioner was not heard. The petitioner was in employment for about six years. If the 1st respondent was to terminate the services, the petitioner should have been heard as to why the appointment issued should not be cancelled. The reason given by the 1st respondent was that the 1st son was got married even while the father was alive. It was also stated that both the sons were in employment while his father was alive. In my considered view, that is not sufficient to cancel the compassionate appointment.
15. As per G.O.Ms.No.155, Labour and Employment Department, dated 16.07.1993, the indigent circumstances of the deceased family has to be looked into i.e. the Government order contemplates providing of compassionate appointment if the employed legal heirs do not support the family. The issue is not whether the legal heir already got married or the legal heir was receiving high salary. Even if the legal heir receives less salary and supports the family, the other legal heir will not get appointment. On the other hand, if the employed legal heir getting more salary, fails to support the family, the other legal heir will get appointment.
16. Paragraph 3 of G.O.Ms.No.155, Labour and Employment Department dated 16.07.1993, is extracted hereunder in this regard.
"3. In regard to the 2nd condition, mentioned in para 1 above, it is considered that if a member of the family is already in employment and supports the family then the restriction may be applied. When a dependant of the family is employed, the factors to be ascertained are, whether he is regularly employed and is actually supporting the family. If that person was employed even before the death of the Government Servant and was living separately without extending any help to the family, then the case of other eligible dependants will be considered."
17. Further more as already stated the impugned order was passed without hearing the petitioner, that resulted in civil consequences. The petitioner was re-appointed in 1994 and he was terminated in 2000. He is still continuing in service pursuant to the interim order. Hence he has been in employment right from 1988.
18. In the similar circumstances, the Hon'ble Apex Court as well as the Division Bench of this Court have interfered in the cancellation of the compassionate appointment. The relevant paragraphs in those judgments are extracted hereunder.
In Union of India and others V. K.P.Tiwari, reported in 2003(9) SCC 129 "2. The Tribunal in the first instance merely directed to consider the case of the respondent afresh for appointment on compassionate grounds in relaxation of the educational qualification on merits and the matter was disposed of. Thereafter, the said order was reviewed by another application when the various circumstances of the death of the father of the respondent, the brother being in employment and living separately not supporting the family of the respondent, were considered and the matter had been pending consideration for a long time and in view of the special circumstances directed that the respondent be provided with an employment within one month from the date of the receipt of the order.
3. During the pendency of these proceedings by an order made on 1-10-1996, the respondent has already been provided with an employment subject to the result of these appeals.
4. It is unnecessary in this case to examine either questions of law or fact arising in the matter. Suffice to say that the respondent has been appointed now and has been in service for more than five years. We do not think, it would be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood.
5. In that view of the matter, we decline to interfere with the order made by the High Court. The appeals are accordingly dismissed"
In V.Balakrishnan V. The Joint Director of Agriculture & 3 Ors in W.A.No.1559 of 2009:
"6. We have noted the submissions of both the parties. We quite see the force in the submission of the learned Government Pleader. Compassionate appointment is not meant for persons who do not in fact face the difficulty. It is meant to tide over the immediate difficulty of the family. For a moment, we do not approve the manner in which he has obtained the employment. At the same time, it is also to be seen that in the instant case nearly after four years, the State Government has moved to cancel the appointment. Nothing is placed on record as to what action was taken against the officers, who are responsible for the disputed appointment and delayed action on the part of the Government. Almost similar facts were therein the two matters which have been referred herein in the sense that the persons were sought to be removed after passing of good number of years. Besides, by now, nearly 15 years have gone since the time the appellant has been initially appointed, and, therefore, we do not think that it will be fair to disturb his employment.
7. It is only for this reason and without observing anything more on merits of his appointment that we allow this appeal and set aside the order passed by the learned Single Judge. The respondents will continue the appellant's employment in Government service. Consequently, the connected Miscellaneous petition is closed. There will be no order as to costs."
In D.M.Premkumari V. The Divisional Commissioner, Mysore Divisions and Ors. reported in 2009(2) Supreme 271:
"11. Having given our anxious consideration to the case pleaded by the learned counsel for the parties, we are f the view, that, it would not be desirable to decide this case on merits. If we have to do it, we might have to tell the appellant that she might have to go out of the employment. This, in our opinion would cause great hardship and injustice to the appellant."
19. For the reasons stated above, the impugned orders are liable to be quashed. Accordingly, the impugned order is quashed. The writ petition is allowed. No costs.
20.09.2010 Index : Yes / No Internet : Yes / No ars D. HARIPARANTHAMAN, J.
ars To
1. The Government of Tamilnadu, rep. by its Secretary to Govt., Rural Development Department, Fort St. George, Chennai 9.
2. The District Collector, Kanyakumari District at Nagercoil.
W.P.No.41474 of 2006 (T)(O.A.No.2324 of 2000) 20.09.2010