Madras High Court
P.Senthil Kumar vs The State Of Tamil Nadu on 9 May, 2017
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.05.2017
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD).No.1879 of 2014
P.Senthil Kumar .. Petitioner
Vs.
1. The State of Tamil Nadu,
rep. by its Secretary,
Highways and Rural Services Department,
Secretariat,
Chennai ? 600 009.
2. The Principal Director,
Highways Department,
Chepauk,
Chennai ? 600 005.
3. The Chief Engineer,
Highways and Rural Services Department,
Chepauk,
Chennai ? 600 005.
4. The Superintending Engineer (Highways),
Construction and Maintenance Circle,
Trichy ? 20.
5. The Divisional Engineer,
Highways and Rural Services Department,
Thanjavur. .. Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorarified Mandamus, calling for the records
connected to the impugned order passed by the second respondent in his
proceedings No.Nir/1(2)34745/2000 dated 05.04.2013 and quash the same and
consequently direct the respondents to consider the claim of the petitioner
for compassionate appointment in any post to which he is eligible by
restoring his seniority in the waiting list of candidates waiting for
appointment on compassionate grounds within a reasonable time.
!For Petitioner : Mr. S.Govindan
^For Respondents : Mrs.S.Bharathi
Government Advocate
:ORDER
The petitioner seeking for a Writ of Certiorarified Mandamus, to call for the records in connection with the impugned order passed by the second respondent in his proceedings No.Nir/1(2)34745/2000, dated 05.04.2013, and to quash the same and consequently, to direct the respondents to consider the claim of the petitioner for compassionate appointment in any of the post to which he is eligible by restoring his seniority in the waiting list of candidates waiting for appointment on compassionate ground within a reasonable time as stipulated by this Court, has filed this petition.
2.The facts of the case as has been averred by the petitioner in his affidavit is that, the petitioner's father, while he was working as a Road Roller Driver of the respondent Department, died in harness suddenly on 23.09.1993 leaving behind the widow and two children including the petitioner. At the time of death of the petitioner's father, the petitioner was aged about only 12 years and he was a school going boy. Since, he is the only male child to the family of the deceased Government servant, after attaining majority in May 1999, he had applied for compassionate appointment to the respondents' department vide application, dated 14.10.1999. Along with the said application, the petitioner had also submitted the requisite documents such as educational qualification ( Petitioner has completed 10th standard at that time) and other relevant certificates.
2.1.The said application made by the petitioner was in fact received and registered at the respondents' office, especially at fifth respondent's office. Since number of such application has been filed seeking compassionate appointment at the respondents' office, a waiting list was prepared, where the petitioner's application was kept in the waiting list as waiting list No.503(a). When the application of the petitioner was pending for consideration, a communication was also issued by the third respondent on 28.09.2001 stating that the petitioner's name has been kept in the waiting list in serial No.503(a), wherein so far only 320 applications seeking compassionate appointment had been cleared. Therefore, the petitioner was in fond hope and was under the bonafide expectation that his turn would come, if the waiting list is cleared. While so, all of a sudden the impugned communication has been issued by the second respondent on 05.04.2013. In the impugned order, the second respondent has stated that the petitioner's father died on 23.09.1993, while he was in service and the petitioner had made an application seeking compassionate appointment on 16.02.2000, since the said application was filed beyond the three years period of the date of the death of the Government servant, his application cannot be considered and accordingly, waiting list No.503(a) allotted to the petitioner's application / candidature has been cancelled. Challenging the said impugned order of the second respondent, dated 05.04.2013, this writ petition has been filed with the aforesaid prayer.
3. Mr. S. Govindan, the learned counsel appearing for the petitioner would submit that the three years Rule, insofar as the case of the petitioner cannot be put against him for the simple reason that the three years rule came in, only by way of G.O.(Ms) No.120, Labour and Employment dated 26.06.1995 and since the petitioner's father died on 23.09.1993 itself and at that time the petitioner was admittedly a minor, he had made an application seeking compassionate appointment at the earliest point of time i.e. immediately after became majority i.e. on 14.10.1999. Therefore, the said three years rule, as has been cited as the only reason for rejecting the candidature of the petitioner's for compassionate appointment through the impugned order, is wholly un-sustainable and unjustifiable.
4. The learned Counsel for the petitioner in this regard would rely upon the decision of this Court reported in 2012 (4) MLJ ? 753 in the matter of D.Sithalakshmi Vs. District Collector, Sivagangai District, Sivagangai. According to the learned counsel for the petitioner, the Ratio Decidendi of the said decision is that the application of the legal heirs of the deceased Government servant seeking compassionate appointment cannot be rejected on the sole ground that the same was not submitted within a period of three years by applying relevant Government Order when the date of death of deceased employee was prior to the said Government Order.
5. In support of the said ratio, the learned Counsel for the petitioner would heavily rely upon paragraph 11 of the judgment reported in 2012 (4) MLJ ? 753 (cited supra) which reads thus:
?11.The said order of the learned Judge is also taken note of by the Hon'ble First Bench of this Court in its order dated 12.01.2012 in W.A.No.2452 of 2011 in the matter of A.Vasanthi vs. The Senior Registrar of Cooperative Societies, Cuddalore and another. It is also the admitted position that the respondent himself called upon the petitioner on several occasions to furnish certain documents based on her application for compassionate appointment. When the petitioner has furnished all those documents, the respondent cannot now take a different stand and pass the impugned order by stating that the application itself came to be given after a period of three years from the date of death of the deceased. This stand of the respondent has to be rejected even on the other ground, namely, that the three years limitation period is applicable only where the date of death of the Government Servant was after 26.06.1995, in pursuant to the issuance of G.O.Ms.No.120, Labour and Employment, dated 26.06.1995. A similar view was taken by the learned Single Judge of this Court in 2011(8) MLJ 457 in the case of B.Arunkumar Vs. State of Tamil Nadu and others as follows:-
"8. Before issuance of G.O.Ms.No.120, Labour and Employment Department dated 26.06.1995, there was no time limit for making application seeking compassionate appointment on the death of the Government Servant. Further, it is clarified by the Government, Labour and Employment department in their letter No.No.39924/Q1/95, dated 11.10.2005 that the time limit of three years period specified in G.O.Ms.No.120 would apply only in the cases of compassionate appointment for the death of the Government Servants, after 26.06.1995. The said letter is extracted hereunder in this regard:
"In the Government Order 1st cited, the following modifications were issued to the existing scheme of appointments under compassionate grounds to the dependants of the deceased Government Servants, with effect from the date of issue of order:-
i) The applications for appointment on compassionate grounds should be made within three years of the death of Government Servants.
ii) The maximum age limit for such appointment be raised to 50 years in the case of widows of the deceased Government Servants.
2. In this connection, the District Collector, Tirunelveli Kattabomman District has sought for clarifications whether the time limit of three years period specified in the Government Order are applicable to the dependants of the Government Servants who died prior to the date of issue of the Government Order. In this connection, it is clarified that the time limit of three years period specified in the Government Order first cited is applicable only to the dependants of the Government Servants those who died while in service on or after 26.06.1995 and the above orders are not applicable to the past cases. Further the Government clarify, that the age limit of 50 years for appointment under the scheme in the case of widows as ordered in the said Government Order is also applicable only to the widows of the Government Servants those who died on or after 26.06.1995."
"10. Therefore, I do not find any infirmity in appointing the petitioner on compassionate ground, when the application was made after 17 years from the death of the father of the petitioner, who was a Government Servant. Admittedly, the father of the petitioner died on 14.06.1979 and the mother of the petitioner made an application on 13.08.1996. At the time of death of his father, the petitioner was aged about 7 years. In view of the existing scheme providing compassionate appointment, the mother of the petitioner sought compassionate appointment to the petitioner and the same was also provided. Without taking into account the letter dated 11.10.1995, Labour and Employment Department, as well as the letter of the first respondent dated 14.11.1995, the impugned order was passed. Hence, I am of the view that the impugned order is liable to be quashed."
6. The learned Counsel for the petitioner would also rely upon yet another decision of this Court, of course a recent one reported in 2017 (1) CWC 486 (judgment of mine) in the matter of K.Sankar Vs. The Commissioner, Corporation of Chennai and others, wherein also the three years Rule though it was projected by the respondent's employer the same was directed not to be put against the petitioner who seek compassionate appointment, as the petitioner, who is a Legal heir of the deceased Government servant, was admittedly a minor at the time of death of the Government servant. By citing these two decisions, the learned Counsel for the petitioner would submit that the issue is covered by the said decisions of this Court and therefore, the only reason cited in the impugned order may not be justifiable and sustainable and therefore, he requests that the prayer sought for in the writ petition may be allowed.
7. Per contra, Mrs.Bharathi, learned Government Advocate appearing for the respondents would submit that by quoting the relevant averments made in the counter affidavit filed by the fifth respondent that the cut off date is 26.06.1995, as has been fixed being the date of order of G.O.Ms.120 Labour and Employment Department, dated 26.06.1995 had subsequently, been clarified and new G.O.(Ms) No.42 Labour and Employment Department was also issued. In this regard, the learned Government Advocate would rely upon paragraph Nos.4 to 7 of the Counter affidavit of the fifth respondent which are reproduced hereunder:
?4. I submit that as per Government letter No.202 Labour and Employment Department dated 08.10.2007. The Director General Highways Chennai has rejection his request on the ground he has not applied within 3 years from the date of death of the Government Servant and further states the his seniority number. 503(a) which was in waiting list for compassionate appointment was also cancelled vide letter No.Nir./1(2)34745/2000 Dated 05.04.2013.
5. I respectfully submit that as per the G.O.(Ms)No.120 labour and Employment Department dated 26.06.1995 the time limit of 3 years period specified in the Government order is applicable to the dependents of the Government Servants who died while in service on or after 26.06.1995 and the G.O. is not applicable to past cases.
6. I submit that the G.O.(Ms)No.120 Labour and Employment Department the operative portion reads as follows:
I am, therefore, to request you to follow the above guidelines issued in the G.O.(Ms)No.42/ Labour and Employment Department dated 12.03.2007 for all present, past and future cases and the instructions issued in, Government Letter No.39924/Q1/2005-1/, Labour and Employment Department dated 11.10.1995 cannot be taken into account. The crux of matter is that the time limit shall be 3 years for filling of application from the date of the death of Government Servant and is application from the date of the death of Government Servant and is applicable to all cases, including where the Government Servant has died in service even prior to 26.06.1995 also.
7. submit that as per G.O.(Ms)No.42 Labour and Employment Department dated 12.03.2007 the time limit shall be 3 years for filing of application from the date of death of Government Servant is applicable to all the cases, including where the Government Servant has died while in service even prior to 26.06.1995.?
8. Therefore, the learned Government Advocate would submit that since subsequent clarification has been issued that even if the date of death of the Government servant has occurred prior to 26.06.1995, even then the three years Rule will be applicable. Therefore, in all the past cases, the Government servant had died prior to cut off date, if application has been filed seeking compassionate appointment within three years from the date of death of the Government servant, certainly those application has been very well rejected. Therefore, the learned Government Advocate would submit that the impugned rejection order passed by the second respondent herein is strictly inconsonance with the Government orders which are in vogue and therefore, there is no infirmity in the said order. Accordingly, she submits that, the impugned order does not call for any interference from this Court.
9. This Court has considered the rival submissions made by both sides.
10. The facts are not in controversy. The petitioner's father was a Government employee and died in harness on 23.03.1993. At that time, the petitioner being the only male member of the family was only 12 years old. After he attained majority, he had made an application at the earliest point of time i.e on 14.10.1999. At that time, since the petitioner's qualification was 10th standard, based on such qualification he has filed an application for compassionate appointment seeking suitable job. On receipt of the said application from the petitioner, the fifth respondent had forwarded the same to the fourth respondent on 23.11.1999 vide his proceedings in Na.Ka.No.9733/99/A4. Thereafter, by further communication dated 20.01.2000 in his proceedings dated Na.Ka.No.9733/99/ A4, the fifth respondent has sent a communication to the Assistant Divisional Engineer, Highways Department, Papanasam, Thanjavur District, where the following has been mentioned:-
?ghh;itapy; fz;Ls;s fojq;fspd; kPJ cjtpf;nfhl;;l bghwpahsh; (be) ghgehrk; mth;fspd; ftdk; <h;f;fg;gLfpwJ. jpU.gp.ghz;oad; kiwe;J cUis Xl;Leh; kfd; bre;jpy;Fkhh; vd;gtUf;F fUiz mog;gilapy; gzp epakdk; nfl;L tpz;zg;gk; rkh;g;gpj;Js;sjpy; fPH;fhZk; Fiwfis epth;j;jp bra;J rkh;g;gpf;Fk;go cjtpf;nfhl;;l bghwpahsh; (be)ghgehrk; nfl;Lf; bfhs;sg;gLfpwhh;.
1.jhrpy;jhuhy; tHq;fg;gLk; tUkhd rhd;wpjH; kWkzk; bra;J bfhs;stpy;iy> tWik nfhl;ow;F fPH; cs;sJ> FLk;gj;jpy; xUtUk; muR kw;Wk; jdpahh; Jiwapy;
gzpg[hpatpy;iy kw;Wk; mira[k; mirah brhj;Jf;fs; Vjkpy;iy nghd;w rhd;Wfs; jdpj;jdpahf tHq;fg;gl ntz;Lk;.
2.khepaj; bjhif bryt[ tptuk; chpa gotj;jpy; g{h;j;jp bra;ag;gl ntz;Lk;.
3.kDjhuh; 12k; tFg;g[ goj;J bfhz;oUg;gjhf Fwpg;glg;gl;Ls;sJ. goj;J bfhz;oUe;jhy; jiyik MrphpahplkpUe;J rhd;W bgwg;gl ntz;Lk;. goj;J Koj;jpUe;jhy; gps]; 2 rhd;W tHq;fg;gl ntz;Lk;.
Xk;.bg.nfhtpe;juhR nfh.bgh.(beCg)
11.Thereafter, by further communication dated 28.09.2001, the third respondent has stated the following:-
?ghh;itapy; fhZk; fojj;jpy; mDg;gg;gl;Ls;s fUj;JU ghprPypf;fg;gl;L mf;fUj;JUtpy; Fwpg;gplg;gl;Ls;s jpU.gh.bre;jpy;Fkhh; j/bg. jpU.gp.ghz;oad; (nyl;) cUis Xl;Leh; vd;gthpd; bgah; ,sepiy cjtpahsh; gjtpf;F gzpepakdj;jpw;fhf fhj;jpUg;nghh; gl;oaypy; thpir vz;. (503a)y; gjpt[ bra;ag;gl;Ls;sJ.
2.nkw;go fhj;jpUg;nghh; gl;oaypy; thpir vz;.(320) tiu cs;sth;fSf;F ,Jtiu gzp epakdk; tHq;fg;gl;Ls;sJ vdt[k; bjhptpf;fg;gLfpwJ.?
12. The third respondent by further proceedings dated 20.03.2002 has sent the following communication:-
?ghh;itapy; fhZk; fojj;Jld; mDg;gg;gl;l fUj;JUf;fs; ghprPyid bra;ag;gl;L tpz;zg;gj;jhuhpd; bgaiu ,sepiy cjtpahsh; gjtpf;F gzp epakdj;jpw;fhf fhj;jpUg;nghh; KJ epiyg;gl;oaypy; thpir vz;. (503)y; gjpt[ bra;ag;gl;Ls;sJ.
,e;neh;tpy; fPH;fhZk; rhd;wpjH;fs; kw;Wk; gzpg;gjpntL ,j;Jld; jpUg;gp mDg;gg;gLfpwJ. ,tw;iw bgw;Wf; bfhz;likf;F xg;g[if mspf;FkhW fz;fhzpg;g[g; bghwpahsh; (be) jpUr;rp mth;fs; nfl;Lf; bfhs;sg;gLfpwhh;.
1.,dr; rhd;wpjH;
2.10k; tFg;g[ kjpg;bgz; rhd;wpjH; VV.4687579.
3.gps]; 2 kjpg;bgz; rhd;wpjH; VgP 3042937.
4.gs;sp khw;W rhd;wpjH;
5.elj;ij rhd;wpjH;
6.kiwe;j cUis Xl;Leh; jpU.gp.ghz;oad; mth;fspd; gzpg;gjpntL-1 gtpz;L thy;a{k;.
13. All these periodical correspondences emanated from the respondents would combinedly go to show that, the application submitted by the petitioner in the year 1999 has been received, registered and kept in the waiting list, after assigning the wait list No.503(A). Though, number of required documents have been produced by the petitioner, at the time of making the application, further documents were also required to be produced and in this regard, relevant communication has been made by the respondents. Thereafter, on receipt of further documents and after verifying the Service Records of the petitioner's father i.e the deceased Government servant, once again a communication has been sent by the third respondent, who is the Head of the Department. When all these communications were made, the respondents had been actively considering the application of the petitioner, of course as per the movement in the waiting list. While so, all of a sudden, the second respondent has taken completely a different stand and rejected the application of the petitioner by merely saying that the application submitted by the petitioner was beyond three years from the date of death of the Government Servant. Exactly, this kind of situation has already been dealt with by this Court in the Judgment reported in 2012(4) MLJ 753 (cited supra) especially at paragraph No.11. Also this kind of plea was raised by the employees in another case and in that case, the Chennai Corporation had kept the file, after so much deliberations and discussions for giving compassionate appointment to the children of the deceased employee of the Chennai Corporation, ultimately they have not given appointment on compassionate ground to the son of the Corporation employee, where also the three years Rule was emphatically projected by the employer side. I had an occasion to consider the said case and after considering the issue raised therein, I had given the relief that the three years Rule cannot be put against the minor children if the family is continuously in penurious circumstances after the death of the Government servant. To get over the indigent circumstances, certainly in order to retrive and bailout such family from the said condition, the compassionate appointment can very well be offered to the family members.
13. Here in this case also, the petitioner was admittedly a minor of 12 years old at the time of the death of his father and on attaining majority, immediately he filed the said application in the year 1999 and the said applications have been accepted and has been acted upon. These factors are very well evidenced from the number of communications issued by the respondents Department from second respondent to fifth respondent and the relevant portion of those communications have also been extracted hereinabove. Further, the case of the petitioner was not turned out at the initial stage itself on the ground of three years Rule.
14. The learned Government Advocate was trying to justify the stand taken by the respondents, which culminated in the impugned order, by quoting the relevant portion in the counter filed by the fifth respondent, and further submitted that the cut off date given in G.O.Ms.No.120 Labour and Employment Department, dated 26.06.1995 was subsequently clarified and as per G.O.Ms.No.42 Labour and Employment Department, dated 12.03.2007, it shall be considered by strictly applying three years Rule. This argument advanced by the learned Government Advocate may not hold good for the simple reason that both the G.O.Ms.No.120 Labour and Employment dated 26.06.1995 as well as G.O.Ms.No.42 of the same Department dated 12.03.2007 were issued subsequent to the death of the Government Servant. In this case, as the Government servant was died on 23.09.1993 itself, this Court is of the view that import of the said G.Os by applying the three years Rule even in cases where the Government Servant died prior to the date of the G.Os cannot be put against the present case, especially, as against the petitioner, as he lost his father as early as in the year 1993 itself. Therefore, the arguments advanced on behalf of the respondents may not have much force and therefore, it is rejected.
15. In view of the reasons and discussions mentioned above, this Court is of the view that the impugned order is un-sustainable and also unjustifiable. Hence, the same is liable to be quashed and the writ petition is liable to be allowed.
16. In the result, the respondents are directed to take up the application of the petitioner dated 14.10.1999, and consider the same. If the original seniority assigned to the petitioner has already reached, appointment on compassionate ground immediately can be given to the petitioner. Otherwise, the request of the petitioner either can be considered for compassionate appointment, when he reaches his turn in the seniority list or it is also open to the respondents to forward the application to any other Government Department where vacancies are available to give compassionate appointment, in seniority, with the educational qualifications of the petitioner. This arrangement is possible to the respondents because, as per the procedure which are in vogue, if a particular department does not have a vacancy to give suitable job to the legal heirs of the deceased Government Servant on compassionate ground, the said application can be forwarded for needful action to any other Government Department, where the vacancy is available readily. At any rate, the needful as has been directed above shall be undertaken by the respondents herein within a period of eight weeks from the date of receipt of a copy of this order.
17. With these directions, the Writ Petition is allowed to the terms indicated above. The impugned order dated 05.04.2013 is quashed. No costs.
To
1. The State of Tamil Nadu, rep. by its Secretary, Highways and Rural Services Department, Secretariat, Chennai ? 600 009.
2. The Principal Director, Highways Department, Chepauk, Chennai ? 600 005.
3. The Chief Engineer, Highways and Rural Services Department, Chepauk, Chennai ? 600 005.
4. The Superintending Engineer (Highways), Construction and Maintenance Circle, Trichy ? 20.
5. The Divisional Engineer, Highways and Rural Services Department, Thanjavur.
.