Madras High Court
M.A.Kalidoss vs ) The State Of Tamil Nadu on 16 July, 2018
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.07.2018
CORAM:
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.12128 of 2018
and
W.M.P(MD) No.11048 of 2018
M.A.Kalidoss ...Petitioner
Vs.
1) The State of Tamil Nadu,
Represented by its Secretary to Government,
Highways Department,
Secretariat, Chennai 600 009
2) The Principal Director (Highways)
Highways Department,
Chennai 600 005
3) The Chief Engineer (Highways),
O/o the Chief Engineer (Highways),
Nabard & Rural Roads,
Tirunelveli 627 002
4) The Superintending Engineer (Highways),
Nabard & Rural Roads,
Tirunelveli 627 002.
5) The Divisional Engineer (Highways),
Nabard & Rural Roads,
O/o the Divisional Engineer (Highways),
Paramakudi Post,
Ramanathapuram District. .. Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue
a Writ of Certiorarified Mandamus, to call for the records in pursuant to the
impugned order passed by the 5th respondent in his proceedings Memo No.
http://www.judis.nic.in
2
1755/2013/Aa2/ dated 29.01.2018 and quash the same and consequently
direct the respondents to provide employment to the petitioner on
compassionate grounds based on the educational qualification.
For Petitioner : Mr.M.Saravanakumar
For Respondents : Mr.D.Muruganantham,
Additional Government Pleader.
ORDER
The prayer sought for in the Writ Petition is for a Writ of Certiorarified Mandamus, to call for the records in pursuant to the impugned order passed by the 5th respondent in his proceedings Memo No.1755/2013/Aa2/ dated 29.01.2018 and quash the same and consequently direct the respondents to provide employment to the petitioner on compassionate ground based on the educational qualification.
2. Heard Mr.M.Saravanakumar, learned counsel appearing for the petitioner and Mr.D.Muruganantham, learned Additional Government Pleader appearing for the respondents.
3. The short facts, which are required to be noticed for the disposal of this Writ Petition, are as follows:-
The petitioner's father, one Alagar, was employed as Record Clerk at the respondent Department (Highways Department) under the control of the http://www.judis.nic.in 3 fourth and fifth respondents and he died in harness on 30.06.2010, leaving behind his wife, son and two daughters as his legal heirs.
4. Since the father of the petitioner was the only breadwinner of the family and because of his sudden death, the entire family was shocked, as there was no head of the family either for financial support or emotional support. Only in that circumstances, since the petitioner was the only male member of the family, the petitioner's mother gave a representation on 26.08.2011 to the respondent Department seeking Compassionate Appointment to her son. The said application was forwarded by the fifth respondent to the third and four respondents for necessary action. The third and fourth respondents, thereafter, sought the fifth respondent for additional documents and resubmitted the proposal with necessary additional proposal and that was also complied with by the fifth respondent. Thereafter, there had been a lot of interdepartmental communications, between the respondents with regard to the verification of the educational qualification of the petitioner and other eligibility criteria.
5. After all these communications, the petitioner's application was in active consideration for compassionate appointment and eight years have gone. While so, now, all of a sudden, by the impugned order dated 29.01.2018, pursuant to the note order passed by the second respondent, the http://www.judis.nic.in 4 fifth respondent issued the said impugned order dated 29.01.2018 stating that, as per Section 15 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, (hereinafter referred to as 'the Act') the upper age limit prescribed for compassionate ground was 35 years, since the petitioner has already crossed 35 years, he shall not be eligible to be considered for Compassionate Appointment and accordingly, his request for Compassionate Appointment is rejected. Assailing the said order dated 29.01.2018, the petitioner has filed this Writ Petition with the aforesaid prayer.
6. I have heard Mr.M.Saravanakumar, learned counsel appearing for the petitioner, who would submit that, at the time of death of the father of the petitioner, the petitioner was 36 years old. There had been provisions available in the erstwhile Rules for grant of age relaxation for the upper age limit of 35 years for making Compassionate Appointment. He further submitted that, all these years (i.e.,) between the years 2010 and 2018, the respondents have been actively considering the request of the petitioner for Compassionate Appointment and all other additional particulars sought for by them, have been submitted by the petitioner and in fact, the educational qualifications have been verified and the genuinity of the certificates for having the educational qualifications of the petitioner had also been referred and verified and ultimately, now, by virtue of the impugned order, the respondents have taken a stand that because of Section 15 of the Act, the http://www.judis.nic.in 5 upper age limit, since has been prescribed therein, the petitioner is over aged and accordingly, rejected.
7. In this regard, the learned counsel appearing for the petitioner would submit that, first of all, the Government cannot reject the application for Compassionate Appointment merely on the ground of over age, as the Compassionate Appointment itself is an exception from making regular appointment/recruitment of Government services. Secondly, since the petitioner belongs to the Scheduled Caste community, it is the policy of the Government to give relief to the Scheduled Caste candidates for the purpose of Compassionate Appointment and even that concession has not been extended, in the case of the petitioner.
8. In this regard, the learned counsel appearing for the petitioner would rely upon two Division Bench judgments:-
(i) Division Bench Judgment made in W.P.No.744 of 2003 dated 27.10.2005 in the matter of C.Jayapal vs., Director of Medical Education and 2 others; and
(ii) The Division Bench Judgment made in W.A.No.1565 of 2015, dated 16.10.2015, in the matter of Secretary to Government, Labour and Employment (G1) Department and others vs., G.Parthiban.
http://www.judis.nic.in 6
9. By relying upon these two Division Bench judgments of this Court, the learned counsel appearing for the petitioner would vehemently contend that, the reasons cited in the impugned order are really unjustifiable and unsustainable, in view of the law already declared in the aforesaid decisions. Merely because Section 15 of the Act prescribed the upper age limit, it does not mean that, the Government has no power to relax such age relaxation for the purpose of Compassionate Appointment and therefore, the learned counsel appearing for the petitioner would submit that the impugned order is liable to be quashed and necessary directions to that effect to reconsider the request of the petitioner for Compassionate Appointment has to be issued in the interest of justice.
10. Per Contra, Mr.D.Muruganandham, learned Additional Government Pleader appearing for the respondents, would submit that, as it has been quoted in the impugned order, Section 15 of the Act has clearly envisaged that, the maximum age limit shall be 35 years of age, in respect of the sons and the unmarried daughters and 50 years of age in respect of the wife / husband of Government servant, who died in harness while in service.
11. The learned Additional Government Pleader would further submit that, when the provisions of the Act are very explicit and unambiguous, under which, there has been the upper age limit fixed with 35 years for the sons http://www.judis.nic.in 7 and daughters of the Government servant, who seek Compassionate Appointment and there is no scope for giving such relaxation, as there is no such express provision available in the Act, the said request of the petitioner, to relax the upper age, cannot be persuaded.
12. In this regard, the learned Additional Government Pleader appearing for the respondents would rely upon the counter affidavit filed by the respondents and would argue that, not only on the basis of age relaxation but also on merits, the case of the petitioner cannot be considered for the reason that, all the three legal heirs (i.e.,) two daughters and one son, the petitioner herein, got married at the time of the death of the Government servant, who died in harness. Since the petitioner got married and settled in life, the question of consideration of Compassionate Appointment does not arise, as the petitioner cannot be treated in leading a life in indigent circumstances, because of the death of his father. Therefore, both on the ground of over age as well as on the ground that no indigent circumstances are available to the petitioner, as he got married at the time of the death of his father, who was a Government servant, the case of the petitioner for Compassionate Appointment is rightly rejected by the respondents.
13. The learned Additional Government Pleader appearing for the respondents would further submit that, the two Division Bench judgments http://www.judis.nic.in 8 referred to by the learned counsel appearing for the petitioner may not be applicable to the facts of the present case, as in those cases it was effected only under the relevant Service Rules which was made under Article 309 of the Constitution of India. However, here, since an Act has been passed by the State Legislature and has been given effect to and according to the Act, the upper age limit, since has been prescribed at 35 years and as there is no scope for any relaxation of such upper age limit, the concession of age relaxation cannot be claimed as a matter of right by the petitioner, even though he belongs to a oppressed Community.
14. Therefore, the learned Additional Government Pleader appearing for the respondents would submit that, the petitioner is not entitled to seek for Compassionate Appointment on the ground of over age and also on the ground that, the family of the petitioner is in indigent circumstances. Therefore for both reasons, the impugned order can be very well sustained and accordingly, the writ petition is liable to be rejected.
15. I have considered the rival submissions made by the learned counsel appearing for the petitioner as well as the learned Additional Government Pleader appearing for the respondents and I have also perused the materials placed before this Court.
http://www.judis.nic.in 9
16. It is the fact that the petitioner's father was working as a Record Clerk at the respondent Department, who died in harness on 30.06.2010. At the time of the death of the petitioner's father, his mother with two daughters and a son(i.e.,) the petitioner herein, were the legal heirs of the deceased Government employee. In order to get Compassionate Appointment, an application was submitted on 26.08.2011. The said application was processed by the respondent Department and in this regard, the fifth respondent, while forwarding the said application, with necessary documents, has also made a recommendation to that effect and the relevant portion of the said communication of the fifth respondent dated 14.09.2011 reads thus:
“nkw;Fwpg;gplg;gl;l rhd;Wfs; efypy; murpjH; gjpt[bgw;w mjpfhhpahy; ifbahg;gkplg;gl;Ls;sJ/ jpU/vk;/v/fhspjh!;. mth;fSf;F fUiz mog;gilapy; gzp epakdk; f[pilf;f Mtz bra;a[=khW gzpt[ld; nfl;Lf;bfhs;fpnwd;.”
17. Thereafter, it seems that the fourth respondent sought for some additional particulars and with that additional particulars, the request of the petitioner for compassionate appointment was resubmitted by the fifth respondent on 17.09.2012 and the said communication reads thus:
“ghh;itapy; cs;s Fwpg;ghizapy; nfl;Ls;;s ,f;nfhl;lj;jpy; gzpg[hpe;J 30/06/2012 gpw;gfy; fhykhd jpU/vk;/mHfh;. gjpt[W vGj;jh;. mth;fspd; kfdhd jpU/kh/m/fhspjh!; mth;fSf;F fUiz mog;gilapy; gzp epakdk; bra;tjw;F nfl;fg;gl;l TLjy; http://www.judis.nic.in 10 tptu';fSld; fUj;JUit kPz;Lk; gzpe;J rkh;g;gpf;fpd;nwd;/ (Xk;) vk;/Kj;Juh$;.
nfhl;lg; bghwpahsh; (be).
eghh;L kw;Wk; fpuhkr;rhiyfs.;
gukf;Fo/”
18. Thereafter, by communications dated 19.03.2013, 13.06.2013 and 16.07.2013 as well as 09.10.2013, the fifth respondent sought the report from the Educational Authorities concerned to verify about the genuinity of the educational qualification / certificates produced by the petitioner. After getting the genuinity report about the educational qualification/ certificates of the petitioner from the concerned educational authorities, the fifth respondent had once again forwarded those reports as well as the certificates to the fourth respondent by his proceedings, dated 24.10.2013, which reads thus:-
“gukf;Fo (be) eghh;L kw;Wk; fpuhkr;rhiyfs; nfhl;lj;jpy; gjpt[U vGj;juhf gzpg[hpe;J 30/06/2010 md;W fhykhd jpU/kh/mHfh; kfd; jpU/kh/m/fhspjh!; vd;gtUf;F fUiz mog;gilapy; gzp epakdk; tH';ff;nfhUtJ bjhlh;ghf jdpahpd; fy;tpr;rhd;Wfspd; cz;ikj; jd;ik mwpf;if chpa mYtyhplkpUe;J bgw;W fPH;fz;lthW ,j;Jld; rkh;gg; pj;Js;nsd; vd;gij gzpt[ld; bjhptpj;Jf; bfhs;fpnwd/;
(i) nky;epiyg;gs;sp ,Wjp tFg;g[r; rhd;wpjHpd; cz;ikj;jd;ik mry;?1. efy; ? 3
(ii) ,ilepiyf;fy;tp ,Wjp tFg;g[r; rhd;wpjHpd; cz;ikj;jd;ik mry;?1. efy; ? 3
(iii) fy;Y}hp khw;Wr;rhd;wpjHpd; cz;ikj; jd;ik mry; ?1. efy;?3/ http://www.judis.nic.in 11 ,izg;g[: nkw;fz;lthW (Xk;) vk;/Kj;Juh$;.
nfhl;lg; bghwpahsh; (be).
eghh;L kw;Wk; fpuhkr;rhiyfs.;
gukf;Fo/”
19. Thereafter, the third respondent has sent a communication on 16.09.2014, stating that, the petitioner's request for compassionate appointment and its proposal with necessary documents have been forwarded to the second respondent for appropriate decision. The said communication reads thus:-
“ghh;itapy; fhQqk; j';fsJ fojj;jpy; fUiz mog;gilapy; gzp tH';f nfhug;gl;oUe;jJ/ j';fsJ gzp epakd fUj;JU. ,t;tYtyf foj vz;fs; 9135-2011-m4 ehs; 25/10/2012 kw;Wk; 20/11/2013 K:yk; jf;f nky; eltof;iffhf Kjd;ik ,af;Feh;
(be) beL";rhiyj; Jiw. brd;id?5 mth;fSf;F rkh;gg; pf;fg;gl;Ltpl;lJ vd;gij bjhptpj;Jf; bfhs;fpnwd;/ nf/mkPh;jPd;
jiyikg; bghwpahsh; (be).
eghh;L kw;Wk; fpuhkr; rhiyfs;
brd;id ? 600 032”
20. After the year 2014, there has been no further consideration and the matter has been kept pending all along and now, all of a sudden by proceedings dated 29.01.2018, the fifth respondent, quoting the proceedings of the second respondent dated 04.01.2018, passed the impugned order http://www.judis.nic.in 12 which reads thus:
“ jpU/kh/mHfh;(nyl;) gjpt[U vGj;jh; mth;fs; ,aw;if va;jpa njjp 30/06/2010 MFk;/ fUiz mog;gilapy; gzpepakdk; nfhUk; mtuJ thhpRjhuuhfpa jpU/kh/m/fhspjh!; (gpwe;j njjp 25/09/1974) mth;fspd; taJ mtuJ je;ij ,aw;if va;jpa ehspy; 35 taJ kw;Wk; 9 khj';fs; MFk;/ fUiz mog;gilapy; gzp epakdk; tH';;f eph;zak; bra;ag;gl;Ls;s tajhd 35?I jdpah; muR CHpah; ,aw;if va;jpa ehshd 30/06/2010 md;W fle;Js;shh;/ nkYk; jkpH;ehL muRg; gzpahsh;fs; epge;jidfs; rl;lk; 2016?d;go fUiz mog;gilapy; gzp epakdk; tH';Ftjw;F taJ tuk;g[ Fwpj;J gpd;tUkhW bjhptpf;fg;gl;Ls;sJ/ '15/ Notwithstanding anything contained in the special rules for various state and subordinate services regarding the maximum age limit for appointment by direct recruitment, in the case of appointment on compassionate grounds, the maximum age limit shall be thirty five years of age in respect of the sons or the unmarried daughters and fifty years of age in respect of of wife or husband of the government servant, who died in harness while in service, or retired from service on medical invalidation before attaining the age of fifty three years, as the case may be.
nkw;fhQqk; tptu';fspd; nghpy; jpU/kh/m/fhspjh!; mth;fs; mtuJ je;ij ,aw;if va;jpa ehspy; 35 tajpid fle;J tpl;ljhy; http://www.judis.nic.in 13 fUiz mog;gilapy; gzp epakdk; nfhUk; mtuJ nfhhpf;if Fwpj;J ghprPypf;f ,ayhj epiy cs;sbjd ghh;itapy; cs;;s Kjd;ik ,af;Feh;(be) brd;id mth;fs; fojj;jpy; bjhptpf;fg;gl;Ls;sJ vd jpU/kh/m/fhspjh!; mth;fSf;F bjhpag;gLj;jg;gLfpwJ/”
21. On perusal of these proceedings, it became clear that, the father of the petitioner died in the year 2010 and immediately in the year 2011, the application was submitted for Compassionate Appointment and the same was forwarded with recommendations by the fifth respondent and thereafter, additional particulars were sought for by the fourth respondent and the same was also given by the fifth respondent and the proposal was resubmitted once again. Thereafter, a number of communications had been there with regard to the verification of the educational qualifications of the petitioner and the genuinity of the certificates of such educational qualifications and after getting the report from the educational authorities that also had been forwarded by the fifth respondent to the fourth respondent to infer, since it has been forwarded to the second respondent, for appropriate action and decision.
22. In the year 2014, a communication was issued by the third respondent, stating that, the proposal of the department for Compassionate Appointment to the petitioner has been sent to the second respondent for http://www.judis.nic.in 14 appropriate decision. Thereafter, nothing was forthcoming from the second respondent or any other respondents and now, (i.e.,) in January 2018, a decision seems to have been taken by the second respondent quoting Section 15 of the Act and rejected the proposal/request of the petitioner for Compassionate Appointment on the ground of over age.
23. Those eight years, the application of the petitioner has been under active consideration by the respondent Department. The petitioner has already reached 36 years of age, even on that date, when his father died and this factor was known to every respondent and still, the application of the petitioner has been kept under active consideration by the respondents and other particulars/ Additional particulars sought for, had also been obtained by the respondents. Even after getting all these particulars in 2014, no orders have been passed and for the reasons best known to them, the respondents kept the same pending for four more years, till 2018 and atlast in January 2018, the respondents passed the impugned order quoting Section 15 of the Act.
24. The Act, though it had a retrospective effect, it was in the year 2016 and therefore, between the years 2010 to 2014, the application of the petitioner was under active consideration and the said reason of over age by quoting Section 15 of the Act, was not available to the respondents and http://www.judis.nic.in 15 merely because the application has been kept pending for years together, without showing any inch of progress and without any plausible reason,now, the respondents found out the reason, by quoting Section 15 of the Act, and stating that, on the ground of over age, a relaxation of age limit cannot be given.
25. In this regard, the two different Division Bench judgments on the issue, as has been relied upon by the learned counsel for the petitioner can be looked into:-
(i) In the first judgment, (i.e.,) W.P.(MD) No.744 of 2003 in the matter of C.Jayapal vs., the Director of Medical Education and two others, the issue is as to whether the upper age limit prescribed for appointment on compassionate appointment can be relaxed for candidates belonging to Scheduled Caste & Scheduled Tribes Community. The said issue has been elaborately discussed by the Division Bench in the said judgment, where the Hon'ble Division Bench has made the following findings and observations:-
“ 5. We have already observed that the applicant
belongs to Scheduled Caste community. The Government
of Tamil Nadu, Labour and Employment Department, by
letter No.46571/N1/82-3 dated 24.11.1982, clarified the
question of age relaxation in the case of Scheduled caste and Scheduled Tribe as under:-
http://www.judis.nic.in 16 '2. The Government have examined the above points and issued the clarifications as follows:
(i) The dependants of deceased Governments servants (belonging to Scheduled Caste / Scheduled Tribe) can be appointed on compassionate grounds in relaxation of age rule, even if they exceed the age limit prescribed in the Special Rules, when it is more beneficial to the individual.' Though the existence of the said instruction is not disputed, the fact remains, the respondents have not considered the relevant fact that in the case of appointment on compassionate ground, the age limit prescribed in the special Rules can be relaxed if applicant belongs to SC/ST. As per G.O.No.1579 dated 21.07.1981, the maximum age as far as son or daughter is concerned is 30 and widow of the deceased is 31 years, in the case of employment on compassionate ground. In the letter dated 11.03.1982, the Government of Tamil Nadu has clarified that on the date of death of Government servant, the age of son or daughter/widow should not be more than 30/40 years. In G.O.Ms.No.155 L & E dated 16.7.1993, in para-3, it is stated that when a dependent of the family is employed, the factors to be ascertained are, whether he is regularly employed and is already supporting the family; if the 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 dependent should be considered.” http://www.judis.nic.in 17
(ii) In the second judgment quoted by the learned counsel appearing for the petitioner (i.e.,) W.A.No.1565 of 2015 dated 16.10.2015, the Division Bench of this Court in the matter of Secretary to Government, Labour and Employment (G1) Department and two others vs., G.Parthiban has dealt with exactly the similar issue at paragraph 6 of the Judgment, it has been held thus:-:
“6. Though Mr. T.N. Rajagopalan, Learned Special Government Pleader assailed the correctness of the order impugned in this Appeal on the grounds, interalia, that the learned Single Judge has failed to consider in G.O.Ms. No. 9 Labour and Employment (G1) Department dated 19.01.1998 the upper age limit prescribed for compassionate appointment is 35 years and nothing is mentioned about the relaxation of upper age limit, and therefore, the order of the Learned Single Judge is liable to be set aside, this Court is not inclined to accept the said contention, for the simple reason that Rule 48 of the Tamil Nadu State and Subordinate Service Rules, empowers, the Governor to deal with the case of any person or class of persons serving in a civil capacity under the Government of Tamil Nadu or of any person who has or of any class of persons who have, served as aforesaid or any candidate or class of candidates for appointment to a service in such manner as may appear to him to be just and equitable. Provided that, where any such rule is applicable to the case of any person or class of persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by that rule. Therefore, the contention http://www.judis.nic.in 18 that nothing is mentioned in G.O.Ms.No.9 Labour and Employment (G1) Department dated 19.01.1998, about the relaxation of age cannot be countenanced, when statutory rules framed under Article 309 of the Constitution of India, have conferred power on the authority to grant relaxation of any Rule, for appointment to a service in such manner, as may appear to him to be just and equitable.”
26. In the first Division Bench judgment, the age relaxation to be given for Scheduled Case & Schedules Tribes candidates, seeking Compassionate Appointment has been considered, as the same was the policy decision of the Government, which has been quoted in the Government order as referred to in the said Division Bench. In the second Division Bench judgment, the similar plea, what has been taken before this Court by the Government and the learned Additional Government Pleader appearing for the respondents in support of the impugned order herein, had been taken by the Government/ respondents in that case also. Non-availability of the provision for giving relaxation for upper age limit prescribed for Compassionate Appointment has been quoted, as the reason for inability for relaxation of upper age limit, however it has been negated by the Division Bench in the said judgment.
27. The Division Bench, has specifically rejected the said contentions by stating that, since nothing was mentioned in the Government Order in G.O.Ms.No.9, Labour and Employment Department dated 19.01.1998 about http://www.judis.nic.in 19 the relaxation of upper age limit, the order passed by the learned Judge in that case was liable to be set aside had been rejected outrightly, by the Division Bench by quoting the reasons that Rule 48 of the Tamil Nadu State and Subordinate Service Rules empowers the Governor to deal with any person or class of persons serving in a civil capacity under the Government of Tamil Nadu.
28. Exactly the similar situation is prevailing in this case also. Why this Court has narrated the entire facts in detail in the foregoing paragraphs by quoting various communications from the respondent Department about the consideration of the application of the petitioner for compassionate appointment, is, because the application of the petitioner had been under the active consideration of the respondent Department between the years 2010 and 2014. Lastly in the year 2014, there had been a communication from the third respondent stating that the application of the petitioner with all necessary documents has been sent from the third respondent to the second respondent, who is the competent Authority to take a decision and after 2014, no progress has been shown, as nothing was forthcoming from any of the respondents, between the years 2014 and 2018, the file was simply kept pending and only in January 2018, it was rejected outrightly by quoting Section 15 of the Act (i.e.,) upper age limit.
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29. The Scheme for Compassionate Appointment, is an exemption from the regular recruitment process for Government Service Law, otherwise, is well settled, that in public employment, there can be no violation of Article 14 of the Constitution, by thus, there should be no arbitrariness and by giving equal opportunity to all eligible persons by inviting applications from the open market by giving maximum advertisements in all modes to reach out the said eligible candidates and after getting applications from all eligible candidates, a proper method of recruitment for evaluating the qualifications of each of the candidate, who made application, has to be undertaken and thereafter, only based on merits, the final selection and appointment shall be made in public employment.
30. Since this was the rule for making public employment,the Compassionate Appointment itself, is a deviation from the general rule of public employment. In Compassionate Appointment only the application of the individual concerned would be considered and based on the educational qualifications and the indigent circumstances of the family concerned, such Compassionate Appointment would be given. Therefore, the very settled principle of making recruitment in public employment would not be adopted in the case of Compassionate Appointment and therefore, the other conditions including the upper age limit prescribed in this regard cannot be taken as a hard and fast rule or rigid one for the purpose of rejecting the application for Compassionate Appointment.
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31. Since the Compassionate Appointment scheme itself is a benevolent scheme, in order to bail out the family, which became suddenly helpless, because of the sudden demise of the head of the family or breadwinner of the family, this kind of scheme is being envisaged and adopted by the Government for giving solace to such family members.
32. When that being so, the explanation, as given by the respondents by quoting Section 15 of the Act for rejecting the application of the petitioner, on the ground of over age, cannot be accepted under the legal scrutiny.
33. Moreover, in the case in hand, the application was submitted in the year 2011 and the same has been under active consideration till 2014. After 2014 for four years, nothing was forthcoming and all of a sudden in January 2018, orders have been passed by the respondents rejecting the request of the petitioner under the ground of over age.
34. If this kind of reason as has been now attributed by the respondent is allowed to sustain, that would defeat the very purpose of the scheme of Compassionate Appointment itself. When the Government is very specific on the rule to state that the application for Compassionate Appointment shall be made within three years from the date of death of the Government employee and beyond the three years period, the application would not be considered http://www.judis.nic.in 22 and this condition is prescribed, because of the reason that, in order to suddenly bail out the indigent circumstances prevailing in the family of the deceased Government servant, the same logic would apply to the case of the petitioner also, where the application was filed in time, consideration was also made immediately and after some time, no consideration has been given and it has been kept pending at one stage in a hierarchy of officials and thereafter, after four years, now, they invented a reason that, if a situation arose after four years from the active consideration of the petitioner's application, certainly, the reason now has been quoted by the respondent would defeat the very foundation of the Scheme of Compassionate Appointment and therefore, this Court cannot subscribe the view or reasoning given by the respondents in the impugned order.
35. Moreover, the learned Additional Government Pleader appearing for the respondents would also submit that, by relying upon the averments made in the counter affidavit that, at the time of death of the Government servant (i.e.,) the father of the petitioner, the petitioner got married and therefore, he was settled in life. This reason can be rejected outrightly, on the ground that, even under Section 15 of the Act, it has been quoted by the respondents through the impugned order that the word “sons” and “unmarried daughters” has been prescribed. The Legislature was very careful in drafting the said provision by stating that, insofar as the male descendant (i.e.,) son, whether http://www.judis.nic.in 23 he is married / unmarried it is immaterial and that he can seek Compassionate Appointment. However, in the case of daughter, who got married, she will not be entitled to claim Compassionate Appointment, provided, if she is a widow or deserted she can claim. Therefore, the said reasoning given by the respondents for the impugned order also cannot be sustained. Moreover, the said reasoning that, the petitioner got married at the time of death of the Government servant, even though is not worthy to be accepted, the said reason has not at all been given in the impugned order. Therefore,the impugned order cannot be strengthened or improved by the respondents by filing a counter affidavit as the law in this regard is well settled, in the case of Mohinder Singh Gill vs., Chief Election Commissioner reported in (1978) 1 SCC 405.
36. Therefore, for all these reasons and discussions made above, this Court is of the considered view that the impugned order is wholy unjustifiable and unsustainable. The reasons attributed by the respondents in the impugned order cannot be sustained for more than one reason, as has been discussed above.
37. In the result, the impugned order is set aside and the respondents, especially, the second respondent is directed to reconsider the proposal for Compassionate Appointment to the petitioner and while making such http://www.judis.nic.in 24 reconsideration , the respondents shall not invent and give any new reasons for rejecting the said proposal. Accordingly, the proposal shall be considered objectively, by taking into account the observations made by this Court and pass suitable orders in this regard for grant of Compassionate Appointment to the petitioner and such orders shall be passed within a period of six weeks from the date of receipt of a copy of this order.
38. With these directions, this Writ Petition is Allowed as indicated above. Consequently, connected W.M.P(MD) No.11048 of 2018 is closed.
16.07.2018 Index: Yes Internet: Yes sts To
1) The Secretary to Government, State of Tamil Nadu, Highways Department, Secretariat, Chennai 600 009
2) The Principal Director (Highways) Highways Department, Chennai 600 005
3) The Chief Engineer (Highways), O/o the Chief Engineer (Highways), Nabard & Rural Roads, Tirunelveli 627 002 http://www.judis.nic.in 25
4) The Superintending Engineer (Highways), Nabard & Rural Roads, Tirunelveli 627 002.
5) The Divisional Engineer (Highways), Nabard & Rural Roads, O/o the Divisional Engineer (Highways), Paramakudi Post, Ramanathapuram District.
http://www.judis.nic.in 26 R.SURESH KUMAR, J., sts Order made in W.P.(MD)No.12128 of 2018 16.07.2018 http://www.judis.nic.in