Madras High Court
B.Arun Kumar vs The Secretary To The Government on 14 July, 2011
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.07.2011
CORAM
THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN
W.P.No.41479 of 2006
(O.A.No.2359 of 2000)
B.Arun Kumar ... Petitioner
vs.
1. The Secretary to the Government
of the Tamil Nadu,
Small Industries Department,
Fort St. George,
Chennai 600 009.
2. The Director of Industries and Commerce,
Chepauk,
Chennai 600 005.
3. The General Manager,
District Industries Centre,
Erode. ... Respondents
PRAYER: This writ petition came to be numbered as writ petition under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.2359 of 2000 for the following prayers:
a) call for the records relating to the order of the 1st respondent dated 01.03.2000 issued in G.O.2D No.11 Small Industries (ETI-1) Department and
b) quash the same, and
c) Direct the respondent to reinstate the applicant and to award all consequential benefits.
For Petitioner : Mr.R.Muthukannu
For Respondents : Mr.R.Ravichandran
Additional Government Pleader
O R D E R
The petitioner's father Thiru.R.Balakrishnan was employed as Grade III Officer in the Department of Industries and Commerce and he died in harness on 14.06.1979. At the time of death of his father, the petitioner was aged about 7 years and the mother of the petitioner was physically and mentally affected. Therefore, the petitioner's mother did not seek employment on compassionate ground. When the petitioner became major, the petitioner's mother made an application dated 13.08.1996 seeking employment to the petitioner on compassionate ground. The application was favourably considered and the second respondent issued an order dated 12.08.1998, appointing the petitioner as Junior Assistant under Rule 10(a)(i) of the General Rules of the Tamil Nadu State and Subordinate Services. Later, the second respondent sent proposals to the first respondent for regularization of the petitioner's services as Junior Assistant. While so, the first respondent passed the impugned order in G.O.(2D)No.11, Small Industries (E.II.1) Department dated 01.03.2000, refusing to regularize the service of the petitioner and directed the second respondent to terminate the service of the petitioner. The reasons stated in the said G.O. is that the application was made by the mother of the petitioner on 13.08.1996 after 17 years of the death of the deceased Government Servant and the same was a belated one.
2. Before the second respondent passed consequential termination order based on the aforesaid G.O.(2D)No.11, the petitioner filed O.A.No.2359 of 2000 for quashing the said G.O. While admitting the Original Application on 04.04.2000, the Tribunal granted interim order. By virtue of interim order, the petitioner continues in service. Though the respondents filed a petition to vacate the interim order, the same is not disposed of and the stay is operating till date and the petitioner is continuing in service.
3. Heard the learned counsel for the petitioner and the learned Additional Government Pleader for the respondents.
4. The learned counsel appearing for the petitioner submits that the Tamil Nadu Government provided employment on compassionate ground to the legal heirs of the deceased Government servant, without reference to limitation, until the order G.O.Ms.No.120, Labour and Employment Department dated 26.06.1995 was passed. It is stated that G.O.Ms.No.120, Labour and employment, dated 26.06.1995 has prescribed the time limit of three years to make an application for compassionate appointment, due to the death of the Government Servant. The 3 years limitation is applied only where the death of the Government servant is after 26.06.1995 and in the case of death of the Government Servant prior to 26.06.1995, no limitation is followed by the Government in providing compassionate appointment. It is clarified by the Government in Letter No.39924/Q1/95, Labour and Employment department, dated 11.10.1995 that prescription of 3 years limitation period in G.O.Ms.No.120, dated 26.06.1995 is applicable only in the case of the compassionate appointment to the Government Servants who died on or after 26.06.1995 and in another letter issued by the same Department on 14.11.1995, it is again clarified that since the death occurred prior to 26.06.1995, no limitation could be followed for providing compassionate appointment. Without taking into account the said Government Orders, the first respondent passed the impugned order, as if the employment of the petitioner was irregular.
5. According to the learned counsel for the petitioner, the petitioner was appointed as per scheme and he also states that so many others were also appointed like the petitioner. In fact, he has produced the letter dated 14.11.1995, issued by the first respondent Government to consider the case of the petitioner for compassionate appointment after 16 years of the death of the Government Servant, based on the aforesaid clarification dated 11.10.1995. Further, it is submitted that alternatively even if the petitioner was irregularly appointed, the petitioner, who had put in 13 years of service, could not suffer for any mistake, committed by the Department. In this regard, he has relied on the Division Bench Judgment of this Court dated 03.11.2009 rendered in W.A.No.1559 of 2009.
6. On the other hand, the learned Additional Government Pleader seeks to sustain the impugned order, based on the pleadings in the vacate stay petition. It is strenuously contended by the learned Additional Government Pleader that the petitioner sought compassionate appointment belatedly i.e. after 17 years belatedly from the date of death of his father. Therefore, the first respondent is correct in passing the order, refusing to regularize the service of the petitioner.
7. I have considered the submissions made on either side.
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."
9. Furthermore, the first respondent in its letter dated 14.11.1995 itself, directed the second respondent to consider the case of the petitioner for compassionate appointment, in the case of the death of the Government Servant after 16 years. The entire letter dated 14.11.1995 of the first respondent is extracted hereunder:
"I am directed to refer to your letter cited. Regarding the appeal referred by Tmt.G.Sivakami, for employment assistance to her daughter under compassionate grounds after a lapse of 16 years from the date of death of the Government servant, I am to state that further clarifications to G.O.Ms.No.120, Labour and Employment, dated 26.06.1995 have since been issued in Government Lr. No.39924/Q1/95-1, Labour and Employment, dated 11.10.1995. A copy of the same is enclosed. It has been clarified in the above Government Letter that the time limit of three years period specified is applicable to the dependants of the Government Servants those who died while in service on or after 26.06.1995 and the time limit is not to examine the case as per clarification issued in Govt.Lr.No.39924/Q1/95-1, Labour and Employment, dated 11.10.1995."
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.
11. As rightly pointed out by the learned counsel for the petitioner, the Division Bench of this Court in the order dated 03.11.2009 made in W.A.No.1559 of 2009 (V.Balakrishnan vs. 1. The Joint Director of Agriculture, Tiruvannamalai and others), considering the decision of the Supreme Court in Union of India vs. K.P.Tiwari reported in (2003) 9 SCC 129 and D.M.Premkuari vs. The Divisional Commissioner, Mysore Division reported in 2009 (2) Supreme 271, has held in para 6 as follows:
"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 there in 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."
12. In my view, the aforesaid decision of the Division Bench of this Court squarely applies to this case also. In the result, the impugned order is quashed and the writ petition is allowed. No costs.
ogy To
1. The Secretary to the Government of the Tamil Nadu, Small Industries Department, Fort St. George, Chennai 600 009.
2. The Director of Industries and Commerce, Chepauk, Chennai 600 005.
3. The General Manager, District Industries Centre, Erode