Madras High Court
A.Musthfa Iqbal Basha vs The State Of Tamil Nadu on 2 November, 2015
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.11.2015
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.(MD)No.19898 of 2015
A.Musthfa Iqbal Basha ... Petitioner
Vs.
1.The State of Tamil Nadu,
Represented by its Secretary to Government,
Education Department,
Fort St.George, Chennai-600 009.
2.The Director of School Education,
College Road, Nungambakkam,
Chennai-600 006.
3.The Joint Director of School Education (Personnel),
College Road, Nungambakkam,
Chennai-600 006.
4.The District Educational Officer,
Lalgudi, Trichy District. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Mandamus to direct the respondents to pass
an order on the representation of the petitioner dated 18.05.2015 received by
the respondent on 20.05.2015 and pass an order of appointment as Junior
Assistant under the fourth respondent.
!For Petitioner : Mr.Mohd.Ibrahim Ali
^For Respondents : Mr.T.S.Mohd.Mohidheen,
Additional Govt. Pleader
:ORDER
The father of the petitioner was working as B.T. Assistant in the Government Higher Secondary School. He died on 15.10.1993. After a long drawn legal battle, the petitioner was appointed as Office Assistant by the fourth respondent vide Proceedings dated 15.10.2012 in Na.Ka.No.635/A1/2010.
2.The grievance of the petitioner is that at the time of appointment to the post, he passed the Higher Secondary Course and hence he is entitled to appointment to the post of Junior Assistant. According to the petitioner, the qualification prescribed for the post of Junior Assistant is SSLC. Hence, he made a representation dated 18.05.2015 to the respondents.
3.It is stated that the concerned authority to decide about the appointment of Junior Assistant, is the fourth respondent. As per the judgment of this Court in W.P.No.10053 of 2015 dated 07.04.2015 in S.Parameswari v. Director of Public Health and Preventive Medicine, Chennai and another, if the legal heir of the deceased Government servant is qualified for appointment to the post of Junior Assistant, then, the said person shall be given appointment for Junior Assistant and not to the lower posts such as Sanitary Worker, Office Assistant, Record Clerk etc. At this juncture, it is useful to extract paragraphs-6 to 11 of the said judgment:
?6.The impugned order proceeds that since the petitioner has possessed qualification for the post of Junior Assistant / Typist, she could not be posted as Sanitary Worker. The impugned order proceeds erroneously, as if the petitioner wanted the post of Sanitary Worker. She cried for any post, including the post of Sanitary Worker.
7.In this regard, it is relevant to extract the following passage in para 3(v) in the affidavit filed in support of the writ petition, as follows:
?.... The impugned order has been passed only on the ground that, she is eligible for appointment to the post of Junior Assistant / Typist. But, she had requested for any employment assistance including Hospital worker or sanitary worker. The fact remains that, though the petitioner is a graduate, she is willing to take up any employment assistance by the Government consequent to the demise of her husband......?
8.The reliance placed on by the respondents on G.O.Ms.No.1499, Labour and Employment (Q1) Department, dated 03.08.1989 to deprive the claim of the petitioner is totally misconceived. The relevant passage in G.O.Ms.No.1499, as extracted in the impugned order, is extracted hereunder:
?..... the appointing authorities under no circumstances should appoint a dependant to a lower post when the dependant possess the qualifications required for the post of Junior Assistant / Typist.?
9.The said Government Order provides guidelines that the Department could not provide compassionate appointment to the dependant of the Government servant to a lower post, when the dependant possess the qualification required for the post of Junior Assistant /Typist. This cannot be read as to mean that it is a disqualification for appointing the petitioner to the post of Sanitary Worker. In fact, after being appointed to the post of Sanitary Worker in the vacancy, the petitioner shall be provided appointment to the post of Junior Assistant as and when the vacancy arises.
If the post of Junior Assistant is vacant, the petitioner shall be appointed in the post of Junior Assistant.
10.Hence, the impugned order dated 13.12.2014 of the first respondent is liable to be quashed and accordingly, the same is quashed and the first respondent is directed to provide compassionate appointment to the petitioner either as Junior Assistant or Sanitary Worker forthwith. The petitioner shall be appointed as Junior Assistant as and when the vacancy arises, if she is appointed as Sanitary Worker.
11.The writ petition is disposed of in the above terms. No costs.?
4.Hence, the fourth respondent is directed to consider the representation of the petitioner dated 18.05.2015 in the light of the judgment of this Court in W.P.No.10053 of 2015 dated 07.04.2015 in S.Parameswari v. Director of Public Health and Preventive Medicine, Chennai and another, and pass appropriate orders on merits and in accordance with law, within a period of two months from the date of receipt of a copy of this order.
5.The writ petition is disposed of accordingly. No costs.
To
1.The Secretary to Government, Government of Tamil Nadu, Education Department, Fort St.George, Chennai-600 009.
2.The Director of School Education, College Road, Nungambakkam, Chennai-600 006.
3.The Joint Director of School Education (Personnel), College Road, Nungambakkam, Chennai-600 006.
4.The District Educational Officer, Lalgudi, Trichy District. .