Madras High Court
C.Kasiammal vs Secretary To Government on 13 December, 2013
Author: M.Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.12.2013
CORAM
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
Writ Petition No.29370 of 2011
and
M.P.No.1 of 2011
1. C.Kasiammal
2. C.Siva .. Petitioners
Versus
1. Secretary to Government
Environment and Forest Department
Secretariat
Chennai 600 009.
2. The Principal Chief Conservator of Forests
Panagal Maligai,
Saidapet
Chennai 600 015.
3. The Deputy Conservator of Forests
A forestation Division
Thiruvannamalai District. .. Respondents
This Writ Petition has been filed under Article 226 of Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned order dated 11.10.2011 passed by the second respondent in Ref.No.LL2/ 5352/2010 and quash the same and consequently, direct the respondents to provide the compassionate appointment in any other suitable post to the second petitioner.
For Petitioners : Mr.P.Ganapathy
For Respondents : Mr.N.Inbanathan
ORDER
The Petitioners have focused the instant Writ of Certiorarified Mandamus praying for issuance of an order by this Court in calling for the records pertaining to the impugned order in Ref.No.LL2/ 5352/2010 dated 11.10.2011 passed by the second Respondent/ Principal Chief Conservator of Forests, Chennai 15, and quash the same and further direction sought for passing of an order by this Court in directing the Respondents to provide the compassionate appointment to the second Petitioner in any other suitable post.
2. The second Respondent/Principal Chief Conservator of Forests, Chennai 15, in the impugned order dated 11.10.2011 has inter alia in paragraph 7 observed the following:-
"7. The Government have taken a policy decision to regularize the services of remaining 3058 Plot Watchers and Village Social Forestry Workers who are in the state wide seniority list and appoint them in the supernumerary post of 'Plot Watcher' in special time scale of pay in the pay band of Rs.2500-5000 with grade pay Rs.500 from 07.08.2009 on regular basis. Accordingly, the Government issued orders in G.O.Ms.No.95 Environment and Forest (FR-2) Department dated 07.08.2009 to regularize the service of Plot Watchers and Village Social Forestry Workers whose names find place in state wide seniority list of Plot Watchers / Village Social Forestry Workers prepared as per G.O.Ms.No.64 Environment and Forest (FR2) Department, dated 08.03.1999 and who have completed 10 years of service. This Government Order is applicable only to the persons who were working on the date of issue of said Government Order (i.e. 07.08.2009). The first petitioner's husband died quite earlier i.e. on 13.03.2007 to the date of issue of the said G.O.Ms.No.95 Environment and Forest (FR.II) Department dated 07.08.2009. There is no provision for compassionate ground appointment of legal heirs of deceased Plot Watchers / Village Social Forestry Workers. The Hon'ble High Court in its order dated 28.08.2009 in W.P.No.32743/06 (filed by K.Murugaiya S/o.late Karuupan Plot Watcher) had dismissed the case similar to this on the grounds that the applicant's father (i.e. deceased Plot Watcher) was not a regular Government Servant and that he worked as "Plot Watcher" under labour category on daily wages under Muster Roll Basis. (labour employed on Muster Roll) In present case 2nd Petitioner's father was also engaged in Forest Department temporarily on daily wage basis (labour engaged on muster roll). Therefore, the question of regularisation of the services of (Thiru) Chinnappa, Tmt.C.Kasiammal's husband and consequential monetary benefits as per G.O.Ms.No.95 Environment and Forest (FR.II) Department dated 07.08.2009 and appointing of regular Government Employees does not arise. The 2nd Petitioner is not eligible for appointment on compassionate grounds as stated above, since the deceased Plot Watcher was not a regular Government Servant."
and resultantly, rejected the request of the first Petitioner (Kasiammal) in regularising the service of late G.Chinnappa and consequential monetary benefits as per G.O.Ms.No.95 Environment and Forest (FR-II) Department dated 07.08.2009 and also the request of appointment of legal heir on compassionate ground.
3. According to the Petitioners, the first Petitioner's husband Chinnappa was originally appointed through Employment Exchange as Plot Watcher in the Forest Department by the third Respondent on 01.10.1980. Subsequently, he was appointed as Village Social Forestry Worker with effect from 15.05.1983. He worked on a consolidated salary (on daily wages).
4. Initially, he was paid the consolidated salary of Rs.350/- per month. The same was periodically increased and the last salary paid to him was Rs.1800/- per month. The first Petitioner's husband, Chinnappa died due to heart ailment on 13.03.2007, leaving behind the first Petitioner and two sons namely, Siva, aged 30 years (second Petitioner) and younger son namely Jeyaseelan, aged 26 years and one daughter Indhumathi, aged 23 years.
5. The plea of the Petitioners is that the first Petitioner is an illiterate, helpless widow (besides being a landless poor). Her family doing agricultural coolie work for their livelihood. Their family income was Rs.18,000/- per annum and the income certificate was issued by Polur Tahsildar. The stand of the first Petitioner, her family is living under indigent circumstances and no one in the family is a Government Employee.
6. The first Petitioner's son, second Petitioner (elder son of deceased Chinnappa) studied upto +2. His date of birth is 05.06.1980 and now he is aged about 32 years. His physical height is 167 cm. Chest measurement is 80 to 85. His name was also registered with District Employment Officer, Thiruvannamalai for employment and he is an unemployed youth.
7. The stand of the Petitioners is that the first Petitioner's deceased husband Chinnappa worked continuously for more than 25 years in the Forest Department and his services were not regularised till his demise (although the first Petitioner's deceased husband and other employees submitted several representation for their regularisation). In fact, the Government passed an order in G.O.Ms.No.64 dated 08.03.1999, whereby a Statewide seniority list was directed to be prepared for the purpose of providing permanent appointment. In terms of the above Government Order, services to be regularised depending upon the permanent vacancy on the basis of the seniority in the said list. In terms of seniority, the persons were appointed on regular basis as Forest Watchers and Malis, based on the required height of 163 cm. The first Petitioner's husband was eligible for the post of Mali as he comes under the required height below 163 cm. Her husband was assigned Serial No.1002 in the Statewide seniority list. However, he had not reached the seniority till his death on 13.03.2007.
8. While that being the facts situation, subsequently, the first Respondent/Secretary to Government, Environment and Forest Department, Chennai taken a policy decision to regularise the services of 3058 Plot Watchers and Social Forestry Workers, who are in the Statewide seniority list and appoint them in the supernumerary post as 'Plot Watchers' in the special time scale of pay of Rs.2,500 5,000/- with grade pay of Rs.500/- on regular basis. The first Respondent issued G.O.Ms.No.95 Environment and Forest (FR.II) Department dated 07.08.2009 to regularise the service of Plot Watchers and Village Social Forestry Workers, whose names find place in the Statewide seniority list prepared already with condition of completion of ten years of continuous service. At this juncture, the Petitioners' case is that first Petitioner's deceased husband put more than 10 years of service (in fact two decades) without any break. As per G.O.Ms.No.95 Environment and Forest (FR.II) Department dated 07.08.2009, the completion of ten years of service would be treated from the date of appointment and the first Petitioner's husband worked for 25 years. However his service was not regularised by the Respondents till date.
9. The Learned Counsel for the Petitioners makes a useful reference of Rules 2-B and 2-C of the Tamil Nadu Forest Subordinate Service Rules. The said Rule 2-B reads as under:-
"2-B: Appointment of Social Forestry Workers and Plot Watchers as Malis.
Not withstanding anything contained in Sub-Rule (a) of Rule 2, the post of Mali shall be filled up from among the persons working as Social Forestry Workers and Plot Watchers on daily wages on 15th October 1982 in the Forest Department."
Further Rule 2-C of the Tamil Nadu Forest Subordinate Service Rules reads thus:-
"2-C : Appointment of Social Forestry Workers and Plot Watchers as Forest Watchers and Malis from the Statewide list.
The post of Forest Watchers and Malis shall be filled up from among the state level seniority list persons working as Social Forestry Workers and Plot Watchers. Further appointment to the posts of Forest Watcher and Mali shall be made as per sub Rule (a) of Rule 2 above only, after all the persons in the said seniority list are appointed.
Explanation : State level seniority list means state level seniority list issued in Principal Chief Conservator of Forest in pursuance of G.O.Ms.No.64 dated 08.03.1999."
10. The Learned Counsel for the Petitioners forcefully submits that the Respondents, in terms of Rules 2-B and 2-C of the aforesaid Tamil Nadu Forest Subordinate Service Rules, have made it clear that they have recognized the rights of the Forest Watchers and Social Forestry Workers to secure regular appointments.
11. Advancing his arguments, the Learned Counsel for the Petitioners submits that the first Petitioner's deceased husband's name Chinnappa was included in the Statewide seniority list for the regular appointment and the amended Service Rules is very clear to reserve the regular appointment. In this connection, the Learned Counsel for the Petitioners brings it to the notice of this Court that pursuant to the order passed by the Hon'ble Supreme Court in C.A.No.6549 of 2009, G.O.Ms.No.95, Environment and Forest Department dated 07.08.2009 has been passed by the State Government relating to the Plot Watchers and Social Forestry Workers, whose names find place in the Statewide seniority list prepared as per G.O.Ms.No.64 dated 08.03.1999 and when the Rules and the aforesaid Government Orders clearly are in favour of the Petitioners, the first Petitioner's husband's long service could not be excluded from the status of regular appointment.
12. It comes to be known that the first Petitioner (wife of the deceased Chinnappa) submitted a representation on 13.04.2007 and 07.05.2007 within few days of his death for compassionate appointment and since no reply was furnished by the Respondents, she filed two Writ Petitions W.P.Nos.653 of 2010 and 7667 of 2011 seeking direction against the Respondents to regularise the services rendered by the deceased husband and also sought a relief of compassionate appointment. The said Writ Petitions were ordered by this Court on 26.06.2011 and the operative portion of the said order runs thus:-
5. The Petitioner being widow of a Government servant, has applied for compassionate appointment seeking appointment to her son viz., Siva. Since the service of the Petitioner's husband was not regularized, the said compassionate appointment was not considered.
6. Since the Petitioner is claiming regularization of the Petitioner's husband and consequential monetary benefit as well as compassionate appointment to her son, the Petitioner is permitted to submit a detailed representation before the first Respondent within a period of two weeks from the date of receipt of a copy of this order and the first Respondent is directed to consider the same in the light of the Government Orders as well as the service rendered by the Petitioner's husband by taking note of the Statewide seniority assigned to her husband bearing No.1002 and pass appropriate order within a period of three months from the date of receipt of representation from the Petitioner."
13. Apart from the above, the Learned Counsel for the Petitioners projects a legal plea that the Petitioners submitted a detailed representation dated 13.07.2011 as stated in the aforesaid Writ Petitions and her representation was rejected by the first Respondent on 11.10.2011 in Ref.No.LL2/5352/2010 stating that there was no provision to appoint the Legal Heir of the deceased as 'Daily Wage Employee' on compassionate ground.
14. Per contra, it is the contention of Mr.N.Inbanathan, Learned Counsel for the Respondents 1 to 3 that it is true that a Statewide seniority list was prepared as per G.O.Ms.No.64 Environment and Forest Department dated 08.03.1999 to consider Plot Watchers and Village Social Forestry Workers, who have worked on daily wages, as per their seniority and eligibility in the existing vacancies and future vacancies of Forest Watchers which arises in the Department.
15. The Learned Counsel for the Respondents contends that the first Petitioner's husband name Chinnappa was in seniority No.1002 of the aforesaid list. However, he was below 163 cm in height and therefore, he was not eligible for considering the post of Forest Watcher and only was eligible to the post of Mali, Office Watchman etc., Furthermore, there was no such vacancy in the cadre of Mali, Office Watchman etc. Added further, the first Petitioner's husband had not reached the seniority for considering as Mali, Office Watchman etc., till his demise on 13.03.2007.
16. The main contention advanced on behalf of the Respondents is that the first Petitioner's deceased husband's service was not regularised till his demise as casual labourer and also not appointed in regular time scale of pay and further the amended Service Rules are not applicable to the present case on hand. Since there is no rule or provision in force to provide compassionate ground appointment for other benefits, the same was informed to the first Petitioner on 20.04.2007 and on 29.01.2010 respectively. In fact in terms of G.O.Ms.No.73 Labour and Employment Department dated 26.10.1983 and the Government Letter No.126 Q-1/2006, Labour and Employment Department dated 16.09.2006, there is no provision to appoint the legal heir of the deceased daily wage employees on compassionate grounds. Therefore, the second Respondent / Principal Chief Conservator of Forests, Channai, has passed the impugned order dated 11.10.2011 rejecting the Petitioners' claim for compassionate appointment purely on the basis of the merits of the case and the same is in order.
17. The Learned Counsel for the Petitioners to lend support to the contention that even a person, who had worked for more than 12 years till the time of his death as daily wage labourer soon after his death, his widow is entitled to file claim for seeking appointment on compassionate ground, relies on the decision of the Hon'ble Supreme Court reported in "2009 (8) Scale 503, (General Manager, Uttaranchal Jal Sansthan .vs. Laxmi Devi and Others)" page 503 at Special Pages 508 and 509 wherein in paragraph 19, it is observed and laid down as follows:-
"19. Mrs.Rachana Joshi Issar, would, however, submit that the fact that the work charged employees had been working continuously for several years would raise a presumption that there exists a vacancy and, thus, there is a regular need for services.
Strong reliance in this behalf has been placed in this regard on Workmen v.Bhurkunda Colliery of Central Coalfields Ltd., [(2006) 3 SCC 297], wherein it was held:-
"17. This Court in State of Haryana .vs.. Piara Singh held that : (SCC P.153, para 51) "So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell say two or three years - a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the authority concerned to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person."
Also in the matter of regularisation, the main concern of the Court is to see that the rule of law is respected and to ensure that the executive acts fairly and gives a fair deal to its employees consistent with the requirement of Articles 14 and 16 of the Constitution. The State being a model employer should not exploit the employees nor take advantage of the helplessness and misery of either the unemployed person or the person concerned, as the case may be. ..... Where a temporary or adhoc appointment is continued for long, the Court presumes that there is regular need for his services on a regular post and accordingly, considers regularisation. (Piara Singh Case 4, SCC P.134, para 21)"
The said case, in our opinion, would have no application to the present case. These observations only lend support to the presumption as to a regular need for work of the daily wage worker but not as to the existence of a regular vacancy in this respect. In any event, it is one thing to say that by reason of such contingencies the services of the work-charged employee should be directed to be regularized but it is another thing to say that although they were not absorbed in the permanent cadre, still on their deaths, their dependents would be entitled to invoke the Rules."
18. He also cites the order of this Court dated 14.12.2012 in W.P.No.25543 of 2011 between "Ramani ..vs.. The State of Tamil Nadu represented by its Secretary to Government, Chennai 9 and four others" whereby and wherein in paragraph 6, it is observed and held as follows:-
"6. The Learned Counsel for the Petitioner also rightly placed reliance on the judgment of this Court in W.A.No.558 of 2009 dated 09.11.2009 (The Special Officer, Melur Co-operative Marketing Society Limited .vs.. S.Jothilakshmi and others). It is seen that a similar question was considered by the Division Bench as to whether the legal heir of a temporary employees, whose services were not regularised, can seek the relief of compassionate appointment. The Division Bench held as follows:-
"6. ... As far as the impugned order in the Writ Petition rejecting the request for compassionate appointment is concerned, the society has rejected the request wholly on the ground that the deceased husband of the first Respondent was not regularised. In our opinion, having regard to the fact that the deceased employee had put in 15 years of service and in the absence of any scheme stipulating conditions as to consideration of compassionate appointment to the dependents of a regular employee, whether such employee has been made permanent or yet to be made permanent would be highly too technical to reject the application for appointment on compassionate ground. That apart, factually the name of the deceased employee was recommended by the Special Officer of the Society in his proceedings dated 29.03.1996 for regularization along with similarly placed persons. However, before such recommendation was given effect to, unfortunately, the employee died on 15.11.1996. From the records it is also seen that within a period of 14 days, ie., on 29.11.1996, the all other persons numbering 14 and whose names were also recommended along with the deceased employee were regularised. The deceased employee could not be regularised as by that time he was not alive. Had he been alive, he would have also been regularised in service. In view of that, the argument of the Learned Counsel for the appellant that the deceased was not regularised and therefore, the first respondent cannot seek for compassionate appointment cannot be accepted."
This Court is of the considered view that the view taken by the Division Bench of this Court is squarely applicable to the facts of this case also as admittedly, the petitioner was in service on daily wage basis for more than a period of ten years and steps were also taken for the regularization of his services along with other similarly placed persons as per the proceedings dated 19.05.2003. Such being the position, the relief sought for by the petitioner, namely, compassionate appointment to her son, cannot be rejected on the sole ground that the petitioner's husband J.Manoharan was not a regular government employee."
19. The Learned Counsel for the Petitioners invites the attention of the Division Bench Judgment of this Court reported in "Tamil Nadu State Transport Corporation (Kumbakonam Division-I) Limited .vs.. Lalitha" [2005(2) CTC 246] at special pages 247 and 248 wherein in paragraphs 4 and 10 it is observed and held as follows:-
"4. We do not agree with this submission. It must be understood that the aforesaid G.O. is a piece of beneficial legislation and hence should be liberally construed. There is no doubt that the respondent's husband had worked in the service of the appellant Corporation for 16 years and thereafter he developed heart ailment and died. Before his death, he has been compulsorily retired by order dated 06.12.1995 due to his ailment, but on a representation made by him he was re-employed on 06.02.1996.
.....
.....
10. The respondent's husband had no doubt worked for more than 240 days before his demise. In fact, he had worked for 16 years. Hence, in our opinion, the respondent (his widow) is entitled to the benefit of the said G.O. There is no force in this appeal and it is dismissed. Consequently, WAMP No.682 of 2005 is also dismissed."
20. The Learned Counsel for the Petitioners brings it to the notice of this Court the decision reported in 2006 LAB.I.C. (NOC) 213 (ALL.) = 2006 (1) AlJ (NOC) 17 (Ram Autar ..vs.. State of U.P and others) wherein it is observed that the Petitioners father, being a Government servant, who had worked for 20 years as daily wages, he would be deemed to have worked in regular vacancy and held that the Petitioner's father would be treated as Government servant as defined under Section 2(a) of Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules.
21. On a careful consideration of respective contentions and in view of the Hon'ble Supreme Court decision in "General Manager, Uttaranchal Jal Sansthan .vs. Laxmi Devi and Others" "2009 (8) Scale 503 at Special Page 509 wherein in paragraph 19, it is inter alia held that "........ although they were not absorbed in the permanent cadre, still on their deaths, their dependents would be entitled to invoke the Rules.", this Court holds that the impugned order dated 11.10.2011 in Ref.No.LL2/5352/2010 passed by the second Respondent / Principal Chief Conservator of Forests, Chennai -15 to the effect that "..... Therefore, the question of regularization of the services of (Thiru) Chinnappa, Tmt.C.Kasiammal's husband and consequential monetary benefits as per G.O.Ms.No.95, Environment and forests (FR-II) Department, dated 07.08.2009 and appointing of regular Government Employees does not arise. The second Petitioner (C.Siva), son of the deceased Chinnappa, is not eligible for compassionate appointment as stated supra since the deceased Plot Watcher was not a regular Government Servant." is clearly unsustainable in the eye of law. As such this Court is left with no option to interfere with the said impugned order inasmuch as the same bristles with legal infirmities in the eye of law. Resultantly to prevent the aberration of justice, this Court interferes with the said order dated 11.10.2011 in Ref.No.LL2/5352/2010 and sets aside the same in furtherance of substantial cause of justice. Consequently, the Writ Petition succeeds.
22. In the result, the Writ Petition is allowed having the parties to bear their own costs. Resultantly, the impugned order passed by the second Respondent dated 11.10.2011 in Ref.No.LL2/5352/2010 is set aside by this Court for the reasons assigned in this Writ Petition. The Respondents are directed to consider the representation of the first Petitioner (wife of the deceased Chinnappa, Palvarthivendram Village, Ettivadi Post) dated 13.07.2011 afresh in a fair, just and objective and dispassionate manner and after taking into consideration the plight of the Petitioners family circumstances, economic conditions etc., and to pass a reasoned speaking order on merits (in regard to the request of the first Petitioner seeking compassionate appointment for the second Petitioner) uninfluenced by any of the observations made by this Court within a period of six weeks from the date of receipt of copy of this order. Consequently, connected Miscellaneous Petition is closed. However, there will be no orders as to costs.
13.12.2013 Index : Yes/No Internet: Yes/No mra To
1. The Secretary to Government Environment and Forest Department Secretariat Chennai 600 009.
2. The Principal Chief Conservator of Forests Panagal Maligai, Saidapet Chennai 600 015.
3. The Deputy Conservator of Forests A forestation Division Thiruvannamalai District.
M.VENUGOPAL, J.
mra Writ Petition No.29370 of 2011 and M.P.No.1 of 2011 13.12.2013