Madras High Court
M.Ramadoss vs State Of Tamilnadu on 26 August, 2014
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :26.08.2014
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.10842 of 2008
M.RAMADOSS [ PETITIONER ]
Vs
1 STATE OF TAMILNADU
REP. BY ITS SECRETARY TO GOVT.
DEPARTMENT OF REVENUE
FORT ST. GEORGE CHENNAI-9.
2 THE DISTRICT COLLECTOR
THIRUVARUR DISTRICT THIRUVARUR.
3 THE TAHSILDAR
THASILDAR OFFICE MANNARGUDI
THIRUVARUR DIST.
[ RESPONDENTS ]
Prayer:- Writ Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus to call for the records relating to the impugned order passed by the 2nd Respondent dated 28.08.2007 in his Ni.Mu.36083/2003/A3 and quash the same and to direct the Respondents to provide any suitable job on the compassionate ground in the third Respondent office.
For Petitioner : Mr.M.Md.Ibrahim Ali
For Respondents : Mr.S.V.Duraisolaimalai, AGP
O R D E R
The petitioner has come up with this writ petition challenging the order of the 2nd respondent dated 28.08.2007 and to direct the respondents to provide any suitable job on the compassionate ground in the third Respondent office.
2. The case of the petitioner is that his father Mr.Mahalingam was working as Village Assistant under the office of the 3rd respondent and he died in harness on 14.08.2004, leaving behind the following legal heirs:-
(i) Mrs.Chandira, aged 50 years - Wife
(ii) Mr.Kumar, aged 28 years - Son (Married)
(iii) Mrs.Jayanthi, aged 26 years - Daughter (Married)
(iv) Mr.Ramadoss, aged 24 years - Son (Unmarried) It is the further case of the petitioner that his brother, after getting married and employed in Central Reserve Police Force, is living separately and hence he and his mother are without any financial assistance. Further, he has registered himself in the Employment Exchange in the year 1998 and the same has been periodically renewed till date. That apart, according to the petitioner due to an injury sustained in an accident, the Doctor has given him the disability certificate assessing 40% disability. Besides, the petitioner submitted a representation dated 27.09.2005, to the 3rd respondent for compassionate ground appointment enclosing all the necessary documents, stating that he is entitled for compassionate appointment in terms of the guidelines issued by the Government, which was forwarded to the 2nd respondent. However, the 2nd respondent, by the impugned order dated 28.08.2007, has rejected the claim of the petitioner on the ground that his brother is working in Central Reserve Police Force. Aggrieved against the same, this writ petition is filed.
3. The learned counsel appearing for the petitioner submitted that the Tahsildar, after enquiry, has given a letter dated 18.03.2006, stating that the petitioner's father died on 14.08.2004 and Kumar, S/o Mahalingam, has joined in the Central Reserve Police Force, six years prior to the date of death of Mahalingam and that he is living separately at Jammu & Kashmir and that except the said Kumar, no one in their family is employed either in the Government or in a private establishment. While that being so, according to the learned counsel for the petitioner, when one of the exceptions to the guidelines for employment on compassionate ground stipulates that if any one of the family member is living separately, abandoning the family, compassionate appointment to any other person could be given, rejecting the request of the petitioner for compassionate ground appointment on the ground that Kumar, S/o Mahalingam is employed in Central Reserve Police Force, by the impugned order dated 28.08.2007 is unsustainable. The learned counsel for the petitioner also relied on a decision of the Hon'ble Supreme Court reported in (2003) 9 Supreme Court Cases 129 (Union of India and others vs. K.P.Tiwari) in support of his contention.
4. No counter has been filed. However, the learned Additional Government Pleader, appearing for the respondents, by circulating a letter of the Tahsildar to the District Collector dated 24.01.2014, wherein the comments of the affidavit has been given, contended that Kumar, S/o Mahalingam, brother of the petitioner is living separately does not mean that he is not taking any care of the family. He further contended that the petitioner will not fall under the exemption clause as contended by the learned counsel for the petitioner supra. Further, relying on the said letter of the Tahsildar dated 24.01.2014, the learned Additional Government Pleader submitted that in terms of G.O.No.40, Labour and Employment Department, dated 05.01.1999, the 2nd respondent has made an endorsement stating that the family is supported by the income derived from the brother and hence the petitioner is not entitled to compassionate ground appointment as the family of the deceased is deriving income from the brother of the petitioner viz., Kumar. Further, he submitted that the father of the petitioner had worked as Village Assistant in part time service upto 31.05.1995 and from 01.06.1995 to 14.08.2004 in full time service and he died on 14.08.2004, while he was in Government service. Since the petitioner is one of the legal heirs of the deceased employee and since one of the legal heir of the deceased employee is employed and as the family is not in indigent circumstances, the writ petitioner is not entitled to the relief sought for. Based on the above submissions, the learned Additional Government Pleader has sought for dismissal of the writ petition.
5. I have heard the learned counsel on either side and perused the materials available on record.
6. It is not in dispute that Mahalingam died on 14.08.2004, while rendering service in the Government. It is also not in dispute that Kumar, S/o Mahalingam is employed in the Central Reserve Police Force. Further, it is also not disputed as could be seen from the impugned order that the petitioner's brother Kumar is living separately. But, there is no averment in the impugned order that Kumar's income is being sent to the family and being utilized by the family members. This Court in a catena of decisions has taken a view that what is not mentioned in the impugned order cannot be improved by means of a counter, by following the decision of the Hon'ble Supreme Court in the case of Mohinder Singh Gill v Chief Election Commissioner reported in (1978) 1 SCC 405, wherein the Honble Apex Court had taken a view that by way of counter, the reasons not stated in the impugned order cannot be improved by the respondent concerned. As such, what is not stated in the impugned order cannot be allowed to be canvassed before this Court by the respondent concerned for rejecting any right or any claim made by an individual. That is to say, by way of counter, the reasons cannot be improved for rejecting any claim. That apart, it is also not disputed either in the letter of the Tahsildar to the District Collector dated 24.01.2014 or in the impugned order dated 28.08.2007 or by the arguments of the learned Additional Government Pleader that the petitioner's request does not fall under the exemptions to the guidelines, which is mentioned below:-
"tpjp tpyf;Ffs;
(1) ///// (2) mf; FLk;gj;ijr; rhh;e;j egh; jd;dpr;irahf mf;FLk;gj;ij tpl;L jdpahf thH;e;jhy; ntW xUtUf;F gzp epakdk; tH';fyhk;"
That apart, the letter of the Tahsildar dated 18.03.2006 has also not been referred to in the impugned order. Further, G.O.No.40 dated 05.01.1999 has not been produced before this Court.
7. However, as far as the decision relied on by the learned counsel for the petitioner reported in (2003) 9 Supreme Court Cases 129 is concerned, the same is not applicable to the facts of this case. In the said Judgment, it is stated that the brother being in employment and living separately not supporting the family of the respondent therein were considered and in view of special circumstances provided employment to the person concerned. Further, the relevant portion of the decision reads as follows:-
"4. It is unnecessary in this case to examine either questions of law or fact arising in the matter. Suffice to say that the respondent has been appointed now and has been in service for more than five years. We do not think, it would be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood".
In the said case, the Government has taken a decision to provide employment and the employee therein was given employment by the Government and the Hon'ble Supreme Court has held that it should not be disturbed, resulting in uprooting the workman from his livelihood. But, that is not the case here. As far as the case on hand is concerned, the petitioner has not been provided with employment at all. Hence, the above decision relied on by the learned counsel for the petitioner will not support the case of the petitioner.
8. But, as the impugned order is silent with regard to the certificate of the Tahsildar dated 18.03.2006 and the fact that the petitioner's brother is living in Jammu & Kashmir, who is employed in Central Reserve Police Force, coupled with the fact that the request of the petitioner squarely falls under the exemption clause, which is extracted supra, this Court is of the view that the impugned order has got to be interfered with and the matter has to be remitted back to the second respondent to consider the case of the petitioner afresh for appointment on compassionate grounds.
9. In view of the above, while setting aside the impugned order dated 28.08.2007, this writ petition is disposed of by directing the second respondent to consider the case of the petitioner afresh for appointment on compassionate grounds, by taking note of the fact that the petitioner is suffering from 40% disability and also the relevant Rules and Regulations along with the Exemption Clause extracted above, within a period of three months from the date of receipt of a copy of this order. It is also made clear that the claim of the petitioner's request shall not be rejected on the very same ground, which is the subject matter of the writ petition. No costs.
26.08.2014 rg Index:Yes/No To 1 STATE OF TAMILNADU REP. BY ITS SECRETARY TO GOVT.
DEPARTMENT OF REVENUE FORT ST. GEORGE CHENNAI-9.
2 THE DISTRICT COLLECTOR THIRUVARUR DISTRICT THIRUVARUR.
3 THE TAHSILDAR THASILDAR OFFICE MANNARGUDI THIRUVARUR DIST.
S.VAIDYANATHAN, J rg W.P.No.10842 of 2008 26.08.2014