IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.06.2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.16730 of 2009 and M.P.No.1 of 2009 S.Muruganantham ... Petitioner Versus 1.The Chief Engineer (Recruitment), No.800, K.R.R. Maligai, VIII Floor, Anna Salai, Chennai - 2. 2.The Superintending Engineer, Tamil Nadu Electricity Board, Ramanathapuram, Ramanathapuram Circle. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus calling for the records relating to the letter of the first respondent dated 15.06.2009 issued in No.024211/152/G8/G82/2009-2 and quash the same and consequently to direct the respondents to consider the claim of the petitioner for compassionate appointment to any of the suitable post based on the educational qualification of the petitioner with all consequential benefits. For Petitioner : Mr.P.I.Thirumoorthy For Respondents : Mr.M.Vaidyanathan O R D E R
The petitioner’s father was employed as a Wireman under the second respondent at Kilakarai. While he was in service, he died on 03.02.1993 leaving behind him and his mother as legal heirs. The petitioner was aged 6 years at the time of the death of his father. The family was solely depending on the earnings of the father of the petitioner.
2.The mother of the petitioner made an application dated 13.07.1994 seeking compassionate appointment for her through the second respondent. The second respondent rejected the said application after two years on 18.05.1996 on the ground that the petitioner’s mother discontinued her studies in 7th Standard and that there was no post available for her qualification.
3.In these circumstances, the petitioner’s mother made a representation dated 14.05.1999 to provide employment to the petitioner on his attaining the age of 18 years. Her application is based on the proceedings dated 14.06.1997 of the Chief Engineer (Personnel). The proceedings dated 14.06.1997 of the Chief Engineer provides for making application for compassionate appointment after the minor children of the deceased/employee reached the age of 18 years.
4.The petitioner completed the age of 18 years on 05.12.2005. He also passed SSLC in March 2005. He made an application on 03.05.2006 based on the aforesaid proceedings dated 14.06.1997 of the Chief Engineer to give him compassionate appointment as he attained the age of 18 years.
5.Since no order was passed on his application, he filed a writ petition in W.P.No.1730 of 2007 for a direction to the first respondent to consider his representation dated 03.05.2006. This Court by order dated 17.02.2009, directed the second respondent to consider the representation of the petitioner dated 03.05.2006 within a period of six weeks and to pass orders thereon.
6.The second respondent informed in his letter dated 25.03.2009 that the request made by the petitioner for compassionate appointment was under consideration. While so, the first respondent passed the impugned order dated 15.06.2009 rejecting the request of the petitioner for Compassionate appointment on the ground that the claim of the petitioner for compassionate appointment was beyond three years limitation prescribed in Permanent B.P.Ms.(F.B) 46 (Administrative Branch), dated 13.10.1995.
7.The petitioner filed the present writ petition seeking to quash the impugned order dated 15.06.2009 of the first respondent and for a consequential direction to the respondents to provide compassionate appointment in any of the existing vacancies.
8.Notice of motion was ordered on 19.08.2009. The respondents entered appearance.
9.Heard Mr.P.I.Thirumoorthy, learned counsel appearing for the petitioner and Mr.M.Vaidyanathan, learned counsel appearing for the respondents.
10.The learned counsel appearing for the petitioner further submits that there are various posts in the Electricity Board for which the petitioner’s mother is eligible for consideration. But, the respondents refused to provide compassionate appointment on the ground that there was no post available in the respondent Board for her qualification. The learned counsel brought to my notice the relevant regulation relating to the qualification prescribed for those posts. Regulation 94 of the Tamil Nadu Electricity Board Service Regulations prescribes qualification for various posts and the posts for which the petitioner’s mother is eligible are extracted here under:
“94.Quallifications:
(a) No person shall be eligible for appointment to the post and by the method mentioned in Annexure III, unless he possesses the qualification specified therein.
ANNEXURE III Post Method of Qualification (1) Recruitment(2) (3) Groundsman 'A' Pass in IV Standard with one Groundsman 'A' year practical experience in the type of work concerned. Lascar, Grade I Lascar, Grade II Vehicle Helper Nursing Orderly Mazdoor, Grade I Pass in IV Standard with one Mazdoor, Grade II year practical experience in the type of work concerned. Coal Mazdoor -do- Laboratory Helper -do- Messenger Boy -do- Gurkha Watchman -do- Matty-cum-Watchman -do- Watchman Ability to read and write Tamil Gardener -do- Sweeper -do- Sanitary Worker -do-
Note-5 therein states that even the qualification of “Ability to read and write Tamil” prescribed for the posts are not required in the case of the dependents of employees who die in harness. The same is extracted here under.
“Note-5: The qualification of “Ability to read and write Tamil” prescribed for the posts of Watchman, Gardener, Sweeper and Sanitary Workers, will not be applicable to the appointment of dependents of employees who die in harness.”
11.The learned counsel for the petitioner further submits that the respondent Board provides employment to one of the members of the family where lands are acquired for the Board, without reference to any qualification.
12.The learned counsel also submits that more than 30,000 contract workmen were taken into the service of the respondent Board without reference to any educational qualification, if those workmen were below 58 years.
13.But, the mother of the petitioner was denied compassionate appointment, citing lack of educational qualification.
14.The learned counsel appearing for the petitioner states that when the respondents failed to give employment, his mother made an application in the year 1999 to the respondents to provide employment to the petitioner. The learned counsel relies on three decisions of this Court in support of his claim for compassionate appointment.
15.The claim for compassionate appointment in the respondent Board of a minor after he reached 18 years was considered by the Division Bench of this Court by the order dated 08.03.2005 in W.A.No.3050 of 2003. In the said case, the minor was aged about 11 years, when his father died on 15.07.1996. He did not reach 18 years as on 06.04.2002. He made an application dated 13.01.2003 after he reached 18 years. His claim was rejected on the ground that the application was beyond the period of three years from the date of death of the employee.
16.This Court ultimately directed the respondent Board to consider and give employment to the concerned person based on his application dated 13.01.2003. Paragraphs 11 and 12 of the Judgment in W.A.No.3050 of 2003 is extracted here under.
“11.If we apply the above principles, no doubt the claim of the petitioner has to be rejected. However, in our case, the Electricity Board has framed a scheme and formulated certain guidelines, as seen from B.P.46, dated 13.10.1995. As per the said proceedings, particularly, Clause 3(i), one of the main condition is that application for appointment on compassionate ground should be made within three years from the date of death of an employee. In our case, we have already observed that the petitioner made an application within three years period and one more factor in favour of the petitioner is that the second respondent himself has informed in his letter dated 14.07.1999 that her son being a minor, after attaining the age of 18 years, she would make another application. Pursuant to the same, she has made an application on 13.01.2003, i.e., within two days on her son attaining majority.
12.The learned counsel for the Board has brought to our notice that by proceedings dated 06.04.2002, the Tamil Nadu Electricity Board has deleted two conditions imposed in Board’s Circular dated 14.06.1997, viz., (a)if the applicant is a minor, he has to make an application after attaining majority; and (b)fresh application after attaining majority will be considered based on the Rules of the Board applicable on that date. It is contended that since the above said Clauses have been deleted by the above referred proceedings dated 06.04.2002, which has come into force from 06.04.2002 itself, the second application of the petitioner dated 13.01.2003 cannot be considered as per Bp.46, dated 13.10.1995, as per application is beyond the period of three years from the date of death of her husband. For the reasons stated in Para 11 we are unable to sustain the said objection.”
17.Another Division Bench of this Court passed an order on 30.03.2009 in W.A.No.1652 of 2006 and directed the respondents to consider the claim for compassionate appointment of a minor, who reached 18 years after 06.04.2002. In this case, the minor applied for compassionate appointment on 21.10.1999 as his father died on 07.03.1998. His application was returned with a direction to the widow of the deceased employee to apply again after completion of 18 years of age of her son by order dated 01.08.2000. He attained the age of 18 years on 03.08.2002. However, the application was rejected on 28.04.2003 on the ground that no application can be entertained after three years of the death of the deceased employee. In such a factual background, the Division Bench set aside the impugned order and directed the respondent Board to consider the application of the son of the deceased employee for compassionate appointment. While disposing of the Writ Appeal, the Division Bench considered the earlier decision of the Division Bench dated 08.03.2005 in W.A.No.3050 of 2003 referred to above. The Division Bench recorded a finding that the order of the earlier Division Bench dated 08.03.2005 in W.A.No.3050 of 2003 amounts to setting aside the proceedings dated 06.04.2002 of the Chief Engineer, withdrawing the benefits conferred in his earlier proceedings dated 14.06.1997, permitting the minor children of the deceased employee to make application for compassionate appointment after the minor reached 18 years.
18.In the third case, a learned Single Judge of this Court passed an order dated 24.11.2009 in W.P.No.27596 of 2008, directing the respondent Board to consider the representation dated 22.02.2005 of the son of the deceased employee for compassionate appointment, when he made a representation on attaining the age of 18 years, following the two Division Bench Judgments referred to above. In this case, the Employee died on 09.10.1999. The application was made seeking compassionate appointment on 24.04.2001. The respondent Board directed the minor son to wait for completion of 18 years of age. He made a representation dated 28.02.2005 seeking compassionate appointment that was rejected on the ground that the application was made beyond three years. The learned single Judge directed the respondent Board to consider the application in the light of the decisions of the aforesaid Division Benches. It is stated by the learned counsel for the petitioner that the concerned person was given compassionate appointment, based on the order of the learned single Judge.
19.On the other hand, the learned counsel for the respondents submits that the decision relied on the learned counsel for the petitioner is not applicable to the facts of the case. The learned counsel for the respondents states that the application dated 14.05.1999 seeking employment for the petitioner was filed beyond three years. Therefore, those judgments could not be applied.
20.I am not in agreement with the submission made by the learned counsel appearing for the respondents. The application dated 14.05.2009 should be treated as a continuation of the earlier application dated 13.07.1994, seeking employment for the mother of the petitioner. In fact, in W.P.27596 of 2008, the petitioner’s application dated 22.02.2005 was treated as a continuation of the earlier application dated 28.04.2001. Further, the two decisions of the Division Bench of this Court and a Single Judge of this Court have categorically held in similar circumstances, the respondents/Board should consider the claim of the legal heirs, when they made application on completion of 18 years of age. In this case, the respondents refused to consider the mother of the petitioner on the ground that there was no post available for her qualification. In these circumstances, the application made by the mother of the petitioner to give employment to the petitioner should be construed as the continuation of her earlier application.
21.In these circumstances, the impugned order dated 15.06.2009 of the first respondent is liable to be quashed and accordingly, the same is quashed. The respondents are directed to consider the request of the petitioner dated 03.05.2006 for compassionate appointment, in the light of the aforesaid two decisions of the Division Bench of this Court in W.A.No.3050 of 2003 and W.A.No.1652 of 2006 and the order dated 24.11.2009 in W.P.No.27596 of 2008 of a learned single Judge, within a period of three months from the date of receipt of a copy of this order.
22.In fine, the writ petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.
16.06.2010
Index : Yes/No
Internet : Yes/No
MPS/TK
Note to Office:
Issue order copy on 06.07.2010.
To
1.The Chief Engineer (Recruitment),
No.800, K.R.R. Maligai, VIII Floor,
Anna Salai,
Chennai – 2.
2.The Superintending Engineer,
Tamil Nadu Electricity Board,
Ramanathapuram,
Ramanathapuram Circle.
D.HARIPARANTHAMAN, J.
MPS/TK
W.P.NO.16730 OF 2009
16.06.2010