IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.06.2010 CORAM: THE HONOURABLE MR.JUSTICE T. RAJA W.P.No.42681 of 2006 P. Kathiresan ... Petitioner Vs. 1.Director of Medical and Rural Health Services D.M.S. Complex, Chennai 6. 2.The Medical Officer, Primary Health Centre, Parthibanoor, Ramnad dist. ... Respondents Prayer: Petition filed under Article 226 of The Constitution of India praying to call for the records in Na.Ka.No.97801/Ni.9/1/96-1 dated 22.11.1999 issued by the 1st respondent, and to quash the same. For Petitioner : Mr.P.Murugesan For Respondents : Mr.S.Gopinathan, AGP For R1 & R2. ORDER
The petitioner P.Kathiresan, has challenged the impugned order of termination dated 22.11.1999, terminating the service of the petitioner, who was appointed on compassionate ground, without holding any enquiry whatsoever.
2. The petitioner was appointed as Junior Assistant, by order dated 25.02.1995, at the Primary Health Centre, Parthibanoor, Ramnad District, on compassionate ground, since the petitioners father late C. Pandian, who was working as a Government servant serving as Driver in Government Hospital, Thiruchuli, Virudhunagar District, expired on 25.02.1994. After the death of the petitioner’s father, Tmt. P.Pitchaimani the petitioners mother, in her application, nominated the name of the petitioner, who is the second son of Late C. Pandian, for providing employment to the post of Junior Assistant on compassionate ground. Subsequently, the petitioner’s mother P.Pitchaimani, also expired on 02.06.1994.
3. In view of the fact that the petitioner’s parents had passed away, the petitioner was appointed as Junior Assistant, on compassionate ground, on 25.02.1995. From the date of appointment, the petitioner was working without giving any room for any complaint. Whileso, after 4 = years of his service, even without holding any enquiry, the services of the petitioner was terminated by the impugned order dated 22.11.1999, on the ground that the petitioner’s elder brother, one Murugesan was already working as leprosy inspector as early as 1989. Therefore, the impugned order came to be passed against the petitioner without holding any enquiry.
4. The learned counsel appearing for the petitioner submits that the very impugned order passed against the petitioner is not sustainable for more than two reasons. Firstly, the petitioner was appointed on compassionate ground, after an application was submitted through the Tahsildar, Aruppukottai stating that there was no one working in the Government service as on the date of submitting the said application seeking appointment under compassionate ground. Secondly, the impugned order was passed without giving any notice or conducting enquiry, and therefore, the impugned order is liable to be set aside, since the same is vitiated for having not followed the principles of natural justice. Thirdly, the G.O.No.155 dated 16.07.1993, also goes in favour of the petitioner which states that, if a member of the family is already in employment at the time of death of the Government servant and was living separately without extending any help to the family, then the case of other eligible dependents will be considered. On the basis of the said G.O.No.155 dated 16.07.1993, the appointment of the petitioner made on compassionate grounds cannot be found fault with, which was not done in this case and, therefore, the petitioner was compelled to challenge the same. At the time of admitting the O.A.No.7497 1999 by the Tribunal, an order of stay was passed directing the first respondent to reinstate the petitioner in the post of Junior Assistant. Further, the petitioner has also completed 15 long years of service and on that basis prayed for quashing the impugned order.
5. On the other hand the learned Additional Government Pleader submits that the petitioner has admitted the factum of his elder brother one Murugesan was already working as leprosy inspector as early as 1989. The respondent came to know about this fact while proceeding to regularise the service of the petitioner and on that basis the impugned order of termination came to be passed. Since, appointment on compassionate grounds can only be extended to the bread winner of a family and as the elder brother is already a Government servant at the time of death of his father, the order of termination was rightly passed on the petitioner and, therefore no interference shall be made by this court, in the present petition filed under Article 226 of The Constitution of India, and on that basis prayed for dismissal of the writ petition.
6. Heard the parties on either side.
7. The petitioners father Late S.Pandian, expired on 25.02.1994, while in service. Therefore, his wife Tmt. P.Pitchaimani the petitioner’s mother, in her application nominated the petitioner, who is the second son of Late C. Pandian, for providing appointment to the post of Junior Assistant on compassionate ground. Subsequently, after the said application was made nominating the name of the petitioner, unfortunately, the petitioner’s mother also passed away on 02.06.1994. In the meanwhile, the petitioner’s elder brother Murugesan, employed in a Government service, was working as leprosy inspector as early as 21.05.1989, without supporting the petitioners family and this fact was also certified by the Tahsildar, Aruppukottai by giving a letter to the department stating that the petitioner is the bread winner of the family as on the date of application seeking employment on compassionate ground. On consideration of the said certificate, the petitioner was appointed as Junior Assistant on compassionate ground. After 4 = years of service, when the respondent came to consider the case of the petitioner for regularisation of service, the respondent came to know about the petitioner’s elder brother’s employment in Government service and passed the impugned order of termination without holding any enquiry or notice to the petitioner.
8. That apart G.O.No.155 dated 16.07.1993, in para 3 it is clearly mentioned that “even if a member of the family is already in employment and supports the family then the restriction may be applied. When a dependent of the family is employed, the factors to be ascertained are, whether he is regularly employed and is actually supporting the family. If that person was employed even before the death of the Government servant and was living separately without extending any help to the family, then the case of other eligible dependents will be considered.”
9. In view of the above said Government order, and taking into consideration the certificate issued by Tahsildar, Aruppukottai certifying that there was no other bread winner in the family except the petitioner, I am of the view that the order of termination impugned herein should not have been passed without giving notice or holding enquiry violating the principles of natural justice and the same is liable to be set aside. Further, the petitioner has been working for the last 15 years and in that context it is useful to refer a judgment of the Supreme Court reported in (2003) 9 SCC 129 (Union of India and others v. K.P.Tiwari) wherein the Apex Court has also held that it would not be appropriate to disturb an appointment if the person is in service for more than 5 years. Whereas, in the present case on hand, the petitioner has already completed 15 years therefore, by taking stake of the family situation, it would not be appropriate for this court to make any other order resulting in uprooting the petitioner’s family from livelihood.
10. Therefore, following the decision of the Supreme Court as well as the G.O.No.155 dated 16.07.1993, I am of the considered view that the impugned order is liable to be set aside. Accordingly the impugned order is set aside and the writ petition is allowed. No costs.
prm
To
1. Director of Medical and
Rural Health Services
D.M.S. Complex, Chennai 6.
2. The Medical Officer,
Primary Health Centre,
Parthibanoor,
Ramnad Dist.