IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.04.2010 CORAM THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.No.43965 of 2006 (O.A.No.3509 of 2000) C.Jacob Edwin ... Petitioner Vs 1.The Director of School Education, College Road, Madras-600 006. 2.The District Educational Officer, Thukkalai, K.K.District. ... Respondents Prayer: Writ petition came to be numbered by transfer of O.A.No.3509 of 2000 on the file of the Tamil Nadu Administrative Tribunal praying to call for the records of the second respondent made in N.K.No.11309-A/95 dated 07.04.2000 and quash the same and issue a direction to the respondents to regularise the services of the applicant in the post of Junior Assistant, Government Higher Secondary School, Kulasekarapatinam, K.K.District, from the date of appointment with service and monetary benefits. For Petitioner : M/s.Saseetharan For Respondents : Mrs.Litta Srinivasan, G.A. ORDER
This writ petition has been filed to call for the records of the second respondent made in N.K.No.11309-A/95 dated 07.04.2000 and quash the same and issue a direction to the respondents to regularise the services of the applicant in the post of Junior Assistant, Government Higher Secondary School, Kulasekarapatinam, K.K.District, from the date of appointment with service and monetary benefits.
2.The petitioner who is the son of the deceased Government employee. His father was working as Secondary grade teacher in the Government Primary School in Kanyakumari District and died while on duty on 16.09.1962. The petitioner finished his S.S.L.C. in the year 1975 and BA in the year 1979, completed typewriting course in English and Tamil in 1981 and 1983 respectively. On the date of death of his father he was only five years old. Therefore, he would contend that with the necessary educational qualification, he applied for compassionate ground appointment only on 05.07.1989.
3.Thereafter, he was appointed as Junior Assistant on 29.11.1995 by the District Educational officer on compassionate grounds. On 25.02.1996, the applicant was sought to give details regarding the marital status of his brothers and the reason for the belated application for appointment, for which the petitioner submitted a explanation with respect to the notice on 30.12.1996 stating that his brothers got married even before the date of application and as early as in the year 1991. Proposals were sent to the Director of School Education for relaxation of age limit and ultimately, he was appointed only on 29.11.1995. Again the petitioner was asked to give explanation on 25.03.1997 for belated submission of application for appointment and other particulars about the marital status. The applicant submitted his reply on 09.09.1997 and subsequently, by an order dated 23.12.1998, he was informed that since the other brother is working in a private school and he got married and as he sought for the appointment only after 33 years, there is no need nor necessity for appointment and asked him to explain why his appointment should not be canceled by a proceedings dated 11.03.1999. Thereafter, the petitioner again submitted his explanation on 25.03.1999 and the mother has also stated that she was suffering and she was living along with the petitioner even though others were married and living separately and not taking care of her.
4.Ultimately, by an order dated 08.11.1999 on the very same reasons stated in the order 23.12.1998 after lapse of one year, the District Educational Officer has issued a show cause notice on 17.11.1989 for cancellation of his appointment for which also he sent another explanation on 24.11.1999. The petitioner also submitted that further explanation on 10.04.2000 along with the certificate of Tahsildar in which it is stated that the mother is in the care and protection of the applicant. But by an order dated 07.04.2000, the petitioner was terminated on the ground that at the time of appointment, the petitioner has crossed the age limit. Therefore, he would contend that he was allowed to continue for a period of more than five years and thereafter having cancelled the appointment and that cancellation is without any reasons and hence illegal.
5.The learned Government Pleader has filed a counter. In order to regularise the services of the incumbent, the authorities wanted to obtain orders from the Tamil Nadu Government for rules relating to age relaxation and at that point of time by a letter dated 02.03.2000, the Director of School Education pointed out that the other legal heirs of the deceased teacher were seeking employment in different organizations and therefore, the petitioner cannot be eligible for the appointment of Compassionate Grounds and directed to cancel the illegal appointment and therefore, a show cause notice was issued and as his explanation was not acceptable they have cancelled the appointment. Therefore, they are well within the limits in canceling the order.
6.Heard both the parties. In this connection, the only point which was argued by the petitioner is that even though he sought for the appointment after a lapse of 27 years, from the date of death of his father, actually he was a minor during the death of his father and he attained majority and completed his studies only in the year 1980 and thereafter only he applied in the year 1989 and 1991, the proposals have been sent seeking for exemption in age and thereafter, in 1995, he was appointed without any demur. Since, he had worked for more than five years, and now suddenly if he is removed, he would be put to irreparable loss and further pleaded to quash the order as he had filed an application before the Tribunal as early as on 15.05.2000 and obtained interim orders on 16.05.2000 and thereafter he has been continuing in service till date for a period of ten years. Totally he has put in 15 years of service.
7.In this connection, he relies upon two judgments. One, decision of the Supreme Court in (2003) 9 SCC page 129 in Union of India And Others vs. K.P.Tiwari. The relevant paragraphs reads as follows:
“2.The Tribunal in the first instance merely directed to consider the case of the respondent afresh for appointment on compassionate grounds in relaxation of the educational qualification on merits and the matter was disposed of. Thereafter, the said order was reviewed by another application when the various circumstances of the death of the father of the respondent, the brother being in employment and living separately not supporting the family of the respondent, were considered and the matter had been pending consideration for a long time and in view of the special circumstances directed that the respondent be provided with an employment within one month from the date of the receipt of the order.
3.During the pendency of these proceedings by an order made on 01.10.1996, the respondent has already been provided with an employment subject to the result of these appeals.
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.”
and the other the decision of this Hon’ble First Bench Court of this Hon’ble Court in W.A.No.1559 of 2009 in V.Balakrishnan Vs. The Joint Director of Agriculture, Tiruvannamalai and 3 others. The relevant paragraphs reads as follows:
“3.The appellant filed an Original Application before the Administrative Tribunal and obtained a stay against his termination. The respondents immediately moved an application to vacate the stay. While the application was pending, the proceedings came to be transferred to the High Court and was re-numbered as a writ petition. That writ petition when it reached for final hearing in October 2009, the learned Single Judge has noted that in view of the fact that another person in the family was employed in the Government service and that one brother was in a Private Company, it was not possible to say that there was any need for employment on a compassionate basis. He, therefore, dismissed the petition filed by the applicant.
4.Being aggrieved by that order, this appeal has been riled. The learned counsel appearing for the appellant basically submitted that good time has gone in the meanwhile. The main fact that he pressed into service was that he has been employed right from 1994 and for all these 15 years he has been in service and that his employment should not be disturbed. He relied upon the judgment of the Apex Court in the case of Union of India -vs- K.P.Tiwari reported in (2003) 9 SCC 129, where the person concerned was in employment for more than five years. In that matter also, it was noted that the brother of the employee concerned was in employment and yet in view of the fact that for more than five years the respondent was in service, the Supreme Court declined to interfere into his employment. Similar view has been taken recently by the Apex Court in D.M.Premkumari -vs- The Divisional Commissioner, Mysore Division reported in 2009 (2) Supreme 271. In that matter as well, the Apex Court has held, without going into the merits of the case, that the employment of the person concerned need not be disturbed.”
8.The Hon’ble Supreme Court and the Hon’ble First Bench Court of this Hon’ble Court have taken into consideration, that if a person is appointed on a compassionate ground he has allowed to work more than five years if he continues in service even by virtue of an interim order. Such appointment cannot be set aside merely on filmsy ground at a later point of time. No doubt in this case, the Government has totally made the mistake. First of all, they should not have given the appointment at all after a lapse of 27 years after the death of the father of the petitioner.
9.Unfortunately, even though they appointed him in the year 1995- 1996 they sought for the clarification only in the year 2000. Till 2000 they allowed him to work without any demur and therefore, the order cannot be passed terminating and especially now that he has continued in service for the past 10 years totally has put in 15 years of service, the case is squarely covered by the Judgment of The Hon’ble Supreme Court and the Hon’ble First Bench Court of this Hon’ble Court. Following the same, this writ petition is allowed setting aside the impugned order. No costs.
pri
To
1.The Director of School Education,
College Road,
Madras-600 006.
2.The District Educational Officer,
Thukkalai,
K.K.District