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E. Ganesan vs The Secretary To Government on 22 January, 2011

Madras High Court
E. Ganesan vs The Secretary To Government on 22 January, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 22/01/2011

CORAM
THE HONOURABLE MR.JUSTICE  M.VENUGOPAL

W.P.(MD)No. 1550 of 2008

E. Ganesan			   		... Petitioner

Vs.

1. The Secretary to Government,
Rural Development Department,
Chennai.

2. The District Collector,
Office of the District Collector,
Tirunelveli.

3. The Assistant Director of Panchayat,
Office of the Assistant Director of Panchayat,
Tirunelveli.

4. The Block Development Officer,
Office of the Block Development Office,
Cheranmahadevei,
Tirunelveli District.				... Respondents
	
Prayer

Writ Petition is filed under Article 226 of the Constitution of India to
issue a Writ of Mandamus directing the first respondent to reconsider the
proposal of the third respondent vide proceedings in Na.Ka. No. 123/ 79716/2006
dated 23.3.2007 in respect of the petitioner's representation for seeking
compassionate appointment and grant permission to the fourth respondent to
appoint the petitioner as Jeep Driver and pass such further or other orders as
this Court may deem fit and proper in the circumstances of this case.

!For Petitioner            ... Mr. M. Saravanakumar
^For Respondents 	   ... Mr. D. Sasikumar
			       Government Advocate	
		
					
:ORDER	

The petitioner has filed the present Writ Petition seeking the relief of
Writ of Mandamus to direct the first respondent to reconsider the proposal of
the third respondent as per proceedings in Na.Ka. No. 123/ 79716/2006 dated
23.3.2007 123/ 79716/2006 dated 23.3.2007 in regard to the petitioner’s
representation for seeking compassionate appointment and grant permission to the
fourth respondent to appoint the petitioner as Jeep Driver.

2. The learned counsel for the petitioner submits that the petitioner’s
father late S.Isakki who worked as Office Assistant in the fourth respondent
Office, expired on 22.8.1993 while in service. The petitioner is a elder son to
his father. However, his father(since deceased) has two wives and since he has
no issue through the first wife, he got married to one Gomu and out of the said
wedlock, he has three children. Admittedly, the petitioner is the second wife’s
elder son.

3. The learned counsel for the petitioner submits that the petitioner has
completed 8th standard and he is holding LMV license. The petitioner’s mother
has projected an application to the Second Respondent/District Collector,
Tirunelveli District, seeking employment to the petitioner on compassionate
ground in the fourth respondent’s office on 9.2.1996 and the said application
has been filed before the second respondent office. Once again, the petitioner
has made an application in proper format on 27.9.2000 to the Fourth
Respondent/Block Development Officer, Cheranmahadevei, Tirunelveli District,
along with concerned documents with a request to appoint him as Jeep Driver.
During the year 2000-2004, the petitioner has made many representations to the
authorities concerned.

4. However, a proposal has been sent to the Government through the
Director of Rural Development and Panchayat Raj on 16.4.2007 requesting him to
grant permission from the Tamil Nadu Government to appoint the petitioner as
Jeep Driver on compassionate ground as per proceedings of the third respondent
in Na.Ka. No. 123/ 79716/2006 dated 23.3.2007. The fourth respondent has sent a
communication dated 20.4.2008 to the petitioner mentioning that the proposals
sent by them in respect of the petitioner’s representation seeking appointment
on compassionate ground, have been returned on the basis that the application
for compassionate appointment has not been made within three years from the date
of the petitioner’s father’s death as per G.O. Ms. No. 42 (Labour and
Employment) dated 12.3.2007 and Government letter No. 202 (Labour and
Employment) dated 8.10.2007.

5. The main contention advanced on behalf of the petitioner is that the
petitioner’s mother has filed an application on 9.2.1996 within two and a half
years from the date of the petitioner’s father’s death dated 22.8.1993 and that
the respondents without considering the record, have returned the proposal in
connection with the petitioner’s representation seeking compassionate ground
appointment in a casual manner.

6. Per contra, it is the contention of Mr.Sasikumar, Learned Government
Advocate appearing for the respondent Nos. 1 to 4 that the petitioner is a son
of late Isakki who worked as Office Assistant at Cheranmahadevi Panchayat Union
Office and that he has expired on 22.8.1993. The learned Government Advocate
further contends that the first wife of the petitioner’s father, late Isakki
namely,Poovammal has submitted a representation seeking to disburse the benefit
of the deceased husband in favour of her and the children of the said Isakki by
producing a legal heir Certificate and in that Certificate, the name of the
second wife of the petitioner’s father Gomu is not made mention of as one of the
legal heirs. After obtaining opinion from the Government Pleader, the provident
fund amount was disbursed to the first wife Poovammal and three children of the
petitioner’s father on 28.9.2007.

7. In this connection, it is useful to refer to the paragraph No. 3 of the
counter filed by the Fourth Respondent/ Block Development Officer, Tirunelveli
District, wherein it is observed as follows:

3. I further submit that the allegation stated in para 2 of the affidavit that
the petitioner Ganesan submitted application seeking employment on compassionate
ground before the fourth respondent i.e. the Block Development Officer,
Cheranmahadevi is an utter falsehood. His mother Tmt.Gomu submitted her
representation only on 20.12.1999 before the District Collector and not before
the Block Development Officer, Cheranmahadevi. Subsequently for a first time,
the petitioner has made a representation on 4.9.2000. The said representation
was forwarded to the Government on 23.3.2007 vide Letter Roc No. N3/797/16/2006.
But the same was returned on 8.10.2007 by stating petitioner is highly belated
one barred by limitation. As per the G.O., the petitioner should have applied
within three years from the date of death of the deceased. Hence as per G.O. No.
42 of Labour/Employment dated 12.3.2007 and government Letter No. 202(Labour and
Employment) dated 8.20.3007, the petitioner’s request seeking employment on
compassionate ground was rejected by the government. So, the application and
documents submitted by the petitioner was returned to the petitioner vide Letter
in Na.Ka. No. A1/1550/02 dated 20.4.2008.

7. In effect, the respondents have taken a stand that the petitioner’s
mother Gomu (the second wife of the petitioner’s father Isakki since deceased)
has submitted a representation only on 20.12.1992 before the Second
Respondent/District Collector and not before the Fourth Respondent/Block
Development Officer, Cheranmahadevi, Tirunelveli District. Also, a stand is
taken for the first time that the petitioner has made the representation on
4.9.2002 etc.

8. Pith and substance of the contention projected on behalf of the
respondents is that as per G.O. Ms. No. 42 (Labour/Employment) dated 12.3.2000
and Government letter No. 202 (Labour and Employment) dated 8.10.2007, the
petitioner should have applied within three years from the date of death of the
said deceased Isakki.

9. At this juncture, countering the submissions of the learned Government
Advocate appearing for the respondent Nos 1 to 4, the learned counsel for the
petitioner relies on the order of this Court in W.P. (MD) No. 3909 of 2009 dated
13.11.2009 between N. Elavarasan Vs. the Chief Engineer, Tamilnadu Electricity
Board, 800, Anna Salai, Chennai -2 and two others, wherein at paragraph Nos. 11
to 14, it is observed as follows:

“11) This Court in another decision in Selvi R.Anbarasi Vs. Chief Engineer
(Personnel), T.N.E.B., Chennai reported in (2006) 2 M.L.J., 2006 held as
follows:

“The learned counsel for the petitioner submitted that a similar issue,
rejecting the compassionate ground appointment on the ground that the
application was submitted beyond three years and the same was rejected earlier
on the ground that the petitioner therein has not completed 18 years of age, was
considered by this Court in W.P.No.1584 of 2001 and this Court held that the
applications having been made within a period of three years and the same having
not been considered on the ground that the petitioner therein was not 18 years
of age at that time, the subsequent application cannot be rejected on the ground
that the application was submitted within three years. The learned Judge
directed the respondents not to treat the second application as an application
for compassionate appointment, but it is to be treated as continuation of the
application originally submitted. The said judgment is reported in T.Meer
Ismail Ali Vs. Tamil Nadu Electricity Board through its Chairman, and others,
(2004) 3 C.T.C. 120. This Court, ultimately, directed the respondents to give
compassionate appointment to the petitioner therein.”

12)This Court in yet another decision in A.Neppolian Vs. The Chief Engineer
(Personnel), T.N.E.B. Chennai and another reported in MANU/TN/9306/2006 held as
hereunder;

“(c) In W.P.No.8154 of 2002 (A.Govindan v. The Chief Engineer
(Personnel), TNEB, Chennai and Anr.) the Hon’ble Mr.Justice N.V.Balasubramaniam,
by order dated 9.4.2002 allowed similar writ petition with a direction to treat
the application submitted as within the time.

(d) The Hon’ble Mr. Justice P.D.Dinakaran by order dated 23.9.2003
in W.P.No.19673 of 2003 (J.Jayakaran v. The Superintending Engineer, Theni
Electricity Distribution Circle, Theni)
allowed the writ petition and directed
the TNEB to pass orders granting compassionate appointment. Paragraph 5 in the
said order reads as under;

“It is true that when an application was made for employment of the
petitioner, i.e., on 23.05.2002, the petitioner was only a minor, but not
qualified. But he had attained majority on 02.06.2003 and therefore, the
respondent Board, having kept the application of the petitioner for employment
on compassionate ground under consideration, ought to have considered the case
of the petitioner for suitable employment without rejecting the same on
technical reason, by the impugned order dated 18.06.2003. Since B.P.No.146
dated 13.10.1995 prescribes only a maximum period of three years for
consideration of the application for appointment on compassionate ground, the
respondent shall consider the request of the petitioner for employment on
compassionate ground and pass appropriate orders within twelve weeks from the
date of receipt of copy of this order, if the petitioner is otherwise qualified
for suitable post.”

13.Lastly a Division Bench of this Court in The Chief Engineer/Personnel,
T.N.E.B., & another Vs. S.Suder reported in MANU/TN/0635/2009 was held as
follows;

“4.In the judgment reported in 2001 Writ L.R. 601 in the case of
“Ramadoss. D. v. The Chief Engineer, T.N.E.B”, this Court (D.Murugesan, J)
directed the consideration of the application made within a period of three
years after attaining the majority by placing reliance on the very same Circular
in B.P.No.46, dated 13.10.1995.

5.Subsequently, in the judgment reported in 2002(4) L.L.N. 1132,
(D.Murugesan, J.), in the case of “P.Ravi v. Chief Engineer (P), T.N.E.B.“,
also, the very same Circular was relied upon and the application for appointment
on compassionate grounds was directed to be considered.

6.Justice P.D.Dinakaran, has also taken the very same view by following
the very same Circular dated 13.10.1995, in W.P.No.19673 of 2003, in the order
dated 23.09.2003, in the case of ‘J.Jayakaran v. The Superintending Engineer,
Theni Electricity Distribution Circle, Theni
” and the application for
appointment on compassionate grounds was directed to be considered.

7.Justice K.Govindarajan has also taken the same view in Writ Petition
No.13099 of 2003, order dated 30.10.2003, in the case of “G.Muthamilselvan v.
The Chief Engineer (Personnel) and Anr.

8.Justice F.M.Ibrahim Kalifulla has also taken the same view in the
decision reported in Manu/TN/0337/2004, 2004(3) CTC 120, (2004) 4 MLJ 238 in the
case of “Meer Ismail Ali. T. v. The Tamil Nadu Electricity Board“. We are told
that the order in the said case of “Meer Ismail Ali” was confirmed in the Writ
Appeal by the Division Bench in W.A.No.4008 of 2004, by judgment dated 1.12.2004
and as against the said judgment dated 1.12.2004, the Special Leave Petition in
Civil Appeal No.6387 of 2005, was also dismissed by the Supreme Court, by
judgment dated 4.4.2005.

9.Similar question came up for consideration before a Division Bench of
this Court in Writ Appeal No.3050 of 2003 in the case of “Indiraniammal v. The
Chief Engineer (Personnel) and Anr.” and by judgment dated 08.03.2005, the
Division Bench set aside the impugned order therein in rejecting the request of
the petitioner therein for appointment on compassionate grounds and directed the
Board to consider the application.

10.There cannot be a controversy in view of the settled position of law
that appointment on compassionate ground is not automatic, as it would amount to
back door entry to a post, by-passing the Rules to be followed for such
appointment. Nevertheless, to tide over the financial constraints of a family
due to sudden demise of the breadwinner of a family, the State Government or its
undertaking or for that purpose, any employer, would be entitled to frame
Scheme/Rules for such appointment by prescribing the conditions as well as the
eligibility. Hence, the request for appointment on compassionate grounds would
be considered with reference to the Scheme/Rules or any of the provisions framed
for the said purpose, either by the Government or by the employers, as the case
may be.

11.In the case on hand, the father of the respondent while he was working
as Wireman in the Office of the Assistant Engineer, TNEB, Kazhuvanthilai,
Kanyakumari District, died due to illness on 07.03.1998. At the time of the
death of his father, the respondent was 15 years old and for the purpose of
making application for appointment on compassionate grounds, he should have
completed 18 years. Hence, he could not make any application for appointment on
compassionate grounds. By placing reliance on B.P.No.46, dated 13.10.1995, he
made application on 3.9.2002, within a period of four days from the date of his
attaining majority, i.e., 18 years. That application was rejected on the ground
that the same cannot be entertained as per the Circular in vogue on the date of
the application. Presumably, the order of rejection was passed on the basis of
the Memo, dated 6.4.2002.

12.As we have already referred that the application for compassionate
appointment is maintainable by a person within a period of three years after
he/she attains the majority, irrespective of the fact that the breadwinner died
while such person was a minor in terms of the proceedings of the Board in
B.P.No.46 dated 13.10.1995. This position is not in dispute. We may also once
again refer to the fact that following the very same Board proceedings in
B.P.No.46, dated 13.10.1995, consistently, this Court had taken the view that
the application seeking for appointment on compassionate grounds, has to be
considered in the event when such applications are made within a period of three
years after he/she attains the majority.”

14) In view of the above said principle laid down by this Court consistently
in the above said decisions, this Court has no hesitation to quash the impugned
order as the petitioner preferred the application seeking for the relief of
compassionate appointment within a period of three yeas from the date of his
attaining majority. Accordingly, this petition is allowed and the impugned
order passed by the second respondent in Letter No.0843-
1/ni.pi.1/u.4/ko.va.ve/2007 dated 20.06.2007 is hereby quashed and the second
respondent is directed to provide appointment to the petitioner on compassionate
ground in respect of any suitable job within a period of eight weeks from the
date of receipt of a copy of this order. No costs.

10. From the typed set of papers filed on behalf of the petitioner, it is
clear that the petitioner’s mother Gomu (being the second wife of the
petitioner’s father late Isakki) has submitted a petition No. 10141 on People
Grievance Day before the Second Respondent/District Collector, Cheranmahadevi,
Tirunelveli District, praying for a compassionate appointment for her son who
has not completed 18 years of age at the time of the death of her husband
namely, the petitioner’s father and now, on 20.12.1993, the petitioner is aged
19 years and has passed 8th standard. Again, on 09.2.1996, the petitioner’s
mother Gomu has addressed the letter to the Second Respondent/District
Collector, Tirunelveli District, through proper channel praying for appointment
to her elder son Ganesan on compassionate ground.

11. The learned counsel for the petitioner seeks in aid of the counter
filed by the Fourth Respondent/Block Development Officer, Cheranmahadevi,
Tirunelveli District, to the effect that it has been admitted that the
petitioner has made representations on 4.9.2000 and before that 20.12.1999, her
mother has submitted a representation.

12. From the above factual details, it is quite evident that the
petitioner’s mother Gomu (second wife of the petitioner’s father late Isakki)
has submitted her representation dated 9.2.1996, to the Second
Respondent/District Collector, Tirunelveli District. The representation of the
petitioner’s mother in regard to the compassionate ground appointment on
20.12.1993 has been admitted by the Fourth Respondent/Block Devleopment Officer,
Cheranmahadevi, Tirunelveli District, in his counter at paragraph No. 3. Also,
the subsequent representation dated 4.9.2000 of petitioner has also been tacitly
admitted by the fourth respondent in the counter at paragraph No.3. As such, the
petitioner’s mother has made the representation to the second respondent on
20.12.1993, on 9.2.1996 and on other dates, as mentioned earlier. Even though
the petitioner’s mother submitted an application dated 20.12.1993 to the Second
Respondent/ District Collector on People Grievance Day, during the time of
petitioner’s father’s death, the petitioner has not completed 18 years and on
20.12.1993 at the time of submission of application, he has completed 19 years
and the subsequent applications projected by the petitioner’s mother on
9.2.1996, 20.12.1993 and the petitioner’s representation on 4.9.2000 can only be
construed to be in continuation of the application dated 20.12.1993 submitted by
the petitioner’s mother and therefore, contra view taken by the respondents and
the subsequent rejection of the petitioner’s request for seeking appointment on
compassionate ground as per G.O. Ms. No. 42, Labour/Employment dated 12.3.2007
and Government letter No. 202 (Labour and Employment) dated 8.10.2007, are not
sustainable in the eye of law. Resultantly, this Court allows the Writ Petition
by directing the first respondent to reconsider the proposal of the third
respondent as per proceedings Na.Ka. No. 123/ 79716/2006 dated 23.3.2007. The
petitioner’s mother’s representation dated 20.12.1993, 9.2.1996, 20.12.1999,
22.8.2000 and the petitioner’s representation dated 4.9.2000 in a dispassionate
manner as regards the request for petitioner’s compassionate appointment and the
first respondent is directed to pass an order in any event within a period of
eight weeks from the date of receipt of copy of this order. Considering the
facts and circumstances of the case, the parties are directed to bear their own
costs.

13. However, the petitioner is directed to furnish a copy of his mother’s
representation dated 20.12.1993 addressed to the second respondent/District
Collector, a copy of his mother’s representation dated 9.2.1996, 20.12.1999 and
the petitioner’s representation dated 4.9.2000 to the concerned parties and it
is open to the first respondent or other competent authorities to act on the
representation so made by the petitioner’s mother or the petitioner, as the case
may be, to prevent
an aberration of justice and the authorities concerned will have to act
untrammelled or uninfluenced by any of the observations made by this Court in
this Writ Petition.

ses

To,

1. The Secretary to Government,Rural Development Department,
Chennai.

2. The District Collector,Office of the District Collector,
Tirunelveli.

3. The Assistant Director of Panchayat,
Office of the Assistant Director of Panchayat,Tirunelveli.

4. The Block Development Officer,
Office of the Block Development Office,
Cheranmahadevei,Tirunelveli District.

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