IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.12.2009 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.142 of 2007 G.Vijayakumar ... Petitioner versus 1. The Commisioner & Secretary to the Department of Highways and Rural Works Secretariat Fort St.George Chennai 600 009 2. The Chief Enigneer Highways & Rural Work Chepauk Chennai 600 009 3. The Superintending Engineer Highways & Rural Works Department Chennai Division Chennai 600 025 4. The Divisional Engineer Highways & Rural Works Department Chenglepattu 5. The Assistant Divisional Engineer Highways & Rural Works Maduranthagam Chengalepattu ... Respondents PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.1453 of 2001 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for the records relating to the issue of the order bearing No.KN.6841/A/2/95 dated 11.10.1999 issued by the fourth respondent viz., The Divisional Engineer, Highway and Rural Works Department, Chenglepattu, directing the respondents to appoint the petitioner as Junior Assistant in the Department of Highways & Rural Works, Chennai, on compassionate grounds in connection with the date of his father R.Govindan. For Petitioner : Mr.D.Ashok Kumar For Respondents : Mrs.C.K.Vishnu Priya Additional Government Pleader O R D E R
The Original Application in O.A.No.1453 of 2001 before the Tamil Nadu Administrative Tribunal is the present writ petition.
2. The petitioner’s father was appointed as Gang Mazdoor on 01.06.1971 in Chengalpattu Highways Division. While he was serving in the respondents-Department, he died on 08.08.1980 due to illness leaving behind him, his wife and his son (the petitioner herein). Since the petitioner’s mother did not have basic qualification, she did not apply for compassionate appointment. At the time of death of his father, the petitioner was only aged three years. In November 1995, the petitioner made an application for compassionate appointment. The fourth respondent sought for report from the Assistant Divisional Engineer, Highways, Maduranthagam, Chengalpattu, in respect of the qualification and other details relating to petitioner for compassionate appointment. The fourth respondent also sent a letter dated 06.03.1996 to the third respondent that he was awaiting report from the Assistant Divisional Engineer. The petitioner also gave a representation to the Chief Minister Cell seeking compassionate appointment and the same was forwarded to the concerned Collector and the Collector in-turn sought report from the second respondent. The fourth respondent sent a letter dated 11.10.1999 to the District Collector, Kancheepuram, stating that the second respondent passed an order dated 06.05.1999 returning the application of petitioner seeking compassionate appointment on the ground that the application was made after seventeen years of the death of the father of the petitioner and that therefore compassionate appointment could not be given to petitioner. It is stated that the same was intimated to the petitioner by a letter dated 21.05.1999 of the fourth respondent.
3. The petitioner filed Original Application in O.A.No.1453 of 2001 (W.P.No.142 of 2007) to quash the aforesaid order dated 11.10.1999 issued by the fourth respondent and consequential direction to respondents to provide him compassionate appointment.
4. Heard Mr.D.Ashok Kumar, learned counsel for the petitioner and Mrs.C.K.Vishnu Priya, learned Additional Government Pleader for the respondents.
5. The learned counsel for the petitioner submits that the impugned order mainly proceeds on the basis that the compassionate appointment was sought after 17 years from the date of death of the Government employee and that therefore, the petitioner is not entitled to seek compassionate appointment. It is submitted that prior to the year 1995, there was no limitation prescribed for seeking compassionate appointment. The Government entertained applications for compassionate appointment without reference to any limitation. However, the Government issued an order in G.O.Ms.No.120, Labour and Employment Department, dated 26.06.1995 prescribing three years period of limitation from the date of death of the Government servant to seek compassionate appointment. It is further submitted by the learned counsel for the petitioner that the respondents seem to have been influenced by the aforesaid G.O.Ms.No.120. But the Labour and Employment Department of the Government issued a letter of clarification in Letter No.39924/Q1/95-1 dated 11.10.1995 stating that the aforesaid Government Order is applicable only to the deaths that occur after 26.06.1995 and not to past cases. The learned counsel for the petitioner relies on the following passage from the said letter:-
“……In this connection, it is clarified that the time limit of three years period specified in the Government Order first cited is applicable only to the dependants of the Government servants those who died while in service on or after 26.6.95 and the above order are not applicable to the past cases….”
6. The learned Additional Government Pleader, argued based on instructions, seeks to sustain the impugned order and submits that the belated application deserves to be rejected.
7. I have considered the submissions made on either side. The claim for compassionate appointment should be based on the scheme that is available and it should be within the scheme. Admittedly, it is not in dispute that before 1995, the applications were entertained without reference to any limitation. Only in the year 1995, the limitation was prescribed for making application for compassionate appointment. It was clarified by the Labour and Employment Department of the Government in its letter No.39924/Q1/95-1 dated 11.10.1995 that the prescription of three years limitation does not apply to past cases. Had the respondents taken note of the aforesaid letter of the Government, the fourth respondent could not have passed the impugned order. Since the impugned order is solely on the ground that the application was made after 17 years from the date of death, it is liable to be interfered with in view of the clarification letter dated 11.10.1995 of the Labour and Employment Department, referred to above.
8. In these circumstances, the impugned order is set aside and the matter is remitted to the second respondent to consider the claim of the petitioner for compassionate appointment and to pass appropriate order on merits and in accordance with law, without reference to limitation, within a period of twelve weeks from the date of receipt of a copy of this order.
9. The writ petition is allowed on the above terms. No costs.
1. The Commisioner & Secretary
to the Department of Highways
and Rural Works
Chennai 600 009
2. The Chief Enigneer
Highways & Rural Work
Chennai 600 009
3. The Superintending Engineer
Highways & Rural Works Department
Chennai 600 025
4. The Divisional Engineer
Highways & Rural Works Department
5. The Assistant Divisional Engineer
Highways & Rural Works