BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/12/2009 Coram THE HONOURABLE MR.JUSTICE K.N.BASHA W.P.(MD)No.986 of 2009 M.Syed Sagubar Sathiq .... Petitioner Vs 1.The Principal Chief Engineer Water Resources cum Chief Engineer (Public) Public works Department, Chepauk, Chennai. 2.The Executive Engineer (Public) Building Construction and the Administration Theni District. 3.The Superintendent Engineer Public Work Department Building Construction and Administration No.2 Madurai District. .... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the impugned letter No.S.34/24559/07 dated 31.12.2008 on the file of the respondent No.1 and quash the same as illegal and directing the respondent No.1 to appoint the petitioner as a Junior Assistant or any other competent post under him on compassionate ground. !For Petitioner ... Mr.T.Lajapathi Roy ^For Respondents ... Mr.V.Rajasekaran Special Government Pleader :ORDER
Mr.V.Rajasekaran, learned Special Government Pleader has taken
notice for the respondents. By consent of both sides, the Writ Petition is
taken up for final hearing at the stage of admission.
2. The petitioner has come forward with this petition seeking for the
relief of Writ of Certiorarified Mandamus to quash the impugned letter
No.S.34/24559/07 dated 31.12.2008 on the file of the first respondent and to
direct the first respondent to appoint the petitioner as a Junior Assistant or
any other competent post under him on compassionate ground.
3. The case of the petitioner is that his father was working as a
Record Clerk under the third respondent herein died on 23.11.1980, while he was
in service. At that time, the petitioner was eight months old infant.
Subsequently on 04.10.1994, the mother of the petitioner sought for the relief
of appointment of the petitioner on compassionate ground by submitting an
application dated 14.10.1994. On 08.02.1995, the first respondent sent a letter
to the mother of the petitioner advising her to apply after attaining the age of
majority of the petitioner. The petitioner attained the age of majority on
15.06.1998 and preferred a representation, dated 25.07.1998, seeking for the
relief of compassionate appointment. The third respondent sent the communication
on 26.11.1998, to the first respondent recommending the claim of the petitioner
for appointment on compassionate ground as a Clerk by referring G.O.Ms.No.120
dated 26.06.1995, which provides for the appointment on compassionate ground. As
there was no further action, the mother of the petitioner sent another
representation on 14.10.2001. On 08.10.2001, the third respondent requested the
first respondent to obtain a suggestion from the Government regarding the
appointment of the petitioner. On 16.10.2001, the second respondent sent a
communication to the mother of the petitioner stating that the petitioner would
be given appointment after getting proper order from the first respondent. But
on 22.08.2003, it was informed by the third respondent that new appointment on
the basis of compassionate ground was banned by the Government in
G.O.No.212/p.c./dept/dated 29.11.2001. On 20.02.2006, the second respondent
informed the mother of the petitioner that the ban was lifted.
4. The Chief Engineer, PWD Department, Chennai sent a letter to the
petitioner asking his consent for appointment to the post as a Typist or Junior
Assistant. On 30.04.2007, the petitioner expressed his consent for such
appointment. But in spite of all these communications, the first respondent
passed the impugned order dated 31.12.2008, rejecting the claim of the
petitioner for the appointment on compassionate ground on the ground that the
petitioner has not preferred his application seeking for the appointment within
a period of three years from the date of death of his father. Aggrieved against
the said order, the petitioner has been constrained to approach this Court with
the aforesaid prayer.
5. Mr.T.Lajapathi Roy, learned counsel for the petitioner contended
that the petitioner preferred an application well within the period of three
years after attaining the age of his majority and as such the impugned order is
liable to be quashed. It is contended that the period of three years is to be
reckoned only from the date of the petitioner attaining majority as the father
of the petitioner died on 23.11.1980 and the petitioner attained the age of
majority only on 15.06.1998 and the petitioner preferred a representation
immediately on 25.07.1998. It is pointed out that even prior to the date of
attaining majority, the mother of the petitioner preferred an application on
14.10.1994, seeking for the relief of compassionate appointment of the
petitioner. Therefore, it is contended that the impugned order is
unsustainable.
6. Heard Mr.V.Rajasekaran, learned Special Government Pleader on the
submissions made by the learned counsel for the petitioner. It is submitted
that the claim of the petitioner was rejected earlier on the ground of ban of
making fresh appointments and later by passing the impugned order on the ground
that the petitioner has not submitted his application within a period of three
years from the date of death of the deceased viz., the father of the petitioner.
Therefore, it is contended that there is no infirmity or illegality in the
impugned order.
7. I have carefully considered the rival contentions put forward by
either side and also perused the materials available on record.
8. The fact remains that the father of the petitioner was working as a
Record Clerk in the third respondent and he died while he was in service on
23.11.1980 and at that time, the petitioner was a minor. It is pertinent to
note that the mother of the petitioner preferred an application as early as on
14.10.1994 seeking for the relief of appointment of the petitioner on
compassionate ground. But the first respondent through his communication dated
08.02.1995, advised the mother of the petitioner to prefer an application after
the petitioner attaining the age of majority. It is seen that the petitioner
attained the age of majority on 15.06.1998 and within a period of three years
from that date, he has preferred his representation on 25.07.1998 itself
claiming for the appointment on compassionate ground. The second respondent
also recommended to accept the claim of the petitioner as per his communication
dated 25.07.1998 to the third respondent. Again on 26.11.1998, the third
respondent sent a letter to the first respondent recommending the claim of the
petitioner for appointment as a Clerk on compassionate ground, by referring the
G.O.No.120 dated 26.06.1995, which provides for the appointment on compassionate
ground within a period of three years from the date of death of the government
service.
9. As there was no further progress, the mother of the petitioner
preferred yet another representation dated 14.10.2001. On 16.10.2001, the
second respondent sent a communication to the mother of the petitioner stating
that the claim is under consideration and progress. But on 22.08.2003, the
third respondent informed the mother of the petitioner that there was a ban as
per G.O. in G.O.No.212/p.c./dept, dated 29.11.2001 for making fresh
appointments. Again on 20.02.2006, the second respondent informed the mother of
the petitioner that such ban was lifted.
10. The Chief Engineer, (Building), PWD Department, Chennai, sought for
consent of the petitioner for appointing the petitioner as Typist or Junior
Assistant and the petitioner consented for the same. But in spite of all these
sequence of events and communications, the first respondent passed the impugned
order on 31.12.2008 rejecting the claim of the petitioner on the sole ground
that the petitioner has not preferred the application within a period of three
years from the date of the death of his father.
11. It is pertinent to note that the said order is in printed form.
There is absolutely no reference whatsoever in respect of the previous
communication sent by the respondents 1 to 3. It is seen that the petitioner
was a minor at the time of the death of his father on 23.11.1980. It is
pertinent to note that the petitioner attained the age of majority on 15.06.1998
and he immediately preferred an application on 25.07.1998 well within the period
of three years from the date of attaining his age of majority.
12. In a catena of decisions, this Court has categorically held that the
period of limitation of three years is to be reckoned from the date of attaining
the age of majority. It is worthwhile to refer the said decisions as hereunder:
(i) 2006 (9) SCC 195 (SYED KHADIM HUSSAIN v. STATE OF BIHAR) in which the
Hon’ble Apex Court in a similar matter has held hereunder:-
“The widow had applied for appointment within the prescribed period and
without assigning any reasons the same was rejected. When the appellant
submitted the application, he was 13 years’ old and the application was rejected
after a period of six years and that too without giving any reason and the
reason given by the authorities was incorrect as at the time of rejection of the
application he must have crossed 18 years and he could have been very well
considered for appointment. Of course, in the rules framed by the State there is
no specific provision as to what should be done in case the dependents are
minors and there would be any relaxation of age in case they did not attain
majority within the prescribed period for submitting application.
As the widow had submitted the application in time, the authorities should
have considered her application. As eleven years have passed, she would not be
in a position to join the Government service. This is a fit case where the
appellant should have been considered in her place for appointment. Counsel for
the State could not point out any other circumstances for which the appellant
would be dis-entitled to be considered for appointment. In the peculiar facts
and circumstances of this case, the respondent authorities are directed to
consider the application of the appellant and give him appropriate appointment
within a reasonable time at least within a period of three months.”
(ii) 2009 (4) MLJ 424 (R.D.RAJESH KANNA v. CHAIRMAN-CUM-MANAGING
DIRECTOR, NATIONAL INSURANCE CO., LTD.,)
(iii)”This Court in T.Meer Ismail Ali.T. Vs. The Tamil Nadu Electricity
Board, Chennai reported in 2004 (3) CTC 120 held as follows;
“I am, therefore, of the view that the petitioner’s case deserves
consideration inasmuch as he had diligently made a claim once in the year 1997
and thereafter, immediately after attaining the age of 18, in the year 2000 and
in such circumstances, rejection of his application on the ground that it was
not made within three years was not justified.”
(iv)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.”
(v)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.”
(vi)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.”
13. The principles laid down by this Court and as well as by the Hon’ble
Apex Court in the decisions cited supra are squarely applicable to the facts of
the instant case, as in this case also, the petitioner preferred the application
seeking for the appointment on compassionate ground well within the period of
three years as the petitioner attained the age of majority on 15.06.1998 and the
application was submitted on 25.07.1998. Therefore, this Court is of the
considered view that the impugned order is liable to be quashed. Accordingly,
the Writ Petition is allowed and the impugned order of the first respondent in
his letter in S.34/24559/07 dated 31.12.2008 is hereby set aside. Consequently,
the respondents are hereby directed to appoint the petitioner in respect of any
suitable post as per his eligibility. It is made clear that the above said
exercise should be completed within a period of twelve weeks from the date of
receipt of a copy of this order. No costs.
RR
To
1.The Principal Chief Engineer
Water Resources cum Chief Engineer (Public)
Public works Department,
Chepauk, Chennai.
2.The Executive Engineer (Public)
Building Construction and the Administration
Theni District.
3.The Superintendent Engineer
Public Work Department
Building Construction and
Administration No.2
Madurai District.