BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13/11/2009 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA W.P(MD)No.3909 of 2009 N.Elavarasan .. Petitioner Vs. 1.The Chief Engineer, Tamilnadu Electricity Board, 800, Anna Salai, Chennai 600 002. 2.The Superintending Engineer, Trichy Electricity Distribution Circle (North), Perambalur. 3.Assistant Executive Engineer Operation & Maintenance (South), Thuraiyur, Tiruchirapalli District. .. Respondents Prayer Writ petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records pertaining to the order passed by the second respondent in Letter No.0843- 1/ni.pi.1/u.4/Ko.va.ve/2007 dated 20.06.2007 and quash the same and consequently direct the respondents to provide suitable employment opportunity to the petitioner on compassionate ground under the jurisdiction of third respondent. !For petitioner ... Mr.D.Shanmugaraja Sethupathy ^For respondents ... Mr.V.Kasinathan * * * * * :ORDER
The petitioner has come forward with this petition seeking for the
relief of quashing the order of the second respondent dated 20.06.2007 in Letter
No.0843-1/ni.pi.1/u.4/ko.va.ve/2007 and consequently directing the respondents
to provide suitable employment opportunity to the petitioner on compassionate
ground under the jurisdiction of the third respondent.
2. The brief facts leading to the filing of this writ petition are
as follows;
(a) The father of the petitioner was working as a Watchman in Tamil
Nadu Electricity Board under the third respondent at Thuraiyur, Tiruchirapalli
District and he died on 16.06.1997, while he was in service. The petitioner and
her mother alone are the legal heirs of the deceased, father of the petitioner.
At the time of death of his father, the petitioner was a minor and his mother
was not having any source of income to maintain him. Therefore, the mother of
the petitioner submitted an application along with the representation to the
third respondent on 18.11.1997 seeking to provide any suitable appointment on
compassionate ground. Thereafter, the mother of the petitioner received a letter
from the second respondent dated 13.03.1998 which was purported to be sent to
the first respondent and in the said communication, it is stated that there are
certain defects in the application of the mother of the petitioner.
(b) Again another letter received by the mother of the petitioner
from the second respondent dated 14.10.2003 requesting the applicant to furnish
the Death Certificate of her husband, Legal Heir Certificate and Educational
Certificate. The mother of the petitioner sent the required certificates to the
second respondent through the third respondent and again another letter received
by her dated 27.03.2004 from the second respondent requesting to rectify some
mistakes in the application form and as such mistakes were rectified.
Thereafter, as directed by the second respondent, the third respondent conducted
an enquiry and came to the conclusion that the petitioner’s mother attained the
age of 52 years and she was not eligible to get appointment on the compassionate
ground as per the notification of the Board in B.P.Ms.(FB) No.46 Adm. Branch
dated 13.10.1995.
(c) Thereafter, the mother of the petitioner sent a representation
to the second respondent dated 27.07.2004 requesting for employment opportunity
to the petitioner on compassionate ground as she was not eligible as per the
enquiry conducted by the third respondent. The mother of the petitioner
received two letters dated 19.07.2004 and 16.08.2004 stating that the employment
opportunity cannot be extended to the petitioner as the petitioner was minor at
that point of time. Therefore, after attaining majority, the petitioner sent a
representation to the first and second respondents on 19.07.2006 along with the
letter of consent given by his mother seeking for the relief of appointment on
compassionate ground. The said representation was received by the first
respondent on 24.07.2006 and the second respondent on 23.07.2006. But no
communication till 20.03.2007. Thereafter, another representation was sent to
the first and second respondents on 20.03.2007.
(d)The petitioner passed S.S.L.C. examination and also joined in
Diploma course in Electrical and Electronic Engineering and he was not able to
complete the course, due to family condition. Having failed in his efforts, the
petitioner ultimately filed a writ petition in W.P.No.3887 of 2007 seeking
direction to the respondents to provide an employment opportunity on
compassionate ground. This Court passed an order directing the respondent to
consider the representation of the petitioner dated 20.03.2007 and in pursuance
of the said order, the second respondent has passed the impugned order dated
20.06.2007, rejecting the request made by the petitioner for the appointment on
compassionate ground. Being aggrieved against the said order, the present writ
petition is filed before this Court.
3.The learned counsel for the petitioner contended that the
application preferred by the petitioner is well within the time of limitation of
three years i.e., from the date of the petitioner attaining the age of majority.
It is submitted that the petitioner attained the age of majority on 14.07.2006
and he preferred an application within a week i.e. on 19.07.2006. It is
contended that even prior to the date of attainment of majority, the mother of
the petitioner made a representation to the second respondent on 27.07.2004
requesting to provide employment opportunity to the petitioner herein, as mother
of the petitioner has become ineligible due to her overage.
4.The learned counsel for the petitioner further contended that the
second respondent passed the impugned order rejecting the prayer of the
petitioner on the ground that the petitioner has not attained the age of
majority i.e., not completed the age of 18 years, within a period of three years
from the date of death of his father. The learned counsel would further submit
that such reason is unsustainable, in view of the fact that the limitation of
period of three years has to be calculated only from the date of attaining
majority and admittedly, the petitioner preferred the application for seeking
the relief of compassionate appointment within a period of three years from the
date of his majority.
5.The leaned counsel for the petitioner in support of his contention
would place reliance on the decisions of this Court in Meer Ismail Ali.T. Vs.
The Tamil Nadu Electricity Board, Chennai reported in 2004 (3) CTC 120; Selvi
R.Anbarasi Vs. Chief Engineer (Personnel), T.N.E.B., Chennai reported in (2006)
2 M.L.J. 2006; A.Neppolian Vs. The Chief Engineer (Personnel), T.N.E.B., and
another; reported in MANU/TN/9306/2006; and The Chief Engineer/Personnel,
T.N.E.B., and another Vs. Suder reported in MANU/TN/063/2009.
6.Per contra, Mr.V.Kasinathan, learned counsel appearing for the
respondents contended that there is no illegality or infirmity in the impugned
order passed by the respondents rejecting the claim of the petitioner for
compassionate appointment on the ground that the petitioner has not attained the
age of majority within a period of three years from the date of death of his
father.
7.I have carefully considered the submissions of both sides and
perused the materials available on record.
8.The fact remains that the father of the petitioner was working as
a Watchman in the Tamil Nadu Electricity Board under the third respondent and he
died during his service on 16.06.1997 and at that time, admittedly, the
petitioner was a minor. The petitioner and his mother alone are the legal heirs
of the father of the petitioner. It is seen that the mother of the petitioner
also preferred an application seeking for the relief of compassionate
appointment, within the stipulated time i.e., three years from the date of death
of the father of the petitioner. But, unfortunately the mother of the petitioner
was driven from pillar to post by asking repeated clarification and production
of certificates, and all her efforts ultimately proved futile as the second
respondent herein rejected her claim on the ground of her overage as she has
attained the age of 52 years.
9.It is pertinent to note that thereafter, the mother of the
petitioner also made a representation to the second respondent for appointment
on compassionate ground to her son viz., the petitioner herein, as early as on
27.07.2004 and the said request was also not accepted. Thereafter, the
petitioner attained majority on 14.07.2006 and immediately, within a week, i.e.,
on 19.07.2006 the petitioner preferred a representation and the same is well
within the period of three years from the date of his attaining majority seeking
for the relief of compassionate appointment. But the said request was rejected
by the second respondent on the sole ground that he has not attained the age of
majority within three years from the date of death of his father. It is seen
that in a catena of decisions, this Court has categorically held that the period
of limitation has to be reckoned only from the date of attaining majority and
not from the date of the death of the deceased, who was in service in T.N.E.B.
10.This Court in T.Meer Ismail Ali.T. Vs. The Tamil Nadu Electricity
Board, Chennai reported in 2004 (3) CTC 120 was 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.”
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.
gcg
To
1.The Chief Engineer,
Tamilnadu Electricity Board,
800, Anna Salai,
Chennai 600 002.
2.The Superintending Engineer,
Trichy Electricity Distribution
Circle (North), Perambalur.
3.Assistant Executive Engineer
Operation & Maintenance
(South), Thuraiyur,
Tiruchirapalli District.
4.The Addl. Public Prosecutor,
Madurai Bench of Madras High
Court, Madurai.