IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17/06/2006
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
WRIT PETITION No.11984 of 2001
and
WPMP.No.32613 of 2004
N.Mariappan ... Petitioner
-Vs-
The Corporation of Chennai,
rep.by its Commissioner,
Ripon Building,
Chennai 600 003 .. Respondent
The Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus as stated therein.
For petitioner : M/s.Sudha Ramalingam
For respondent : Mr.C.Ravichandran
:ORDER
The Writ Petition has been filed praying for the issuance of a Writ of
Certiorarified Mandamus, to call for the records and quash the order
No.Po.Thu.NA.KA.E-12/19623/99, dated 4.6.1999, issued by the respondent and
consequently direct the respondent to appoint the petitioner on compassionate
basis to any post in any section commensurate with the petitioner’s
qualification.
2. Heard the learned counsel for the petitioner as well as for
the respondent.
3. It is the case of the petitioner that his father late
K.Nagappan was employed as a R.C.Driver in H Depot, Zone VIII, under the
respondent Corporation and he had died in harness on 20.08.1992. The
petitioner’s mother had predeceased his father on 25.12.1989. The petitioner
had made a representation to the respondent on 19.03.1999, for appointment on
compassionate grounds, along with all the relevant records. The respondent
had sent a letter to the Tahsildar, MylaporeTriplicane Taluk and sought for
the ‘Family Circumstances Certificate’. Inspite of receiving the same, the
respondent had sent the impugned order No.Po.Thu.NA.KA.E-12/19623/99, dated
4.6.1999, rejecting the petitioner’s name for compassionate appointment on the
ground of lapse of three years which was the limitation period.
4. It is further stated that the petitioner and his elder sister
one Kattammal were minors at the time of the death of their parents and
therefore, they could not apply for appointment on compassionate grounds
immediately following the death of their parents. It is the further case of
the petitioner that the Tahsildar Mylapore-Triplicane Taluk had clearly stated
that no one from the petitioner’s family was working under the Central or the
State Government and that they were living under penury. Infact, it was not
uncommon for the respondent Corporation to keep the quota reserved for
compassionate appointment vacant for several years after the death of its
employees to accommodate the children of the deceased employees and to provide
them with jobs on they attaining majority.
5. The learned counsel appearing for the petitioner submits that
at the time of the death of the petitioner’s father Mr. K.Nagappan on 20
.08.1992, there was no limitation for an application to be made by the members
of the deceased persons family for compassionate appointment. In
G.O.Ms.No.560, Labour and Employment, dated 03.08.1977, para graph (1) (b) is
as follows :-
” In future requests for appointment of dependants of the Government
Servant who died prior to 15th February 1972, can be considered favourably and
proposals sent to Government in the following type of cases.
At the time of consideration of his dependants case for appointment,
the Government Servant presumptive date of superannuation (i.e.had he lived)
should not have been reached. In other words, the grant of the concession
would be considered only upto the presumptive date of superannuation of the
Government Servant. For example, if a Government Servant died in 1965 and the
date of his superannuation would have been 1.10.1981 if he were alive, his
dependant can apply for a post on the date prior to 1.10.1981 only”
6. However, by letter.No.43242/NI/81-9, dated 01st June,1982, issued by
the Labour and Employment Department, , the Government of Tamil Nadu had
issued a clarification stating that,
” The dependants of Government Servants who die in harness can be
considered for appointment on compassionate grounds irrespective of the
presumptive date of superannuation of deceased Government Servant”
Accordingly, It is clear that there was no hindrance for the
petitioner to request for appointment on compassionate grounds. However, in
the impugned order of the respondent No.Po.Thu.NA.KA.E-12/19623/99 , dated
4.6.1999, It is stated that the petitioner’s request for appointment on
compassionate grounds cannot be accepted, since the elder sister, though she
was qualified for appointment on compassionate grounds, had not applied and
that there has been a delay of six years in making the application by the
petitioner . Further, it has been stated by the first respondent that there
was nothing to show, that the family was under an economic crisis to accept
the petitioner’s request for appointment on compassionate grounds.
7. The learned counsel appearing for the petitioner contends that
the grounds stated in the impugned order of the respondent, dated 04.06 .1999,
are untenable and cannot be sustained in the eye of law.
8. On the other hand, the learned counsel for the respondent
states that the petitioner is claiming appointment on compassionate grounds
belatedly and that there is no vested right in the petitioner to request for
such an appointment. Appointment on compassionate grounds is meant only to
meet the emergent crisis arising on the sudden death of the earning member on
behalf of the family. He further states that in G.O.Ms.No.120, Labour and
Employment Department, dated 26.06.1 995, it is specifically mentioned that
the application for appointment on compassionate grounds should be made within
three years of the death of the Government Servant. Whereas the petitioner
has made a representation on 19.09.1999, seeking for an appointment on
compassionate grounds on the death of his father late K.Nagappan, who had died
on 20.08.1992, and at the time of the death of the petitioner’s father, his
elder sister one Kattammal was qualified to apply for such an appointment, but
she had chosen not to do so. Therefore, the respondent had rightly rejected
the request of the petitioner for appointment on compassionate grounds by his
order, dated 04.06.1999.
9. The learned counsel for the petitioner states that the
condition found in G.O.Ms.No.120 Labour and Employment Department, dated
26.06.1995, that the application for appointment on compassionate grounds
should be made within three years of the death of the Government Servant
cannot apply to the petitioner, since it can only be prospective in operation
and would not apply to the case of the Government Servant who had died in
harness prior to the date of the Government order. Further, modifications
issued by the Government of Tamil Nadu in G. O.Ms.No.120 Labour and
Employment, dated 26.06.1995, reads as follows :-
” In this connection, the District Collector, Tirunelveli Kattabommon District
has sought for clarifications whether the time limit of three years period
specified in the Government Order is applicable to the dependants of the
Government servants who died prior to the date of issue of the Government
order. In this connection, it is clarified Government order first cited is
applicable only to the dependants of the Government servants those who died
while in service on or after 26.06.1995, and the above orders are not
applicable to the past cases.”
10. In such circumstances, it cannot be said that the request of
the petitioner for appointment on compassionate grounds is belated, as being
made beyond three years period provided in G.O.Ms.No.120, Labour and
Employment, dated 26.06.1995. It is further stated that, in fact, the elder
sister of the petitioner one Kattammal had made a request for appointment on
compassionate grounds on the death of the petitioner’s mother Kuppammal on
25.12.1989. However, the respondent had not passed any orders on the said
request till date either rejecting or accepting the request. Therefore, the
reasons stated by the respondent in the impugned order, dated 04.06.1999,
cannot be sustained.
11. The learned counsel for the petitioner further states that the
petitioner and his elder sister both are still living in penury and having
lost their parents at a very young age. The technical plea raised by the
respondent in support of the the impugned order, dated 04.06 .1999, rejecting
the request of the petitioner for appointment on compassionate grounds is
devoid of merits and it is therefore rejected by this court.
12. Even though appointment on compassionate grounds is an
exception to the general rule that appointment shall be based only on merit
and based on the qualifications prescribed to be eligible for such
appointment. It is provided with an object to enable the family to get over
the sudden financial crisis arising due to the death of an earning family
member, but not as a source of recruitment, it is seen in the facts and
circumstances of the present case that all the conditions that prevailed at
the time of the death of the petitioner’s parents continued till the date of
the application made by the petitioner and even thereafter. Further, the
arguments adduced in support of the impugned order of the respondent, dated
04.06.1999, citing G.O.Ms.No.12 0 Labour and Employment Department, dated
26.06.1995, cannot be accepted in view of the fact that the state government
order contemplates of a situation of the death of the Government Servant
arising on or after the date of the government order viz.,26.06.1995. This
position has been made very clear by the order issued by the Government of
Tamil Nadu, clarifying that the said order was not applicable to the past
cases. It is also to be noted that on the date of death of the petitioner’s
father, who was employed in the respondent corporation, there were no
restrictions with regard to the period to make the request for appointment on
compassionate grounds.
13. In most of the decided cases, with regard to compassionate
appointment, it is seen that a specific period has been fixed either by the
rules, standing orders, or regulations applicable to the concerned service.
However, in the present case, there were no such restrictions shown to be
prevailing at the time of the death of the deceased employee.
14. In these circumstances, this court is of the considered view
that the impugned order of the respondent, dated 04.06.1999, cannot be
sustained in the eye of law. Therefore, the impugned order of the respondent
No.Po.Thu.NA.KA.E-12/19623/99, dated 4.6.1999, is set aside and the respondent
is directed to consider the request of the petitioner for appointment on
compassionate grounds commensurate with his qualifications and pass
appropriate orders within 12 weeks from the date of receipt of a copy of this
order.
With the above directions, the writ petition is allowed.
Consequently, the connected WPMP is closed. No costs.
ssm
To
The Commissioner,
The Corporation of Chennai,
Ripon Buildings,
Chennai 600 003
