IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 14-07-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.17314 of 2006 (O.A.No.2425 of 1996) G.Meenalochani .. Petitioner. Versus 1.Secretary to Government, Health and Family Welfare Department, Madras-9. 2.The Director of Medical Education, Madras-5. 3.Tamilnadu State Public Service Commission, Rep. by its Secretary, Madras.2 4.Superintendent, Government RSRM Lying in Hospital, Madras-13. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus to set aside the orders made by the 4th respondent in K.Dis.13366/E3/93, dated 30.4.96 and to direct the respondents to continue the applicant as a junior assistant on a regular basis. For Petitioner : Mr.MV.Muralidaran For Respondents : Mr.T.Seenivasan Additional Government Pleader O R D E R
Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents.
2. The petitioner has stated that she is the sister of late G.Purushothaman, who was working as a Hospital servant at the Government Royapettah Hospital. G.Purushothaman was working as an Hospital servant from 1.6.78 till 11.7.90, when he had died in harness. G.Purushothaman’s wife had pre-deceased him leaving behind her two children Yuvaraj, aged 10 years and Subadra aged about 8 years. G.Purushothaman had died, on 11.7.90, while in service, leaving behind his aged mother and his unmarried sister, who is the petitioner herein. As they were all living together, the entire family depended on the income of G.Purushothaman. After his death, his children were living under the care and custody of the petitioner and her mother Thangeswari. At the time of the death of G.Purushothaman, both his children were minors.
3. It has been stated that the petitioner has a degree in Bachelor of Arts. She has remained unmarried as she had to look after the children of her deceased brother, G.Purushothaman. The petitioner was appointed as a Junior Assistant, on temporary basis, by an order, dated 28.10.1992, issued by the Director of Medical Education, on compassionate appointment, as a special case. According to the earlier provision, sisters and brothers of the deceased Government servant could be employed, on compassionate grounds. Though the said provision was cancelled by an order passed by the Government, in G.O.Ms.No.567, Labour and Employment, dated 11.4.90, an exemption was granted in favour of the petitioner, while appointing her on compassionate grounds, as a special case. The Tahsildar had given a certificate stating that the family of the deceased Government servant was in indigent circumstances. Further, the appointment of the petitioner was necessary as the children of the deceased Government servant were minors at the time of his death. Considering the family circumstances of the deceased Government servant, G.Purushothaman, his sister, G.Meenalochani, was appointed temporarily as a Junior Assistant on compassionate grounds and posted to the R.S.R.M Lying in hospital, Madras, in an existing vacancy. By an order of the Director of Medical Education, dated 28.10.1992, made in Ref.No.27924/E2/3/91, the petitioner had been informed that she would be paid the scale of pay of Rs.975-25-1150-30-1660. She was further informed that the appointment was made in anticipation of the Government orders appointing her regularly as a Junior Assistant. It was further stated that the appointment would be cancelled if she was found physically unfit. The appointment order had been issued by the Director of Medical Education, based on the Government Letter No.38182/AD1/91-2, dated 3.6.92, recommending the petitioner for appointment as a special case, extending the concession in Government letter No.68193/N1/80-3, Labour and Employment Department, dated 13.3.91, which had ordered considering deserving cases of brothers/sisters of the deceased Government servants for appointment on compassionate grounds, even though it had been cancelled in G.O.Ms.No.567, Labour and Employment Department, dated 11.4.90. The appointment of the petitioner was also made in view of the indigent circumstances of the family of the deceased employee, G.Purushothaman. The Tahsildar, Mylapore-Triplicane, Taluk, Madras, had also certified that none of the family members of the deceased employee was employed, either in the State or Central or private establishment and the family was found to be in indigent condition. However, by an order, dated 30.4.96, issued by the Superintendent of the Government R.S.R.M. Lying in Hospital, Madras, in K.Dis.No.13366/E3/93, had relieved the petitioner of her duties from 30.04.1996, since the Tamilnadu Public Service Commission had refused to give its concurrence for further continuance of the petitioner for the reason that no government orders were issued for considering the appointment on compassionate grounds for brothers/sisters of the deceased Government servant. In such circumstances, the petitioner has preferred an original application before the Tamilnadu Administrative Tribunal in O.A.No.2425 of 1996, which has been transferred to this Court and renumbered as W.P.No.17314 of 2006.
4. In the reply affidavit filed on behalf of the respondents, it is stated that though the petitioner had been appointed temporarily on compassionate grounds as a Junior Assistant in the Government R.S.R.M. Lying in hospital, Chennai, vide the Director of Medical Education’s posting order in Ref.No.27924/E2/3/91, dated 28.10.1992, under Rule 10(a)(i) of the Tamilnadu State and Subordinate Service Rules, the Tamilnadu Public Service Commission had not given its concurrence for further continuance of the petitioner, since no provisions were made to give appointment to the brothers/sisters of the deceased Government servant. Thereafter, the petitioner had been relieved of her duties from the Government R.S.R.M. Lying in Hospital, from 30.4.96, vide Letter Ref.No.13366/E3/93, dated 30.4.96, issued by the Superintendent, Government R.S.R.M. Lying in hospital. However, the petitioner had obtained an order of interim stay against the relieving order, dated 30.4.1996, issued by the fourth respondent and it is in force till date.
5. At this stage of the hearing of the writ petition, the learned counsel appearing for the petitioner had placed before this Court, G.O.Ms.No.134, Labour and Employment (Q.J) Department, dated 22.10.1998, wherein, the term “near relative” has been said to include unmarried brother/unmarried sister of the unmarried deceased Government servant, who had died in harness while in service. However, it has been stated that the order shall take effect from the date of the order, i.e. from 22.10.98 and the date of death of deceased Government servant should have occurred on or after the issuance of the said order. However, it is found that the said Government order, dated 22.10.98, would not be applicable to the petitioner, as it would apply only in case of an unmarried deceased Government servant, who had died in harness while in service and it would be prospective in operation.
6. From the peculiar facts and circumstances of the case, it is found that the petitioner had been appointed on compassionate grounds, temporarily, as a Junior Assistant in the Government R.S.R.M. Lying in Hospital, Chennai, by an order of the Director of Medical Education, dated 28.10.92, based on the recommendation of the Government in its letter, dated 3.6.92. However, when the matter was placed before the Tamilnadu Public Service Commission for its concurrence, it had refused the same for the reason that there were no government orders to consider the brothers and sisters of the deceased Government servants for appointment on compassionate grounds. It is also seen that the petitioner had been appointed in the year 1992 and after she had been in service for nearly four years, the fourth respondent had issued an order relieving the petitioner from service in the month of April, 1996.
7. It is also seen that the Tamilnadu Administrative Tribunal had granted an order of stay of the impugned order of the fourth respondent and the said interim order is continuing till date. Even though the length of service of the petitioner, based on the interim order passed by the Tribunal, may not be the only aspect that has to be taken into consideration for passing an order, this Court finds that the Government had taken into account the peculiar facts and circumstances of the case and the indigent condition of the family of the deceased Government employee and thus, it had recommended the petitioner for appointment on compassionate grounds, as a Junior Assistant in the Government R.S.R.M. Lying in hospital, Chennai.
8. It is also to be noted that before G.O.Ms.No.567, Labour and Employment Department, dated 11.4.90, had been passed, brothers and sisters of deceased Government servants were considered for appointment on compassionate grounds, in deserving cases, in view of the concession extended by the Government letter No.68193/N1/80-3, Labour and Employment Department, dated 13.3.91. Thereafter, in G.O.Ms.No.134, Labour and Employment (Q.J) Department, dated 22.10.98, the term “near relative” is stated to include unmarried brother and unmarried sister of the unmarried deceased Government servant who had died in harness while in service. While so, it may not be inappropriate for the respondents to consider the case of the petitioner for being continued in service based on her appointment order, dated 28.10.92, issued by the second respondent and to pass appropriate orders, with regard to the question of regularising the service of the petitioner, as she has continued in her post for over sixteen years from the date of her initial appointment in the year 1992, in view of the interim order passed by the Tamil Nadu Administrative Tribunal, on 8.5.96, which had been further extended by its order, dated 11.6.96.
9. In such circumstances, it is for the State Government to consider the request of the petitioner for regularisation of her services, if necessary, by relaxing the conditions required for such regularisation, taking into account the peculiar facts and circumstances of the case.
10. Accordingly, the first respondent is directed to consider the claim of the petitioner for regularisation of her services as a Junior Assistant in the Government R.S.R.M. lying in Hospital and to pass appropriate orders thereon, within a period of twelve weeks from the date of receipt of a copy of this order.
The writ petition is disposed of with the above directions. No costs.
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To
1.Secretary to Government,
Health and Family Welfare Department,
Madras-9.
2.The Director of Medical Education,
Madras-5.
3.Tamilnadu State Public Service
Commission, Rep. by its
Secretary, Madras.2
4.Superintendent, Government
RSRM Lying in Hospital,
Madras 13