IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.10.2009 CORAM THE HONOURABLE Mr. JUSTICE D.HARIPARANTHAMAN Writ Petition No. 4262 of 2006 1. R. Jayabalan 2. J. Dinesh ... Petitioners Vs 1. The Additional Director of survey and Land Records, Chepauk, chennai 600 005. 2. The Assistant Director of survey and land Records, Dharmapuri. ... 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.4622 of 2002 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for the records of 1. Na.Ka.No.Na.3/50989/2001 (LS), dated 22.05.2002, of the 1st respondent and 2. Mu.Mu.No.G21/12900/2001, dated 01.07.2002, of the 2nd Respondent , quash the same and issue directions to the Respondents herein to provide employment to the 2nd petitioner, on compassionate grounds forthwith in a suitable post. For Petitioners : Mr. M. Ravi For Respondents : Mr. P. Muthukumar Government Advocate ORDER
The petitioner was working as a Senior Draughtsman in the office of the Assistant Director of Survey and Land Records, Dharmapuri. He was suffering from heart-ailment. He was admitted in the Madras Medical Mission Hospital on 16.04.2000. He underwent heart-surgery and was discharged on 19.04.2000. He was also reimbursed the expenses, which he had met for the heart-surgery. After the heart-surgery, he was unable to discharge his normal duties. In the circumstances, the petitioner by his letter, dated 21.3.2001, had requested to allow him to retire on medical invalidation due to heart-ailment. The second respondent referred his case to the Standing Medical Board, District Headquarters Hospital, Dharmapuri. The medical board had examined him, on 08.08.2001, and gave a certificate dated 08.08.2001 stating that he was permanently incapacitated for further service of any kind in consequence of Diabetes Mellitus, Peripheral Neuropathy PTCA stent application, Hypertension effort Class-II Angina. The report was received by the second respondent on 20.08.2001. Since the petitioner was on leave from 20.8.2001 to 30.08.2001, he was relieved from his duties on the afternoon of 31.08.2001, after he rejoined duty on the forenoon of 31.8.2001. Thereafter, the petitioner had represented to the first respondent to provide compassionate appointment to his son, as he was medically invalidated before he had completed 53 years of age. However, his request was turned down by the impugned order of the first respondent dated 22.05.2002.
2. The petitioner filed an Original application in O.A.No. 4622 of 2002 (W.P.No.4262 of 2006) to quash the aforesaid order dated 22.05.2002 passed by the first respondent and the consequential order dated 01.07.2002 of the second respondent and for a direction to the respondents to provide employment to his son, the second petitioner herein.
3. Heard Mr. M. Ravi, learned counsel for the petitioners and Mr.P.Muthukumar, learned Government Advocate for the respondents.
4. The learned counsel for the petitioners submit that the first respondent has to provide appointment to the second petitioner on compassionate grounds, as per G.O.No.168, Labour and Employment Department, dated 19.10.2000, since the first petitioner did not complete 53 years of age, when he was medically invalidated from service. According to the learned counsel for the petitioners, the first petitioner had completed 53 years of age, only on the midnight of 31.08.2001, since his date of birth is 01.09.1948. It is submitted that G.O.No.168, Labour and Employment Department, dated 19.10.2000 provides for Compassionate appointment to the Government employees’, who are medically invalidated before the completion of 53 years of age. In this regard, the petitioners rely on the decision of the Hon’ble Apex court reported in Prabhu Dayal Sesma vs. State of Rajasthan and another reported in (1986) 4 SCC 59.
5. On the other hand, the learned Government Advocate submits that the second petitioner is not entitled to seek compassionate appointment on the basis of G.O.No.168, Labour and Employment Department, dated 19.10.2000, since the first petitioner had completed 53 years of age, when he was retired from service on medical grounds. The Learned Government Advocate relies on the reply affidavit filed by the respondents.
6. I have considered the submissions made by either side. The right to seek compassionate appointment is given only to employees’ who are medically invalidated before completion of 53 years of age. If an employee is retired on medical invalidation after completion of 53 years of age, he cannot seek the benefit of compassionate appointment due to his medical invalidation.
7. Paragraph-7 of the Reply affidavit of the respondents is relevant to decide the issue and the same is extracted hereunder.
” 7. It is submitted that on receipt of the proposal for the compassionate ground appointment of the second applicant from the Assistant Director of Survey and land Records, Dharmapuri the Additional Director of Survey and Land Records, Chennai viz., the first responent examined the poposal in detail with reference to the existing Government Orders. It is submitted that as per G.O.Ms.No.168, Labour and Employement Department, dated 19.10.2000, the heirs of the Government Servants invalidated from service before completion of 53 years of age only are eligible for compassionate ground appointment. It is submitted that as the first applicant was permitted to retire of Medical invalidation with effect from 31.08.2001 Afternoon as per Rule 36(1) Note (6) of the Tamil Nadu pension Rules 1978 and the applicant’s son is not eligible for appointment on compassionate grounds since the applicant had completed 53 years of age on the date of retirement i.e. on 31.08.2001. Taking into consideration of the above facts the first respondent the Additional Director of Survey and Land Records in his Rc M3/50989/01 (sy) dated 22.05.2002 ordered the second respondent to inform the applicant that the request of the applicant for appointment of his son on compassionate ground is not acceptable as per G.O.Ms.No.168, Labour and Employment Department dated 19.10.2000 as the applicant reached the age of 53 years on the date of retirement. The second respondent the Assistant Director of Survey and Land Records Dharmapuri upon receipt of the above orders issued consequential orders in his letter No. Mu.Mu.G21/12900/2001 dated 01.07.2002 informing the applicant that his son is not eligible for appointment on compassionate grounds since the first applicant had completed 53 years of age on the date of retirement on 31.08.2001.”
8. Therefore, the only question that arises for consideration is whether the first petitioner was medically invalidated from service before he had completed 53 years of age or not.
9. The date of birth of the first petitioner is 01.09.1948. Since the medical board found him unfit for service on 08.08.2001, the said date 08.08.2001 should be taken as the date of medical invalidation. In any event, when the said certificate was received by the respondents on 20.8.2001, the said date should be taken as the date of invalidation, though, he was relieved from service on 31.08.2001. The reason for not giving effect to medical certificate dated 08.08.2001 immediately was that the petitioner was not on duty and he was on leave up to 30.08.2001. Therefore , if either 08.08.2001 or 20.08.2001 is taken as the date of retirement, no difficulty would arise, as the petitioner admittedly did not complete 53 years of age on those dates.
10. In this regard, para 5 of the reply affidavit can be extracted usefully.
“5. The second respondent, the Assistant Director of Survey and Land Records, Dharmapuri should have relieved him without delay on receipt of Medical Report is not teneable since the applicant himself had entered on Unearned Leave (on Medical Certificate) from 20.08.2001 to 30.08.2001 and the second respondent had acted as per Rule 36(1) Note (6) of the Tamil Nadu Pension Rules, 1978, according to which the date of effect of retirement will be the date of Medical Certificate, if the Government Servant was on duty (or) if he was on leave, on the expiry of such leave (or) extension of leave, if any, granted to him”.
11. Even if the date of retirement of the petitioner is taken as 31.08.2001 afternoon, the petitioner had not completed 53 years of age at the time of retirement, since he had completed 53 years of age only at the midnight of 31.08.2001. The matter is squarely covered by a decision of the Apex court relied on by the learned counsel for the petitioner, referred to above.
12. Paragraph – 14 of the said judgment is extracted here under.
” 14. It is in recognition of the difference between how a person’s age is legally construed and how it is understood in common parlance. The legislature has expressly provided in Section 4 of the Indian Majority Act, 1875 that how the age of majority is to be computed. It reads:
4. Age of majority how computed In computing the age of any person, the day on which he was born is to be included as a whole day, and he shall be deemed to have attained majority, if he falls within the first paragraph of Section 3, at the beginning of the twenty-first anniversary of that day, and if he falls within the second paragraph of Section 3, at the beginning of the eighteenth anniversary of that day.
The Section embodies that in computing the age of any person, the day on which he was born is to be included as a whole day and he must be deemed to have attained majority at the beginning of the eighteenth anniversary of that day. As already stated, a legal day commences at 12 O’clock midnight and continues until the same hour the following night. It would therefore appear that the appellant having been born of January 2, 1956, he had not only attained the age of 28 years but also completed the same at 12 o’clock on the midnight of January 1, 1984. On the next day i.e. on January 2, 1984, the appellant would be one day more than 28 years. The learned Judges were therefore right in holding that the appellant was disqualified for direct recruitment to the Rajasthan Administrative Service and as such was not entitled to appear at the examination held by the Rajasthan Public Service Commission in 1983. We affirm the view taken by the learned Judges as also the decision in G.Vatsala Rani case.”
13. As per the decision of the Hon’ble Apex Court, the petitioner had completed 53 years of age only on the midnight of 31.08.2001. He is more than 53 years of age only after the crossing of midnight of 31.08.2001. In such circumstances, it is clear that the petitioner had not completed 53 years of age on the date of retirement on 31.08.2001. The only ground on which the compassionate appointment was rejected was that he had completed 53 years of age when he was retired on the afternoon of 31.08.2001. Hence, the impugned order is quashed and the first respondent is directed to consider the case of the second petitioner for compassionate appointment, in the light of the observations made above, if he is otherwise eligible, within a period of 4 months from today.
sms
To
1. The Additional Director of
survey and Land Records,
Chepauk, chennai 600 005.
2. The Assistant Director of
survey and land Records,
Dharmapuri
