IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.10.2010
CORAM:
THE HONOURABLE MS. JUSTICE K.B.K.VASUKI
W.P.No.2200 of 2009
V.Hari .. Petitioner
Vs.
1.The State of Tamil Nadu rep. by
the Secretary to Government,
Commercial Taxes Department,
Fort St. George, Chennai-9.
2.The Commissioner of Commercial Taxes,
Ezhilagam, Chepauk,
Chennai-5.
3.The Deputy Commissioner (CT)
Chennai (East) Division,
Chennai-6. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus to call for the records in Letter No.Y3/30867/2000 dated 3.8.2000 as confirmed in Letter No.Y3/30867/2000 dated 9.4.2001, Letter No.Y3/65896/2006 dated 2.1.2007 and Letter No.Y3/65896/2006 dated 20.8.2007 on the file of the second respondent herein and to quash the said orders and also to direct the second respondent herein to appoint the petitioner herein on compassionate grounds in accordance with the provisions of G.O.Ms.No.155 Labour and Employment dated 16.7.1993 on the file of the first respondent.
For Petitioner : Mr.V.Raghupathi
For Respondents : Spl. Govt. Pleader (Taxes)
O R D E R
The writ petition is filed to quash the orders of the second respondent in Letter No.Y3/30867/2000 dated 3.8.2000 as confirmed in Letter Nos.Y3/30867/2000 dated 9.4.2001, Y3/65896/2006 dated 2.1.2007 and Y3/65896/2006 dated 20.8.2007 and to direct the 2nd respondent to appoint the petitioner herein on compassionate ground in accordance with the provisions of G.O.Ms.No.155 Labour and Employment department dated 16.07.1993.
2.The facts which are relevant for consideration herein are:
The petitioner is one of the sons of one Venkatesan who died in harness on 9.4.98 while he was in service as Office Assistant in the office of the Deputy Commissioner (Commercial Taxes). The said Venkatesan died leaving behind his wife by name, Savithri, two sons by name, Palanivel and V.Hari and one daughter by name Rajeswari. The elder brother of the petitioner, viz., Palanivel has been even during the life time of his father employed in a private company, got married and living separately. The elder sister of the petitioner viz. Rajeswari was also married and living separately with her husband. After the death of Venkatesan, the petitioner who is unemployed and his mother have been staying together in the hut situated in Palani Kandigai Village without any other source of income or property except the family pension. Under such circumstances, the petitioner made a representation along with death certificate of his father, legal heirship certificate and No objection certificate given by his other brother and sister, to the second respondent, seeking employment on compassionate ground.
3.On receipt of the said application, report was called for by the Assistant Commissioner (CT) Zone IX, Chennai by conducting enquiry and enquiry was held by Commercial Tax Officer, Washermenpet, I Assessment Circle, Chennai and enquiry report dated 11.10.99 containing the above particulars was duly sent to the Assistant commissioner (CT), Zone IX, Chennai-6, third respondent herein, who inturn forwarded the same to the second respondent and the second respondent has passed the order dated 3.8.2000 which is impugned herein, in and under which, the second respondent has rejected the petitioner’s representation on the ground that the family was not in indigent circumstances as the elder son is employed and elder daughter is married and wife and younger son of the deceased employee are living separately and receiving family pension. The second respondent has also directed the third respondent to serve the copy of the same to the petitioner and on receipt of the same, the petitioner’s mother sent separate representation to the second respondent in which the petitioner’s mother has stated as to how the petitioner and herself are not receiving any support from the employed and married son and daughter. The petitioner’s mother has also further requested the second respondent to reconsider the representation for providing appointment to the petitioner on compassionate ground. The same was followed by repeated communications by the petitioner’s mother and the petitioner in this regard. The second respondent has also directed the third respondent to advice the petitioner’s mother to collect and send certificates relating to her educational and other qualifications for the purpose of considering her for employment on compassionate ground. The petitioner’s mother has in response to the same sent further representation explaining that due to her ill-health, physical condition and old age, she is unable to work and requested to provide appointment to the petitioner on compassionate ground. However, the second respondent by the orders dated 9.4.2001, 2.1.2007 and 20.8.2007 confirmed the earlier stand that the petitioner is not eligible to get compassionate appointment on the same ground mentioned in the first order dated 3.8.2000. Hence, this writ petition challenging the correctness and the validity of the impugned orders so passed by the second respondent.
4.The learned counsel for the petitioner has by relying upon G.O.Ms.No.155, Labour and Employment department Dated 16.7.93, contended that receiving pension by the petitioner’s mother and the employment of the petitioner’s brother even during the life time of the deceased employee without rendering financial support to the family of the deceased employee before or after the life time of the petitioner’s father, cannot form the basis for rejecting the petitioner’s representation and the petitioner has otherwise fulfilled the norms prescribed for appointment on compassionate ground and the rejection orders impugned herein are arbitrary, unfair, unreasonable and the same are contrary to the guidelines laid down under the above referred G.Os and are against the public policy on which the employment to any one of the family members of the deceased employee on compassionate ground is based.
5.Per contra, the learned counsel for the respondent has attempted to justify the impugned orders on both the grounds as mentioned in the impugned orders.
6.I have considered the rival submissions made on both sides and perused the materials available on record.
7.The facts that the petitioner’s father died while he was in service leaving behind his married, employed and separated elder son, married and separated daughter and the petitioner and on the date of death of his father and on the date of his representation, the petitioner was unemployed, unmarried and has been through out living with his mother, are not denied. The Commercial Tax Officer, Washermenpet, I Assessment Circle, Chennai has in his report dated 11.10.99 in RC.No.1751/99/B3 submitted to the Assistant Commissioner, (CT), Zone IX, Chennai given in detail the family circumstances of the petitioner and the same would support the specific stand taken by the petitioner and his mother that his elder brother got already married and separated and his elder sister married and separated and the elder brother being employed in private company on daily basis that too much before the death of the deceased employee cannot be at any stretch of imagination said to be financially supporting his mother and younger brother.
8.Regarding pension payment the G.O. referred to above and relied upon on the side of the petitioner the copy of which is enclosed at pages 2 to 4 of the typed set of papers would not support the stand of the respondents. The G.O. makes it very clear that the amount received by the family of the deceased by way of Provident Fund accumulations, Family benefit, Death cum Retirement Gratutity, Encashment of leave at credit at the time of death or the interest earnings that will accrue on depositing those amounts need not be taken into consideration to assess ‘indigent circumstances’. It is also made very clear therein that when the dependent of the family is already employed, the factors to be ascertained are as to whether he is regularly employed and is actually supporting the family and if that person was employed even before the death of the Government servant and was living separately without extending any help to the family, then the claim of other eligible dependents will have to be considered. The two restrictions imposed by G.O.Ms.No.155 dated 16.7.93 are (i) only one of the dependents will be entitled for appointment on compassionate ground and (ii) no age relaxation. That being so, the impugned orders passed by the second respondent repeatedly rejecting the petitioner’s representation on the very same grounds that the elder brother of the petitioner was employed and the family is getting pension are absolutely against the spirit of the G.O.
9.The mere failure on the part of either of the petitioner or his mother in not specifically stating in their representations that his elder brother did not support the family of the deceased employee is, not in my considered view likely to alter the actual factual situation and cannot sustain the impugned orders. It is note worthy to mention that at one point of time, the respondent thought fit to consider the petitioner’s mother for appointment on compassionate ground without reference to the employment of the elder son and family and the pension being received by the mother. That would lead to presumption that the respondents accepted the eligibility of the petitioner’s family for getting appointment on compassionate ground. As per the G.O., any one of the family members is eligible to be appointed on compassionate ground and as the other family members i.e. mother, other brother and sister have no objection for considering the petitioner for the appointment on compassionate ground, the rejection of the petitioner’s representation has to be necessarily held as lacking in bonafide. Viewing from any angle, the impugned orders are not both factually and legally sustainable and are hence, liable to be set aside.
10.The petitioner is on the date of his representation eligible to be considered for appointment on compassionate ground and hence, he is subject to his fulfilling other qualifications, to be considered for any suitable post in the existing vacancy in the office of the respondents.
11.In the result, the impugned orders passed by the second respondent are set aside and the respondents are directed to consider the appointment of the petitioner to any suitable post in the existing vacancy in the office of the respondents within 8 weeks from the date of receipt of the copy of this order.
12.The writ petition is accordingly ordered. No costs.
rk
To
1.The Secretary to Government,
Commercial Taxes Department,
Fort St. George, Chennai-9.
2.The Commissioner of Commercial Taxes,
Ezhilagam, Chepauk,
Chennai-5.
3.The Deputy Commissioner (CT)
Chennai (East) Division,
Chennai 6
