{"id":196529,"date":"2011-01-22T00:00:00","date_gmt":"2011-01-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/e-ganesan-vs-the-secretary-to-government-on-22-january-2011"},"modified":"2015-10-16T02:40:41","modified_gmt":"2015-10-15T21:10:41","slug":"e-ganesan-vs-the-secretary-to-government-on-22-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/e-ganesan-vs-the-secretary-to-government-on-22-january-2011","title":{"rendered":"E. Ganesan vs The Secretary To Government on 22 January, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
E. Ganesan vs The Secretary To Government on 22 January, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 22\/01\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE  M.VENUGOPAL\n\nW.P.(MD)No. 1550 of 2008\n\nE. Ganesan\t\t\t   \t\t... Petitioner\n\nVs.\n\n1. The Secretary to Government,\nRural Development Department,\nChennai.\n\n2. The District Collector,\nOffice of the District Collector,\nTirunelveli.\n\n3. The Assistant Director of Panchayat,\nOffice of the Assistant Director of Panchayat,\nTirunelveli.\n\n4. The Block Development Officer,\nOffice of the Block Development Office,\nCheranmahadevei,\nTirunelveli District.\t\t\t\t... Respondents\n\t\nPrayer\n\nWrit Petition is filed under Article 226 of the Constitution of India to\nissue a Writ of Mandamus directing the first respondent to reconsider the\nproposal of the third respondent vide proceedings in Na.Ka. No. 123\/ 79716\/2006\ndated 23.3.2007 in respect of the petitioner's representation for seeking\ncompassionate appointment and grant permission to the fourth respondent to\nappoint the petitioner as Jeep Driver and pass such further or other orders as\nthis Court may deem fit and proper in the circumstances of this case.\n\n!For Petitioner            ... Mr. M. Saravanakumar\n^For Respondents \t   ... Mr. D. Sasikumar\n\t\t\t       Government Advocate\t\n\t\t\n\t\t\t\t\t\n:ORDER\t\n<\/pre>\n
\tThe petitioner has filed the present Writ Petition seeking the relief of
\nWrit of Mandamus to direct the first respondent to reconsider the proposal of
\nthe third respondent as per proceedings in Na.Ka. No. 123\/ 79716\/2006 dated
\n23.3.2007 123\/ 79716\/2006 dated 23.3.2007 in regard to the petitioner’s
\nrepresentation for seeking compassionate appointment and grant permission to the
\nfourth respondent to appoint the petitioner as Jeep Driver.\n<\/p>\n
\t2. The learned counsel for the petitioner submits that the petitioner’s
\nfather late S.Isakki who worked as Office Assistant in the fourth respondent
\nOffice, expired on 22.8.1993 while in service. The petitioner is a elder son to
\nhis father. However, his father(since deceased) has two wives and since he has
\nno issue through the first wife, he got married to one Gomu and out of the said
\nwedlock, he has three children. Admittedly, the petitioner is the second wife’s
\nelder son.\n<\/p>\n
\t3. The learned counsel for the petitioner submits that the petitioner has
\ncompleted 8th standard and he is holding LMV license. The petitioner’s mother
\nhas projected an application to the Second Respondent\/District Collector,
\nTirunelveli District, seeking employment to the petitioner on compassionate
\nground in the fourth respondent’s office on 9.2.1996 and the said application
\nhas been filed before the second respondent office. Once again, the petitioner
\nhas made an application in proper format on 27.9.2000 to the Fourth
\nRespondent\/Block Development Officer, Cheranmahadevei, Tirunelveli District,
\nalong with concerned documents with a request to appoint him as Jeep Driver.
\nDuring the year 2000-2004, the petitioner has made many representations to the
\nauthorities concerned.\n<\/p>\n
\t4. However, a proposal has been sent to the Government through the
\nDirector of Rural Development and Panchayat Raj on 16.4.2007 requesting him to
\ngrant permission from the Tamil Nadu Government to appoint the petitioner as
\nJeep Driver on compassionate ground as per proceedings of the third respondent
\nin Na.Ka. No. 123\/ 79716\/2006 dated 23.3.2007. The fourth respondent has sent a
\ncommunication dated 20.4.2008 to the petitioner mentioning that the proposals
\nsent by them in respect of the petitioner’s representation seeking appointment
\non compassionate ground, have been returned on the basis that the application
\nfor compassionate appointment has not been made within three years from the date
\nof the petitioner’s father’s death as per G.O. Ms. No. 42 (Labour and
\nEmployment) dated 12.3.2007 and Government letter No. 202 (Labour and
\nEmployment) dated 8.10.2007.\n<\/p>\n
\t5. The main contention advanced on behalf of the petitioner is that the
\npetitioner’s mother has filed an application on 9.2.1996 within two and a half
\nyears from the date of the petitioner’s father’s death dated 22.8.1993 and that
\nthe respondents without considering the record, have returned the proposal in
\nconnection with the petitioner’s representation seeking compassionate ground
\nappointment in a casual manner.\n<\/p>\n
\t6. Per contra, it is the contention of Mr.Sasikumar, Learned Government
\nAdvocate appearing for the respondent Nos. 1 to 4 that the petitioner is a son
\nof late Isakki who worked as Office Assistant at Cheranmahadevi Panchayat Union
\nOffice and that he has expired on 22.8.1993. The learned Government Advocate
\nfurther contends that the first wife of the petitioner’s father, late Isakki
\nnamely,Poovammal  has submitted a representation seeking to disburse the benefit
\nof the deceased husband in favour of her and the children of the said Isakki by
\nproducing a legal heir Certificate and in that Certificate, the name of the
\nsecond wife of the petitioner’s father Gomu is not made mention of as one of the
\nlegal heirs. After obtaining opinion from the Government Pleader, the provident
\nfund amount was disbursed to the first wife Poovammal and three children of the
\npetitioner’s father on 28.9.2007.\n<\/p>\n
\t7. In this connection, it is useful to refer to the paragraph No. 3 of the
\ncounter filed by the Fourth Respondent\/ Block Development Officer, Tirunelveli
\nDistrict, wherein it is observed as follows:\n<\/p>\n
3. I further submit that the allegation stated in para 2 of the affidavit that
\nthe petitioner Ganesan submitted application seeking employment on compassionate
\nground before the fourth respondent i.e. the Block Development Officer,
\nCheranmahadevi is an utter falsehood. His mother Tmt.Gomu submitted her
\nrepresentation only on 20.12.1999 before the District Collector and not before
\nthe Block Development Officer, Cheranmahadevi. Subsequently for a first time,
\nthe petitioner has made a representation on 4.9.2000. The said representation
\nwas forwarded to the Government on 23.3.2007 vide Letter Roc No. N3\/797\/16\/2006.
\nBut the same was returned on 8.10.2007 by stating petitioner is highly belated
\none barred by limitation. As per the G.O., the petitioner should have applied
\nwithin three years from the date of death of the deceased. Hence as per G.O. No.
\n42 of Labour\/Employment dated 12.3.2007 and government Letter No. 202(Labour and
\nEmployment) dated 8.20.3007, the petitioner’s request seeking employment on
\ncompassionate ground was rejected by the government. So, the application and
\ndocuments submitted by the petitioner was returned to the petitioner vide Letter
\nin Na.Ka. No. A1\/1550\/02 dated 20.4.2008.\n<\/p>\n
\t7. In effect, the respondents have taken a stand that the petitioner’s
\nmother Gomu (the second wife of the petitioner’s father Isakki since deceased)
\nhas submitted a representation  only on 20.12.1992 before the Second
\nRespondent\/District Collector and not before the Fourth Respondent\/Block
\nDevelopment Officer, Cheranmahadevi, Tirunelveli District. Also, a stand is
\ntaken for the first time that the petitioner has made the representation on
\n4.9.2002 etc.<\/p>\n
\t8. Pith and substance of the contention projected on behalf of the
\nrespondents is that as per G.O. Ms. No. 42 (Labour\/Employment) dated 12.3.2000
\nand Government letter No. 202 (Labour and Employment) dated 8.10.2007, the
\npetitioner should have applied within three years from the date of death of the
\nsaid deceased Isakki.\n<\/p>\n
\t9. At this juncture, countering the submissions of the learned Government
\nAdvocate appearing for the respondent Nos 1 to 4, the learned counsel for the
\npetitioner relies on the order of this Court in W.P. (MD) No. 3909 of 2009 dated
\n13.11.2009 between N. Elavarasan Vs. the Chief Engineer, Tamilnadu Electricity
\nBoard, 800, Anna Salai, Chennai -2 and two others, wherein at paragraph Nos. 11
\nto 14, it is observed as follows:\n<\/p>\n
“11) This Court in another decision in Selvi R.Anbarasi Vs. Chief Engineer
\n(Personnel), T.N.E.B., Chennai reported in (2006) 2 M.L.J., 2006  held as
\nfollows:\n<\/p>\n
\t“The learned counsel for the petitioner submitted that a similar issue,
\nrejecting the compassionate ground appointment on the ground that the
\napplication was submitted beyond three years and the same was rejected earlier
\non the ground that the petitioner therein has not completed 18 years of age, was
\nconsidered by this Court in W.P.No.1584 of 2001 and this Court held that the
\napplications having been made within a period of three years and the same having
\nnot been considered on the ground that the petitioner therein was not 18 years
\nof age at that time, the subsequent application cannot be rejected on the ground
\nthat the application was submitted within three years.  The learned Judge
\ndirected the respondents not to treat the second application as an application
\nfor compassionate appointment, but it is to be treated as continuation of the
\napplication originally submitted.  The said judgment is reported in T.Meer
\nIsmail Ali  Vs.  Tamil Nadu Electricity Board through its Chairman, and others,
\n(2004) 3 C.T.C. 120.  This Court, ultimately, directed the respondents to give
\ncompassionate appointment to the petitioner therein.”\n<\/p>\n
12)This Court in yet another decision in A.Neppolian Vs. The Chief Engineer
\n(Personnel), T.N.E.B. Chennai and another reported in MANU\/TN\/9306\/2006  held as
\nhereunder;\n<\/p>\n
\t\t“(c) In W.P.No.8154 of 2002 (A.Govindan v. The Chief Engineer
\n(Personnel), TNEB, Chennai and Anr.) the Hon’ble Mr.Justice N.V.Balasubramaniam,
\nby order dated 9.4.2002 allowed similar writ petition with a direction to treat
\nthe application submitted as within the time.\n<\/p>\n
\t\t(d) The Hon’ble Mr. Justice P.D.Dinakaran by order dated 23.9.2003
\nin W.P.No.19673 of 2003 (J.Jayakaran v. The Superintending Engineer, Theni
\nElectricity Distribution Circle, Theni)<\/a> allowed the writ petition and directed
\nthe TNEB to pass orders granting compassionate appointment.  Paragraph 5 in the
\nsaid order reads as under;\n<\/p>\n
\t\t“It is true that when an application was made for employment of the
\npetitioner, i.e., on 23.05.2002, the petitioner was only a minor, but not
\nqualified.  But he had attained majority on 02.06.2003 and therefore, the
\nrespondent Board, having kept the application of the petitioner for employment
\non compassionate ground under consideration, ought to have considered the case
\nof the petitioner for suitable employment without rejecting the same on
\ntechnical reason, by the impugned order dated 18.06.2003.  Since B.P.No.146
\ndated 13.10.1995 prescribes only a maximum period of three years for
\nconsideration of the application for appointment on compassionate ground, the
\nrespondent shall consider the request of the petitioner for employment on
\ncompassionate ground and pass appropriate orders within twelve weeks from the
\ndate of receipt of copy of this order, if the petitioner is otherwise qualified
\nfor suitable post.”\n<\/p>\n
13.Lastly a Division Bench of this Court in The Chief Engineer\/Personnel,
\nT.N.E.B., & another Vs. S.Suder  reported in MANU\/TN\/0635\/2009 was held as
\nfollows;\n<\/p>\n
\t“4.In the judgment reported in 2001 Writ L.R. 601 in the case of
\n“Ramadoss. D. v. The Chief Engineer, T.N.E.B”, this Court (D.Murugesan, J)
\ndirected the consideration of the application made within a period of three
\nyears after attaining the majority by placing reliance on the very same Circular
\nin B.P.No.46, dated 13.10.1995.\n<\/p>\n
\t5.Subsequently, in the judgment reported in 2002(4) L.L.N. 1132,
\n(D.Murugesan, J.), in the case of “P.Ravi  v. Chief Engineer (P), T.N.E.B.<\/a>“,
\nalso, the very same Circular was relied upon and the application for appointment
\non compassionate grounds was directed to be considered.\n<\/p>\n
\t6.Justice P.D.Dinakaran, has also taken the very same view by following
\nthe very same Circular dated 13.10.1995, in W.P.No.19673 of 2003, in the order
\ndated 23.09.2003, in the case of ‘J.Jayakaran v. The Superintending Engineer,
\nTheni Electricity Distribution Circle, Theni<\/a>” and the application for
\nappointment on compassionate grounds was directed to be considered.\n<\/p>\n
\t7.Justice K.Govindarajan has also taken the same view in Writ Petition
\nNo.13099 of 2003, order dated 30.10.2003, in the case of “G.Muthamilselvan v.
\nThe Chief Engineer (Personnel) and Anr.<\/a>”\n<\/p>\n
\t8.Justice F.M.Ibrahim Kalifulla has also taken the same view in the
\ndecision reported in Manu\/TN\/0337\/2004, 2004(3) CTC 120, (2004) 4 MLJ 238 in the
\ncase of “Meer Ismail Ali. T. v. The Tamil Nadu Electricity Board<\/a>“.  We are told
\nthat the order in the said case of “Meer Ismail Ali” was confirmed in the Writ
\nAppeal by the Division Bench in W.A.No.4008 of 2004, by judgment dated 1.12.2004
\nand as against the said judgment dated 1.12.2004, the Special Leave Petition in
\nCivil Appeal No.6387 of 2005, was also dismissed by the Supreme Court, by
\njudgment dated 4.4.2005.\n<\/p>\n
\t9.Similar question came up for consideration before a Division Bench of
\nthis Court in Writ Appeal No.3050 of 2003 in the case of “Indiraniammal v. The
\nChief Engineer (Personnel) and Anr.” and by judgment dated 08.03.2005, the
\nDivision Bench set aside the impugned order therein in rejecting the request of
\nthe petitioner therein for appointment on compassionate grounds and directed the
\nBoard to consider the application.\n<\/p>\n
\t10.There cannot be a controversy in view of the settled position of law
\nthat appointment on compassionate ground is not automatic, as it would amount to
\nback door entry to a post, by-passing the Rules to be followed for such
\nappointment. Nevertheless, to tide over the financial constraints of a family
\ndue to sudden demise of the breadwinner of a family, the State Government or its
\nundertaking or for that purpose, any employer, would be entitled to frame
\nScheme\/Rules for such appointment by prescribing the conditions as well as the
\neligibility.  Hence, the request for appointment on compassionate grounds would
\nbe considered with reference to the Scheme\/Rules or any of the provisions framed
\nfor the said purpose, either by the Government or by the employers, as the case
\nmay be.\n<\/p>\n
\t11.In the case on hand, the father of the respondent while he was working
\nas Wireman in the Office of the Assistant Engineer, TNEB, Kazhuvanthilai,
\nKanyakumari District, died due to illness on 07.03.1998.  At the time of the
\ndeath of his father, the respondent was 15 years old and for the purpose of
\nmaking application for appointment on compassionate grounds, he should have
\ncompleted 18 years.  Hence, he could not make any application for appointment on
\ncompassionate grounds.  By placing reliance on B.P.No.46, dated 13.10.1995, he
\nmade application on 3.9.2002, within a period of four days from the date of his
\nattaining majority, i.e., 18 years.  That application was rejected on the ground
\nthat the same cannot be entertained as per the Circular in vogue on the date of
\nthe application.  Presumably, the order of rejection was passed on the basis of
\nthe Memo, dated 6.4.2002.\n<\/p>\n
\t12.As we have already referred that the application for compassionate
\nappointment is maintainable by a person within a period of three years after
\nhe\/she attains the majority, irrespective of the fact that the breadwinner died
\nwhile such person was a minor in terms of the proceedings of the Board in
\nB.P.No.46 dated 13.10.1995.  This position is not in dispute.  We may also once
\nagain refer to the fact that following the very same Board proceedings in
\nB.P.No.46, dated 13.10.1995, consistently, this Court had taken the view that
\nthe application seeking for appointment on compassionate grounds, has to be
\nconsidered in the event when such applications are made within a period of three
\nyears after he\/she attains the majority.”\n<\/p>\n
14)\tIn view of the above said principle laid down by this Court consistently
\nin the above said decisions, this Court has no hesitation to quash the impugned
\norder as the petitioner preferred the application seeking for the relief of
\ncompassionate appointment within a period of three yeas from the date of his
\nattaining majority.  Accordingly, this petition is allowed and the impugned
\norder passed by the second respondent in Letter No.0843-
\n1\/ni.pi.1\/u.4\/ko.va.ve\/2007 dated 20.06.2007 is hereby quashed and the second
\nrespondent is directed to provide appointment to the petitioner on compassionate
\nground in respect of any suitable job within a period of eight weeks from the
\ndate of receipt of a copy of this order.\tNo costs.\n<\/p>\n
\t10. From the typed set of papers filed on behalf of the petitioner, it is
\nclear that the petitioner’s mother Gomu (being the second wife of the
\npetitioner’s father late Isakki) has submitted a petition No. 10141 on People
\nGrievance Day before the Second Respondent\/District Collector, Cheranmahadevi,
\nTirunelveli District, praying for a compassionate appointment for her son who
\nhas not completed 18 years of age at the time of the death of her husband
\nnamely, the petitioner’s father and now, on 20.12.1993, the petitioner is aged
\n19 years and has passed 8th standard. Again, on 09.2.1996, the petitioner’s
\nmother Gomu has addressed the letter to the Second Respondent\/District
\nCollector, Tirunelveli District, through proper channel praying for appointment
\nto her elder son Ganesan on compassionate ground.\n<\/p>\n
\t11. The learned counsel for the petitioner seeks in aid of the counter
\nfiled by the Fourth Respondent\/Block Development Officer, Cheranmahadevi,
\nTirunelveli District, to the effect that it has been admitted that the
\npetitioner has made representations on 4.9.2000 and before that 20.12.1999, her
\nmother has submitted a representation.\n<\/p>\n
\t12. From the above factual details, it is quite evident that the
\npetitioner’s mother Gomu (second wife of the petitioner’s father late Isakki)
\nhas submitted her representation dated 9.2.1996, to the Second
\nRespondent\/District Collector, Tirunelveli District. The representation of the
\npetitioner’s mother in regard to the compassionate ground appointment on
\n20.12.1993 has been admitted by the Fourth Respondent\/Block Devleopment Officer,
\nCheranmahadevi, Tirunelveli District, in his counter at paragraph No. 3. Also,
\nthe subsequent representation dated 4.9.2000 of petitioner has also been tacitly
\nadmitted by the fourth respondent in the counter at paragraph No.3. As such, the
\npetitioner’s mother has made the representation to the second respondent on
\n20.12.1993, on 9.2.1996 and on other dates, as mentioned earlier. Even though
\nthe petitioner’s mother submitted an application dated 20.12.1993 to the Second
\nRespondent\/ District Collector on People Grievance Day, during the time of
\npetitioner’s father’s death, the petitioner has not completed 18 years and on
\n20.12.1993 at the time of submission of application, he has completed 19 years
\nand the subsequent applications projected by the petitioner’s mother on
\n9.2.1996, 20.12.1993 and the petitioner’s representation on 4.9.2000 can only be
\nconstrued to be in continuation of the application dated 20.12.1993 submitted by
\nthe petitioner’s mother and therefore, contra view taken by the respondents and
\nthe subsequent rejection of the petitioner’s request for seeking appointment on
\ncompassionate ground as per G.O. Ms. No. 42, Labour\/Employment dated 12.3.2007
\nand Government letter No. 202 (Labour and Employment) dated 8.10.2007, are not
\nsustainable in the eye of law. Resultantly, this Court allows the Writ Petition
\nby directing the first respondent to reconsider the proposal of the third
\nrespondent as per proceedings Na.Ka. No. 123\/ 79716\/2006 dated 23.3.2007. The
\npetitioner’s mother’s representation dated 20.12.1993, 9.2.1996, 20.12.1999,
\n22.8.2000 and the petitioner’s representation dated 4.9.2000 in a dispassionate
\nmanner as regards the request for petitioner’s compassionate appointment and the
\nfirst respondent is directed to pass an order in any event within a period of
\neight weeks from the date of receipt of copy of this order. Considering the
\nfacts and circumstances of the case, the parties are directed to bear their own
\ncosts.\n<\/p>\n
\t13. However, the petitioner is directed to furnish a copy of his mother’s
\nrepresentation dated 20.12.1993 addressed to the second respondent\/District
\nCollector, a copy of his mother’s representation dated 9.2.1996, 20.12.1999 and
\nthe petitioner’s representation dated 4.9.2000 to the concerned parties and it
\nis open to the first respondent or other competent authorities to act on the
\nrepresentation so made by the petitioner’s mother or the petitioner, as the case
\nmay be, to prevent
\nan aberration of justice and the authorities concerned will have to act
\nuntrammelled or uninfluenced by any of the observations made by this Court in
\nthis Writ Petition.\n<\/p>\n
ses<\/p>\n
To,\n<\/p>\n
1. The Secretary to Government,Rural Development Department,
\nChennai.\n<\/p>\n
2. The District Collector,Office of the District Collector,
\nTirunelveli.\n<\/p>\n
3. The Assistant Director of Panchayat,
\nOffice of the Assistant Director of Panchayat,Tirunelveli.\n<\/p>\n
4. The Block Development Officer,
\nOffice of the Block Development Office,
\nCheranmahadevei,Tirunelveli District.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court E. Ganesan vs The Secretary To Government on 22 January, 2011 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22\/01\/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.(MD)No. 1550 of 2008 E. Ganesan … Petitioner Vs. 1. The Secretary to Government, Rural Development Department, Chennai. 2. The District Collector, Office of the District […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-196529","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nE. 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