COMPASSIONATE APPOINTMENT-3 YEARS FORMULA-SUFFICE IF APPLIED WITHIN 3 YEARS

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 19.10.2010

CORAM

THE HON'BLE MR. JUSTICE N.PAUL VASANTHAKUMAR

W.P.No.21888 of 2010

and

M.P.Nos.1 and 2 of 2010

G.Mallika ..Petitioner

Vs.

1.The Secretary to Government,

Agriculture Department,

Fort St. George, Chennai-9.

2.The Chief Engineer,

Agriculture Engineering Department,

No.487, Anna Salai,

Nandanam, Chennai-35.

3.The Assistant Executive Engineer,

Agriculture Engineering Department,

Vellore. ..Respondents

Petition filed under Article 226 of The Constitution of India praying to issue a writ of certiorarified mandamus to call for the records relating to the third respondent herein in Letter No.A1/2571/98 dated 03.09.2009 and the order of the second respondent herein in Letter No.Pension 2/42172/2006 dated 14.06.2010 and quash the same and consequently direct the respondents herein to confer the compassionate ground appointment to the petitioner's son A.Sakthivelu forthwith.

For Petitioner .. Mr.R.S.Anandan

For Respondents .. Mr.S.Sivashanmugam,

Govt. Advocate

ORDER

The prayer in the writ petition is to quash the order dated 14.06.2010 declining the request of the petitioner seeking compassionate appointment to the petitioner's son on the ground that the claim of compassionate appointment can be made only within three years from the date of death of the deceased person and on that date, the person seeking compassionate appointment should have completed 18 years of age.

2.The case of the petitioner is that the petitioner's husband was employed as an Assistant Foreman in the office of the second respondent and he died in harness on 04.10.1998, leaving the petitioner and her two children. The petitioner, being the widow of the deceased, applied for compassionate appointment in the year 2000 before the Assistant Executive Engineer, Vellore in the Agriculture Engineering Department. Her application was recommended and forwarded by the third respondent to the second respondent in Letter No.A1/5366/2000 dated 17.01.2001 and the second respondent through letter No.A/324/2001 dated 08.02.2001 to the first respondent. The said application was kept pending. The third respondent again called the petitioner to submit the copy of the typewriting certificate. The petitioner at that time requested that the petitioner's son may be given appointment on compassionate ground which was forwarded by the third respondent on 01.12.2006 to the second respondent who in turn forwarded the same to the first respondent on 26.12.2006. However, no order was passed till 2008. The petitioner was aged 56 years in the year 2008 and her son A.Sakthivel is eligible to get compassionate appointment as he has passed 10th standard and he has completed 18 years of age on 09.04.2005. The presumptive date of retirement of the petitioner's husband was 30.06.2005. Before the said date, son of the petitioner has completed 18 years of age and also passed S.S.L.C. The second respondent passed an order dated 20.08.2009 which was communicated through the third respondent on 03.09.2009 stating that if the petitioner is willing to get appointment, she can opt for appointment on compassionate grounds. On 26.10.2009, the first respondent replied that the claim of the petitioner's son viz., A.Sakthivel cannot be considered as he has not applied within three years and that he has not completed 18 years within three years from the date of the death of the petitioner's husband. Again a reply was given to the petitioner on 12.11.2009 stating that the petitioner shall give her option to retain her name in the list of seniority maintained for compassionate appointment and at that time the petitioner was above 57 years of age. Now the petitioner is aged 58 years. Therefore, no purpose would be served in considering the claim of the petitioner, seeking compassionate appointment, which the petitioner applied in the year 1999. In such circumstances, learned counsel for the petitioner cited judgment of the Supreme Court in Syed Khadim Hussain Vs. State of Bihar and Others ((2006) 9 SCC 195), wherein the Supreme Court gave directions to consider the claim of the son of the deceased person as the widow of the deceased was over aged, even after 11 years from the death of the deceased.

3.Relying upon the said judgment, learned counsel for the petitioner submitted that the impugned order may be set aside and the second respondent may be directed to reconsider the request of the petitioner seeking compassionate appointment to her son A.Sakthivel.

4.The learned Government Advocate relying on G.O.Ms.No.120 Labour and Employment Department dated 26.6.1995 and based on written instructions, argued the matter. He submitted that the impugned order has been passed in accordance with the Government Order and the same is sustainable.

5.I have considered the rival submissions. The petitioner's husband died on 4.10.1998 while in service. The petitioner applied for compassionate appointment on 21.9.1999. She submitted relevant records pursuant to the letter of the third respondent dated 2.10.2000. All the records were furnished by the petitioner and the second respondent forwarded the proposal to the first respondent on 16.2.2001. According to the respondents, Government issued ban order on 29.11.2001. Hence, the petitioner's application was not considered. On 1.12.2006, the petitioner requested that instead of giving her appointment, her son A.Sakthivel may be given compassionate appointment as he has passed S.S.L.C. and completed 18 years of age in the year 2005. The reason being the petitioner was aged 53 years by that time. The first respondent has not considered the claim of the petitioner for over nine years. The said request is rejected through the impugned order dated 3.9.2009 and 14.6.2010. The Government order relied on by the first respondent reads as follows:-

Copy of G.O.Ms.No.120, Labour and Employment Department, dated 26.6.95.

Abstract:- Public Services Scheme of compassionate ground Appointments modifications issued.

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Read again:-

i.G.O.Ms.No.225, Labour and Employment dated 15.2.72.

ii.G.O.Ms.No.560, Labour and Employment dated 3.8.77.

iii.G.O.Ms.No.1579, Labour and Employment dated 21.7.81.

iv.Government Lr.No.2563/N1/82-2, Labour and Employment

dated 11.3.82.

v.Govt. Lr.No.43242/M1/61-9, Labour and Employment dated

1.6.82.

vi.Government Letter No.4810/91/95-3, Labour and

Employment dated 28.2.95.

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ORDER:-

The Tamil Nadu Administrative Tribunal, Madras in its orders in O.A.No.6554/93 dated 15.10.93 and in O.A.No.5111/94 dated 17.10.94 had observed that the existing Government orders under the scheme of compassionate ground appointments may be reviewed and until such review, appointment on compassionate ground may be suspended. Accordingly, the Government in the letter sixth read above had issued instructions to all Heads of Departments to keep in abeyance all appointments and matter relating to compassionate ground appointments.

2.Simultaneously, the Government also reviewed the existing orders under the scheme. After careful review the Government issue the following modifications to the Scheme.

1. The application for appointment on compassionate grounds should be made within three years of the death of Government servant;

2. The maximum age limit for such appointment be raised to 50 in the case of widows of the deceased Government servants.

This order will take effect from the date of the issue of order.

(By order of the Governor)

Sd/-P.Shankar,

Secretary to Government

/ True copy /

Superintendent.

6.In the Government Order, it is not stated whether in deserving cases relaxation can be given or not. In the decision reported in (2006) 9 SCC 195 (cited supra) similar case was considered. In paras 4 to 6, it is held as follows:-

"4.We have heard the appellant's counsel and counsel for the respondent. Counsel for the appellant points out that after the death of the government servant his wife submitted an application and it was rejected without giving any reasons and the counsel for the State submits that the same must have been rejected as it was not in the prescribed format. If the applicant had not submitted the application in the prescribed format the State authorities should have asked the applicant to submit the application in the prescribed format giving out the details of the procedure. In the matters of compassionate appointments the authorities should extend the service in an effective manner so that the eligible candidate may avail the opportunity. Though the orders of rejection of the application of the appellant's mother was not challenged the appellant pursued the matter and submitted the application later. The contention of the counsel for the State is that the application filed after 5 years after the date of death of the government employee will not be considered and he further submitted that the application filed on 07.09.1995 was rightly rejected by the authorities.

5.we are unable to accept the contention of the counsel for the State. In the instant case, the widow had applied for appointment within the prescribed period and without assigning any reasons the same was rejected. When the appellant submitted the application he was 13 years old and the application was rejected after a period of six years and that too without giving any reason and the reason given by the authorities was incorrect as at the time of rejection of the application he must have crossed 18 years and he could have been very well considered for appointment. Of course, in the rules framed by the State there is no specific provision as to what should be done in case the dependents are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application.

6.As the widow had submitted the application in time the authorities should have considered her application. As eleven years have passed she would not be in a position to join the government service. In our opinion, this is a fit case where the appellant should have been considered in her place for appointment. Counsel for the State could not point out any other circumstance for which the appellant would be disentitled to be considered for appointment. In the peculiar facts and circumstances of this case, we direct the respondent authorities to consider the application of the appellant and give him appropriate appointment within a reasonable time at least within a period of three months. The appeal is disposed of in the above terms."

7.By applying the judgment of the Supreme Court and having regard to the fact that the petitioner has applied for compassionate appointment on 21.09.1999, which was processed only in the year 2008 for one reason or other and having regard to the age of the petitioner as on the date of the impugned order and as on today, the impugned order is set aside with a direction to the second respondent to consider the claim of the petitioner seeking appointment of the petitioner's son A.Sakthivel on compassionate grounds in the light of the judgment of the Supreme Court cited supra and pass fresh orders within a period of four weeks from the date of receipt of a copy of this order.

8.The writ petition is allowed on the above terms. No costs. Consequently, connected miscellaneous petitions are closed.