IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.07.2011 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.9780 OF 2011 N.Rathinasabapathy ... Petitioner Versus The Chennai Port Trust Rep. by its Chairman Rajaji Salai, Chennai – 600 001. ... Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus, to call for the records relating to the proceedings to the respondent in No.SCT5/6399/2006/G.A. Dated 12.11.2010, quash the same and direct the respondent to give appointment to the petitioner based on his qualification by considering the petitioner's application registered as DR 2289 in the office of the respondent. For Petitioner : Mr.R.N.Amarnath For Respondent : Mr.M.Devendran O R D E R The petitioner's father was employed as Mechanic, Grade – III under the respondent Port Trust. He was medically invalidated from service on 20.05.1997. Thereafter, the petitioner's father made representations dated 11.06.1997, 18.06.1997 and 08.08.1997 to the respondent seeking employment for the petitioner, on compassionate ground. The respondent in their letter dated 14.08.1997 required the father of the petitioner and the petitioner herein, to produce a sworn affidavit before a Magistrate with joint declaration. Accordingly, the petitioner and his father submitted a sworn affidavit before the Chief Judicial Magistrate, Egmore, Chennai. Subsequently, the application dated 15.10.1997 of the petitioner seeking compassionate appointment, was registered and assigned the https://hcservices.ecourts.gov.in/hcservices/ priority number as DR 2289. The petitioner states that the respondent called him for an interview for the post of Mazdoor on 05.05.2000, 06.12.2000 and 31.08.2001. The petitioner attended the interview with original certificates pertaining to his date of birth, educational qualification and community certificates etc. Thereafter, on 10.12.2004, the respondent called him to submit a proforma on or before 25.12.2004 and he has also submitted the same and awaited for appointment order. Since nothing came from the respondent, he made a representation dated 29.04.2009 to the respondent to consider him for appointment. The petitioner studied upto IX Standard and he belongs to Backward Class community. The petitioner sought for an unskilled job such as Mazdoor. While so, the respondent passed the impugned order dated 12.11.2010, rejecting his request for compassionate appointment stating that his name could be kept under consideration for three years only as per the Office Memorandum dated 05.05.2003. 2.The petitioner has filed the present writ petition seeking to quash the order dated 12.11.2010 of the respondent and for a direction to provide him compassionate appointment. 3.The grievance of the petitioner is that while the others, who registered their names for compassionate appointment subsequent to him, were given compassionate appointment, he alone was declined compassionate appointment, without any reasons. It is further stated that the petitioner obtained information under the Right to Information Act, 2005 and the same is enclosed in the typed-set, wherein the persons ranked at serial numbers 10, 42, 48, 71, 105, 129, 155, 163, 169, 190, 205, 206, 208, 211, 215, 222, 223, 224, 225, 227, 228, 229, 230, 231, 232, 233 and 234 were appointed after the issuance of Office Memorandum dated 05.05.2003, referred to in the impugned order and they were juniors to the petitioner. Hence, the petitioner has filed the present writ petition seeking to quash the impugned order dated 12.11.2010 and for a consequential direction to the respondent to provide him compassionate appointment. 4.The respondent has filed a counter affidavit refuting the allegations made by the petitioner. 5.It is stated in the counter affidavit that before evolving the Scheme for compassionate appointment, in the year 2001, the Government Orders were adhered to. Accordingly, in some of the categories, including Mazdoor, certain vacancies were earmarked for compassionate appointment. It is further stated that since because the petitioner was interviewed, he need not be appointed and the respondent is bound to act upon the orders of the Government issued in G.O.No.14014/19/2002/Estt.(D) dated 05.05.2003 and compassionate appointments are provided as per the said order. It is stated that the dependents of the employees, who died before the issuance of the https://hcservices.ecourts.gov.in/hcservices/ said order, were communicated with the contents of the order and they are offered compassionate appointment based on vacancies. It is also stated that compassionate appointment is made based on penurious conditions of the dependents of the deceased employee at the time of making appointment against the vacancies reserved for compassionate grounds. Seniority is not the criteria for selection of candidates. It is admitted in para 8 of the counter that after 05.05.2003, some of the dependents were appointed, even after the expiry of three years of the death of employees. 6.Heard the submissions made on either side and perused the materials available on record. 7.The petitioner's father was employed as Mechanic, Grade – III under the respondent Port Trust. He was medically invalidated from service on 20.05.1997. Thereafter, the petitioner's father as well as the petitioner sought compassionate appointment to the petitioner and they made various representations. When the respondent directed them to produce a sworn affidavit before a Magistrate, with a joint declaration, the same was also complied with. Thereafter, his application for compassionate appointment was registered as DR 2289. The petitioner was called for interview for the post of Mazdoor on 05.05.2000, 06.12.2000 and 31.08.2001. The petitioner has also obtained the list of persons, who obtained compassionate appointment, in the respondent Port Trust. The list contains 242 persons and out of the same, 149 candidates are admittedly junior to the petitioner and they were given compassionate appointment. The death in many of cases took place long back. This fact is also not disputed by the respondent. It is stated by the respondent that the Government Orders were adhered to for providing compassionate appointment, in the year 2001. But however, the respondent has not stated in their counter affidavit, what are all those Government Orders and why the petitioner was not selected when he was called for interview for the post of Mazdoor. The post of Mazdoor is an unskilled post and therefore, it does not require any selection process, except verification of certificates. The petitioner was not selected, though he was called to attend the interview on many occasions for the post of Mazdoor. When the petitioner made grievance that when others were appointed, he was not given appointment, the respondent passed the impugned order dated 12.11.2010. The impugned order relies on the Office Memorandum in DoP&T's OM No.14014/19/2002-Estt(D), dated 05.05.2003 and the relevant passage from the Memorandum is extracted hereunder: "If compassionate appointment to genuine and deserving cases is not possible in the first year due to non-availability of regular vacancy, the prescribed committee may review such cases to https://hcservices.ecourts.gov.in/hcservices/ evaluate the financial conditions of the family to arrive out a decision as to whether a particular case warrants extension by one more year for consideration for compassionate appointment by the Committee, subject to availability of a clear vacancy within the prescribed 5% quota. If on scrutiny by the Committee, a case is considered to be deserving, the name of such a person can be continued for consideration for one more year. The maximum time a person's name can be kept under consideration for offering compassionate appointment will be three years, subject to the condition that the prescribed Committee has reviewed and certified the penurious condition of the applicant at the end of the first and second year. After three years, if compassionate appointment is not possible to be offered to the applicant, his case will be finally closed and will not be considered again." 8.According to the respondent, before 2003, there was a different Scheme for compassionate appointment. But however, the Scheme is not placed before this Court and even the Memorandum dated 05.05.2003 referred to in the impugned order, is not placed before this Court. The passage relied on by the respondent is in the impugned order and it makes it clear that the dependents would be considered for compassionate appointment immediately after the death of the employee and if those dependents would not get appointment, they could not claim seniority. But the respondent does not give the details about as to how the vacancies are filled by the respondent. As already held, the respondent had not given any reason as to why the petitioner was not provided with employment in 2001, when he was called for interview for the post of Mazdoor. 9.Furthermore, the Memorandum dated 05.05.2003 makes it clear that the maximum time a person's name can be kept under consideration for offering compassionate appointment will be three years, subject to the condition that the prescribed Committee has reviewed and certified the penurious condition of the candidate at the end of the first and second year. After three years, if compassionate appointment is not possible to be offered to the applicant, his case will be finally closed and will not be considered again. But in para 8 of the counter affidavit, it is stated that some persons are appointed after the expiry of three years, even after the issuance of the Memorandum dated 05.05.2003 and the same is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "8...... after the implementation of the orders, and as per the concept of the government orders, some of the dependents were appointed even after the expiry of 3 years of the death of employees taking into account the earmarked vacancies within the ambit of 3 years were not filled in that time....." 10.When the petitioner made categorical assertion in para 7 of the affidavit filed in support of the writ petition that some persons in the list of compassionate appointment, were given appointment, on compassionate ground, after 05.05.2003, and admittedly they are his juniors, there was no specific denial in the counter affidavit. The said list is enclosed in the typed-set. I have perused the same and found that the allegations made by the petitioner are true. In these circumstances, I have no hesitation to quash the impugned order dated 12.11.2010 of the respondent, and accordingly, the same is quashed. The respondent is directed to consider the claim of the petitioner for compassionate appointment for the future vacancies, particularly taking into account the fact that the respondent has provided compassionate appointment to the similarly situated persons, as per the list enclosed in the typed set. 11.The writ petition is disposed of with the above observation and direction. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar TK To The Chairman Chennai Port Trust Rajaji Salai, Chennai – 600 001. +1 CC to Mr.M.Devendran, Advocate, S.R.No.46252 +1 CC to Mr.R.N.Amarnath, Advocate, S.R.No.46097 W.P.NO.9780 OF 2011 BS(CO) SRA(08/8/2011) https://hcservices.ecourts.gov.in/hcservices/