IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.6.2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN WRIT PETITION No.10040 of 2006 W.Ruben Franklin ... Petitioner Vs. 1. The Government of Tamilnadu rep. By its Secretary to the Government School Education Department Fort St. George, Chennai-9 2. The Director of School Education, Chennai-6 3. The Joint Director of School Education (Personnel) Chennai-6 .. Respondents This Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records of the third respondent issued in Na.Ka.No.2186/C5/C18/J2/99, dated 21.3.2006, and quash the same and issue a direction to the first respondent to pass orders on the proposal given in RC No.2186/C4/94, dated 1.6.1994, submitted by the Director of School Education for regularisation of petitioner's service and to regularise the petitioner's service as BT Assistant from the date of appointment with all consequential benefits. For petitioners : Mr.R.Saseetharan For respondents : Mr.S.Gopinathan AGP O R D E R Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 2. It is stated by the petitioner that he had obtained a Master of Arts decree in Sociology and Panchayat Raj as well as in History. He had also a B.Ed., degree. As such, he is entitled to be appointed https://hcservices.ecourts.gov.in/hcservices/ as BT Assistant and PG Assistant. The petitioner's father P.M.Wilson was working as a Secondary Grade Teacher in the Government Boys Higher Secondary School, Melur. The petitioner's father had died in harness, on 28.9.1985. His mother had retired from service, on 1.7.1986. 3. The petitioner had further stated that he had applied for appointment on compassionate grounds, on 9.3.1990, 16.5.1990 and 10.8.1990 for the post of PG Assistant, as the petitioner's family was in indigent circumstances. The Chief Educational Officer, by his proceedings, dated 20.4.1990, had informed the petitioner to submit an application on compassionate grounds along with the relevant particulars and the necessary certificates. The Income Certificate issued by the Tahsildar, dated 4.6.1990, shows the annual income of the petitioner's family as Rs.10,392/-, including the pensionary benefits. The monthly income is shown as Rs.866/-. 4. The petitioner had further stated that the Chief Educational Officer, by his proceedings, dated 29.5.1990, had recommended the petitioner's case for appointment on compassionate grounds to the Director of School Education. Thereafter, the Government by a letter, dated 19.9.1990, had stated that there is no provision for appointment to the post of Post Graduate Assistant on compassionate grounds as per G.O.Ms.No.719, dated 19.4.1989. However, since the petitioner had opted for appointment to the post of BT Assistant, by an application, dated 10.8.1990, the Director of School Education had been directed to examine the representation of the petitioner prior to making any appointments. Thus, by the proceedings, dated 5.11.1990, the petitioner was appointed as a BT Assistant and posted at Kattapettu in the Nilgiris District. 5. The petitioner had further stated that in the order of appointment, it was mentioned that the petitioner's service would be regularised only after he is selected by the Teachers' Recruitment Board. While so, the petitioner was surprised to receive a show cause notice issued by the Joint Director of School Education, on 31.10.1997, asking the petitioner to show cause as to why he should not be removed from service as his mother was in employment at the time of the death of his father and that the family could not be said to be in indigent circumstances at that time. 6. The petitioner has further submitted that he had sent a reply, on 10.11.1997, stating that his father had died, on 28.9.1985 and that his mother had retired as a Secondary Grade Teacher, on 30.6.1986, leaving behind the petitioner's mother, three sons, including the petitioner, and one unmarried daughter. The petitioner's family was in indigent circumstances as the father's family pension was Rs.302/- and his mother's pension was Rs.562/-. As per G.O.Ms.No.115, dated 13.7.1993, it has been stated that an appointment on compassionate grounds would be given to the family, https://hcservices.ecourts.gov.in/hcservices/ which is in indigent circumstances. In spite of the reply sent by the petitioner, no order was passed by the respondents. 7. The petitioner had further stated that the show cause notice, dated 31.10.1997, does not say that the petitioner has been appointed due to his suppression of the material facts. It only says that the petitioner is not entitled for appointment on compassionate grounds. The respondents cannot deny the petitioner his appointment on compassionate grounds, after a lapse of 7 years of such appointment. In such circumstances, the petitioner had filed an Original Application in O.A.No.9312 of 1997, before the Administrative Tribunal, Chennai, which had granted an order of interim stay of all further proceedings pursuant to the show cause notice, dated 31.10.1997. The Original Application in O.A.No.9312 of 1997, had been transferred to this Court, and it was renumbered as W.P.No.32143 of 2005. Since the writ petition was against the show cause notice, and as the petitioner had submitted his explanation, on 10.11.1997, this Court had directed the respondent to consider and pass orders on the representation of the petitioner within the time specified in its order. 8. The petitioner had further submitted that by an order, dated 21.3.2006, the Joint Director of School Education, (Personnel), had removed the petitioner from service on the ground that his appointment is contrary to G.O.Ms.No.155, Labour and Employment Department, dated 16.7.1993, and that he had deceived the Government by his misrepresentation. The said order of removal from service was passed on the basis of the order of the Government, dated 16.3.2006. In the said order, it has been stated that as per G.O.Ms.No.155, Labour and Employment Department, dated 16.7.1993, no family member of the deceased Government servant should be in any employment at the time of the death of the Government servant. In the case of the petitioner, his mother was in employment, on 28.10.1985, when his father had died. However, the petitioner had submitted his application for appointment on compassionate grounds only after his mother had retired from service. The show cause notice, dated 31.10.1997, regarding removal of the petitioner from service, issued after a period of 7 years from the date of the appointment of the petitioner is illegal and the respondents are estopped from denying the eligibility of the petitioner for appointment on compassionate grounds. 9. The respondents had failed to see that on 1.6.1994, the Director of School Education, had sent a proposal to the Government for relaxation and for regularisation of the service of the petitioner from the date of his appointment. No order had been issued on the proposal sent by the Director of School Education. On 5.12.1991, the petitioner had applied for selection through the Teachers' Recruitment Board, pursuant to the order of his appointment, dated 16.11.1990. The representation of the petitioner https://hcservices.ecourts.gov.in/hcservices/ had been forwarded by the Headmaster of the School to the concerned authorities. However, no order had been passed on the petitioner's representation. The petitioner had been removed from service by the impugned order on the ground that he is not eligible for appointment on compassionate grounds as per G.O.Ms.No.155, Labour and Employment Department, dated 16.7.1993. In such circumstances, the petitioner has filed the present writ petition under Article 226 of the Constitution of India praying for the reliefs as stated therein. 10. In the counter affidavit filed on behalf of the respondents, it has been stated that the father of the petitioner P.M.Wilson was working as a Secondary Grade Teacher in the Government Boys Higher Secondary School, Melur. He had died, on 28.9.1985, while he was in service. The proposals received from the petitioner for appointment on compassionate grounds had been sent to the higher authorities for consideration and for necessary orders. The petitioner was appointed as a BT Assistant and posted at Kattapettu in the Nilgiris District and he had joined duty, on 23.11.1990. 11. It has been further stated that certain defects were seen in the regularisation proposals sent on behalf of the petitioner. It was found that Mary Angelina, wife of P.M.Wilson, the deceased Government servant, was in service, on 28.9.1985, when the petitioner's father P.M.Wilson had died. Therefore, a show cause notice had been issued by the Joint Director of School Education, on 31.10.1997, asking the petitioner to show cause as to why the petitioner should not be removed from service, as his mother was in employment at the time of the death of P.M.Wilson, who had been a Government servant. The petitioner had filed an Original Application in O.A.No.9312 of 1997, on the file of the Tamil Nadu Administrative Tribunal, Chennai. The Tamil Nadu Administrative Tribunal had granted an order of interim stay of all further proceedings, pursuant to the show cause notice, dated 31.10.1997. Thereafter, the Original Application in O.A.No.9312 of 1997, had been transferred to this Court and renumbered as W.P.No.32143 of 2005. The said writ petition was disposed of with a direction to the respondent therein to consider and pass appropriate orders on the reply given by the petitioner to the show cause notice, dated 31.10.1997. 12. It has been further stated that by an order passed by the Joint Director of School Education, (Personnel), vide Na.Ka.No.2186/C5/C18/J2/99, dated 21.3.2006, the petitioner had been removed from service on the ground that his appointment was contrary to the conditions imposed in G.O.Ms.No.155, Labour and Employment Department, dated 16.7.1993, in which it has been stated that if a member of the family is already in employment, the restrictions specified therein would apply. In the case of the petitioner since his mother was in employment on the date of the death of his father, he would not be eligible for appointment on compassionate grounds. https://hcservices.ecourts.gov.in/hcservices/ Thus, the writ petition filed by the petitioner is devoid on merits and therefore, it is liable to be dismissed. 13. The learned counsel appearing for the petitioner had submitted that the petitioner had been appointed on compassionate grounds only in accordance with the relevant scheme. It has also been stated that the petitioner had not suppressed any of the facts relevant for the appointment of the petitioner on compassionate grounds. When the petitioner had been appointed by the proceedings, dated 5.11.1990, as a BT Assistant based on the recommendations of the Chief Educational Officer, by his proceedings, dated 29.5.1990, the petitioner cannot be removed from service based on the show cause notice, dated 31.10.1997, which has been issued after a lapse of 7 years from the date of the petitioner's appointment. Further, the respondents cannot deny the fact that the petitioner possesses the necessary eligibility for appointment as a BT Assistant. The respondents ought to be estopped from raising the plea that the petitioner is not eligible for appointment on compassionate grounds, especially, when the Director of School Education had sent a proposal to the concerned authorities for regularisation of the service of the petitioner, on 1.6.1994, and the same is pending before the Government. It is not the case of the respondents that the petitioner had not given all the necessary details before he was recommended for appointment on compassionate grounds. The petitioner has not suppressed or misrepresented with regard to the facts necessary for such appointment. The family of the petitioner has been in indigent circumstances subsequent to the death of the petitioner's father, on 28.9.1985 and on the retirement of his mother from service, on 1.7.1986. Further, the request for regularisation has been pending with the Government and no orders had been passed on such request till date. Further, when there is a provision for relaxation of the necessary conditions on compassionate grounds, the petitioner cannot be removed from service, after a lapse of 7 years from the date of his appointment. 14. It has also been found by the respondents that the family of the petitioner has been in indigent circumstances. As such, the petitioner had been appointed as a BT Assistant, on compassionate grounds, pursuant to the order of appointment, dated 5.11.1990. 15. It has been further stated that the impugned order, dated 21.3.2006, removing the petitioner from service had been stayed by this Court, by its order, dated 27.4.2006, made in W.P.M.P.No.11361 of 2006 in W.P.No.10040 of 2006 and the order of stay granted by this Court is continuing till date. 16. Per contra, the learned counsel appearing for the respondents had denied the claims made by the petitioner. It was submitted that the petitioner was not qualified to be appointed on compassionate grounds on the death of his father, on 28.9.1985, since his mother https://hcservices.ecourts.gov.in/hcservices/ had been working as a Secondary Grade Teacher at that time. Once it is found that the petitioner is not eligible for such appointment, he cannot be regularised in service based on the order of the appointment made, on 5.11.1990. An irregular appointment cannot be regularised, after it is found that the necessary conditions required for the appointment of the petitioner on compassionate grounds were not existing at the time of the death of his father, on 28.9.1985. Further, it is for the petitioner to prove his claims by sufficient evidence in order to establish that his appointment on compassionate grounds could be sustained in the eye of law. 17. Considering the submissions made by the learned counsels appearing for the parties concerned, this Court is of the considered view that the appointment of the petitioner as a BT Assistant on compassionate grounds, by an order, dated 5.11.1990, cannot be nullified by the subsequent impugned order of the third respondent, dated 21.3.2006. The appointment of the petitioner, on 5.11.1990, was based on the particulars given by the petitioner and it has not been shown by the respondents that the particulars given by the petitioner are wrong or misleading. There has been no misrepresentation by the petitioner with regard to the relevant details, which were necessary for the respondents to pass the order appointing the petitioner. When it was found by the respondents, based on the certificate issued by the Tahsildar, that the petitioner and the members of his family were in indigent circumstances and when his appointment had been made, based on such finding it may not be open to the respondents to find fault in the petitioner's appointment at this point of time. The show cause notice, dated 31.10.1997, has been issued after nearly 7 years from the date of his appointment. Further, it has not been shown by the respondents that the appointment is illegal or contrary to the established scheme relating to appointment on compassionate grounds. When the Chief Educational Officer had recommended the case of the petitioner for appointment on compassionate grounds by his proceedings, dated 29.5.1990 and the petitioner's appointment had been made by the proceedings, dated 5.11.1990, the respondents would be estopped from raising the plea of disqualification of the petitioner for such appointment after a lapse of 7 long years. Further, it is seen from the records available that this Court, by an interim order, dated 27.4.2006, made in W.P.M.P.No.11361 of 2006 in W.P.No.10040 of 2006, had granted an order of interim stay of the impugned order of the third respondent, dated 21.3.2006, removing the petitioner from service. 18. In such circumstances, the impugned order of the third respondent, dated 21.3.2006, removing the petitioner from service, is set aside and the first respondent is directed to consider and pass appropriate orders on the proposal given in RC No.2186/C4/94, dated 1.6.1994, submitted by the Director of School Education, on merits and in accordance with law, within a period of 12 weeks from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 19. Accordingly, the writ petition stands partly allowed to the extent mentioned above. Consequently, connected W.P.M.P.No.11361 of 2006 and W.V.M.P.No.1287 of 2006 are closed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. lan To: 1. The Secretary to the Government School Education Department The Government of Tamilnadu Fort St. George, Chennai-9 2. The Director of School Education, Chennai-6 3. The Joint Director of School Education (Personnel) Chennai-6 + 1 CC to the Government Pleader SR NO 27673 WRIT PETITION No.10040 of 2006 RA(CO) SRA(16/06/2008) https://hcservices.ecourts.gov.in/hcservices/