IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.10205 of 2010 (T) (O.A.NO.6433 OF 1996) Duraimozhivarman .. Petitioner Vs. 1.The State of Tamilnadu, rep by the Secretary to Government, Survey & Land Records Department, Secretariat, Chennai-9. 2.The Commissioner and Director of Land Survey and Land Settlement, Ezhilagam, Chepauk, Chennai-5. 3.The Assistant Director, Land Survey & Records, Tiruvannamalai Sambuvarayar Dist. .. Respondents O.A.No.6433 of 1996 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.No.10205 of 2010 praying for the issue of a writ of certiorarified mandamus to call for the records on the file of the third respondent in connection with the order passed by him in his proceedings Na.Ka.No.A2 4158/96(1) dated 1.10.1996 and to quash the same and to direct the respondents to reinstate the applicant with all monetary and service benefits. For Petitioner : Mr.S.Ramesh For Respondents : Mr.R.Murali, GA ORDER The petitioner filed O.A.No.6433 of 1996 before the Tamil Nadu Administrative Tribunal, seeking to challenge an order of the third respondent, i.e., Assistant Director of Land Survey and Records, dated 01.10.1996. By the impugned order, the petitioner's service was terminated on the ground that his appointment on compassionate ground as a Land Surveyor cannot be made and that approval of the TNPSC was also not obtained for his appointment. https://hcservices.ecourts.gov.in/hcservices/ 2.The Tribunal had admitted the OA and had granted an interim stay on ground that no notice was given to him vide order dated 08.11.1996. Subsequently, the interim order came to be extended from time to time and finally, until further orders by a further order dated 29.11.1996. 3.In the meanwhile, the petitioner filed a writ petition being W.P.No.33911 of 2005 to withdraw the OA and renumber it as a writ petition to be heard by this court. By an order dated 21.10.2005, this court mistook the prayer of the petitioner and had passed an order that the petitioner was permitted to withdraw the OA pending before the Tribunal. Thereafter, the petitioner filed WPMP No.278 of 2010 seeking for clarification. It was stated by the petitioner that his intention was not to withdraw the OA from the Tribunal, but to transfer it from the Tribunal to this Court to be heard as a writ petition. This Court by an order dated 16.4.2010 had clarified the order and directed to renumber the OA as a writ petition. It is not clear as to what was the status of the petitioner from 21.10.2005, the date on which his OA was dismissed by this court as withdrawn till 16.04.2010, the day on which the matter was restored and to be treated as a writ petition. Accordingly, by a subsequent order, the OA was transferred and renumbered as W.P.No.10205 of 2010. Though an application was filed to vacate the stay order together with supporting reply affidavit, the Tribunal did not number the application. When the matter came up before this court, this court directed the original files to be circulated. Accordingly, the original file was circulated. 4.It is seen from the records that the petitioner's father late K.P.Harikrishnan was working as a Sub Inspector of Survey in the respondent Department. He died on 19.6.1984 in harness. Even at that time, the petitioner's mother was working as a village help nurse. After working for more than nine years after the death of the petitioner's father, she had applied for voluntary retirement and got voluntary retirement on 30.11.1993. Therefore, at the time of death of the petitioner's father, the petitioner was not eligible for any appointment on compassionate ground. But notwithstanding the same, the petitioner was appointed on compassionate ground based on the report of the Cheyyar Tahsildar. 5.At the time of the death of the petitioner's father, the petitioner had an elder brother Arulmozhivarman, who was a graduate and who was 26 years old and the petitioner was 24 years having ITI qualification. His application was not entertained. Thereafter, the petitioner's mother had written a letter to the Commissioner for Revenue Administration. The same was forwarded with an endorsement by the Commissioner to the District Collector to sympathetically consider his representation. Thereafter, the petitioner was given temporary appointment under Rule 10(a)(1) as a Land Surveyor in the department. It was also indicated that the appointment would be subject to approval by the department head as well as by the Government. https://hcservices.ecourts.gov.in/hcservices/ 6.The Government found that at the time of death of petitioner's father, his mother was in employment. It is only after nine years after his death, his mother went on voluntary retirement and that immediately after his death, none of the legal heirs had staked any claim. Therefore, none of the legal heirs were eligible for any employment on compassionate grounds. Without considering the revenue income of the family, the recommendation has been made by the Tahsildar, Cheyyar. Therefore, an appropriate disciplinary action was directed to be taken against the Tahsildar and the petitioner's service should also be terminated. Accordingly, the petitioner was terminated by an officer order dated 1.10.1996. It was also served on him on the same day. It was thereafter the petitioner moved the Tribunal and had obtained an interim stay. On the basis of the stay order, he was restored to duty on 27.11.1996. Thereafter when the writ petition was dismissed as withdrawn by an order of this court on 21.10.2005, a copy was also marked to all the respondents. But the office file did not indicate that any action was taken and that it had a continued endorsement stating that the case was pending before the Tribunal and it will take some more time for disposal. It was only on 25.09.2007, an endorsement was made that the matter was transferred to the High Court and final orders are expected. It clearly shows that in the office of the respondents, there are persons to help the petitioner and that was why even the orders dated 21.10.2005 and 16.4.2010 were not referred to in the file. 7.In any event, the learned counsel for the petitioner Mr.S.Ramesh contended that the petitioner did not suppress any information at the time of joining duty. Therefore, at this time, he cannot be terminated from service. In this context, he referred to a judgment of this Court in S.Thangappan and others Vs. The Government of Tamil Nadu rep by the Commissioner and Secretary, Rural Development and Local Administration Department, Fort St. George, Madras reported in 1986 WLR 204. In that case, the court found that the appointment even if it is found to be contrary to rules, the disciplinary action should be taken against the officers concerned and no termination should be made. However, the said observation was not laying down any universal law. 8.On the other hand, the Supreme Court in more or less identical circumstances in S.Mohan Vs. Government of Tamil Nadu and another reported in (1998) 9 SCC 485 has held that if any compassionate appointment is made contrary to rules, the said appointment should be cancelled and the mere continuance for a long time will not enure to the benefit of such employee. In paragraph 4, the Supreme Court had observed as follows: "4.Learned counsel for the appellant has strenuously urged that the appointment of the appellant on compassionate grounds was justified and that the appellant had not suppressed any fact at the time of https://hcservices.ecourts.gov.in/hcservices/ seeking appointment on compassionate grounds. The question, however, is whether in the facts and circumstances set out, could the appointment of the appellant have been made on compassionate grounds after a lapse of 10 years from the date of the death of his mother. Secondly, whether the circumstances justify the appointment of the appellant on compassionate grounds. ............. Looking to all the circumstances, the Government had rightly refused to give him appointment. The fact that the appellant was continued in service on account of the interim orders passed during the pendency of the proceedings taken out by the appellant will not be of any help to the appellant since he was throughout aware that these were only interim orders which were subject to the outcome of the proceedings. We do not see any reason to set aside the order of the Tribunal. The appeal is, therefore, dismissed. There will, however, be no order as to costs." 9.Further, it must be noted that the scheme of compassionate appointment is an exception to Articles 14 and 16 of the Constitution. If a person has applied for an appointment on compassionate appointment, the background of his family will have to be taken note of before appointment is made. In this context, it is necessary to refer to a judgment of the Supreme Court in State of Haryana v. Ankur Gupta reported in (2003) 7 SCC 704. In paragraphs 4 to 10, the Supreme Court observed as follows: 4. Learned counsel for the appellant State submitted that the approach of the High Court is erroneous. When the appointment was made in violation of the policy, and by mistake the respondent had been appointed, that does not confer any legal right upon him. In response, learned counsel for the respondent submitted that as rightly observed by the High Court, there was no misrepresentation or fraud practised by the respondent in gaining employment. The respondent has worked for more than 4 years and in view of what has been stated by this Court in Union of India v. K.P. Tiwari1, jurisdiction under Article 136 of the Constitution of India, 1950 (in short “the Constitution”) should not be exercised. 5. We find that the appointment, admittedly, was not permissible in view of the policy which came into force from 22-8-1996. The earlier policy was changed in view of a decision of the High Court. The correctness of the policy decision was not under challenge. 6. As was observed in State of Haryana v. Rani Devi2 it need not be pointed out that the claim of https://hcservices.ecourts.gov.in/hcservices/ the person concerned for appointment on compassionate ground is based on the premise that he was dependent on the deceased employee. Strictly, this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die- in-Harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi case2 it was held that the scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In LIC of India v. Asha Ramchhandra Ambekar3 it was pointed out that the High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana4 that as a rule, in public service appointments should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. 7. In Director of Education (Secondary) v. Pushpendra Kumar5 it was observed that in the matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both https://hcservices.ecourts.gov.in/hcservices/ ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for grant of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased employee. As it is in the nature of exception to the general provisions, it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. 8. These aspects have been highlighted by this Court in a recent decision in State of Manipur v. Md. Rajaodin6. 9. Above being the legal position, the logic of the policy cannot be undermined. Coming to the question whether there was any fraud or misrepresentation, we find that right from the beginning, the officers concerned were acting in a manner contrary to the policy. When the Director of Industrial Training and Vocational Education, Haryana wrote to the Commissioner and Secretary, Industrial Training and Vocational Education Department, Haryana Government, on 22-5-1997, it was clearly indicated that the mother of the respondent was already in government service. It was also noted that according to the government instructions only those dependants of the deceased employee/officer whose family income is up to Rs2500 per month can be appointed. In the letter itself it is mentioned that the monthly salary of the respondent’s mother was Rs5880 and, therefore, there was no scope for appointing the respondent. Having said so, it was indicated that relaxation may be given in his case. The High Court proceeded on the basis as if there was relaxation of the stipulations. No provision could be shown to us whereby relaxation is permissible, particularly when the policy in this respect was modified on the basis of and in implementation of the decision of the High Court. Though the learned counsel for the respondent referred to the 1970 guidelines where there was scope for relaxation, the same does not assist the respondent because that was operative at a point of time when the policy dated 22-8-1996 https://hcservices.ecourts.gov.in/hcservices/ notified to be in line with the High Court’s judgment was not in operation. 10. Looked at from any angle, the view of the High Court is indefensible. The judgment of the High Court is, therefore, set aside. But while allowing the State’s appeal, it cannot be lost sight of that the respondent was in government service for more than about four years. It is stated by the learned counsel for the respondent that he has already become overaged for government employment. In the peculiar circumstances, in case the respondent applies for a job in the Government within a period of two years and is selected dehors the compassionate appointment scheme, the question of his having crossed the age bar, would not stand in his way and the service rendered by him shall be duly considered. The appeal is allowed subject to the aforesaid observations. Costs made easy. 10.In a case where appointment is made suppressing information of employment of another person in the family of the employee, then such a person can be terminated without even notice as held by the Supreme Court in Secretary, Andhra Pradesh Social Welfare Residential Educational Institutions Vs. Pindiga Sridhar and others reported in 2007 (13) SCC 352. The Supreme Court has held in paragraph 7 as follows: "7.The High Court on the basis of the erroneous view upset the well-merited judgment of the learned Single Judge. By now, it is well- settled principle of law that principles of natural justice cannot be applied in a straitjacket formula. Their application depends upon the facts and circumstances of each case. To sustain the complaint of the violation of principles of natural justice one must establish that he was prejudiced for non-observance of the principles of natural justice. In the present case, the fact on which the appellant terminated the services of the respondent appointed on compassionate ground was admitted by the respondent himself that when he applied for the post on compassionate ground by his application dated 6-5-1996, his mother was in service. So also when he secured the appointment by an order dated 22-11-2002 his wife was in service since 3-8-1997 as Extension Officer in Rural Development and later on promoted as Mandal Parishad Development Officer at the time when he was appointed on compassionate ground. These facts clearly disclose that the appointment on compassionate ground was secured by playing https://hcservices.ecourts.gov.in/hcservices/ fraud. Fraud cloaks everything. In such admitted facts, there was no necessity of issuing show- cause notice to him. The view of the High Court that termination suffers from the non-observance of the principles of natural justice is, therefore, clearly erroneous. In our view, in the given facts of this case, no prejudice whatsoever has been caused to the respondent. The respondent could not have improved his case even if a show-cause notice was issued to him." 11.In the present case, technically it was argued that the petitioner's mother was not in employment at the time of appointment of the petitioner. But the fact that the petitioner's mother had continued in employment about nine years after the death of petitioner's father was not taken note of. If that was brought to the notice of the appointing authority, certainly no appointment would have been granted. But, in this case, such an information was brought to the Government only when approval for his appointment was sought for. The competent authority is only the State Government. Therefore, the State Government had correctly refused to ratify the appointment. The petitioner had continued in service under the stay order, which stay order was also not in force from 21.10.2005 to 16.4.2010. This fact was not brought to the notice of the higher-ups by the department officials and that the petitioner must have continued merrily without the knowledge of this court. In any event, as held in S.Mohan's case (cited supra), such continuance will not help the case of the petitioner. 12.In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vvk To 1.The Secretary to Government, The State of Tamilnadu, Survey & Land Records Department, Secretariat, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/ 2.The Commissioner and Director of Land Survey and Land Settlement, Ezhilagam, Chepauk, Chennai-5. 3.The Assistant Director, Land Survey & Records, Tiruvannamalai Sambuvarayar Dist. 1 cc to Government Pleader, Sr. 32773 1 cc to M/s. s. Ramesh, Advocate, Sr. 32846 W.P.NO.10205 of 2010 SAI (CO) kk 10/6 https://hcservices.ecourts.gov.in/hcservices/