IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.08.2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.23925 of 2009 & M.P.Nos.1 and 2 of 2009 T.K.Valluvan ... Petitioner Versus 1. The State of Tamil Nadu rep. by its Principal Secretary to Government, School Education Department, Secretariat, Chennai – 9. 2. The Director of School Education, College Road, Chennai – 6. 3. The Chief Educational Officer, Manjakkuppam, Cuddalore, Cuddalore District. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, to call for the records connected with the Government Letter in Lr.(3D)No.62, School Education(Hr.Sec.Edn.2) dated 22.07.2009 passed by the first respondent and also the letter of the Chief Educational Officer, Cuddalore – 1 in Na.Ka.No.12359/A3/93, dated 02.11.2009 and quash the same and direct the respondents to regularise the service of the petitioner in the post of Secondary Grade Teacher with all benefits. For Petitioner : Mr.G.Elanchezhiyan For Respondents: Mrs.Lita Srinivasan Government Advocate O R D E R The petitioner's father was working as Headmaster at Government Boys Higher Secondary School, Thozhudur, Cuddalore District. He died on 23.12.1985, while he was in service, leaving behind his wife, four daughters and two sons. The petitioner is one of the sons. Even before the death of his father, his elder brother was married on 15.02.1985 and was living with his family separately. https://hcservices.ecourts.gov.in/hcservices/ The petitioner's brother was employed at a far away place and he is living at the place of his employment. 2. The petitioner claimed compassionate appointment due to the death of his father, stating that his family was in indigent circumstances. Based on his application for compassionate appointment, the District Educational Officer, Virudhachalam was directed to send report after conducting an enquiry. Accordingly, the District Educational Officer, Virudhachalam enquired into the matter and sent a report dated 25.05.1992. In the said report, he categorically stated that the elder brother of the petitioner was married, even prior to the death of the father and he was employed at a different place and he was living there with his family. It is also stated that he was not supporting the family. The District Educational Officer, Virudhachalam also stated that the family was in starving condition. 3. Based on the report of the District Educational Officer, Virudhachalam dated 25.05.1992, the second respondent issued an order dated 13.04.1993 appointing the petitioner as a Secondary Grade Teacher. The appointment order dated 07.07.1993 was issued by the third respondent, based on the aforesaid order dated 13.04.1993 of the second respondent. 4. While so, the third respondent sent a proposal dated 23.11.1994, to the first respondent for regularization of the service of the petitioner. The first respondent kept quite for more than 10 years. Thereafter, the first respondent seems to have written a letter dated 06.05.2005 to the second respondent seeking certain details relating to the compassionate appointment given to the petitioner. 5. Based on the letter dated 06.05.2005, the second respondent issued a letter dated 09.08.2005 to the petitioner directing him to furnish the details. Two details were sought for by the second respondent. The first detail is relating to the No Objection Certificate issued by the elder brother of the petitioner, wherein address of the family of the petitioner was stated, while the proposal for regularisation of the service states that the elder son was living separately. The second detail is non-submission of certificate relating to the indigent circumstances from the Tahsildar. It is also referred to in the said letter that the petitioner requested for compassionate appointment after 7 years of the death of the father. 6. The petitioner gave detailed explanation in his letter dated 29.09.2005. He explained that his elder brother was living separately, even before the death of his father. The District Educational Officer, Virudhachalam, after enquiry found it true. He also gave certain explanations for making belated application for https://hcservices.ecourts.gov.in/hcservices/ compassionate appointment. According to him, his family was in starving condition and his mother was not well for a long time, as she was afflicted with paralytic stroke. The petitioner also produced a certificate from the Tahsildar to the effect that the petitioner's family was in indigent circumstances from 1985 to 1994. 7. The third respondent forwarded the explanation given by the petitioner to the second respondent. The second respondent forwarded the same to the first respondent. While so, the first respondent passed the impugned order dated 22.07.2009 rejecting the proposal for regularising the service of the petitioner, on the ground that the elder brother of the petitioner was already in Government service, while the petitioner's father died and that the petitioner made an application for compassionate appointment, 7 years after the death of his father. Furthermore, the certificate relating to indigent circumstances was not obtained from the Tahsildar at the time of appointing the petitioner. Based on the same, a consequential order was passed by the third respondent dated 02.11.2009, directing the petitioner to explain as to why further action could not be taken. 8. Aggrieved by the same, the petitioner has filed the present writ petition to quash the order dated 22.07.2009 of the first respondent and 02.11.2009 of the third respondent and for a direction to the respondents to regularise his service in the post of Secondary Grade Teacher with all benefits. 9. Notice of motion was ordered on 20.11.2009 and status- quo was also granted. 10. The respondents have filed counter affidavit . 11. Heard Mr.G.Elanchezhiyan, learned counsel for the petitioner and Mrs.Lita Srinivasan, learned Government Advocate for the respondents. 12. The petitioner was appointed as a Secondary Grade Teacher, by an order dated 07.07.1993. He has rendered more than 17 years of service. Before issuing appointment order, the District Educational Officer, Virudhachalam conducted an enquiry about the indigent circumstances of the family and he gave a report dated 25.05.1992 to the second respondent. 13. Based on the report dated 25.05.1992 of the District Educational Officer, Virudhachalam , the second respondent passed an order dated 13.04.1993 for issuing appointment order to the petitioner. Based on the order dated 13.04.1993, the third respondent issued an order dated 07.07.1993 appointing the petitioner as Secondary Grade Teacher. Thereafter, the third respondent sent a proposal dated 23.11.1994 to the first respondent through the second https://hcservices.ecourts.gov.in/hcservices/ respondent for regularisation of the service of the petitioner. The second respondent also recommended for regularisation of the service of the petitioner in the proceedings dated 21.10.1993. 14. In these circumstances, after 10 years, the first respondent issued a letter dated 16.05.2005 directing the second respondent to get explanation on certain aspects relating to his compassionate appointment. Those aspects are:- (i) The petitioner's elder brother was in employment even prior to the death of the father and he was residing separately, but in the no objection certificate given by the elder brother, the address of the family was shown as the same of the petitioner's address. (ii) While, the petitioner made an application after 7 years for compassionate appointment, the petitioner failed to produce the indigent circumstances certificate from the Tahsildar. 15. The petitioner gave an explanation and he stated that the District Educational Officer, Virudhachalam conducted an enquiry based on his application for compassionate appointment and submitted a report on 25.05.1992. In the said report, the District Educational Officer, Virudhachalam categorically stated that the family was in starving condition. The report of the District Educational Officer, Virudhachalam was acted upon, and appointment order was issued. The District Educational Officer, Virudhachalam found as a fact that the elder brother of the petitioner was living separately and he was not supporting the family. The petitioner also sent a certificate of the Tahsildar to the effect that the family was in indigent circumstances from 1985 to 1994. The said explanation was forwarded to the first respondent. 16. But, the first respondent passed the impugned order stating that the elder brother of the petitioner was in employment, while the petitioner was issued an appointment order. The other ground was that at the time of issuing appointment order, the petitioner did not furnish the certificate relating to indigent circumstances from the Tahsildar. It is also stated that the petitioner made application after 7 years after the death of his father. While G.O.42, Labour and Employment Department dated 12.03.2007 contemplates that the application should be made within three years from the death of the Government employees. 17. The first respondent refused to regularise the service by way of the impugned order. The aforesaid facts make it very clear that the impugned order was passed without application of mind. In the impugned order itself, it has been stated that even if one of the legal heirs was in employment at the time of the death of the Government employee, there is no bar for giving employment to other legal heir if the person in employment does not support the family. In this case, as stated above, the District Educational Officer, https://hcservices.ecourts.gov.in/hcservices/ Virudhachalam after conducting enquiry, gave a detailed report dated 25.05.1992 which is as follows:- ",we;Jtpl;l Mrphpah; jpU/o/v/!;/ fUg;gd; vd;gthpd; thhpRfspy; Kjy; kfd; jpU/o/nf/ Kunfrd; jdJ je;ij ,wg;gjw;F Kd;ng jpUkzk; eilbgw;W tpl;lJ/ muR gzpapy; btspa{hpy; jdp Flk;gkhf gzpg[hpe;J tUgth;/ jw;nghJ jdJ Flk;gj;ij guhkhpg;gnj kpFe;j fc&;lg;gLtjhft[k; ,e;epiyapy; jdJ jhahiua[k;. jpUkzk; Mfhj jdJ jk;gpiaa[k;. jdpna guhkhpg;gJ jdJ Cjpaj;ij ek;gpa[k;. ,we;j Mrphpahpd; thhpRkhj jpU/jp/f/ts;Std; vd;gtUf;F fUiz mog;gilapy; gzptha;g;g[ tH';f jilapd;ik rhd;W tH';fpa[s;shh;/ mitfis tprhhpj;J Ma;t[ bra;jnghJ ,e;epiy cz;ik vdt[k;. ,we;j Mrphpah; jpU/o/v!;/fUg;gdpd; kidtpa[k;. jpUkzkhfhj kfSk; thhpRk;. tpz;zg;gjhuUkhj jpU/jp/f/ts;Std; vd;gtUk; twpa NH;epiyapy; ,Ue;J tUtij mwpa KofpwJ/" 18. Based on the report alone, the petitioner was given appointment. Therefore, now after 17 years, the first respondent cannot say that the employment of the elder brother of the petitioner is a bar for giving employment to the petitioner. 19. The District Educational Officer, Virudhachalam found that the family was in indigent circumstances. The aforesaid report of the District Educational Officer, Virudhachalam makes it very clear that the family was living in starving condition. Nobody insisted that the petitioner should produce a letter from Tahsildar relating to indigent circumstances. Now, the petitioner also gave a certificate stating that the petitioner's family was in indigent circumstances from 1985 to 1994 from the Tahsilder. 20. When no authority directed the petitioner to produce certificate from Tahsildar relating to indigent circumstances, that cannot be put against the petitioner that too after 17 years. 21. The other reason given in the impugned order is that the petitioner made an application after 7 years for compassionate appointment. The first respondent relies on G.O.42, Labour and Employment Department dated 12.03.2007. When the petitioner's father died in 1985 or when the petitioner was appointed by an order dated 07.07.1993, there was no limitation for making application seeking compassionate appointment. This is not disputed. Only, at later point of time, the limitation of three years was introduced. Before fixing of limitation, the applications were entertained and compassionate appointments were given by various Departments, without reference to time limit. Hence, that cannot be cited now to deny regularisation, after 17 years. 22. Further, The learned counsel for the petitioner has correctly relied on a decision of the Division Bench of this Court dated 03.11.2009 in W.A.No.1559 of 2009. Para 6 of the said judgment is extracted here-under:- https://hcservices.ecourts.gov.in/hcservices/ "We have noted the submissions of both the parties. We quite see the force in the submission of the learned Government Pleader. Compassionate appointment is not meant for persons who do not in fact face the difficulty. It is meant to tide over the immediate difficulty of the family. For a moment, we do not approve the manner in which he has obtained the employment. At the same time, it is also to be seen that in the instant case nearly after four years, the State Government has moved to cancel the appointment. Nothing is placed on record as to what action was taken against the officers, who are responsible for the disputed appointment and delayed action on the part of the Government. Almost similar facts were there in the two matters which have been referred herein in the sense that the persons were sought to be removed after passing of good number of years. Besides, by now, nearly 15 years have gone since the time the appellant has been initially appointed, and, therefore, we do not think that it will be fair to disturb his employment." 23. In these circumstances, the impugned orders dated 22.07.2009 of the first respondent and 02.11.2009 of the third respondent are liable to be quashed and the same are quashed. 24. The writ petition is allowed accordingly. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar r n s To 1. The Principal Secretary to Government, Government of Tamil Nadu. School Education Department, Secretariat, Chennai – 9. 2. The Director of School Education, College Road, Chennai – 6. https://hcservices.ecourts.gov.in/hcservices/ 3. The Chief Educational Officer, Manjakkuppam, Cuddalore, Cuddalore District. 1 cc To The Government Pleader, SR.61450 1 cc To M/S.G.Elanchezhiyan, Advocate, SR.61255 W.P.No.23925 of 2009 AKR (CO) RH (25.8.10) https://hcservices.ecourts.gov.in/hcservices/