1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:16.12.2011 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA and THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Appeal (MD)No.52 of 2011 G.Vimala :Appellant -Vs- 1.The Chief Engineer, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai-600 002. 2.The Superintending Engineer, Trichy Electricity Distribution Circle, Tiruchirappalli-20. 3.The Superintending Engineer, Perambalur Electricity Distribution Circle, Perambalur. :Respondents Writ Appeal filed under Clause 15 of Letters Patent against the order passed by this Court in W.P.(MD)No.4318 of 2010 dated 13.09.2010. WP(MD)No.4318/2010:Writ Petitionfiled under article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records pertaining to the orders passed by the third respondent vide letter No.571/NiP.1/Ni U.4/Ko.Va.Ve/08 dated 15.9.2008 and consequential order in Ka.No.853/Pi.P.2/Ni.U4)Ko.Va.Ve/2010-E dated 12.2.10 and quash the same and consequently direct the respondents to provide suitable employment opportunity to the petitioner on compassionate ground under the jurisdiction of second respondent. For Appellant :Mr.D.Shanmugaraja Sethupathi For Respondents:Mr.C.Selvaraj JUDGMENT (Judgment of the Court was delivered by K.N.BASHA, J.) The appellant has preferred this writ appeal against the order of the writ Court dated 13.09.2010 dismissing the writ petition filed by the appellant in W.P.(MD)No.4318 of 2010, challenging the impugned order of rejection seeking the relief of compassionate appointment. 2.The case of the appellant is that the appellant is the daughter of one Mr.Ganesan who was working as Wireman in the Tamil Nadu Electricity Board under the second respondent and while he was in service, he died on 02.02.1998. The father of the appellant was working with unblemished record of service. At the time of the death of her father, the appellant was a minor and there was no other source of income for the mother of the appellant to take care of the children. Thereafter, the mother of the appellant submitted an application in the year 1999, (i.e.) within three years from the date of death of the appellant's father, seeking any suitable job on compassionate ground. But the said application was rejected as per the order dated 17.06.1999, on the ground that she does not have the required qualification. Subsequently, she has sent a representation to the second and third respondents on 12.05.2001 seeking to provide any appointment to her daughter, the appellant herein, on compassionate ground, considering the conditions of the family. But the mother of the appellant received a letter from the second respondent dated 22.05.2001, rejecting the request for compassionate appointment to the appellant on the ground that https://hcservices.ecourts.gov.in/hcservices/ 2 the appellant was only a minor, and that she has not attained the age of majority at the time of making the application. 3.The Tahsildar, Thuraiyur has also issued a certificate dated 19.12.2007 to the effect that the family of the appellant has been in indigent condition and no body was working in the family to take care of the family. The appellant in the mean time, attained the age of majority on 23.04.2008, and within a period of three years, i.e. on 17.07.2008 itself, the appellant preferred an application seeking for the appointment on compassionate ground. However, the same was rejected on 15.09.2008, by the third respondent. Being aggrieved against the said order, the appellant preferred a writ petition in W.P.(MD)No.4318 of 2010, but the writ petition was rejected by the writ Court by order 13.09.2010. As against the same, the present writ appeal has been filed by the appellant herein. 4.Mr.Shanmugaraja Sethupathi, the learned counsel for the appellant, would vehemently contend that the writ Court failed to take note of the admitted fact that the appellant, soon after attaining the age of majority on 23.04.2008, preferred an application as early as on 17.07.2008, which is well within the stipulated period of three years and as such, the application is not barred by limitation. Hence, according to the learned counsel for the appellant, the application should have been very well entertained by the Electricity Board. It is contended that the writ Court mainly placed reliance on the decisions relating to other general principles. He further submitted that a catena of decisions rendered by the Hon'ble Supreme Court as the judgments of the learned Single Judges and Division Benches of this Court, held that the period of limitation, i.e. 3 years, has to be reckoned only from the date of attaining the age of majority. It is pointed out by the learned counsel for the appellant that admittedly, the appellant was a minor at the time of the death of her father and as such, her mother applied and her application was dismissed on the ground that she is not having the required minimum educational qualification. It is pointed out that all these factors have been overlooked by the writ Court, and as such, the appellant herein has been constrained to file the present writ appeal. 5.The learned counsel for the appellant would place reliance on the following decisions:- 1)Syed Khadim Hussain vs. State of Bihar, [(2006) 9 SCC 195]. 2)Division Bench judgments of this Court in P.Rajamani vs. The Chairman, Tamil Nadu Electricity Board (2007 Writ L.R. 306), and in The Chief Engineer/Personnel, Tamil Nadu Electricity Board & Others vs. P.Venkatesan (CDJ 2009 MHC 2679). 3)M.Uma vs. Chief Engineer (Personnel), T.N.E.B. [(2010) 7 MLJ 644)] (Mad.) 6.Heard Mr.C.Selvaraj, the learned Standing Counsel appearing for the respondents herein on the submissions made by the learned counsel for the appellant. 7.It is submitted by the learned Standing Counsel appearing for the respondents that the appellant was a minor at the time of death of her father, who was working as Wireman in the Tamil Nadu Electricity Board, and the appellant has preferred the application within a period of three years from the date of attaining the age of majority. It is submitted that her application would be considered in the manner known to law. 8.We have given our careful and anxious consideration to the rival contentions put forward by either side and perused the impugned order dated 15.09.2008 as well as the order passed by the writ Court dated 13.09.2010. https://hcservices.ecourts.gov.in/hcservices/ 3 9.At the outset, it is to be stated that the appellant was a minor while her father died during his employment as Wireman. It is seen that the father of the appellant died on 02.02.1998. The appellant attained the age of majority on 23.04.2008, and she has preferred an application dated 17.07.2008 seeking for the relief of compassionate appointment, which is within the period of three years from the date of attaining the age of majority. The fact remains that she has also enclosed the necessary certificates, particularly, the Certificate issued by the Tahsildar, Thuraiyur which would disclose her claim that her family is in indigent condition and no one in the family was earning to meet the day to day expenses of the family. In spite of all these documents produced by the appellant, the third respondent rejected the application of the appellant by the impugned order dated 15.09.2008. A perusal of the impugned order dated 15.09.2008 makes it crystal clear that the third respondent has assigned wrong reasons to the effect that as if the appellant has not completed XIII Standard. But she has completed the Higher Secondary Course. It is further held in the impugned order dated 15.09.2008 that the application was not preferred within a period of three years from the date of attaining the age of majority. Both the reasons assigned by the third respondent in the impugned order dated 15.09.2008 are incorrect, as it has been already pointed out by us that the application for compassionate ground was preferred by the appellant as early as on 17.07.2008 and that she has also enclosed the “No Objection Letter” given by the other legal heirs as well as the Certificate issued by the Tahsildar. The impugned order is liable to be quashed on the above said ground itself. 10.Now, coming to the order of the writ Court, it is to be stated that the writ Court has failed to take note of the admitted fact that the appellant, after attaining the age of majority, preferred an application seeking for the relief of compassionate appointment well within the period of three years. The date on which the appellant attained the age of majority is to be reckoned for computing the period of three years as per the settled position of law laid down by the decision of the Hon'ble Supreme Court as well as a catena of decisions of this Court including the Division Benches It is relevant to refer to the following decisions as hereunder:- 1)In Syed Khadim Hussain v. State of Bihar [(2006) 9 SCC 195], the Hon'ble Supreme Court has held in paragraphs-5 and 6 of the judgment as under:- “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 https://hcservices.ecourts.gov.in/hcservices/ 4 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. No costs.” 2)The learned single Judge of this Court, in M.Uma v. Chief Engineer (Personnel), T.N.E.B. [(2010) 7 MLJ 644], placing reliance on the above said decision of the Hon'ble Supreme Court, has held as under:- “5.The Honourable Supreme Court in the decision Syed Khadim Hussain v. State of Bihar and Others (2006) 9 SCC 195 considered a similar issue as to whether a minor claimant seeking compassionate appointment can apply for a post on compassionate grounds after attaining majority. In paragraph-5 of the judgment it is held as follows: “5....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.Identical issue was considered by a Division Bench of this Court in P.Rajamani v. Chairman, Tamil Nadu Electricity Board, Chennai (2007) 8 MLJ 665: 2006 LAB.I.C. 4163. In paragraph-6 of the judgment, it is held as follows at p.668 of MLJ: “6.Having heard the submission made by the learned counsel for the respondents, we are not able to appreciate and accept the stand of the respondents. We hasten to state that the very purport of extending a helping hand to a destitute on the death of her husband by way of compassionate appointment would get defeated if such claims are turned down on such hyper-technical ground. In the case on hand, as noted earlier, after the death of the appellant's husband on 15.11.1996, an application was made on 7.4.1997 for compassionate appointment for her elder son. Therefore, there was an application for compassionate appointment within five months from the date of the death of her husband. It was unfortunate that the said application came to be rejected on the ground that her elder son was over aged. Such rejection was made only on 5.12.1998. Therefore, the appellant had to necessarily wait for some more time https://hcservices.ecourts.gov.in/hcservices/ 5 in order to renew her claim for appointment of her younger son who was running 18 years as on 11.11.1999. The said younger son completed his 18 years on 15.3.2000. Nevertheless, the appellant wanted to ensure that an application was made on 11.11.1999 itself for that son in order to confirm that an application for compassionate appointment was made well within time i.e., before 14.11.1999 by which time the three years period from the date of death of her husband would come to an end. Subsequently, on 1.4.2000, her younger son himself renewed the application preferred by the appellant on 11.11.1999 by making another application along with the no objection letters of his other brothers. Therefore, all the above steps taken by the appellant go to show that she was diligently pursuing her claim for compassionate appointment over the death of her husband right from the year 1997 till 1.4.2000. In such circumstances, when the appellant being a widow and since she had no other source of livelihood, the respondents should have been much more sympathetic and practical in considering the claim of the appellant for compassionate appointment to her younger son based on the application dated 11.11.1999 and 1.4.2000. In this context, the decision relied upon by the learned counsel for the appellant in (2004) 4 MLJ 238 and 2002 (4) LLN 1132 as well as the decision of the Division Bench in 2005 W.L.R. 256, cited supra, fully supports the claim of the appellant.” 7.In the above said judgment, the rejection order was set aside by the Division Bench of this Court and the respondents were directed to entertain the application of the appellant in the writ appeal and pass appropriate orders for granting compassionate appointment to the claimant within a period of three months. In W.A.No.3050 of 2003, the Division Bench of this Court (Honourable P.SATHASIVAM, J., and S.K.KRISHNAN, J.) considered a similar issue and granted relief to a person, who was a minor when his father died while on duty and the application was submitted after 3 years of the death of his father due to the rejection of earlier application. In paragraphs-8 to 16, the Division Bench held as follows: “8.... No doubt, as per that proceedings, an application for appointment on compassionate ground should be made within three years from the date of death of an employee. The second application being 13.1.2003 and the date of death of her husband being 15.7.1996, the second respondent by applying the said B.P., rejected her request. 9.We have already referred to the letter of the second respondent dated 14.7.1999, which finds a place at page 11 of the typed set, wherein the second respondent, who is the competent officer while considering her application dated 10.7.1999 for appointment on compassionate ground has requested her to https://hcservices.ecourts.gov.in/hcservices/ 6 apply afresh after her son attaining majority (18 years). As said earlier, immediately on attaining majority, i.e., on 11.1.2003, the petitioner has made another application on 13.1.2003. In such a circumstance, particularly in the light of the statement made by the second respondent in his letter dated 14.7.1999 and of the fact that the petitioner has made a further representation on 13.1.2003, i.e., within a period of two days on her son attaining majority, as directed by the second respondent, we are of the view that the rejection of her representation based on BP.No.46 dated 13.10.1995 on the ground that her application is beyond the period of three years from the date of death of her husband cannot be sustained. ... ... ... 14.In the case of D.Ramadoss v. Chief Engineer, T.N.E.B., (2001) WLR 601, the learned single Judge (D.MURUGESAN, J.) in an identical circumstance, relying on a very same Board Proceedings No.46 dated 13.10.1995, after noting the fact that the petitioner has made a request within the period of three years, as per the Circular, though there was enormous delay, directed the Electricity Board to consider the request of the petitioner therein for appointment on compassionate ground. 15.In W.P.No.24225 of 2001 dated 1.2.2002, the learned single Judge (K.P.SIVASUBRAMANIAM), had an occasion to consider similar claim against Tamil Nadu Electricity Board. Before the learned Judge, the father of the petitioner, who was employed in the Electricity Board died on 19.10.1996. On behalf of his legal heirs, an application dated 1.12.1997 was forwarded by the mother of the petitioner for seeking appointment on compassionate ground. The said application was also endorsed by the Superintending Engineer by his letter dated 7.1.1998 and the mother of the petitioner was directed to apply for appointment in due course after filing a formal application. Thereafter, the mother of the petitioner complied with the direction. However, the said application was returned by the respondents with an observation that the petitioner's son was a minor as on that date and to submit an application after he attains majority. The petitioner, after attainment of majority of his son, by letter dated 8.6.2001, applied for appointment on compassionate grounds. However, by order dated 17.8.2001, the request of the petitioner was rejected on two grounds, namely, that the application has not been submitted within three years after the death of his father and the petitioner did not complete 18 years within three years. Rejecting both the grounds, the learned Judge has concluded that the limitation of three years from the date of the Board's Proceedings dated 13.10.1995 was contemplated only as a result of https://hcservices.ecourts.gov.in/hcservices/ 7 the said Circular having been issued afresh in the context of regulating appointments on compassionate ground. It is further held that the mention of the period of limitation cannot have any relevance to the case of the petitioner, who has been specifically directed to apply after completion of 18 years of his son. According to the learned Judge, Clause (3) of B.P.46 dated 13.10.1995 cannot apply to the facts of the present case. The learned Judge has also observed that the Department itself permitted the mother of the petitioner to renew her application after her son attains majority, which has been complied with. In such a circumstance, the learned Judge concluded that there is no justifiable reason to reject the application for appointment on compassionate ground and directed the Department to consider the application on merits. It is stated that the Department has accepted the said direction. Inasmuch as in the case before the learned Judge as well as before us, the initial application was made within time, because of the fact that the son of the deceased was a minor, mother was asked to apply after her son attains majority and in both the cases the application was made immediately after attaining majority, in such a circumstance, as rightly said, the second application cannot be rejected on the ground of delay. We are also satisfied that similar scheme in the form of Board Proceedings and conditions are not available in the cases of the Supreme Court relied on by the learned counsel for respondents. It is also brought to our notice that almost in similar circumstance, another learned single Judge of this Court (F.M.IBRAHIM KALIFULLA, J.) in the case of T.Meer Ismail Ali v. T.N.E.B., 2004(3) CTC 120 directed the Tamil Nadu Electricity Board to consider the claim of the petitioner therein. 16.Though we are conscious of the directions of the Supreme Court which we have already referred to in the earlier part of our order, in view of the Board's Proceedings referred to above and of the fact that the petitioner has made an application within three years from the date of death of her husband i.e., within the prescribed period and also made subsequent application as directed by the second respondent and also taking note of the assertion of the petitioner that after her husband's death, in the absence of any income, she is living in poverty, her claim has to be considered. In this regard it is worthwhile to refer the case of the Supreme Court in the case of Balbir Kaur v. Steel Authority of India Ltd., (2000) 6 SCC 493, wherein their Lordships have held that in the case of appointment considering the social and economic justice as enshrined in the Constitution, denial of deserving cases are liable to be set aside. Further, the purpose of https://hcservices.ecourts.gov.in/hcservices/ 8 providing compassionate ground to a son or daughter or a near relative of the deceased government servant is to render assistance to the family, which is found in indigent circumstances. Hence in considering the case for compassionate appointments, the authorities are supposed to adopt a humane outlook. We do not find any delay or laches on the part of the petitioner, we are unable to accept the conclusion arrived at by the learned single Judge in our case and we are satisfied that the petitioner has made out a case for consideration of her claim. Accordingly, the order of the learned single Judge as well as the order impugned in the writ petition, viz., W.P.No.21512 of 2003 are set aside and the respondents are directed to consider the petitioner's application dated 13.1.2003 on merits and provide necessary relief. Consequently, the writ appeal is allowed.”” The principles laid down by the Hon'ble Apex Court as well as the learned single Judge of this Court in the judgments cited supra, and also the decisions of the Division Benches of this Court as pointed out earlier (cited supra), are squarely applicable to the facts of the instant case, as in this case also, admittedly, the appellant preferred an application seeking for the relief of compassionate appointment within the period of three years from the date of attaining the age of majority. 11.In view of the aforesaid reasons, we are constrained to set aside the impugned order dated 15.09.2008 and the consequential order dated 12.02.2010, passed by the third respondent and also the order dated 13.09.2010 passed by the writ Court. Consequently, the third respondent is hereby directed to consider the appointment of the appellant in any one of the suitable job on the basis of the qualification of the appellant, on compassionate ground. It is made clear that such exercise shall be completed within a period of three months from the date of receipt of a copy of this order. 12.The writ appeal is allowed in the above terms. No costs. Sd/- Assistant Registrar (T&P) / TRUE COPY / Sub Assistant Registrar To:1.The Chief Engineer, Tamil Nadu Electricity Board, 800,Anna Salai, Chennai-600 002. 2.The Superintending Engineer, Trichy Electricity Distribution Circle, Tiruchirappalli-20. 3.The Superintending Engineer, Perambalur Electricity Distribution Circle, Perambalur. +1CC to Mr.C.Selvaraj, Advocate. SR.No.44769. +1CC to Mr.D.Shanmugarajasethupathi, Advocate. SR.No.44284. RP/03.01.2012/8P/6C. Writ Appeal (MD)No.52 of 2011,16.12.2011 https://hcservices.ecourts.gov.in/hcservices/