IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.04.2010 CORAM THE HONOURABLE MR. JUSTICE P.JYOTHIMANI Writ Petition No.25438 of 2009 and M.P.No.2 of 2009 A.Seranthiya Pillai ... Petitioner Vs. 1.The State of Tamil Nadu, rep. by its Secretary, Department of Home, Fort St. George, Chennai-9. 2.The Director General of Police, Kamaraj Salai, Mylapore, Chennai-4. 3.The Superintendent of Police, Tiruchirappalli District, Tiruchirappalli. ... Respondents Writ petition is filed under Article 226 of The Constitution of India to issue a Writ of certiorarified mandamus Calling for the records of the 3rd respondent in connection with the impugned order dated in Na.Ka.No.B3/22000/2009 dt.13.8.2009 passed by the 3rd respondent and quash the same and consequently direct the 2nd respondent to consider the claim of the petitioner for compassionate appointment in the light G.O.(Ms) No.10 Labour and Employment (Q1) Department dt.13.2.2009 and appoint the petitioner on compassionate grounds in Government service. For petitioner : Mr.M.Ramamoorthi For respondents : Mr.R.Murali, G.A. O R D E R Even though the interim application alone is listed before me, by consent, the main writ petition itself is taken up for final disposal. https://hcservices.ecourts.gov.in/hcservices/ 2. Challenging the order of the third respondent dated 13.08.2009 and to direct the second respondent to consider the claim of the petitioner for compassionate appointment in the light G.O.(Ms) No.10 Labour and Employment (Q1) Department dt.13.2.2009 and appoint him on compassionate grounds in Government service, the present writ petition has been filed. 3. The writ petitioner's father was working as a Police Constable for 30 years. While he was working in the Armed Reserve Police Force, Tiruchirappalli, he passed away on 26.03.2000 leaving behind his wife, four sons and two daughters. Out of them, the petitioner is the eldest son. It is seen that the application made by one of his brothers viz., A.Dharmaraj and the subsequent application made by the wife of the deceased came to be rejected on the ground that the deceased has crossed 50 years of age on the date of medical invalidation and therefore, the claim for compassionate appointment is not applicable. The petitioner has made representation for appointment on compassionate ground on the basis of the Government Order in G.O.(D) No.1025 Labour and Employment Department dated 22.11.1976 and also the subsequent Government Order in G.O.Ms.No.554 Labour and Employment Department dated 09.04.1990 and G.O.(D) No.168, Labour and Employment Department dated 19.10.2000 by which the upper age limit of medical invalidation was extended upto 53 years. Based on the representation of the petitioner, the Head of the Department viz., the second respondent, in his proceedings dated 20.07.2009 addressed to the Principal Secretary to Government has directed the application to be forwarded to the third respondent the Superintendent of Police, Trichy District for necessary action directing the third respondent to send a full fledged proposal along with the required certificates and documents, if the petitioner is entitled for appointment on compassionate grounds. However, on receipt of the said communication from the second respondent, the third respondent has passed the impugned order rejecting the claim of the petitioner on the ground that the Government Order which has been relied upon by the petitioner in G.O.(D) No.168, Labour and Employment Department dated 19.10.2000 will be applicable prospectively and the petitioner's father has passed away even before the said Government Order came into effect and he died after crossing 53 years thereby stating that the Government Order is not applicable to the facts of the petitioner's case. It is as against the said order, the present writ petition is filed. 4. In the counter affidavit filed by the respondents, it is stated that the petitioner's father was retired on medically invalidation on 13.11.1991 due to permanent incapacitation for further service as per the recommendation of medical board. His age on the date of retirement of invalidation was 53 years 4 months https://hcservices.ecourts.gov.in/hcservices/ and 3 days. It is stated that the brother of the petitioner has made a request to the Chief Minister Cell on 24.07.2006 for compassionate appointment and that was referred to the Director General of Police, who has informed that the petitioner's brother was not eligible on the ground that his father died after crossing 50 years on medical invalidation. It is therefore, the petitioner has submitted a representation to the Government on 16.06.2009 for appointment on compassionate grounds and that was endorsed to the effect that the petitioner is not eligible by applying G.O.(D) No.168, Labour and Employment Department dated 19.10.2000. It is the case of the respondents that as per the original Government Order in G.O.Ms.No.1025 Labour and Employment Department dated 22.11.1976 and also the consequential Government Letter dated 27.08.1983, the medical invalidation should have been obtained before completion of 50 years so as to enable the legal heirs to get compassionate appointment. Therefore, it is the case of the respondents in the counter affidavit that even by applying G.O.Ms.No.168, Labour and Employment Department dated 19.10.2000, the petitioner is not entitled for the benefits conferred on the same. 5. The scheme of conferring appointment under compassionate ground was introduced with various instructions and guidelines by the Government in G.O.Ms.No.314 Labour and Employment Department dated 13.11.1991. As per the said Government Order, fresh instructions have been given to consider the applications regarding compassionate appointment with various guidelines. As per the said guidelines, the dependant of the deceased Government servant should make application for appointment on compassionate ground in the office where the original employee was working and the head of the office, after verifying the facts and obtaining various particulars and also about the liability of the person who has applied should, within a month, make a report to the head of the department indicating as to whether there is any vacancy in existence for providing employment on compassionate ground and it is thereafter, the head of the department should issue orders of appointment. The relevant portion of the guidelines enumerated in the said Government Orders reads as follows:- "3. Accordingly, the following fresh consolidated instructions are issued to all Heads of departments and Collectors: (1) Normally the dependant of a deceased Government servant should apply for appointment on compassionate grounds only to that office, where the Government servant was in service at the time of his death. https://hcservices.ecourts.gov.in/hcservices/ (2) The head of the office should then verify the facts in the petition like the date of death, the indigent circumstances of the family, the eligibility of the applicant for employment on compassionate grounds with reference to his educational qualifications, etc. (3) After verification, the head of the office should, within a month from the date of receipt of application from the dependant, submit the application along with his report to the head of the department indicating also whether any vacancy exists in his office for providing employment to the applicant. (4) After considering the request, if any vacancy exists either in the office in which the deceased Government Servant was working at the time of his death or in his office, the head of the department should issue orders of appointment immediately and in any case within 15 days from the date of receipt of the report from the head of the office, provided the applicant satisfied all conditions relating to age, educational qualifications, etc. If any relaxation is necessary, he should send necessary proposals within 15 days to the Government in administrative department for orders." 6. It is the case of the petitioner that even before the medical invalidation of his father, which was in the year 1991, he was a Chronic Schizophrenia patient for nearly 8 to 9 years. However, his father came to be suspended even prior to the said date and at the time when his suspension was revoked, as per the medical grounds, the petitioner's father was invalidated medically and therefore, the medical incapacity of his father on medical grounds was actually much earlier and it was because of the negligence of the department in keeping him under suspension for many years during the time when he was suffering from the said mental illness and therefore, the conduct of the respondent department should be taken as mala fide by placing reliance of the judgment of the Hon'ble Supreme Court in the case of V.Sivamurthy and others vs. State of Andhra Pradesh and others reported in (2008 (4) CTC 446). In the said judgment, the Hon'ble Supreme Court while considering the various principles regarding the compassionate appointment, has of course held that even by certain delay in processing the application, the Government servant may lose the benefit of the scheme and that cannot be a ground to relax the terms of the scheme. However, the Hon'ble Supreme Court has held that if in a particular case the delay is due to the https://hcservices.ecourts.gov.in/hcservices/ deliberate conduct of the department, the delay can be favourably considered on the ground of want of bona fide and ulterior motive on the part of the Government. The operative portion of the judgment of the Hon'ble Supreme Court in this regard reads as follows:- " ... The fact that on account of certain delays in processing the application, a Government servant may lose the benefit of the scheme, is no ground to relax the terms of the scheme. If in a particular case the processing of an application is deliberately delayed to deny the benefit to the Government servant, the inaction may be challenged on the ground of want of bona fides or ulterior motives. Bus, where the time taken to process the application (through medical Board, local / State level Committee and the Government) is reasonable, the Government servant cannot contend that relief should be extended, even if the left over period is less that five years..." It is no doubt true that in the impugned order, the third respondent has construed the provisions of G.O.Ms.No.168 Labour and Employment Department dated 19.10.2000 to the effect that the same is prospective in application and by the time when the Government Order has been given operation, the petitioner's father has already crossed the age of 53 years by which he was invalidated medically and therefore, the petitioner was not entitled for consideration under the scheme for compassionate appointment. But the relevant fact is that the head of the department viz., the second respondent / the Director General of Police, in his communication in R.C.No.117018/CA.2/09, dated 20.07.2009 by referring the application of the petitioner, has specifically directed the third respondent, the appointing authority to send necessary proposal to the second respondent so as to enable the second respondent to pass appropriate orders. The operative portion of the said letter reads as follows:- " With reference to the Government Letter cited, I wish to state that the petition has been sent to Superintendent of Police, Trichy District for necessary action and send a full fledged proposal along with all required certificates and documents, if the applicant Thiru A.Saranthya Pillai, S/o. (late) PC1162 Anavarathan of Trichy district is eligible for appointment on compassionate grounds. 2. On receipt, if he is found to be eligible, his name will be included in the waiting list for appointment https://hcservices.ecourts.gov.in/hcservices/ on compassionate grounds." The said letter of the second respondent, who is the head of the department is inconsonance with the instructions and guidelines framed by the Government in G.O.Ms.No.314 Labour and Employment Department dated 13.11.1991 enumerated above. While so, it was incumbent on the part of the third respondent to cull out the particulars required for the purpose of considering the application of the petitioner on compassionate appointment and sent the proposal to the second respondent. Instead, the third respondent has passed the impugned order by himself rejecting the claim, which in my considered view, is opposed to the very basis of the scheme which contemplates such right of appointment on the head of the department. Simply because the third respondent is the appointing authority it does not mean that he can give a bypass to the provisions of the scheme itself which is introduced for the purpose of giving benefit to the legal representatives of the deceased employees. In such circumstances, I have no hesitation to hold that the impugned order is liable to be set aside on the ground that as per the scheme, the third respondent is not the competent authority to pass such order and the same is set aside and the writ petition stands allowed. The matter is remanded to the second respondent to process the application afresh by obtaining necessary particulars from the third respondent and thereafter decide the issue independently on merits and in accordance with law, within a period of two weeks from the date of receipt of a copy of this order. It is needless to say that it is for the second respondent to decide about the applicability of the G.O. and the eligibility of the petitioner for appointment on compassionate grounds. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sbi https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary, Department of Home, Fort St. George, Chennai-9. 2.The Director General of Police, Kamaraj Salai, Mylapore, Chennai-4. 3.The Superintendent of Police, Tiruchirappalli District, Tiruchirappalli. +1cc to M/s. M.Ramamoorthi, Advocate Sr 26962 AKR(CO) km/21.5. W.P.No.25438 of 2009 https://hcservices.ecourts.gov.in/hcservices/