IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.09.2011 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.14558 of 2011 M.Thanigai Arasu .... petitioner vs 1.The Director of School Education College Road Chennai – 600 006. 2.The Chief Educational Officer Vellore District. 3.The District Educational Officer Vellore District. ... Respondents Writ Petition filed Under Article 226 of the Constitution of India praying this Court to issue a Writ of Mandamus, directing the respondents to appoint the petitioner either as Junior Assistant as ascertained by the third respondent pursuant to his proceedings dated 05.04.2002 or as Physical Education Teacher taking into account the subsequent development with immediate effect on compassionate ground with compensatory costs for inordinate delay caused for appointment or arrears of salary from August 2010 the date of appointment of similar nature of appointment. For petitioner : Mr.A.Amal Raj For respondents : Ms.P.Rajalakshmi, G.A. ORDER The prayer in the writ petition is to issue a writ of mandamus, directing the respondents to appoint the petitioner either as Junior Assistant as ascertained by the third respondent pursuant to his proceedings dated 05.04.2002 or as Physical Education Teacher taking into account the subsequent development with immediate effect on compassionate ground with compensatory costs for inordinate delay caused for appointment or arrears of salary from August 2010 the date of appointment of similar nature of appointment. 2. The case of the petitioner is that his father while working as Head Master at Panchayat Union Elementary School, Krishnapuram died in harness on 3.1.1996, leaving behind him his https://hcservices.ecourts.gov.in/hcservices/ wife and seven children. The petitioner happened to be the youngest son. The petitioner has made an application for appointment on compassionate ground due to the sudden demise of his father on 28.11.1997, which is within a period of three years as contemplated under the Government order. However, he requested the appointment for the post of Junior Assistant, since he was qualified to the said post at that time. While so, the petitioner also qualified himself for the post of Physical Education Teacher and hence, he made a further representation in the year 2000 requesting him to consider him for the post of Physical Education Teacher on compassionate ground. However, sofar no order is passed. 3. The petitioner has been communicated with an interdepartmental communication between the District Educational Officer namely, the third respondent herein and the Assistant Educational Officer, Arakkonam dated 23.11.2009 in which the third respondent has chosen to state very curiously that at the time of the death of the Government servant namely, on 3.1.1996, his wife was 50 years old and she has not chosen to make any application for compassionate appointment. Instead, she has made her last son to make an application for the compassionate appointment. Even though in the said communication, so many other facts have been asked for as to whether the other children got married and they are living separately, etc., the authorities have not chosen to take any decision about the crux of the issue namely, whether the family is in economical crisis or not due to the death of the Government servant, who died on 3.1.1996. The reason adduced in the said letter as if the wife has not made application for compassionate appointment is certainly not a ground for rejecting the application. It is also seen that Zonal Deputy Thahsildar has certified that the family is economically in bad condition. Even though they are living in thatched shed, they did not possess any immovable property and those certificates have been issued as early as in 1996. The respondents have not chosen to consider those relevant factors and the impugned order is highly unsustainable in nature. 4. The law is well settled that in case of compassionate appointment, the issue to be decided is whether the family is suffering economically. That aspect having not been considered, I am of the view that the third respondent must be directed to pass appropriate orders. This court is aware of the fact that now it is possible for the third respondent to take a stand that three years have already been lapsed and hence, the application for compassionate appointment cannot be considered. However, such a stand cannot be taken in view of the fact that the petitioner has made his application for compassionate appointment within a period of three years as per the Government order and the same is kept pending and no order is passed. Therefore, it is clear that the petitioner has filed the application within a period of three years and no further order having been passed, subsequent reminder filed by the petitioner cannot be taken as a fresh application for the purpose of rejecting the application stating that the application for compassionate appointment is not filed within a period three years. https://hcservices.ecourts.gov.in/hcservices/ 5. In the judgment reported in (2006) 9 SCC 195(Syed Khadim Hussain v. State of Bihar,), the Hon'ble Supreme court in paragraph Nos. 5 and 6 has held as follows:- "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 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." 6 Following the above judgement, the writ petition stands ordered with a direction to the third respondent to consider the application of the petitioner dated 28.11.1997 in an appropriate manner and pass appropriate orders regarding the claim of the petitioner, within a period of four weeks from the date of receipt of a copy of this order. 7. With the above direction, the writ petition is disposed of, No costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. rj https://hcservices.ecourts.gov.in/hcservices/ To 1.The Director of School Education College Road Chennai – 600 006. 2.The Chief Educational Officer Vellore District. 3.The District Educational Officer Vellore District. 1 cc To Mr.A.Amalraj, Advocate Sr 61570 W.P.No.14558 of 2011 la[co] gp/14.10 https://hcservices.ecourts.gov.in/hcservices/