IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 01.08.2011 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.No.8402 OF 2007 C.Muthusaravanan .. Petitioner Versus 1.District Educational officer, Kovilpatti, Tuticorin District 2.Director of School Education Chennai 600 006. 3.Government of Tamil Nadu rep. By its Secretary, School Education Department Fort St.George, Chennai 9. .. Respondents Writ petition is filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus to call for the records in Na.Ka.No.4263/A1/2002 dated 3.6.2002 on the file of the first respondent, quash the said order dated 3.6.2002 passed by the first respondent in Na.Ka.No. 4263/A1/2002 and consequently to direct the first respondent to appoint the petitioner in a suitable post in the Department of Education and to direct the third respondent to appoint the petitioner in any other department where suitable pot exists in accordance with G.O.Ms.No.1119 Labour and Employment Department dated 20.5.1981. For Petitioner : Mr.A.V.Bharathi for Mr.E.Martin Jeyakumar For Respondent : Mr.P.Karthikeyan, G.A. For Mr.M.C.Swmy, Spl.G.P. O R D E R The petitioner's father died on 11.9.2001, while he was working as B.T.Assistant in Government Higher Secondary School, Kovilpatti and he left behind him the following legal heirs: 1.C.Saradha Wife Age 51 2.C.Kavitha Unmarried Daughter Age 25 3.C.Anitha Unmarried Daughter Age 23 4.C.Muthu Saravanan Son Age 21 5..Arun Kumar Son Age 19 https://hcservices.ecourts.gov.in/hcservices/ The family sought for compassionate appointment to the petitioner who is the third child of the deceased Government Servant. However, the first respondent passed the impugned order dated 3.6.2002, stating that while the petitioner's mother and two of the elder sisters of the petitioner were also eligible to seek for compassionate appointment, the petitioner could not seek for compassionate appointment. Challenging the said order, the petitioner has filed Original Application/Writ Petition for quashing the order dated 3.6.2002. 2.The respondents have filed a counter affidavit refuting the allegations and sought for dismissal of the Writ Petition. 3.Heard both sides. 4.The learned counsel for the petitioner submits that it is the discretion of the family to decide as to whom they should seek for compassionate appointment and the Department could only insist for 'no objection' from the other legal heirs. In support of the said contention, the learned counsel for the petitioner has also relied upon the Division Bench Judgement of this Court in STATE OF TAMIL NADU Vs. R.NAGAMANI reported in (2008) 5 MLJ 1 and submits that the family was willing to provide 'no objection' from the other legal heirs. Therefore, the learned counsel contends that the order impugned in the Writ Petition is contrary to the Judgment cited supra. 5.On the other hand, the learned Government Advocate has sought for dismissal of the Writ Petition based on the averments made in the counter affidavit. 6.I have considered the submissions made on either side. 7.The first respondent has passed the impugned order rejected the application seeking compassionate appointment to the petitioner on the ground that the family could not seek for compassionate appointment, if the other legal heirs of the family who are elders to the petitioner also eligible for seeking compassionate appointment. 8.In my view, it is not for the respondents to decide as to which legal heir could seek for compassionate appointment and they could not prescribe seniority in the family in the matter of compassionate appointment, when all other legal heir are willing to give 'no objection' for giving compassionate appointment to the petitioner. In this regard, it would be useful to refer to paragraph No.3 of the above referred Division Bench Judgment of this Court, which reads as follows: "3.We find that in the instant case, a choice is given to make an application both to the seniormost eligible person or a qualified person. The word 'or' has to be treated as disjunctive in the facts and circumstances of this case. We are adopting this interpretation in keeping in view the fact that the scheme of compassionate appointment is one made for social benefit to the poor and indigent families. So, while considering https://hcservices.ecourts.gov.in/hcservices/ the same, whenever it is possible, a construction should be adopted which preserves the benefit and any construction which frustrates the benefit must be eschewed. In the facts of this case, we are of the view that the word 'or' must be construed disjunctively and we are of the opinion that the choice to apply for compassionate appointment is given either to the seniormost eligible person or any qualified person in the family of the deceased. It cannot be disputed that the first respondent is a qualified person in the family since the appointment which is sought is to the post of an Assistant Teacher." 9.Under such circumstances, the Writ Petition is allowed and the impugned order passed by the first respondent dated 3.6.2002, is quashed. The first respondent is directed to consider the claim of the petitioner for compassionate appointment taking into acount the aforesaid observations, if there is no other impediment and pass appropriate orders on merits and in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar rpa To 1.The District Educational officer, Kovilpatti, Tuticorin District 2.The Director of School Education Chennai 600 006. 3.The Secretary Government of Tamil Nadu School Education Department Fort St.George, Chennai 9. + 1 cc to the Government Pleader Sr.46980 + 1 cc to Mr.Martin Jayakumar, Sr.46877 W.P.No.8402 OF 2007 BKY(CO) Eu 17.8.11 https://hcservices.ecourts.gov.in/hcservices/ 1.8.2011 https://hcservices.ecourts.gov.in/hcservices/