IN THE HIGH COURT OF JUDICATE AT MADRAS DATED: 19.09.2011 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN W.P.No.9528 of 2008 R.Sridevi ... Petitioner vs. 1. The Secretary to Government, Labour and Employment Department, Fort St. George, Chennai 600 009. 2. The Director of Public Health and Preventive Medicine, Teynampet, Chennai 600 006. 3. The Filaria Officer, National Filaria Control Unit, Chidambaram, Cuddalore District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records relating to Government Letter (Ms) No.202, Labour and Employment Department, dated 08.10.2007, issued by the 1st respondent and the proceedings of the Director of Public Health and Preventive Medicine, the 2nd respondent made in R.No.145543/E4/2006/S3 dated 09.12.2007, quash the same and direct the respondents herein to appoint the petitioner as Junior Assistant on compassionate grounds in the light of the Certificate of indigent circumstances issued by the Revenue authorities. For Petitioner : Mr.K.Rajkumar For Respondents: Ms.V.M.Velumani Special Government Pleader O R D E R Heard Mr.K.Rajkumar, learned counsel for the petitioner and Ms.V.M.Velumani, learned Special Government Pleader appearing for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 2. Challenging the proceedings of the 1st respondent issued in Government Letter (Ms) No.202, Labour and Employment Department, dated 08.10.2007 and the proceedings of the 2nd respondent made in R.No.145543/E4/2006/S3 dated 09.12.2007, seeking to quash the same and for a direction to the respondents herein to appoint her as Junior Assistant on compassionate grounds in the light of the Certificate of indigent circumstances issued by the Revenue authorities, the petitioner has filed the present writ petition. 3. Facts of the case as put forth by the petitioner in the affidavit would run thus : 3(a). The petitioner is the second daughter of the deceased Thiru.T.Ruthirapathy, who was employed as an Assistant in the office of the 3rd respondent herein. During January 1992, when her father T.Ruthirapathy was proceeding to Sabarimalai, at Erimeli, he suffered massive heart attack and died on the spot on 07.01.1992. He was brought to his native place on 09.01.1992 and last rites were performed there. The petitioner would state at the time of his death, her father left behind the following persons, as his legal heirs : (i) Smt.Padmavathy, Wife, aged about 41 years (ii) Smt.Kalaimathi, Daughter, aged about 24 years (iii) Selvi Sridevi, Daughter, aged 10 years (iv) Selvi Jayachitra, Daughter, aged 8 years 3(b). According to the petitioner, her family does not own any immovable property or any other source of income. Similarly, there is no other earning member in the family, either in private employment or working in Government Service. The petitioner's mother, Smt.Padmavathy submitted an application on 27.04.1992 to the 3rd respondent to the effect that her husband died on 07.01.1992 due to heart attack, that her family is living in indigent circumstances, that her second daughter, i.e. the petitioner is doing sixth standard and that she will renew her request after her completion of tenth standard. 3(c). After completion of her S.S.L.C., the petitioner submitted a representation on 19.02.1999 to the Director of Public Health and Preventive Medicine, the 2nd respondent herein, seeking for appointment on compassionate grounds. She has categorically stated that the present representation is in continuation of the representation submitted by her mother on 27.04.1992. The petitioner, along with the application has enclosed a copy of the Certificate issued by the Tahsildar, Chidambaram on 24.07.1998 to the effect that (i) no one in the family is employed in Government or private service; (ii) the family is not owning any immovable or movable properties; (iii) the family has received a sum of Rs.34,092/- as https://hcservices.ecourts.gov.in/hcservices/ retiral benefits; (iv) the family is living in indigent circumstances. Apart from that, the petitioner's elder sister Smt.Kalaimathi and her younger sister Selvi.Jayachitra have given individual representations on 30.11.1998 to the effect that they have no objection for giving appointment to the petitioner. The petitioner has also enclosed Educational Certificates of her pass in S.S.L.C. and Plus Two as well as Transfer Certificates, etc. On furnishing of the said Certificates by the petitioner, the 3rd respondent, by his Letter dated 05.04.1999 forwarded the same to the 2nd respondent herein, for appointing the petitioner on Compassionate grounds. 3(d). Again, on 15.06.1999, the 3rd respondent requested the 2nd respondent to process the application of the petitioner for appointment on compassionate grounds. Thereafter, there has been exchange of letters between the 2nd and 3rd respondents in connection with the appointment of the petitioner and the petitioner has complied with all the requirements of respondents 2 and 3. As no appointment was made despite making applications since 1999, the petitioner sent reminders on 23.07.2001 and 13.02.2007. On 19.12.2006, the 2nd respondent wrote a letter to the 1st respondent herein seeking clarification as to whether the application of the petitioner can be processed or not, as the application has been submitted after seven years of the death of her father. 3(e). In the meantime, as there was a ban by the Government on appointment on compassionate grounds, certificates furnished by the petitioner were returned to the 3rd respondent during the year 2003. Finally, after lifting of the ban and after the representation of the petitioner dated 22.03.2006, again the proposal was submitted by the 3rd respondent to the 2nd respondent on 23.10.2006, seeking for early appointment on compassionate grounds of the petitioner. Once again, there was no reply and the petitioner submitted a representation on 31.05.2007 followed by a representation dated 19.07.2007. In the meantime, the petitioner passed Lower and Higher Grade in Typewriting and as such, she represented that she may be at least accommodated in the Typist post. The said representation of the petitioner was also forwarded by the 3rd respondent to the 2nd respondent on 25.07.2007 and the 2nd respondent sent a reply to the petitioner on 05.10.2007 to the effect that her request for appointment to the Typist post has been forwarded and orders are expected. 3(f). While so, the 2nd respondent herein, by letter dated 09.12.2007 returned the entire Certificates relating to appointment on compassionate grounds as well as the application to the petitioner stating that the Government of Tamil Nadu recently issued an instruction in Government Letter No.202, Labour and Employment Department, dated 08.10.2007, wherein, the existing time limit for making applications for appointment on compassionate grounds during https://hcservices.ecourts.gov.in/hcservices/ the year 1995 in G.O.Ms.No.120, Labour and Employment Department, dated 26.01.1995 is not only applicable for the past case but also for the present and future cases. Since the petitioner has submitted the application after a lapse of three years, her claim cannot be entertained and her appointment on compassionate grounds has been rejected. 3(g). The petitioner states that G.O.Ms.No.120, Labour and Employment Department dated 26.01.1995 is very categorical that the appointment on compassionate grounds has to be submitted within a period of three years. However, a clarificatory letter has been issued by the Labour and Employment Department, dated 11.10.1995 to the effect that the said period of three years fixed in G.O.Ms.No.120, is applicable for those only who had died on and after 26.06.1995 and not for the persons who passed away prior to 26.06.1995. In the present case, the petitioner's father died on 07.01.1992, which is prior to 26.06.1996 and therefore, the three year period stated in G.O.Ms.No.120 is not applicable to the case of the petitioner as per the above letter. However, in view of the recent letter issued on 08.10.2007, in Letter No.202, Labour and Employment Department, the period of three years has been applied to not only post 26.06.1995 deaths but also pre 26.06.1995 deaths. Thus, the claim of the petitioner for compassionate grounds has been sealed in view of the impugned letter of the Government dated 08.10.2007. Being aggrieved by the same, having no other alternative, the petitioner has invoked Article 226 of the Constitution of India by way of the present writ petition. 4. Respondents have filed counter and have stated as follows : 4(a). Thiru. T.Ruthirapathy, Assistant, Office of the National Filaria Control Unit, Chidambaram, expired on 07.01.1992 while in service. His daughter Selvi R.Sridevi in her representation dated 19.02.1999 has requested that she may be provided with employment assistance as Junior Assistant on compassionate grounds in the 3rd respondent Department after 7 years from the date of death of the Government Servant. As per the existing instructions of the Government issued in G.O.Ms.No.61, Labour and Employment (Q1) Department, dated 19.07.2006, the application for appointment on compassionate ground should be filed within three years from the date of death of the Government Servant. Further, it has also been ordered by the Government in their Letter (Ms) No.202, Labour and Employment Department, dated 08.10.2007, that the existing time limit of three years for filing application from the date of death of the Government Servant should be followed for compassionate ground appointment for all present and future cases. 4(b). The date of death of T.Ruthirapathy, Assistant is 07.01.1992 and the application seeking appointment under compassionate ground scheme has been received from the applicant https://hcservices.ecourts.gov.in/hcservices/ Selvi R.Sridevi on 19.02.1999 after 7 years from the date of death of the Government Servant. The family of the deceased Government Servant consists of four legal heirs viz., wife and three daughters. In this case, Tmt. R.Padmavathy, wife of the deceased Government Servant submitted an application on 27.04.1992 to the 3rd respondent stating that as she had crossed the age of 40 years and as her children are minor, she requested that priority may kindly be given to her second daughter for getting employment assistance on compassionate ground in future, after completion of her tenth standard. But, there is no provision under these rules for making such nominations as made by Tmt.R.Padmavathy, wife of the deceased Government Servant in her representation dated 27.04.1992, as the appointment on compassionate grounds are being given to the dependent of the deceased Government Servant who died in harness to tide over the sudden indigent circumstances unexpectedly created by the sudden demise of the head of the family. Hence, as per the instructions issued in G.O.Ms.No.61, Labour and Employment (Q1) Department, dated 19.07.2006 and in Government Letter (Ms) No.202, Labour and Employment Department dated 08.10.2007, the request of the applicant Selvi. R.Sridevi, D/o. Late Thiru. T.Ruthirapathy has been examined and negatived in the Office Letter R.No.145543/E4/2006/S3 dated 09.12.2007 on the ground that the application has not been received within three years from the date of death of the Government Servant. 4(c). According to the respondents, the contention of the petitioner that her mother has already made an application on 27.04.1992 to provide employment assistance on compassionate ground to the petitioner in future and based on the said application, her application for employment assistance on compassionate ground submitted by her on 19.02.1999 has to be considered is not acceptable, as the very purpose of giving compassionate ground appointment is only to help the family of the deceased Government Servant to tide over the sudden indigent circumstances unexpectedly created by the sudden demise of the Government Servant who died in harness and the spirit of the scheme on compassionate ground appointment is to relieve the distress of a family as an emergency measure. Moreover, there is no provision under these Rules for making such nominations as made by Tmt.R.Padmavathy, wife of the deceased Government Servant in her representation dated 27.04.1992. The proposal relating to compassionate ground appointment of the petitioner submitted to the 3rd respondent has been forwarded to the 2nd respondent, which in turn was addressed to the Government during the year 2000 to issue suitable clarifications on the request of the petitioner received for employment assistance on compassionate ground after seven years from the date of death of the Government Servant. 4(d). When the request of the petitioner was under examination of the Government, the Government imposed a ban for appointment under compassionate ground scheme during the year 2002. Finally, after lifting of the said ban on compassionate ground scheme https://hcservices.ecourts.gov.in/hcservices/ by the Government in the year 2006, the 3rd respondent again forwarded the compassionate ground appointment proposal relating to the petitioner to the 2nd respondent during the year 2006. Based on the said proposal submitted by the 3rd respondent, the 2nd respondent again addressed the Government during the year 2006 to issue suitable clarifications on the request of the petitioner received for employment assistance on compassionate ground after seven years from the date of death of the Government Servant. 4(e) As per the orders issued in G.O.Ms.No.120, Labour and Employment Department dated 26.06.1995, the application for appointment on compassionate ground should be made within three years from the date of death of the Government Servant. Subsequently, the Government in their Letter No.39924/Q1/95-1, Labour and Employment Department dated 11.10.1995 has clarified that the time limit of three years period specified in G.O.Ms.No.120, Labour and Employment Department dated 26.06.1995 is applicable only to the dependants of the deceased Government servants those who died while in service on or after 26.06.1995 and the above orders are not applicable to the past cases. 4(f). The respondents would further state that the 2nd respondent has examined the request of the petitioner as per the instructions of the Government and as the petitioner has submitted an application seeking appointment on compassionate grounds only on 19.02.1999 after seven years from the date of death of Government Servant, her request has been negatived by the 2nd respondent in the impugned order dated 09.12.2007 on the ground that the application for appointment on compassionate grounds has not been received within three years from the date of death of Government Servant. 5. The foremost contention of the learned counsel for the petitioner is that the petitioner is entitled for appointment on compassionate ground following the death of her father and, to which effect, the petitioner has also submitted an application to the respondents, but the same was rejected by the respondents vide the impugned orders without assigning any good reason and hence, the same are liable to be set aside. He would submit that the application for compassionate appointment was made by the petitioner's mother within the prescribed time and pending the same, the petitioner, on attaining majority, submitted her application for compassionate appointment on 19.02.1999 and therefore, there was no delay in making such application. In support of his case, learned counsel for the petitioner has relied on the following : (i) a judgment of the Supreme Court made in Civil Appeal No.2039 of 2006, dated 30.03.2010 in the case of Chief Engineer, Tamil Nadu Electricity Board & another vs. Indiraniammal https://hcservices.ecourts.gov.in/hcservices/ "The Division Bench of the High Court has reversed the judgment of the learned Single Judge only on the ground of delay who directed compassionate appointment to the appellant. The appellant was a minor at the time of the death of his father and since the mother of the appellant applied within time, we are of the opinion that the appellant after becoming major should have been granted compassionate appointment. Accordingly, we allow these appeals, set aside the impugned judgment of the Division Bench and restore the judgment of the learned Single Judge. No costs. " (ii) a decision of this court reported in (2011) 4 MLJ 438 in the case of A.Musthfa Iqbal Basha vs. State of Tamil Nadu, Educational Department, Chennai and others "9. It is true, as contended by the learned Government Advocate, that the objective of providing compassionate appointment is to tide over the sudden indigent circumstances unexpectedly created by the sudden death of the Government Servant. As the petitioner was a minor at the time of the death of his father and at the same time his mother was also not eligible for appointment, he could not submit any application for compassionate appointment. Instead, he, immediately after attaining majority, submitted an application to the respondents. Just because there is a delay in submitting the application for the said reason by the petitioner for compassionate appointment, it cannot be said that the family of the deceased Government servant has got over the indigent circumstances. It is seen from the records that the two sisters of the petitioner are married and the brother is living separately. Now, the persons left out in the family are the petitioner and his mother, who are without any job and in every need of employment. In the given situation, it is very difficult for them to get two square meals a day. Therefore, I am of the considered opinion that the family of the deceased government servant cannot be left in lurch. 10. In the case of G.Vijayaraghavan vs. General Manager (P) Indian Bank (2000 (3) LLN 625), this court has directed the Indian Bank to consider the claim of the petitioner therein, who made an application on attaining majority for employment on compassionate ground. The principle laid down in the said decision is that irrespective of settlement of full term service, gratuity and other benefits, the eligible person can claim appointment on compassionate grounds. Further, in the https://hcservices.ecourts.gov.in/hcservices/ case of Balbir Kaur vs. Steel Authority of India Ltd. (2000 (6) SCC 493), the legal proposition is 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. It is further observed therein that the purpose of 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. The Supreme Court, in the case of Syed Khadim Hussain vs. State of Bihar and others ((2006) 9 SCC 195), holding that in the rules framed by the State, there is no specific provision as to what should be done in case the dependants are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application, allowed the case of the petitioner for compassionate appointment. 11. In a similar circumstance, in the case of M.Uma vs. Chief Engineer (Personnel), TNEB, Chennai, (2010) 7 MLJ 644, wherein the petitioner's application was rejected on the ground that she has not submitted the same within three years, this court, taking into account the indigent circumstances of the family directed the respondents therein to consider the claim of the petitioner seeking compassionate appointment without reference to the objection raised in the impugned order. Also are cases in Mohanambal vs. The Director, Land & Survey Department and R.Prasath vs. The Secretary, Labour and Employment Department and others, wherein, this court has held that the application for appointment on compassionate grounds is not to be rejected on the ground that it was filled after a lapse of time and the application is to be considered on its own merits." (iii) yet another decision of this court reported in (2011) 2 MLJ 47 in the case of Mohanambal vs. Director, Land and Survey Department, Kancheepuram District and others "11. ... The Division Bench of the High Court has reversed the judgment of the learned single Judge only on the ground of delay who directed compassionate appointment to the appellant. The appellant was a minor at the time of the death of his father and since the mother of the appellant applied within time, we are of the opinion that the appellant, after becoming major should have been granted compassionate appointment. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, we allow these appeals, set aside the impugned judgment of the Division Bench and restore the judgment of the learned Single Judge. No costs." (iv) a decision of the Rajasthan High Court (Jaipur Bench) reported in 2006 (2) SLR 213 in the case of Parmeshwar Kumar Verma vs. State of Rajasthan and others "5. Section 6 of the Limitation Act, 1963 mandates that a minor may make an application within the same period, on attaining the age of majority, as would otherwise have been allowed from the time specified therefor. Thus, in view of Section 6, the petitioner was entitled to move application for compassionate appointment on attaining the age of majority. 6. My view finds support from Maya L.Dhinggrami vs. The UCO Bank, 2002 (5) Wlr (Raj.) 763: 2002 (8) SLR (Raj.), wherein, it was held that even though the provisions of providing the appointment on compassionate grounds is basically for giving immediate relief to the party concerned, but in a given case when the entitlement is conferred on minor, such minor is entitled to apply within the limitation prescribed on attaining the age of majority. Such application cannot be rejected only on the ground of delay and laches." 6. On the other hand, learned Special Government Pleader appearing for the respondents would contend that the very purpose of giving compassionate appointment is to tide over the immediate financial crisis of the deceased Government Servant. In the case on hand, the petitioner, after attaining majority, submitted an application for employment on compassionate ground on 19.02.1999, seven years after the death of her father. Though her mother had submitted an application for employment of the petitioner on compassionate ground on 27.04.1992 itself, there cannot be reservation of a vacancy till such time, as the very basis of compassionate appointment is to see that the family gets immediate relief. In support of her contentions, she has relied on the following Supreme Court decisions: (i) AIR 2000 SC 2782 (Sanjay Kumar vs. State of Bihar and others) "3. We are unable to agree with the submissions of the learned Senior Counsel for the petitioner. This court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family https://hcservices.ecourts.gov.in/hcservices/ in penury and without any means of livelihood. In fact, such a view has been expressed in the very decision cited by the petitioner in Director of Education vs. Pushpendra Kumar supra. It is also significant to notice that on the date when the first application was made by the petitioner on 02.06.1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there is some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief." (ii) (2009) 6 SCC 481 (Santosh Kumar Dubey vs. State of Uttar Pradesh and others) "12. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service." 7. I have given careful consideration to the submissions made by the learned counsel on either side and perused the materials available on record. 8. Admittedly, the petitioner's father was employed with the 3rd respondent Department and died in harness on 07.01.1992. At that time, the petitioner was aged about 10 years, studying 6th standard. Thereafter, the petitioner's mother submitted an application to the 3rd respondent on 27.04.1992 seeking appointment for her second daughter, i.e. the petitioner on compassionate ground. In the meantime, the petitioner completed SSLC and on attaining the age of majority, submitted an application to the 2nd respondent on 19.02.1999 seeking appointment on compassionate ground. From the impugned orders, it is seen that the claim of the petitioner was rejected on the ground that she submitted the application seeking employment on compassionate ground after a lapse of three years. 9. It is true, as contended by the learned Special Government