IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.04.2010 CORAM THE HON'BLE MR.JUSTICE B. RAJENDRAN Writ petition No.42677 of 2006 (T) (O.A.No.7870 of 1999) A. Jim Prakash .. Petitioner/Applicant /vs/ 1. The Director of School Education, College Road, Chennai – 600 006. 2. The District Educational Officer, Pudukottai, Pudukottai District .. Respondents/Respondents Prayer: Original application No. 7870 of 1999 was filed before the Tamil Nadu Administrative Tribunal, Madras Bench to call for the records relating to the impugned order of the first respondent in Se.Mu.O.Mu.40101/J-3/98 dated 18.06.1999 and quash the same and direct the first respondent to appoint the applicant on compassionate grounds in any suitable post commensurate with the qualifications possessed by the Applicant. For Petitioner .. Mr. P. Rajendran For Respondents .. Mrs. Lita Srinivasan Government Advocate ORDER The applicant's father Arul Prakasam was working as Head Master at the Panchayat Union Elementary School, Thengaithinnipatti, Viralimalai Block, Pudukottai District and he died while in service on 21.01.1997. He left behind his family in indigent circumstances. He left the following persons as his legal heirs: 1. Smt. Celin Prakash : Wife 2. Joes Prakash : Son 3. Sophia Izabel Rani : Daughter 4. Obilia Ester Rani : Daughter 5. Jim Prakash : Son 2. In view of the fact that the father died during service, the applicant submitted an application for appointment on compassionate https://hcservices.ecourts.gov.in/hcservices/ grounds. The other legal heirs gave No Objection for appointing the applicant on compassionate grounds. It is also clearly stated that no one in the family of the deceased are employed in Government Service. The Tahsildar, Manapparai, has also given a certificate that there was no one in the family of the deceased in Government service or in Private Employment and apart from the dwelling house, the market value of which was Rs. 50,000/-, there was no other movable or immovable property. The Director of School Education, Chennai – 6, has issued an order dated 18.6.1999, which is impugned herein rejecting the applicant's representation. The petitioner challenges the said rejection order seeking for employment on compassionate ground stating that merely because the persons elder to him did not opt to take up the post that by itself cannot be a ground for rejecting the application made by the petitioner. Further more, the other legal heirs have already given no objection certificate for the petitioner's appointment. Hence, there cannot be any impediment in the appointment of the petitioner on compassionate ground as there is no law which prohibits appointment of a person on compassionate ground. 3. The learned Government pleader though did not file a counter, had produced the original file itself, stating that the matter was considered in detail and the petitioners have not proved that there was any dire stage of requirement at the time of seeking for employment. Even though certificate has been issued by the Tahsildar it was only for the stand that nobody was employed. The entire file was brought for scrutiny. From the file only the reason given was that other legal heirs who were elders to him have not opted to take up the post. But in the impugned order they have stated that the family is not in a indigent circumstances. In this case, from the records it is also clearly that the applicant has also produced the Thasildar certificate to state that the family was in a dire stage at that point of time. 4. Heard Both sides 5. Even though there were 5 legal representative of the deceased Government servant who died during service, the last son Jim Prakash 19 years old only sought to get the compassionate appointment. The others have given no objection certificate on the ground that all of them are technically and academically qualified and therefore, the last applicant opted for the present post for which the others have clearly given no objection. By the impugned order, the petitioner's application for compassionate appointment was dismissed only on the ground that even though other persons were eligible for Government appointment, since they have not shown any interest, the order would state that the family has not proved the need or necessary for getting the appointment and further more the senior members are available. It will not be open to give appointment to the last member. In this case, it is clearly proved that the date of death of https://hcservices.ecourts.gov.in/hcservices/ the government employee is 21.01.97 and the application itself was made on 21.01.97 along with necessary no objection from the other parties and therefore, it is made within a period of 3 years when they were in dire need of money. It was rejected by the Government on 18.6.99 after a period of two years. The Government would state two grounds for rejecting the same, But immediately, thereafter the application has come forward with his application and the application has been pending for a longtime. In this case, the learned counsel would bring to the notice of the Court, the Divison Bench judgment of this Court reported in (2008) 5 MLJ page 1 ( State of Tamil Nadu, rep. by Secretary to Government, Education Department, Chennai and others Vs. R. Nagamani and Another) wherein in identical circumstance the Division Bench held that the scheme of compassionate appointment is made for social benefit to the poor and indigent families. So, while considering the same, whenever it is possible, a construction should be adopted which preserves the benefits and any construction which frustrates the benefit must be eschewed. In that case also a direction is given to provide employment to the 6th son of the deceased family, who is the qualified person, paras 3 & 4 of the judgment reads as follows: " 3. We find that in the instant case, a choice is given to make an application both to the senior most 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 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 senior most 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. 4. Considering all these facts, we do not find there is any reason for us to interfere with the order passed by the learned single judge. We, therefore, reiterate the direction given by the learned Judge and direct that the appellants must offer appointment to the first respondent to a suitable post as per the rules, regulations and administrative instructions of the department and since this appointment has already https://hcservices.ecourts.gov.in/hcservices/ been delayed, we direct that such appointment be offered within a period of four weeks from date. 6. In fact, the learned counsel for the petitioner brought to the notice of the Court that the order which is appealed against namely the one passed by a learned Single Judge was reported in (2007) 3 MLJ page 9 (R. Nagamani and Another Vs. Government of Tamil Nadu, by Secretary, School Education Department, Chennai and Others) that the petitioner in that case died on 3.1.94 and ultimately the Single Judge ordered to give a suitable post to the first petitioner as the rules and regulations or administrative instructions of the department and since this appointment has already been delayed, we direct that such appointment be offered within a period of 12 weeks which order was confirmed by the Division Bench and the Division Bench directed to implement the said order. In this case also clearly because the other children did not opt to take up compassionate appointment that cannot be the reason for denying the post to the petitioner. Hence, following the decision rendered by the Division Bench the writ petition is allowed directing the authorities to pass necessary and suitable orders within 12 weeks from the date of receipt of a copy of this order. In this connection, the learned counsel also fairly submitted that the petitioner was not employed till 2008 and thereafter, he has been employed in St. Joseph Aided School, Erkkadu as B.T. Assistant for a consolidate salary of Rs. 3,000/- only and that the family is still not out of poverty. The writ petition is allowed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar sms To 1. The Director of School Education, College Road, Chennai – 600 006. 2. The District Educational Officer, Pudukottai, Pudukottai District 1 cc to Government Pleader, Sr.No.24437 1 cc to Mr.P.Rajendran, Advocate, Sr.No.23952 W.P. No.42677 of 2006 RJ {CO} TP/18.5.2010. https://hcservices.ecourts.gov.in/hcservices/