IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.06.2008 CORAM THE HONOURABLE MR.JUSTICE S. MANIKUMAR W.P.No.39076 and 39077 of 2006 V. Ramesh ... Petitioner [in both W.Ps.] vs. 1. The Director of Town Panchayats, Kuralagam, Chennai 600109. 2. The District Collector, Vellore District, Vellore. 3. The Assistant Director of Town Panchayats, Vellore Zone, Vellore 632009 4. The Executive Officer, Katpadi Town Panchayat, Vellore. ... Respondents [in W.P.No.39076] 1. The State of Tamilnadu rep. by the Secretary to Govt., Municipal Administration and Water Supplies Department, Secretariat, Chennai-9. 2. The Director of Town Panchayats, Kuralagam, Chennai 108. 3. The District Collector, Vellore District, Vellore. ... Respondents [in W.P.39077 of 2006] Writ petition No.39076 of 2006 is filed under Article 226 of the Constitution of India for certiorari, on transfer of O.A.No.522 of 1999 on the file of the Tamilnadu Administrative Tribunal at Chennai, to call for the records on the file of the second respondent in connection with the order passed by him in his proceedings No.Na Ka No.4612/98-P dated 23.9.98 and quash the same. Writ petition No.39077 is filed under Article 226 of the Constitution of India for Mandamus directing the respondents to regularise the service of the petitioner in the post of Junior Assistant with effect from the date of initial appointment with all monetary and service benefits. For Petitioner : Mr. R. Singaravelan [in both W.Ps.] For Respondents : Mrs. Shanmugavalli Sekar, [in both W.Ps.] Government Advocate C O M M O N O R D E R In W.P.No.39076 of 2006, the petitioner has challenged the order dated 23.9.98 of the District Collector, Vellore District, removing him from service and in W.P.No.39077 of 2006, he seeks for a want Mandamus to direct the respondents to regularise his service from the date of his initial appointment with all monetary and service benefits. 2. The facts of the case leading to the writ petitions are as follows: i. The petitioner is a Diploma holder in Mechanical Engineering. He passed the said Diploma Course in November 1988. The petitioner's father was an Executive Officer, Shenbakkam Town Panchayat, Vellore District. On 2.5.1989, petitioner's father met with an accident and he died on the spot. He left behind his wife, two sons including the petitioner and a married sister. Even before his death, his eldest son viz., V. Ganesh was employed in the office of the Director of Town Panchayat in the year 1988, he got married and has been living with his family separately at Chennai. Since the petitioner's brother had been maintaining a separate family, he was unable to provide financial assistance to the petitioner and other family members. Therefore, the petitioner applied for compassionate appointment and after perusing all the records and conducting a detailed enquiry, he was appointed as Junior Assistant. He joined duty on 1.3.1995 at Sathuvachari Town Panchayat and had been discharing his duties without any blemish. ii. Though the appointment of the petitioner was questioned, on the grounds of employment of his elder brother, it was clarified that his elder brother secured employment independently on his own merits and that he had been leading a separate life with his family. On the basis of the said clarification the petitioner was allowed to continue and his case was also recommended for regularisation by the respondents 1 and 2 in W.P.No.39096 of 2006. Since the proposal sent by them for regularisation was pending for a considerable time, the petitioner apprehending loss of seniority and promotion, made a representation on 15.9.1998 to the 1st respondent [in W.P.No.39077 of 2006] to regularise his appointment in the post of Junior Assistant. As no orders were passed on his representation, he was constrained to file Original Application No.7683 of 1998, which has been subsequently renumbered as W.P.No.39077 of 2006. Apprehending termination from service, petitioner has sought for an injunction. Though the Tribunal by Order dated 21.9.1988 granted interim direction directing the respondents not to terminate the services of the petitioner, the District Collector, Vellore in order to make the order ineffective, deliberately passed an order ante dated i.e., 23.9.98 and ousted him from service, which is challenged in O.A.No.522 of 1999 before the Tamil Nadu Administrative Tribunal and the same is renumbered as W.P.No.17096 of 2006. iii. While entertaining the O.A.No.7683 of 1998, the Tribunal by Order dated 21.9.1998 has granted stay of removal of service, and even though the petitioner submitted a copy of the interim order to the respondents, he was denied duty as on date. 3. The respondents in their counter have submitted that the petitioner was appointed as Junior Assistant on compassionate grounds and he joined Sathuvachari Town Panchayat on 1.3.95. The Director of Town Panchayats, Chennai, has requested the Assistant Director of Town Panchayats, Vellore to send necessary proposals for ratifying the appointment of the petitioner. Accordingly, necessary proposals were submitted to the Director of the Town Panchayats, Chennai on 1.11.95. Instead of ratifying the appointment of the petitioner, the Government taking into consideration of the employment of the petitioner's elder brother, rejected the case for ratification by order dated 8.9.98 and directed to take further action to oust the petitioner from service. Consequently, the Director of Town Panchayats, Chennai 108, in his letter dated 16.9.1998 directed the Collector of Vellore District to oust the petitioner from service. The petitioner who was working as Junior Assistant, Katpadi Town Panchayat was ousted on 23.9.1998. 4. The respondents have further submitted that as per the Rules, the services of the individuals appointed on compassionate grounds can be regularised only after orders of the Government confirming the appointment of the individual. As another member of the deceased family was already on employment, the petitioner is not eligible to be considered for compassionate appointment, the rejection of the proposal to regularise the service is proper and therefore there is no error in the order of rejection of the Government to ratify the appointment. 5. It is further submitted in the counter statement that as the petitioner is not eligible to avail the concession of compassionate appointment as per the Government Order in force, the impugned orders are liable to the sustained and accordingly prayed for dismissal of the writ petitions. 6. Placing reliance on the Government Order in G.O.Ms.No.155 (Labour and Employment Department) dated 16.7.1988 and the specific averments made in the Counter affidavit at paragraph No.7, Mr.R. Singaravelan, learned counsel for the petitioner submitted that the respondents having satisfied with the qualifications, conducted an enquiry before the appointment of the petitioner and satisfied that the elder brother of the deceased Government Servant was living separately and not extending any financial assistance to the family of the Government Servant, the third respondent has appointed the petitioner as Junior Assistant. Learned counsel for the petitioner further submitted that compassionate appointment is extended to the family of the deceased on account of their indigent circumstances, and when the elder brother of the petitioner is not rendering any financial assistance, the petitioner is eligible to seek for compassionate appointment and that the clarification issued in G.O.Ms.No.155 (Labour and Employment Department) dated 16.7.1988 is squarely applicable to the case of the petitioner. He therefore submitted that the reasons assigned for refusal to ratify the appointment of the petitioner as Junior Assistant and the order or removal are liable to be set aside and prayed for a suitable direction to the respondent to regularise the appointment of the petitioner and pay monetary and service benefits. 7. Mrs. Shanmugavalli Sekar, learned Government Advocate appearing for the respondents has submited that as the elder brother of the petitioner, is already in employment on the date of death of the petitioner's father, the family of the deceased Government Servant cannot be said to be in indigent circumstance, and it does not require any assistance in the form of compassionate appointment and therefore, the order of the District Collector of Vellore, refusing to ratify the petitioner's appointment is in accordance with the scheme of compassionate appointment. She further submitted that as the petitioner is not eligible for such appointment, consequently, his continuance in service is also not permissible and therefore, the respondents have taken appropriate decision to remove him from service. The Government has extended the benefit of compassionate appointment only to deserving cases, and if there is already earning member in the family of the deceased Government Servant, such benefit cannot be extended. For the abovesaid resons she prayed for dismissal of the Writ petitions. 8. Heard the learned counsel for the parties and perused the materials on record. 9. Before adverting the facts of the case, it is relevant to extract the Government Order dealing with appointments on compassionate ground, under indigent circumstances of the family of deceased Government Servant in G.O.Ms.No.155 (Labour and Employment Department) dated 16.07.1998, which reads as follows: "GOVERNMENT OF TAMIL NADU ABSTRACT Publice Services  Apppointement on compassionate ground  Indigent circumstances of families of deceased Government sevent Provident Fund & Death-cum-Retirement Gratuity not to be included  Appointment to one member if another member was already employed in the family of the deceased  certificate  issued LABOUR AND EMPLOYMENT DEPARTMENT G.O.Ms.No.155 DATED : 16.07.1998 Read:- 1.G.O.Ms.No.225, Labour & Employment dated 5.8.72 2.G.O.Ms.No.360, Labour & Employment dated 3.8.77 3.G.O.Ms.No.998, Labour & Employment dated 2.5.81 4.Govt. Lr.No.18274/N1/82/3 Labour & Employment dt.9.7.82 5.G.O.Ms.No.73, Employment service dated 26.10.83 6.G.O.Ms.No.8, Employment service dated 7.1.87 7.G.O.Ms.No.23, Labour & Employment dated 11.4.90 Read also:- 8.G.O.Ms.No.23, Labour & Employment dated 10.2.93 ORDER One of ther conditions prescribed under the scheme of appointment on compassionate grounds formulated in the G.O.first read above is that the family of the deceased Government servant shouel be in "indigent circumstances". Another condition introduced in the G.O. third read above is that if there is already any earning member in the family of the Government servant who died in harness, the other dependents of the deceased Government Servant will not be eligible for compassionate appointment. 2. The Government have re-examined the above mentioned conditions. The expression "indigent circumstances" has not been precisely defined. It has been left mostly to the subjective satisfaction of the appointing authorities. Therefore the Service Associations have represented that this condition be deleted. The family of a deceased Government Servant is entitled to Provident Fund accumulations, Family Benefit, Death-cum-retirement Gratuity, Encashment of leave at credit at the time of the death, etc., The Government consider that these amounts or the interest earnings that will accrue on depositing these amount need not be taken into consideration. It is therefore necessary to ascertain whether the family is having immovable property like houses, funds etc., The income from which which is substantial to sustain the family without any extra help. The Government therefore direct that the criteria for indigent circumstances is that the family should not own any house or landed properties or if owned, the income from which is insufficient to sustain the family. A certrificate from the Tahsildar to the effect will have to be produced. 3. In regard to the second condition mentioned in para above, it is considered that if a member of the family is already in employment and supports the family then the restriction may be applied. When a dependent of the family employed, the factors to be ascertained are, whether he is regularly employed and is actually supporting the family. If that person employed even before the death of the Government Servant and was living separately without extending any help to the family, then the case of other eligible dependents will be considered. 4. However, the restriction that only one of the dependents will be entitled for appointment on compassionate grounds will continue. 5. Only the dependents of the deceased Government servant viz., wife/husband/son/unmarried daughter will be eligible for appointment. If the widow is not educationally qualified/eligible for appointment, she could be given a job like sweeper. The Government also direct that a married daughter who is deserted by her husband and living with the family of the deceased government servant and widowed or divorced daughter living with the family may be considered, if the widow of the deceased Government Servant gives her consent in writing. 6. Age restrictions of 30 in the case of sons/unmarried daughters or 40 in the case of widow/widower will continue. 7. all cases requiring relaxation will be decided b y the Committee constituted with reference to para 20 of the Chief Minister's standing order No.2, Personnel and Administrative Reforms dated 9.1.92. 8. These orders will be applicable to the families of Government servants who has retired on medical invalidation before attaining the age of 50 years. (BY ORDER OF THE GOVERNOR) R. VARADHARJULU, Secretary to Governments." 10. One of the earlier conditions in the scheme of appointment on compassionate ground formulated in the above Government Order is that the family of the deceased Government Servant should be in indigent circumstance. Subsequent the Government have introduced another condition in the G.O.Ms.No.998 (Labour and Employment) dated 2.5.1981 is that, if there is already an earning member in the family of the Government Servant who died harness, the other dependents of the deceased Government Servant will not be eligible for compassionate appointment. As the expression 'indigent circumstance' has not been precisely defined, and since it has been left mostly to the subjective satisfaction of the appointing authorities, the service associations have represented that the above condition be deleted. Thereafter the Government have come forward to the issue the above order 11. A reading of the G.O.Ms.No.155 (Labour and Employment Department) dated 16.7.1998, makes it clear that if a member of the deceased Government servant is already in employment and supports his family then the restriction may be applied. When a member of the family is already employed, the factors to be ascertained are (1) Whether he is regularly employed (2) whether he is actually supporting his family or not. If any member of the family is already employed even before the death of the Government Servant on his own merits and living separately without extending any financial assistance to the family, then the case of other eligible dependents will have to be considered. 12. The above clarification has been issued by the Government taking into consideration of the family of the deceased Government Servant, where there is no financial assistance. It is evident that the clarification is issued with the object of extending the benefit of compassionate appointment to the family of deceased Government Servant, which is in 'indigent circumstance'. 13. In the light of the clarification, the respondent had already conducted a detailed enquiry to ascertain the "indigent circumstances" of the family of the deceased Government Servant and whether the family receives any financial assistance from the member of the deceased Government Servant who is already in employment. According to the respondents, a preliminary enquiry was conducted by the department before offering appointment to the petitioner on compassionate ground and it revealed that the, elder brother of the petitioner was living separately at Madras and that he is not in a position to extend any financial support to the family of the deceased Government Servant. Therefore, the petitioner has been offered appointment to the post of Junior Assistant in the department of Town Panchayat with effect from 1.3.1995, after duly ascertaining the indigent circumstance of the family of the deceased Government Servant. Having conducted a detailed enquiry and found that the petitioner falls within the ambit of clarification of the G. O.Ms.No.155, in the absence of any material or evidence to show that the family is not in indigent circumstances, it is not open to the respondents to turn around and reject the proposal for ratifying his appointment. 14. Even in the Counter affidavit, no supporting materials have been placed for the rejection of ratification of the appointment and removal of the petitioner from service, excepting to state that the appointment was irregular and contrary to rules As stated supra, when the enquiry conducted by the third respondent revealed that there was no financial assistance to the family of the deceased Government Servant from any quarters, the object of providing compassionate appointment to the deceased Government Servant family should not be deviated on the sole ground that a member of the deceased Government servant is already in employment. Having issued clarificatory orders for the Heads of the Department in the matter of compassionate appointment, the Government ought to have scrupulously followed the same, and ratified the appointment. 15. As the appointment of the petitioner as Junior Assistant has been done in accordance with the rules, he is entitled for regularisation of his service from th date of his initial appointment with consequential benefits. 16. In view of the above, the impugned order passed by the District Collector, Vellore, is liable to be set aside and accordingly set aside. The respondents are directed to regularise the appointment of the petitioner in the post of Junior Assistant retrospectively from the date of his initial appointment and pay all consequential benefits within four months from the date of receipt of copy of this Order. 17. In the result, both the writ petitions are allowed. 24.06.2008 Index : Yes Internet : Yes/No ggs 1. The Director of Town Panchayats, Kuralagam, Chennai 600109. 2. The District Collector, Vellore District, Vellore. S. MANIKUMAR,J. ggs 3. The Assistant Director of Town Panchayats, Vellore Zone, Vellore 632009 4. The Executive Officer, Katpadi Town Panchayat, Vellore. 5. The Secretary to Government, Municipal Administration and Water Supplies Department, Secretariat, Chennai-9. W.P.Nos.39076 and 39077 of 2006 24.06.2008