1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:01.08.2011 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.(MD)No.8299 of 2011 M.P.(MD)No.1 of 2011 S.Muthurevathi ... Petitioner Versus 1. The Secretary to Government, Family Welfare Department, Secretariat, Chennai. 2. The Director, Family Welfare Department, Chennai. 3. The Deputy Director, Medicine Rural and Family Welfare Department, Madurai. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writs of Certiorarified Mandamus, to call for the records, pursuant to the impugned order of the third respondent, dated 05.05.2011 in Na.Ka.No.1741/Ku.Na.1/2007, quash the same and consequently, direct the respondents herein to consider the petitioner for compassionate appointment on the demise of my father Santhakumar on merits and in accordance with law. For Petitioners .. Mr.Lakshmi Gopinathan For Respondent .. Mr.B.Pugalendhi, Special Govt. Pleader O R D E R The petitioner has filed the present writ petition to quash the order of the Deputy Director, Medicine Rural and Family Welfare Department, Madurai, third respondent herein, made in Na.Ka.No.1741/Ku.Na.1/2007, dated 05.05.2011 and consequently, sought for a direction to the respondents to consider her case for compassionate appointment. 2. According to the petitioner, her father worked as a Regional Health Statistical Officer, in Thiruparamkundram Primary Health Centre and died in harness on 14.12.2006. At the time of her father's death, she was a minor, aged 14 years. She made an application on 12.10.2007 to the respondents for compassionate appointment. Thereafter, the petitioner come to know that as per the Government Letter, dated 04.07.2010, a legal heir should submit his application for compassionate appointment within three years from the date of death of the government servant and that he should have attained the age of 18 years, at the time of submission of the application. Hence, the petitioner's mother made an application on 21.08.2010, requesting the respondents to give appointment to her daughter, the petitioner herein. Vide proceedings in Rc.No.1741/Ku.Na.1/2007, dated 30.08.2010, the said representation has been forwarded to the Deputy Director, Health and Family Welfare Department, Chennai, the second respondent herein by the Deputy Director, https://hcservices.ecourts.gov.in/hcservices/ 2 Medicine Rural and Family Welfare Department, Madurai, the third respondent herein. By another proceedings, dated 18.10.2010, the third respondent has informed the Director, Family Welfare Department, the second respondent herein that earlier, the application of the petitioner's mother for compassionate appointment to her daughter, the petitioner herein, has been rejected, as per the clarifications issued in Government Letter No.86/Q1/2010, 04.05.2010. In his letter dated 18.10.2010 the 3rd respondent has also extracted the version of the petitioner's mother that as she is illiterate; thus she did not know the abovesaid Government letter and even as per the School Certificate of the petitioner, difference in the age would be just one day, as on 04.05.2010. However, the second respondent, by his order, dated 05.05.211, has rejected the request of the petitioner as ineligible, by citing Government Letter No.5303/AB-2/2011-2, Public Welfare and Family Welfare Department, dated 01.12.2011 and the proceedings of the Director of Public Welfare Department, dated 20.04.2011. 3. Assailing the correctness of the order and placing reliance on a decision of this Court in V.Selvarani v. The Chairman, Tamil Nadu Electricity Board reported in 2011 (1) CWC 36, Mr.Lakshmi Gopinathan, learned counsel for the petitioner submitted that when the initial application for compassionate appointment was made, it was made well within the period of three years and as per the guidelines contained in the Government letter, dated 04.05.2010, the application of the petitioner's mother, ought to have been considered for providing employment assistance, on compassionate grounds and rejection of the application is also contrary to the decision of this Court, stated supra. 4. Considering the limited prayer, learned Special Government Pleader was put on notice and heard. He submitted that as per the Government orders in force, a dependent of the deceased government servant can seek for employment assistance under the scheme for compassionate appointment, but the application should be submitted within a period of three years. He further submitted that belated application cannot be entertained. According to him, the petitioner was a minor at the time of initial application, and therefore, the rejection of her request need not be interfered with. 5. Heard the learned counsel for the parties and perused the materials available on record. 6. Before adverting to the facts of this case, it is necessary to consider the contents of the Government Letter No.86/Q1/2010, dated 04.05.2010. Perusal of the same, shows that earlier, the Government have issued orders in Government Letter No.66813/Q1/91-3, Labour and Employment Department, dated 22.11.1991, stating that subject to other rules, employment assistance can be provided to a legal heir, whose age is within 18 years. By G.O.Ms.No.120, Labour and Employment Department, dated 26.06.1995, three years time limit has been fixed to submit the application. Thereafter, the Government have issued orders in G.O.Ms.No.112, Personnel and Administrative Reforms Department, dated 23.08.2005, fixing the minimum age as 18 years and the legal heir should have completed the same by 1st of July. Again, the Government have issued orders in G.O.Ms.No.42, Labour and Employment Department, dated 12.03.2007, stating that the guidelines fixed by the Supreme Court should be followed. To the abovesaid Government Orders and letters, the Government have issued clarification in Letter No.86/Q1/2010, dated 04.05.2010, which states that, https://hcservices.ecourts.gov.in/hcservices/ 3 (i)Before 23.08.2005, but within three years from the date of death of the deceased, even if the applicant did not complete 18 years of age, but satisfies the requirements for employment assistance, the said application should be considered. (ii)Subsequent to the clarification issued by the Government in G.O.Ms.No.112, Personnel and Administrative Reforms Department, dated 23.08.2005, the earlier letter in Government Letter No.66813/Q1/91-3, Labour and Employment Department, dated 22.11.1991, stated supra, should be deemed to have been withdrawn and only those, who attain the age of 18 years, after 23.08.2005, should be considered, as eligible for employment assistance on compassionate grounds. (iii)For considering appointment on compassionate grounds, the determination of age and educational qualification should be made only with reference to the date of submission of the application, within three years from the date of death of the government servant. (iv)The clarification given in Clause (iii) would come into force from the date of issuance of this Government Letter. 7. Reading of the abovesaid letter makes it clear that if the application is submitted within three years from the date of death of the government servant, the same has to be considered, provided the applicant satisfies the age, ie., completion of 18 years. Now reverting back to the impugned order, the material on record shows that though earlier, when the request of the petitioner's mother, to provide employment assistance was considered, the same has been rejected and communicated to the petitioner's mother, vide letter No.1741/Ku.Na.1/2007dated 22.07.2010, on the ground that the petitioner was aged only 14 years, at the time of death of her father. Subsequently, when the petitioner's mother had made a representation, dated 01.10.2010, the Deputy Director, Medicine Rural and Family Welfare Department, Madurai, third respondent herein, he has forwarded the said application to the Director, Family Welfare Department, Chennai, wherein, he has extracted the version of the petitioner's mother, that as per the clarification issued in Letter No.86/Q1/2010, dated 04.05.2010, and as per the School Certificate, there is only one day difference in age. 8. Admittedly, the petitioner was a minor on the date when the abovesaid Government Letter, dated 04.05.2010 was issued. Clause (ii) of Paragraph 5 of the abovesaid Government Letter, dated 04.05.2010, only clarifies that only those who complete 18 years of age, are qualified to seek employment assistance. Though the age and educational qualification have to be determined only from the date of submission of the application, provided it is submitted within three years from the date of death of the Government servant, the abovesaid condition imposed in Clause (iii) of Paragraph 5 of the abovesaid Government Letter, dated 04.05.2010, would come to effect only from the date of issuance of the order. Therefore, the rejection of the petitioner on the ground that she did not complete 18 years of age, as on 23.08.2005, in the opinion of this Court, is an erroneous approach, for the reason that the petitioner's father, who was working as Regional Health Statistical Officer with Thiruparamkundram Primary Health Centre, died only on 14.12.2006. 9. Any claim for employment assistance can be made only after the death of the government servant and such claim has to be considered on https://hcservices.ecourts.gov.in/hcservices/ 4 its merits, subject to satisfying the requirements prescribed under the rules, for the post to which the claim is made. When the petitioner was not even qualified to seek for employment assistance, as on 23.08.2005, ie., before the death of her father, the rejection of the application on the ground that only those, who complete 18 years of age, as on 23.08.2005 alone are eligible, is erroneous. 10. What is conveyed in the clarificatory letter, dated 04.05.2010, is that those, who complete 18 years of age, alone are eligible for employment assistance and it does not mean that, as the petitioner did not complete 18 years of age, as on 23.08.2005, her case should be rejected. In the opinion of this Court, the Government letter has to be read and understood that, when a Government servant dies in harness, his legal heir, though minor at the time of death, can still make an application immediately, on attaining the majority, i.e., completion of 18 years of age, but the said application has to be made within three years from the date of death of the government servant. If the application is made, within the prescribed period, the same has to be considered on merits. That is the clarification issued by the Government in the abovesaid letter, dated 04.05.2010 and it is also explicit that the Government in Clause (iv) to Paragraph 5, have made it clear that the abovesaid instructions would come into effect only from the date of issuance of the clarificatory letter, ie., from 04.05.2010 onwards. Clause (ii) of Paragraph 5 of the said letter, i.e., fixing the age as 18 years, has to be computed from the date of submission of the application, provided it is made within three years from the date of death of the government servant. To reiterate the abovesaid clarification comes into effect only from 04.05.2010 onwards and it applies to cases, where application have been submitted, within three years' time. 11. In view of the above, this Court is inclined to set aside the impugned order and accordingly, set aside and the writ petition is allowed. The respondents are directed to consider the application of the petitioner on merits and in accordance with law, as expeditiously as possible. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar (C.S) To 1. The Secretary to Government, Family Welfare Department, Secretariat, Chennai. 2. The Director, Family Welfare Department, Chennai. 3. The Deputy Director, Medicine Rural and Family Welfare Department, Madurai. W.P.(MD)No.8299 of 2011 01.08.2011 MPK/SKM RJ/10.8.11 https://hcservices.ecourts.gov.in/hcservices/ 5 4p/4c https://hcservices.ecourts.gov.in/hcservices/