IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.03.2010 CORAM THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN WRIT PETITION NO.21590 OF 2009 A.Seenivasan .... Petitioner Vs. District Educational Officer Krishnagiri Krishnagiri District. .... Respondent PETITION under Article 226 of The Constitution of India praying for the issuance writ of Certiorarified Mandamus calling for the records pertaining to the order passed by the respondent in his proceedings Mu.Mu.No.5902/A1/2008 dated 11.5.2009 and quash the same and direct the respondent to consider the application made by the petitioner for compassionate appointment on merit without insisting the limitation period. For Petitioner : Mr.S.Mani For Respondent : Mr.S.Gopinathan, AGP O R D E R The petitioner herein applied for appointment on compassionate ground before the respondent herein on 2.11.2006, which admittedly was after three years of the death of the petitioner's father. The petitioner's father was working as a Secondary Grade Assistant and died on 16.11.1997. At the time of the death of the father of the petitioner, apart from the petitioner, the deceased left behind his wife and daughter. Placing reliance on G.O.Ms.No.155, Labour & Employment Department dated 16.7.1993, the petitioner's sister applied for compassionate appointment on 10.3.2000. However, on account of the health, the widow of the deceased did not seek employment. The respondent, however, returned the application of the petitioner's sister stating that the mother should have applied for compassionate appointment or else, the petitioner's sister should https://hcservices.ecourts.gov.in/hcservices/ have made an application with medical certificate as to the inability of the mother to get appointment. Thereafterwards, since the petitioner's sister got married in the year 2002, the petitioner, on attaining majority in the year 2006, made an application on 02.11.2006 for compassionate appointment. It may be noted herein that during the interregnum period there was a ban in recruitment, which was lifted in the year 2006. However, the petitioner's request for compassionate appointment based on G.O.Ms.No.155, Labour and Employment Department dated 16.7.1993 was rejected under order dated 11.5.2009. The respondent took the view that the petitioner's sister got married on 17.2.2002, however, at the time of the death of the Government servant, namely, the petitioner's father, his mother had not attained even 50 years. In the circumstances, the widow of the deceased should have sought for an employment at the first instance. In the circumstances, the question of considering the petitioner, being third legal heir, after the expiry of the three year period, for appointment on compassionate appointment cannot be accepted. 2. Aggrieved by the same, the petitioner has come before this Court seeking Writ of Certiorarified Mandamus to quash the order and to direct the respondent to consider the application on merits without insisting the limitation period. 3. On notice, the respondent has filed a counter stating that the petitioner, being a third legal heir cannot be considered for appointment. It is however admitted in the counter that at the time of the death of the petitioner's father on 16.11.1997, the petitioner was aged only 9 years. Since he had submitted his proposal after the three year period from the date of death of the father, the question of considering his name does not arise. It is also stated that at the time when the daughter applied for compassionate appointment, she was informed by the Headmaster in R.C.No.51/2000 dated 10.3.2000 that there was ban in appointment on compassionate ground. However, when the ban was lifted, the petitioner's sister was already married, hence, she was not fit for compassionate ground appointment. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 5. A perusal of G.O.Ms.No.155, Labour and Employment Department dated 16.7.1993 shows that the Government thought fit to grant appointment to a member of the family of a Government servant, who died in harness. As per paragraph 5 of the G.O., only the dependants of the Government servant, namely, wife/husband/son/unmarried daughter would be eligible for appointment. The Government Order further states that if the widow is not educationally qualified, she https://hcservices.ecourts.gov.in/hcservices/ could be given a job like sweeper. The married daughter, who is deserted by her husband and living with the family of the deceased Government servant, may be considered for compassionate appointment subject to the widow of the deceased Government servant gives her consent in writing. Paragraph 7 of the Government Order states that the cases requiring relaxation will be considered by 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. 6. In the background of the said notification, the claim of the petitioner, hence, merits to be considered by the Government. The contention of the respondent that the widow had not applied within three years, hence, the third legal heir cannot be considered goes against the tenor of the Government order, which was purported to be given as a welfare measure for the deceased Government servant's family members. 7. A perusal of the paragraph 5 of the Government Order does not show that the Government has intended and arrayed various legal representative in the matter of priority to make an application for appointment on compassionate ground. There being nothing to indicate that wife alone has the priority over the other legal heir, I fail to understand the logic in the order passed by the respondent rejecting the plea of the petitioner that when the mother is alive and after three years of the death of the Government servant, the candidature of the petitioner cannot be considered for appointment on compassionate ground basis. 8. On the admitted fact that the petitioner was nine years old at the time of the death of the Government servant and that the petitioner's sister was not considered for appointment on account of the ban on recruitment, the question of three years limitation starring at the face of the petitioner does not arise, he being a minor at the time when his father died. With the Service Rules available that a major person alone would be entitled for any appointment, leave alone compassionate appointment, the availability of the widow or the unmarried daughter cannot stand in the way of one of the family members being considered for appointment on compassionate ground basis. The insistence on priority basis, which is not there as a condition, but has been read into the Government Order, is totally uncalled for. In any event, having regard to paragraph 7 of the Government Order, which states relaxation can be given on a decision by the Committee constituted as per the Chief Minister's standing order No.2, Personnel and administrative Reforms dated 9.1.92, I hold that the order passed by the respondent merits to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 9. In the circumstances, the order passed by the respondent dated 11.5.2009 stands set aside. The respondent is directed to consider the candidature of the petitioner in accordance with G.O.Ms.No.155, Labour and Employment Department dated 16.7.1993 and grant the appointment, if he is otherwise found qualified for any of the post. Accordingly, the Writ Petition stands allowed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sl To 1. The District Educational Officer, Krishnagiri, Krishnagiri District. + 1 cc to Govt., Pleader Sr 14632 + 1 cc to Mrs.Mani, Advocate Sr 14169 Writ Petition No.21590 of 2009 TEJ (CO) RH (9.3.10) https://hcservices.ecourts.gov.in/hcservices/