IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.08.2011 C O R A M THE HONOURABLE Mr.JUSTICE N. KIRUBAKARAN W.P.No.12554 of 2010 S. Gopi .. Petitioner Vs. 1)The State of Tamil Nadu, Rep. by its Secretary to Government MA & WS Department, Fort. St., George, Chennai – 600 009 2.The Commissioner, Municipal Administrative & Water Supply Department, Ezhilagam, Chepauk, Chennai – 600 005 3.The Avadi Municiplaity, its Rep. by Commissioner, Avadi, Chennai – 600 054 .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India to issue a writ of Certrorified Mandamus calling for the records of the third respondent herein order No. A. Thi.Mu.333/2004/c1 made on 27.01.2009 on the file of the 3rd respondent quash the same and direct the respondents to appoint the petitioner on compassionate grounds for the sudden demise of the employee P. Subbramani. For petitioner : Mr. K. Shanmugakani For RR-1&2 : Ms. P. Kavitha, Government Advocate For R-3 : Mr. P. Srinivas O R D E R The petitioner has challenged the rejection order passed by the third respondent declining to appoint him on compassionate ground. 2. The case of the petitioner is that his father/ P.Subramani who was employed as Pumb Room Watchman as Nominal Muster Roll employee from 20.06.1983 onwards. Since his wages were not regularised, his father filed Writ Petition No.22771 of 2008, which was disposed by this Court on 18.09.2008 to consider the representation dated 04.08.2008. In the meanwhile, petitioner's father died. After that by order dated 23.12.2008, the respondents https://hcservices.ecourts.gov.in/hcservices/ refused to regularise the service of the petitioner's father on the ground that he was not employed on 01.10.1996 on daily wages as per G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.05.1999 and was only employed on fixed pay basis. Even before the petitioner's father could challenge the said order, he met with an accident on 10.01.2009 and passed away. 3. Therefore, the petitioner made a representation on 19.01.2009 seeking compassionate appointment to the third respondent stating that his father was died during employment in an accident. In view of his family of indigent circumstances, the petitioner applied for compassionate appointment. The said representation was returned, stating that his father was an employee on the miscellaneous expenditure accounts and therefore, compassionate appointment cannot be granted to the petitioner. The said order is being challenged before this Court. 4. Mr. K. Shanmugakani, learned counsel appearing for the petitioner submits that the petitioner's father was employed from 1983 and as per the direction of this Court, the respondents declined to regularise the service of the petitioner's father observing that G.O.Ms.No.125 was not applicable to him. Even before challenging the said order, he passed away. Therefore, the petitioner filed representation on 19.01.2009 seeking compassionate appointment which was returned. He further submitted that similarly placed persons like that of his father, R. Arumugam and V. Srinivasan who filed the writ petitions earlier along with his father in W.P.Nos.22771 to 22773 of 2008, got orders from this Court. Challenging the rejection order passed by the respondents, R. Arumugam and V. Srinivasan filed writ petitions in W.P.Nos.1658 and 1659 of 2009 and the same were allowed by this Court on 02.02.2010. The said order was confirmed by the Division Bench and also attained finality before the Hon'ble Supreme Court. In fact, the orders of the Court has been implemented and R.Arumugam and V.Srinivasan were already appointed by the respondents. Therefore, he submits that the petitioner should also be appointed. 5. On the other hand, the learned counsel for the third respondent submitted that the petitioner's father was employed as Pump Room Watchman on monthly wages of Rs.15/- under the contingencies funds, therefore, G.O.Ms.No.125 cannot be applicable. Moreover, petitioner's father was appointed only on compassionate ground. Therefore, the petitioner cannot be granted appointment on compassionate ground. He further submitted that in view of G.O.Ms.No.1644 dated 12.10.1979, the regularisation cannot be applicable to those who were appointed after 01.10.1979. 6. It is seen the above, contention raised before this Court in the Writ Petitions filed by the colleagues of the petitioner's father namely R. Arumugam and V. Srinivasan and it was negatived by this Court by order dated 02.02.2010 in W.P.Nos.1658 and 1659 of 2010 wherein para 7 to 11 read as follows:- https://hcservices.ecourts.gov.in/hcservices/ "7. Heard the learned counsel appearing on either side. 8. Admittedly, the petitioners were appointed in the years 1986 and 1988 as NMRs with a consolidated pay of Rs.50/- per month. Subsequently, in the year 2005, the salary of the petitioners was increased to Rs.170/- per month. Since then, the petitioners have been working in the third respondent office. Though they have been working in the third respondent as part time employees, the issue whether the part time employees are also entitled to get regularisation has been more often coming up for consideration. 9. This court had an occasion to consider an identical question as to whether the services of the part time employees can be regularised in W.P.No.23080 of 2008 (R. Venkatesalu Vs. The Director of School Education and another.) dated 23.12.2008. This court allowed the said writ petition, with a direction to the education authorities to regularise the services of the petitioner therein, who was a part time employee, on his completion of ten years of service with time scale of pay from the date of initial appointment. 10. This Court has also taken into consideration various G.Os. issued by the State Government, more particularly, G.O.Ms.No.21 dated 23.02.2006. Para 4 of the said G.O makes it very clear that not only the employees working on consolidated pay but even the persons working as NMRs on daily wages were also directed to be regularised by the Municipalities and other Municipal Corporations. Therefore, when the Government has passed various G.Os in order to regularise the services of the employees working on consolidated pay and NMRs on daily wages, the petitioners herein, who are working for almost 25 years in the third respondent Municipality as part time employees on consolidated pay cannot be singled out on the ground that they are working only as part time staff and not on daily wages basis. Even the part time employees should make themselves available in their respective office during the whole day time as a result of which even they may not be able to go for any other regular service to augment their meagre income to eke out their livelihood. Further, the petitioners have been appointed through employment exchange. Once they are sponsored through employment exchange their seniority in the employment exchange will be severed on the ground that they have got employment. Now after 25 years of service they are over- aged and they may not be able to claim any other Government job. Therefore, having utilised the services of the petitioners for almost 25 years, the rejection of their claim to regularise their services on the ground that they were part time staff and they do not deserve to be regularised may not stand to reason nor is it fair play https://hcservices.ecourts.gov.in/hcservices/ and justice. 11. For the foregoing reasons, as held by this court in the above said writ petition in W.P.No.23080 of 2008 (R. Venkatesalu Vs. The Director of School Education and another) dated 23.12.2008, this court is also inclined to allow the writ petition by setting aside the impugned order. Accordingly the impugned orders are set aside. The respondents are directed to regularise the services of the petitioners in terms of G.O.Ms.No.125 dated 27.05.1999 within a period of three months from the date of receipt of a copy of this order." 7. A perusal of the above said order would make it clear that the contention made by the respondents is not sustainable and in fact, the said order was confirmed by the Division Bench of this Court as well as by the Hon'ble Supreme Court. Under such circumstances, the respondents are estopped from making such contentions, when similarly placed persons got orders from this Court and the order was implemented by the respondents. In view of the above position, this Court is of the view that there is prohibition for the respondents to give appointment to the petitioner. 8. It is not in dispute that the petitioner's father was an employee. He along with R. Arumugam and V. Srinivasan filed W.P.Nos.22771 to 22773 of 2010, for regularisation of their services which were disposed of on 18.09.2010 and this court directed the respondents to consider the petitioner's father's representation dated 04.08.2008. Pursuant to the order passed by this court, the petitioner's father's application for regularisation was considered and it was rejected. Ever before challenging the said rejection order petitioner's father died on 10.01.2009. However, similarly placed persons R. Arumugam and V. Srinivasan, who earlier filed along with his father, challenged the order rejecting regularisation passed by the respondents in W.P.Nos.1658 and 1659 of 2009. The said writ petitions were allowed and the orders attained finality before the Hon'ble Supreme Court. If his father was alive he would have got his service regularised as that of his colleagues viz. R. Arumugam and V. Srinivasan. Merely because he passed away, it would not dis-entitle the petitioner from getting similar benefits. Therefore, the petitioner is entitled to appointment on compassionate ground treating his father as a regular employee. 9. In view of that the writ petition stands allowed and the third respondent's impugned order is set aside and the respondents are directed to appoint the petitioner on compassionate ground as per his representation dated 19.01.2009 within a period of eight weeks from the date of receipt of a copy of this order. There shall be no order as to costs. https://hcservices.ecourts.gov.in/hcservices/ 10. Call for reporting compliance in the chamber on 8.12.2011. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar trp To 1. The Secretary to Government State of Tamil Nadu, Government MA & WS Department, Fort. St., George, Chennai – 600 009 2. The Commissioner, Municipal Administrative & Water Supply Department, Ezhilagam, Chepauk, Chennai – 600 005 3.The Commissioner, Avadi Municiplaity, Avadi, Chennai – 600 054 4.The Deputy Registrar, Writ Section, High Court, Madras (For Watching compliance Report and posting in chamber on 8.12.2011) 1 cc to Mr.P.Srinivas, Advocate, Sr.No.51280 2 cc to Mr.G.Alex Benziger, Advocate, Sr.No.51271 1 cc to Government Pleader, Sr.No.51330, 51329 W.P.No.12554 of 2010 NM {CO} TP/10.10.2011. https://hcservices.ecourts.gov.in/hcservices/