1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15-12-2011 CORAM: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.(MD)No.7050 of 2011 And M.P.(MD) No.1 of 2011 G.Rengarajan .. Petitioner vs. 1.The State of Tamil Nadu, Represented by its Secretary to Government, Education Department, Fort St. George, Chennai-600 009. 2.The Director of School Education, D.P.I. Campus, College Road, Nungambakkam, Chennai-600 006. 3.The Director of Elementary Education, D.P.I. Campus, College Road, Nungambakkam, Chennai-600 006. 4.The Chief Educational Officer, Tiruchirappalli District, Tiruchirappalli. 5.The District Elementary Educational Officer, Tiruchirappalli District, Tiruchirappalli-620 020. 6.The Assistant Elementary Educational Officer, Marungapuri Union, Marungapuri at Kovilpatti-621 305, Manapparai Taluk, Tiruchirappalli District. .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the entire records relating to the impugned proceedings issued by the fifth respondent herein in Na.Ka.No.8362/A1/06 dated 16.6.2011 and quash the same and consequently direct the respondents herein to appoint the petitioner on compassionate ground in any of the posts to which he is suitable. For Petitioner : Mr.A.Saravanan For Respondents : Mr.K.P.Krishnadoss, Government Advocate. https://hcservices.ecourts.gov.in/hcservices/ 2 O R D E R The petitioner has come up with the above writ petition, challenging an order of the fifth respondent, rejecting his request for the grant of compassionate appointment. 2. I have heard Mr.A.Saravanan, learned counsel for the petitioner and Mr.K.P.Krishnadoss, learned Government Advocate for respondents. 3. The petitioner's father, by name Govindan, was employed as Craft Teacher, in a Panchayat Union Middle School in Marungapuri Union, Trichy District. He died in harness on 28.6.1987. He was due to retire, had he been alive, only in June 2005. 4. The petitioner claims that he was a minor at the time of death of his father. His father left behind the petitioner, his younger brother, his sister and mother as the legal heirs. 5. According to the petitioner, he made a request for appointment on compassionate grounds within 3 years of the death of 25.1.1990. But the petitioner actually completed 12th Standard only in 1992. 6. By a communication dated 11.9.1997, the fourth respondent informed the petitioner that as per the seniority position of persons seeking appointment on compassionate grounds, his case will be considered. But on 24.4.2006, the fourth respondent returned the request of the petitioner, pointing out certain defects. After the defects were rectified and resubmitted, the application was rejected on 11.10.2007. Again the petitioner made representations and the fifth respondent called for certain details. Thereafter, the request was rejected once again on 22.7.2009 and later on 7.12.2009. As against the orders dated 22.7.2009 and 7.12.2009, the petitioner filed a writ petition in W.P.No.40 of 2010. The said writ petition was disposed of by an order dated 20.4.2011, setting aside the orders of the fifth respondent dated 22.7.2009 and 7.12.2009 and directing the respondents to reconsider the matter. 7. In pursuance of the above order, the fifth respondent has issued the impugned communication dated 16.6.2011, finally rejecting the prayer for appointment on compassionate grounds. 8. The respondents have filed a counter affidavit. In the counter affidavit, the respondents have admitted that the petitioner's father was employed as a Craft Teacher and that he died in harness on 28.6.1987. But the respondents have stated that the application for appointment on compassionate ground was submitted only on 1.8.1994, after a gap of 7 years. Therefore, according to the respondents, the primary condition that an application for appointment on compassionate ground should be made within 3 years, was not satisfied. In so far as the claim of the petitioner that an application was made on 25.1.1990 is concerned, the respondents have denied the same. The respondents have stated in the counter that in the copy of the letter dated 25.1.1990 produced by the petitioner, there was no signature or office seal. The letter was addressed to the Assistant Elementary Educational Officer, but the said post was not in existence in the year 1990. It was created only on 1.6.1995. Moreover, the legal heirship Certificate itself is dated 19.7.1996. Therefore, according to the respondents, no application was made within 3 years of the death. https://hcservices.ecourts.gov.in/hcservices/ 3 9. Additionally the respondents claim that the petitioner's mother was aged 33 years at the time of death of the Government Servant. Therefore, she was entitled to seek employment. But she did not. Therefore, the respondents claim that the rejection of the request of the petitioner is perfectly in order. 10. A perusal of the pleadings and the impugned order would show that there are three issues to be resolved viz.,:- (i) Whether the petitioner actually made an application within 3 years, as claimed by him, on 25.1.1990 ? (ii) Whether the failure of the petitioner's mother to make an application at that time would vitiate the request made by the petitioner ? and (iii) Whether the petitioner is entitled to appointment on compassionate grounds, at this distance of time? 11. In so far as the first issue is concerned, I do not think that it is anymore open to the respondents to raise the issue. In paragraph-8 of the judgment dated 20.4.2011 in W.P.(MD) No.40 of 2010, a learned Judge of this Court has recorded a finding that the petitioner had made an application on 25.11.1990. The learned Judge has also recorded a finding that the petitioner was aged only 13 years when he made the application. Therefore, the respondents cannot anymore take a stand that the petitioner did not file any application on 25.1.1990 as the finding recorded in W.P. (MD) No.40 of 2010 had attained finality. 12. In so far as the second issue is concerned, it is true that the petitioner's mother could have applied for a job. As pointed out by several decisions, the object of providing compassionate appointment is to enable the family of the Government Servant to tide over the crisis, into which the family is plunged on account of the sudden death of the Government Servant. Therefore, it is not expected of such a family to wait for the minor children to attain majority, to seek appointment. 13. It is true that in Mohanambal vs. Director, Land and Survey Department, Kancheepuram District {2011 (2) MLJ 47} and A.Musthfa Iqbal Basha vs. State of Tamil Nadu {2011 (4) MLJ 438}, two learned Judges of this Court have held that the application made within 3 years of a minor child of the deceased employee attaining majority should be considered. 14. But unfortunately for the petitioner, the Hon'ble Supreme Court has taken a contra view in a recent decision rendered in Local Administration Department vs. M.Selvanayagam {AIR 2011 SC 1880}. 15. In the case before the Supreme Court, a watchman employed in the Karaikkal Municipality died in harness, leaving a widow aged 39 years and two sons, the eldest of whom was 11 years old. 5-1/2 years after the death of the father, the son passed SSLC and thereafter the widow made an application for appointment on compassionate grounds. A second application was filed after 7 years and six months. It was rejected. When the son came up before this Court, the writ petition was dismissed. But the Division Bench allowed the Writ Appeal and directed the person to be appointed. When the matter was taken to the Supreme Court, the Supreme Court set aside the order of the Division Bench and upheld the rejection of the request for appointment on compassionate grounds. https://hcservices.ecourts.gov.in/hcservices/ 4 16. While doing so, the Supreme Court pointed out that the widow of the deceased Government Servant ought to have applied for appointment immediately and that the ill-health cited by her for not applying for a job could not be accepted. The relevant portion of the decision of the Supreme Court is extracted as follows:- “7. We think that the explanation given for the wife of the deceased not asking for employment is an after-thought and completely unacceptable. A person suffering from anaemia and low blood pressure will always greatly prefer the security and certainty of a regular job in the municipality which would be far more lucrative and far less taxing than doing menial work from house to house in an unorganised way. But, apart from this, there is a far more basic flaw in the view taken by the Division Bench in that it is completely divorced from the object and purpose of the scheme of compassionate appointments. It has been said a number of times earlier but it needs to be recalled here that under the scheme of compassionate appointment, in case of an employee dying in harness one of his eligible dependents is given a job with the sole objective to provide immediate succour to the family which may suddenly find itself in dire straits as a result of the death of the bread winner. An appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependents and the financial deprivation caused to the dependents as a result of his death, simply because the claimant happened to be one of the dependents of the deceased employee would be directly in conflict with Articles 14 & 16 of the Constitution and hence, quite bad and illegal. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind. 8. Ideally, the appointment on compassionate basis should be made without any loss of time but having regard to the delays in the administrative process and several other relevant factors such as the number of already pending claims under the scheme and availability of vacancies etc. normally the appointment may come after several months or even after two to three years. It is not our intent, nor it is possible to lay down a rigid time limit within which appointment on compassionate grounds must be made but what needs to be emphasised is that such an appointment must have some bearing on the object of the scheme. 9. In this case the respondent was only 11 years old at the time of the death of his father. The first application for his appointment was made on July 2, 1993, even while he was a minor. Another application was made on his behalf on attaining majority after 7 years and 6 months of his father's death. In such a case, the appointment cannot be said to sub-serve the basic object and purpose of the scheme. It would rather appear that on attaining majority he staked his claim https://hcservices.ecourts.gov.in/hcservices/ 5 on the basis that his father was an employee of the Municipality and he had died while in service. In the facts of the case, the municipal authorities were clearly right in holding that with whatever difficulty, the family of Meenakshisundaram had been able to tide over the first impact of his death. That being the position, the case of the respondent did not come under the scheme of compassionate appointments.” 17. Incidentally, the facts of the case before the Supreme Court are identical to the facts of the case before me, except with one difference. In the case before the Supreme Court, the wife of the deceased did not apply for appointment, immediately after the death. Even in the case on hand, it is so. In the case before the Supreme Court, the son applied after attaining majority. In the case on hand, he claims to have applied even during his minority. But the said application could not have been considered by the respondents, as the petitioner was only a minor at that time. Therefore, the facts of the case on hand are almost identical to the case before the Supreme Court. Therefore, the impugned order does not call for any interference. Hence the writ petition is dismissed. There will be no order as to costs. Consequently, connected miscellaneous petition is also dismissed. Sd/ Assistant Registrar (RTI) /True copy/ Sub Assistant Registrar(C.S) To 1.The Secretary to Government, State of Tamil Nadu, Education Department,Fort St. George, Chennai-600 009. 2.The Director of School Education, D.P.I. Campus, College Road, Nungambakkam, Chennai-600 006. 3.The Director of Elementary Education, D.P.I. Campus, College Road, Nungambakkam, Chennai-600 006. 4.The Chief Educational Officer, Tiruchirappalli District,Tiruchirappalli. 5.The District Elementary Educational Officer, Tiruchirappalli District, Tiruchirappalli-620 020. 6.The Assistant Elementary Educational Officer, Marungapuri Union, Marungapuri at Kovilpatti-621 305, Manapparai Taluk, Tiruchirappalli District. +1. CC to Mr.A.Saravanan, Advocate, SR.No. 43794 +1. CC to the Special Government Pleader, SR.No. 44060 svn Order in W.P.(MD)No. 7050 of 2011 and MP(MD)No.1 of 2011 15-12-2011 TR : 29.12.2011: 5p/9c https://hcservices.ecourts.gov.in/hcservices/