In the High Court of Judicature at Madras Dated :: 08..07..2011 Coram :: The Hon'ble Mr. Justice V. Dhanapalan Writ Petition No: 7301 of 2008 and MP.No.1 of 2008 Selvi. D. Narmadha (Minor) rep. by her mother Mrs.Niranjana Devi, Plot No: 26, Pon Nagar Vilamal Post Thiruvarur Taluk and District. ... Petitioner -vs- 1. The Director General of Police Mylapore, Chennai – 600 004. 2. The Superintendent of Police Thiruvarur District. Thiruvarur. 3. The Inspector of Police Armed Reserve Thiruvarur. 4. The District Collector Thiruvarur District. ... Respondents .. .. .. Writ petition under Article 226 of the Constitution of India praying for issuance of certiorarified mandamus calling for the records of the 2nd respondent passed in his proceedings C.A. No: A4/9060/07 dated 2.2.2008 and quash the same and direct the respondents herein to provide appointment to the petitioner in a suitable post in the Police Department or any other Government Department within a time limit as specified by this Hon'ble Court. For petitioner : Mr. K.R. Thamizhmani for Mr.S.Sathiamoorthy For respondents : Ms. V.M. Velumani Special Government Pleader .. .. .. https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard Mr. K.R. Thamizhmani, learned counsel appearing for the petitioner and Ms. V.M. Velumani, learned Special Government Pleader appearing for the respondents. 2. An order passed by the Superintendent of Police, Thiruvarur District, in Proceedings No: C.A. No: A4/9060/07 dated 2.2.2008 rejecting the claim of the petitioner for compassionate appointment on the ground that the petitioner was only a minor even at the expiry of the three years time limit and that the Hon'ble Supreme Court has, in a judgment reported in A.I.R. 2000 S.C. 2782, held that vacancies cannot be reserved for a dependent / claimant minor at the time of death of an employee till he attains majority after a number of years has been called in question, seeking to quash the same and for a consequential direction to direct the respondents herein to provide appointment to the petitioner in a suitable post in the Police Department or any other Government Department within a time limit as specified by this Hon'ble Court. 3. According to the petitioner she is the daughter of the deceased Government servant Shri.P.Dheenadhayalan, who was working as Head Constable in the Armed Reserve Police, Thiruvarur and his Staff Number is HC 776. He died on 23.12.2004 due to heart attack while in service. The deceased Dheenadhayalan was a permanent employee and belongs to Schedule Caste Community. Petitioner's mother sent a representation on 21.06.2006 to the Superintendent of Police, the 2nd respondent herein, requesting him to give appointment to her daughter Selvi. Narmadha. By a letter dated 28.07.2006, the 2nd respondent informed the petitioner that she should have completed 18 years of age and since she is aged about only 16 years, he asked the other members of the family including the mother or any sister or brother of the petitioner to submit application for the said appointment. As the petitioner is the only daughter of the deceased there was no chance to submit an application as requested by the 2nd respondent. Therefore, petitioner made a request on 22.05.2007 to the 2nd respondent to appoint the petitioner who is the only daughter on compassionate ground. In turn, the 2nd respondent, in his letter of communication dated 06.06.2007, directed to submit a revised form in Form No: 2. Petitioner was studying 12th standard in the Veludaiyar Higher Secondary School, Thiruvarur. Accordingly, the petitioner submitted the revised form enclosing the required certificates namely death certificate of Shri.P.Deenadhayalan, legal heir certificate of Shri.P.Deenadhayalan, the certificate issued by the Headmaster that the petitioner is studying in 12th standard, S.S.L.C. Mark sheet of the petitioner, community certificate of the petitioner, Tahsildar's certificate regarding the income of the mother of the petitioner, indigent certificate of the mother of the petitioner, Tahsildhar's https://hcservices.ecourts.gov.in/hcservices/ certificate regarding the residence of the petitioner, Tahsildhar's certificate to the effect that no member of the family is employed in Government or Private agency and Tahsildhar's certificate to the effect that the mother of the petitioner is not married for the second time. 4. It is submitted that with great difficulty petitioner's mother was able to get the above certificates from the concerned authorities and submitted the same. While so, the Inspector of Police, Armed Reserve, the 3rd respondent herein also made enquiry with regard to petitioner's family status and ascertained that the family is in indigent condition. Subsequently, the 2nd respondent herein in his letter No: Na. Ka. No: A4/9060/2007 dated 14.12.2007 addressed to the 1st respondent requested him to consider the case of the petitioner for the appointment on compassionate ground enclosing the above stated certificates and documents. The 1st respondent appears to have sent a communication to the 2nd respondent in C.A. No: CA2/248374/07 dated 04.01.2008 with regard to the appointment of the petitioner. The 2nd respondent in his letter C.A. No: A4/9060/07 dated 02.02.2008 addressed to the petitioner has rejected the claim for appointment on compassionate ground which order has been challenged in this writ petition as arbitrary, illegal, untennable and unsustainable. The rejection is on the ground that the petitioner was not qualified for appointment as she was a minor. The petitioner has not requested the respondents to reserve one post for her. 5. The 2nd respondent has filed counter affidavit and inter alia stated that the petitioner is the wife of Dheenathayalan who died on 23.12.2004. Petitioner's daughter Selvi. D. Narmadha has applied for appointment on compassionate ground through an application dated 21.06.2006and on 22.05.2007 and also by the petitioner with a request for an appointment under compassionate ground to her daughter Selvi.Narmadha on 18.09.2007. Based on the request of the petitioner's mother necessary particulars and documents were called for from the petitioner's daughter vide Office Memo in C. No: A4/9060/2007 dated 06.06.2007 and the particulars and documents collected from the petitioner's daughter were sent along with a proposal for the post of Junior Assistant under compassionate grounds vide office letter in C. No: A4/9060/2007 dated 14.12.2007. It is further informed that on the date of death of her father i.e. On 23.12.2004 Selvi.Narmadha was only a minor in the age of 14 years and 7 months and 9 days only. As per G.O. Ms. No: 120 Labour and Employment Department dated 26.06.1995, the application for the appointment on compassionate ground should be made within three years of the death of the Government servant. As communicated in Government Letter No: 103009 / Pol. XV/2001-1 Home Department dated 08.10.2011, in a decision reported in A.I.R. 2000 S.C. 2782, the Supreme Court held that vacancies cannot be reserved for a dependent/claimant minor at the time of death of an employee till https://hcservices.ecourts.gov.in/hcservices/ he/she attains majority after a number of years and such reservation would be against the intention behind compassionate appointment viz. to provide immediate relief to the family of the deceased employee. In view of the above decision of the Supreme Court, her request for appointment on compassionate ground cannot be conceded. Stated all the reasons, an endorsement of this office C. No: A4/9060/2007 dt. 02.02.2008 based on the Chief Office Memo in C. No: 28427/CA.2/2007 dated 04.01.2008 was issued to the petitioner's daughter Selvi.Narmadha. Aggrieved by the said endorsement, the petitioner has now filed this writ petition. 6. In the counter affidavit of the respondents, it is also stated that on the petition of Selvi. Narmadha dt. 21.06.2006 and 22.05.2007 and on the petitioner mother's petition dated 18.09.2007, necessary documents and particulars were collected by the 2nd respondent and sent up a proposal to Director General of Police, Chennai, in connection with appointment under compassionate grounds. The indigent condition of the family of the petitioner was certified by the Tahsildar of Thiruvarur Taluk and apart from that a confidential report was also obtained from the Inspector of Police, Special Branch, Thiruvarur. Finally, a compassionate ground appointment proposal for the post of Junior Assistant was sent to Director General of Police, Chennai, vide their office letter in C. No: A4/9060/2007 dt. 14.12.2007. However, the request of the petitioner for appointment on compassionate ground was not conceded by the Director General of Police, Chennai, vide Chief Office Memo in C. No: CA.2/248274/2007 dated 04.01.2008. Therefore, the same was informed to the petitioner through the Office Endorsement in C. No: A4/9060/2007 dated 02.02.2008. It has been informed by the Director General of Police, Chennai, that as per the decision of the Supreme Court in the case reported in A.I.R. 2000 S.C. 2782, the request of the petitioner cannot be conceded and prayed for dismissal of the writ petition. 7. The learned counsel for the petitioner in his first and foremost submission would contend that it is with an avowed object of redressing the grievance of the bereaved family and to ameliorate the hardship on the sudden demise of the Government servant that the compassionate appointment is provided which object cannot be defeated by the respondents stating that the application for compassionate appointment was not made within the time frame but during the minority of the petitioner. He would further contend that it is not the petitioner's claim that the vacancy has to be kept vacant. Therefore, citing the reasons of the Supreme Court's decision reported in A.I.R. 2000 S.C. 2782 for rejecting the petitioner's claim is contrary to the decision when the petitioner is not making such a claim. The learned counsel relied on various decisions of this Court and also submitted that the above judgments are confirmed by the Division Bench of this Court as well as the Supreme Court. In the case of M. Uma vs. Chief Engineer (Personnel), https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Electricity Board, Chennai, and another, reported in 2010 (7) M.L.J. 644, the question raised before the Court was, "Whether the order rejecting the application for appointment on compassionate grounds on the ground that it was not submitted within three years from the date of death of the deceased employee is justified ?". This Court held that, " In the light of the judgments of the Supreme Court as well as the Division Bench judgments of this Court and having regard to the fact that the petitioner's application was rejected by order dated 26.2.2005 on the ground that she has not submitted the application within three years and the application was submitted by the petitioner's brother on 29.4.2002 and after the said rejection, the petitioner applied on 10.6.2002 and the proof of sending the application is filed in the typed set of papers and also the fact that the petitioner's family is still in indigent circumstances, the Court is of a firm view that the petitioner has made out a case to issue a mandamus directing the respondents to consider the claim of the petitioner seeking compassionate appointment without reference to the objection raised in the impugned order i.e. the petitioner has not applied within three years from the date of the death of the petitioner's father." The Ratio Decidendi is " The application for the appointment on compassionate grounds is not to be rejected on the ground that it was filed after a lapse of time and the application, is to be considered on its own merits. " Further reliance was made to the decision in the case of A. Neppolian and others vs. Chief Engineer (Personnel), Tamil Nadu Electricity Board, Chennai, and another, reported in 2007 (7) M.L.J. 117, and the decision rendered in the case of A. Musthfa Iqbal Basha vs. State of Tamil Nadu, represented by its Secretary to Govt. Education Department, Chennai and others, reported in 2011 (4) M.L.J. 438 in support of petitioner's claim. In the judgment reported in 2007 (7) M.L.J. 117, it was held that, " Where the application for compassionate appointment was made within three years of death of deceased employee, but was rejected due to the reason that claimant has not attained the age of 18 years, the claimant is not qualified to any post. When the second application has been submitted on attaining majority it cannot be treated as fresh application made beyond three years from the date of death of the deceased employee. " https://hcservices.ecourts.gov.in/hcservices/ In the judgment reported in 2011 (4) M.L.J., it was held that, " Any delay in the submission of the application for compassionate appointment on the reason of attainment of majority of applicant, does not give an implication that the family of the concerned deceased Government employee has gotten over their indigent circumstances and an order rejecting such claim for compassionate appointment on the ground of such lapse of time is un-sustainable." 8. On the other hand, the learned Special Government Pleader appearing for the respondents in her submission points out that the petitioner was a minor at the time of making an application and therefore, the respondents cannot keep the vacancy unfilled till she attains majority and, therefore, the order passed by the respondents are perfectly valid and it cannot be faulted with. 9. On the background of these facts and circumstances I have heard the learned counsel for the petitioner and the learned Special Government Pleader and perused the material records and the relevant decisions relied on by the learned counsel on either side. 10. It is not in dispute that petitioner's father Deenadhayalan was in the service of the respondent department as a Head Constable and his Staff Number is HC 776. He died in harness on 23.12.2004 due to heart attack. Thereafter, petitioner's mother made an application on 21.06.2006 to the Superintendent of Police, Thiruvarur, the second respondent herein, requesting him to give appointment to her only daughter Selvi. Narmadha on compassionate ground. By a letter dated 28.07.2006, the 2nd respondent informed the petitioner that she should have completed 18 years of age and since she is aged about only 16 years, he asked the other members of the family including the mother or any sister or brother of the petitioner to submit application for the said appointment. As the petitioner is the only daughter of the deceased there was no chance to submit an application as requested by the 2nd respondent. Therefore, petitioner made a request on 22.05.2007 to the 2nd respondent to appoint the petitioner who is the only daughter on compassionate ground. In turn, the 2nd respondent, in his letter of communication dated 06.06.2007, directed to submit a revised form in Form No: 2. Petitioner was studying 12th standard in the Veludaiyar Higher Secondary School, Thiruvarur. Accordingly, the petitioner submitted the revised form enclosing the required certificates namely death certificate of Shri.P.Deenadhayalan, legal heir certificate of Shri.P.Deenadhayalan, the certificate issued by the Headmaster that the petitioner is studying in 12th standard, S.S.L.C. Mark sheet of the petitioner, community certificate of the petitioner, Tahsildar's certificate regarding the income of the https://hcservices.ecourts.gov.in/hcservices/ mother of the petitioner, indigent certificate of the mother of the petitioner, Tahsildhar's certificate regarding the residence of the petitioner, Tahsildhar's certificate to the effect that no member of the family is employed in Government or Private agency and Tahsildhar's certificate to the effect that the mother of the petitioner is not married. However, the claim of the petitioner has been rejected on the ground that the date of birth of the petitioner being 14.05.1990, she was only a minor attaining the age of 14 years 7 months and 9 days. It is also stated in the rejection letter that as per G.O. Ms. No: 120 Labour and Employment Department dated 26.06.1995, the application for appointment on compassionate ground should be made within three years of the death of Government servant and even after the expiry of these three years time limit, she would be only a minor attaining the age of 17 years 7 months and 9 days. Stating that the respondents cannot keep one post unfilled for the petitioner, they have rejected the claim of the petitioner. 11. A perusal of the above impugned order would reveal that the claim of the petitioner was rejected only on the ground that their application was not made within a time frame and that the petitioner is aged less than 18 years and therefore, their claim cannot be considered. The legal position is settled by this Court in a number of decisions as referred to above. When the claim of the petitioner is for compassionate appointment by filing an application for that purpose even after a lapse of number of years of attaining majority and the delay in submission of the application cannot be a ground to reject such an application. The application for compassionate appointment made within three years of the death of the Government employee but during the minority of the application, cannot be rejected. In respect of considering the claim and the circumstances for appointment on compassionate grounds, the Supreme Court in the case of Sushma Gosain and others vs. Union of India and others reported in A.I.R. 1989 SC 1976 has laid down a principle and held that, " 7. We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant. " These are the materials to be taken into account for considering the claim of the petitioner for compassionate appointment. Ofcourse, https://hcservices.ecourts.gov.in/hcservices/ the respondents have taken a decision to the effect that in case of a minor who has not completed majority while making an application, such application cannot be considered by keeping the vacancy unfilled. 12. In the case of Syed Khadim Hussain vs. State of Bihar and others reported in 2006 (9) S.C.C. 195 the Supreme Court has held that "5. We are unable to accept the contention of the counsel for the State. In the instant case, the widow had applied for appointment within the prescribed period and without assigning any reasons the same was rejected. When the appellant submitted the application he was 13 years' old and the application was rejected after a period of six years and that too without giving any reason and the reason given by the authorities was incorrect as at the time of rejection of the application he must have crossed 18 years and he could have been very well considered for appointment. Of course, in the rules framed by the State, there is no specific provision as to what should be done in case the dependants are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application. 6. As the widow had submitted the Application in time the authorities should have considered her Application. As eleven years have passed she would not be in a position to join the Government service. In our opinion, this is a fit case where the appellant should have been considered in her place for appointment. Counsel for the State could not point out any other circumstance for which the appellant would be disentitled to be considered for appointment. In the peculiar facts and circumstances of this case, we direct the respondent- authorities to consider the application of the appellant and give him appropriate appointment within a reasonable time at least within a period of three months. The appeal is disposed of in the above terms. No costs." Here is a case where the petitioner's mother made an application for appointment of her only daughter, who is qualified to some extent, as her appointment would make her some support to the family. The intention of the mother is that the appointment would bring some support to the family. In the light of the above decision of the Supreme Court, in a case where there is no specific provision in the Rules or the letter of communication which prescribes certain cut off date to the application either prior or after certain date, the respondents cannot reject petitioner's application. The views https://hcservices.ecourts.gov.in/hcservices/ endorsed by this Court as well as the Supreme Court had to be applied and the ratio laid down therein are applicable to this case also. In such view of the matter for the foregoing reasons and discussions made above and considering the facts and circumstances of the case, the impugned order suffers from illegality, infirmity and hence, it cannot be sustained. Accordingly, it is set aside with a direction to the respondents 1 and 2 to consider the case of the petitioner for appointment keeping in mind the legal principles laid down by the Supreme Court in the cases of Sushma Gosain and Syed Khadim Hussain, cited supra, and pass appropriate orders within a period of eight weeks from the date of receipt of a copy of the order. The Writ Petition is allowed. No costs. Consequentially, connected miscellaneous petition is closed. gp Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Director General of Police Mylapore, Chennai – 600 004. 2. The Superintendent of Police Thiruvarur District, Tiruvarur. 3. The Inspector of Police Armed Reserve Thiruvarur. 4. The District Collector Thiruvarur District. + 1 cc to Mr. S. Sathiamurthi, Advocate SR No.40334 + 1 cc to Government Pleader, SR No.40657 GR(CO) SR/28.7.2011 W.P. No: 7301 of 2008 https://hcservices.ecourts.gov.in/hcservices/