IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.01.2010 CORAM THE HONOURABLE Mr.JUSTICE D.HARIPARANTHAMAN W.P.No. 35635 of 2006 D.Spurgen ... Petitioner Vs 1.The Director of School Education, College Road, Chennai-600 006. 2.The District Educational Officer, Kuzhithurai, Kanyakumari District. ... Respondents PRAYER: This Writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.5317 of 1998 from the file of Tamil Nadu Administrative Tribunal, to call for the records relating to the impugned order of the second respondent in Na.Ka.No.9576/A1/95, dated 21.05.1998 and quash the same. For Petitioner : Mr.P.Mohanraj For Respondents : Mr.S.Shivashanmugham, Government Advocate. ORDER The Original Application in O.A.No.5317 of 1998 before the Tamil Nadu Administrative Tribunal is W.P.No. 35635 of 2006 before this Court. 2.The petitioner's mother Tmt.Inbaraj was working as Secondary Grade Teacher in the Government Middle School, Idaicode, Kanyakumari District. She died on 24.04.1975 due to harness leaving behind her son (Petitioner), daughter and her husband. After the death of his mother, the petitioner was brought up by the paternal grandmother since his father remarried another woman and lived separately without looking after the children. His mother died and left the petitioner and his sister in indigent circumstances. At the time of death of his mother, the petitioner was only four years old. After completion of higher Secondary educational course in March 1994, the petitioner https://hcservices.ecourts.gov.in/hcservices/ applied for appointment on compassionate grounds as Junior Assistant on 16.05.1994. The Tahsildar of Vilavancode certified that the family of the deceased Government servant was living in indigent circumstances. In these circumstances, the petitioner was appointed by the second respondent as Junior Assistant on compassionate grounds by an order dated 28.11.1995. 3.While so, the proposals for regularising the services of the petitioner was submitted by the second respondent to the first respondent. While considering the proposals, the first respondent found that the appointment of the petitioner on compassionate grounds was irregular, since his father was working in Kattabomman Transport Corporation at the time of death of the mother of the petitioner. Hence, it seems that the first respondent has issued a proceeding dated 20.04.1998 to the second respondent to issue a show cause notice to the petitioner seeking explanation as to why his appointment shall not be cancelled. It seems that the said proceeding indicated that the disciplinary proceedings would be initiated against the concerned officers for providing irregular compassionate appointment to the petitioner. In these circumstances, the second respondent issued the impugned show cause notice dated 26.06.1998 to the petitioner asking to show cause why his compassionate appointment cannot be cancelled, since his father was in employment on the date of death of his mother. 4.In these circumstances, the petitioner filed the Original Application in O.A.No.5317 of 1998 (W.P.No.35635 of 2006) to quash the order of the second respondent dated 21.05.1998. While admitting the Original Application, the Tribunal granted interim orders and the petitioner continues on service. 5.The respondents filed counter affidavit refuting all the allegations. 6.Heard Mr.P.Mohanraj, the learned counsel for the petitioner and Mr.S.Shivashanmugham, the learned Government Advocate for the respondents. 7.The learned counsel for the petitioner submits that the petitioner did not suppress any facts while seeking compassionate appointment. It is also not the case of the respondents that the petitioner concealed certain facts to gain compassionate appointment and no such averments are found in the counter affidavit. The learned counsel appearing for the petitioner submits that the petitioner was only four years old at the time of the death of his mother. It is submitted that the father of the petitioner remarried another woman immediately, after the death of his mother and therefore, the petitioner and his sister were left in an indigent circumstances. It is also submitted that the paternal grandmother brought them up in https://hcservices.ecourts.gov.in/hcservices/ indigent circumstances. 8.The learned counsel for the petitioner has relied on the decision of this Court in W.Ruben Franklin v. Government of Tamilnadu and others reported in (2008) 5 MLJ 1322. It is submitted that the case arose in identical circumstances and it squarely covers this matter. 9.It is further submitted that even if the appointment is irregular, the same could not be disturbed after such a long time. The learned counsel for the petitioner has relied on the Division Bench Judgment of this Court in M.Suyambukkani v.Thayammal and others reported in (2005) 2 MLJ 127 and also the decision of the Honourable Apex Court in Union of India v. K.P.Tiwari reported in (2003) 9 Supreme Court Cases 129. 10.On the other hand, the learned Government Advocate seeks to sustain the impugned order by relying on the counter affidavit of the respondents. 11.I have heard the submissions made on either sides. From the narration of the facts as stated above, it is very clear that the petitioner did not suppress any facts, while seeking compassionate appointment. It is not the case of the respondents that there was suppression of facts by the petitioner while seeking compassionate appointment. There was no such allegation found in the counter affidavit. In fact, the counter affidavit filed by the respondents are in favour of the petitioner except Paragraph 8. Particularly, Paragraphs 3&4 of the counter affidavit are extracted hereunder; "3.It is submitted that the petitioner was appointed as Junior Assistant-cum-Typist on Compassionate Ground in the School Education department and now he is working as Junior Assistant in the Government High School, Villukuri, Kanyakumari District. His mother Tmt.Inbaraj was working as Secondary Grade Teacher at the Government Middle School, Edaicode, Kanyakumari District and she died due to harness on 24.04.1975. At the time of her death the applicant was aged about 4 years. After the death of his mother, the applicant was under the control of his grandmother. His father remarried another woman and lived separately. His mother died and left the applicant and his sister in indigent circumstances. After the completion of higher secondary educational course in March 1994, the applicant applied for appointment on compassionate grounds as Junior Assistant on 16.05.1994. The Tahsildar Vilavancode also certified that the family of the deceased Government Servant was living in indigent circumstances. After verifying the prescribed qualification as prescribed in the https://hcservices.ecourts.gov.in/hcservices/ Government Orders for the appointment of Junior Assistant on compassionate grounds, he was appointed by the District Educational Officer, Kuzhithurai as stated in his Rc.No.9576/A1/95, dated 28.11.1995. The applicant is working continuously since the date of his appointment. 4.It is submitted that while the proposals for regularising the services of the applicant was submitted by the District Educational Officer, Kuzhithurai to the Director of School Education, Chennai on his letter No.161357/J3/97, dated 20.04.1998 he stated that the appointment of the applicant was irregular since his father was working in Kottabomman Transport Corporation at 6the time of death of his mother and to explain why the appointment should not be cancelled. The explanation of the applicant was submitted through the Headmaster, Government High School, Melpuram and it was submitted to the Director of School Education vide Rc.No.9576/A1/95, dated 26.06.1998 of the District Educational Officer, Kuzhithurai." 12.In these circumstances, I am of the considered view that the respondents are not justified in disturbing the compassionate appointment provided to the petitioner, particularly, taking into account the aforesaid Paragraphs 3 & 4 from the counter affidavit. 13.Further, as rightly contended by the learned counsel for the petitioner, in an identical circumstances, this Court, in the Judgment reported in (2008) 5 MLJ 1322, in Paragraphs 17&18, held that taking into account of the indigent circumstances, when the respondents provided compassionate appointment, the same could not be disturbed later. Those Paragraphs 17&18 are extracted hereunder; "17.Considering the submissions made by the learned counsels appearing for the parties concerned, this Court is of the considered view that the appointment of the petitioner as a BT Assistant on compassionate grounds, by an order, dated 05.11.1990, cannot be nullified by the subsequent impugned order of the third respondent, dated 21.3.2006. The appointment of the petitioner, on 5.11.1990, was based on the particulars given by the petitioner and it has not been shown by the respondents that the particulars given by the petitioner are wrong or misleading. There has been no misrepresentation by the petitioner with regard to the relevant details, which were necessary for the respondents to pass the order appointing the petitioner. When it was found by the respondents, based on the certificate issued by the Tahsildar, that the petitioner and the members of his family were in indigent circumstances and when his appointment had been made,based https://hcservices.ecourts.gov.in/hcservices/ on such finding it may not be open to the respondents at this point of time. The show cause noticed, dated 31.10.1997, has been issued after nearly 7 years from the date of his appointment. Further, it has not been shown by the respondents that the appointment is illegal or contrary to the established scheme relating to appointment on compassionate grounds. When the Chief Educational Officer had recommended the case of the petitioner for appointment on compassionate grounds by his proceedings, dated 29.5.1990 and the petitioner's appointment had been made by the proceedings, dated 5.11.1990, the respondents would be estopped from raising the plea of disqualification of the petitioner for such appointment after a lapse of 7 long years. Further, it is seen from the records available that this Court, by an interim order, dated 27.4.2006, made in W.P.M.P. No.11361 of 2006 in W.P.No.10040 of 2006, had granted an order of interim stay of the impugned order of the third respondent, dated 21.3.2006, removing the petitioner from service. 18.In such circumstances, the impugned order of the third respondent, dated 21.3.2006, removing the petitioner from service is set aside and the first respondent is directed to consider and pass appropriate orders on the proposal given in RC No.2186/C4/94, dated 1.6.1994, submitted by the Director of School Education, on merits and in accordance with law, within a period of 12 weeks from the date of receipt of a copy of this order." 14.The decision of the Honourable Apex Court reported in 2003(9) Supreme Court Cases 129 is also applicable to the facts of this case. In the said case, the concerned person was irregularly appointed on compassionate basis and he continued in service for five years. Paragraph 4 from the aforesaid Judgment is extracted hereunder. "It is unnecessary in this case to examine either questions of law or fact arising in the matter. Suffice to say that the respondent has been appointed now and has been in service for more than five years. We do not think, it would be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood." 15.Likewise, the judgment of the Honourable First Bench of this Court in M.Suyambukani v. Thayammal and Others reported in (2005) 2 MLJ 127 also applies to the facts of this case. Paragraph 9 of the said Judgment is extracted hereunder. "There is no dispute that Suyambukani was appointed as a helper in the respondent-company by order dated https://hcservices.ecourts.gov.in/hcservices/ 22.12.1990. Thus, she has been working for more than 14 years with the company. In these circumstances, we are of the opinion that it will not be in the interest of justice to disturb her appointment after such a long period. Writ jurisdiction is a discretionary jurisdiction, and in our opinion, this is not a fit case for the exercise of discretionary jurisdiction under Article 226 of the Constitution vide, Chandra Singh v.State of Rajasthan, J.T. (2003) 6 SC 20, Ramniklal N.Bhutta v. State of Maharashtra, (1997) 1 SCC 134, (vide para 10). it is well settled that writ jurisdiction is discretionary jurisdiction. Hence, even if there is violation of law, the High Court is not bound to interfere. The Supreme Court in Chandra Singh v. State of Rajasthan, held as under:- "issuance of a writ of certiorari is a discretionary remedy (See Champalal Binai v. C.I.T. West Bengal, AIR 1970 SC 645). The High Court and consequently this Court while exercising its extraordinary jurisdiction under Article 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant." In our opinion, this is not a fit case for exercise of discretion under Article 226 of the Constitution." 16.All the relevant facts were taken note of by the second respondent while giving compassionate appointment. The entire problems arose only when the proposals for regularising of services of the petitioner submitted by the second respondent to the first respondent. The impugned order was issued only at the insistence of the first respondent, particularly when the first respondent threatened the second respondent for disciplinary action against the second respondent for issuing compassionate appointment to the petitioner. Taking into account the aforesaid facts, the Tribunal has granted an Interim Order and the petitioner continues in service till date. He has now rendered more than fourteen years of service. For the above said reasons, this writ petition is allowed and the order of the second respondent in Na.Ka.No.9576/A1/95, dated 21.05.1998, is quashed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ mps To 1.The Director of School Education, College Road, Chennai-600 006. 2.The District Educational Officer, Kuzhithurai, Kanyakumari District. +1cc to Govt. Pleader Sr 1729 +1cc to Mr.P.Rajendran, Advocate Sr 1304 JP(CO) km/22.1. W.P.No. 35635 of 2006 https://hcservices.ecourts.gov.in/hcservices/