IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20 / 09 / 2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.23561 OF 2009 A.Sakila Banu ... Petitioner Versus 1.The Chairman Tamil Nadu Electricity Board Anna Salai, Chennai – 600 002. 2.The Chief Engineer (Personnel) (Administrative Branch) Tamil Nadu Electricity Board No.800, Anna Salai, Chennai – 600 002. 3.The Superintending Engineer (Administration – I) Mettur Electricity Distribution Circle Mettur Dam – 636 401. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, to call for the records from the file of the 2nd respondent herein with regard to the impugned letter in 031637/198/G64/G642/2009-2 dated 07.08.2009 and quash the same and direct the respondents to give appointment to the petitioner on compassionate grounds. For Petitioner : Mr.S.Prabhu For Respondents : Mr.B.Sekar O R D E R The petitioner's father was employed as a Wireman in the office of the Junior Engineer, O&M, Aniyapuram Section, Paramathy Velur Division in Tamil Nadu Electricity Board (shortly "TNEB") under the control of the third respondent. It is stated that while he was in service on 20.08.1994, he fell down from the lamp post and died on the spot. However, at another place, it is stated that he died due to heart attack. Whatever it be, it is not in dispute that the petitioner's father died on 20.08.1994 while he was in service. https://hcservices.ecourts.gov.in/hcservices/ The petitioner's mother pre-deceased him. The petitioner studied upto 4th standard. The petitioner's elder sister got married to a dumb person, due to family circumstances. The petitioner stated that after the death of her father, there is nobody else to take care of her. 2.In those circumstances, the petitioner made an application on 10.06.1997 seeking compassionate appointment. The third respondent sent a letter dated 26.06.1997 directing the petitioner to produce the following certificates: "1.thhpR rhd;wpjH; efy; 2 2.kuz rhd;wpjH; efy; 2 3.thhpRjhuhpd; fy;tpr; rhd;wpjH; efy; 2 4.,ju thhpRfsplkpUe;J Ml;nrgid rhd;wpjH; jyh ,uz;L efy;fs; 5.mira[k; kw;Wk; mirah brhj;Jf;fs; Fwpj;Jk; mtw;wpd; Mz;L tUkhdk; vt;tst[ vd;w rhd;wpjH; j';fs; gFjpf;Fl;gl;l tl;lhl;rpahplkpUe;J - 2 efy;fs; 6.j';fspd; je;ij thhpaj;jpy; gzpahw;wpajw;fhd mj;jhl;rp 7.j';fspd; FLk;gk; tWikf;nfhl;ow;F fPH; cs;sjw;fhd tl;lhl;rpahplkpUe;J rhd;W 8.,we;j gpwF j';fSf;F fpilj;j epjp fzf;F tptu';fs; VnjDk; , Ug;gpd; 9.rhjp rhd;wpjH;" 3.Accordingly the petitioner submitted the required certificates. However, the third respondent passed an order dated 26.09.2001 stating that the petitioner did not possess 8th standard for the post of Office Helper and hence, she could not be given appointment on compassionate ground. The petitioner again made a request to the third respondent to reconsider their decision. In turn, the third respondent passed an order dated 18.05.2002 reiterating the stand that was taken in their earlier order dated 26.09.2001. 4.Hence, the petitioner underwent private studies and appeared for 8th standard examination during December 2002. She passed in two subjects out of five subjects i.e., she passed in https://hcservices.ecourts.gov.in/hcservices/ Tamil and Science and failed in English, Mathematics and Social Science. 5.Again, the petitioner appeared for 8th standard examination in December 2003 in the failed subjects. This time, she passed in English and failed in Mathematics and Social Science. Therefore, the petitioner requested the respondents to relax the educational qualification and to give her employment on compassionate ground. 6.However, the third respondent passed an order dated 30.08.2006 stating that unless the petitioner passed in 8th standard, she could not be given appointment on compassionate ground. 7.Therefore, the petitioner appeared for the failed subjects in December 2006 and passed in Social Science, but again failed in Mathematics. Ultimately, she passed Mathematics in December 2008. That is, she passed 8th standard in December 2008. The petitioner requested for compassionate appointment, as she passed 8th Standard as required by the third respondent. 8.The petitioner also sent a representation to the Honourable Chief Minister, Tamil Nadu seeking compassionate appointment in TNEB. The third respondent sent a reply dated 16.06.2009 stating that since the petitioner did not pass 8th standard, she could not be considered for compassionate appointment as communicated in the earlier orders. 9.The petitioner also made a representation dated 20.06.2009 stating that the respondent – TNEB relaxed the educational qualification in respect of one Dhanalakshmi by issuing (Per.) B.P.(FB) No.40, Administration Branch, dated 06.09.2007. The petitioner also stated therein about the Service Regulations that provides for appointment of Mazdoor for the persons, who possess only 4th standard as educational qualification. It is also stated therein that Contract Labourers were absorbed without insisting educational qualification by B.P.No.17(F3) Secretariat Branch, dated 28.04.1999 and B.P.Ms.(F3) No.38, Administrative Branch, dated 23.05.1986. 10.Further, the petitioner made a representation dated 13.07.2009 in reply to the letter dated 16.06.2009 of the third respondent requesting the respondent – TNEB to give her employment on compassionate ground, as she passed 8th standard. However, the second respondent passed the impugned order dated 07.08.2009 stating that the petitioner failed to pass 8th standard, within three years from the date of death of his father. https://hcservices.ecourts.gov.in/hcservices/ 11.The petitioner has filed present writ petition to quash the aforesaid order dated 07.08.2009 of the second respondent and for a consequential direction to the respondents to give her appointment on compassionate ground. 12.Notice of motion was ordered on 18.11.2009. 13.Heard Mr.S.Prabhu, learned counsel for the petitioner and Mr.B.Sekar, learned counsel for the respondents. 14.The learned counsel for the respondents made his submissions based on instructions. 15.The learned counsel for the petitioner submitted that it is true that the qualification of 8th Standard has been prescribed for the post of Office Helper in the Tamil Nadu Electricity Board Service Regulations framed under the Electricity (Supply) Act, 1948. But the same Regulations provide for pass in 4th Standard as the required qualification for certain posts and requires only ability to read and write Tamil for certain posts. According to him, even the ability to read and write Tamil is not required for compassionate appointment for certain posts. 16.The learned counsel for the petitioner brought to my notice the relevant Regulations relating to the qualification prescribed. 17.The learned counsel for the petitioner relied on the judgment of a Division Bench of this Court in SUPERINTENDING ENGINEER, MADURAI ELECTRICITY DISTRIBUTION CIRCLE, MADURAI VS. V.JAYA reported in 2007 (6) MLJ 1011, wherein this Court directed the respondent – TNEB to provide compassionate appointment, in similar circumstances. 18.The learned counsel for the petitioner also relied on the proceedings of the TNEB in (Per.) B.P.(F.B) No.52 (Administrative Branch) dated 01.11.2007; (Per) B.P.(F.B) No.1 (Administrative Branch) dated 22.02.2008 and (Per.) B.P.(F.B) No.10 (Administrative Branch) dated 17.04.2008 granting relaxation in the matter of educational qualification to the widows of employees by the respondent – TNEB for granting compassionate appointment. He also relied on another judgment of this Court in S.CHANDRA VS. THE CHIEF ENGINEER (PERSONNEL), TAMIL NADU ELECTRICITY BOARD reported in 1999 (III) CTC 38. 19.The learned counsel for the petitioner submitted that since the petitioner passed 8th Standard, the respondent - TNEB ought to have given her compassionate appointment. https://hcservices.ecourts.gov.in/hcservices/ 20.On the other hand, the learned counsel for the respondents submitted that since the petitioner did not pass 8th Standard within a period of three years from the date of death of her father, she is not entitled to compassionate appointment. According to him, though the petitioner made an application within three years, she did not possess the qualification of 8th Standard at that time and hence, her claim for compassionate appointment was not considered. 21.The learned counsel for the respondents submitted that the pass in 8th Standard after three years by the petitioner, could not help her in securing compassionate appointment. Hence the impugned order is perfectly justified. He relied on the judgment of a Division Bench of this Court in M.RAJU VS. UNION OF INDIA reported in 2009 (4) MLJ 237 in this regard. 22.Further, the learned counsel for the respondents submitted that the Note-5 to Annexure – III referred to by the learned counsel for the petitioner is not applicable to compassionate appointment. 23.I have considered the submissions made on either side. 24.As rightly contended by the learned counsel for the respondents, the educational qualification prescribed for the post of Office Helper is 8th Standard. However, the petitioner never sought for the post of Office Helper. She wanted only compassionate appointment in any post. Annexure – III to the Regulations framed pursuant to Regulation 94 prescribes the qualification of 8th standard for Office Helper and the same is extracted hereunder: ANNEXURE – III Post Qualification (1) (3) Office Helpers (i) Must not have completed 30 years of age: (ii) Must have passed III Form or VIII Standard (iii) Must be able to ride a bicycle if the appointment is to the post of Officer Helper in an Office to which a bicycle is supplied by the Board. https://hcservices.ecourts.gov.in/hcservices/ (iv) Possession of knowledge in Tamil:- (a) Persons appointed by direct recruitment shall be deemed to possess an adequate knowledge in Tamil, if they have passed the following tests conducted by the appointing authority concerned: 1.Dictation in Tamil for about 10 minutes - 60 Marks 2.Reading a portion in Tamil - 40 Marks ------------- Total - 100 Marks ------------- Provided that the tests shall be conducted in the Standard of III Form or VIII Standard. (b) A person shall be deemed to have passed the tests prescribed in Sub-Rule (a) if he obtains 50 per cent or more marks in aggregate. He should pass the said test within the period of probation failing which he shall be discharged from Service, provided that notwithstanding anything contained in Sub-Regulation (4) of Regulation 91 of Tamil Nadu Electricity Board Service Regulations, the period of his probation may be extended upto four years from the date of appointment in order to enable him to pass the said test. Note: The following categories of persons shall, however, be exempted from possession of the qualification in item (ii) above:- (i) Ex-Servicemen (ii) Existing incumbents of Office Helpers (This will not include persons who are not regularly holding the post of Office Helpers)" 25.But the Regulations provide for pass in 4th Standard and ability to read and write in Tamil for certain posts. In this regard, the learned counsel for the petitioner heavily relied on Note-5 to Annexure – III of the Regulations. The details of posts that require only IV standard and ability to read and write in Tamil are extracted hereunder as per Annexure – III of the Regulations. https://hcservices.ecourts.gov.in/hcservices/ "94.Quallifications: (a) No person shall be eligible for appointment to the post and by the method mentioned in Annexure – III, unless he possesses the qualification specified therein. ANNEXURE – III Post Qualification (1) (3) Groundsman 'A' Pass in IV Standard with one Groundsman 'A' year practical experience in the type of work concerned. Lascar, Grade I Lascar, Grade II Vehicle Helper Nursing Orderly Mazdoor, Grade I Pass in IV Standard with one Mazdoor, Grade II year practical experience in the type of work concerned. Coal Mazdoor -do- Laboratory Helper -do- Messenger Boy -do- Gurkha Watchman -do- Matty-cum-Watchman -do- Watchman Ability to read and write Tamil Gardener -do- Sweeper -do- Sanitary Worker -do- "Note-5: The qualification of "Ability to read and write Tamil" prescribed for the posts of Watchman, Gardener, Sweeper and Sanitary Workers, will not be applicable to the appointment of dependents of employees who die in harness." 26.As rightly contended by the learned counsel for the petitioner 18,000 contract workers, who were not qualified, were absorbed as Helpers pursuant to the report dated 11.02.1991 of the Honourable Mr.Justice V.Khalid, former Judge of the Honourable Supreme Court, without age restriction and without reference to educational qualification. The contract labourers numbering 9095 employed in all thermal power stations were absorbed as Helpers by the respondent-Board in B.P.(FB) No.17, Secretariat Branch, dated 28.04.1999, without age restriction and without reference to educational qualification and the contract workers employed in Hydro Generation Circles, Basin Bridge and Narimanam Gas Turbine Stations, https://hcservices.ecourts.gov.in/hcservices/ numbering 1002 were absorbed as Helpers, though most of them were not qualified to hold the post, by the respondent Board in B.P.(FB) No.22, Secretariat Branch, dated 14.05.1999 without age restriction and without reference to educational qualification. 27.Therefore, it is very clear that the respondents, without applying their mind, rejected the request of the petitioner for compassionate appointment on the ground that the petitioner did not possess the qualification of 8th Standard. The Regulations makes it very clear that for the post of Office Helper alone, the candidate should possess 8th Standard as educational qualification. But for the post of Gardener, Sweeper and Sanitary Worker, no educational qualification is prescribed and the only required qualification is ability to read and write in Tamil. For compassionate appointment, even the said qualification is dispensed with. 28.Note -5 to Annexure – III of the Regulations makes it very clear that for giving appointment as Gardener, Sweeper and Sanitary Worker, the dependents of the deceased employee need not have the qualification of ability to read and write in Tamil. But the learned counsel for the respondents submitted that Note-5 to Annexure – III of the Regulations is not applicable to the dependents of the deceased, who die in harness, by reading in isolation the words "will not be applicable to the appointment of dependents of employees who die in harness" in Note-5. Such an interpretation is absurd. Note–5 has to be read in its entirety. Note-5 makes it clear that the qualification of ability to read and write in Tamil prescribed for the post of Gardener, Sweeper and Sanitary Worker will not be applicable to the dependents of the deceased employee, who die in harness. 29.Further, as rightly contended by the learned counsel for the petitioner, the respondents granted exemption for educational qualification to some others, while granting compassionate appointment, by issuing the following proceedings. (i) (Per.) B.P.(F.B) No.52 (Administrative Branch) dated 01.11.2007 (ii) (Per) B.P.(F.B) No.1 (Administrative Branch) dated 22.02.2008 (iii) (Per.) B.P.(F.B) No.10 (Administrative Branch) dated 17.04.2008 The relevant portions of the aforesaid proceedings are extracted hereunder: (Per.) B.P.(F.B) No.52 (Administrative Branch) dated 01.11.2007 https://hcservices.ecourts.gov.in/hcservices/ "Tmty.R.Muthulakshmi, W/o. (Late) K.Selvam, who died by electrocution while attending the Board's duty, applied for employment assistance on compassionate grounds. But her request has been rejected by the Superintending Engineer / Mettur Electricity Distribution Circle since she has not passed 8th Std. She has further reported that she is having 3 minor children and now studying 8th Std. Privately. As the period of 3 years from the date of death of her husband to be lapsed on 17.10.2007, she has requested for another two years time to complete the study and in the meantime she may be given an appointment as Mazdoor II Grade (or) T.C.L. 2.After careful consideration, the Board is hereby ordered that the employment assistance on compassionate grounds be provided to Tmty.R.Muthulakshmi, W/o (Late) K.Selvam, Helper by relaxation of the regulation providing a pass in 8th Std., in favour of Tmty.R.Muthulakshmi, W/o (Late) K.Selvam, Helper (died on 17.10.2004 due to electrocution while on service) as a special case and she may be appointed as "MAZDOOR" (Trainee) till she passes 8th Std., and after she passes 8th Std., she may be appointed as Office Helper, after satisfactory completion of two years of training period." (Per) B.P.(F.B) No.1 (Administrative Branch) dated 22.02.2008 "Tmty.S.Parvathy, W/o. (Late) C.Sundaram, Helper (who died while attending Board's duty by electrocution) applied for employment assistance to her second son Thiru.S.Kumar on compassionate grounds. But her request has been rejected by the Superintending Engineer / Mettur Electricity Distribution Circle stating that she has not applied for employment assistance on compassionate grounds within three years period from the date of death of her husband. However, she has represented frequently requesting compassionate appointment stating that due to her poor family circumstances and also she had two male children aged about 17 years and 12 years old at the time of death of her husband and her elder son has committed suicide himself on 20.11.2000 and there is no revenue except the pensionary benefits of her deceased https://hcservices.ecourts.gov.in/hcservices/ husband. Therefore, she has requested employment assistance to her second son aged about 18 years on 10/2006 and possessing X (failed) qualification. 2.After careful consideration, the Board is hereby approved that the employment assistance on compassionate grounds be provided to Thiru S.Kumar, S/o.(Late) C.Sundaram, Helper by relaxation of the condition of submitting the application for providing employment assistance within 3 years in favour of Thiru.S.Kumar, S/o. (Late) C.Sundaram as a special case and he may be appointed as Helper/Trainee after receipt of satisfactory report from the Superintending Engineer concerned." (Per.) B.P.(F.B) No.10 (Administrative Branch) dated 17.04.2008 "Tmty.V.Vadivu, W/o. (Late) P.Venkateswaran, Helper, who died in an accident while going back from work had applied for employment assistance. But her request was rejected as she does not possess the minimum educational qualification of VIII Std. Pass. She has again represented after passing 8th Std. During 2/2006. Again her request was rejected by the Superintending Engineer / Mettur Electricity Distribution Circle, stating that her request is belated one. Therefore, she has now requested employment assistance to herself stating that her husband died while in job and she had two minor children and belongs to S.C. Community and her family is in very indigent condition, for which she has requested job assistance by relaxation of rules under compassionate grounds. 2.After careful consideration the Board is hereby ordered to Tmty.V.Vadivu, W/o. (L) P.Venkateswaran, Helper (who died while in service), Mettur Electricity Distribution Circle as a special case by relaxation of the condition of submission of application for providing job assistance within 3 years." 30.When the respondents relaxed the educational qualification in the case of others, the respondents cannot deny the https://hcservices.ecourts.gov.in/hcservices/ same to the petitioner. The petitioner is both fatherless and motherless. Her only elder sister has married to a dumb person. When the respondents stated that the petitioner should pass 8th Standard, she took various attempts and ultimately, passed 8th Standard. When she passed 8th Standard, the respondents could not say that she passed 8th Standard after three years from the date of death of his father. Her father served in the lower post in the TNEB and the petitioner happened to be a drop out. When the circumstances forced her, she took it as a challenge and underwent private studies and passed 8th Standard with great difficulties. The same was not appreciated by the respondents and on the other hand, she was cruelly denied employment on the ground that she passed 8th Standard after three years from the date of death of his father, while the respondent – TNEB chose to relax the qualification of 8th standard in the case of others, as stated above. 31.The judgment of a Division Bench of this Court reported in 2007 (6) MLJ 1011, relied on by the learned counsel for the petitioner squarely applies to the facts and circumstances of this case and the relevant paras from the said judgment are extracted hereunder: "10.But, here is the case where a widow of an employee of the respondent Board has approached the Board as early as on 15.11.2000, i.e. within 13 months from the date of death of her husband; but her request was turned down on the ground that she lacks the minimum educational qualification, namely a pass in 8th standard. Hence, she also completed her 8th standard and again renewed her request. But, this time the request was rejected on the ground that she did not apply within three years from the date of death of her husband, which necessitates this Court to interfere in the matter as the authorities obviously overlooked the very intention behind the provisions made for appointment on compassionate ground on the death of the employee concerned i.e. to enable the family to get over the sudden financial crisis Punjab National Bank v. Ashwini Kumar Taneja AIR 2004 SC 4155 : (2004) 7 SCC 265 : 2004 - III – LLJ – 536. The exception to rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and it is based on the doctrine of Legitimate Expectation and it is based on the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned Umesh Kumar Nagpal V. State of Haryana and Others (supra). https://hcservices.ecourts.gov.in/hcservices/ 11.With this background, we find that the respondent had failed to adopt Good Samaritan approach ignoring the fact that she was constantly making a request for appointment to the suitable post, even if it is the lowest in the cadre, as early as from 15.11.2000 i.e. within 13 months from the date of death of her husband, which has not been dealt with in proper perspective as observed above." 32.On the other hand, the judgment of a Division Bench of this Court reported in 2009 (4) MLJ 237 relied on by the learned counsel for the respondents has no application to the facts and circumstances of this case. In the said case, the petitioner therein made application beyond the period of three years. Here, the petitioner made application within three years and it has been stated that the application was not considered on the ground that she did not possess 8th Standard. Hence, the judgment relied on by the learned counsel for the respondents is not applicable to the facts and circumstances of this case. 33.In view of the aforesaid reasons, the impugned order dated 07.08.2009 of the second respondent is quashed and the writ petition is allowed. The respondents are directed to provide compassionate appointment in any suitable post to the petitioner, within a period of six weeks from the date of receipt of a copy of this order. No costs. TK Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Chairman Tamil Nadu Electricity Board Anna Salai, Chennai – 600 002. https://hcservices.ecourts.gov.in/hcservices/ 2.The Chief Engineer (Personnel) (Administrative Branch) Tamil Nadu Electricity Board No.800, Anna Salai, Chennai – 600 002. 3.The Superintending Engineer (Administration – I) Mettur Electricity Distribution Circle Mettur Dam – 636 401. + 1 cc to Mr. S. Prabhu, Advocate SR No.69097 ORDER MADE IN W.P.NO.23561 OF 2009 BK(CO) SR/28.9.2010 https://hcservices.ecourts.gov.in/hcservices/