IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.08.2011 CORAM THE HONOURABLE Mr.JUSTICE D.HARIPARANTHAMAN W.P.No.6082 of 2011 R.Mohan Sundar ... Petitioner Vs 1.The Principal Secretary to Government, Health and Family Welfare Department, Chief Secretariat, Chennai-600 009. 2.The Director of Medical Education, O/O.The Directorate of Medical Education, 162, EVR Periyar Salai, Kilpauk, Chennai-600 010. 3.The Director and Superintendent, Regional Institute of Ophthalmology and Government Ophthalmic Hospital, Egmore, Chennai-600 008. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus, calling for the records in No.85026/E2/4/2006, dated 30.06.2010 of the second respondent and quash the same as illegal and unconstitutional and consequently, directing the respondents to appoint the petitioner on compassionate grounds. (Prayer amended as per order dated 31.03.2011 by NPVJ in M.P.No.1 of 2011 in W.P.No.6082 of 2011) For Petitioner : Mr.V.Arunagiri For Respondents : Mr.S.Gunasekaran, Government Advocate for Mr.M.C.Swamy, Special Government Pleader https://hcservices.ecourts.gov.in/hcservices/ ORDER With consent of parties, the writ petition itself is taken up for final disposal. 2.The Prayer in the writ petition is for a writ of Certiorarified Mandamus to quash the order of the second respondent dated 30.06.2010 and to direct the respondents to appoint the petitioner on compassionate grounds. 3.The petitioner's father was employed as a Group 'D' employee in the third respondent Hospital. He died on 23.06.1996 while he was in service. The petitioner made an application on 04.10.1996. The same was rejected by the second respondent vide order dated 30.06.2010 on the ground that on the date of his father's death, the age of the petitioner was 34 years 5 months and 1 day, while the minimum age limit in respect of son for compassionate appointment prior to 19.01.1998 was 30 years. 4.The petitioner has filed the present writ petition seeking to quash the order dated 30.06.2010 of the second respondent and also sought for a direction to provide him compassionate appointment. 5.According to the petitioner, the impugned order is contrary to law and in violation of the letter No.46571/n1/82/83, Labour and Employment Department, dated 24.11.1982 of the Tamil Nadu Government. Paragraph 2 of the said letter is extracted hereunder. "2.The Government have examined the above points and issue the clarification as follows: i)The dependants of deceased Government servants (belonging to Scheduled Caste/Scheduled Tribe) can be appointed on compassionate grounds in relaxation of age rule, even if they exceed the age limit of 30/40 years on the date of death of Government Servant taking into account the age limit, prescribed in the special rules, when it is more beneficial to the individual. ii)The upper age limit of 40 years shall not apply to the widowers for the purpose of appointment in compassionate grounds. They shall be eligible for appointment upto the age limit of 30 years." According to the petitioner, since he belongs to Scheduled Caste the second respondent ought to have granted relaxation in respect https://hcservices.ecourts.gov.in/hcservices/ of age in the matter of compassionate appointment and the petitioner ought to have been provided compassionate appointment. 6.The learned counsel for the petitioner heavily relied on the Division Bench judgment of this Court in W.P.No.744 of 2003, dated 27.10.2005 in C.Jayapal v. The Director of Medical Education, Chennai-10 and Others. Paragraphs 5 to 9 of the said Judgment are relevant and the same are extracted hereunder: "5. We have already observed that the applicant belongs to Scheduled Caste community. The Government of Tamil Nadu, Labour and Employment Department, by letter No.46571/N1/82-3 dated 24.11.1982, clarified the question of age relaxation in the case of Scheduled caste and Scheduled Tribe as under:- "2. The Government have examined the above points and issued the clarifications as follows: (i) The dependants of deceased Governments servants (belonging to Scheduled Caste / Scheduled Tribe) can be appointed on compassionate grounds in relaxation of age rule, even if they exceed the age limit prescribed in the Special Rules, when it is more beneficial to the individual. " Though the existence of the said instruction is not disputed, the fact remains, the respondents have not considered the relevant fact that in the case of appointment on compassionate ground, the age limit prescribed in the special Rules can be relaxed if applicant belongs to SC/ST. As per G.O.No.1579 dated 21.07.1981, the maximum age as far as son or daughter is concerned is 30 and widow of the deceased is 31 years, in the case of employment on compassionate ground. In the letter dated 11.03.1982, the Government of Tamil Nadu has clarified that on the date of death of Government servant, the age of son or daughter/widow should not be more than 30/40 years. In G.O.Ms.No.155 L & E dated 16.7.1993, in para-3, it is stated that when a dependent of the family is employed, the factors to be ascertained are, whether he is regularly employed and is already supporting the family; if the person was employed even before the death of the Government servant and was living separately without extending any help to the family, then the case of other eligible dependent should be considered. https://hcservices.ecourts.gov.in/hcservices/ 6. In G.O.(I).No.785, dated 30.12.1996 issued in the case of one R.R.Chandrasekaran aged 38 years, after relaxing the age rule, he was appointed on compassionate ground as Junior Assistant in the Tamil Nadu Ministerial Service, Madurai District Revenue Unit. The said Government Order is available at page-13 of the typed-set of papers filed by the writ petitioner. 7. In G.O.Ms.No.9 L & E. Dept., dated 19.1.1998 the upper age limit in so far as son or daughter is concerned has been increased to 35 from 30. Inasmuch as the representation of the applicant was not considered by the Dean, Madurai Medical College and the Director of Medical Education, the applicant submitted a petition to the Hon'ble Chief Minister on 21.12.1998 and reminder on 6.1.1999 wherein he reiterated that though his brother is employed, he is living separately and he is not contributing anything to his mother and others. He also pointed out that as per the Government Letter No.2563/N1/82-2, dated 11.3.1982, on the date of death of his father, he was aged about 24 years only. As rightly stated by the learned counsel for the petitioner, the respondents ought to have considered the same. The proceedings of the Dean, Madurai Medical College dated 18.12.1998 shows that the applicant was asked to submit original legal heir certificate, the certificate relating to education, no objection certificate from other legal heirs and eligibility certificate from the officer concerned in original showing that the family is living below the poverty line. 8. It is the case of the petitioner that he submitted all the required details along with a letter, a copy of which is found at page Nos.21 and 22 of the typed-set of papers which shows that he complied with all requirements as required by the Dean, Madurai Medical College. It is seen that several reminders were also sent thereafter. However, by letter dated 19.11.2001, the Dean, Madurai Medical College informed the applicant, C.Jeyapal that since his father expired on 6.1.1988 and the concession giving the enhancement of age would come into force only from the date of https://hcservices.ecourts.gov.in/hcservices/ issue of the G.O.Ms.No.9, Health and Family Welfare Department, that is, from 19.1.1998, he is not eligible for the concession extended in the G.O., and rejected his application. As rightly pointed out, since the deceased Chellasamy died while in service on 6.1.1988, any one of the family members is eligible to be considered for appointment on compassionate ground. It is also not in dispute that on the date of application, the petitioner Jeyapal satisfied the age criterion and the reason for rejecting his request for appointment was that his elder brother is employed and the family is depending on him. Even in the application for appointment and the Proforma it is specifically stated that though the first son of the deceased is employed, his employment was prior to the death of the deceased and after his marriage he is living separately and he is not contributing anything to the deceased family. Other requirements, such as, community certificate, no objection letter from other family members, etc. were furnished by the petitioner to the authority concerned. Though at the initial stage the petitioner had not enclosed certificate to the effect that his elder brother is living separately from the family, it is not in dispute that the petitioner asserted the same in his application to the authority concerned as well as in the representation to the Hon'ble Chief Minister. 9.At the time of arguments, learned counsel appearing for the petitioner has produced a copy of the Certificate issued by the Tahsildar, Madurai South, dated 26.11.1998 which amply shows that except Rajkumar, the elder son of the deceased, no one in the family of the deceased is employed and the elder son is living away from the family of the deceased and he is living at Tirupattur. The said Certificate reads as under: In the light of the above information and of the fact that the petitioner being a Scheduled Caste is eligible for age relaxation as per the Government letter dated 24.11.1982 and also of the fact that his elder brother though employed, is living separately and he is not contributing anything to the family of the deceased, we are of the view that the respondents 1 and 2 ought to https://hcservices.ecourts.gov.in/hcservices/ have considered the case of the petitioner and provided employment on compassionate ground to mitigate the sufferings of the deceased family. All the above mentioned relevant facts have not been considered by the Tribunal which has committed an error in dismissing the application filed by the petitioner. Under these circumstances, the impugned order of the Tribunal dated 18.6.2002 made in O.A.No.1844 of 2002, the order of the Director of Medical Education, first respondent herein, dated 6.1.1999 and the order of the Dean, Madurai Medical College, second respondent herein, dated 19.11.2001 are quashed and a direction is issued to the respondents, particularly, to the second respondent to appoint the petitioner/applicant in any one of the vacancies depending on his qualification on compassionate ground and if no suitable vacancy is available for the present, his name shall be kept in wait list and he shall be given preference in the next vacancy. The writ petition is allowed with the above direction. No costs. 7.This Court quashed the impugned order refusing to grant compassionate appointment. That case relates to a Scheduled Caste candidate, wherein the Division Bench has directed the second respondent therein to provide employment on compassionate ground by granting necessary age relaxation. 8.As rightly contended by the learned counsel for the petitioner, in view of G.O.Ms.No.9, Labour and Employment Department, dated 19.01.1998, the upper age limit was enhanced from 30 to 35 years. Furthermore, the Division Bench of this Court in Paragraph 6 of the Judgment has held that one person by name R.R.Chandrasekaran, who was 38 years, was given compassionate appointment by giving relaxation, as he belonged to Scheduled Caste. The said Judgment is squarely applicable to this case. 9.In view of the judgment of this Court dated 27.10.2005 passed in W.P.No.744 of 2003 directing the respondents to provide compassionate appointment, while quashing the impugned order therein, the impugned order dated 30.06.2010 of the second respondent is quashed and the second respondent is directed to provide compassionate appointment to the petitioner, within a period of six weeks from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 10.This writ petition is disposed of accordingly. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. mps/TK To 1.The Principal Secretary to Government, Health and Family Welfare Department, Chief Secretariat, Chennai-600 009. 2.The Director of Medical Education, O/O.The Directorate of Medical Education, 162, EVR Periyar Salai, Kilpauk, Chennai-600 010. 3.The Director and Superintendent, Regional Institute of Ophthalmology and Government Ophthalmic Hospital, Egmore, Chennai-600 008. 1 cc to MR.V.Arunagiri, Advocate, Sr. 52022 1 cc to Government Pleader, Sr. 52453 W.P.NO.6082 OF 2011 SP (CO) kk 26/8 https://hcservices.ecourts.gov.in/hcservices/