A. Rajesh vs The State of Tamil Nadu

R. Subbiah, J.—This writ appeal is directed against the order, dated 18.11.2010 passed in W.P(MD) No. 3413 of 2010 whereby the

learned single Judge dismissed the writ petition filed by the Appellant herein.

It is the case of the Appellant that his mother was working as Elementary Grade Teacher and she died while in service, on 04.06.1968 and his

father got himself separated from the family and married another woman by name C. Rajam on 15.01.1971. The Appellant was living under the

care of his grand mother and his father never treated him as his son. Even in the pension papers, Appellant''s father had given the name of his

second wife and his sons born through her, namely A. Dinesh and A. Mukesh as his legal heirs for family pension. While so, on 28.03.1996, the

Appellant was appointed on compassionate grounds following the guidelines prescribed in G.O. Ms. No. 155, dated 16.07.1993, which provides

for employment on compassionate grounds to those indigent dependants of Government servants who died in harness. The appointment of the

Appellant was on temporary basis subject to confirmation by the Government and the Appellant was posted at Thirunandhikarai, Kanyakumari

District.

While so, a show cause notice dated 15.10.1998 referring to the proceedings of the second Respondent dated 27.07.1998 was served on the

Appellant to submit his explanation as to why he should not be removed from service on the ground that the Appellant''s father was in Government

service at the time of death of his mother on 04.06.1968. Pursuant to the said show cause notice, the Appellant has submitted explanation dated

09.11.1998 to the second Respondent through proper channel stating that after the demise of his mother he was under the care of his grand

mother and he did not have the moral and financial support from his father. Therefore, G.O. Ms. No. 155, dated 16.07.1993 is very much

applicable to him.

The fourth Respondent once again served another show cause notice dated 03.09.1999 calling upon the Appellant to submit explanation. The

Appellant challenged the said show cause notice dated 03.09.1999 before the Tamil Nadu Administrative Tribunal by filing an application in O.A.

No. 5946 of 1999. The said O.A., was transferred to the Principal Bench of this Court and renumbered as W.P. No. 39961 of 2006 and the said

writ petition was disposed of on 06.08.2009 directing the Appellant to submit further explanation to the Director of School Education, the second

Respondent herein. Pursuant to the order passed by this Court, the Appellant sent a representation dated 02.12.2009 along with the earlier

explanation dated 09.11.1998. When the said representation was pending with the second Respondent, the fourth Respondent sent a show cause

notice dated 09.03.2010 calling upon the Appellant to submit explanation within three days stating that as to why his services should not be

terminated and stating that G.O. Ms. No. 155 is not applicable to him. Challenging the same, the Appellant filed the writ petition.

The learned single Judge, on consideration of entire materials and hearing the submissions of both sides dismissed the writ petition. Aggrieved

over the same, the present appeal is filed by the Appellant.

We have heard the submissions made by the learned Counsel on either side and perused the entire materials available on record.

The only question that arises for consideration in this appeal is, whether the show cause notice issued by the fourth Respondent dated

09.03.2010 i.e., after the lapse of 14 years from the date of joining the post by the Appellant, is sustainable?

Admittedly, the Appellant was appointed as Secondary Grade Teacher on 28.03.1996. On three occasions, show cause notices were issued to

the Appellant. The last one was issued on 09.03.2010 ie., after a lapse of 14 years from the date of joining service stating that G.O. Ms. No. 155,

dated 16.07.1993 which provides for employment on compassionate grounds to those indigent dependants of Government servants died in

harness cannot be made applicable in the case of the Appellant since his father was in Government service at the time of death of his mother. But it

is the explanation of the Appellant that after the death of his mother, his father married another woman namely, C. Rajam and he was living

separately; that the Appellant was under the care of his grand mother; and that he did not have the moral and financial support from his father.

Irrespective of the explanation given by the Appellant, it is to be seen whether the impugned show cause notice issued to the Appellant on

09.03.2010 i.e., after a lapse of 14 years, is sustainable or not.

At this stage, it would be useful to rely on the judgment reported in 2009 W.L.R. 593 in the case of bharathi v. the secretary to government and

Anr. delivered by one of us (N.PAUL VASANTHAKUMAR, J.,), wherein it has been held as follows:

In this case also the doctrine of acquiescence is applicable as the Respondents after verifying the Petitioner''s claim ordered appointment of the

Petitioner. There is no suppression of fact alleged against the Petitioner. If the impugned order is upheld the Petitioner''s right will be seriously

prejudiced. The Petitioner also settled in his life by virtue of the application given in the year 1992. It is also relevant to note that till date no one has

raised any doubt about the Petitioner''s adoption by the said late K. Sakkarai. So long as the said adoption is found valid, the Petitioner is entitled

to get all his rights as an adopted son. If the impugned order is upheld, the Petitioner''s right to livelihood guaranteed under Article 21 of the

Constitution of India will be affected. The Petitioner on being appointed on compassionate ground at the age of 23 years due to the death of his

adopted father, is entitled to continue in service till his date of superannuation unless he is removed from service due to any misconduct. On his

appointment, he get a right to get salary and by receiving his salary he earns his livelihood and on getting married, the salary becomes the livelihood

of his family and on termination of his service without any misconduct, not only his right to livelihood, but also the livelihood of his entire family is

affected. Thus, it is evident that by the action of the Respondents in terminating his service, the Respondents deprived the rights guaranteed under

Article 21 of the Constitution of India

The dictum laid down in the said judgment is clearly applicable to the facts of the case on hand. In the given case, admittedly, he was

appointed in 1986 and the order of removal was passed in 2008 i.e. after 22 years.

In W.P. No. 42656/2006 order dated 26.03.2009 one of us (N.P.V., J) set aside a similar order taking note of the continuation of the

Petitioner therein in service for more than 16 years by following the judgments of the Supreme Court. Paragraphs 5 to 7 read as follows:

Similar issue was considered by the Supreme Court in the decision reported in AIR 2002 SCW 2684 (Union of India and Ors. v. K.P. Tiwari).

Paragraph 4 and 5 of the judgment reads as follows:

It is necessary 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.

In that view of the matter, we decline to interfere with the order made by the High Court.

The appeals are accordingly dismissed.

Following the said Judgment, in W.P. No. 26858 of 2006, dated 17.7.2008, this Court allowed a similar writ petition wherein also the

compassionate appointment was cancelled on the ground that at the time of the death of the Petitioner''s mother, the Petitioner''s father was in

employment. In W.P. No. 35002 of 2006 also a similar issue was considered wherein the Petitioner was given compassionate appointment due to

the death of his father, even though Petitioner''s brother was in employment.

In the decision reported in 2009(2) SC 271 (D.M. Premkumari v. The Divisional Commissioner, Mysore Division and others) also a similar

issue arose with regard to the cancellation of community certificate. The Supreme Court in para 11 to 16 held as follows:

Having given our anxious consideration to the case pleaded by the learned Counsel for the parties, we are of the view, that it would not be

desirable to decide this case on merits. If we have to do it, we might have to tell the Appellant that she might have to go out of the employment.

This, in our opinion, would cause great hardship and injustice to the employment.

The Appellant, as we have noticed earlier, was appointed as a Primary School Teacher sometime in the year 1994. At the time of her

appointment, she had produced the caste certificate issued by the Tahsildar. She might not have understood the nuances of legal terminologies like

Group ''B'' Category, Group ''D'' Category etc., and therefore, now she is caught in the ""cobweb"".

The District Caste Verification Committee, which was asked to verify the Appellant''s claim, is justified in informing the appointing authorities

that, strictly going by the Government''s orders issued in 1986, the Appellant could not have claimed any reservation under Group ''B'' category.

We cannot find fault with their understanding of the Government Order. However, the learned Single Judge, may be taking a very sympathetic

view of the matter, has come to the rescue of a poor primary school teacher. The Division Bench has strictly applied the true interpretation that

requires to be placed while constituting Article 15(4) and Article 16(4) of the Constitution. Therefore, we cannot find fault with the orders passed

by the Division Bench of the Karnataka High Court also.

This Court, while entertaining the special leave petition, had granted the status-quo order. By virtue of that order, the Appellant is continuing to

work as a primary school teacher. At this stage, if the appointment of the Appellant is struck down and if she is now asked to seek employment

elsewhere, in our opinion, it would cause great hardship and injustice, for the reason by now she must have crossed the upper age limit for seeking

public employment and she may not get any employment anywhere. It is not the case of the other side also, that if the Appellant''s service is

continued, it would cause any prejudice to any other applicant.

""The law is merciless"", is a most frequently quoted saying. It has led people to mistakenly think that it is separated from feelings of

righteousness. We have become used to the understanding that such emotions as indignation, sorrow and compassionate should not exist in legal

cases, especially not in judiciary. This, in our view, is a misunderstanding. Judiciary has very strong sense of justice and it works to maintain social

justice and fairness. We hasten to add, judiciary does not believe in misplaced sympathy.

In view of the above discussion and keeping in view the peculiar facts and circumstances of the case, we dispose of this appeal, without going

into the merits of the case. In order to do completed justice, we direct the Respondents herein, not to dislodge the Appellant from the post of

primary school teacher. This order of ours shall not be treated as a precedent in any other case.

Even though, in the said decision it is stated that the said order shall not to be treated as a precedent in any other case, the facts in this case are

some what similar to the said case and the Petitioner having been allowed to continue for over 14 years in service and having regard to the fact that

the Petitioner is age barred to get any other appointment in Government services, I am of the view that the impugned order is liable to be set aside

on equitable grounds

It is also useful to refer to the judgment delivered by a Division Bench of this Court dated 03.11.2009 in W.A. No. 1559 of 2009 (V.

Balakrishnan v. The Joint Director of Agriculture, Tiruvannamalai and Ors.) (HLG, CJ (as he then was) and NPVJ) wherein the relevant paragraph

reads as follows:

We have noted the submissions of both the parties. We quite see the force in the submission of the learned Government Pleader.

Compassionate appointment is not meant for persons who do not in fact face the difficulty. It is meant to tide over the immediate difficulty of the

family. For a moment, we do not approve the manner in which he has obtained the employment. At the same time, it is also to be seen that in the

instant case nearly after four years, the State Government has moved to cancel the appointment. Nothing is placed on record as to what action was

taken against the officers, who are responsible for the disputed appointment and delayed action on the part of the Government. Almost similar facts

were there in the two matters which have been referred herein in the sense that the persons were sought to be removed after passing of good

number of years. Besides, by now, nearly 15 years have gone since the time the Appellant has been initially appointed, and, therefore, we do not

think that it will be fair to disturb his employment

The facts of the said judgment is also applicable to the case on hand in all force.

Therefore, we are of the opinion that the termination of the Appellant from service pursuant to the show cause notice issued to him after a lapse

of 14 years, would certainly affect the livelihood of his entire family at this length of time. Moreover, the appointment given to the Appellant is not

against any statutory regulations.

Therefore, we are of the considered view that the Appellant, having been allowed to continue in service for over 14 years cannot be now removed

from service.

Accordingly, the writ appeal is allowed. The order of the learned single Judge is set aside. The impugned show cause notice, dated

09.03.2010 is quashed. The Respondents shall not remove the Appellant from service on the ground alleged in the show cause notice. No costs.

Consequently, connected M.P. is closed.