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Judgment
M. Venugopal, J.—The Petitioner has filed the present Writ Petition seeking the relief of Writ of Mandamus to direct the first Respondent to
reconsider the proposal of the third Respondent as per proceedings in Na. Ka. No. 123/ 79716/2006 dated 23.3.2007 123/ 79716/2006 dated
23.3.2007 in regard to the Petitioner''s representation for seeking compassionate appointment and grant permission to the fourth Respondent to
appoint the Petitioner as Jeep Driver.
The learned Counsel for the Petitioner submits that the Petitioner''s father late S. Isakki who worked as Office Assistant in the fourth
Respondent Office, expired on 22.8.1993 while in service. The Petitioner is a elder son to his father. However, his father(since deceased) has two
wives and since he has no issue through the first wife, he got married to one Gomu and out of the said wedlock, he has three children. Admittedly,
the Petitioner is the second wife''s elder son.
The learned Counsel for the Petitioner submits that the Petitioner has completed 8th standard and he is holding LMV license. The Petitioner''s
mother has projected an application to the Second Respondent/District Collector, Tirunelveli District, seeking employment to the Petitioner on
compassionate ground in the fourth Respondent''s office on 9.2.1996 and the said application has been filed before the second Respondent office.
Once again, the Petitioner has made an application in proper format on 27.9.2000 to the Fourth Respondent/Block Development Officer,
Cheranmahadevei, Tirunelveli District, along with concerned documents with a request to appoint him as Jeep Driver. During the year 2000-2004,
the Petitioner has made many representations to the authorities concerned.
However, a proposal has been sent to the Government through the Director of Rural Development and Panchayat Raj on 16.4.2007 requesting
him to grant permission from the Tamil Nadu Government to appoint the Petitioner as Jeep Driver on compassionate ground as per proceedings of
the third Respondent in Na. Ka. No. 123/ 79716/2006 dated 23.3.2007. The fourth Respondent has sent a communication dated 20.4.2008 to
the Petitioner mentioning that the proposals sent by them in respect of the Petitioner''s representation seeking appointment on compassionate
ground, have been returned on the basis that the application for compassionate appointment has not been made within three years from the date of
the Petitioner''s father''s death as per G.O. Ms. No. 42 (Labour and Employment) dated 12.3.2007 and Government letter No. 202 (Labour and
Employment) dated 8.10.2007.
The main contention advanced on behalf of the Petitioner is that the Petitioner''s mother has filed an application on 9.2.1996 within two and a
half years from the date of the Petitioner''s father''s death dated 22.8.1993 and that the Respondents without considering the record, have returned
the proposal in connection with the Petitioner''s representation seeking compassionate ground appointment in a casual manner.
Per contra, it is the contention of Mr. Sasikumar, Learned Government Advocate appearing for the Respondent Nos. 1 to 4 that the Petitioner
is a son of late Isakki who worked as Office Assistant at Cheranmahadevi Panchayat Union Office and that he has expired on 22.8.1993. The
learned Government Advocate further contends that the first wife of the Petitioner''s father, late Isakki namely, Poovammal has submitted a
representation seeking to disburse the benefit of the deceased husband in favor of her and the children of the said Isakki by producing a legal heir
Certificate and in that Certificate, the name of the second wife of the Petitioner''s father Gomu is not made mention of as one of the legal heirs.
After obtaining opinion from the Government Pleader, the provident fund amount was disbursed to the first wife Poovammal and three children of
the Petitioner''s father on 28.9.2007.
In this connection, it is useful to refer to the paragraph No. 3 of the counter filed by the Fourth Respondent/ Block Development Officer,
Tirunelveli District, wherein it is observed as follows:
I further submit that the allegation stated in para 2 of the affidavit that the Petitioner Ganesan submitted application seeking employment on
compassionate ground before the fourth Respondent i.e. the Block Development Officer, Cheranmahadevi is an utter falsehood. His mother Tmt.
Gomu submitted her representation only on 20.12.1999 before the District Collector and not before the Block Development Officer,
Cheranmahadevi. Subsequently for a first time, the Petitioner has made a representation on 4.9.2000. The said representation was forwarded to
the Government on 23.3.2007 vide Letter Roc No. N3/797/16/2006. But the same was returned on 8.10.2007 by stating Petitioner is highly
belated one barred by limitation. As per the G.O., the Petitioner should have applied within three years from the date of death of the deceased.
Hence as per G.O. No. 42 of Labour/Employment dated 12.3.2007 and government Letter No. 202(Labour and Employment) dated 8.20.3007,
the Petitioner''s request seeking employment on compassionate ground was rejected by the government. So, the application and documents
submitted by the Petitioner was returned to the Petitioner vide Letter in Na. Ka. No. A1/1550/02 dated 20.4.2008.
In effect, the Respondents have taken a stand that the Petitioner''s mother Gomu (the second wife of the Petitioner''s father Isakki since
deceased) has submitted a representation only on 20.12.1992 before the Second Respondent/District Collector and not before the Fourth
Respondent/Block Development Officer, Cheranmahadevi, Tirunelveli District. Also, a stand is taken for the first time that the Petitioner has made
the representation on 4.9.2002 etc.
Pith and substance of the contention projected on behalf of the Respondents is that as per G.O. Ms. No. 42 (Labour/Employment) dated
12.3.2000 and Government letter No. 202 (Labour and Employment) dated 8.10.2007, the Petitioner should have applied within three years from
the date of death of the said deceased Isakki.
At this juncture, countering the submissions of the learned Government Advocate appearing for the Respondent Nos 1 to 4, the learned
Counsel for the Petitioner relies on the order of this Court in W.P. (MD) No. 3909 of 2009 dated 13.11.2009 between N. Elavarasan v. the
Chief Engineer, Tamilnadu Electricity Board, 800, Anna Salai, Chennai -2 and two others, wherein at paragraph Nos. 11 to 14, it is observed as
follows:
11) This Court in another decision in Selvi R. Anbarasi v. Chief Engineer (Personnel), T.N.E.B., Chennai reported in (2006) 2 M.L.J. 2006 held
as follows:
The learned Counsel for the Petitioner submitted that a similar issue, rejecting the compassionate ground appointment on the ground that the
application was submitted beyond three years and the same was rejected earlier on the ground that the Petitioner therein has not completed 18
years of age, was considered by this Court in W.P. No. 1584 of 2001 and this Court held that the applications having been made within a period
of three years and the same having not been considered on the ground that the Petitioner therein was not 18 years of age at that time, the
subsequent application cannot be rejected on the ground that the application was submitted within three years. The learned Judge directed the
Respondents not to treat the second application as an application for compassionate appointment, but it is to be treated as continuation of the
application originally submitted. The said judgment is reported in T. Meer Ismail Ali Vs. The Tamil Nadu Electricity Board and The Superintending
Engineer, Tamil Nadu Electricity Board, . This Court, ultimately, directed the Respondents to give compassionate appointment to the Petitioner
therein.
12)This Court in yet another decision in A. Neppolian Vs. The Chief Engineer (Personnel) The Tamil Nadu Electricity Board and The
Superintending Engineer, Cuddalore Electricity held as here under;
(c) In W.P. No. 8154 of 2002 (A. Govindan v. The Chief Engineer (Personnel), TNEB, Chennai and Anr.) the Hon''ble Mr. Justice N.V.
Balasubramaniam, by order dated 9.4.2002 allowed similar writ petition with a direction to treat the application submitted as within the time.
(d) The Hon''ble Mr. Justice P.D. Dinakaran by order dated 23.9.2003 in W.P. No. 19673 of 2003 (J. Jayakaran v. The Superintending
Engineer, Theni Electricity Distribution Circle, Theni) allowed the writ petition and directed the TNEB to pass orders granting compassionate
appointment. Paragraph 5 in the said order reads as under;
It is true that when an application was made for employment of the Petitioner, i.e., on 23.05.2002, the Petitioner was only a minor, but not
qualified. But he had attained majority on 02.06.2003 and therefore, the Respondent Board, having kept the application of the Petitioner for
employment on compassionate ground under consideration, ought to have considered the case of the Petitioner for suitable employment without
rejecting the same on technical reason, by the impugned order dated 18.06.2003. Since B.P. No. 146 dated 13.10.1995 prescribes only a
maximum period of three years for consideration of the application for appointment on compassionate ground, the Respondent shall consider the
request of the Petitioner for employment on compassionate ground and pass appropriate orders within twelve weeks from the date of receipt of
copy of this order, if the Petitioner is otherwise qualified for suitable post.
Lastly a Division Bench of this Court in The Chief Engineer/Personnel, Tamilnadu Electricity Board and The Superintending Engineer Vs. S.
Suder was held as follows;
In the judgment reported in 2001 Writ L.R. 601 in the case of ""Ramadoss. D. v. The Chief Engineer, T.N.E.B"", this Court (D. Murugesan, J)
directed the consideration of the application made within a period of three years after attaining the majority by placing reliance on the very same
Circular in B.P. No. 46, dated 13.10.1995.
Subsequently, in the judgment reported in 2002(4) L.L.N. 1132, (D. Murugesan, J.), in the case of ""P. Ravi v. Chief Engineer (P), T.N.E.B."",
also, the very same Circular was relied upon and the application for appointment on compassionate grounds was directed to be considered.
Justice P.D. Dinakaran, has also taken the very same view by following the very same Circular dated 13.10.1995, in W.P. No. 19673 of 2003,
in the order dated 23.09.2003, in the case of ''J. Jayakaran v. The Superintending Engineer, Theni Electricity Distribution Circle, Theni"" and the
application for appointment on compassionate grounds was directed to be considered.
Justice K. Govindarajan has also taken the same view in Writ Petition No. 13099 of 2003, order dated 30.10.2003, in the case of ""G.
Muthamilselvan v. The Chief Engineer (Personnel) and Anr.
Justice F.M. Ibrahim Kalifulla has also taken the same view in the decision reported in T. Meer Ismail Ali Vs. The Tamil Nadu Electricity Board
and The Superintending Engineer, Tamil Nadu Electricity Board, "". We are told that the order in the said case of ""Meer Ismail Ali"" was confirmed
in the Writ Appeal by the Division Bench in W.A. No. 4008 of 2004, by judgment dated 1.12.2004 and as against the said judgment dated
1.12.2004, the SLP in Civil Appeal No. 6387 of 2005, was also dismissed by the Supreme Court, by judgment dated 4.4.2005.
Similar question came up for consideration before a Division Bench of this Court in Writ Appeal No. 3050 of 2003 in the case of
Indiraniammal v. The Chief Engineer (Personnel) and Anr."" and by judgment dated 08.03.2005, the Division Bench set aside the impugned order
therein in rejecting the request of the Petitioner therein for appointment on compassionate grounds and directed the Board to consider the
application.
There cannot be a controversy in view of the settled position of law that appointment on compassionate ground is not automatic, as it would
amount to back door entry to a post, by-passing the Rules to be followed for such appointment. Nevertheless, to tide over the financial constraints
of a family due to sudden demise of the breadwinner of a family, the State Government or its undertaking or for that purpose, any employer, would
be entitled to frame Scheme/Rules for such appointment by prescribing the conditions as well as the eligibility. Hence, the request for appointment
on compassionate grounds would be considered with reference to the Scheme/Rules or any of the provisions framed for the said purpose, either
by the Government or by the employers, as the case may be.
In the case on hand, the father of the Respondent while he was working as Wireman in the Office of the Assistant Engineer, TNEB,
Kazhuvanthilai, Kanyakumari District, died due to illness on 07.03.1998. At the time of the death of his father, the Respondent was 15 years old
and for the purpose of making application for appointment on compassionate grounds, he should have completed 18 years. Hence, he could not
make any application for appointment on compassionate grounds. By placing reliance on B.P. No. 46, dated 13.10.1995, he made application on
3.9.2002, within a period of four days from the date of his attaining majority, i.e., 18 years. That application was rejected on the ground that the
same cannot be entertained as per the Circular in vogue on the date of the application. Presumably, the order of rejection was passed on the basis
of the Memo, dated 6.4.2002.
As we have already referred that the application for compassionate appointment is maintainable by a person within a period of three years after
he/she attains the majority, irrespective of the fact that the breadwinner died while such person was a minor in terms of the proceedings of the
Board in B.P. No. 46 dated 13.10.1995. This position is not in dispute. We may also once again refer to the fact that following the very same
Board proceedings in B.P. No. 46, dated 13.10.1995, consistently, this Court had taken the view that the application seeking for appointment on
compassionate grounds, has to be considered in the event when such applications are made within a period of three years after he/she attains the
majority.
14) In view of the above said principle laid down by this Court consistently in the above said decisions, this Court has no hesitation to quash the
impugned order as the Petitioner preferred the application seeking for the relief of compassionate appointment within a period of three yeas from
the date of his attaining majority. Accordingly, this petition is allowed and the impugned order passed by the second Respondent in Letter No.
0843-1/ni.pi.1/u.4/ko.va.ve/2007 dated 20.06.2007 is hereby quashed and the second Respondent is directed to provide appointment to the
Petitioner on compassionate ground in respect of any suitable job within a period of eight weeks from the date of receipt of a copy of this order.
No costs.
From the typed set of papers filed on behalf of the Petitioner, it is clear that the Petitioner''s mother Gomu (being the second wife of the
Petitioner''s father late Isakki) has submitted a petition No. 10141 on People Grievance Day before the Second Respondent/District Collector,
Cheranmahadevi, Tirunelveli District, praying for a compassionate appointment for her son who has not completed 18 years of age at the time of
the death of her husband namely, the Petitioner''s father and now, on 20.12.1993, the Petitioner is aged 19 years and has passed 8th standard.
Again, on 09.2.1996, the Petitioner''s mother Gomu has addressed the letter to the Second Respondent/District Collector, Tirunelveli District,
through proper channel praying for appointment to her elder son Ganesan on compassionate ground.
The learned Counsel for the Petitioner seeks in aid of the counter filed by the Fourth Respondent/Block Development Officer,
Cheranmahadevi, Tirunelveli District, to the effect that it has been admitted that the Petitioner has made representations on 4.9.2000 and before
that 20.12.1999, her mother has submitted a representation.
From the above factual details, it is quite evident that the Petitioner''s mother Gomu (second wife of the Petitioner''s father late Isakki) has
submitted her representation dated 9.2.1996, to the Second Respondent/District Collector, Tirunelveli District. The representation of the
Petitioner''s mother in regard to the compassionate ground appointment on 20.12.1993 has been admitted by the Fourth Respondent/Block
Devleopment Officer, Cheranmahadevi, Tirunelveli District, in his counter at paragraph No. 3. Also, the subsequent representation dated 4.9.2000
of Petitioner has also been tacitly admitted by the fourth Respondent in the counter at paragraph No. 3. As such, the Petitioner''s mother has made
the representation to the second Respondent on 20.12.1993, on 9.2.1996 and on other dates, as mentioned earlier. Even though the Petitioner''s
mother submitted an application dated 20.12.1993 to the Second Respondent/ District Collector on People Grievance Day, during the time of
Petitioner''s father''s death, the Petitioner has not completed 18 years and on 20.12.1993 at the time of submission of application, he has
completed 19 years and the subsequent applications projected by the Petitioner''s mother on 9.2.1996, 20.12.1993 and the Petitioner''s
representation on 4.9.2000 can only be construed to be in continuation of the application dated 20.12.1993 submitted by the Petitioner''s mother
and therefore, contra view taken by the Respondents and the subsequent rejection of the Petitioner''s request for seeking appointment on
compassionate ground as per G.O. Ms. No. 42, Labour/Employment dated 12.3.2007 and Government letter No. 202 (Labour and
Employment) dated 8.10.2007, are not sustainable in the eye of law. Resultantly, this Court allows the Writ Petition by directing the first
Respondent to reconsider the proposal of the third Respondent as per proceedings Na. Ka. No. 123/ 79716/2006 dated 23.3.2007. The
Petitioner''s mother''s representation dated 20.12.1993, 9.2.1996, 20.12.1999, 22.8.2000 and the Petitioner''s representation dated 4.9.2000 in a
dispassionate manner as regards the request for Petitioner''s compassionate appointment and the first Respondent is directed to pass an order in
any event within a period of eight weeks from the date of receipt of copy of this order. Considering the facts and circumstances of the case, the
parties are directed to bear their own costs.
However, the Petitioner is directed to furnish a copy of his mother''s representation dated 20.12.1993 addressed to the second
Respondent/District Collector, a copy of his mother''s representation dated 9.2.1996, 20.12.1999 and the Petitioner''s representation dated
4.9.2000 to the concerned parties and it is open to the first Respondent or other competent authorities to act on the representation so made by the
Petitioner''s mother or the Petitioner, as the case may be, to prevent an aberration of justice and the authorities concerned will have to act
untrammeled or uninfluenced by any of the observations made by this Court in this Writ Petition.