K. Nagarajan vs State of Tamil Nadu

T. Raja, J.—The petitioner, K. Nagarajan, has filed the present writ petition challenging the impugned order passed by the 3rd respondent

terminating the services of the petitioner on the ground that the petitioners'' younger brother, Suresh, has already been employed.

The petitioner''s father Late. Kumaresan, while serving as Sub Inspector of Police, died on 15.06.1991. Thereafter, the deceased Kumaresan''s

wife submitted an application, dated 04.07.1991, before the 3rd respondent seeking appointment to the petitioner on the compassionate ground,

along with a certificate issued by the Tahsildar, Mr. Agastheeswaran, dated 21.02.1995, wherein the Tahsildar has mentioned that the petitioner''s

younger brother one Suresh is appointed as Constable in Delhi. The said Tahsildar has also further certified that the family of the petitioner was not

getting any help from his younger brother Suresh.

After the submission of the certificate issued by the Tahsildar, they were also made to appear before Revenue Divisional Officer and after his

appearance, the 2nd respondent, Director General of Police, issued a communication dated 13.08.1992 stating that the petitioner''s name was in

the waiting list. He was also further required to pass typing higher grade examination in Tamil and English and also inform the 3rd respondent as

soon as the petitioner passes the said examination.

Thereafter the petitioner was appointed by issuance of proceedings dated 05.04.1995 appointing the petitioner as Junior Assistant and from the

date of appointment i.e., 05.04.1995, the petitioner was continuously serving as Junior Assistant. Thereafter, the petitioner has received a memo

from the 3rd respondent dated 27.07.1995 stating that the petitioner did not bring to the notice of the 3rd respondent about his brother''s

employment as Constable, for which the petitioner also submitted his reply on 31.07.1995 clearly mentioning that in the certificate of the Tahsildar

dated 21.02.1995 it was clearly stated that the petitioner''s younger brother Suresh was employed in Delhi as Constable but he was not helping the

family of the petitioner.

Inspite of the explanation offered by the petitioner, he was terminated by the impuged proceedings dated 19.08.1999 on the ground that on the

date of his employment his brother was employed as Constable and, therefore, his employment was not regular.

The learned Counsel for the Petitioner submits that the factum of the petitioner''s younger brother''s employment on 25.06.1993 was already

brought to the notice of the respondents by the petitioner himself by producing a certificate issued by the Tahsildar dated 21.02.1995. Only after

the certificate dated 21.02.1995 issued by the Tahsildar the order of appointment dated 05.04.1995 was issued appointing the petitioner as Junior

Assistant. The order of termination finds fault on the ground that the petitioner suppressed the factum of his younger brother''s employment as

police Constable in Delhi on 25.06.1993, which cannot put against the petitioner and therefore it was urged to set aside the said impuged order.

It is further submitted by the learned Counsel for the petitioner that in G.O. Ms. No. 155, Labour and Employment Department, dated

16.07.1993, in paragraph 3 of the said Government Order it is specifically mentioned that even at the time of death of any Government servant,

any other dependent in the same family if a member of the family is already employed, the factors to be determined are, whether he is regularly

employed and is actually supporting the family. If that person was employed already, 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 dependants will be considered. On the basis of the said

Government Order, the respondents should not have terminated the services of the petitioner, particularly when the petitioner has brought to the

notice of the respondents by way of a certificate dated 21.02.1995 issued by the Tahsildar stating clearly that his younger brother Suresh was

employed as Constable at Delhi on 25.06.1993.

Further the learned Counsel for the petitioner also submits that from the date of appointment, i.e., 05.04.1995 the petitioner has been working

and has also been receiving his salary. Therefore by taking into account, the long length of service of the petitioner, the order of termination should

be set aside, as otherwise, the family of the petitioner would be put to a great hardship.

The learned Additional Government Pleader appearing for the respondents submits that the impugned order was passed on the ground that the

petitioner has deliberately withheld the factum of his younger brother''s appointment in Delhi as Constable way back on 25.06.1993.

Consequently, it was also submitted that the Director General of Police, the 2nd respondent herein, on examining the application submitted by the

petitioner for compassionate appointment directed the 3rd respondent to appoint the petitioner on compassionate appointment as Junior Assistant.

In view of the order passed by the Director General of Police dated 19.12.1994, the petitioner was appointed on 05.04.1995. Subsequently,

when further particulars were scrutinised for his regularisation in the office memo it was noted that the petitioner''s younger brother was already

employed on 25.6.1993. In view of the suppression of fact for getting employment, the impugned order of termination was rightly passed and,

therefore, the said termination order should not be interfered with. On that basis prayed for dismissal of the writ petition.

I have considered the submissions made by the learned Counsel on either side.

The petitioner submitted a certificate issued by the Tahsildar, dated 21.02.1995, in which the Tahsildar has specifically mentioned that the

petitioner''s younger brother Suresh was employed as Constable in Delhi even on 25.06.1993. Therefore, the contention of the respondents that

the petitioner suppressed the factum of employment of petitioner''s younger brother Suresh on 25.06.1993 cannot hold good, as the respondent

could have denied the employment on compassionate ground since his brother was working as constable in Delhi even on 25.06.1993 itself.

Further, a G.O. Ms. No. 155 also clearly mentions that even if any dependant of the family is 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 dependents can be

considered for appointment on compassionate ground. Since the petitioner has already submitted a certificate of Tahsildar, dated 21.02.1995,

clearing certifying that the petitioner''s younger brother Mr. Suresh was already employed, the respondents were aware of the said facts, hence the

order of termination holding that the petitioner has suppressed the fact that his younger brother Mr. Suresh was appointed in Delhi as Constable on

25.06.1993, which is much before the date of employment of the petitioner i.e., on 05.04.1995, cannot be held against the petitioner. Further the

petitioner is also continuing as junior assistant by virtue of interim order granted by the Tribunal.

In this context, it is useful to refer a judgment of the Hon''ble Supreme Court reported in Union of India (UOI) and Others Vs. K.P. Tiwari,

wherein it is held that in as much as the respondent having been appointed and continuing in service for more than five years, it would not be

appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood. Following the above

said decision of the Supreme Court, this Court in W.P. No. 19687 of 2006 by order dated 16.11.2006 has held that if any one appointed on

compassionate ground is allowed to work for five years, after completion of five years, the said appointment cannot be cancelled, as it would

otherwise affect the right of the person appointed and also his family by setting aside the impugned dismissal order issued further direction to

regularise the service of compassionate appointment. As this order was passed following a judgment of Supreme Court, I have also followed the

above said order in another similar writ petition No. 42681 of 2006 dated 22.06.2010.

In the light of above discussion, on the basis of G.O. Ms. No. 155, dated 16.07.1993 and on the basis of the judgment of the Supreme Court

mentioned supra the impugned order, which is under challenge, is unsustainable. The petitioner has admittedly worked for the last 15 years and

therefore, in view of the dictum of the Supreme Court which is squarely applicable to the facts of this case, the impugned order is liable to be set

aside. Accordingly the same is set aside and the writ petition is allowed. No costs.