N. Pandikumar vs The State of Tamil Nadu

G. Rajasuria, J.—The petitioner filed Original Application in O.A. No. 7408 of 1995 before the Tamil Nadu Administrative Tribunal;

consequent upon its abolition, the said Original Application was transferred to this Court and re-numbered as W.P.5281 of 2007, to call for the

records of the respondents resulting in the third respondents impugned order No. Na.Ka.B3/3175/95-1 dated 22.09.1995 based on the first

respondents impugned letter No. 43090/E5/94-4 dated 14.06.1995 and order of the fourth respondents in his No. Na.Ka.A1/4485/94 dated

29.09.1995 quash the same and direct the respondents, (1) to reinstate the applicant in service forthwith, (2) to regularise the service of the

applicant in Juinor Assistant with effect from eligible date and (3) to treat the period from 29.09.1995 to the date of reinstatement as duty with all

attendant benefits and back wages.

Heard both sides.

The nutshell facts which are absolutely necessary and germane for the disposal of this writ petition would run thus:

The writ petitioner herein happened to be the son of deceased Dhanam Natarajan who at the relevant time of her death worked as Assistant

Teacher in Panchayat Union Middle School, Thonugal,Kariapatty Union. At the time of her death, her husband namely Natarajan was working as

Head Master in one other school. The writ petitioner being the son of the deceased Dhanam Natarajan applied for job on compassionate ground

disclosing the true facts. The copy of the application, which is found enclosed at page Nos. 44 to 46 of the typed set, would demonstrate that at

page No. 2 of it, he set out the facts that his father Natarajan at the time of his application dated 25.02.1991 for job had got retired on

30.06.1990. After considering the facts, the authorities concerned gave employment on compassionate grounds after obtaining approval from the

Collector concerned. Accordingly, the writ petitioner started working as Office Assistant at Vembakottai Panchayat Union with effect from

03.08.1992. When for confirmation, the papers were sent to the Director of Rural Developments vide Lr. No. P3.4767/94 dated 11.07.1994, the

Special Commissioner and Secretary to Government, Rural Development Department, Secretariat, Madras-9, vide his communication dated

14.06.1995 in Lr. No. 43090/E5/94-4, directed thus:

I am directed to invite attention to your letter cited and to state that on verification of records, it is seen that the husband of the deceased Smt.

Dhanam Natarajan was employed as a Headmaster even after the death of his wife for about 14 years and has retired from service only on

30.06.1990. As such, the appointment of Thiru. N. Pandikumar as Junior Assistant cannot be classified as the one on compassionate grounds and

is purely an irregular appointment and also against the order of the Government under this scheme. I am, therefore, to request you to terminate the

service of Thiru. N. Pandikumar forthwith and send a report to Government immediately.

Thereupon, the District Collector, in commensurate with the aforesaid direction of the Special Commissioner and Secretary to Government,

Rural Development Department, Secretariat, Madras-9, issued proceedings dated 22.09.1995 removing the writ petitioner from the service.

Whereupon, the writ petitioner herein filed O.A. No. 7408 of 1995 before the Administrative Tribunal and obtained stay and continues still in

service.

No counter has been filed. However, the learned Additional Government Pleader argued the matter.

The point for consideration is as to whether the appointment of the writ petitioner was illegal and ab initio void for the reasons set out in the

communication dated 14.06.1995 in Lr. No. 43090/E5/94-4 issued by the Special Commissioner and Secretary to Government, Rural

Development Department, Secretariat, Madras-9?

The learned Counsel for the writ petitioner would submit that for no fault on the part of the writ petitioner, he should not be made to suffer and

that as on date, he has completed seventeen years of service and it would be a bitter experience for him if he is terminated from service abruptly.

The Additional Government Pleader placing reliance on G.O.Ms. No. 155 dated 16.07.1993, would develop his argument that as on the date

of the death of the mother of the writ petitioner, the petitioner''s father was in active Government service as Headmaster and in such a case, the

petitioner was not entitled to any employment under compassionate grounds and owing to some errors committed by the lower officials, the writ

petitioner was appointed.

The perusal of the representation/application of the writ petitioner seeking job under compassionate grounds would disclose all the relevant facts

including the one that his father got retired from service only on 30.06.1990. Even though, there is no estoppel as against law and that if an

appointment is illegal one, it would be void ab initio, yet it has to be seen in this factual matrix as to whether the writ petitioner committed any fraud.

The answer is at once clear that he never made any misrepresentation and thereby obtained such appointment. Simply because, G.O.Ms. No. 155

dated 16.07.1993 was not strictly followed by the appointing authority concerned including the Collector, who is indisputably and indubitably the

District Head, the writ petitioner cannot be made to suffer and that too after 17 years of service as of now. It is also the case of the writ petitioner

that after the death of his mother Dhanam, his father Natarajan got remarried and that the writ petitioner was constrained to live away from his

father without any support.

However, the learned Additional Government Pleader would draw the attention of this Court to the letter written by the father of the writ

petitioner to the effect that his son might be given job.

Be that as it may, at the time of seeking employment, his father might have supported his cause.

Now, the core question arises as to whether this case falls within the embargoes contemplated in the decision of the Honourable Apex Court in

M.P. State Coop. Bank Ltd., Bhopal Vs. Nanuram Yadav and Others, wherein the Honourable Apex Court set out the following eight grounds as

the ones which would disentitle the petitioner from seeking any remedy before the Court. An excerpt from it, would run thus:

It is clear that in the matter of public appointments, the following principles are to be followed:

(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting

applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.

(2) Regularisation cannot be a mode of appointment.

(3) An appointment made in violation of the mandatory provisions of the statue and in particular, ignoring the minimum educational qualification and

other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.

(4) Those who come by back door should go through that door.

(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments

have been made in contravention of the statutory rules.

(6) The Court should not exercise its jurisdiction on misplaced sympathy.

(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been

unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necesary to issue individual show-cause notice to each

selectee. The only way out would be to cancel the whole selection.

(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to

be set aside.

A mere analysis of the facts on record would demonstrate that the case at hand is not covered by any one of the eight embargoes

contemplated in the aforesaid decision of the Honourable Apex Court. While holding so, I do not lay down the general proposition that any

appointment made in violation of the said G.O, should be followed by regularisation. But, in this case, the authorities concerned including the

Collector at one point of time, interpreted the G.O., in such a manner and found that even though the writ petitioner''s father was in Government

servicer at the time of death of her mother and subsequently, he retired, yet they felt that the case of the writ petitioner could be considered without

applying the embargoes as contained in G.O.Ms. No. 155 dated 16.07.1993 and that he has been in service for seventeen years and in such a

case, I am of the considered opinion that it would be totally an act of injustice if the petitioner is allowed to be terminated from service.

Hence, in this view of the matter, the writ petition is allowed with the direction that he shall be retained in service as per service rules. No costs.