S.Balaji v. The Joint Registrar Of

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 01.11.2019

CORAM:

THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR WP.No.17027 of 2010 S.BALAJI ..Petitioners ..Vs..

1 THE JOINT REGISTRAR OF COOP. SOCIETIES COIMBATORE ZONE COIMBATORE .. Respondent Prayer:- This Writ Petition is filed, under the Article 226 of Constitution of India, to issue a writ of Certiorarified Mandamus calling for the entire records pertaining to the order passed by the Joint Registrar of Cooperative Societies, Coimbatore Zone, Coimbatore-2, the respondent herein vide his proceeding No.Na.Ka.2279/2008 Pa.1(1) dated 15.04.2009 and quash the same as illegal, arbitrary being violative of rules and principles of natural justice, thereby direct the respondent herein to provide employment to the petitioner in a suitable post on compassionate grounds.

For Petitioner :

Mr.C.Veeraraghavan For Respondent :

Ms.T.Girija, Govt.Advocate.

ORDER

The Petitioner's father who was working as Senior Inspector under the respondent had expired on 13.08.1989 in harness leaving behind his wife, two daughters and the petitioner as legal heirs. It is stated that at the time of death of petitioner's father, he and his sisters were minors aged 6, 8 and 10 years respectively. It is stated that due to lack of awareness about the scheme of compassionate appointment they could not prefer any representation to the respondent department at that point of time, however, on knowing about the compassionate ground appointment, the petitioner's mother had made representation on 29.03.2003, 15.04.2003 and 30.08.2006. The respondent vide proceedings dated 12.11.2002 and 17.03.2003 had informed to apply in the prescribed format. Pursuant to the same, the petitioner's mother also submitted the application in

the prescribed format on 15.04.2003 and after compliance represented the same on 30.08.2006. However, the respondent rejected the claim of the petitioner by communication dated 15.04.2008 on the ground that the petitioner had not submitted the application for compassionate ground within three years from the date of death of petitioner's father. Reliance was placed on Government Letter Ms.No.202 Labour and Employment Department dated 08.10.2007. Aggrieved by the said rejection of the claim for compassionate appointment, this writ petition is filed challenging the impugned order dated 15.04.2008.

2. Though the writ petition has been admitted on 02.08.2010 and the petitioner's application for interim stay has also been dismissed as early as on 02.08.2010, the respondent has not come forward to file counter in this matter.

Hence, following the catena of decisions of this court and the various Government Orders issued from time to time governing the scheme of employment assistance on compassionate grounds, this court is of the view that application should be submitted within three years from the date of death of the employee; a member of the family, who is otherwise eligible, on the date of death of the employee, has to submit the application within three years from the date of death or in a given case, if he was a minor at the time of death aged between 15 to 18 years, he can also submit an application, within three years from the date of death, on attaining majority. In the case on hand, employee died in harness on 23.08.1989 but the petitioner's mother made representation for employment assistance for the first time on 21.03.2001.

In this regard, it is relevant to refer the latest order passed by me while sitting in Madurai Bench of Madras High Court in W.P.(MD).no.362 of 2016 dated 24.07.2019. The relevant paragraph of the said order is as under:- " 6. The petitioner's father died on 15.10.1998. The petitioner submitted the application on 10.10.2011, beyond the period of three years. Further, on a perusal of the counter affidavit, the third respondent has stated that the petitioner's mother made an application to the respondents, seeking appointment to her elder son T.Lenin and the same was rejected on the ground that the application was submitted after three years period from the date of death of the petitioner's father. The said order has not been challenged and the same has become final.

Now, the petitioner, again made an application seeking employment on compassionate ground and the said application has been rejected. Challenging the rejection order, the present writ petition is filed before this Court.

7. In The Inspector of Prisons, Tiruchirapalli District, Tiruchirapalli and Anr., Vs. P.Marimuthu, decided on 22.04.2016, this Court has held as follows:-

36. In National Institute of Technology v. Niraj

Kumar Singh reported in 2007 (2) SCC 481, an employee died, leaving behind his wife. She made an application to the respondent therein, for appointment of her grandson on compassionate grounds. Thereafter, he was appointed on daily wages and his services were extended from time to time. After a gap of about 15 years, he made an application for his appointment on compassionate grounds on regular basis. Thereafter, wife of the deceased employee, sought for appointment for her son and while claiming so, she also requested cancellation of the respondent's appointment. As her request was rejected, she filed a writ petition, which was dismissed.

One of the reasons assigned for dismissal of the writ petition filed by the wife was that at the time of death of the deceased employee, her son was aged one and half years old and that the application was submitted only after attaining majority i.e. after 18 years and therefore, no appointment can be given to the employee's son on compassionate ground. Letters patent appeal was also dismissed by the Hon'ble Division Bench. There were other issues of making a false claim by the grandson. Suo-motu contempt notice was issued.

"21. The appointment on compassionate ground, thus, could have been offered only to a person who was the widow of the deceased or a dependent child. Admittedly, the son of the deceased Ashutosh Kumar was only one year old at the time of his father's death. He could not, thus, have been given any appointment on compassionate ground. It may be true that Smt. Vidhya Devi filed an application for grant of appointment on compassionate ground in favour of the respondent. But, it now stands admitted that he was not the natural grandson of late Shri B.P. Sinha but was a grandson of his cousin brother.[See Chief Justice of A.P., v. L.V.A.Dixitulu, 1979 (2) SCC 34 and Union of India v. Pramod Gupta (D) by LRs. And Ors., (2005) 12 SCC 1]" Therefore, he was not entitled for appointment in terms of the scheme of the Institute. The Institute, therefore, committed an illegality in granting him such an appointment. Moreover the purported the appointment on compassionate ground had been given in 2001, i.e., after more than 15 years from the date of death of the said Shri B.P. Sinha.

37. Though learned counsel for the writ petitioner submitted that under the existing scheme, and the Government orders issued from time to time, on the aspect of considering the right of the minors, at the

time of death of breadwinner, in making an application for employment assistance, on attaining majority, there are no rules or guidelines restricting the period, for consideration of such application and further submitted that what is relevant to be considered by the authorities, is whether the penury of the family continued to exist, or not, even after a long time and it should be the only objective factor, to subserve proper implementation of the scheme and further contended that when the scheme does not contemplate that on the date of death of the employee, the applicant should be an adult member irrespective of the period prescribed for submission of the application, this Court is not inclined to accept the said submissions, for the reason that even if indigent circumstances of the family continued to exist for a long time, the scheme of employment assistance on compassionate grounds and modified by various Government orders issued from time to time, makes it clear that though indigent circumstance is one of the factors to be considered, while examining the eligibility of an applicant to seek for employment assistance, equally, the other requirement under the Government orders issued from time to time, that the application should be submitted within three years from the date of death, cannot be ignored.

A member of the family, otherwise eligible, on the date of death of the employee, has to submit the application within three years from the date of death or in a given case, if he was a minor at the time of death aged between 15 to 18 years, he can also submit an application, within three years from the date of death, on attaining majority.

38. Needless to state that for entry into any service in the State, the minimum age is 18 years, and no minor can be appointed to any service. Therefore, he cannot make any application for appointment to any post in service and no post can be kept vacant for him, till he attains majority. Posts which fall vacant have to be filled up as per the recruitment rules. Employment assistance on compassionate appointment, is only a concession, extended to an eligible member of the family, to apply for a suitable post, in the service, in which, the employee/Government servant died in harness and it is not a right, which can be exercised by a minor on attainment of majority.

39. Thus, for the reasons stated supra, we are of the view that continuation of penury or indigent circumstances of the family, alone is not the factor to be considered by the department, while examining

the request of an applicant for appointment on compassionate grounds. Reading of the Government orders shows that scheme can be extended only to eligible member of the family and not to an ineligible person. Scheme has not been framed to provide employment assistance as and when the son or daughter of the deceased employee attains majority. Under the scheme, the department is not obligated to keep any post vacant, till the applicant attains majority or to consider his candidature on attaining majority. Scheme only enables those who are eligible and satisfy all the eligibility criteria including age, within three years from the date of death.

40. In view of the above discussion, the request of the petitioner for appointment on compassionate grounds, ought not to have been entertained, as on the date of application, he was minor, aged about 12 years. Reference can also be made to a decision made in Sushma Gosain v. Union of India reported in 1989 (4) SCC 468."

8. In the case on hand, the petitioner has filed the application beyond the period of three years and the second respondent has already rejected the claim of the petitioner's mother on the earlier occasion. Therefore, considering the facts and circumstances of the case and in the light of the aforesaid decision of this court, this court is of the view that the relief sought by the petitioner cannot be granted. Hence, the present writ petition is liable to be dismissed.

9. Under the facts and circumstances of the case, this writ petition stands dismissed. No costs."

3. Since the issue on hand is squarely covered by the decisions as extracted supra, this court has no hesitation to reject the case of the petitioner, as devoid of merits. Accordingly, the Writ Petition is dismissed. No costs. s/d- Assistant Registrar(CS VIII) True Copy Sub-Assistant Registrar

To 1 THE JOINT REGISTRAR OF COOP. SOCIETIES COIMBATORE ZONE, COIMBATORE. +1 CC to The Special Govt. Pleader sr 91495.

WP.17027 of 2010 RR(CO) SP(21/01/2020)