S.Subha, D/O.K.Sankar v. The Chairman

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30.11.2016

CORAM:

THE HONOURABLE DR.JUSTICE S.VIMALA W.P(MD)No.22926 of 2016 and W.M.P(MD)No.16401 of 2016 S.Subha : Petitioner Vs.

1.The Chairman, TANGEDCO, Chennai.

2.The Superintending Engineer, TANGEDCO Trichy Electricity Distribution Circle, Perunagaram, Trichy - 20.

: Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to quash the impugned order passed by the second respondent in Letter No.014263/673/NiPi 1/ENiU/Ko.Va.Ve/ 2015 dated 08.10.2015 in rejecting the application for compassionate appointment as illegal and arbitrary and further direct the respondents to provide employment on compassionate grounds to the petitioner.

For Petitioner : Mr.D.Selvaraj For Respondents : Mr.A.U.Ramanathan

O R D E R

This writ petition has been filed for issuance of Writ of Certiorarified Mandamus praying to quash the impugned order passed by the second respondent dated 08.10.2015 in rejecting the application for compassionate appointment and further direct the respondents to provide employment on compassionate grounds to the petitioner.

2.Heard the learned counsel appearing for the petitioner and the learned counsel, who took notice for the respondents. By consent, the writ petition itself is taken up for final disposal.

3.The case of the petitioner is that the petitioner's father Mr.K.Sankar, who was a Electricity Line Inspector, working under the respondents, died on 30.05.2011, while in service, leaving behind his wife, the petitioner, two younger siblings and grandparents as his legal representatives.

3.1. The petitioner as daughter of the deceased sent an application dated 26.08.2013 i.e., within a period of three years from the date of death of her father, claiming appointment on compassionate grounds. The said application was rejected on 29.08.2013, stating that the petitioner did not attain majority. Therefore, on attaining majority, the second application was sent by the petitioner on 26.09.2015. Even the said application was rejected on the ground that the application was not sent within a period of three years from the date of death of the deceased. Therefore, this writ petition has been filed. 4.The learned counsel for the petitioner relied upon the Judgment of this Court in W.A(MD)No.1400 of 2011, dated 16.12.2015, where-under, in paragraph No.3, it has been held as follows:

"3.It is admitted fact that the employee died on 19.03.1992, leaving behind four children and at that time, the appellant is the eldest son, aged about 12 years. If he applied for appointment on compassionate ground at that time, when he was 12 years, his application would have been rejected on the ground that he was a minor and, therefore, on attaining majority, the appellant rightly applied for appointment on compassionate ground. However, taking into consideration the plight of the family and also the young age of the mother and other children, it is a case where appointment on compassionate ground has to be given. Three years limitation cannot be applied in straitjacket formula and each and every case has to be approached differently, based on the facts. Since the eldest son of the family has rightly applied for appointment on compassionate ground, on attaining majority, the respondents have to consider the appellant's application for appointment on compassionate ground".

5.

The High Court of Allahabad reported in MANU/UP/1906/2016 considered the issue as to whether the application not made within the stipulated period of four years seeking compassionate appointment can be considered. Relying upon the Judgment of this Court, which was upheld by the Supreme Court, the Court directed the appointing authority to consider the claim for compassionate appointment though the application was out of time only on account of minority. The relevant paragraphs highlighting the judgment of this Court are extracted for reference as under:

"11. The issue as to whether an application made after 4 years can be considered or not, has come up for consideration in number of cases before High Court and

the Honourable Supreme Court where the findings have been given by the Courts that in case the appellant has not filed application seeking compassionate appointment within four years from the date of death of his father and that he has not completed 18 years of age within four years, these are not valid grounds to deny appointment on compassionate ground. Similar issue was considered by Madras High Court in the decision reported in T. Meer Ismail Ali v. The Tamil Nadu Electricity Board, MANU/TN/0337/2004 : 2004 (3) CTC 120 [F.M. Ibrahim Kalifullah, J. (as he then was)]. In the said case the deceased Board employee died on 13.04.1993 and the application submitted by one of his daughter on 05.08.1997 was rejected on the ground that she had not completed 18 years of age and after completing 18 years of age when an application was made on 04.

07.2000 which was rejected on the ground that the application was not made within three years from the date when the Board Proceedings dated 13.10.1995 was issued. The Court considering the technical plea raised by the respondent Board set aside the said order and remitted the matter to pass fresh orders without reference to the objections already raised by the Board. The said order of the learned single Judge was challenged by the TNEB in W.A. No. 4008 of 2004 before the First Bench of Madras Court (consisting of the Hon'ble Mr. Justice Markandey Katju, C.J. (as he then was) and N.V. Balasubramanian, J.) which dismissed the writ appeal on 01.12.2004. The respondents therein filed SLP No. 6387 of 2005 against the said order which was also dismissed on 01.04.

2005 by the Honourable Supreme Court and consequently the said writ appellant was given compassionate appointment.

12. Another Writ Petition in W.P. No. 41459 of 2005 was considered by Madras High Court on the same set of facts. The said writ petition was allowed following the earlier order of the Division Bench of Madras High Court made in W.A. No. 4008 of 2004 dated 01.12.2004 and the said decision is reported in Selvi R. Anbarasi v. Chief Engineer (Personnel), TNEB, Chennai, MANU/TN/8585/2006 : 2006 (2) MLJ 200. The said order was challenged by the TNEB before the First Bench in W.A. No. 988 of 2006. However, the said appellant was given appointment on compassionate ground by implementing the order and therefore the writ appeal was dismissed as infructuous on 15.09.2006 by recording the statement made by the Standing Counsel for the TNEB.

13. In W.P. No. 21512 of 2003 one Indiraniammal challenged the rejection of compassionate appointment before Madras High Court on similar ground. The learned single Judge dismissed the writ petition by order dated 04.08.2003 against which W.A. No. 3050 of 2003 was filed and the said writ appeal was allowed by the Division Bench (consisting of the Hon'ble Mr. Justice P. Sathasivam (as he then was) & S.K. Krishnan, J.) by order dated 08.03.2005 following the earlier judgments as well as the Supreme Court Judgment reported in Balbir Kaur v. Steel Authority of India Ltd., MANU/SC/0400/2000 : (2000) 6 SCC 493. Against the said decision Civil Appeal No. 2039 of 2006 was filed by the respondent Board which was dismissed by the Honourable Supreme Court on 30.03.2010.

14. Dismissal of another W.P. No. 775 of 2004 by order dated 29.01.2005 of Madras High Court on the ground of delay was considered by the Division Bench (F.M. Ibrahim Kalifullah, J. (as he then was) & P. Murugesan, J.) in W.A.(MD). No. 29 of 2006 and by order dated 27.06.2006 the Division Bench allowed the writ appeal and directed to give compassionate appointment to the younger son of the deceased Board employee, who died on 15.11.1996. The said order of the Division Bench was also challenged by the Board in SLP(C) No. 15534 of 2007 which was also dismissed by the Apex Court on 08.04.2009.

15. In W.P. No. 18575 of 2006 filed by P. Venkatesan, Madras High Court again considered similar issue and allowed the writ petition on 20.06.2006 by following earlier orders. The said order was also challenged by the respondent in W.A. No. 42 of 2007 and the Division Bench (D. Murugesan, J. & K. Venkataraman, J.) dismissed the writ appeal on 02.07.2009. The Board filed SLP(C) No. 8305 of 2010 which was also dismissed by the Hon'ble Supreme Court on 06.07.2010. The said candidate viz., P.Venkatesan was given compassionate appointment by order dated 18.08.2010.

16. Similar issue came up for adjudication before High Court of Madras in J. Jeba Mary vs. The Chairman, Tamil Nadu Electricity Board reported in MANU/TN/0674/2011 :2011 (3) LLN 405 (Mad.) which was considered by Mr. Justice N. Paul Vasanthakumar. The writ was allowed and the direction was given to give compassionate appointment to the dependent of the deceased employee. The judgment was confirmed by the Apex Court.

17. From the above referred decisions passed in series of cases on the same ground, it is evident that on the similar grounds raised by the respondents that the appellant has not filed application seeking compassionate appointment within stipulated period from the date of death of his father and that he has not completed 18 years of age within stipulated period are not valid grounds to deny appointment on compassionate ground as according to appellant no one in his family was employed and the family of the appellant was in indigent circumstance even on that date. Therefore, when the family of the employee who died in harness is still suffering where no other member is employed, this Court as well as the Apex Court have always come to rescue of the applicant seeking appointment on compassionate grounds. Such applications can also be entertained in deserving cases and the said rule of 4 years can only be treated as a rule of thumb and cannot be strictly implemented in all cases.

6.The two orders dated 29.08.2013 and 08.10.2015 are apparently inconsistent to each other and mutually contradictory. As the petitioner was a minor at the time when the first representation was made, the application has been rejected. Perhaps, with a view to show that the petitioner is diligent and that she is not guilty of latches even during minority, the petitioner has submitted an application. As it was rejected on the ground of minority, the second application has been submitted after attaining majority. Only after attaining majority, the eligibility to apply emerges and the petitioner has rightly applied again within a period of three years of attaining majority.

Therefore, the impugned order rejecting the second application on the ground that it is not sent within a period of three years (from the date of death) is also unsustainable. Therefore, the orders dated 29.08.2013 and 08.10.2015 rejecting the claim of the petitioner for compassionate appointment are hereby set aside and the respondents are directed to provide employment to the petitioner on compassionate ground subject to her educational qualifications, within a period of eight weeks, from the date of receipt of a copy of this order.

7.The writ petition is allowed on the above terms. No costs. Consequently, connected Miscellaneous Petition is closed.

Sd/- Assistant Registrar(RTI) /True Copy/ Sub Assistant Registrar

To 1.The Chairman, TANGEDCO, Chennai - 600 008.

2.Superintending Engineer, TANGEDCO, Trichy Electricity Distribution Circle, Perunagaram, Trichy-20.

+1cc to Mr.D.Selvaraj, Advocate in SR No.74395 ORDER MADE IN W.P(MD)No.22926 of 2016 and W.M.P(MD)No.16401 of 2016 30.11.2016 smn anr/skn/sar3/04.01.2017/6p/4c