K.Periannan, S/O.Late Kaval v. The Superintending Engineer

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on 28.02.2020 Pronounced on 29.06.2020

CORAM:

THE HONOURABLE MR. JUSTICE M.S.RAMESH K.Periannan ... Petitioner Vs.

1.The Superintending Engineer, Tamil Nadu Electricity Board, TANGEDCO, Virudhunagar Electricity Distribution Circle, Virudhunagar.

2.The Chief Engineer (Personal), Tamil Nadu Electricity Board, TANGEDCO, 144, Anna Salai, Chennai-600 002.

... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus seeking to quash the proceedings of the firstt respondent in Letter No.022918/2014/epgp2/cjtp2/Nfh.thhpR Ntiy/2014 dated 29.11.2014 and quash the same and consequently direct the respondents to give compassionate appointment to the petitioner.

For Petitioner : Mr.S.Saji Bino For Respondents : Mr.T.Sakthikumaran

O R D E R

The petitioner's father, while working as a wireman under the first respondent, died in harness, on 18.03.2006. He was survived by his wife and three children. The petitioner herein, who is the eldest son, was aged about 12 years at the time of death of his father. After attaining majority, on 26.11.2014, when the petitioner had made a request for compassionate appointment along with the No Objection letter given by his mother, the first respondent herein had rejected the request through the impugned order dated 29.11.2014 1/7

on the ground that the application was not made within a period of three years from the date of death of the employee and that applicant should have completed 18 years of age within three years of the death of the employee. The rejection order is put under challenge in the present Writ Petition.

2. Heard Mr.S.Saji Bino, learned counsel for the petitioner and Mr.T.Sakthikumaran, learned Standing counsel appearing on behalf of the respondents.

3. The reasoning of the first respondent in rejecting the application cannot be sustained, in view of various judicial pronouncements of this Court, to the effect that an application made by the legal heir of the deceased employee, within three years from the date of his majority, is deemed to be made well within time. One such order passed by this Court in W.P.No.26343 of 2012 dated 23.11.2016 in the case of M.Sathish Kumar vs. the Director of School Education and others, had placed reliance on two orders of the Hon'ble Division Benches of this Court and ultimately held that, when an application is made within three years from the date of attaining majority, the claimant would be entitled for appointment on compassionate grounds. The relevant portion of the order reads as follows:

'4. In this context, a Division Bench of this Court in a judgment reported in The Chief Engineer/Personnel, T.N.E.B., & another Vs. S.Suder reported in MANU/TN/0635/2009 was held as follows:

"4.In the judgment reported in 2001 Writ L.R.601 in the case of "Ramadoss.D. Vs. 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.

5.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.

6.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 Vs. The Superintending Engineer, Theni 2/7

Electricity Distribution Circle, Theni"

and the application for appointment on compassionate grounds was directed to be considered.

7.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."

8.Justice F.M.Ibrahim Kalifulla has also taken the same view in the decision reported in 2004(3) CTC 120, (2004) MLJ 238 in the case of "Meer Ismail Ali.T. V.

The 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 Special Leave Petition in Civil Appeal No.6387 of 2005, was also dismissed by the Supreme Court, by judgment dated 4.4.2005."

5. In a very similar issue, a Division Bench of this Court in W.P.No.3050 of 2003 observed as follows:

"9.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.

10.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 3/7

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.

11.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.

12.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 4/7

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 yeas after he/she attains the majority."

6. If the above proposition is applied to the present facts of the petitioner, then the petitioner would be entitled for an appointment on compassionate ground, since the application has been made within a period of three years from the date of attaining majority. Since this application for compassionate appointment was rejected on the sole ground that the same was time barred and by applying the ratio in the decision of the Division Bench, the impugned order cannot be sustained and is liable to set aside. Accordingly, the impugned order dated 31.01.2012 passed by the third respondent is quashed.'

4. The aforesaid order is self explanatory. As such, the issue as to whether the widow or any other legal heir, who was major at the time when the employee had expired, had or had not made an application within three years from the date of death becomes immaterial. What would suffice is as to whether the minor legal heir had made an application seeking for compassionate appointment within three years from the date he had attained his majority.

5. In the instant case, the petitioner herein, had become a major on 01.02.2012 and he had made his application seeking for compassionate appointment on 26.11.2014, which is within a period of three years. By applying the ratio laid down in the aforesaid decision, the petitioner would be entitled for appointment on compassionate grounds. There is absolutely no logic or justification on the part of the respondent board to expect the legal heirs of a deceased employee to be majors at the time of the death, particularly when the aforesaid decisions entitles a legal heir to make an application within 3 years from the date when he becomes a major. Therefore, the second reason cited in the impugned order also is unsustainable.

6. It would be pertinent to point out that in all cases where claim is made for compassionate appointment, the concerned authorities are required to act efficaciously and speedily, since 5/7

the very purpose of providing appointment on compassionate ground is to mitigate the hardship due to the death of the bread-earner in the family and that there should not be any delay in such appointments. This proposition was held by the Hon'ble Apex Court in the case of Sushma Gosain vs. Union of India reported in 1989 (4) SCC 468 had held as follows:

'It must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.'

7. The same ratio was reiterated by the Hon'ble Apex Court in the case of Canara Bank vs. M.Mahesh Kumar reported in 2015 (7) SCC 412.

8. In the light of the above observations and findings, the impugned order passed by the first respondent dated 29.11.2014 is set aside. Consequently, there shall be a direction to the concerned respondent to issue an appointment order to the petitioner herein, on compassionate grounds, to such post that may be proportionate to the petitioner's qualification. The concerned respondent shall ensure that the appointment order is issued atleast within a period of four weeks form the date of receipt of a copy of this order. This Writ Petition is allowed accordingly. No costs. Sd/- Assistant Registrar () // True Copy // / /2020 Sub Assistant Registrar(CS) To 1.The Superintending Engineer, Tamil Nadu Electricity Board, TANGEDCO, Virudhunagar Electricity Distribution Circle, Virudhunagar.

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2.The Chief Engineer (Personal), Tamil Nadu Electricity Board, TANGEDCO, 144, Anna Salai, Chennai-600 002.

Order made in 29.06.2020 DP SDS (16.07.2020) 7P-3C 7/7