S.M.Syed Ali Abubucker v. The Inspector General Of

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on 28.02.2020 Pronounced on 28.05.2020

CORAM:

THE HONOURABLE MR. JUSTICE M.S.RAMESH S.M.Syed Ali Abubucker Siddhik

...Petitioner

Vs.

1.The Inspector General of Registration, Santhome High Road, Chennai-28.

2.The District Registrar, Virudhunagar, Virudhunagar District.

...Respondents

PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records pertaining to the order made in No.29568/K2/2014 dated 28.01.2016 passed by the first respondent and to quash the same and consequently direct the respondents to provide suitable employment to the petitioner on compassionate ground in accordance with law within the time as stipulated by this Hon'bleCourt. For Petitioner : Mr.D.Sadiq Raja For Respondents : Mr.V.Anand, Government Advocate

O R D E R

The grievance of the petitioner is that his claim for appointment on compassionate ground has not been considered by the respondents. It is not in dispute that the petitioner herein is the legal heir of the deceased employee and as such, is entitled to seek for compassionate appointment, after the death of the said employee.

2. In the case in hand, the Government employee (petitioner's father) had died on 03.09.2006, while he was in service. The petitioner, who was born on 28.12.1991 was aged about 15 years at that point of time. After attaining majority, the petitioner had made an application on 26.05.2011, which came to be received by the 1/7

respondents on 27.05.2011. Apparently, the application dated 26.05.2011, is within a period of three years from the date on which the petitioner has attained majority.

3. Since the petitioner's application dated 26.05.2011 was not acted upon, the petitioner had given a representation on 06.11.2014. The claim came to be rejected through the impugned order dated 28.01.2016 stating that the application seeking compassionate appointment was not made within a period of three years as per the regulations.

4. While considering the claim of the petitioner, the respondents had taken into account the representation made on 06.11.2014 and had totally ignored the petitioner's earlier application which came to be received by the second respondent herein on 27.05.2011. The copy of the said application along with the acknowledgment and enclosures have been produced before this Court. The petitioner had rightfully had made an application before the expiry of three years from the date of his majority, such an application is deemed to be made well within the 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.

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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 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 3/7

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 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 4/7

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 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.'

5. 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 she had attained her majority.

6. In the instant case, the petitioner herein, had attained his majority on 28.12.2009 and he had made his application seeking for compassionate appointment on 26.05.2011 which was received by the second respondent on 27.05.2011, 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.

7. It would be pertinent to point out here that in all cases where claim is made for compassionate appointment, the concerned authorities are required to act efficaciously and speedily, since the very purpose of providing appointment on compassionate ground is to mitigate the hardship due to the death of the bread-earner in the 5/7

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.'

8. 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.

9. In the light of the above findings, the impugned order passed by the first respondent in his proceedings No.29568/K2/2014 dated 28.01.2016 is set aside. Consequently, the first respondent herein is directed to consider the petitioner's application received by the second respondent herein on 27.05.2011 and consider the same without reference to the three years period from the date of the death of the employee. Such consideration shall be made in the light of the observations made in this Writ Petition, atleast within a period of eight weeks from the date of receipt of a copy of this order. This Writ Petition stands ordered accordingly. No costs. Sd/- Assistant Registrar () // True Copy // / /2020 Sub Assistant Registrar(CS) DP To 1.The Inspector General of Registration, Santhome High Road, Chennai-28.

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2.The District Registrar, Virudhunagar, Virudhunagar District.

+1 CC to Mr.D.SADIQRAJA, Advocate ( SR-9656[F] dated 02/03/2020 ) Order made in 28.05.2020 VB (18.06.2020) 7P 4C 7/7