Mr.V.Rajasekaran, learned Special Government Pleader has taken notice for the respondents. By consent of both sides, the Writ Petition is taken up for final hearing at the stage of admission.
2. The petitioner has come forward with this petition seeking for the relief of Writ of Certiorarified Mandamus to quash the impugned letter No.S.34/24559/07 dated 31.12.2008 on the file of the first respondent and to direct the first respondent to appoint the petitioner as a Junior Assistant or any other competent post under him on compassionate ground.
3. The case of the petitioner is that his father was working as a Record Clerk under the third respondent herein died on 23.11.1980, while he was in service. At that time, the petitioner was eight months old infant. Subsequently on 04.10.1994, the mother of the petitioner sought for the relief of appointment of the petitioner on compassionate ground by submitting an application dated 14.10.1994. On 08.02.1995, the first respondent sent a letter to the mother of the petitioner advising her to apply after attaining the age of majority of the petitioner. The petitioner attained the age of majority on 15.06.1998 and preferred a representation, dated 25.07.1998, seeking for the relief of compassionate appointment. The third respondent sent the communication on 26.11.1998, to the first respondent recommending the claim of the petitioner for appointment on compassionate ground as a Clerk by referring G.O.Ms.No.120 dated 26.06.1995, which provides for the appointment on compassionate ground. As there was no further action, the mother of the petitioner sent another representation on 14.10.2001. On 08.10.2001, the third respondent requested the first respondent to obtain a suggestion from the Government regarding the appointment of the petitioner. On 16.10.2001, the second respondent sent a communication to the mother of the petitioner stating that the petitioner would be given appointment after getting proper order from the first respondent. But on 22.08.2003, it was informed by the third respondent that new appointment on the basis of compassionate ground was banned by the Government in G.O.No.212/p.c./dept/dated 29.11.2001. On 20.02.2006, the second respondent informed the mother of the petitioner that the ban was lifted.
4. The Chief Engineer, PWD Department, Chennai sent a letter to the petitioner asking his consent for appointment to the post as a Typist or Junior Assistant. On 30.04.2007, the petitioner expressed his consent for such appointment. But in spite of all these communications, the first respondent passed the impugned order dated 31.12.2008, rejecting the claim of the petitioner for the appointment on compassionate ground on the ground that the petitioner has not preferred his application seeking for the appointment within a period of three years from the date of death of his father. Aggrieved against the said order, the petitioner has been constrained to approach this Court with the aforesaid prayer.
5. Mr.T.Lajapathi Roy, learned counsel for the petitioner contended that the petitioner preferred an application well within the period of three years after attaining the age of his majority and as such the impugned order is liable to be quashed. It is contended that the period of three years is to be reckoned only from the date of the petitioner attaining majority as the father of the petitioner died on 23.11.1980 and the petitioner attained the age of majority only on 15.06.1998 and the petitioner preferred a representation immediately on 25.07.1998. It is pointed out that even prior to the date of attaining majority, the mother of the petitioner preferred an application on 14.10.1994, seeking for the relief of compassionate appointment of the petitioner. Therefore, it is contended that the impugned order is unsustainable.
6. Heard Mr.V.Rajasekaran, learned Special Government Pleader on the submissions made by the learned counsel for the petitioner. It is submitted that the claim of the petitioner was rejected earlier on the ground of ban of making fresh appointments and later by passing the impugned order on the ground that the petitioner has not submitted his application within a period of three years from the date of death of the deceased viz., the father of the petitioner. Therefore, it is contended that there is no infirmity or illegality in the impugned order.
7. I have carefully considered the rival contentions put forward by either side and also perused the materials available on record.
8. The fact remains that the father of the petitioner was working as a Record Clerk in the third respondent and he died while he was in service on 23.11.1980 and at that time, the petitioner was a minor. It is pertinent to note that the mother of the petitioner preferred an application as early as on 14.10.1994 seeking for the relief of appointment of the petitioner on compassionate ground. But the first respondent through his communication dated 08.02.1995, advised the mother of the petitioner to prefer an application after the petitioner attaining the age of majority. It is seen that the petitioner attained the age of majority on 15.06.1998 and within a period of three years from that date, he has preferred his representation on 25.07.1998 itself claiming for the appointment on compassionate ground. The second respondent also recommended to accept the claim of the petitioner as per his communication dated 25.07.1998 to the third respondent. Again on 26.11.1998, the third respondent sent a letter to the first respondent recommending the claim of the petitioner for appointment as a Clerk on compassionate ground, by referring the G.O.No.120 dated 26.06.1995, which provides for the appointment on compassionate ground within a period of three years from the date of death of the government service.
9. As there was no further progress, the mother of the petitioner preferred yet another representation dated 14.10.2001. On 16.10.2001, the second respondent sent a communication to the mother of the petitioner stating that the claim is under consideration and progress. But on 22.08.2003, the third respondent informed the mother of the petitioner that there was a ban as per G.O. in G.O.No.212/p.c./dept, dated 29.11.2001 for making fresh appointments. Again on 20.02.2006, the second respondent informed the mother of the petitioner that such ban was lifted.
10. The Chief Engineer, (Building), PWD Department, Chennai, sought for consent of the petitioner for appointing the petitioner as Typist or Junior Assistant and the petitioner consented for the same. But in spite of all these sequence of events and communications, the first respondent passed the impugned order on 31.12.2008 rejecting the claim of the petitioner on the sole ground that the petitioner has not preferred the application within a period of three years from the date of the death of his father.
11. It is pertinent to note that the said order is in printed form. There is absolutely no reference whatsoever in respect of the previous communication sent by the respondents 1 to 3. It is seen that the petitioner was a minor at the time of the death of his father on 23.11.1980. It is pertinent to note that the petitioner attained the age of majority on 15.06.1998 and he immediately preferred an application on 25.07.1998 well within the period of three years from the date of attaining his age of majority.
12. In a catena of decisions, this Court has categorically held that the period of limitation of three years is to be reckoned from the date of attaining the age of majority. It is worthwhile to refer the said decisions as hereunder:
(i) 2006 (9) SCC 195 (SYED KHADIM HUSSAIN v. STATE OF BIHAR) in which the Hon'ble Apex Court in a similar matter has held hereunder:- "The widow had applied for appointment within the prescribed period and without assigning any reasons the same was rejected. When the appellant submitted the application, he was 13 years' old and the application was rejected after a period of six years and that too without giving any reason and the reason given by the authorities was incorrect as at the time of rejection of the application he must have crossed 18 years and he could have been very well considered for appointment. Of course, in the rules framed by the State there is no specific provision as to what should be done in case the dependents are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application. As the widow had submitted the application in time, the authorities should have considered her application. As eleven years have passed, she would not be in a position to join the Government service. This is a fit case where the appellant should have been considered in her place for appointment. Counsel for the State could not point out any other circumstances for which the appellant would be dis-entitled to be considered for appointment. In the peculiar facts and circumstances of this case, the respondent authorities are directed to consider the application of the appellant and give him appropriate appointment within a reasonable time at least within a period of three months."
(ii) 2009 (4) MLJ 424 (R.D.RAJESH KANNA v. CHAIRMAN-CUM-MANAGING DIRECTOR, NATIONAL INSURANCE CO., LTD.,)
(iii)"This Court in T.Meer Ismail Ali.T. Vs. The Tamil Nadu Electricity Board, Chennai reported in 2004 (3) CTC 120 held as follows; "I am, therefore, of the view that the petitioner's case deserves consideration inasmuch as he had diligently made a claim once in the year 1997 and thereafter, immediately after attaining the age of 18, in the year 2000 and in such circumstances, rejection of his application on the ground that it was not made within three years was not justified."
(iv)This Court in another decision in Selvi R.Anbarasi Vs. Chief Engineer (Personnel), T.N.E.B., Chennai reported in (2006) 2 M.L.J., 2006 held as follows;
"The learned counsel for the petitioner submitted that a similar issue, rejecting the compassionate ground appointment on the ground that the application was submitted beyond three years and the same was rejected earlier on the ground that the petitioner therein has not completed 18 years of age, was considered by this Court in W.P.No.1584 of 2001 and this Court held that the applications having been made within a period of three years and the same having not been considered on the ground that the petitioner therein was not 18 years of age at that time, the subsequent application cannot be rejected on the ground that the application was submitted within three years. The learned Judge directed the respondents not to treat the second application as an application for compassionate appointment, but it is to be treated as continuation of the application originally submitted. The said judgment is reported in T.Meer Ismail Ali Vs. Tamil Nadu Electricity Board through its Chairman, and others, (2004) 3 C.T.C. 120. This Court, ultimately, directed the respondents to give compassionate appointment to the petitioner therein."
(v)This Court in yet another decision in A.Neppolian Vs. The Chief Engineer (Personnel), T.N.E.B. Chennai and another reported in MANU/TN/9306/2006 held as hereunder;
"(c) In W.P.No.8154 of 2002 (A.Govindan v. The Chief Engineer (Personnel), TNEB, Chennai and Anr.) the Hon'ble Mr.Justice N.V.Balasubramaniam, by order dated 9.4.2002 allowed similar writ petition with a direction to treat the application submitted as within the time.
(d) The Hon'ble Mr. Justice P.D.Dinakaran by order dated 23.9.2003 in W.P.No.19673 of 2003 (J.Jayakaran v. The Superintending Engineer, Theni Electricity Distribution Circle, Theni) allowed the writ petition and directed the TNEB to pass orders granting compassionate appointment. Paragraph 5 in the said order reads as under;
"It is true that when an application was made for employment of the petitioner, i.e., on 23.05.2002, the petitioner was only a minor, but not qualified. But he had attained majority on 02.06.2003 and therefore, the respondent Board, having kept the application of the petitioner for employment on compassionate ground under consideration, ought to have considered the case of the petitioner for suitable employment without rejecting the same on technical reason, by the impugned order dated 18.06.2003. Since B.P.No.146 dated 13.10.1995 prescribes only a maximum period of three years for consideration of the application for appointment on compassionate ground, the respondent shall consider the request of the petitioner for employment on compassionate ground and pass appropriate orders within twelve weeks from the date of receipt of copy of this order, if the petitioner is otherwise qualified for suitable post."
(vi)Lastly a Division Bench of this Court 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. v. 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 v. 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 Manu/TN/0337/2004, 2004(3) CTC 120, (2004) 4 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.
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 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 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 years after he/she attains the majority."
13. The principles laid down by this Court and as well as by the Hon'ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case, as in this case also, the petitioner preferred the application seeking for the appointment on compassionate ground well within the period of three years as the petitioner attained the age of majority on 15.06.1998 and the application was submitted on 25.07.1998. Therefore, this Court is of the considered view that the impugned order is liable to be quashed. Accordingly, the Writ Petition is allowed and the impugned order of the first respondent in his letter in S.34/24559/07 dated 31.12.2008 is hereby set aside. Consequently, the respondents are hereby directed to appoint the petitioner in respect of any suitable post as per his eligibility. It is made clear that the above said exercise should be completed within a period of twelve weeks from the date of receipt of a copy of this order. No costs.
RR To
1.The Principal Chief Engineer Water Resources cum Chief Engineer (Public) Public works Department, Chepauk, Chennai.
2.The Executive Engineer (Public) Building Construction and the Administration Theni District.
3.The Superintendent Engineer Public Work Department Building Construction and Administration No.2 Madurai District.