Heard both sides.
2.The petitioner is the wife of one Late S.Rajendran, who unfortunately passed away on 06.10.1990, leaving behind the petitioner (wife) and their only son R.Vinoth as his legal heirs.
3. The petitioner's husband was employed in the Rural Electricity Co-operative Society, Thirumayam before his death. Due to the death of her husband in harness, the petitioner applied to the said Electricity Co-operative Society for an employment assistance on compassionate grounds. The Managing Director of the said Society sent a letter dated 13.08.1993 to the petitioner stating that vacancy suitable to her educational qualification was not available and as soon as the vacancy arises, her claim will be considered on priority basis. Since then, there was no intimation from the said society.
4. However, the said Society was taken over by the Tamil Nadu Electricity Board, i.e., the first respondent by the order of the Government. The merger took place on 06.04.2002. All the assets along with the work force were taken over by the Board and fitted with appropriate position with continuity of service.
5. In the mean while, the petitioner's son Vinoth had become major. He had also completed his Plus Two Course. Therefore, the petitioner made a representation during the year 2001 seeking for a compassionate appointment to her son. But no orders were passed on her representation. The second respondent herein by an impugned order dated 26.12.2008 informed that Thirumayam Rural Electricity Co-operative Society was merged with the Electricity Board on 06.04.2002. In terms of the Board proceedings No.19 dated 20.07.2006, the employment on compassionate ground to legal heirs of the deceased workmen will be given, if they died on or after 06.04.2002. The petitioner's husband died even as early as 06.10.1990 and hence, she is not eligible for any compassionate appointment. It is this order the petitioner has chosen to challenge in this writ petition.
6. On notice to the respondents, a copy of the Board proceedings was produced. In that Board Proceedings, apart from absorption of employees into Board service after the acquisition of the Society wherein, employees both belonged to Provincial Cadre as well as Regular Work Establishment numbering 154 were absorbed. With reference to employment on compassionate ground, in paragraphs 13 and 14, it was stated as follows:
"13.The following 3 employees have expired on the date noted against each after the take over of the Administrative functions of Thirumayam Rural Electric Co-operative Society by the Tamil Nadu Electricity Board Sl.No.
Name and Designation Date of expired 1 Thiru P.Selvaraj, Helper 17.04.2003 2 Thiru T.Singaram, Wireman 11.06.2004 3 Thiru M.Selvamani, Wireman 19.03.2005
14. The Board hereby directs that one of the legal heirs of the deceased may be considered for appointment on Compassionate Grounds subject to rules and regulations of the Board. However, the period of 3 years to apply for compassionate appointment shall be reckoned from the date of this B.P."
7. The two issues arises for consideration are: i)Whether the Board was correct in fixing the cut-off date, namely, 06.04.2002 as the date for grant of compassionate appointment?
ii)Whether the petitioner is entitled for compassionate appointment on the ground of death of her husband as early as 1990 i.e. 19 years before the filing of the writ petition?
8. In so far as the first issue is concerned, the question is whether the terms and conditions of the erstwhile employer can be enforced against a new employer in view of the merger of the erstwhile establishment. A Division Bench of this Court presided by M.Srinivasan, J.(as he then was) vide its judgment in Indian Bank (represented by its Chairman and Managing Director v. K.Usha and another reported in 1993 II LLN 739, held that if there is a settlement regarding compassionate appointment entered into between the workmen and the erstwhile employer, such settlement will be continued to be binding on the new employer who took over the service of such employees along with the establishment. In that case, the scheme of amalgamation even though did not provide for appointment on compassionate grounds, the existing settlement under
Section 18(1) of the I.D.Act can be enforceable against the new employer.
9. The matter was taken to Supreme Court by the Indian Bank. The Supreme Court dismissed the appeal vide its judgment in Indian Bank v. K.Usha and another reported in (1998) 2 SCC 663. The Supreme Court framed three issues. The first issue is set out in paragraph 5.1 in the said judgment, which is as follows:
"5. In support of these appeals learned Senior Counsel, Shri N.B.Shetye, who appeared in Civil Appeal No.3619 of 1993 which was taken up as a lead case and Shri Ambrish Kumar, learned counsel for the appellant-Bank in the rest of the appeals, raised for our consideration the following contentions:
i) The Scheme of Amalgamation limits the liability of the transferor-Bank only to the extent provided in clause 10 of the Scheme of Amalgamation which pertains to the then existing employees of the transferor-Bank who were taken over by the transferee-Bank and the said scheme did not cover the transferor-Bank's liability under the settlement to provide compassionate appointments to the heirs of its deceased employees who might have died in harness and consequently the High Court was in error in issuing mandamus to the appellant to absorb all these respondents in service of the Bank."
10. The answer to the first issue is found in Paragraph 15 of the said judgment, which is as follows:
"15. ... In the facts of the present case, as seen earlier, neither clause 2 nor clause 10 of the Scheme represents any provision regarding compassionate appointments to be given to the heirs of the ertstwhile deceased employees of the transferor-Bank. Hence there is no occasion for the said clauses of the Scheme to project any contrary express provision to override or to supersede the provisions contained in 2(p) Settlement which was binding on the transferor-Bank and which if binding on the transferee-Bank would remain operative to the extent benefit thereunder is available to the claimants concerned like the respondents herein. In the light of the relevant clauses of the Amalgamation Scheme, therefore, it is not possible to agree with the contention of the learned Senior Counsel for the appellant that no liability could be imposed on the appellant-Bank so far as the claim of the respondents for compassionate appointments was concerned."
(Emphasis added)
11. The Supreme Court in U.P.State Electricity Board v. Pooran Chandra Pandey and others reported in 2007 AIR SCW 6904 dealt with the case of Workmen of a Rural Co-operative Society being taken over by the U.P.Electricity Board. At the time of take over, they were only temporary employees and whether they are entitled for regularisation in the Electricity Board came up for consideration. In paragraph 17 of the said judgment, it was observed as follows:-
"17. In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-a-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board 'in the same manner and position". Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the Society before 4.5.1990 they cannot be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularization of the employees of the Electricity Board who were working from before 4.5.1990. To take a contrary view would violate Article 14 of the Constitution. We have to red Uma Devi's case (supra) in confirmity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with
Article 14. The Constitution is the surpeme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution."
12. Though Pooran's Chandra Pandey's case (cited supra) was subsequently considered and some of the observations regarding Umadevi's case were found to be out of the mark, so far as this passage is concerned, there is no controversy. But at the same time, since the petitioner's husband died as early as 1990 and there was no possibility of any employment being given to her or to her son during the 12 years existence of the Society, namely till 2002. Her claim to get compassionate appointment as a matter of right did not arise after a period of 12 years. Any contra view will be in conflict with the Division Bench judgment of this Court presided by A.P.Shah,C.J.(as he then was) in E.Ramasamy vs. TamilNadu Electricity Board. All the previous cases on the issue were elaborately gone into and finally it was held that belated claims cannot be entertained by the Board.
13. In the light of the above, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
svki To
1.The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai 600 002.
2.The Chief Engineer (Establishment) Tamil Nadu Electricity Board, No.144, Anna Salai, Chennai 600 002