The mother of the petitioner was employed in Thovalai Panchayat Union as Maternity Ayah. She died on 26.08.1973, leaving her daughter, the petitioner herein, who was below one year of age at that time. The father of the petitioner was employed in Nesamony Transport Corporation, when the mother of the petitioner died. Her father entered into second marriage in the year, 1974. After the second marriage, he did not take care of the petitioner and the petitioner was taken care of by her maternal grandmother. The petitioner had applied for compassionate appointment on the basis of Tasildhar's report that the family is in indigent circumstances, and based on the bond executed by the father of the petitioner that he did not take care of the petitioner, after the second marriage in the year 1974. The petitioner was given compassionate appointment by the second respondent by an order dated 18.1.96.
2. The compassionate appointment was given in accordance with Government Order in G.O.Ms.No.155, Labour and Employment Department, dated 16.07.1993. As per the said Government Order, if any member of the family of the deceased government servant is in employment, either in government service or in private employment, 3 the dependants of the deceased government servant are not entitled for compassionate appointment, since it is considered that the family was not in indigent circumstances. However, an exception is made in paragraph 3 of the said Government Order.
3. As per paragraph 3 of the Government Order, if the member of the family, who is in employment, does not support the family of the deceased government servant, such an employment would not be a disqualification for giving compassionate appointment. Paragraph 3 of the Government Order in G.O.Ms.No.155, Labour and Employment Department, dated 16.07.1993, is extracted hereunder:
" 3. In regard to the second condition mentioned in para 1 above, it is considered that if a member of the family is already in employment and supports the family then the restriction may be applied. When a dependent of the family is employed, the factors to be ascertained are, whether he is regularly employed and is actually supporting the family. If that person was employed even before the death of the Government servant and was living separately without extending any help to the family, then the case of other eligible dependants will be considered".
4. The second respondent had sent a proposal for regularisation of the service of the petitioner to the first respondent through the Director of Rural Development, Chennai, by his proceedings, dated 27.4.98. The Director of Rural Development had forwarded the proposal of the second respondent to the Government by his proceedings, dated 13.7.98, for issue of orders for regular appointment.
5. While so, the first respondent had passed the impugned order in G.O.(2D) 1 Rural Development (E7) Department, dated 3.1.2002, refusing to regularise the appointment made by the second respondent by the order, dated 18.1.96. The reason for terminating the compassionate appointment was that when the mother of the petitioner died while in service, the father of the petitioner was in employment. According to this impugned G.O.(2D) 1 Rural Development (E7) Department, dated 3.1.2002, since the father of the petitioner was in employment, the petitioner is not entitled to get compassionate appointment as per the existing rules. Based on the Impugned G.O.(2D) 1 Rural Development (E7) Department, dated 3.1.2002, the second respondent passed the consequential order, dated 8.2.2002, terminating the appointment of the petitioner. It is 5 thereafter, the petitioner filed the original application in O.A.No. 689 of 2002 before the Tamilnadu Administrate Tribunal and obtained an order of interim stay and the same is still in force. By virtue of the same, the petitioner is still in employment.
6. On abolition of the Tamil Nadu Administrate Tribunal, the above said original application was transferred to this Court and renumbered as W.P.No.11632 of 2007.
7. Heard, M.L.Chandrakumar, learned counsel for petitioner and Ms. C.K. Vishnupriya, learned Additional Government Pleader appearing for the respondents.
8. The counsel for the petitioner, by relying on Paragraphs 3,4 & 5 of the reply affidavit filed by the second respondent, submits that the said paragraphs support the case of the petitioner. According to the learned counsel, it has been categorically stated in the reply affidavit that the appointment of the petitioner was made only after ascertaining the indigent circumstances of the family and based on the bond executed by the father of the petitioner that he did not take care of the petitioner after his second marriage in the year 1974, after the mother of the petitioner died, on 26.8.1973.
8. Paras 3 to 5 of the reply affidavit are extracted hereunder:-
" 3. Regarding paragraphs VI (1 to 4) of the application, it is submitted that Tmt. V. Subbulakshmi, Maternity Ayah, Thovalai Panchayat Union expired while in service on 26.08.73. Her daughter Selvi V.Indira who was below one year of age at that time, later applied for compassionate ground appointment as Junior Assistant in the Panchayat Development Unit of Kanniyakumari District on 23.11.94. At the time of death of Tmt. V.Subbulakshmi, her husband, Thiru. S.Bhoothalingam Pillai was working as Driver in Nesamony Transport Corporation and he got 2nd marriage in the year 1974 and was living separately without extending any help to Selvi V.Indira as seen from the bond executed by her father before a Notary Public. The G.O.Ms.No.155 Labour and Employment Department dated 16.07.93 direct that if a member of the family is already in employment and supports the family, then there will be restriction that another member of the family should not be normally considered for compassionate ground appointment. When a dependent of the family is employed, the factors to be ascertained are whether he is regularly employed and is actually supporting the family of that person was employed before the death of the Government Servant and was living separately without extending any help to the family, then the case of other eligible dependents will be considered.
4. On the basis of Tahsildar's report that the family is in indigent circumstances, bond executed by Thiru.S.Bhoothalingam pillai and in view of the provisions in the above G.O. i.e. other family members are not extending any support to Selvi V. Indira who was living separately under her grandmother's custody, Selvi V. Indira was appointed temporarily as Junior Assistant on compassionate ground as per Collector's proceedings No.Roc.D7/99383/94 dated 18.01.96 subject to later regularisation by Government in consultation with Tamilnadu Public Service Commission and she joined duty on 19.1.96 A.N.
5. Later, regularisation proposal in respect of Selvi V. Indira had been sent to the Secretary to Government, Rural Development Department through the Director of Rural Development, Chennai in Collector's Lr.No.D7/5038/98 dated 27.04.98. The Director of Rural Development forwarded the above proposal to the Government in his lr.No.99364/98/D2 dated 13.07.98 for issue of orders for regular appointment. As per rules, all service benefits and monetary benefits will be extended to the persons who have been appointed on compassionate ground, only after their appointment is regularised by Government."
Thus, the learned counsel for petitioner submits that in view of the aforesaid reply affidavit of second respondent, the writ petition has to be allowed.
9. The reply affidavit reveals that the Government Order in G.O.Ms.No.155, Labour and Employment Department, dated 16.07.1993, was taken into account, before issuing the compassionate appointment. The second respondent has stated that employment of a member of the family of the deceased government servant is not a bar for providing compassionate appointment, in cases, where the member of the family of the deceased government servant, who is in employment, does not support the dependents after the death of deceased government servant. It is specifically stated by the second respondent that the Government Order permits providing compassionate appointment in those cases. The second respondent sent proposals for regularisation, to first respondent, only in accordance with the G.O.155 referred to above. Thus, the submissions of the learned counsel for the petitioner are well founded.
10. In such circumstances, when the second respondent had sent the proposal of regularization through the Director of Rural Development recommending for regularization, the first respondent, without applying his mind to the Government Order in G.O.Ms.No.155, Labour and Employment Department, dated 16.07.1993 and proposals of the Collector that the family is in indigent circumstances, passed the impugned order, canceling the appointment given to the petitioner. Therefore, the impugned order is liable to be quashed and it is accordingly quashed. In view of the quashing of the impugned order, the petitioner is entitled to the increments and all other benefits accrued thereupon.
The writ petition is allowed. No costs.
sms To
1. The Secretary, Government of Tamilnadu Rural Development Department, Fort St.Geroge, Chennai 9.
2. The District Collector of Kanyakumari District at Nagercoil