The prayer in the writ petition is to issue a Writ of Certiorarified Mandamus calling for the records of the second respondent in letter No.SE/KGC/MIN/001915-66/Nee Pe.2/wc 1/2005, dated 26.2.2005 and quash the same and consequently direct the respondents to appoint the petitioner herein in any suitable post on compassionate ground in the Tamil Nadu Electricity Board with all monetary and service benefits.
2. Heard the learned counsel for the petitioner and the counsel for the respondents.
3. The case of the petitioner is that the petitioner's father M.Marutha Raj was working as Vehicle Helper with the respondent. The petitioner's father died on 27.10.1999, while he was in service. After the death of the petitioner's father, the petitioner's brother submitted an application on 29.4.2002 for appointment on compassionate grounds and the same was not considered by the respondents on the ground that her brother has not passed 8th Standard. Thereafter, the petitioner submitted an application to the respondents on 10.6.2002 through certificate of posting. Again, the petitioner's mother submitted a representation for the petitioner's appointment to the respondent in person on 9.5.2005 and on 7.9.2004, tThe second respondent issued a letter on 14.9.2004 stating that they have not received any application within three years from the date of death of her father and the petitioner's claim for compassionate appointment is registered in his office on 30.10.2004. The petitioner submitted a representation along with her application dated 10.6.2002 with a proof to show the certificate of posting. The said representation was acknowledged by the second respondent on 9.11.2004 and the same was rejected by the impugned order. Again, the petitioner submitted a representation to the first respondent on 8.4.2005, which was also acknowledged by the first respondent on 12.4.2005 and the respondents failed to take any action. Hence, this writ petition was filed with the above said prayer.
4. The first respondent has filed a counter affidavit and denied the receipt of the application dated 10.6.2002 and also stated that the application now pending was made beyond three years and therefore, the same cannot be considered as per Board Proceedings dated 13.5.1995.
5. The Honourable Supreme Court in the decision reported in 2006 (9) SUPREME COURT CASES 195 (Syed Khadim Hussain vs. State of Bihar and Others) considered a similar issue as to whether a minor claimant seeking compassionate appointment can apply for a post on compassionate grounds after attaining majority. In paragraph-5 of the judgment, it is held as follows:-
" 5. .... 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 dependants are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application."
6. Identical issue was considered by a Division Bench of this Court in P. RAJAMANI VS. CHAIRMAN, TAMIL NADU ELECTRICITY BOARD, CHENNAI reported in 2006 LAB.I.C. 4163. In paragraph-6 of the judgment, it is held as follows:-
" 6. Having heard the submission made by the learned counsel for the respondents, we are not able to appreciate and accept the stand of the respondents. We hasten to state that the very purport of extending a helping hand to a destitute on the death of her husband by way of compassionate appointment would get defeated if such claims are turned down on such hyper-technical ground. In the case on hand, as noted earlier, after the death of the appellant's husband on 15.11.1996, an application was made on 7.4.1997 for compassionate appointment for her elder son. Therefore, there was an application for compassionate appointment within five months from the date of the death of her husband. It was unfortunate that the said application came to be rejected on the ground that her elder son was over aged. Such rejection was made only on 5.12.1998. Therefore, the appellant had to necessarily wait for some more time in order to renew her claim for appointment of her younger son who was running 18 years as on 11.11.1999. The said younger son completed his 18 years on 15.3.2000. Nevertheless, the appellant wanted to ensure that an application was made on 11.11.1999 itself for that son in order to confirm that an application for compassionate appointment was made well within time i.e., before 14.11.1999 by which time the three years period from the date of death of her husband would come to an end. Subsequently, on 1.4.2000, her younger son himself renewed the application preferred by the appellant on 11.11.1999 by making another application along with the no objection letters of his other brothers. Therefore, all the above steps taken by the appellant go to show that she was diligently pursuing her claim for compassionate appointment over the death of her husband right from the year 1997 till 1.4.2000. In such circumstances, when the appellant being a widow and since she had no other source of livelihood, the respondents should have been much more sympathetic and practical in considering the claim of the appellant for compassionate appointment to her younger son based on the application dated 11.11.1999 and 1.4.2000. In this context, the decision relied upon by the learned counsel for the appellant reported in 2004 (4) MLJ 238 and 2002(4)LLN 1132 as well as the decision of the Division Bench reported in 2005 W.L.R.256, cited supra, fully supports the claim of the appellant."
7. In the above said judgment, the rejection order was set aside by the Division Bench of this Court and the respondents were directed to entertain the application of the appellant in the writ appeal and pass appropriate orders for granting compassionate appointment to the claimant within a period of three months. In W.A.No.3050 of 2003, the Division Bench of this Court (Honourable P.Sathasivam, J., and S.K.Krishnan, J.) considered a similar issue and granted relief to a person, who was a minor when his father died while on duty and the application was submitted after 3 years of the death of his father due to the rejection of earlier application. In paragraphs-8 to 16, the Division Bench held as follows:-
" 8. ...... ..... No doubt, as per that proceedings, an application for appointment on compassionate ground should be made within three years from the date of death of an employee. The second application being 13.01.2003 and the date of death of her husband being 15.07.1996, the second respondent by applying the said B.P., rejected her request.
9. We have already referred to the letter of the second respondent dated 14.07.1999, which finds a place at page 11 of the typed set, wherein the second respondent, who is the competent officer while considering her application dated 10.07.1999 for appointment on compassionate ground has requested her to apply afresh after her son attaining majority (18 years). As said earlier, immediately on attaining majority, i.e., on 11.01.2003, the petitioner has made another application on 13.01.2003. In such a circumstance, particularly in the light of the statement made by the second respondent in his letter dated 14.07.1999 and of the fact that the petitioner has made a further representation on 13.01.2003, i.e., within a period of two days on her son attaining majority, as directed by the second respondent, we are of the view that the rejection of her representation based on BP.No.46 dated 13.10.1995 on the ground that her application is beyond the period of three years from the date of death of her husband cannot be sustained.
10. Mr. V. Radhakrishnan, learned counsel appearing for the respondents has very much relied on the following decisions in support of his submissions justifying the rejection of the petitioner's application.
(i) 1994 (2) S.C.C. 718;
(ii) 2000 (7) Supreme 83;
(iii) 2000 (7) S.C.C. 192;
(iv) 2004 (7) Supreme 691 and
(v) 2004 (7) S.C.C. 265.
We find that the following principles emerged from the above decisions.
(i) The Courts and Tribunals cannot confer benediction impelled by sympathetic consideration;
(ii) The Tribunal or the High court cannot compel the Department concerned to relax the ceiling of compassionate appointment and appoint a person;
(iii) There cannot be reservation of a vacancy till such time as the petitioner becomes major after number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief;
(iv) Appointments on compassionate ground have to be made in accordance with the Rules, Regulations or administrative instructions, taking into consideration the financial conditions of the family of the deceased; and
(v) Appointment on compassionate ground cannot be claimed as a matter of right. Died-in-harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee.
11. If we apply the above principles, no doubt the claim of the petitioner has to be rejected. However, in our case, the Electricity Board has framed a Scheme and formulated certain guidelines, as seen from B.P.46 dated 13.10.1995. As per the said proceedings, particularly Clause 3 (i), one of the main condition is that application for appointment on compassionate ground should be made within three years from the date of death of an employee. In our case, we have already observed that the petitioner made an application within three years period and one more factor in favour of the petitioner is that the second respondent himself has informed in his letter dated 14.07.1999 that her son being a minor, after attaining the age of 18 years, she would make another application. Pursuant to the same, she has made an application on 13.01.2003, i.e., within two days on her son attaining majority.
12. The learned counsel for the Board has brought to our notice that by proceedings dated 06.04.2002, the Tamil Nadu Electricity Board has deleted two conditions imposed in Boards Circular dated 14.06.1997, viz., (a) if the applicant is a minor, he has to make an application after attaining majority; and (b) fresh application after attaining majority will be considered based on the Rules of the Board applicable on that date. It is contended that since the above said Clauses have been deleted by the above referred proceedings dated 06.04.2002, which has come into force from 06.04.2002 itself, the second application of the petitioner dated 13.01.2003 cannot be considered as per BP.46, dated 13.10.1995, as her application is beyond the period of three years from the date of death of her husband. For the reasons stated in para 11 we are unable to sustain the said objection.
13. Though the learned single Judge while rejecting the request of the petitioner relied on Judgment of one of us (P. Sathasivam,J.) made in W.P.No.14134 of 1991 dated 25.01.1999 and the case of Union of India vs. Bhagwan Singh reported in 1995 (6) S.C.C. 476 as well as the case of State of U.P. vs. Parasnath reported in 1998 (2) S.C.C. 412, for the same reasons as stated in para 11 above, those judgments are not directly applicable to the case on hand. In the case of G. Vijayaraghavan vs. General Manager (P) Indian Bank reported in 2000 (3) L.L.N. 625, learned single Judge of this Court (P. Sathasivam,J.) in similar circumstance directed the Indian Bank to consider the claim of the petitioner therein, who made an application on attaining majority for employment on compassionate ground. In that decision, it is held that, irrespective of settlement of full term service gratuity and other benefits, eligible person can claim appointment on compassionate grounds.
14. In the case of D. Ramadoss vs. The Chief Engineer, T.N.E.B., reported in 2001 W.L.R. 601, the learned single Judge (D. Murugesan,J.) in an identical circumstance, relying on a very same Board Proceedings No.46 dated 13.10.1995, after noting the fact that the petitioner has made a request within the period of three years, as per the Circular, though there was enormous delay, directed the Electricity Board to consider the request of the petitioner therein for appointment on compassionate ground.
15. In W.P.No.24225 of 2001 dated 01.02.2002, the learned single Judge (K.P. Sivasubramaniam), had an occasion to consider similar claim against Tamil Nadu Electricity Board. Before the learned Judge, the father of the petitioner, who was employed in the Electricity Board died on 19.10.1996. On behalf of his legal heirs, an application dated 01.12.1997 was forwarded by the mother of the petitioner for seeking appointment on compassionate ground. The said application was also endorsed by the Superintending Engineer by his letter dated 07.01.1998 and the mother of the petitioner was directed to apply for appointment in due course after filing a formal application. Thereafter, the mother of the petitioner complied with the direction. However, the said application was returned by the respondents with an observation that the petitioners son was a minor as on that date and to submit an application after he attains majority. The petitioner, after attainment of majority of his son, by letter dated 08.06.2001, applied for appointment on compassionate grounds. However, by order dated 17.08.2001, the request of the petitioner was rejected on two grounds, namely, that the application has not been submitted within three years after the death of his father and the petitioner did not complete 18 years within three years. Rejecting both the grounds, the learned Judge has concluded that the limitation of three years from the date of the Boards Proceedings dated 13.10.1995 was contemplated only as a result of the said Circular having been issued afresh in the context of regulating appointments on compassionate ground. It is further held that the mention of the period of limitation cannot have any relevance to the case of the petitioner, who has been specifically directed to apply after completion of 18 years of his son. According to the learned Judge, Clause (3) of B.P.46 dated 13.10.1995 cannot apply to the facts of the present case. The learned Judge has also observed that the Department itself permitted the mother of the petitioner to renew her application after her son attains majority, which has been complied with. In such a circumstance, the learned Judge concluded that there is no justifiable reason to reject the application for appointment on compassionate ground and directed the Department to consider the application on merits. It is stated that the Department has accepted the said direction. Inasmuch as in the case before the learned Judge as well as before us, the initial application was made within time, because of the fact that the son of the deceased was a minor, mother was asked to apply after her son attains majority and in both the cases the application was made immediately after attaining majority, in such a circumstance, as rightly said, the second application cannot be rejected on the ground of delay. We are also satisfied that similar scheme in the form of Board Proceedings and conditions are not available in the cases of the Supreme Court relied on by the learned counsel for respondents. It is also brought to our notice that almost in similar circumstance, another learned single Judge of this Court (F.M. Ibrahim Kalifulla,J.) in the case of T. Meer Ismail Ali vs. T.N.E.B., reported in 2004 (3) C.T.C. 120 directed the Tamil Nadu Electricity Board to consider the claim of the petitioner therein.
16. Though we are conscious of the directions of the Supreme Court which we have already referred to in the earlier part of our order, in view of the Boards Proceedings referred to above and of the fact that the petitioner has made an application within three years from the date of death of her husband i.e., within the prescribed period and also made subsequent application as directed by the second respondent and also taking note of the assertion of the petitioner that after her husbands death, in the absence of any income, she is living in poverty, her claim has to be considered. In this regard it is worthwhile to refer the case of the Supreme Court in the case of Balbir Kaur vs. Steel Authority of India Ltd., reported in 2000 (6) S.C.C. 493, wherein their Lordships have held that in the case of appointment considering the social and economic justice as enshrined in the Constitution, denial of deserving cases are liable to be set aside. Further, the purpose of providing compassionate ground to a son or daughter or a near relative of the deceased government servant is to render assistance to the family, which is found in indigent circumstances. Hence in considering the case for compassionate appointments, the authorities are supposed to adopt a humane outlook. We do not find any delay or laches on the part of the petitioner, we are unable to accept the conclusion arrived at by the learned single Judge in our case and we are satisfied that the petitioner has made out a case for consideration of her claim. Accordingly, the order of the learned single Judge as well as the order impugned in the writ petition, viz., W.P.No.21512 of 2003 are set aside and the respondents are directed to consider the petitioners application dated 13.01.2003 on merits and provide necessary relief. Consequently, the writ appeal is allowed. "
8. The said judgment was affirmed by the Supreme Court in Civil Appeal No.2039 of 2006, dated 30.3.2010. The said order reads as follows:-
The Division Bench of the High Court has reversed the judgment of the learned Single Judge only on the ground of delay who directed compassionate appointment to the appellant. The appellant was a minor at the time of the death of his father and since the mother of the appellant applied within time, we are of the opinion that the appellant after becoming major should have been granted compassionate appointment.
Accordingly, we allow these appeals, set aside the impugned judgment of the Division Bench and restore the judgment of the learned Single Judge. No costs.
.....................J.
(MARKANDEY KATJU) NEW DELHI; .....................J.
MARCH, 30, 2010 (A.K. PATNAIK)"
9. During the pendency of the Civil Appeal in Indiraniammal case, a Division Bench of this Court considered a similar claim of another candidate in W.A.No.42 of 2007 and by order dated 2.7.2009, the Division Bench held as follows:-
" 3. The respondent by name P.Venkatesan is the son of Thiru Ponnusamy, who was employed as a Wireman in Vellore division of the Tamil Nadu Electricity Board. The father of the respondent died in harness on 20.3.99 leaving his wife, three daughters and the respondent as his legal heirs. At the time of the death of the father of the respondent, the respondent was aged about 12 years. After attaining the age of 18 years on 22.7.2005, on the same day, he made an application for appointment on compassionate ground. That application came to be rejected by the proceedings of the Superintending Engineer, Vellore Electricity Distribution Circle on the ground that he is not eligible as per the Board's proceedings, as he submitted the application after the cut-off period viz., the application should have been submitted within three years from the date of death of the board employee. The writ petition filed by the respondent came to be allowed following the judgment of this Court in T.Meer Ismail Ali v. Tamil Nadu Electricity Board through its Chairman and another, (2004) 3 CTC 120. Hence this appeal by the electricity board.
4. We have heard the learned counsel for the appellants and the learned counsel for the respondent.
5. The appellant-Board, admittedly, has evolved a scheme for providing appointment on compassionate ground. It appears that initially the scheme provided for the compassionate appointment to the dependants of the employees of the Board who died while in service without prescribing any time limit for the submission of application and that the sons/unmarried daughters, widowed or deserted daughters, divorced daughters should not be more than 30 years of age and in the case of widow 40 years on the date of death of the Board employee. Thereafter, the appellant-Board thought it fit to modify the scheme relating to compassionate appointment and issued the proceedings in Permanent B.P.Ms.(FB) No.46 (Adm.Branch) dated 13.10.95 by directing that (i) the application for appointment on compassionate grounds should be made within three years from the date of death of employees of the Board, (ii) the maximum age limit for such appointment be raised to 50 in the case of widows of the deceased employees of the Board and (iii) in case of already expired staff while in service the dependant should apply for employment assistance within three years from the date of issue of this order.
6. Nevertheless, the appellant-Board issued the proceedings in Memo No.147941/921/R.6(2)/96 dated 14.6.97, which reads as follows:-
"(1) As per the B.P.(F.B.) No.46 dated 13.10.1995, the legal heirs of the deceased employees shall give application within 3 years from the date of death of Board employee as mentioned in the letter under reference cited.
(2) Board employees who died prior to implementation of B.P.No.46 dated 13.10.1995, the legal heirs of the deceased employees shall apply for employment assistance within 3 years from the date of issue of the said B.P.
(3) If the applicants who applied for employment assistance within 3 years from the date of death and not completed 18 years of age, such cases will be requested to apply again after completion of 18 years of age.
(4) If the applicants applied again after completion of 18 years of age, the applicants will be intimated that such applications will be examined as per the Board's Rules in force at that time."
7. However, paragraphs (3) & (4) of the above memo dated 14.6.97 were sought to be withdrawn by the Board by a subsequent memo dated 6.4.2002 with effect from the said date. The respondent, after attaining the age of 18 years, has immediately made an application in terms of the memo dated 14.6.97. However, the said application was not entertained by the Board in view of the Board's proceedings dated 13.10.95. The application of the said circular dated 13.10.95 came up for consideration before this Court in the judgment in D.Ramadoss v. The Chief Engineer (Personnel), Tamilnadu Electricity Board, Chennai and another, 2001 Writ L.R. 601.
8. In fact, a similar question came up for consideration before a Division Bench of this Court in Writ Appeal No.3050 of 2003 dated 8.3.2005 (Indiraniammal v. The Chief Engineer (Personnel), Tamil Nadu Electricity Board, Chennai and another). The issue that fell for consideration before the Division Bench was not only the applicability of the circular dated 14.6.97, but also the subsequent cancellation of the provision for making an application even after a person attaining majority i.e., on 6.4.2002. The Division Bench in paragraph-16 set aside the subsequent circular dated 6.4.2002. Our attention was also drawn that though the said order was taken on appeal, the Supreme Court by judgment dated 11.8.2005 in S.L.P.(C) No.16518 of 2005, while directing the notice on the application for condonation of delay, further directed that the petitioner's case shall be considered in accordance with the judgment of the Supreme Court and subject to the result of the Special Leave Petition. In the absence of any stay order by the Supreme Court, the Division Bench judgment in Indiraniammal's case should alone be applied to the facts of this case.
9. Learned counsel appearing for the appellant-Board has brought to our notice the judgment of another Division Bench in E.Ramasamy v. Tamil Nadu Electricity Board rep.by its Chairman, Chennai and others, (2006) 4 MLJ 1080. The said judgment was rendered by following the circular dated 6.4.2002, whereby the provision for an application to be made even after a person attaining majority was deleted. Inasmuch as the validity of the very circular was put in issue before the earlier Division Bench in Indiraniammal's case and the same was set aside, in our considered opinion, with great respect to the Division Bench which rendered the judgment in Ramasamy's case, the judgment in Ramasamy's case cannot be applied, particularly when the challenge to the order of the Division Bench in Indiraniammal's case was not stayed by the Supreme Court. We have rendered the above finding by simply following the earlier Division Bench judgment in Indiraniammal's case and we are not embarking into the validity of the circular dated 14.6.97 or the subsequent circular dated 6.4.2002, as the matter is pending before the Supreme Court.
10. As we have already pointed out that the matter concerns only about the eligibility to make an application and not for an automatic appointment on compassionate ground, even in case if this Court directs the application to be entertained, it is open to the Tamil Nadu Electricity Board, the appellants herein to consider the application on its own merit and decide whether the applicant could be granted compassionate appointment or not. The consideration of the application for compassionate appointment is an exception to the general rule, where any vacant post in Government or public sector undertaking etc., should be filled up only by the usual method of recruitment as per the rules. Having regard to the fact that the Board themselves have come forward with a decision to entertain the applications from the candidates even after they attained majority, though there is a considerable lapse of time in making such application, it cannot now reject the application of the respondent on the ground that it was filed with considerable lapse of time.
11. For all the above reasons, we are of the considered view that the application made by the respondent cannot be rejected on the ground that it was filed after a lapse of time and the said application should be considered by the Board on its own merits and be disposed of within a period of two months. We once again make it clear that by the above direction, we do not mean that the respondent would be automatically entitled for compassionate appointment merely because we have directed the consideration of his application. With the above observation, the writ appeal is dismissed. Consequently, M.P.No.1 of 2007 is also dismissed. "
The learned counsel for the petitioner stated that no appeal is filed by the respondents against the said order till date.
10. In the light of the above judgments of the Supreme Court as well as the Division Bench judgments of this Court and having regard to the fact that the petitioner's application was rejected by order dated 26.2.2005 on the ground that she has not submitted the application within three years and the application was submitted by the petitioner's brother on 29.4.2002 and after the said rejection, the petitioner applied on 10.6.2002 and the proof of sending the application is filed in the typed set of papers and also the fact that the petitioner's family is still in indigent circumstances, I am of a firm view that the petitioner has made out a case to issue a mandamus directing the respondents to consider the claim of the petitioner seeking compassionate appointment without reference to the objection raised in the impugned order i.e., the petitioner has not applied within three years from the date of the death of the petitioner's father. Necessary revised order is directed to be passed by the respondents within a period of three months from the date of receipt of a copy of this order. No costs.
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