Madras High Court
S.Vignesh Kumar vs The Managing Director on 5 March, 2021
W.P.(MD).No.3290 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD).No.3290 of 2018
and W.M.P.(MD).No.3432 of 2018
S.Vignesh Kumar ... Petitioner
Vs.
1.The Managing Director,
Tamil Nadu Civil Supplies Corporation,
Kilpauk,
Chennai – 600 010.
2.The Senior Grade Zonal Manager,
Tamil Nadu Civil Supplies Corporation,
Zonal Office, Thanjavur,
Thanjavur District.
3.M.S.Munusamy .. Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India, for
issuance of Writ of Certiorarified Mandamus, to call for the records pertaining
to the impugned order in Na.Ka.No.AE9/28713/2015, dated 19.04.2016, on the
file of the respondent No.1 and quash the same as illegal and consequently, to
direct the respondents to provide compassionate ground appointment to the
petitioner within the time stipulated by this Court.
For Petitioner : Mr.T.Lajapathi Roy
For Respondent : Mr.P.Seetharaman
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1/12
W.P.(MD).No.3290 of 2018
ORDER
Heard the learned counsel appearing for the petitioner and the learned
counsel appearing for the respondents.
2.The petitioner's father namely Santhanamoorthy, who was an
employee in the respondent Corporation, died on 28.10.2001. Subsequently,
the petitioner's mother made an application seeking compassionate
appointment, came to be rejected on 10.11.2009, on the ground that she was
uneducated. In this background, the petitioner herein, who is the daughter of
the deceased employee had made an application on 01.11.2014, which was
rejected on 28.09.2015, stating that she had not made an application within a
period of three years from the date of majority. This Court had a caution to deal
with the similar issue on belated applications in the case of S.Ramadevi Vs.
State through Secretary to Government, Rural Development Department, Fort
St. George, Chennai and others in W.P.(MD).No.20293 of 2018, whereby, it was
held as follows:
“5.Certain brief facts with regard to the consideration of an
application for compassionate appointment requires to be
mentioned here. As on the date of consideration, the guidelines
for consideration have been streamlined and comprehensive
factors have been stipulated by the Government in G.O.Ms.No.
18, Labour and Employment (Q1) Department, dated
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W.P.(MD).No.3290 of 2018
23.01.2020. The said Government Order is in supersession of
all the earlier Government Orders, in which, guidelines have
been stipulated for consideration of an application for
compassionate appointment.
6.Likewise, various court orders have also been passed
touching upon the factors for consideration of an application
and in two decisions of this Court in A.Kamatchi Vs. The
Chairman TNEB, reported in 2013(2) LWC 758 and The
Secretary to Government Vs. Ronukadevi passed in W.A.No.
269 of 2012, dated 04.06.2012, the conflicting decisions were
referred to a Full Bench and by an order, dated 11.03.2020, the
reference was answered.
7.The crucial question that arises for consideration in the
present writ petition is as to whether the comprehensive
guidelines issued in G.O.Ms.No.18, dated 23.01.2020, or the
Judgment of the Honourable Full Bench passed in the W.P.No.
7016/2012 etc., could be relied upon for the purpose of
proceeding with the present case.
8.In the instant case, the petitioner's request for compassionate
appointment was rejected in the year 2007. When the issue as
to whether the subsequent developments relating to the change
in the guidelines for consideration of an application for
compassionate appointment came up for consideration before
the Honourable Supreme Court in a recent judgment passed in
the case of N.C.Santhosh Vs. State of Karnataka and others
reported in 2020 7 SCC 617, it was held that the yardstick that
requires to be applied for the purpose of consideration would
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W.P.(MD).No.3290 of 2018
be the norms that prevailed on the date of consideration of the
application for compassionate appointment. The relevant
portion of the order reads thus:
“17. A two judges bench headed by Justice Uday U.
Lalit noticed the Supreme Court’s view in SBI vs. Raj
Kumar (supra) and MCB Gramin Bank vs.
Chakrawarti Singh (supra) on one side and the
contrary view in Canara Bank & Anr. vs. M. Mahesh
Kumar (supra) and felt the necessity of resolution of
the conflicting question on whether the norms
applicable on the date of death or on the date of
consideration of application should apply.
Accordingly, in State Bank of India & Ors. vs. Sheo
Shankar Tewari6 the Court referred the matter for
consideration by a larger Bench so that the
conflicting views could be reconciled.
18. The above discussion suggest that the view taken
in Canara Bank & Anr. vs. M. Mahesh Kumar (supra)
is to be reconciled with the contrary view of the
coordinate bench, in the two earlier judgments.
Therefore, notwithstanding the strong reliance placed
by the appellants counsel on Canara Bank & Anr. vs.
M. Mahesh Kumar (supra) as also the opinion of the
learned Single Judge of the Karnataka High Court in
Uday Krishna Naik vs. State of Karnataka & Ors.7, it
can not be said that the appellants claim should be
considered under the unamended provisions of the
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W.P.(MD).No.3290 of 2018
Rules prevailing on the date of death of the
Government employee.
19. In the most recent judgment in State of Himachal
Pradesh & Anr. vs. Shashi Kumar8 the earlier
decisions governing the principles of compassionate
appointment were discussed and analysed. Speaking
for the bench, Dr. Justice D.Y. Chandrachud
reiterated that appointment to any public post in the
service of the State has to be made on the basis of
principles in accord with Articles 14 and 16 of the
Constitution and compassionate appointment is an
exception to the general rule. The Dependent of a
deceased government employee are made eligible by
virtue of the policy on compassionate appointment
and they must fulfill the norms laid down by the
State’s policy.
20. Applying the law governing compassionate
appointment culled out from the above cited
judgments, our opinion on the point at issue is that
the norms, prevailing on the date of consideration of
the application, should be the basis for consideration
of claim for compassionate appointment. A dependent
of a government employee, in the absence of any
vested right accruing on the death of the government
employee, can only demand consideration of his/her
application. He is however disentitled to seek
consideration in accordance with the norms as
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W.P.(MD).No.3290 of 2018
applicable, on the day of death of the government
employee.”
9.Thus, there has arisen a situation, whereby, the petitioner's
application was rejected on certain regulations, which
prevailed in the year 2007 and the preposition was
subsequently, diluted through the subsequent decisions of the
Full Bench, as well as through G.O.Ms.No.18, dated
23.01.2020. However, by applying the ratio laid down in
N.C.Santhosh's case supra, it can be held, that the norms that
prevailed on the day when the petitioner's application was
rejected by the respondents, would be the yardstick for
consideration. Consequently, the subsequent decisions or the
Government order, may not have applications in the present
case.
10.In this background, when the mode for consideration of an
application for compassionate appointment, which was rejected
on the ground that it was not submitted within the stipulated
period and subsequently, submitted by the legal heir belatedly,
came up for consideration before the Honourable Apex Court in
Syed Kadim Hussain Vs. State of Bihar, reported in 2006 (9)
SCC 195, the Honourable Supreme Court has held that when
the widow had submitted the application in time to the
authorities and the same was rejected without assigning
reasons, the subsequent application which was belatedly made
by her son, after he attained the age of 18 years, would be
within time. The relevant portion of the order reads thus:
“5.We are unable to accept the contention of the
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W.P.(MD).No.3290 of 2018
Counsel for the State. In the instant case, 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.
6.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.
In our opinion, this isa fit case where the Appellant
should have been considered in her place for
appointment. Counsel for the State could not point
out any other circumstance for which the Appellant
would be disentitled to be considered for
appointment. In the peculiar facts and circumstances
of this case, we direct the Respondent authorities to
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W.P.(MD).No.3290 of 2018
consider the Application of the Appellant and give
him appropriate appointment within a reasonable
time at least within a period of three months. The
Appeal is disposed of in the above terms. No costs.”
Similar claim of the deceased Tamil Nadu Electricity
Board Employee was considered and relief granted by
the Division Bench of this Court in Indirani Amal V.
Chief Engineer, TNEB, W.A.No.3050 of 2003, dated
08.03.2005 (P.Sathasivam, J (as he then was) and
S.K.K., J). The said decision was confirmed by the
Supreme Court in Civil Appeal No.2039 of 2006,
dated 30.03.2010. Another Division Bench of this
Court in W.A.No.42 of 2007, dated 02.07.2009 also
took the same view, which was also confirmed by the
Supreme Court in S.L.P.(C).No.8305 of 2010, dated
06.07.2010. The contra view taken by another
Division Bench of this Court was set aside by the
Supreme Court in Civil Appeal No.2858-2859 of
2010, dated 30.03.2010.”
11.When such a legal preposition held the field for a
considerable time, atleast when the impugned rejection order
was passed in the present case, it can be construed that the law
that prevailed at the time when the petitioner's request was
considered, would be the decision in Syed Kasim (supra). In
view of the law laid down by the Honourable Supreme Court in
the case of N.C.Santhosh (supra) that the appropriate norms to
be considered on the crucial date of consideration would be the
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W.P.(MD).No.3290 of 2018
law prevailing at that point of time and therefore, in view of the
decision in Syed Kasim case (supra), the petitioner's
application, which was made after he completed the age of 18
years, may not be termed as a belated application.
Consequently, the reasoning adduced by the respondent in the
impugned order cannot be sustained.”
3.In view of the aforesaid order, the rejection of the petitioner's
application on the ground that was made after a period of three years cannot be
sustained.
5.Incidentally, when the petitioner had earlier approached this Court,
challenging the rejection order dated 28.09.2015, this Court, by an order dated
15.03.2016, in W.P.(MD).No.5163 of 2016, had held that the petitioner's
application was within a time in the following manner.
“4.The reason for rejection of the application of the petitioner,
dated 18.06.2015, by the first respondent is that the claim for
compassionate appointment has been made by the petitioner
after 13 years and 7 months. Though a person is expected to
make an application within three years from the date of death of
the deceased employee for compassionate appointment, in this
case, the petitioner's mother actually applied for compassionate
appointment within three years and the same was rejected
stating that she had no required qualification. As the petitioner
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W.P.(MD).No.3290 of 2018
herein was minor on the date of death of his father, on attaining
majority, he had applied for job. Therefore, the first respondent
ought to have considered his application and should not have
rejected the same on the ground of delay. Hence, the impugned
order is set aside and the first respondent is directed to consider
the application of the petitioner, dated 18.06.2015 afresh and
pass appropriate orders on the same on merits and in
accordance with law within a period of four weeks from the
date of receipt of a copy of this order.”
5.For the foregoing reasons, the impugned order passed by the first
respondent in his proceedings in Na.Ka.No.AE9/28713/2015, dated
19.04.2016, is set aside and the matter is remanded back to the first respondent
herein. Consequently, the first respondent herein shall consider the petitioner's
application, in the light of the observations made in this order and without
reference to the delay in making the application and pass favourable orders,
within a period of three months from the date of receipt of a copy of this order.
13.This writ petition is allowed accordingly. No costs. Consequently,
connected miscellaneous petition is closed.
05.03.2021
Index : Yes / No
Internet : Yes / No
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W.P.(MD).No.3290 of 2018
Note: In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
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W.P.(MD).No.3290 of 2018
M.S.RAMESH,J.
TM
W.P.(MD).No.3290 of 2018
05.03.2021
http://www.judis.nic.in
