Madras High Court
N.Selvaraj vs The Chairman on 15 November, 2021
W.A.No.669 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDERS RESERVED ON : 07.04.2022
ORDERS PRONOUNCED ON : 29.04.2022
CORAM:
THE HON’BLE MR.JUSTICE S.VAIDYANATHAN
and
THE HON'BLE MRS. JUSTICE N.MALA
W.A.No.669 of 2022
N.Selvaraj ... Appellant
vs.
1.The Chairman,
Tamil Nadu Electricity Board,
Anna Salai,
Chennai – 2.
2.The Chief Engineer (Personnel),
Anna Salai,
Chennai – 2.
3.The Superintending Engineer,
Cuddalore Electricity Distribution Circle,
Cuddalore. ... Respondents
Prayer: Writ appeal filed under Clause 15 of Letter's Patent, to set aside the
order passed in W.P.No.26362 of 2010, dated 15.11.2021 and thereby allow
the Writ Petition as prayed for.
1/17
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W.A.No.669 of 2022
For Appellant : Mr.S.N.Ravichandran
For Respondents : Mr.P.Subramanian
Standing Counsel for EB
*****
JUDGMENT
[Order of the Court was made by N.MALA, J.]
This is a typical case where the benefits of a benevolent scheme is
sought to be defeated because of the callous and indifferent attitude of the
respondents. A humane approach to the plight of a woman destituted at a
young age with the burden of rearing three kids would have helped the family
to tide over the penurious circumstance in which it was thrown by the death
of the sole bread winner in harness. Policies were changed, G.O.s' and
circulars were passed at the drop of a hat, but for what and for whom?
2.The above Writ Appeal is filed challenging the order dated
15.11.2021 passed in W.P.No.26362 of 2010 rejecting the prayer of the
petitioner to quash the orders dated 18.03.2002 and 04.07.2007 and
consequently to provide the petitioner suitable appointment on
compassionate grounds.
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3.The brief facts relevant to the issues raised in this appeal are as
follows:
The petitioner's father Narayanan employed as a lineman in the
respondent department died in harness on 08.05.1986, leaving behind the
petitioner, his mother, sister and brother as his legal heirs. The petitioner was
aged 5 years at the time of his father's death. The petitioners mother in 1991,
applied for compassionate appointment and the third respondent vide
proceedings dated 12.07.1991 returned the same for submission in prescribed
format. She submitted the same and the third respondent orally replied that
as she did not possess the basic qualification of pass in 8th Standard her
application could not be considered. Then the petitioner on attaining
majority gave a letter seeking compassionate appointment. The third
respondent replied vide letter dated 01.2001 to submit the application in
proper format. Thereafter the petitioner made the application on 22.01.2001
which was rejected by the respondent by the first impugned proceeding dated
18.03.2001, citing a delay of two years and four months from 12.10.1998
(three year period provided under BP (FB) 46 dated 13.10.1995).
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W.A.No.669 of 2022
3.The respondent Board meanwhile issued BP (FB) No.3 dated
09.1.2007 relaxing the time limit for cases prior to issuance of BP (FB) 46
dated 13.10.1995 with a further direction to reopen and reconsider already
rejected cases also. The petitioners mother immediately sent a representation
dated 29.01.2007 to the third respondent seeking compassionate appointment
for the petitioner. The third respondent sent a reply directing to send the
application in prescribed format. The petitioner accordingly submitted the
application in prescribed format on 24.02.2007. The respondent, however
rejected the same vide second impugned order dated 04.04.2007 and
therefore the petitioner filed the writ petition challenging both the orders of
rejection and further prayed for a direction to the respondents to provide
suitable appointment to the petitioner on compassionate grounds.
4.The third respondent filed a counter wherein the factual aspects
regarding the filing of application by the petitioner's mother and the
petitioner were not disputed. The third respondent relied on BP (FB) 46
dated 13.1.1995 and stated that the application was beyond time and hence
was rejected on 18.03.2002. As regards the second impugned order, the third
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W.A.No.669 of 2022
respondent contended that as BP No.3 dated 09.01.2007 was cancelled vide
proceedings in BP No.116 dated 24.03.2007, the petitioner's application was
rightly rejected.
5.The learned Judge on the basis of the pleadings, records and on the
submissions of the counsels found favour with respondent and dismissed the
writ petition.
6.The learned counsel for the appellant submitted that the learned
Judge failed to appreciate that on the date of death of the appellant's father,
the appellant was only five years of age and hence his mother applied but she
was not considered as she did not possess the requisite Educational
qualification. The counsel further submitted that after attaining majority the
appellant applied on 22.01.2001 but the third respondent erroneously rejected
his application as belated. According to him on the cut off date of
12.10.1998, admittedly the petitioner was only 16 years and therefore the
application submitted after attaining majority ought to have been considered.
He relied on several Judgments in support of his contention that application
made after attaining majority was proper.
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W.A.No.669 of 2022
7.The learned counsel submitted that BP (FB) No.3 dated 09.01.2007
relaxed the time limit for past cases and provided that even applications
which were rejected earlier would be reopened and reconsidered and further
it was clearly stated therein that the said applications would be considered on
merits. According to counsel therefore the reason given by the third
respondent in the impugned order dated 04.07.2007 is untenable. The
appellant counsel further submitted that the appellant's father died on
08.05.1986 and hence the scheme prevalent on that date alone should be
considered. The scheme on the date of death of the appellant's father did not
provide for any time limit and therefore his application ought to have been
entertained and he ought to be appointed to a suitable post.
8.The standing counsel for the respondent reiterated that the case of the
appellant was covered by BP (FB) 46 dated 13.10.1995 and further supported
the order passed by the learned Judge. The respondents counsel prayed for
the dismissal of the appeal as meritless.
9.There is no dispute regarding the facts of the case. There are certain
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W.A.No.669 of 2022
aspects of the case which need special mention to appreciate the case better.
That the appellant's mother made an application in 1991 after the appellant's
father demise is not disputed. It is pertinent to note here that the respondents
have not stated about the status of the appellant's mother's application,
though the appellant submitted that the respondents orally informed her that
as she did not possess educational qualification she was not considered for
appointment. It is clear that the application of the mother was filed in time
and that she was not given appointment, therefore the application of the
appellant submitted after attaining majority, strictu sensu, could not be said
to be belated. Several judgments of this Hon'ble Court relied on by the
appellant's counsel support his contention that the application made by the
appellant after attaining majority should be entertained. We will refer to a
couple of the Judgments only. In the case of J.Jebamary Vs. Chairman TNEB
reported in 2011 (3) LLN 405, (Madras High Court) His Lordship Justice
Paul Vasanthakumar J., as His Lordship then was referred to several
Judgments of this Hon'ble Court as well as the Hon'ble Apex Court and in
paragraph 13 of the Judgment stated as follows:
13.From the above referred decisions passed by this
Court in series of cases on the same ground, it is evident
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that the similar grounds raised by the respondents that the
petitioner has not filed Application seeking compassionate
appointment within three years from the date of death of
her father and that she has not completed 18 years of age
within three years are not valid grounds to deny
appointment on compassionate ground as no one in her
family is employed and the family of the petitioner is in
indigent circumstance even today as certified by the
Revenue Officials. Petitioner's mother and petitioner are
prosecuting the matter before the respondents right from
July, 1992.
10.Further the Division Bench of this Hon'ble Court in S.Velraj Vs.
The Superintend Engineer, (W.A.(MD).No.1400 of 2011) by order dated
16.12.2015 held as follows:
3.It is admitted fact that the employee died on
19.03.1992, leaving behind four children and at that time,
the appellant is the eldest son, aged about 12 years. If he
applied for appointment on compassionate ground at that
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W.A.No.669 of 2022
time, when he was 12 years, his application would have
been rejected on the ground that he was a minor and,
therefore, on attaining majority, the appellant rightly
applied for appointment on compassionate ground.
However, taking into consideration the plight of the family
and also the young age of the mother and other children, it
is a case where appointment on compassionate ground has
to be given. Three years limitation cannot be applied in
strait-jacket formula and each and every case has to be
approached differently, based on the facts. Since the eldest
son of the family has rightly applied for appointment on
compassionate ground, on attaining majority, the
respondents have to consider the appellant's application
for appointment on compassionate ground.
11.Further in the W.A.(MD).No.792 of 2011 dated 03.12.2015 the
Hon'ble Judges have held:
6.First of all, there is no necessity for the appellant
to rely upon the proceedings in B.P.(F.B.) No.3, dated
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09.01.2007 as the appellant's mother made an
application for compassionate appointment as early as
on 24.02.1996, within three years from the date of death
of her husband, i.e. 26.11.1994. When an application was
made in time and the same is proved by the proceedings
of the second respondent in Letter
No.002393/47/epgp1/cjtp/4/nf/nt/th/96. Dated 24.02.1996,
the question of applying limitation does not arise. Hence,
the reliance on the proceedings in (Per.) B.P.(F.B.) No.3,
Administrative Branch, dated 09.01.2007, is unnecessary.
Even as per the existing Orders, the appellant is entitled
to the compassionate appointment as the application was
made in time.
12.Even in this case the appellant's mother filed the application even
before BP (FB) No.46 dated 18.10.1995, therefore the appellants application
ought to have been considered. One other aspect is that if the scheme
prevailing on the date of death of the employee is to be taken, then there was
no limitation provided at the relevant time. The Hon'ble Supreme Court in its
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Judgment in State of Madhya Pradesh Vs. Ashsish Awasthi reported in
2022(2) SCC 157 and Secretary to Government, Department of Education
(Primary) Vs. Bheemappa reported in 2021 SCC Online 1264 has held that
the policy prevalent at the time of death of the deceased only to be
considered and not subsequent policy, viewed from this angle also the first
impugned order dated 18.03.2001 cannot be sustained.
13.The appellant's mother after the rejection order dated 18.03.2001
gave a representation on 25.01.2007 in pursuance of BP (FB) No.3 dated
09.01.2007 seeking compassionate appointment for her son. It is worthy to
note here that BP (FB) No.3 was passed modifying BP (FB) No.46 and in
respect of employees who died prior to 13.10.1995, the three year condition
was dispensed, and rejected cases were permitted to be re-opened. The third
respondent vide communication dated 13.02.2007, directed the petitioner's
mother to apply in prescribed format. Thereafter the appellant submitted the
application in prescribed format on 24.02.2007. The respondent on
04.07.2007 passed the second impugned order rejecting the appellant's
application. The respondent rejected it on the ground that the same could not
be considered on the basis of the prevailing Board Proceedings. It is the
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W.A.No.669 of 2022
contention of the respondents in the counter affidavit that the applications
were invited based on BP (FB) No.3 dated 09.01.2007 and as the said
BP.(FB).No.3 was cancelled on 24.03.2007, the appellant's claim was
rejected. We are of the view that the respondent's conduct in issuing BP (FB)
No.3 dated 09.01.2007 and its cancellation soon thereafter on 24.03.2007 is
highly questionable. It is relevant to note here the observation of the learned
Division Bench in W.A.(MD).No.792 of 2011 dated 03.12.2015. The learned
Judges at Paragraph No.9 have stated as follows:
“It is not understandable as to how the
respondent Board gave a concession by proceedings in
(Per.) B.P.(F.B.)No.3, Administrative Branch, dated
09.01.2007 and cancelled the same by proceedings in
B.P.(F.B.).No.116, dated 24.03.2007, within two months.
This Court doubts that the proceedings in (Per.)
B.P.(F.B.)No.3, Administrative Branch, dated
09.01.2007, was intended to benefit a few people and
after accommodation, the proceedings should have been
cancelled on 24.03.2007. Passing of this kind of
proceeding is deprecated by this Court and moreover,
no reasons have been assigned as to why concession
was given and subsequently, it was withdrawn.”
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14.In the second impugned order no reason is cited except to state that
as per prevailing scheme, the application could not be considered at this
stage. We find that the reason is very cryptic and hence unsustainable. The
respondents have improved the case in the counter by referring to
cancellation of BP (FB) No.3 dated 09.01.2007 by BP (FB).No.116 dated
24.03.2007 as the reason for rejection of the application. It is now settled
law that no case can be improved in the counter. Useful reference can be
made to the Judgment of the Hon'ble supreme Court in the case of Mohinder
Singh Gill Vs. Chief Election Commissioner reported in (1978) 1 Supreme
Court Cases 405, wherein the Hon'ble supreme Court in paragraph No.8 has
stated as follows:
“8.The Second equally relevant matter is that when
a statutory functionary makes an order based on certain
grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons
in the shape of affidavit or otherwise. Otherwise, an
order bad in the beginning may, by the time it comes to
Court on account of a challenge, get validated by
additional grounds later brought out. We may here draw
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attention to the observations of Bose, J. in Gordhandas
Bhanji :
Public orders, publicly made, in exercise of a
statutory authority cannot be construed in the light of
explanations subsequently given by the officer making the
order of what he meant, or of what was in his mind, or
what he intended to do. Public orders made by public
authorities are meant to have public effect and are
intended to affect the actings and conduct of those to
whom they are addressed and must be construed
objectively with reference to the language used in the
order itself.
Orders are not like old wine becoming better as they grow
older.”
We therefore find that the second impugned order is also unsustainable. In
the peculiar facts of the case we are inclined to allow the appeal with the
following directions.
15.The appellant has not specifically pleaded that the impecunious
circumstances still exists. The respondent has doubted that the appellant's
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family is still in penury because of the lapse of 31 years since the date of the
employee's death. We are therefore of the view that the respondents may be
directed to hold a field enquiry to find out if the petitioner's family continues
to be in penury and if it is found that the appellant is still suffering and needs
succour from his miserable financial conditions, then the respondents shall
consider favourably his claim for appointment. The said exercise shall be
completed within a period of six weeks from the date of receipt of this order.
The Writ Appeal is ordered accordingly.
16.The Writ Appeal is disposed of with the above directions. There
shall be no order as to costs.
[S.V.N.,J.] [N.M.,J.]
29.04.2022
Index : Yes / No
Internet : Yes / No
ah
To
1.The Chairman,
Tamil Nadu Electricity Board,
Anna Salai,
Chennai – 2.
2.The Chief Engineer (Personnel),
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W.A.No.669 of 2022
Anna Salai,
Chennai – 2.
3.The Superintending Engineer,
Cuddalore Electricity Distribution Circle,
Cuddalore.
S.VAIDYANATHAN, J.
&
N.MALA, J.
ah
PRE DELIVERY JUDGMENT
IN W.A.No.669 of 2022
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W.A.No.669 of 2022
29.04.2022
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