Madras High Court
N.Sabarinathan vs The Inspector General Of ... on 17 July, 2023
WP.No.31298/2016
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 17.07.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.31298/2016 & WMP.No.27161/2016
N.Sabarinathan ... Petitioner
Versus
1.The Inspector General of Registration
Santhome, Chennai 600 028.
2.The District Registrar
O/o.The District Registrar,
District Collector Campus
Coimbatore 641018.
3.The Sub Registrar,
Madhukarai Sub Registrar Office
Coimbatoee-641 105. ... Respondents
Prayer : - Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of a writ of certiorarified mandamus calling for
the entire records pertaining to the 1st respondent in proceedings in
No.44072/Ko2/2012 dated 08.12.2015 and quash the same as illegal,
incompetent and ultra vires and consequently, direct the respondents to
appoint the petitioner on any eligible post on compassionate ground.
1
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WP.No.31298/2016
For Petitioner : Mr.Ma.P.Thangavel
For Respondent : Mr.S.Ravikumar, Spl.GP
ORDER
(1) The writ petition has been filed in the nature of certiorarified
mandamus seeking records of the 1st respondent, Inspector General
of Registration, Santhome at Chennai, in proceedings
No.4472/K2/2012 dated 08.12.2015 and quash the same and to direct
the respondents to appoint the petitioner, on any eligible post on
compassionate grounds.
(2) In the affidavit filed in support of the writ petition, it had been stated
by the petitioner that his father Mr.M.Nagarajan was working as
Night Watchman under the 3rd respondent, Sub Registrar at
Madhukarai Sub Registrar Office at Coimbatore. While he was in
service, he unfortunately died on 12.09.2009 due to medical ailments.
At the time of the death of the father, the petitioner was 14 years and
was studying in 9th standard in Government High School at
Thondamuthur, in Coimbatore District. The mother of the petitioner
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herein has not educated herself. It is stated that the petitioner's
mother had applied seeking for compassionate employment on
05.09.2012. Though the petitioner herein was a minor at that
particular point of time and had just qualified 10th standard, the
application was seeking employment for the petitioner herein. The
petitioner has an elder sister and that, both the elder sister and the
mother of the petitioner had stated that they have no objection for
employment on compassionate basis to the petitioner herein. The
petitioner attained the age of majority on 18.11.2013 and he had then
given an application in his own name on 12.05.2014. This
application came to be rejected by the 2nd respondent by proceedings
in No.44072/Ko2/2012 dated 08.12.2015.
(3) It had been stated that on the first date when the application was made
by the mother of the petitioner namely 04/05.09.2012, the petitioner
had not completed 18 years of age and therefore, employment could
not be granted to him.
(4) In the counter affidavit filed in support of the writ petition, reliance
has been placed with respect to that particular provision, namely,
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WP.No.31298/2016
Rule 20[6] of the Tamil Nadu Government Servants [Conditions of
Service] Act, 2016. The said Rule is as follows:-
''20.(6)(a)No person shall be eligible for
appointment to any service by direct recruitment,
unless he has completed eighteen years of age on the
first July of the year in which the vacancy is notified.
(b)No person shall be eligible for appointment to
any service on compassionate grounds, unless he has
completed eighteen years of age on the date of
submission of application, to the appropriate authority
within the period of three years from the date of death
of the Government servant.''
(5) It provides that no person shall be eligible for appointment for any
service on compassionate grounds unless [a]he/she has completed 18
years of age on the date of submission of application ; and [b]such
application should be submitted within a period of three years from
the date of death of the Government servant. Therefore, the provision
signifies two conditions namely, completion of age of 18 years and
also that such application should be submitted within a period of
three years. This also means that the applicant should have
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WP.No.31298/2016
completed the age of 18 years within a period of three years from the
date of death of the Government servant. This may not always be the
case. No Government servant or for that matter, no person in the
world can determine his/her date of death to ensure that his/her son or
daughter becomes 18 years within three years from the date of his/her
death which is impossible to stipulate. The alternate is for the widow
or for any other child or daughter or son in the family to seek
employment. But, in the instant case, it is complained that the widow
herself had not educated herself/was illiterate and it is also stated by
the learned counsel for the petitioner that the widow had suffered
paralysis and could not therefore, do any effective work. It was under
those circumstances that though she had applied in the initial stage
within the period of three years on 05.09.2012 itself, the application
was made on behalf of the petitioner herein who had just completed
10th standard on that time.
(6) There is a Division Bench judgment which can be referred to for an
issue like this and it is reported in 2013-2-CWC-758
[WA[MD].No.578/2013 – A.Kamatchi Vs. The Chairman, Tamil
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Nadu Electricity Board and Others]. The question arose before that
Division Bench was whether an application for compassionate
appointment made by son or daughter of the deceased after they
attained majority is liable to be rejected for not submitting the
application within three years particularly when the widow was not
found fit to be appointed. In effect, the question which was raised
was whether an application given by a son or daughter after the
period of three years from the date of death of the Government
servant can be rejected since it was not given within the period of
three years without taking into consideration, whether the widow was
in a position to actually perform the duties required of a Government
servant. It was held by the Division Bench that if the widow had
applied for compassionate appointment within the period of three
years and for some reason she could not be appointed and the same is
followed by another application by either the son or daughter after he
or she attains majority, the said application made by the son or
daughter cannot be rejected. The explanation given by the Division
Bench is simple and it is straight forward. It only provides for a
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situation where a son or daughter would be less than 15 years on the
date of death of their father/Government servant, then they can never
had completed 18 years within the period of three years. Therefore,
an obligation is cast on the widow to so apply for employment on
compassionate basis. If that widow is, for some reason, not able to
perform functions or duties required of a Government servant, then if
the son or daughter, after he or she attains the age of majority, must
follow up that particular application given by their mother. This is
the ratio laid down in the said judgment.
(7) To elaborate it further, let me extract the wordings in the said
judgment:-
''16.Now, cleared of the legal position, it is
pertinent to note that within three years of her
husband's death, Thirumalai, the mother of the
appellant has applied for her appointment on
compassionate ground, she was not appointed for want
of vacancy, so, she was not denied job, now, she cannot
be appointed because of her age, within three years of
his attaining majority the appellant had applied for
appointment. The legal heirs of the deceased
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employee, namely, appellant's mother and his sister
have also given their no objection for appellant's
appointment. The appellant is also well within the
eligible age for appointment. In the circumstances, the
impugned order of the 3rd respondent, dated
01.02.2010 and of the Writ Court, dated 13.09.2010
are unsustainable in law.''
(8) In the instant case, the mother of the petitioner herein had applied
within the period of three years. Within the period of three years after
the death of the father, the petitioner had still not crossed the age of
18. He attained the age of 18 on 18.11.2013. He then made an
application on 12.05.2014. If that application was within the period
of three years from the date of attaining the age of majority. This was
rejected and the reason for that rejection was that the petitioner was
less than 18 years and did not complete the age of 18 within three
years period from the date of death of his father.
(9) In cases of anomaly situation like this, the rule aforementioned and
the Division Bench judgment comes to the rescue of this Court and
this Court's interpretation directly applies.
(10) The learned Special Government Pleader reiterated the position under
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Rule 20[6] of the Tamil Nadu Government Servants [Conditions of
Service] Act, 2015. The Rule however stands is not wiped out of the
Regulations. But, however, the judgment of the Court also prevails
and therefore, I would fall back on the ratio laid down in the
aforementioned Division Bench judgment.
(11) Learned counsel for the petitioner also relied upon the judgment
reported in 2006 [9] SCC 195 [Syed Khadim Husasin V. State of
Bihar and Others]. The facts in that case are that a Government
servant who was working has been in Public Works Department, died
while in service in 1991. He left behind his widow and five minor
children. The widow applied for compassionate appointment in the
year 1993. Her application was rejected. Then the appellant before
the Hon'ble Supreme Court applied for compassionate appointment in
1995. That was also rejected in 2001 on the ground that he was aged
just 13 years. The Hon'ble Supreme Court held that the rejection was
not justified since on the date of rejection, the appellant had crossed
the age of 18 years. In the instant case, the petitioner had crossed the
age of 18 years. The mother of the petitioner had applied for
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employment on compassionate basis within the period of three years
from the date of death of her husband. The petitioner himself had
applied for employment within the period of three years from the date
of attaining the age of majority. An obligation is placed on the
respondents to re-examine the entire issue on the basis of the
aforementioned observations made and more particularly, on the basis
of the dictum laid down by the Hon'ble Supreme Court and by the
Division Bench.
(12) The impugned order is, therefore set aside and a direction is given to
the respondents to issue notice to the petitioner herein, grant him an
opportunity of personal hearing, examine the qualification, examine
the medical ailments of the mother of the petitioner herein and
determine as a fact, whether she was actually disabled when she had
applied for compassionate employment, particularly, because it
should be kept in mind that compassionate employment is granted not
as a matter of right, but as a matter of duty by the State Government
towards one of its employees who dies in harness and to ensure that
the family members are not left high and dry consequent to the death
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of the public servant. This is not the object behind grant of
compassionate employment and therefore, all these factors may be re-
examined by the respondents. They may examine the entire issue
within a period of six weeks if the petitioner is otherwise qualified
and is otherwise eligible. It would only be appropriate that they
provide him with some employment.
(13) The writ petition stands disposed of. The respondents may also
ensure that the sister of the petitioner herein and any of the other
brothers and sisters give No Objection Certificates and in this regard,
the respondents may obtain such NOC in writing and if they entertain
any personal doubt, may issue notice to them and enquire them in
person before granting employment to anyone of the members of the
family. No costs. Consequently, connected miscellaneous petition is
closed.
17.07.2023
AP
Internet : Yes
https://www.mhc.tn.gov.in/judis
WP.No.31298/2016
To
1.The Inspector General of Registration
Santhome, Chennai 600 028.
2.The District Registrar
O/o.The District Registrar,
District Collector Campus
Coimbatore 641018.
3.The Sub Registrar,
Madhukarai Sub Registrar Office
Coimbatore-641 105.
https://www.mhc.tn.gov.in/judis
WP.No.31298/2016
C.V.KARTHIKEYAN, J.,
AP
WP.No.31298/2016
17.07.2023
https://www.mhc.tn.gov.in/judis
