Madras High Court
M.Prabakaran vs The Secretary To Government on 11 September, 2024
W.P.No.17133 of 2017
IN THE HIGH COURT AT JUDICATURE AT MADRAS
DATED: 11.09.2024
CORAM:
THE HON'BLE MRS.JUSTICE N.MALA
W.P.No.17133 of 2017
and
WMP.No.18603 of 2017
M.Prabakaran
...Petitioner
Vs.
1. The Secretary to Government
Home Department,
Fort St. George, Chennai-9.
2. The Director General of Police,
Mylapore, Chennai-4.
3. The Superintendent of Police,
Nethimedu, Salem-2.
4. Durairaj
5. Lakshmanan
6. Ramya
...Respondents
Writ petition is filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, calling for the records with
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respect of the proceedings of the 3 respondent herein dated 21.12.2012 in his
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1/8
W.P.No.17133 of 2017
proceedings Na.Ka.No.A3/6311 / 2011 and quash the same consequently direct
the respondents herein to appoint the petitioner herein in any one of the
appropriate post under compassionate appointment.
For Petitioner : Mr.R.Nalliyappan
For Respondents : Mrs.S.Anitha,
Special Government Pleader
For RR1 to 3
For R4 – No appearance
Mr.I.C.Vasudevan
For RR 5 & 6
ORDER
Writ petition is filed for a writ of certiorarified mandamus calling for the
records with respect to the proceedings dated 21.12.2012 and quash the same
and consequential direction to the respondents to appoint the petitioner on
compassionate appointment in any appropriate post.
2. The petitioner's father namely Madhayan, while working as Head
Constable, at Dhevur Police Station, Salem District, died due to heart ailment
on 14.01.2011. Subsequent to the death of the petitioner's father, the petitioner
applied for compassionate appointment to the 3rd respondent on 17.02.2011, but
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the 3 respondent rejected the claim of the petitioner on the ground that the
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petitioner was born to the 2 wife of the deceased employee, Madhayan. The
petitioner completed B.E. (Civil Engineering) in Mahendra Engineering College
at Mallasamudram in the year 2015 and ever since was jobless. According to the
petitioner none of the petitioner's family members were in regular employment
and therefore the family was suffering in penury. Aggrieved by the impugned
order dated 21.12.2012 the petitioner has filed the above writ petition for the
aforesaid relief.
3. The respondents 1 to 3 filed detailed counter stating that the petitioner
had not applied in the prescribed format by enclosing the Death Certificate of
his father, Legal Heirship Certificate and Certificate from the Revenue authority
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in proof of indigency. The 3 respondent therefore issued a Memo to the
petitioner on 10.03.2011 in pursuance of his application dated 17.02.2011 to
produce the aforesaid documents. While so, the Government issued Letter
No.(MS). 34 dated 16.04.2002, Labor and Employment (Q1) Department,
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ordering that the children born out of void marriages were entitled for family
pension and Death cum Retirement Gratuity and not for compassionate
appointment. The respondents therefore stated that the petitioner was not
entitled for compassionate appointment and hence the impugned order did not
call for any interference.
4. The learned counsel for the petitioner relying on the judgment of the
Hon'ble Supreme Court in S.L.P (Civil ) No.18571 of 2018 dated 24.02.2022
submitted that the reasons stated in the impugned order for rejecting the
petitioner's claim for compassionate appointment was against the law laid down
by the Hon'ble Supreme Court in the aforesaid judgment. The learned counsel
therefore submitted that the impugned order was unsustainable and the same
deserved to be set aside.
5. The learned Government Pleader on the other hand submitted that the
petitioner's application was rejected not only on the ground of illegitimacy but
also because petitioner had failed to file the supporting documents with the
application. The learned counsel therefore submitted that impugned order was
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valid and there were no merits in the writ petition and same deserved to be
dismissed.
6. I heard both the learned counsels and I have perused the materials
placed on record.
7. The short point for consideration is whether the reason given by the
respondents for rejecting the petitioner's application for compassionate is valid
and justified.
8. The Hon'ble Supreme Court in S.L.P (Civil). No.18571 of 2018 dated
24.02.2024 relying on the earlier judgment in the case of Union of India v.
V.R.Tripathi reported in (2019) 14 SCC 446 held as follows:
“7. This Court held that the scheme and the rules of
compassionate appointment cannot violate the mandate of
Article 14 of the Constitution. Once Section 16 of the Hindu
Marriage Act regards a child born from a marriage entered into
while the earlier marriage is subsisting to be legitimate, it
would violate Article 14 if the policy or rule excludes such a
child from seeking the benefit of compassionate appointment....”
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9. In the said judgment the Hon'ble Supreme Court further held that the
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policy denying compassionate appointment to children born of 2 marriage
created two categories between one class, and as it had no nexus to the object
sought to be achieved it was violative of Article 14 of the Constitution of India.
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The Court held that once the law deemed the children born out of 2 marriage
to be legitimate, it would be impermissible to exclude them from being
considered under the policy of compassionate appointment. The court further
held that the policy of compassionate appointment, which has force of law could
not discriminate on the ground of descent as it offend Article 16(2) of the
Constitution of India. In my view, the aforesaid judgment of the Hon'ble
Supreme Court squarely applies to the present case. The only ground on which
the petitioner's application for compassionate appointment was rejected was that
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he was a child born of 2 marriage. Though the learned counsel for the
respondent's submitted that the application was also rejected on the ground of
absence of supporting documents, the said fact is not reflected in the impugned
order and therefore the contention of the learned Government Pleader cannot be
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sustained.
10. In view of the above discussions, the impugned order dated
21.12.2012 is set aside. The learned counsel for the petitioner submits that he
may be permitted to present a fresh copy of the representation dated 17.02.2011
along with the supporting documents. The petitioner is permitted to present
fresh copy of the representation dated 17.02.2011 along with the supporting
documents in the prescribed format within a period of four (4) weeks from the
date of receipt of a copy of this order and on receipt of such representation
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along with the supporting documents in the prescribed format, the 3
respondent shall consider the same and pass appropriate order on merits and in
accordance with law within a period of four (4) weeks thereafter.
Accordingly writ petition is allowed. No costs. Consequently, connected
WMP is closed.
11.09.2024
Index:Yes/No
Speaking order:Yes/No
Neutral Citation:Yes/No
dsn
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N.MALA,J.
dsn
To
1. The Secretary to Government
Home Department,
Fort St. George, Chennai-9.
2. The Director General of Police,
Mylapore, Chennai-4.
3. The Superintendent of Police,
Nethimedu, Salem-2.
11.09.2024
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