1. The Appellant has come forward with this appeal challenging the order passed by the writ court dated 22.10.2008 dismissing the writ petition filed by the Petitioner seeking for the relief of calling for the records pertaining to the order of the first Respondent dated 22.05.2008 in his proceedings in Na. Ka. No. 40738/Pa. No. 3/Iru.4/08, and quash the same and consequently directing the first Respondent to process the application of the Petitioner relating to an appointment under the compassionate ground dated 07.04.2007 as the application was preferred well within the time.
2. The case of the Appellant is that his mother, M. Parimala was working as Multipurpose Health Worker in the third Respondent Primary Health Centre and she died on 09.02.1991 at the age of 32 years and her legal heirs are the Petitioner and his sister, Prathiba. The Appellant herein was aged about 3 1/2 years and his sister was aged about 7 years at the time of death of their mother. The father of the Appellant was also alive and he was aged about 44 years. The father of the Appellant did not possess any qualification and his sister Prathiba was studying second standard at that time.
3. The Appellant and his sister have been abandoned by their father and as such, the grandfather of the Appellant filed a Guardian and Wardship Original Petition in G.W.O.P. No. 9 of 1991 before the learned District and Sessions Judge, Ramanathapuram. After a fullfledged enquiry, the District and Sessions Judge, Ramanathapuram, passed an order declaring the grandfather of the Appellant, viz., Malairajan, as a Guardian as per the order dated 06.10.1994. The grandfather of the Appellant brought up his sister of the Appellant, who has studied upto 12th Standard and also studied Diploma in Teacher Training and she thereafter, was given in marriage in the year 2005.
4. The Appellant was also given by education by his grandfather by putting him at St. Joseph Higher Secondary School at Muthupettai.
After higher secondary level education, the Appellant underwent a Diploma Course in Teacher Education at Besant L.V.R. Teacher Traninig Institute, Kovilpatti. He has obtained the Diploma in the month of February 2007.
5. As the father of the Appellant was not possessing any educational qualification and as the sister of the Appellant already got married and settled, the Appellant is the only legal heir of his mother eligible to acquire the status of person eligible for getting compassionate appointment. Accordingly, he applied for compassionate appointment on 07.04.2007. The second Respondent directed the Appellant to give option for a specific post and the Petitioner opted for the post of Secondary Grade Teacher in anyone of the Government Schools as per his letter dated 30.04.2007. The Appellant, along with the application enclosed 23 documents including Certificate in respect of income of the family. The Petitioner sent a reminder on 11.02.2008. The second Respondent sent a communication dated 28.06.2008 stating that the application of the Appellant was forwarded to the first Respondent. The Appellant received the order dated 05.08.2008, in which, it is stated that as per the order of the first Respondent made in Na. Ka.
No. 40738/Pa. No. 3/Iru.4/08, dated 22.05.2008, the first Respondent declined to forward the application and rejected the request for compassionate appointment. The said order was challenged by filing a writ petition before this Court in W.P.(MD) No. 9229 of 2008 seeking the relief as stated above.
6. The writ Court, on considering the arguments made by both sides and on perusal of the affidavit filed by the Appellant and other materials, rejected the prayer of the Appellant herein and dismissed the writ petition by order dated 22.10.2008. The said order is under challenge in the present writ appeal before this Court.
7. Mr. K. Jeganathan, learned Counsel for the Appellant, contended that the learned Single Judge accepted the contention of the Appellant that the application preferred by the Appellant was not barred by three year time limit as he has preferred the application well within the time from the date of attaining the age of majority. It is contended by the learned Counsel for the Appellant that in paragraph 7 of the order, the learned Single Judge has observed that the G.O. Ms. No. 202, Labour and Employment, dated 08.10.2007 is not applicable to the facts of the present case. It is contended by the learned Counsel for the Appellant that the single Judge has dismissed the writ petition only on the ground that the Petitioner was able to sustain his family for a period of 16 years which means the family was not in distress. It is contended that the learned Judge also placed reliance on the decision of the Hon''ble Apex Court in State of J. and K. v. Sajad Ahmed Mir, reported in 2006 (4) MLJ 604. The learned Counsel for the Appellant would submit that the said decision rendered by the Hon''ble Apex Court is in respect of delay and laches, but as far as the Appellant''s case is concerned, the impugned order passed by the first Respondent is only on the ground of delay in preferring the application to the effect that the Appellant has not preferred the application for compassionate appointment within the stipulated time of 3 years from the date of death of his mother and there is no finding in the said impugned order to the effect that the Appellant was not in distress or he is an indigent person.
8. It is further contended that the Appellant has come forward with a specific averment in the affidavit filed in the writ petition stating that he was already abandoned by his father and his grandfather has only taken custody of his sister and himself by filing Guardian and Wardship Original Petition in G.W.O.P. No. 9 of 1991 before the learned District and Sessions Judge, Ramanathapuram and as per the order dated 06.10.1994 passed by the learned District Judge, Ramanathapuram, in that petition. It is also contended that the Appellant has stated that his sister got married and his father was not possessing qualification for any job and as such, he is the legal heir eligible for getting the post under compassionate appointment.
9. It is further contended that along with the application, the Appellant has also enclosed the certificate issued by the Tahsildar dated 28.03.2007 showing the income of the family. It is contended that even as on date, the Appellant is an indigent person and he is fighting for his survival as his grandfather has become very old and he is only a pensioner and as such, the said income is not sufficient to meet the day-to-day expenses for the livelihood.
10. Heard the learned Additional Government Pleader on the submissions made by the learned Counsel for the Appellant. It is contended that the learned Single Judge has given a finding to the effect that the family having survived for the last 16 years, it cannot be stated that the family of the Appellant is in distress even as on date. The learned Additional Government Pleader would submit that the learned single Judge also placed reliance on the decision of the Hon''ble Apex Court in State of J. and K. v. Sajad Ahmed Mir, reported in 2006 (4) MLJ 604.
11. We have carefully considered the submissions of both sides and also perused the order of the writ court dated 22.10.2008 made in W.P.(MD) No. 9229 of 2008 as well as the impugned order passed by the first Respondent dated 22.05.2008.
12. At the outset, it is to be stated that a perusal of the order of the writ Court makes it clear that the writ court found that the Government Order in G.O. Ms. No. 202, Labour and Employment dated 08.10.2007 stipulating a period of three years for the legal heirs of the deceased employee for submitting application seeking for the relief of compassionate appointment is not applicable to the facts of the instant case. However, the writ Court has held that the family of the Appellant was able to survive for the last 16 years after the death of the mother of the Appellant and as such, it cannot be stated that the said family was in distress. It is relevant to refer and incorporate the said portions of the order of the writ Court as hereunder:
"7. Of course, it is true that the said Government Order is not applicable to the facts of the present case. But, as rightly pointed out by the learned Government Advocate for the Respondents, the rejection order does not deserved any interference, since, in my considered opinion, the first Respondent was right in rejecting the request of the Petitioner for employment on compassionate ground, since the application was made by the Petitioner after 16 years of the death of the mother of the Petitioner and he was able to sustain his family for a period of 16 years, which means the family was not in distress. The object of offering employment on compassionate ground is only to rescue the family from facing financial stress and strain. But, in the present case, there are no such materials to show that the family was in stress and strain, at the time when the mother of the Petitioner passed away."
13. It is seen that the writ court also placed reliance on the decision of the Hon''ble Apex Court in State of J. and K. v. Sajad Ahmed Mir, reported in 2006 (4) MLJ 604. A perusal of the order passed by the first Respondent impugned in the writ petition filed by the Appellant herein discloses that the first Respondent proceeded to reject the application of the Appellant only on the ground that the Appellant has not preferred the application within the stipulated time from the date of death of his mother by placing reliance on the G.O. Ms. No. 202, Labour and Employment Department, dated 08.10.2007. This important aspect has not been taken note by the writ court. There is absolutely no finding in the said order to the effect that the Appellant or his family members were not in distress even as on date.
14. It is pertinent to note that the Appellant has come forward with specific plea to the effect that his family is in distress. It is also seen that the Appellant was abandoned by his father and as such, he has been taken custody by his grandfather by filing G.W.O.P. No. 9 of 1991 before the learned District and Sessions Judge, Ramanathapuram, and after obtaining order of the Court. It is also seen that the Appellant''s sister got married and his father is not having any educational qualification for seeking the relief of compassionate appointment. Therefore, the Appellant is the only legal heir eligible for seeking the relief of compassionate appointment. It is seen from the averments and other materials available on record that the Appellant is not seeking for the relief as a matter of course or right and he seeks the relief only on the ground of his sufferings and difficulties for survival. At this juncture, it is also relevant to note that the Appellant produced as many as 23 documents including the income certificate issued by the Tahsildar in respect of the income of the family for seeking for the relief of compassionate appointment, as stated above.
15. As far as the decision relied by the writ court in State of J.
and K. v. Sajad Ahmed Mir, reported in 2006 (4) MLJ 604 is concerned, it is seen that the said decision was rendered by the Hon''ble Apex Court mainly on the ground of delay and laches. We are of the considered view that the said decision of the Hon''ble Apex Court is not applicable to the facts of the instant case as in this case, the Appellant has enclosed the necessary certificates including income of the family dated 28.03.2007 while preferring the application for the relief of compassionate appointment.
16. The learned Counsel for the Appellant also rightly placed reliance on the decision of the Hon''ble Apex Court in Syed Khadim Hussain v. State of Bihar reported in 2006 (9) SCC 195 and in the said decision, the Hon''ble Apex Court has held as hereunder:
"The widow had applied for appointment within the prescribed period and without assigning any reasons the same was rejected. When the Appellant submitted that 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 t what should be done in case the dependents are minors and there would be any relaxation of aged in case they did not attain majority within the prescribed period for submitting application."
The principle laid down by the Hon''ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case for the reasons as stated above.
17. For the aforesaid reasons, we are constrained to set aside the impugned order passed by the learned Single Judge dated 22.10.2008 in W.P. No. 9229 of 2008. Consequently, the impugned order passed by the first Respondent dated 22.05.2008 in Na. Ka. No. 40738/Pa. No. 3/Iru.4/08 is also set aside and the Respondents 1 and 2 are directed to consider the application preferred by the Appellant dated 07.04.2007 seeking for the relief of compassionate appointment in the light of the income certificate dated 28.03.2007 issued by the Tahsildar and other documents enclosed along with the application.
18. It is open to the Appellant to produce any other additional documents. It is made clear that the said exercise shall be completed within a period of twelve weeks from the date of receipt of a copy of this order.
