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2012 DIGILAW 3850 (MAD)

K. Rajkumar v. State of Tamil Nadu

2012-09-10

D.HARIPARANTHAMAN

body2012
Judgment :- 1. The first petitioner's father was appointed as Sanitary Worker on daily wage basis in the Thiruvallur Municipality, along with 19 other daily wage workers, by an order dated 16.10.1992. He was brought to consolidated pay of Rs.1,000/- on 20.12.2000 by the proceedings of the third respondent. 2. These 19 workers, who joined along with the first petitioner's father in 1992 and who were also brought to consolidated pay along with the petitioner's father during 2000, were regularised in service retrospectively after completion of 1½ years of service, by an order dated 29.06.2005 based on G.O.Ms.No.71, Municipal Administration and Water Supply Department, dated 05.05.1998. 3. As per G.O.Ms.No.71, the first petitioner's father should have been regularised on completion of 1½ years of service. G.O.Ms.No.71, sought to regularise the services of the Sanitary Workers based on the length of service rendered by them. 4. The first petitioner's father died on 25.4.2003 i.e., before the aforesaid order regularising the services of the other daily wage workers. 5. The first petitioner's mother, who is the second petitioner herein, made a representation to the third respondent for providing her appointment on compassionate ground. The same was rejected by the third respondent by an order dated 09.07.2008. 6. Two reasons were given for refusing the appointment on compassionate ground. Those reasons are:- (i) The petitioner's father died before he was regularised in service. (ii) The mother of the deceased was employed as a regular sanitary worker. 7. Thereafter, the second petitioner made a representation dated 04.02.2012 to give appointment on compassionate ground to the first petitioner. Till date no order is passed on the said representation. 8. In these circumstances, the petitioner has filed this writ petition to quash the aforesaid order dated 09.07.2008 of the third respondent and for a consequential direction to provide appointment on compassionate ground to the first petitioner. 9. The respondents have filed counter affidavit refuting the allegations. The respondents sought to sustain the impugned order on the grounds stated therein. 10. Heard both sides. 11. The first petitioner's father joined in the third respondent-Municipality during 1992 as a daily wage sanitary worker along with 19 other daily wage sanitary workers. 9. The respondents have filed counter affidavit refuting the allegations. The respondents sought to sustain the impugned order on the grounds stated therein. 10. Heard both sides. 11. The first petitioner's father joined in the third respondent-Municipality during 1992 as a daily wage sanitary worker along with 19 other daily wage sanitary workers. Those 19 daily wage sanitary workers were regularised in service and they were granted scale of pay by an order dated 29.06.2005 by the third respondent with effect from various dates from 2002 on completion of 1½ years of service. Unfortunately, the father of the first petitioner died on 25.4.2003 i.e., before the aforesaid order dated 29.06.2005 was passed. 12. The order dated 29.06.2005 is enclosed in the typed set. I have perused the same. 13. The order dated 16.10.1992, appointing daily wage sanitary workers, is also enclosed in the typed set. 14. From a reading of both the aforesaid orders dated 16.10.1992 and 29.06.2005, I am of the view that, the impugned order dated 09.07.2008, rejecting the claim of compassionate appointment, on the ground that the first petitioner's father was not regularized, has no merit. 15. The decision of this court in S.Vijayalakshmiv. Tamil Nadu Water Supply and Drainage Board reported in 2006 WLR 91 relied on by the petitioner directly applies to the facts of this case. The first petitioner's father should have been regularised on completion of 480 days of service as per the Tamil Nadu Industrial Establishment (Conferment of Permanent status to Workmen) Act 1981. In the aforesaid judgment, where the husband of the petitioner died before confirmation, this court directed regularisation on completion of 480 days of service. Paragraph No.5 of the said judgment is extracted hereunder:- "5.Once it is held that the deceased employee was in law entitled to the benefit of acquisition of permanent status any consequential benefit cannot be denied to the widow on death of such person or merely because during the life time of the employee no such permanency had been 'actually conferred' ". 16. The aforesaid judgment is followed by this court in W.P.(MD)No.11161 of 2009, dated 25.03.2010. Paragraph No.3 of the said order is extracted hereunder:- "3. 16. The aforesaid judgment is followed by this court in W.P.(MD)No.11161 of 2009, dated 25.03.2010. Paragraph No.3 of the said order is extracted hereunder:- "3. On the factual situation as narrated above, even though it is true that the Government, considering all Nominal Muster Roll employees in the Public Works Department, has passed orders on 19.10.2007 regularising their services, as it is seen in the Government Order and the Annexure contained therein, especially relating to the petitioner's husband, the regularisation has been given effect to from 01.01.1998, the date when the petitioner's husband was very much alive and, therefore, the stand taken by the respondents that at the time of passing of the Government Order, the petitioner's husband has already passed away six years ago and, therefore the petitioner's claim for compassionate appointment cannot be taken into consideration is not tenable. It is not the case of the respondents that the petitioner has not made application for compassionate appointment within the time stipulated. It is also relevant to take note at this point that between 2001 and 2006, there has been ban on recruitment and in fact, the Government itself, considering the said facts only, has passed orders of regularisation after the ban was lifted in the year 2007." 17. The latest decision of a Division Bench of this court in R.Lakshmiv. The Chief Engineer (Personnel), Tamil Nadu Electricity Board and another reported in 2012 (3) LLN 681 (DB) also squarely applies to the fats of this case. Paragraph No.34 of the said judgment is extracted hereunder:- "34. On going through the ingredients of section 3(1) of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981, we are of the considered view that the petitioner's husband completed 480 days of work in a period of 24 calendar months (during his lifetime) and would become automatically a permanent Employee under the Respondents/Tamil Nadu Electricity Board because of the simple fact that the section mandates the respondents to confer permanent status on the petitioner's husband S.Raju and the conferment of permanent status to the petitioner's husband S.Raju/Employee/Workman would not depend upon the employer on his own or on a direction given by the competent authority under the Act. 18. Furthermore, the learned counsel for the petitioner has also placed reliance on the decision of this court in C.Jayapalv. 18. Furthermore, the learned counsel for the petitioner has also placed reliance on the decision of this court in C.Jayapalv. The Director of Medical Education & 2 others reported in 2006 WLR 796. In the aforesaid judgment this court has categorically held that though his elder brother is employed, he is living separately and he is not contributing anything to the family of the deceased, respondents 1 and 2 ought to have considered the case of the petitioners and provided employment on compassionate ground to mitigate the sufferings of the family of the deceased. 19. In view of the proceedings of the third respondent dated 29.06.2005 referred to above, as well as the judgments referred to above, the first reason adduced in the impugned order deserves to be rejected. 20. The second reason is that the mother of the first petitioner's father was a regular sanitary worker in the third respondent-Municipality and therefore, the petitioners are not entitled to claim appointment on compassionate ground. 21. If the petitioners lived with the deceased person separately, the employment of the mother of the deceased cannot be cited as a ground to deny compassionate appointment, as per the decision of this court reported in 2006 WLR 796 (referred supra) and G.O.Ms.No.71, Municipal Administration and Water Supply Department, dated 05.05.1998, The copy of the Ration Card issued during 2005-09 is enclosed in the typed set. The same does not contain the name of the mother of the deceased. The petitioners have also asserted in the affidavit that they lived separately and they do not live along with the mother of the deceased. Hence, as per the decision of this court reported in 2006 WLR 796 (referred supra) and the aforesaid G.O., the second reason also must fail. 22. In view of the above, the impugned order is liable to be quashed. Accordingly, the same is quashed. The second respondent is directed to consider the claim of the petitioner for appointment on compassionate ground, as per the representation dated 04.02.2012 of the second petitioner, and provide employment to the first petitioner, if there is no other impediment, within a period of eight weeks from the date of receipt of a copy of this order. 23. The writ petition is allowed on the above terms. No costs. Consequently, connected miscellaneous petition is closed.