Secretary to Government, School Education Department v. P. Rathinakumar
2016-02-16
C.T.SELVAM, S.MANIKUMAR
body2016
DigiLaw.ai
JUDGMENT : S.MANIKUMAR, J. Mr.G.Prabhu Rajadurai, learned counsel, has entered appearance for the sole respondent/writ petitioner, by caveat. By consent, the writ appeal is taken up for final disposal, at the stage of admission itself. 2. Mother of the respondent herein, namely R.Subbammal, was working as a Secondary Grade Teacher in a Government School, under the control of the appellants. According to the respondent, she was the only breadwinner of the family. She died in harness in the month of December, 1984. Immediately, the respondent made an application to the authorities, seeking employment on compassionate grounds, commensurate with his educational qualification. He claimed that he has completed SSLC in the year 1974 and thus was fully qualified to be appointed as a Junior Assistant. However, as there was no vacancy in the post of Junior Assistant, he was appointed as a Record Clerk, by the proceedings of the 3rd appellant, dated 08.08.1986. Thereafter, he was appointed as a Junior Assistant on 23.05.1991 and working in the 4th appellant school. 3. The further case of the respondent is that though the 3rd appellant has forwarded necessary proposals for regularisation of his services in the post of Junior Assistant, the same was not done by the 1st appellant, inspite of compliance of the defects, pointed out and repeated reminders. It is the grievance of the respondent that since his services were not regularised, orders with regard to successful completion of probation was not issued, which led to non sanction of selection grade/special grade, even after completion of ten/twenty years of service in the post of Junior Assistant. Even in the year 2010, the respondent submitted a representation to the appellants, requesting them to regularise his services. However, it was done. In the meantime, he retired from service on 30.06.2015. 4. After retirement, the respondent has submitted a detailed representation to the appellants on 29.09.2015, requesting them to pass appropriate orders, regularising his services and to grant all consequential benefits. As the appellants have not passed any orders, having no other alternative, the respondent has approached this Court by filing W.P.(MD)No.20639 of 2015 and prayed for issuance of a writ of mandamus, directing the 1st appellant to regularize his services as Junior Assistant and to grant all consequential benefits, by considering his representation, dated 29.09.2015. 5.
As the appellants have not passed any orders, having no other alternative, the respondent has approached this Court by filing W.P.(MD)No.20639 of 2015 and prayed for issuance of a writ of mandamus, directing the 1st appellant to regularize his services as Junior Assistant and to grant all consequential benefits, by considering his representation, dated 29.09.2015. 5. When the said writ petition came up for hearing on 23.11.2015, taking note of the nature of the issue involved and also of the fact that the respondent has rendered 29 years of service in the same post and retired from service and after hearing both sides, the writ court passed the following orders. "6.In these circumstances, the 1st respondent is directed to pass appropriate order on the representation of the petitioner dated 29.09.2015 by regularising the service taking into account the aforesaid facts and the 1st respondent is directed to exercise its power for relaxation of any of the qualification for regularisation, in view of the service rendered by the petitioner for 29 years. The 1st respondent is directed to complete the aforesaid exercise within a period of 12 weeks and the petitioner shall be paid benefits pursuant to such regularisation including the arrears thereof, within the aforesaid period and the concerned authority shall also send proposals for pension and other terminal benefits to the office of the Principal Accountant General forthwith, after regularisation order issued by the 1st respondent and the 1st respondent shall see to it that proposals are sent to the Principal Accountant General within a period of one month from the date of regularisation." 6. Being aggrieved by the order of the writ court, the present appeal has been filed by the State and its authorities, inter alia contending as follows: (i) The writ petition has been disposed of at the stage of admission itself, without giving an opportunity to the appellants. (ii) The writ petition filed by the respondent is hit by delay and laches and this aspect has not been considered by the writ court. (iii) While directing the appellants to pass appropriate orders on the representation of the respondent, dated 29.09.2015, the writ court has also issued positive directions to the appellants to regularise the appointment of the respondent as Junior Assistant on compassionate grounds, which depends upon various factors. 7.
(iii) While directing the appellants to pass appropriate orders on the representation of the respondent, dated 29.09.2015, the writ court has also issued positive directions to the appellants to regularise the appointment of the respondent as Junior Assistant on compassionate grounds, which depends upon various factors. 7. We have heard the learned Special Government Pleader appearing for the appellants and the learned counsel for the respondent. 8. Materials on record discloses that the respondent was initially appointed as a Record Clerk, on compassionate grounds, on 08.08.1986, consequent to the death of his mother in harness. Thereafter, on 23.05.1991, he was appointed as a Junior Assistant. However, his services were not regularised till he retired from service on 31.05.2015, on attaining superannuation. 9. It is the case of the respondent that inspite of the proposals sent by the 3rd appellant, his services were not regularised. Though he made repeated representations, requesting the appellants to regularise his services and to pay all consequential benefits, no action was taken. This positive statement made in the affidavit has not been denied by the appellants, even in the grounds of appeal. But, the appellants claim that the writ petition filed by the respondent is hit by delay and laches. 10. As per the letter of the Secretary to Government, Labour and Employment (Q1) Department in Letter (Ms)No.55, dated 24.05.2006, it is the duty of the Heads of the Departments and Collectors to send the proposals to the Government for regularising the services of incumbents appointed temporarily on compassionate grounds, in the prescribed format. G.O.Ms.No.235, Labour and Employment (Q1) Department, dated 26.09.2013, reads as under: XXX XXX XXX ANNEXURE 1. Particulars of Applicant. 1. Name of the applicant : 2. Date of application for appointment (only one dependant in the family can be provided appointments on Compassionate grounds) : 3. His/her relationship to the deceased Government Servant : 4. Date of birth and age (the age of wife or husband/son or unmarried daughter should not be more than 35 years respectively on the ate of death of Government Servant) in the case of widow/widower the upper age limit is 50 years) : 5. Qualifications : 6. Name of the post for which his/her name is recommended/for appointment and the service in which it is included (compassionate appointment should be given only to the lowest category of the service concerned) : 7.
Qualifications : 6. Name of the post for which his/her name is recommended/for appointment and the service in which it is included (compassionate appointment should be given only to the lowest category of the service concerned) : 7. Whether the post is within the purview of the Tamil Nau Public Service Commission : 8. Whether the candidate is fully Qualified for the post (If not, state the rules to be relaxed). : 9. The date of temporary appointment of the candidate (Extract from Service Register to be enclosed) : II.PARTICULARS OF DECEASED GOVERNMENT SERVANT 10. Name and designation of the deceased Government Servant : 11. Office where he/she worked at the time of death : 12. Whether he/she held the post (name of the post to be specified) in regular capacity (i.e.probationer or approved probation or full member) : 13. Date of Death/Date of retirement on medical invalidation III.GENERAL 14. Details of all the family members Name AGE Educational Qualifications Marital status Relationship to the deceased Employed/ unemployed (If employed particulars) 15. Monthly Income by way of Family Pension and other similar sources : 16. Details of immovable property like houses lands etc.owned by the family and the monthly income derived therefrom : IV.CERTIFICATES/PARTICULARS TO BE FURNISHED 17. i) Death Certificate of the deceased Government Servant (Original) ii) Legal heirs certificate of the deceased Government Servant (Original) iii) Certificates relating to educational qualification and date of birth( Original) SIGNATURE OF THE APPOINTING AUTHORITY 18. Recommendation of the Administrative Department concerned in the Secretariat N.B: i) The term 'near relative' is defined and restricted to include only the wife/husband/son/unmarried daughter/adopted son/adopted unmarried daughters/widows/divorced or deserted daughter of the Government Servant who dies in harness and unmarried brothers/unmarried sisters in case of the unmarried Government Servant who dies in harness. ii) Candidates seeking employment should possess all the prescribed qualification for the post concerned and tht these conditions should not be relaxed. iii) Dependants of the temporary Government Servants appointed under rule 10(a)(i) of the General Rules for the Tamil Nadu State and Subordinate Service who dies in harness are not eligible to be considered. iv) Dependants of the Government Servant, who die after retirement are not eligible to be considered. v) Dependants of Government Servant who die in harness can be considered for appointment on compassionate grounds irrespective of the presumptive date of superannuation of the deceased Government Servant.
iv) Dependants of the Government Servant, who die after retirement are not eligible to be considered. v) Dependants of Government Servant who die in harness can be considered for appointment on compassionate grounds irrespective of the presumptive date of superannuation of the deceased Government Servant. vi) Even if one member of the Family other than the deceased Government servant was employed even before the death of the Government servant and was living separately without extending any help to the family then the case of other eligible dependants may be considered. Mohan Pyare, Principal Secretary to Government" 10. Though the Government have issued orders, from time to time, to send the proposals for regularising the services of those appointed on compassionate grounds, the appellants have failed to take action. It is the duty of the competent authority to have considered the proposals sent by the 3rd appellant and regularised the services of the respondent. Instead of discharging their duties, they have blamed the respondent. Failure of the appellants in not taking up the cause of the respondent is per se apparent. Having allowed the respondent to work for more than 29 years in the same post, without passing any order, either regularising his services or otherwise, now the appellants cannot accuse the respondent for filing the writ petition after his retirement. This attitude on the part of the appellants is not appreciable. 11. Though it is contended by the appellants that compassionate appointment is not automatic and it depends upon various factors, that is not the issue involved in this case. It is a case where the respondent has already been appointed on compassionate grounds, on the death of his mother in harness. His appointment as Junior Assistant is also in terms of G.O.Ms.No.1499, Labour and Employment (Q1) Department, dated 03.08.1989, which deals with compassionate appointments. Though the said G.O.states that regular appointments should be made after getting the concurrence from the Public Service Commission, the appellants have failed to do so. Forwarding the property to obtain suitable orders of regularisation is the duty of the appellants and they cannot expect the respondent to remind them, periodically. In the light of the Government Order, extracted supra, the contention of the appellants is untenable. Nowhere, it is the case of the appellants that his appointment is irregular or illegal.
Forwarding the property to obtain suitable orders of regularisation is the duty of the appellants and they cannot expect the respondent to remind them, periodically. In the light of the Government Order, extracted supra, the contention of the appellants is untenable. Nowhere, it is the case of the appellants that his appointment is irregular or illegal. After giving appointment in tune with the Scheme for Compassionate Appointment and having allowed the individual to work for a long tenure, in this case for 29 years, it is not fair on the part of the appellants to deny regularisation and pay all service and monetary benefits, including retirement benefits, flowing out of such regularisation. 12. On the aspect of issuing positive directions, power of the Court is not restricted. Adverting to a case on facts and law and if the Court comes to a conclusion that grave injustice has been done to a party, Courts are empowered to issue positive directions. Writ of mandamus does not mean only to give directions to consider the case of an aggrieved party. 13. In such circumstances, we are of the considered view that the writ court is right in directing the 1st appellant to regularise the services of the respondent and to pay all arrears of monetary benefits and also to send pensionary papers to the Principal Accountant General, within a time frame. We see no grounds to interfere with the order of the writ court. Accordingly, the writ appeal is dismissed. No order as to costs. The appellants are directed to comply with the order of the learned Single Judge, within a period of one month from the date of receipt of a copy of this order.