S.Suder v. The Chief Engineer/Personnel, Tamilnadu Electricity Board, No.800, Annasalai, Chennai-600 002 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.3.2009CORAM:THE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE S.NAGAMUTHUWrit Appeal No.1652 of 2006& M.P.No.1 of 20061. The Chief Engineer/Personnel, Tamilnadu Electricity Board, No.800, Annasalai, Chennai-600 002.2. The Superintending Engineer, Kanyakumari Electricity Distribution Circle, Nagercoil-1. .. Appellants(Respondents)vs.S.Suder .. Respondent(Petitioner)Writ Appeal against the order dated 7.7.2006 passed by thelearned single Judge in Writ Petition No.29059 of 2003 on the file ofthis Court. W.P.No.29059/2003Petition presented to this Court to issue a Writ of CertiorarifiedMandamus calling for the records connected with the impugned order inMemo No.040674/630/ji.8ji.82/2002-1 dated 6.4.2002 passed by thefirst respondent and consequential order in letterNo.013760/155/ji8/ji82/karu.12/2003 dated 28.4.2003 passed by thefirst respondent and quash the same and direct the respondents toconsider the claim of the petitioner. For appellants : Mr.M.VaidyanathanFor respondent : Mr.S.N.RavichandranJUDGMENT(The Judgment of the Court was delivered by D.Murugesan,J)The Tamil Nadu Electricity Board, represented by its ChiefEngineer (Personnel), Chennai and the Superintending Engineer, https://hcservices.ecourts.gov.in/hcservices/ Kanyakumari Electricity Distribution Circle, Nagercoil-1, are theappellants herein.2. The respondent, by name, S.Suder, applied to the appellants-Board for appointment on 21.10.1999 seeking for appointment oncompassionate grounds that his father Thiru.Sugirthamani, while hewas working as Wireman at the Office of the Assistant Engineer, TNEB,Kazhuvanthilai, Kanyakumari District, died due to illness on7.3.1998. The said application was returned with a direction to themother of the respondent to apply again after completion of 18 yearsof age, by order dated 1.8.2000. The respondent attained the age of18 years on 30.8.2002 and the said application was rejected on28.4.2003 on the ground that no such application could beentertained, in view of the Board's Proceedings No.46, as therespondent did not attain the age of 18 years on the date ofapplication, i.e. 3.9.2002. Virtually, the application was rejectedon the basis of the Memo dated 6.4.2002. Apparently, the applicationwas made pursuant to the Circular in B.P.No.46, dated 13.10.1995. Byvirtue of the said Circular dated 13.10.1995, an application could bemade for appointment on compassionate grounds, even in case ofminors, at the time of the death of the breadwinner, on attaining theage of 18 years and further within the period of three years from thedate of majority. 3. The issue as to the sustenance of such application by a minorafter he became major and within a period of three years, came up forconsideration before this Court on very many occasions.4. In the judgment reported in 2001 Writ L.R. 601 in the case of"Ramadoss.D. vs. The Chief Engineer, T.N.E.B", this Court(D.Murugesan,J) directed the consideration of the application madewithin a period of three years after attaining the majority byplacing reliance on the very same Circular in B.P.No.46, dated13.10.1995.5. Subsequently, in the judgment reported in 2002 (4) L.L.N.1132, (D.Murugesan,J), in the case of "P.Ravi vs. Chief Engineer(P)., T.N.E.B", also, the very same Circular was relied upon and theapplication for appointment on compassionate grounds was directed tobe considered.6. Justice P.D.Dinakaran, has also taken the very same view byfollowing the very same Circular dated 13.10.1995, in W.P.No.19673 of2003, in the order dated 23.9.2003, in the case of "J.Jayakaran vs.The Superintending Engineer, Theni Electricity Distribution Circle,Theni" and the application for appointment on compassionate groundswas directed to be considered. 7. Justice K.Govindarajan has also taken the same view in WritPetition No.13099 of 2003, order dated 30.10.2003, in the case of https://hcservices.ecourts.gov.in/hcservices/ "G.Muthamilselvan vs. The Chief Engineer (Personnel) and another".8. Justice F.M.Ibrahim Kalifulla has also taken the same view inthe decision reported in 2004 (3) C.T.C. 120 in the case of "MeerIsmail Ali.T. vs. The Tamil Nadu Electricity Board". We are told thatthe order in the said case of "Meer Ismail Ali" was confirmed in WritAppeal by the Division Bench in W.A.No.4008 of 2004, by judgmentdated 1.12.2004 and as against the said judgment dated 1.12.2004, theSpecial Leave Petition in Civil Appeal No.6387 of 2005, was alsodismissed by the Supreme Court, by judgment dated 4.4.2005.9. Similar question came up for consideration before a DivisionBench of this Court in Writ Appeal No.3050 of 2003 in the case of"Indiraniammal vs. The Chief Engineer (Personnel) and another" and byjudgment dated 8.3.2005, the Division Bench set aside the impugnedorder therein in rejecting the request of the petitioner therein forappointment on compassionate grounds and directed the Board toconsider the application.10. There cannot be a controversy in view of the settledposition of law that appointment on compassionate grounds is notautomatic, as it would amount to backdoor entry to a post, by-passingthe Rules to be followed for such appointment. Nevertheless, to tideover the financial constraints of a family due to sudden demise ofthe breadwinner of a family, the State Government or its undertakingor for that purpose, any employer, would be entitled to frameScheme/Rules for such appointment by prescribing the conditions aswell as the eligibility. Hence, the request for appointment oncompassionate grounds would be considered with reference to theScheme/Rules or any of the provisions framed for the saidpurpose, either by the Government or by the employers, as the casemay be.11. In the case on hand, the father of the respondent while hewas working as Wireman in the Office of the Assistant Engineer, TNEB,Kazhuvanthilai, Kanyakumari District, died due to illness on7.3.1998. At the time of the death of his father, the respondent was15 years old and for the purpose of making application forappointment on compassionate grounds, he should have completed 18years. Hence, he could not make any application for appointment oncompassionate grounds. By placing reliance on B.P.No.46, dated13.10.1995, he made application on 3.9.2002, within a period of fourdays from the date of his attaining majority, i.e. 18 years. Thatapplication was rejected on the ground that the same cannot beentertained as per the Circular in vogue on the date of theapplication. Presumably, the order of rejection was passed on thebasis of the Memo, dated 6.4.2002. 12. As we have already referred that the application forcompassionate appointment is maintainable by a person within a period https://hcservices.ecourts.gov.in/hcservices/ of three years after he/she attains the majority, irrespective of thefact that the breadwinner died while such person was a minor in termsof the proceedings of the Board in B.P.No.46, dated 13.10.1995. Thisposition is not in dispute. We may also once again refer to the factthat following the very same Board Proceedings in B.P.No.46, dated13.10.1995, consistently, this Court had taken the view that theapplication seeking for appointment on compassionate grounds, has tobe considered in the event when such applications are made within aperiod of three years after he/she attains the majority.13. The objection of the Board appears to be that theapplication was made on 3.9.2002 and even before the said applicationwas filed, by the Memo dated 6.4.2002, the Board deleted theprovisions of entitlement to make application conferred underB.P.No.46, dated 13.10.1995. As already observed, the appointment oncompassionate grounds can be regulated by the employer withconditions attached to such regulations. When the Board is empoweredto make eligible a candidate to apply a person to apply forcompassionate appointment, even after his attaining the majority andwithin a period of three years, thereafter, in case he was a minor atthe time of the death of the breadwinner, certainly, the Board couldtake away such right by the issuance of Circular, by deleting suchprovisions entitling such person also to apply after attaining theage of majority. The power of the Board cannot be questioned.Nevertheless, our attention was drawn to the fact that the subsequentMemo dated 6.4.2002 was set aside by this Court in Writ AppealNo.3050 of 2003, by judgment dated 8.3.2005 and the matter is pendingbefore the Supreme Court in S.L.P.-Civil Appeal No.16518 of 2005 andno interim order was granted. 14. We have perused the judgment of the Division Bench of thisCourt, dated 8.3.2005 in Writ Appeal No.3050 of 2003, wherein theDivision Bench has directed consideration of the application of thepetitioner therein, after setting aside the order impugned therein,necessarily meaning thereby, the Memo dated 6.4.2002 was also setaside.15. It is contended by learned counsel for the appellants-TNEBthat the Division Bench has not elaborately discussed the purport ofthe Memo dated 6.4.2002 and the Division Bench had only set aside theorder of rejection of the application and therefore, the judgment ofthe Division Bench is not applicable to the facts of the present case.16. In our opinion, we cannot go into the circumstances underwhich the Division Bench has rendered the judgment and for ourdisposal of the present Writ Appeal, it would be suffice for us torefer to the direction of the Division Bench, namely, setting asideof the impugned order therein, including the Memo dated 6.4.2002 aswell. https://hcservices.ecourts.gov.in/hcservices/

17. In view of the fact that the appellants-TNEB cannot relyupon the Memo dated 6.4.2002 to reject the application of therespondent for appointment on compassionate grounds, we do not findany merits to interfere with the impugned order passed by the learnedsingle Judge. The application of the respondent made on 3.9.2002should be considered on its own merits and in accordance with law,without reference to the Memo dated 6.4.2002. Such order should bepassed by the appellants-TNEB within a period of two months from thedate of receipt of a copy of this judgment.18. With the above modification in the impugned order passed bythe learned single Judge, the Writ Appeal is disposed of. No costs.The Miscellaneous Petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcsTo1. The Chief Engineer/Personnel, Tamilnadu Electricity Board, No.800, Annasalai, Chennai-600 002.2. The Superintending Engineer, Kanyakumari Electricity Distribution Circle, Nagercoil-1.1 CC To Mr.S.N.Ravichandran, Advocate, SR NO.704341 CC To Mr.M.Vaidyanathan, Advocate, SR NO.10615Writ Appeal No.1652 of 2006bv(co)pmk/15.4.2009