Muthunagammal v. Dindugul Electricity Distribution Circle,Tamil Nadu Electricity Board(TNEB)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:1.12.2009CORAMTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANWrit Petition No.36578 of 2003---Muthunagammal ... PetitionerVs.The Superintendent Engineer,Dindugul Electricity Distribution Circle,Tamil Nadu Electricity Board(TNEB),Meenakshi Nayakan Patti,Angu Nagar, SS Campus,Dindugul-624 002. .. RespondentsThis petition is filed under Article 226 of the Constitution ofIndia for the issuance of Writ of Certiorarified Mandamus calling forthe records relating to impugned letter dated 6.2.2003 bearingNo.f/vz;/016626-nkghbgh-jpkpgt-jpfy;-ep/gp/1-cjtp/4-nfh/th/nt/2003/ ehs; 06-02-03 issued bythe respondent, quash the same and consequently direct the respondentto consider the petitioner's representations dated25.5.1998,24.01.2002 and 10.01.2003 to the respondent in seekingemployment to the petitioner's son M.Nagarajan on compassionategrounds.For petitioners : Mr.C.P.SivamohanFor respondents : Mrs.Sharmila Prakasam for Mr.M.Vaidyanathan O R D E RThe petitioner has come before this court challenging therejection of her claim for compassionate appointment of her son inthe respondent Board.2.The case of the petitioner is that her husband N.Marimuthudied in harness on 11.12.1997 and that the demise of her husbandcaused mental agony and financial problem to her family and she isunable to meet family requirements. Hence the petitioner made arepresentation on 25.5.1998 and subsequently another applicationdated 24.1.2002 and finally a third representation dated 10.1.2003 tothe respondent. The respondent board by virtue of impugned order https://hcservices.ecourts.gov.in/hcservices/ rejected the petitioner's claim for compassionate appointment,relying upon the rule that the application should be made withinthree years from the date of death of the employee. The said impugnedorder is challenged before this court.3.Counter affidavit has been filed stating that thepetitioner's husband died on 11.12.1997 and the petitioner's sonM.Nagarajan made representations dated 21.8.2001,7.9.2002 and finallyon 10.1.2003. As per B.P.No.46, on 13.10.1995, application forappointment on compassionate ground should be made within three yearsfrom the date of death of the employee. As the application was madebeyond three years from the date of the employee, it was rejected. 4.Learned counsel for the petitioner submitted that thepetitioner had made representations on 25.5.1998, 24.1.2002 and10.1.2003. However the impugned order does not disclose therepresentation dated 24.1.2002, even though there is anacknowledgement by the respondent. Apart from that, the learnedcounsel for the petitioner submitted that there was a rule in theproceedings issued by the Electricity Board dated 14.6.1997, whichenables the Electricity Board to make appointment of the familymembers of the employees who died in harness within three years fromthe date of their attaining majority, if they are minor. Learnedcounsel also relied upon a judgement of a Division Bench of thiscourt in Tmt.T.Rajamani versus The Chairman, Tamil Nadu ElectricityBoard, 800 Anna Salai, Chennai-600 002 and two others reported in2007 WLR 309 and in Chief Engineer/Personal, Tamilnadu ElectricityBoard and others vs. P.Venkatesan reported in CDJ LJ dated 2.7.2009to support his claim that even after three years, the application forappointment on compassionate ground can be considered.5.Learned counsel for the Electricity Board Miss.Shyamala forMr.Vaidyanathan submitted that the said Electricity Board order dated14.6.1997 was cancelled on 6.4.2002 and in view of that theapplications which are received within three years from the date ofdeath of the employee alone would be considered and based on thatground only the impugned order has been passed. Learned counsel alsorelied upon a Division Bench judgement of this court passed inE.Ramasami vs. Tamilnadu Electricity Board represented by itsChairman, Chennai-600 002 and others reported in (2006) 4 MLJ 1080,wherein it was held that appointment of a member of the family of thedeceased employee could be made on compassionate grounds provided, itis within the frame work of the rules and regulations therein.6.In this case admittedly the employee died on 11.12.1997.The circular dated 14.6.1997 which enables the Electricity Board togive compassionate appointment from the members of the deceasedfamily within three years from the date of attaining majority. On thedate of death of the employee, the circular dated 14.6.1997 was inforce. According to the petitioner, she made representation on https://hcservices.ecourts.gov.in/hcservices/

25.5.1998 within six months from the date of death of the employee on11.12.1997. However the same is denied by the respondent. The secondrepresentation was made on 24.1.2002 and for which theacknowledgement signed by the Additional Chief Engineer, Dindigul,Electricity Board Distribution Circle has been filed before thiscourt. Hence the respondent cannot say that the said representationwas not received. In any event the respondent admitted the receipt ofother representations dated 21.8.2001,7.9.2002 and 10.1.2003. Thecircular dated 14.6.1997 was cancelled only on 6.4.2002, whereasadmittedly the petitioner made representations on 21.8.2001, 7.9.2002and 24.1.2002 and when the representations were made the saidcircular was in force. Having received the representations dated21.8.2001,7.9.2002, 24.1.2002 and 10.1.2003 the respondent cannotkeep quiet without passing any order. The respondent passed an orderonly on the representations dated 10.1.2003 on 6.2.2003.7.When the employee died on 11.12.1997 and when therepresentations for compassionate appointment were made on 21.8.2001,24.1.2002 and 7.9.2002, the circular dated 14.6.1997 was in force.When the circular was in force, the respondent should have given thebenefit to the petitioner and ought to have decided the petitioner'claim based on the circular dated 14.6.1997 and ought to have givencompassionate appointment to her son. Without passing any order onthe representations dated 21.8.2001, 7.9.2002 and 24.1.2002, therespondent cannot reject the petitioner's claim, only on therepresentation dated 10.1.2003, observing that the representation forappointment was made belatedly after three years. Everyrepresentation which has been made should be decided based on therule which was in force at the time of presentation of therepresentation, especially when the petitioner claim is eligible asper circular dated 14.6.1997.8.An another significant factor is that by virtue of B.P.(F.B.) No.46, dated 14.06.1997, three years limitation forapplication for compassionate appointment was relaxed and thedependent of the employee is permitted to apply for compassionateappointment within three years from the date of attaining majority,if the defendant was minor. That concession was taken away by memodated 6.4.2002, which was challenged before this court and theDivision Bench of this court on 8.3.2005 in Indiraniammal v. ChiefEngineer (Personnel) Tamil Nadu Electricity Board in W.P.No.3050 of2003 set aside the withdrawal memo dated 6.4.2002. Therefore, theconcession given by memo dated 14.6.1997 is restored as on date andpetitioner's case will be covered by the memo. Eventhough SLP ispending before the Honourable Supreme Court of India challenging theDivision Bench judgement passed in W.P.No.3050 of 2003 and no staywas granted by the Hon'ble Apex Court. 9.In that event the order passed on 6.2.2003 is liable to bequashed. The circular dated 14.6.1997, enables the Electricity Board https://hcservices.ecourts.gov.in/hcservices/ to receive the application even after three years from the date ofthe death of the employee. By way of interim orders dated 7.7.2009the petitioner was granted permission to move the authority andexplain the indigent circumstances to seek employment oncompassionate ground. She appeared on 20.11.2009 and her claim wasrejected by the respondent contending that the application was madebeyond three years from the date of death of the employee. In view ofthe reasoning given above, the rejection order dated 20.11.2009 isliable to be quashed and accordingly quashed. This court has gotjurisdiction to mould the prayer, and quashes not only the impugnedorder but also the subsequent order passed thereon. As the orders arequashed as stated above, the respondents are directed to passappropriate orders, granting compassionate appointment to thepetitioner's son without reference to B.P.No.46 dated 13.10.1995 andmemo dated 6.4.2002 within four weeks from the date of the receipt ofa copy of this order. 10.The writ petition is allowed with the above direction. Nocosts.Sd/Asst.Registrar/true copy/Sub Asst.Registrar vkToThe Superintendent Engineer,Dindugul Electricity Distribution Circle,Tamil Nadu Electricity Board(TNEB),Meenakshi Nayakan Patti,Angu Nagar, SS Campus,Dindugul-624 002.1 cc To Mr.M.Vaidyanathan, Advocate, SR.652931 cc To M/s.C.P.Sivamohan, Advocate, SR.65349W.P.No.36578 of 2003SR(CO)sra 23.02.2010