MADRAS
HIGH COURT
V.
SELVARANI VS THE CHAIRMAN ON 21 MARCH, 2011
Summarised Judgement
(Scroll for Complete Judgement)
Facts
of the Case:
Petitioner’s husband was a Lineman working under
the control of the second respondent and he died in harness and intestate on
1.12.2003. Petitioner made many representations to the second respondent for
compassionate appointment within 1 year from the death of deceased but her
request was rejected on the ground that petitioner is the second wife as per
the certificate dated 20.01.2004 and so
she is not entitled to the same.
Observation of Court:
Petitioner filed a suit and the court declared
her as the legally wedded wife after the judgment the petitioner approached the
competent authority to cancel that certificate and issue a fresh certificate
after that she approached the fourth respondent for the compassionate
appointment, and again her request was rejected on the ground of delay.
Since the first representation made by
petitioner was within 3 years of the death of deceased and since then she was
continuously pursuing her case so the next representation made by her cannot be
treated as a belated application. So, the court held that the representation
made by petitioner was well in time i.e. within 3 years.
Judgement:
Applying the above referred judgments to the
facts of this case, the impugned order is set aside, with a direction to the
respondents to consider the claim of the petitioner treating the application
submitted by the petitioner dated 24.12.2008 as a continuation of earlier
application submitted by her, in the light of the fresh legal heirship
certificate issued by the authorities and pass fresh orders, within a period of
four weeks from the date of receipt of copy of this order, without reference to
the objections raised in the impugned order.
The writ petition is ordered accordingly. No
costs.
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Complete
Judgement
MADRAS
HIGH COURT
V.
SELVARANI VS THE CHAIRMAN ON 21 MARCH, 2011
IN THE HIGH COURT OF
JUDICATURE AT MADRAS
DATED: 21.3.2011
CORAM
THE HONOURABLE MR. JUSTICE
N. PAUL VASANTHAKUMAR
WRIT PETITION NO.20949 OF
2009
V. Selvarani ...................................Petitioner
Vs.
1. The Chairman
Tamil Nadu Electricty Board
No.800, Anna Salai
Chennai.
2. The Superintending Engineer
Thiruvannamalai Electricity
Distribution
Zone, Tamil Nadu Electricity
Board
Thiruvannamalai.
3. The Executive Engineer
Thiruvannamalai Electricity
Distribution
Zone, Tamil Nadu Electricity
Board
Thiruvannamalai.
4. Thangammani ...
Respondents
Writ Petition filed under
Article 226 of the Constitution of India praying for the issuance of a Writ of
Certiorarified Mandamus calling for the records of the second respondent in
Letter No.5320/104/SC/TVM/NP2/ASST4/KV/09, dated 17.4.2009 and quash the same
and direct the second respondent to consider the petitioner for compassionate
appointment on the demise of her husband Bakthanathan, on merits and in
accordance with law.
For Petitioner : Mr. G. Rajan
For Respondent Nos.1 to 3:
Mr. M. Vaidyanathan
O R D E R
The prayer in the writ
petition is to quash the order passed by the second respondent dated 17.4.2009
and direct the second respondent to consider the petitioner for compassionate
appointment on the demise of her husband Bakthanathan, on merits and in
accordance with law.
2. The brief facts necessary
for disposal of the writ petition are as follows:
(a) Petitioner's husband was
employed as Lineman in the Tamil Nadu Electricity Board under the control of
the second respondent and he died in harness and intestate on 1.12.2003,
leaving behind the petitioner herein (wife of the deceased) and two minor
daughters. According to the petitioner, her deceased husband was the only
breadwinner of the family.
(b) The petitioner submitted
several representations to the second respondent seeking compassionate
appointment within one year from the date of death of her husband. On 4.9.2006,
the second respondent rejected the request of the petitioner on the ground that
as per the legal heirship certificate issued by the Tahsildar dated 28.1.2004,
petitioner is the second wife of the deceased employee and therefore, she is
not entitled for the compassionate appointment.
(c) According to the
petitioner, the said legal heirship certificate was obtained by the fourth
respondent behind the back of the petitioner and by using the signatures of the
petitioner, which were obtained by fraud on the pretext that her signatures
were required for getting death certificate of the deceased Bakthanathan. It is
the specific case of the petitioner that she came to know about the said legal
heirship certificate dated 28.1.2004 for the first time only when the rejection
order dated 4.9.2006 was passed by the second respondent.
(d) Thereafter the
petitioner filed a suit in O.S.No.39 of 2006 on the file of the District Court,
Tiruvannmalai claiming the terminal benefits and the insurance amount due to
the death of her husband Bakthanathan. The fourth respondent, who was shown as
first wife in the legal heirship certificate dated 28.1.2004 was also arrayed
as party in the said suit and she had also contested the suit by filing the
written statement. The learned District Judge, Tiruvannamalai by judgment and
decree dated 3.10.2007 granted decree for terminal benefits as prayed for by the
petitioner and also declared that the petitioner is the legally wedded wife of
the deceased Bakthanathan.
(e) After obtaining the
judgment and decree, the petitioner approached the concerned authorities for
cancellation of earlier legal heirship certificate dated 28.1.2004 and also for
issuance of fresh legal heirship certificate. The Tahsildar, on the basis of
the judgment and decree, cancelled the earlier legal heirship certificate dated
28.1.2004 and granted fresh legal heirship certificate in favour of the
petitioner.
(f) Thereafter the
petitioner again approached the second respondent along with the representation
dated 24.12.2008 seeking compassionate appointment, in continuation of her
earlier applications made well within the period of three years.
(g) The second respondent
again rejected the application of the petitioner by his proceedings dated
17.4.2009 on the ground that the application is beyond the period of three
years and hence the same cannot be entertained. Hence, the petitioner has filed
the present writ petition with the above prayer.
3. In this writ petition
notice of motion was ordered on 14.10.2009 and subsequently on 1.7.2010 the
writ petition was admitted. Today (21.3.2011) the writ petition is taken up for
final disposal.
4. The learned counsel for
the petitioner submitted that the issue raised in this writ petition is covered
by the judgments of this Court as well as Honourable Supreme Court. The learned
standing counsel for TNEB also fairly submitted that the issue is covered by
the judgments in favour of the petitioner.
5. In this case the
petitioner's husband died on 1.12.2003 while in service and the petitioner made
a representation seeking compassionate appointment within one year from the
said date. The second respondent rejected the request of the petitioner by his
proceedings dated 4.9.2006 on the ground that in the legal heirship certificate
dated 28.1.2004 petitioner is shown as second wife of the deceased employee.
Thereafter petitioner approached the Civil Court and obtained a decree on
3.10.2007 in her favour for getting terminal benefits and got herself declared
as the legally wedded wife of the deceased Bakthanathan. Based on the civil
Court decree petitioner again approached the revenue authorities and got the
earlier legal heirship certificate dated 28.1.2004 cancelled and obtained a
fresh legal heirship certificate. Enclosing the said legal heirship certificate
petitioner again made a representation to the second respondent on 28.12.2008
seeking compassionate appointment, which is rejected by the impugned order
dated 17.4.2009. From the above narrated facts it is clear that the
representation of the petitioner dated 28.12.2008 is not the first
representation of the petitioner, but it is made in continuation of her earlier
representation made within one year from the date of death of the deceased
Bakthanathan. The fact that the first representation was rejected by the second
respondent on 4.9.2006 itself is enough to prove that the first representation
was made within three years from the date of death of the deceased employee.
The petitioner is actively pursuing her case and hence the subsequent
representation made by the petitioner on 28.12.2008 cannot be treated as
belated application. In this view of the matter, I hold that the petitioner has
made representation seeking compassionate appointment well in the time, i.e,
within three years from the date of death of the deceased employee.
6. It is also a fact that
from 26.11.2001 to 28.2.2006, there was a ban order issued by the Government of
Tamil Nadu in G.O.Ms.No.212 P&AR Department, dated 28.11.2001 prohibiting
appointment of staff in any of the Government/Government Undertakings except
Teachers, Police and Doctors. The said ban order was lifted by the Government
only during February, 2006.
7. (a) Similar issue as to
whether an application seeking compassionate appointment can be rejected on the
ground that the application was not submitted within three years from the date
of death of the deceased employee and whether completion of 18 years within
three years, is a mandatory requirement when earlier application submitted by
other claimant is kept pending, was considered by this Court in the decision
reported in 2004 (3) CTC 120 (T.Meer Ismail Ali v. The Tamil Nadu Electricity
Board) (F.M.Ibrahim Kalifullah,J (as he then was)). In the said case the
deceased Board employee died on 13.4.1993 and the application submitted by one
of his daughter on 5.8.1997 was rejected on the ground that she had not
completed 18 years of age and after completing 18 years of age when an
application was made on 4.7.2000 which was rejected on the ground that the
application was not made within three years from the date when the Board
Proceedings dated 13.10.1995 was issued. This Court considering the technical
plea raised by the respondent Board set aside the said order and remitted the
matter to pass fresh orders without reference to the objections already raised
by the Board. The said order of the learned single Judge was challenged by the
TNEB in W.A.No.4008 of 2004 before the First Bench of this Court (consisting of
the Hon'ble Mr.Justice Markandey Katju,C.J. (as he then was) and
N.V.Balasubramanian,J.) dismissed the writ appeal on 1.12.2004. The respondents
herein filed SLP No.6387 of 2005 against the said order which was also
dismissed on 1.4.2005 by the Honourable Supreme Court and consequently the said
writ petitioner was given compassionate appointment.
(b) Another writ petition in
W.P.No.41459 of 2005 was considered by me on the same set of facts. The said
writ petition was allowed following the earlier order of the Division Bench of
this Court made in W.A.No.4008 of 2004 dated 1.12.2004 and the said decision is
reported in (2006) 2 MLJ 200 (Selvi R.Anbarasi v. Chief Engineer (Personnel),
TNEB, Chennai). The said order was challenged by the TNEB before the First
Bench in W.A.No.988 of 2006. However, the said petitioner was given appointment
on compassionate ground by implementing the order and therefore the writ appeal
was dismissed as infructuous on 15.9.2006 by recording the statement made by
the Standing Counsel for the TNEB.
(c) In W.P.No.21512 of 2003
one Indiraniammal challenged the rejection of compassionate appointment on
similar ground. The learned single Judge dismissed the writ petition by order
dated 4.8.2003 against which the petitioner therein filed W.A.No.3050 of 2003
and the said writ appeal was allowed by the Division Bench (consisting of the
Hon'ble Mr.Justice P.Sathasivam (as he then was) & S.K.Krishnan,J) by order
dated 8.3.2005 following the earlier judgments as well as the Supreme Court
Judgment reported in (2000) 6 SCC 493 (Balbir Kaur v. Steel Authority of India
Ltd). Against the said decision Civil Appeal No.2039 of 2006 was filed by the
respondent Board herein which was dismissed by the Honourable Supreme Court on
30.3.2010.
(d) Dismissal of another
W.P.No.775 of 2004 by order dated 29.1.2005 on the ground of delay was
considered by the Division Bench (F.M.Ibrahim Kalifullah,J. (as he then was)
& P.Murugesan,J) in W.A(MD).No.29 of 2006 and by order dated 27.6.2006 the
Division Bench allowed the writ appeal and directed to give compassionate
appointment to the younger son of the deceased Board employee, who died on
15.11.1996. The said order of the Division Bench was also challenged by the
Board in SLP(C)No.15534 of 2007 which was also dismissed by the Apex Court on
8.4.2009.
(e) Three writ petitions
were disposed of by me i.e., W.P.Nos.19914 of 2004, 32409 of 2004 and 10577 of
2005 by common order dated 24.7.2006 wherein similar issue was considered. In
respect of the above three writ petitions, which were allowed, writ appeal was
filed against one writ petition in W.A.No.1206 of 2006 while implementing the
order in respect of other two cases. The said writ appeal was allowed by the
Division Bench on 29.9.2006. The respondent in the writ appeal viz., J.Karthick
filed review application which was also rejected by the Division Bench on
25.8.2008. Against the dismissal of the writ appeal as well as rejection of review
application, the said J.Karthick filed SLP(C) No.2004-2005/2009 and on
23.2.2009 the SLPs were tagged along with Civil Appeal No.2039 of 2006 viz.,
Indiraniammal case. Subsequently the said SLP was numbered as Civil Case
Nos.5068-5069 of 2009 which was allowed on 30.3.2010 and the said order reads
as follows:
"Leave granted.
Heard learned counsel for
the parties.
These Appeals have been
filed against the impugned judgment of the High Court of Madras dated 29th
September, 2006 and subsequent order dated 25.8.2008 passed in the review
application.
The Division Bench of the
High Court has reversed the judgment of the learned single Judge only on the
ground of delay who directed compassionate appointment to the appellant. The
appellant was a minor at the time of the death of his father and since the
mother of the appellant applied within time, we are of the opinion that the
appellant after becoming major should have been granted compassionate
appointment.
Accordingly, we allow these
appeals, set aside the impugned judgment of the Division Bench and restore the
judgment of the learned single Judge. No costs."
(Emphasis Supplied) From the
perusal of the above order it is evident that the order passed by the Division
Bench in writ appeal and in the review petition were set aside and the order of
the single Judge dated 29.9.2006 was restored.
(f) In W.P.No.18575 of 2006
I had an occasion to consider similar issue and allowed the writ petition on
20.6.2006 by following earlier orders. The said order was also challenged by
the respondent in W.A.No.42 of 2007 and the Division Bench (D.Murugesan,J &
K.Venkataraman,J) dismissed the writ appeal on 2.7.2009. The Board filed
SLP(C)No.8305 of 2010 which was also dismissed by the Honourable Supreme Court
on 6.7.2010. The said candidate viz., P.Venkatesan was given compassionate
appointment by order dated 18.8.2010.
(g) Again similar matter was
considered by me in W.P.No.29059 of 2003 and relief granted by order dated
7.7.2006, against which also the Board filed W.A.No.1652 of 2006. The said writ
appeal was dismissed by Division Bench (D.Murugesan,J. & S.Nagamuthu,J.) on
30.3.2009.
(h) W.P(MD).No.1335 of 2006
was disposed of by me on 10.8.2006. The said order was also confirmed by the
Division Bench (consisting of the Hon'ble Mr.Justice P.D.Dinakaran (as he then
was) & P.R.Shivakumar,J.) in W.A.No.309 of 2007 on 8.8.2007 and the same is
reported in (2007) 6 MLJ 1011 (Superintending Engineer, Madurai Electricity
Distribution Circle v. V.Jaya) and the said candidate viz., V.Jaya was given
appointment order.
(i) Similar matter was again
considered by me in W.P.No.4050 of 2006 and the said writ petition was allowed
by order dated 29.6.2010 following the orders of the Division Bench and Supreme
Court and the said judgment is reported in (2010) 7 MLJ 644 (M.Uma vs. Chief
Engineer (Personnel), TNEB, Chennai). No appeal is filed against the said
order.
8. From the above referred
decisions passed by this Court in series of cases on the same ground, it is
evident that the similar grounds raised by the respondents that the petitioner
has not filed application seeking compassionate appointment within three years
from the date of death of her husband, is not a valid ground to deny
appointment on compassionate ground as no one in her family is employed.
9. The learned counsel for
the petitioner also cited a decision of the Supreme Court reported in (2008) 9
SCC 24 (Maharaj Krishnan Bhatt v. State of Jammu and Kashmir) for the
proposition that once a judgment had attained finality on a particular/similar
issue, it could not be termed as wrong and its benefit ought to be extended to
other similarly placed persons. Citing the said judgment the learned counsel
contended that the earlier orders passed by this Court granting relief to
similarly placed persons confirmed upto the Supreme Court and the said orders
having been implemented by the Board, the petitioner cannot be discriminated in
the matter of giving compassionate appointment as she is also similarly placed.
In the said decision in paragraphs 19, 20 and 23 the Supreme Court held thus,
"19. ..... once a similar case of Abdul Rashid Rather came up for
consideration before a Single Judge and his writ petition was allowed, a
direction was issued to the authorities to appoint him as PSI by granting
consequential benefits, the learned Single Judge could not be said to have committed
any error of law in following the said decision, in allowing the writ petition
filed by the present appellant-writ petitioners and in issuing similar
directions to the State authorities. This was particularly true because the
judgment and order of the learned Single Judge was confirmed by the Division
Bench and even by this Court inasmuch as special leave petition was also
dismissed.
20. In our considered
opinion, in the light of the facts and circumstances, the Government ought to
have accepted and respected the decision of the learned single Judge without
filing intra-court appeal. No distinguishing feature had been brought to the
notice of the Division Bench, nor the Division Bench set aside the judgment and
order passed by the learned Single Judge holding or observing that though Abdul
Rashid Rather was granted the benefit and the learned Single Judge ordered
extension of those benefits to the writ petitioners, they were not entitled
because the case of Abdul Rashid Rather was different. Even before us, nothing
special or extraordinary fact or circumstance was shown to distinguish the case
of Abdul Rashid Rather and of the present appellants. In our opinion,
therefore, the learned single Judge was wholly justified in allowing the writ
petition and the Division Bench ought not to have interfered with the said
decision.
21. ..................
22. ..................
23. In fairness and in view
of the fact that the decision in Abdul Rashid Rather had attained finality, the
State authorities ought to have gracefully accepted the decision by granting
similar benefits to the present writ petitioners. It, however, challenged the
order passed by the single Judge. The Division Bench of the High Court ought to
have dismissed the letters patent appeal by affirming the order of the single
Judge. The letters patent appeal, however, was allowed by the Division Bench
and the judgment and order of the learned single Judge was set aside. In our
considered view, the order passed by the learned single Judge was legal, proper
and in furtherance of justice, equity and fairness in action. The said order,
therefore, deserves to be restored."
The said Judgment of the
Supreme Court was followed by the Division Bench of this Court (consisting of
the Hon'ble Mr.Justice S.J.Mukhopadhaya (as he then was) & V.Dhanapalan,J.)
in W.A.(MD)Nos.64 & 111 to 126 of 2007, Judgment dated 14.11.2008. In
paragraphs 28 and 29 the Division Bench held thus, "28. In a recent
decision of the Supreme Court in Maharaj Krishnan Bhatt and Another v. State of
Jammu and Kashmir and Others, (2008) 9 SCC 24, the issue regarding the
extension of benefit to similarly situated persons was dealt with and though
the proposition of law was accepted that wrong decision in one case could not
be extended to others, on facts, it was held that once a judgment had attained
finality, it could not be termed as wrong and its benefit should be extended to
other similarly situated persons.
29. The above decision of
the Apex Court is squarely applicable to the facts of the present case, as in
this case, Mamundiraj and others, who were similarly placed like that of the
workmen, were given permanent status by the management, but it was not done in
the case of the workmen herein, thereby violating the provisions of Article 14 of
the Constitution of India."
10. The issue i.e., to
consider similarly placed persons equally if the issue is identical was
considered by me in the decision reported in 2006 WLR 327 : (2006) 2 MLJ 572
(N.S.Balasubramanian v. Food Corporation of India, New Delhi). Paragraphs 16
and 17 reads as follows:
16.(a) The learned Senior
counsel for the petitioner cited the judgment of the Supreme Court reported in
AIR 1997 SC 3588 (K.C.Sharma v. Union of India), wherein in para 6 it is held
as under, "6. Having regard to the facts and circumstances of the case, we
are of the view that this was a fit case in which the Tribunal should have
condoned the delay in the filing of the application and the appellants should
have been given relief in the same terms as was granted by the Full Bench of
the Tribunal. The appeal is, therefore, allowed, the impugned judgment of the
Tribunal is set aside, the delay in filing of O.A.No.774 of 1994 is condoned
and the said application is allowed. The appellant would be entitled to the
same relief in the matter of pension as has been granted by the Full Bench of
the Tribunal in its judgment dated December 16, 1993 in O.A.Nos.395-403 of 1993
and connected matters. No order as to costs."
(b) In another decision
cited by the learned Senior Counsel for the petitioner reported in (2003) 12
SCC 192 (State of Karnataka and others v. N.Parameshwarappa and others) in
paragraphs 8 and 9 the Supreme Court held as under, "8. ...we do not find
any reasonable justification to confine the relief to only such of the teachers
who approached the court and having regard to the fact that relief related to
the revision of scales of pay, every one of that class of teachers who
approached would be entitled to the benefit, notwithstanding that they have not
approached the Court. We are in equal agreement with the Division Bench in
denying the payment of interest at compounded rates which, in our view, cannot
be justified at all on the facts and circumstances of the case wherein a
serious and genuine doubt existed about the applicability of the government
order dated 30.3.1990, as raised in the proceedings.
9. For all the reasons
stated above, the appeals filed both by the State as well as by the private
respondent teachers fail and shall stand dismissed. Our declaration to extend
the benefits of the judgments to others who have not approached the Court, but
similarly placed is to do complete and substantial justice. No costs."
(c) In yet another decision
reported in 1999 SCC (L&S) 788 (Govind Ram Purohit and another v. Jagjiwan
Chandra and others), in para 3 the Honourable Supreme Court held thus, "3.
It was lastly contended by the learned counsel for the appellants that whereas
the petition had been filed by only Respondent 1, the High Court while finally
concluding the matter has given a direction to promote all those who were
senior to the appellants even though they were not parties to the petition.
Once the High Court had placed a particular interpretation on the Rules, the
benefit of that interpretation had to go to all those who qualified under the
seniority-cum-merit rule. There was no point in waiting for each and every
person to file a petition. Therefore, we do not see any reason why we should
entertain such a technical plea when the High Court has done substantial
justice to all concerned."
From the analysis of the
judgments cited above, it is beyond doubt and clear that once the point is
decided in favour of a group of persons, there is no further point in waiting
for each and every person to file petition and pray for the same relief. As
held by the Honourable Supreme Court, the benefit of the judgment is equally
applicable to similarly placed persons to do complete and substantial justice.
17. The Law Department as
well as the Finance Department of the respondents/Corporation considered the
similarity of the issue involved and recommended to the respondents to pay the
recovered amount to the petitioners as well. Hence the denial of the said
benefit to the petitioners is unreasonable and violative of Articles 14 and 16
of the Constitution of India. The decisions cited by the learned Additional
Advocate General reported in AIR 1996 SC 2890 (State of Karnataka v. G.Halappa)
and AIR 2002 SC 2427 (State of Karnataka v. G.Halappa) have no application to
the facts of this case because of the submission that Circular No.13 dated
9.7.1997 was wrongly applied by the respondents while stepping up of the pay.
The said contention was raised before the Kerala High Court and before the
Honourable Supreme Court and the same was not accepted. Hence it is not open to
the respondents to raise the said plea in this writ petition as they were
parties to the proceedings before the Kerala High Court."
The said decision is confirmed
in W.A.No.956 of 2006 by the Division Bench by Judgment dated 30.10.2006.
SLP(C)No.677 of 2007 filed against the same was also dismissed by the Supreme
Court on 23.4.2007.
11. Having regard to the
abovesaid facts as well as the undisputed facts regarding the claim of the
petitioner, respondents are not justified in passing the impugned order.
12. Applying the above
referred judgments to the facts of this case, the impugned order is set aside,
with a direction to the respondents to consider the claim of the petitioner
treating the application submitted by the petitioner dated 24.12.2008 as a
continuation of earlier application submitted by her, in the light of the fresh
legal heirship certificate issued by the authorities and pass fresh orders,
within a period of four weeks from the date of receipt of copy of this order,
without reference to the objections raised in the impugned order.
The writ petition is ordered
accordingly. No costs.
1. The Chairman, Tamil Nadu
Electricty Board No.800, Anna Salai, Chennai.
2. The Superintending
Engineer, Thiruvannamalai Electricity Distribution Zone, Tamil Nadu Electricity
Board, Thiruvannamalai.
3. The Executive Engineer,
Thiruvannamalai Electricity Distribution Zone, Tamil Nadu Electricity Board,
Thiruvannamalai
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