Allowed

G.S.Komala, 4/918 Perumal Koil v. the Director of School

Madras HC21 Jul 2015WP/29639/2010

Case brief

AI extract

What is this about?

Writ petition challenging rejection of compassionate appointment claim by a married daughter. Court quashed orders denying appointment based on marriage and statutory cut-off dates, directing appointment within eight weeks.

What did the court decide?

Impugned orders quashed and directions issued to respondents to provide compassionate appointment to the petitioner within eight weeks from the date of receipt of the copy of the order.

G.S.Komala, 4/918 Perumal Koil Vs the… — Pension and Retirement Benefits | Madras HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 21.07.2015

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CORAM :

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THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN

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Writ Petition No.29639 of 2010 and M.P.No.1 of 2010

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G.S.Komala .. Petitioner

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vs. 1. The Director of School Education, Chennai - 600 006. 2. The District Elementary Educational Officer, Tiruvallur. 3. The Assistant Elementary Educational Officer, Pallipattu, Tiruvallur District. 4. The Secretary to Government, School Education Department, Secretariat, Chennai – 600 009. ...Respondents Prayer : Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus, calling for the records of the order passed by the second respondent herein vide his Pro.Ni.Mu.No.665/A1/98, dated 06.08.1999 rejecting the claim on compassionate appointment and also order passed by the first respondent relating to O.Mu.No.169/J4/2010, dated 26.02.2010, and quash the same and to issue consequential directions to the respondents herein to give appointment to the petitioner on compassionate grounds, consequent on the death of her father, Thiru.G.Ponnambalam on 17.01.1991, while in service, as Secondary Grade Teacher. **

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** Prayer is amended as per order dated 21.07.2015 in MP No.1/2015 in WP No.29639/2010

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For Petitioner : Mr.A.R.Suresh For Respondent : Mr.S.Gunasekaran, Govt. Advocate

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https://hcservices.ecourts.gov.in/hcservices/

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O R D E R

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The father of the petitioner was working as Secondary Grade Teacher, Panchayat Union Elementary School, Podhatturpettai, Pallipattu, Tiruvallur District. He died on 17.01.1991, while in service, leaving behind him, the petitioner, her elder sister, her mother and a son and a daughter born through the first wife of her deceased father as his legal heirs. The first wife of her father died on 13.08.1976. Thereafter, her father married the mother of the petitioner. The petitioner was aged 10 years, when her father died.

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The son born through the first wife of the deceased Government servant and other sisters of the petitioner gave no objection in her favour for seeking employment under compassionate grounds. The petitioner submitted an application for compassionate appointment on 15.12.1997, on reaching 18 years.

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The said application was rejected by the District Educational Officer, Tiruvallur, vide order dated 06.08.1999, on the ground, inter alia, that the petitioner could not seek compassionate appointment, when she ranked as fifth legal heir to the deceased Government servant, though the other legal heirs gave no objection to provide compassionate appointment to the petitioner and though a certificate from the Tahsildar was furnished that none of the legal heirs were in Government employment or in any private organization.

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The petitioner filed an appeal before the first respondent against the said order with a consequential direction to provide her compassionate appointment. When the same was pending before the first respondent, ban on recruitment, including compassionate appointment, was imposed by the Government in G.O.Ms.No.212, Personnel and Administrative Reforms Department, dated 29.11.2001. The ban was lifted in G.O.Ms.No.16, Personnel and Administrative Reforms Department, dated 21.02.2006.

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According to the petitioner, the Government passed various Government Orders extending the scope and ambit of the welfare scheme of compassionate appointment and expanded its scope even to married daughters. Hence, she made a representation to the first respondent again. Since the same yielded no response, she preferred a representation to the

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https://hcservices.ecourts.gov.in/hcservices/

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Hon'ble Chief Minister Cell and the same was forwarded to the first respondent.

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The first respondent passed the impugned order dated 26.02.2010 rejecting her claim on the ground that the petitioner is a married daughter of the deceased Government servant and hence, she is not entitled to seek compassionate appointment. Challenging the said orders, dated 06.08.19999 and 26.02.2010, referred to above, the petitioner is before this Cort.

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Heard both sides.

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The learned counsel for the petitioner submitted that before 1995, there was no limitation fixed to seek compassionate appointment based on the death of the Government servant. In 1995, Government issued G.O.Ms.NO.120, Labour and Employment Department, dated 26.06.1995, prescribing limitation of three years to make application for compassionate appointment, from the date of death of the Government servant and if the date of the death was prior to the issuance of the G.O.Ms.No.120, dated 26.06.1995 prescribing limitation, application shall be made within three years from the date of the Government Order. Hence, the application of the petitioner is within time. According to him, thus the authorities did not raise any limitation ground.

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The learned counsel for the petitioner submitted that the order dated 06.08.1999 of the second respondent refusing to provide compassionate appointment on the sole ground that the petitioner ranked as the fifth legal heir and hence, she could not claim compassionate appointment, even though other legal heirs gave no objection certificate, is arbitrary, illegal and devoid of any substance.

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It is submitted that since there was ban on recruitment including ban providing compassionate appointment, the claim of the petitioner was considered by the first respondent in 2010 and the impugned order dated 26.02.2010 was passed denying compassionate appointment on the ground of marriage.

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While the learned counsel for the petitioner submits that the marriage cannot be cited as a reason to deny compassionate appointment to the daughter of the deceased Government servant, learned Government Advocate sought to sustain the impugned order.

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I have considered the submissions made on either side.

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https://hcservices.ecourts.gov.in/hcservices/

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The petitioner was denied compassionate appointment by the impugned order dated 26.02.2012 solely on the ground that she is married. According to the respondents, since the petitioner is a married daughter, she is not entitled to compassionate appointment.

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At this juncture, it is useful to trace the history relating to compassionate appointment and various Government Orders governing the field including G.O.Ms.No.96, Labour and Employment (Q1) Department, dated 18.06.2012, since I have traced the same in my order dated 09.07.2.015 in W.P.No.20437 of 2015 [A.Vimala V. The Secretary to Government, Labour and Employment Department], wherein, I have quashed the G.O.Ms.No.96, dated 18.06.2012, the latest one insofar as fixing the cut off date for providing compassionate appointment to the married daughter as 29.11.2001. It is useful to extract the following paragraphs in the said order dated 09.07.2015 which read as follow :

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“9. I have considered the entire issue including the validity of G.O.Ms.No.165, Labour and Employment Department, dated 30.08.2010 in detail in my order dated 13.04.2015 in W.P.No.10565 of 2015 (R.GOVINDAMMAL VS. THE PRINCIPAL SECRETARY, SOCIAL WELFARE AND NUTRITIOUS MEAL PROGRAMME DEPARTMENT, SECRETARIAT AND OTHERS) and held that G.O.Ms.No.165, Labour and Employment Department, dated 30.08.2010 declining to provide compassionate appointment to married daughter, if she got married before making application for compassionate appointment after the death of her father/mother, who was a Government servant, is violative of the provisions of the Constitution. In that order, I have also considered the judgments of this Court reported in G.GIRIJA VS. THE ASSISTANT DIRECTOR (PANCHAYATS), KANCHEEPURAM DISTRICT [2008 (5) CTC 686] and KRISHNAVENI VS. SUPERINTENDING ENGINEER, KADAMPARAI ELECTRICITY GENERATION BLOCK, COIMBATORE DISTRICT [2013 (8) MLJ 684], which are referred to by the learned counsel for the petitioner.

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In Govindammal's case (cited supra), I traced the scheme of compassionate appointment in government service with regard to the married daughters. In the original scheme providing compassionate appointment in G.O.Ms.No.560 Labour and

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https://hcservices.ecourts.gov.in/hcservices/

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Employment Department, dated 03.08.1977, there is a total deprivation for married daughters to seek compassionate appointment. While married sons are eligible to make compassionate appointment, married daughters are ineligible to make application for compassionate appointment.

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Later, the Government made certain improvements to G.O.Ms.No.560 by issuing G.O.Ms.No.155 Labour and Employment Department, dated 16.07.1993 after 16 years of the issuance of the first Government Order viz., G.O.Ms.No.560.

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G.O.Ms.No.155, Labour and Employment Department, dated 16.07.1993 provided compassionate appointment to married daughters of government servant, if the daughter was abandoned by her husband or a divorcee or a widow i.e., G.O.Ms.No.155 included certain categories of married daughters to claim compassionate appointment. However, discriminatory treatment was not removed in total, that is, while marriage is not a pre-condition prescribed in the matter of providing compassionate appointment to sons of a deceased government servant, the same was placed as a condition in the case of daughters.

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Thereafter, G.O.Ms.No.165, Labour and Employment Department, dated 30.08.2010 was issued making further improvements in the Scheme. As per G.O.Ms.No.165, the married daughter could also claim compassionate appointment, if she was unmarried at the time of making application. In the said Government Order, it is stated that taking into account the decisions of this Court, such relaxation was granted in providing compassionate appointment to the married daughters, who got married subsequent to the death of the Government Servant and more particularly after making application for compassionate appointment, i.e, G.O.Ms.No.165 also did not render full justice to women. Still, discriminatory treatment was meted out to women. While no such condition is prescribed in the case of a son, that the son shall be unmarried at the time of making application after the death of the deceased government servant, a condition is prescribed in the

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https://hcservices.ecourts.gov.in/hcservices/

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case of daughter that she shall be unmarried at the time of making application for compassionate appointment.

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Now a further improvement is made in the scheme providing compassionate appointment by issuing G.O.Ms.No.96, Labour and Employment Department, dated 18.06.2012. It is useful to extract the entire Government Order, namely, G.O.Ms.No.96:-"

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"1/ murhiz (epiy) vz;/212. gzpahsh; kw;Wk; eph;thfr; rPh;jpUj;jj; Jiw. ehs;/29/11/2001/

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2/muR fojk; vz;/67770//g;gp//2001-1. gzpahsh; kw;Wk; eph;thfr; rPh;jpUj;jj; Jiw. ehs;/19/12/2001/ 3/murhiz (epiy) vz;/16 gzpahsh; kw;Wk; eph;thfr; rPh;jpUj;jj; Jiw. ehs;/21/02/2006/

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4/murhiz (epiy) vz;/165 bjhHpyhsh; kw;Wk; ntiytha;g;g [j; ; Jiw. ehs;/30/08/2010/ Miz:

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nkny ehd;fpy; gof;fg;gl;l murhizapy;. gzpapil kuzkile;j muR CHpahpd; beU';fpa cwtpdh;fs; (near relatives) vd;W Fwpg;gplg;gl;Ls;s egh;fSs; jpUkzkhfhj kfs; vd;w epiyapy;. gzpepakdk; nfhhp tpz;zg;gk; mspj;J. gzp epakdk; tH';fg;gLtjw;F Kd;ng jpUkzk; bra;J bfhz;lth;fs;. fUiz mog;gilapyhd gzp epakdj;jpw;F ,ju jFjpfis epiwt[ bra;a[k;

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gl;rj;jpy; mth;fSf;Fk; gzp epakdk; tH';fpl fPH;fz;l epge;jidfSf;Fl;gl;L Mizfs; btspaplg;gl;Ls;sd/

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jpUkzkhfhj epiyapy; cs;s bgz;fSf;F. mf;FLk;gj;jpy; cs;s gpw thhpRjhuh;fs; mspj;j "kWg;gpd;ikr; rhd;wpjH;" jpUkzkhd gpd;. mg;bgz;Qqf;F gzp mspf;fg;gLk;nghJ kPz;Lk; kw;w thhpRjhuh;fshy; "kWg;gpd;ikr; rhd;wpjH"; tH';fg;gl ntz;Lk;/

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jpUkzk; bra;J bfhz;l gpd;dh; gzp tha;g;g[ bgWk; jdpah;. jdJ bgw;nwhhpd; FLk;gj;jpw;F cjtpg[hpa[k; tifapy; cWjp Mtzk; tH';fg;gl ntz;Lk;/

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3)fUiz mog;gilapy; gzptha;g;g[ nfhhpa[s;s jpUkzkhfhj bgz;izj; jpUkzk; bra;J bfhs;stpUf;Fk; egh;. vjph; fhyj;jpy; mtuhy; mtuJ bgw;nwhUf;Fr; bra;a[k; cjtpf;F

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https://hcservices.ecourts.gov.in/hcservices/

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kWg;g[ VJk; Vw;gLj;j khl;nld; vd;W cWjpbkhHia mspf;f ntz;Lk;/ nkw;go murhiz. mJ btspaplg;gl;l ehspypUe;J eilKiwg;gLj;jg;gl;lJ/ 2/ nkny xd;wpy; gof;fg;gl;l murhiz K:yk; neuo gzpepakd jilahiz gpwg;gpj;j ehshd. mjhtJ 29/11/2001-f;F Kd;dh; fUiz mog;gilapyhd gzp epakdk; nfhhp tpz;zg;gk; mspj;J. 29/11/2001-f;F gpd;dh; jpUkzk; bra;Jbfhz;l bgz; thhpRjhuh;fSf;F mth;fs; ,ju jFjpfis epiwt[ bra;a[k; gl;rj;jpy;. fUiz mog;gilapy; gzp epakdk; tH';fyhkh vd;gJ Fwpj;J bjspt[iufs; tH';FkhW tzpfthp Mizah; murplk; nfhhpapUe;jhh;/ 3/ ,e;neh;tpid ftdkhf Ma;t[ bra;j muR 29/11/2001-f;F Kd;dh; fUiz mog;gilapyhd gzp epakdk; nfhhp tpz;zg;gk; mspj;J 29/11/2001-f;F gpd;dh; jpUkzk; bra;Jbfhz;l bgz; thhpRjhuh;fSf;F mth;fs; ,ju jFjpfis epiwt[ bra;a[k; gl;rj;jpy;. fUiz mog;gilapy; gzp epakdk; tH';fyhk; vd;W Kot[ bra;Js;sJ/ 4.mjd;go. 29/11/2001-f;F gpd;dh; jpUkzk; bra;Jbfhz;l bgz; thhpRjhuh;fSf;F mth;fs; ,ju jFjpfis epiwt[ bra;a[k; gl;rj;jpy;. fUiz mog;gilapy; gzp epakdk; tH';fyhk; vd;W muR MizapLfpwJ/ vdpDk;. 29/11/2001-w;F Kd;dh; jpUkzk; bra;Jf; bfhz;l bgz; thhpRjhuh;fSf;F ,t;turhiz bghUe;jhJ vd;Wk; muR MizapLfpwJ/"

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In my considered view, this Government order also does not put an end to the discriminatory treatment meted out to the daughters in the matter of providing compassionate appointment. Even as per this Government Order, marriage is a bar for a daughter, if she got married prior to 29.11.2001. The daughters, who got married after 29.11.2001 are alone entitled to seek compassionate appointment based on the death of her father/mother, who was a government servant. There is no explicit reason given as to why the cut-off date was fixed as 29.11.2001.

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https://hcservices.ecourts.gov.in/hcservices/

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The reference column of G.O.Ms.No.96 refers to G.O.Ms.No.212 P & AR Department, dated 29.11.2001. That Government Order, namely G.O.212, is relating to imposition of ban on recruitment in Government service. Hence, I fail to understand as to how the date viz., 29.11.2001 has any nexus to the object of the scheme providing compassionate appointment to the married daughters. Hence, I have no hesitation to declare that the cut-off date fixed in G.O.Ms.No.96 as 29.11.2001 is arbitrary, illegal and unconstitutional. By such declaration and by quashing paragraphs 3 and 4 of the aforesaid G.O.Ms.No.96 in so far as fixing 29.11.2001 as the cut-off date, the discrimination meted out to married daughters will be totallly wiped out. Accordingly, paragraphs 3 and 4 of G.O.Ms.No.96 Labour and Employment Department, dated 18.06.2012 fixing cut-off date as 29.11.2001 are quashed.

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In fact, the third respondent passed the impugned order without any application of mind and also in violation of G.O.Ms.No.96 dated 18.06.2012. The daughters, who got married after 29.11.2001, are entitled to seek compassionate appointment as per G.O.Ms.No.96. In the impugned order, the third respondent has mentioned the date of marriage of the petitioner as 01.05.2002. If that be so, the petitioner is entitled to compassionate appointment even as per G.O.Ms.No.96. In fact the date of marriage is erroneously mentioned in the impugned order as 01.05.2002, whereas, the date of marriage is 19.02.1999. Since the marriage of the petitioner took place on 19.02.1999, which is prior to the cut-off date of 29.11.2001 as fixed in the G.O.Ms.No.96, the impugned order declined to provide compassionate appointment, based on G.O.Ms.No.96.

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Since I have quashed the fixation of 29.11.2001 as cut-off date for married daughters to claim compassionate appointment , the impugned order, dated 20.03.2013 is also set aside and a direction is issued to the third respondent to provide compassionate appointment to the petitioner, within a period of eight weeks from the the date of receipt of a copy of this order.”

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https://hcservices.ecourts.gov.in/hcservices/

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From the above said judgment, it is clear that this Court held in categorical terms that the Government cannot deny compassionate appointment to the daughter of the deceased Government servant on the ground of marriage and the Order of the first respondent dated 26.02.2010 denying compassionate appointment to the petitioner on the ground of marriage is bad and illegal.

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As rightly contended by the learned counsel for the petitioner, the impugned order dated 06.08.1999 is, on the face of it, illegal and arbitrary. When the other legal heirs were not employed in Government / private and also when those legal heirs gave no objection letters to provide compassionate appointment to the petitioner, the second respondent is not correct in declining to give compassionate appointment in the impugned order dated 06.08.1999. Hence, I have no hesitation to quash the order dated 06.08.1999.

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For all the foregoing reasons, the impugned orders are quashed and a direction is issued to the respondents to provide compassionate appointment to the petitioner within a period of eight weeks from the date of receipt of a copy of this order.

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The writ petition stands allowed to the extent indicated above. No costs. Consequently connected miscellaneous petition is closed.

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Sd/Assistant Registrar(CS-III) True Copy Sub Assistant Registrar To 1. The Secretary to Government, School Education Department, Secretariat, Fort St. George, Chennai – 600 009.

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