(Prayer: Writ Appeal filed under Clause 15 of Letters Patent against the order of the learned Single Judge made in W.P.(MD)No.13980 of 2009 dated 13.09.2010.)

N. Paul Vasanthakumar, J.

1. This writ appeal is filed against the order of learned Single Judge dated 13.09.2010, dismissing the writ petition in W.P.(MD)No.13980 of 2009, wherein the appellant herein prayed for issuance of a Writ of Certiorarified Mandamus to call for the order passed by the third respondent, rejecting the request for providing compassionate appointment, and to quash the same and also for a direction to provide suitable employment opportunity to him.

2. The appellant herein is the son of Late Palaniyandi. According to the appellant, his father was working as Reading Inspector in Tamil Nadu Electricity Board under the jurisdiction of the third respondent at Vaiyampatti. He died on 11.07.1998, while he was in service. When his father died, he was a minor and his mother did not have any other source of income to maintain the family. His mother submitted an application to the respondents on 09.08.2001, requesting them to provide any appointment on compassionate ground. Since there was no response, she sent another representation on 27.05.2003. The third respondent, by proceedings dated 10.11.2003, rejected her request for compassionate appointment on the ground that she has not applied within three years from the date of death of her husband. Again, she submitted a representation on 03.08.2005, seeking to provide any suitable employment. The third respondent, by proceedings dated 18.08.2005, rejected her request on the ground that she has not completed eighth standard and that the appellant herein has not attained majority at that time. The said order was challenged in the writ petition.

3. The learned Single Judge, by order dated 13.09.2010 dismissed the writ petition. Hence, this writ appeal.

4. The learned counsel for the appellant submitted that the widow applied for appointment on compassionate ground and since she did not complete eighth standard, she was not appointed and the request for appointment was perused by the appellant herein, who had not attained majority at that time and subsequently applied within three years of his attaining majority and therefore, the request is to be considered for providing compassionate appointment.

5. The learned counsel for the respondents contended that appointment on compassionate ground cannot be given dehors the circulars and orders of TNEB. Further, providing appointment to a person on compassionate ground after his attaining majority will amount to keeping a post reserved for him till he attains majority. In this respect, the learned counsel relied on a Division Bench decision of this Court in E.RAMASAMY V. TAMIL NADU ELECTRICITY BOARD AND ORTHERS [2007 WLR 796] .

6. The learned counsel for the appellant contended that since there are contrary decisions of the Honble Apex Court, RAMASAMYs case (supra) is no longer good law. The learned counsel also cited J.JEBA MARY V. THE CHAIRMAN, TAMIL NADU ELECTRICITY BOARD [2011 (3) LLN 405 (Mad)], where under in similar circumstances, one of us (NPVJ), relying on the decisions of the Honble Apex Court directed TNEB to appoint the son of a deceased employee on compassionate ground.

7. We have carefully considered the rival submissions of either counsel and perused the materials available on record and the impugned order of the learned Single Judge.

8. In T.MEER ISMAIL ALI V. The TAMIL NADU ELECTRICITY BOARD, CHENNAI, (2004 (3) CTC 120 [LQ/MadHC/2004/635] ) this Court held as under:-

"I am, therefore, of the view that the petitioners case deserve consideration inasmuch as he had diligently made a claim once in the year 1997 and thereafter, immediately after attaining the age of 18, in the year 2000 and in such circumstances, rejection of his application on the ground that it was not made within three years was not justified."

9. The decision of this Court in MEER ISMAIL ALI (cited supra) was upheld by a Division Bench of this Court in W.A.No.48 of 2004 dated 01.12.2004. Subsequently, the SLP filed against it was also dismissed by the Honble Apex Court vide its judgment in C.A.No.6387 of 2004, dated 04.04.2005.

10. (a) Another Division Bench of this Court in SELVI R.ANBARASI VS. CHIEF ENGINEER (PERSONNEL), T.N.E.B., CHENNAI [2006 (2) M.L.J., 200] held as follows:-

"The learned counsel for the petitioner submitted that a similar issue, rejecting the compassionate ground appointment on the ground that the application was submitted beyond three years and the same was rejected earlier on the ground that the petitioner therein has not completed 18 years of age, was considered by this Court in W.P.No.1584 of 2011 and this Court held that the applications having been made within a period of three yeas and the same having not been considered on the ground that the petitioner therein was not 18 years of age at that time, the subsequent application cannot be rejected on the ground that the application was submitted within three years. The learned Judge directed the respondents not to treat the second application as an application for compassionate appointment, but it is to be treated as continuation of the application originally submitted. The said judgment is reported in T.Meer Ismail Ali Vs. Tamil Nadu Electricity Board through its Chairman, and others, (2004) 3 C.T.C. 120. This Court, ultimately, directed the respondents to give compassionate appointment to the petitioner therein."

(b) 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 Honble 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 [LQ/SC/2000/900] (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.

(c) 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.

(d) Three writ petitions were disposed of by one of us (NPVJ) 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.

(e) In W.P.No.18575 of 2006 one of us (NPVJ) 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.

(f) Again similar matter was considered by one of us (NPVJ) 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.”

11. In E.RAMASAMYs case (supra), as argued by the learned counsel for the respondents, the Division Bench negatived the request of the writ petitioner, who was a minor when his father died in harness and who subsequently, applied for appointment on compassionate ground, however, within 3 years of his attaining majority. It is pertinent to note that this decision has been overturned by the Honble Apex Court. This has been noted in MOHANAMBAL V. DIRECTOR, LAND AND SURVEY DEPARTMENT [2011 (2) MLJ 47 [LQ/MadHC/2010/6729] ] [Also see SYED KHADIM HUSSAIN V. STATE OF BIHAR [2006 (9) SCC 195].

12. By relying upon various decisions of Division Bench and the Honble Supreme Court, the very same issue has been dealt with elaborately by one of us (N.Paul Vasanthakumar, J.) in the following cases :

1. MOHANAMBAL V. DIRECTOR, LAND AND SURVEY DEPARTMENT [2011 (2) MLJ 47 [LQ/MadHC/2010/6729] ]

2. J.JEBA MARY V. THE CHAIRMAN, TAMIL NADU ELECTRICITY BOARD [2011 (3) LLN 405]

3. G.SARAVANAKUMAR VS. THE CHAIRMAN TAMIL NADU ELECTRICITY BOARD, CHENNAI [2011 (2) CWC 83]

4. R.PRASATH V. THE SECRETARY, LABOUR AND EMPLOYMENT DEPT., CHENNAI (W.P.No.3078 of 2006, dated 17.06.2010)

5. M.UMA V. THE CHIEF ENGINEER (PERSONNEL) CHENNAI (W.P.(MD).No.4050 of 2006, dated 29.06.2010)

After analyzing the above said case laws, it was held that within 3 years of death of her husband, when the widow applied for appointment on compassionate ground, and due to bar of age etc., when she could not be appointed and the request for appointment has been followed by her son/daughter, who have then not attained majority and subsequently, applied within three years of their attaining majority, the request could be considered as continuation of their mothers application and the application given by him/her during the minority also could be considered as continuation of such earlier application and it cannot be denied on the ground that the application has been presented beyond 3 years of death of the father. It is not the case of the respondents that the family of the appellant is not in indigent status as on today.

13. For the foregoing reasons, the order of the learned Single Judge made in W.P.(MD)No.13980 of 2009 dated 13.09.2010 is liable to set aside.

14. Accordingly, this writ appeal is allowed and the order of learned Single Judge dated 13.09.2010 made in W.P.(MD)No.13980 of 2009 is set aside. The appellant herein is directed to produce a Certificate from the competent authority to the effect that his family is in indigent circumstances as on today, within four weeks and submit the same before the third respondent herein along with a copy of this Judgment. On receipt of the same, based on the representation of the appellant dated 22.12.2009, the respondents shall appoint him in any suitable post within two weeks therefrom. No costs.