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Judgment
R.S. Ramanathan, J.—The petitioner''s father died in harness on 07.02.1989, while he was working as Tahsildar and he had two daughters and 2 sons. His elder son was appointed as office assistant in the office of the Agricultural department on 13.01.1986 and on 24.03.1989, he got married and went away from the family. He is not looking after the family members after the death of his father and therefore, the wife of late government servant, approached the authorities to give employment on compassionate ground and that was rejected by 2nd respondent and the same was taken up to the government and the government confirmed the rejection order passed by the 2nd respondent vide its letter dated 17.08.1992.
Subsequently, the government passed G.O.Ms. 155 Labour and Employment department dated 16.07.1993 and relaxed the condition for appointment of compassionate ground and have stated that even if there is already any earning member in the family of the late government servant, who died in harness and if that person is living separately without extending any help to the family, the case of other eligible dependents can be considered and it will be restricted only to one of the dependents for appointment on compassionate ground. Therefore, on the basis of above said G.O., the petitioner''s mother requested the respondent to consider the case of the present petitioner for appointment on compassionate ground and on being satisfied that the elder son has left the family and he is not supporting the family.
The competent authority recommended the appointment of the petitioner on compassionate ground and the petitioner was appointed as Junior Assistant by the proceedings of the 2nd respondent dated 02.08.1994. The petitioner joined duty on 06.08.1994 and he was working on that basis ever since then without giving any room for any compliant.
It is further stated that necessary proposals for the regularisation of service of the petitioner were also sent to the Commissioner and the Secretary of the Revenue Department, Chennai by the second respondent by his letters dated 15.04.1994 and 16.08.1995. But, the 1st respondent, by his letter dated 20.06.2000 quashed the appointment of the petitioner stating that as per the letter of the Government dated 27.07.1994, such person need not be given appointment on compassionate ground and therefore the appointment given to the petitioner is against the rules and cancelled the appointment of the petitioner. This is challenged in this writ petition.
The respondent filed a detailed counter stating that as per the letter dated 02.08.1994, the petitioner is not eligible for being appointed on compassionate ground and on earlier occasion, his application was rejected and the petitioner was appointed only on temporary service and when regularization was sought for, it was found that his appointment is illegal and therefore it was rightly terminated.
Mr. A. Sivaji, the learned Counsel appearing for the petitioner submitted that in this case, there is no suppression of fact on the part of the petitioner and even prior to the death of the father of the petitioner, the elder son was appointed as office assistant on 13.01.1986 and he got married on 24.03.1989 and thereafter, he deserted the family and started living with his wife. Therefore, the family was left with no financial support, the petitioner''s mother applied for appointment on compassionate ground and finally that was rejected as there was no provision for providing appointment on compassionate ground with one of the family members, who are unemployment and subsequently, G.O.Ms. No. 155 Labour and employment dated 16.07.1993 came into effect and as per that, even one of the sons or daughters are employed, if they are not supporting the family and living separately, the other member can apply for appointment on compassionate ground. Relying on that G.O., the petitioner was appointed and he is discharging his duty for more than 6 years and suddenly without any notice or without calling for any explanation, the 1st respondent passed an order of termination, which is against the principles of natural justice.
The learned Counsel appearing for the petitioner submitted that the facts of the present case is similar to the facts of the case reported in 2009 Writ L.R 593 R. Bharathi v. The Secretary to Government, School Education (M.1) Department, Fort St. George, Chennai 9 and Anr. wherein in, this Court has held that the termination order is illegal.
Mr. A. Sivaji, learned Counsel appearing for the petitioner further submitted that along with the application filed challenging the termination, stay application was also filed and stay was granted and the petitioner is working for the past 10 years and he is aged 43 years and if he is allowed to go out of the employment, it would be difficult for him to maintain his family and he also crossed the age for seeking further employment. He therefore submitted that the order of the respondent terminating the service of the petitioner is liable to be set aside.
On the other hand, Mr. S.C. Herold Singh, the learned Government appearing for the respondent submitted that even as per G.O. Ms. No. 155, the petitioner is not entitled to seek employment on compassionate ground. As already, his elder son was employed and compassionate ground cannot be taken as a mode of appointment and it was introduced only to help the family, which are in financial distress when the government servant died in harness and when the family is having an employed person, the petitioner cannot ask for employment on compassionate ground and therefore the appointment was rightly terminated.
Further, he submitted that admittedly, the government servant died in the year 1989 and the application ought to have been made within 3 years from the date of his death and in this case, the application made on earlier occasion was rejected on 22.07.1992 and confirmed by the government on 17.08.1992. Therefore the petitioner cannot take advantage of the passing of G.O.Ms. 155 and ask for employment and without considering all these aspects, he was appointed temporarily and that mistake was rectified later by the impugned order and hence the order passed by the 1st respondent is in accordance with law and need not be interfered with.
Heard both sides.
In this case, it is admitted that on an earlier occasion, when the petitioner''s mother applied for appointment for the petitioner on compassionate ground, the same was rejected on 22.07.1992 and it was also confirmed on 17.08.1992. The reason for rejecting the earlier request was that the department does not permit any appointment on compassionate ground, when a member of the family is already employed. Only by G.O.Ms. 155 that was relaxed and as per the said G.O., even incase one member is employed and he is living separately without extending any help to the family, the either eligible dependents can be considered. Therefore, on the basis of the above G.O., the application was made and that was rightly considered by the second respondent and the petitioner was appointed. Hence, it cannot be contended that the petitioner''s earlier representation was rejected and hence the petitioner cannot take advantage of G.O.Ms. No. 155 dated 16.07.1993. Whenever a government order confers a benefit on a person, he is entitled to invoke that G.O and seek the benefit and that cannot be prevented by saying that on earlier occasion his request was denied.
Further, the judgment reported 2009 Writ L.R 593 R. Bharathi v. The Secretary to Government, School Education (M.1) Department, Fort St. George, Chennai 9 and Anr. the learned Judge considered all these aspects in detail and held that the termination of the appointment order is improper and set aside the order. In para No. 15 of that judgment, it has been held as follows:
Para 15. In W.P. No. 42656 of 2006 dated 26.03.2009, I have set aside a similar termination order, wherein the petitioner was given appointment on compassionate ground even though two of his brothers were employed in a Private Company. There was no suppression of fact and the respondents herein appointed the petitioner it was held that the termination was bad, by following the Judgments of the Hon''ble Supreme Court. In paragraph Nos. 5 to 7, it is held as follows:
Similar issue was considered by the Supreme Court in the decision reported in 2002 AIR SCW 2684 Union of India and Ors. v. K.P. Tiwari Paragraph 4 and 5 of the Judgment reads as follows:
It is necessary in this case to examine either questions of law or fact arising in the matter. Suffice to say that the respondent has been appointed now and has been in service for more than five years. We do not think, it would be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood.
In that view of the matter, we decline to interfere with the order made by the High Court. The appeals are accordingly dismissed.
Following the said Judgment, in W.P. No. 26858 of 2006, dated 17.07.2008, this Court allowed a similar writ petition wherein also the compassionate appointment was cancelled on the ground that at the time of the death of the petitioner''s mother, the petitioner''s father was in employment. In W.P. No. 35002 of 2006 also a similar issue was considered wherein the petitioner was given compassionate appointment due to the death of his father, even though petitioner''s brother was in employment.
In the decision reported in 2009 (2) Supreme 271 D.M. Premkumari v. The Divisional Commissioner, Mysore Division and Ors. also a similar issue arose with regard to the cancellation of community certificate. The Supreme Court in para 11 to 16 held as follows:
Having given our anxious consideration to the case pleaded by the learned Counsel for the parties, we are of the view, that it would not be desirable to decide this case on merits. If we have to do it, we might have to tell the appellant that she might have to go out of the employment. This, in our opinion, would cause great hardship and injustice to the employment.
The appellant, as we have noticed earlier, was appointed as a Primary school Teacher sometime in the year 1994. At the time of her appointment, she had produced the caste certificate issued by the Tahsildar. She might not have understood the nuances of legal terminologies like Group ''B'' Category, Group ''D'' Category etc., and therefore, now she is caught in the "cobweb''.
The District Caste Verification Committee, which was asked to verify the appellant''s claim, is justified in informing the appointing authorities that, strictly going by the Government''s orders issued in 1986, the appellant could not have claimed any reservation under Group ''B'' category. We cannot find fault with their understanding of the Government Order. However, the learned Single Judge, may be taking a very sympathetic view of the matter, has come to the rescue of a poor primary school teacher. The Division Bench has strictly applied the true interpretation that requires to be placed while constituting Article 15(4) and Article 16(4) of the Constitution. Therefore, we cannot find fault with the orders passed by the Division Bench of the Karnataka High Court also.
This Court, while entertaining the special leave petition, had granted the status-quo order. By virtue of that order, the appellant is continuing to work as a primary school teacher. At this stage, if the appointment of the appellant is struck down and if she is no asked to seek employment elsewhere, in our opinion, it would cause great hardship and injustice, for the reason by now she must have crossed the upper age limit for seeking public employment and she may not get any employment anywhere. It is not the case of the other side also, that if the appellant''s service is continued, it would cause any prejudice to any other applicant.
Further, the learned Judge also considered the same issue in Para No. 17, as to whether even irregular appointment can be cancelled after a lapse of several years and has held as follows:
Even assuming that G.O.Ms. No. 2899 dated 23.12.1988 would be otherwise applicable, such G.O., cannot be given retrospective effect and it is to be made applicable to the adoptions which had taken place prior to that date.
Learned Counsel appearing for the petitioner has submitted with enough justification that whatever might be the irregularity in the original employment, there was no scope for terminating the services of the petitioner in 1995 and that too without issuing any notice. He has further submitted that the High Court on the earlier occasion had quashed the order of termination and the only question was relating to regularization for which a direction was made to the Government for considering the representation and it was not open to the respondents to go behind the earlier order.
Even assuming that there was some irregularity in the earlier appointment made in the yea 1991, the petitioner had continued for about 4 years and thereafter there was no justification to suddenly terminate the services even without issuing notice.
As observed in AIR 1977 SC 112 Nayagar Co-operative Central Bank v. Narayan it has to be held that even if a person is appointed to the post erroneously and was allowed to continue on the said post for a long time, he could not be removed from the said post in the garb of rectification of mistake as the doctrine of acquiescence is applicable.
For the aforesaid reasons, the writ petition is allowed and the impugned order is quashed and the petitioner''s appointment should be deemed to be regular and continuous for all purpose. However, it is made clear that no amount would be paid to the petitioner for the past period as backwages and future wages have to be paid from the date of rejoining. The petitioner should be allowed to rejoin within a period of one month from the date of the communication of the order. There will be no order as to costs.
Finally, the learned Judge held that doctrine of acquiescence is also applicable to the facts of the present case and by the termination orders, the respondents deprived the rights guaranteed under Article 21 of Constitution of India and set aside the order.
Following the same, the order passed by the 1st respondent is also liable to be set aside and accordingly it is set aside and the petition is allowed and the termination order is also set aside. The petitioner is entitled to all the benefits like regularization etc. The respondents are directed to consider the same as per the rules. In the impugned order, the 1st respondent has set aside the order on the ground that as per the letter dated 27.7.94 the appointment cannot be regularised and he has to be terminated. The approach of the 1st respondent is also not correct as the letter of the government cannot supersede and having regard to the specific provision in the G.O., the said letter should not have been considered for terminating the service of the petitioner. No costs.