S. Karthikeyan vs Tamil Nadu Electricity Board and Others

P.R. Shivakumar, J.—This writ petition has been filed impugning the order of the third respondent made in proceedings No.

173/Nir.2/Udavi/4/Ko.vave/05 dated 18.3.2005 rejecting the application of the petitioner seeking appointment on compassionate grounds. The

petitioner is the son of one Sarangapani, who worked as Wireman in Tamil Nadu Electricity Board (in short TNEB) and retired on the ground of

medical invalidation on 12.1.1999. The petitioner''s application for compassionate appointment was rejected on the ground that he did not apply

for compassionate appointment within the period of three years from the date of his father''s retirement on medical invalidation. It is the contention

of the petitioner made in the writ petition that he had applied as early as on 21.3.2001 seeking compassionate appointment, which was very much

within three years from the date of retirement of his father on medical invalidation, but the impugned order came to be passed erroneously on the

assumption that he applied for appointment on compassionate grounds after a lapse of three years.

In the counter affidavit filed on behalf of the respondents, it has been stated that though the benefit of appointment on compassionate grounds

was extended to the dependents of the employees retiring on medical invalidation by Board proceedings B.P. Ms.(FB) No. 51 dated 31.5.1984, a

condition was imposed to the effect that the benefits were available to the dependents of the employees of the Board, who retired from service on

medical invalidation before attaining the age of 50 years; that the other conditions regarding appointment on compassionate grounds applicable to

the dependents of the employees dying in harness were also made applicable in case of dependents of the employees retiring on medical

invalidation; that as per Board proceedings B.P. Ms.(FB) No. 46 dated 13.10.1995, the time limit of three years had been fixed for the submission

of the application for appointment on compassionate grounds; that since the petitioner failed to apply seeking appointment on compassionate

grounds within three years from the date of retirement of his father on medical invalidation, his application was rightly rejected and that hence the

writ petition should be dismissed.

Learned counsel for the petitioner argued that the petitioner had submitted a representation in writing on 21.3.2001 itself seeking appointment

on compassionate grounds and hence the rejection of the request of the petitioner for appointment on compassionate grounds on the ground of

belatedness was improper, as the impugned order came to be passed in ignorance of the representation submitted by the petitioner on 21.3.2001,

which was well within the period of three years from the date of retirement of his father on medical invalidation. In support of his contention, a copy

of a letter dated 21.3.2001 addressed to the Hon''ble Chief Minister of Tamil Nadu and a copy of the acknowledgment showing the receipt of the

same in the office of the Chief Minister have been produced. Learned counsel for the petitioner also pointed out a note appended in page 2 of the

said representation to the effect that copies were marked to the District Collector, Cuddalore and Superintending Engineer, TNEB, Cuddalore. It

is true that there is such a notice found in the copy of the said representation was sent to the Hon''ble Chief Minister and the acknowledgment card

also evidences proof of receipt of the same in the office of the Chief Minister. But there is nothing to show that a copy was sent to the

Superintending Engineer, TNEB. No acknowledgment card in proof of service of a copy of the said representation on the Superintending

Engineer, TNEB, Cuddalore has been produced. Therefore, we have to accept the contention of the learned standing counsel for the Tamil Nadu

Electricity Board that no such representation was received from the petitioner; that the petitioner submitted the proper application seeking

appointment on compassionate grounds only on 31.1.2005 and that hence the rejection of the application on the ground that the same was not

submitted within three years was proper.

A perusal of the documents produced by the petitioner will show that the petitioner chose to send a representation to the Hon''ble Chief Minister

on 21.3.2001 seeking financial aid and also incidentally seeking appointment on compassionate grounds to any one of the members of his family. It

is obvious from the contents of the said representation sent to the Hon''ble Chief Minister that the petitioner did not ask for appointment on

compassionate grounds as per the Board proceedings and the scheme applicable to the TNEB employees regarding appointment on

compassionate grounds. On the other hand, he had chosen to ask for the exercise of the powers of the Chief Minister as such for providing out of

turn employment to any one of the members of his family. The same was done by the petitioner because, he was aware of the fact that as per the

then prevailing scheme, only the dependents of employees of the Board retiring on medical invalidation before attaining the age of 50 years were

entitled to seek appointment on compassionate grounds. This has been specifically referred to by the petitioner himself in the above mentioned

representation dated 21.3.2001 submitted to the Hon''ble Chief Minister. The said particulars found in the above said representation will show that

the petitioner was very much aware of the then existing rule that the Board employee should not have attained the age of 50 years at the time of his

retirement on medical invalidation for giving appointment to one of his dependents on compassionate grounds. The same was the reason why the

petitioner did not submit the application to the competent authority seeking appointment on compassionate grounds before 31.1.2005.

The learned standing counsel for the Tamil Nadu Electricity Board drew the attention of the Court to Board proceedings B.P. Ms.(F.B.) No. 46

(Administrative Branch) dated 13.10.1995 and contended that time limit of three years has been prescribed for submission of the application for

appointment on compassionate grounds and that since the petitioner''s application was beyond the period of three years from the date of retirement

of his father on medical invalidation, the rejection of his application was proper. It is an admitted fact that originally the scheme of compassionate

appointment was made applicable for appointing dependents of Board employees dying in harness by B.P. Ms.(CH.) No. 411 dated 22.7.1983.

The said benefit conferred on the dependents of the employees dying harness, was extended to the dependents of the employees retiring on

medical invalidation, subject to a condition that such retirement should be before attaining the age of 50 years as per Board proceedings B.P. Ms.

(F.B.) No. 51 dated 31.5.1984. Thereafter to check applications being made belatedly seeking compassionate appointments, Board proceedings

B.P. Ms.(F.B.) No. 46 (Administrative Branch) dated 13.10.1995 came to be issued. Though it was issued in respect of compassionate

appointments to the dependents of the employees dying in harness, by the fact that the said scheme was made applicable to the dependents of the

employees retiring on medical invalidation only with an additional condition that such retirement should be before attaining the age of 50 years, the

condition prescribing the period within which the application seeking compassionate appointment is to be made as found in B.P. No. 46 is also

applicable to the dependents of employees retiring on medical invalidation. A period of three years has been fixed as per the above said BP for

submission of the application seeking compassionate appointment. In case of the dependents of employees retiring on medical invalidation, the

application seeking appointment on compassionate ground should be made within three years from the date of such retirement.

Of course the application of the petitioner seeking compassionate appointment was rejected on the ground that the same was not submitted

within three years from the date of retirement of his father on medical invalidation. Besides contending that such a reason for the rejection of the

application was in accordance with the rules, the learned standing counsel for the Tamil Nadu Electricity Board representing the respondents,

would also contend that such a rejection can be justified on the ground that neither the petitioner nor any other dependent of the petitioner''s father,

was eligible to seek appointment on compassionate grounds, since the father of the petitioner retired on medical invalidation after he had attained

the age of 50 years. In support of his contention, the learned standing counsel for the TNEB drew the attention of the Court to the Board

proceedings in B.P. Ms.(FB) No. 51 (Administrative Branch) dated 31.5.1984. A copy of the said Board proceedings has also been produced

for the perusal of the Court. The contents of the said Board proceedings are extracted here under:

Proceedings:

Dependants of employees of the Board who die in harness are eligible for employment assistance under the Board. This is subject to various

conditions including that the family is in indigent circumstances and that the applicant is fully qualified for the post in question. It has been

represented that this concession may be extended also to dependants of those employees of the Board who retire on invalidation on medical

grounds. This has not been agreed so far. This is particularly because of the possibility that some employees may get themselves retired on medical

invalidation with a view to take up other types of employment since openings for such employment are widely available for persons experienced in

the work of the Electricity Board and such persons may also get the undeserved benefit of having their dependants employed in the Board.

On further representations, the matter has now been re-examined. It is felt that while extreme care and caution have to be exercised to guard

against any possible abuse of this concession, genuine cases where the employees has been left with no alternative but to seek voluntary retirement

on major grounds of incapacity deserve to be viewed with sympathy. Accordingly, it has been decided that while there is no need to frame a

general scheme as in the case of employment of dependants of deceased employees, cases of dependants of employees retired on medical

grounds may be considered on merits and provision of employment to the dependants considered in exceptional cases.

The procedure for submission and scrutiny of applications from dependants of deceased employees prescribed in B.P. Ms.(CH) No. 411

Administrative Branch dated 22.7.1983 will apply to the above cases also subject to the modification that the enquiry shall be conducted

personally to an officer not below the rank of a Divisional Engineer. He should particularly take care to visit the invalidated employee and make

sure that it is a genuine case where he has been totally disabled so as to deprive him of his earning capacity.

The other conditions as in the scheme for provision of employment to dependents of ceased employees will apply to this case also especially

that the family is in indigent circumstances, the applicant possesses the qualification for the post in question etc. This concession is subject to the

further condition that the employee should have retired from service on medical grounds before attaining the age of fifty years.

Orders will be passed by the Full Board on each case.

Relying on Clause 4 of the said Board proceedings, the learned standing counsel for the TNEB representing the respondents contended that as

per the then prevailing scheme, the petitioner was not eligible to seek appointment on compassionate grounds since his father retired on medical

invalidation after he had attained the age of 50 years. A reading of the above said Board proceedings will also show that such a condition was

imposed in order to prevent the employees of the Board from opting for retirement on medical invalidation at the verge of retirement and seek

appointment to one of his dependents on compassionate grounds and thereafter take up a job outside the Electricity Board with the help of his vast

experience gained while serving in the Tamil Nadu Electricity Board. Only in order to achieve the above said objective, the age limit came to be

fixed.

The petitioner does not dispute the fact that his father had completed the age of 50 years on 12.1.1999, when he was retired on the ground on

medical invalidation. In fact, in the application seeking compassionate appointment itself, the petitioner furnished the date of birth of his father as

3.6.1947. Therefore, it is crystal clear that on 12.1.1999, when Sarangapani, the father of the petitioner was retired on medical invalidation, he had

completed the age of 51 years. As per the then prevailing rule, his dependents were not entitled to seek appointment on compassionate grounds.

However, learned counsel for the petitioner drew the attention of the Court to Board proceedings B.P.(FB) No. 25 (Administrative Branch)

dated 9.10.2001, whereby the age criterion in respect of the employees of the Board retiring on medical invalidation was raised from 50 years to

53 years for the purpose of providing employment assistance to the dependents of such employees on compassionate grounds. A copy of the said

Board proceedings has also been produced for the perusal of the Court. The contents of the said Board proceedings are extracted here under:

Proceedings:

In B.P. Ms.(F.B.) No. 51 (Admn. Branch), dated 31.5.1984, the Board had approved the concession in regard to providing employment

opportunities to the dependents of the employees of the Board, who have retired from service on medical grounds before attaining the age of 50

years, based on the Government G.O.Ms. No. 1025 (Labour and Employment), dated 22.11.1976 and in Letter No. 22247/N1/82-4 dated

23.11.1982.

Now, the Government in its G.O.Ms. No. 168 (Labour and Employment) (Q1) Department, dated 19.10.2000 have extended the restriction of

age of the employees on medical invalidation from 50 years to 53 years for providing employment assistance to their dependents.

The Board has decided to adopt the orders of the Government. Accordingly, it is ordered that the employment assistance to the dependents of

the employees of the Board who retire on medical grounds are considered subject to the condition that the employee should have retired from

service on medical grounds before attaining the age of 53 years.

The other conditions stipulated under this scheme remain the same.

This concession is given effect to from the date from which the Government have extended the benefit (i.e.) from 19.10.2000.

The age barrier was raised from 50 years to 53 years. But such a change in the scheme was given only a limited retrospective effect by clause 5 of

the above said Board proceedings. As per clause 5, the concession extended by the said Board proceedings was given effect to from 19.10.2000,

the date from which the Government have extended the benefit to the government servants. Therefore, as rightly contended by the learned standing

counsel for TNEB, the said amendment will be applicable only in cases of retirement on medical invalidation on or after 19.10.2000.

The learned counsel for the petitioner made an attempt to contend that the cut off date mentioned in Board proceedings B.P. (FB) No. 25

dated 9.10.2001 would mean the date of consideration of the request for compassionate appointment and not the date of retirement of the Board

employee on medical invalidation. The said contention of the learned counsel for the petitioner is against the law and spirit of the Board

proceedings and hence the same deserves rejection.

The learned standing counsel for the Electricity Board contended further that, even if it is assumed that the petitioner would be entitled to the

benefit of B.P. (FB) No. 25 dated 9.10.2001, since the petitioner did not apply for appointment on compassionate grounds within three years

from the date of his father''s retirement on medical invalidation and not even within three years from the date of passing of the above said Board

proceedings, the rejection of the petitioner''s application for appointment on compassionate grounds deserved no interference.

In this regard, the attempt made by the learned counsel for the petitioner to contend that application seeking compassionate appointment was

made as early as on 21.3.2001 cannot be accepted for the reasons indicated supra. At the cost of repetition, it is pointed out that in the

representation dated 21.3.2001 made to the Hon''ble Chief Minister, the petitioner had not sought for appointment on compassionate grounds as

per the scheme applicable to the TNEB. The said representation itself reveals the knowledge of the petitioner that in accordance with the then

prevailing scheme the dependents of Sarangapani were not entitled to seek appointment on compassionate grounds. It should also be noticed that

the age relaxation relaxing the age from 50 to 53 years came to be made on 9.10.2001 with retrospective effect from 19.10.2000 as per B.P.

(FB) No. 25. Before passing of the said proceedings, the representation to the Hon''ble Chief Minister came to be made. Therefore, the said

representation can, at no stretch of imagination, be construed to be an application made in accordance with the Board proceedings and the scheme

applicable to the TNEB. That is the reason why the petitioner chose to submit a proper application on 31.1.2005 seeking compassionate

appointment. The said application came to be made not only after three years from the date of retirement of his father on medical invalidation, but

also beyond three years from the date from which the amendment was brought into effect and also beyond three years from the date of Board

proceedings B.P.(F.B.) No. 25 bringing about an amendment in the age criterion.

Viewed from any angle, it shall be obvious that the petitioner had not submitted his application seeking compassionate appointment within the

time limit stipulated in the rules. Therefore, the rejection of the application of the writ petitioner seeking appointment on compassionate grounds

was made on valid grounds. The challenge made to the impugned order is not sustainable and the Writ Petition deserves dismissal, as there is no

merit in it. Accordingly, the writ petition is dismissed. No cost.