TaxTMI 
TaxTMI 
2017 (9) TMI 2026
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....g for 'Compassionate Appointment' was made after nine years, which disentitles the Respondent for securing an 'Appointment on Compassionate Ground'. 4. The Learned Special Government Pleader for the Applicants vehemently takes a plea that 'Compassionate Ground Appointment' is neither a 'Legacy' nor an 'Inheritable' Right, which can be exercised at the sweet Will of the Respondent/Petitioner. However, the said appointment is only to get over the immediate crisis and the intending indigent circumstances. 5. At this juncture, the Learned Special Government Pleader for the Applicants brings it to the notice of this Court that the Government of Tamil Nadu through its Letter (Ms. ) No. 202, Labour and Employment Department dated 06.10.2007 had clarified that the time of filing an Application for employment under 'Compassionate Ground' is three years from the date of death of Government Servant and that the same shall be applicable to all cases including where the Government Servant had died in service even before 26.06.1995. However, this Court had overlooked the Policy Decision of the Government. 6. Expatiating his submission, the....
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...., Ramasamy namely, his father, is not entitled to get the benefit of 'Compassionate Appointment'. Therefore, the Order of the 1st Review Applicant/Director General of Police, Tamilnadu in Memorandum R.C. No. 116466/CA/2/2008 dated 09.02.2009 (after obtaining clarification from the Government) stating that the request of the Respondent/Petitioner for 'Appointment on Compassionate Ground' cannot be considered, is a correct and valid one in the eye of Law. Moreover, the Respondent/Petitioner submitted an Application seeking 'Appointment on Compassionate Ground' with a delay of 9 years from the date of death of his father, Ramasamy and in any event, based on the Government Letter No. 34 dated 16.04.2002, the claim of the Respondent/Petitioner was rejected, which is per se correct and free from any error. 9. Lastly, it is the submission of the Learned Special Government Pleader for the Applicants that this Court had failed to take note of the fact that the Respondent/Petitioner and his immediate family are not in 'Poverty' presently. Decisions Cited on Review Applicants' Side: 10. The Learned Special Government Pleader for the Applicants cite....
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....raws the attention of this Court to the decision of Hon'ble Supreme Court, S. Nagaraj and Others V. State of Karnataka and Another reported in 1993 Supp (4) Supreme Court Cases Page 595 at Special Page 599 wherein it is observed as under: "Rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. Apart from Order XL Rule 1 of the Supreme Court Rules, the Supreme Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice." Also, in the aforesaid decision at Page 599, it is observed as under: "........ It is the duty of the court to rectify, revise and re-call its orders as and when it is brought to its notice that certain of its orders were passed on a wrong or mistaken assumption of facts and that implementation of those orders would serious consequences." Contentions of Respondent 13. Per contra, it is the submission of the Learne....
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....is connection, the District Collector, Tirunelveli Kattabomman District has sought for clarifications whether the time limit of three years period specified in the Government Order are applicable to the dependents of the Government Servants who died/to the date of issue of the/prior Government order. In this connection, it is clarified that the time limit of three years period specified in the Government Order 1st cited is applicable only to the dependents of the Government Servants those who died while in service on or after 26.06.1995 and above orders are not applicable to the past cases. Further the Government clarified, that the age limit of 50 years of appointment under the Scheme in the case of Windows as ordered in the side, Government Order is also applicable only to the Windows of the Government Servants those who died on or after 26.06.1995..." 18. That apart, on behalf of the Applicants, the Learned Special Government Pleader adverts to the Letter (Ms. ) No. 202 dated 08.10.2007 of Labour and Employment Department issued by the Secretary to Government of Tamilnadu wherein at Paragraph No. 5, it is among other things stated as follows: "5..... The crux of the ....
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.... this effect will have to be produced." 22. Also, in the aforesaid G.O. Ms. No. 155, Labour and Employment Department dated 16.07.1993 at Paragraph Nos. 3 to 6 it is observed as under: "3. In regard to the second condition mentioned in para... above, it is considered that if a member of the family is already in employment and supports the family then the restriction may be applied. When a dependent of the family is employed, the factors to be ascertained are, whether he is regularly employed and he is actually supporting family etc., 4. However, the restriction that only one of the dependants will be entitled for appointment on compassionate grounds will continue. 5. Only the dependants of the deceased Government servant viz., wife/husband/son/unmarried daughter will be eligible for appointment. If the widow is not educationally qualified/eligible for appointment, she could be given a job like sweeper. The Government also direct that a married daughter who is deserted by her husband and living with widowed or divorced daughter living with the family may be considered, if the widow of the deceased Government servant gives her consent in writing. ....
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....eration by the 1st Review Applicant/Director General of Police, Chennai and his name was kept in the waiting list for appointment. Also that the Superintendent of Police, Nilgiris District had issued another memorandum on 29.01.2009 to the effect that his application for 'Appointment on Compassionate Ground' was pending before the 1st Review Applicant/Director General of Police, Chennai. 27. The 2nd Review Applicant/Superintendent of Police, Nilgiris District on 18.03.2009, through Memo bearing C. No. A2/26792/2008, had issued an order to the effect that in terms of Government Letter (Ms) No. 34 dated 16.04.2002, 'Children born out of void marriage are not entitled for Compassionate Ground Appointment' and since he is born through second wife, his request for 'Compassionate Ground Appointment' cannot be conceded'. The grievance of the Respondent/Petitioner in the Writ Petition was that on 19.05.2009, the Superintendent of Police, Nilgiris District, Udhagamandalam, 2nd Review Applicant had again passed a similar order that the marriage of his mother is a void marriage and he cannot be given 'Compassionate Ground Appointment', which is also assa....
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....employment consequent to the death of his father, Ramasamy, who worked as Grade-I Police Constable in Namakkal District and the said exercise in this regard was directed to be carried out within a period of six weeks from the date of receipt of a copy of the Order. "5. The petitioner seems to be prosecuting the matter from the beginning and the petitioner's mother was made to understand that her application for appointment on compassionate ground was pending with the Director General of Police. Therefore, the respondents cannot now harbour that the petitioner has approached the authorities seeking appointment on compassionate ground very belatedly. The petitioner in fact seems to have produced the certificate from the Tahsildar, Namakkal District dated 16.10.2002 wherein he has stated that the family of the petitioner is in indigent circumstances." 32. The Review Applicants/Respondents filed W.A. No. 449 of 2016 before this Court, as Appellants and this Court on 07.04.2016 dismissed the Writ Appeal on merits by coming to the conclusion that the Impugned Order of the Learned Single Judge dated 26.02.2013 in W.P. No. 23475 of 2011 does not suffer from any material irr....
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.... only after the demise of the first wife, the Respondent's deceased father (Ramasamy) had married his mother. For such a marriage, no prior permission is required to be obtained under any rule or from any authorities." 33. It is relevantly pointed out that Section 5 of the Hindu Marriage Act, 1955 speaks of 'Conditions for a Hindu Marriage'. A marriage may be solemnized between any two Hindus, if the following requisites are satisfied: (i) Neither party has a spouse living at the time of marriage; (ii) to (v)...." 34. As a matter of fact, it is unfortunate that for a child, the putative marriage of whose parents is null and void or cancelled by a Court of Law on some ground, which is to be mentioned in Sections 11 and 12 of the Hindu Marriage Act, 1955. A reading of Section 16(1) and (2) of the Hindu Marriage Act, unerringly points out that even in a case of marriage void or voidable under the Act, the children of any such marriage do have the status of 'Legitimate Children'. Their legitimacy is for all purpose including the issue pertaining to 'Succession'. 35. Dealing with the aspect of 'Second Marriage', it is to be ....
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....er, a person cannot develop his case, which was not originally pleaded in Writ Petition or in Writ Appeal. In regard to the application of Facts, if there are errors, on that count, the finding of a Court of Law cannot be reversed by means of a 'Review'. 40. It is to be noted that question(s) not raised before the Learned Single Judge or before the trial Court or before the Appellate Court is certainly not permissible in 'Review Jurisdiction'. In a Review Application, raising entirely new issues/points are not proper. Even if an erroneous decision is arrived at on the merits of the matter in a given case, 'No Review Lies', as opined by this Court. 41. It may not be out of place for this Court to relevantly point out that the 2nd Review Applicant in his Counter in W.P. No. 23475 of 2011 at Paragraph No. 7 in categorical terms had averred that the Respondent/Petitioner's father Ramasamy married one Pappammal and she died on 17.06.1983 and after the death of his first wife, his father remarried Vijayakumari (his mother) on 12.11.1983. Also in the Counter to the Writ Petition, the 2nd Review Applicant had also taken a plea that the Respondent/Petitione....
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..../Appellants'/Respondents' side. Only in the present Review Application, the alleged Petition of Chinnu has made mention of at Page No. 6 of the typed set dated 01.06.2016, filed on the side of the Review Applicants'. Character of Writ Proceedings 44. Besides the above, it cannot be brushed aside that the Proceedings of the Writ Petition are undoubtedly summary. The disputed questions of fact/issues cannot be determined in Writ Jurisdiction, as per decision of the Hon'ble Supreme Court Sumedha Nagpal V. State of Delhi reported in (2000) 9 SCC at page 745. The Area of Article 226 of the Constitution of India is undoubtedly a discretionary one. The plenary power under Article 226 of the Constitution of India is not shackled by any 'Legal Restraint'. 45. It transpires that the 2nd Review Applicant's office, on 19.05.2009 had informed the Respondent/Petitioner that his request for 'Compassionate Ground Appointment' cannot be considered based on Government Letter (Ms) No. 34 dated 16.4.2002 because of the reason that his father's second marriage was considered to be void. 46. The Respondent/Petitioner's mother gave a Petition on 04.....
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....tled for appointment on compassionate ground and further, this was followed in the decision reported in 2010(7) MLJ at Page 644 (M. Uma V. Chief Engineer (Personnel) T.N.E.B.) and in fact, the Orders passed thereon was complied with and an appointment on compassionate ground was given to the Petitioner therein. 50. It is to be pointed out that although the Hon'ble Division Bench sitting in Appellate Jurisdiction had passed the Impugned Judgment in W.A. No. 449 of 2016 on 07.04.2016 affirming the Impugned Order passed by the Learned Single Judge in W.P. No. 23475 of 2011 dated 26.02.2013, to fill up any lacunae or gaps in a given case, ordinarily, the litigant/party is not permitted to produce fresh material/evidence. The power of an Appellate Court/Authority to receive or take judicial notice of new documents or available earlier documents, which were not admittedly filed or produced either before the Learned Single Judge or before the Appellate Court at the time of passing the Impugned Order or Judgment is to be used sparingly, of course, with great caution and circumspection. Further, for non production of the purported statement of Respondent/Petitioner's mother, Vija....
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.... significantly pointed out that the purported statement of Respondent's mother before the Sub Inspector of Police, Namakkal Police Station and the undated Application of Chinnu, Respondent/Petitioner's father's brother, being new documents not filed either before the Learned Single Judge or before the Hon'ble Division Bench at the time of passing Judgment in W.A. No. 449 of 2016 would not be accepted, when no tangible/sufficient/acceptable reasons are shown for not filing at the earliest point of time. 55. It should be remembered that mere discoveries of new materials or old documents subsequent to the Order passed in the Writ Petition and in a Writ Appeal cannot be a decisive factor to prefer a Review Application before the Court of Law, which passes the Judgment/Order in question. In the present case, it appears that the Applicants' were not quite diligent enough to produce the statement of Vijayakumari (the Respondent's mother) dated 06.02.1995 and the application of Respondent/Petitioner's father's brother, Chinnu. A litigant, while being negligent in not producing the aforesaid materials despite knowledge at a given point of time, the same ca....