Judgment:
ORDER
A.R. Lakshmanan, J.
1. This writ petition has been filed by the petitioner for a Writ of Mandamus directing the respondent to implement the Office Memorandum No. 14014/10/80 Estt.(D) dated March 18, 1982 by Government of India for the employment of the petitioner.
2. Heard Ms. B. Yamini, learned counsel for the petitioner and Mr. G. Venkataraman, learned counsel for the respondent.
3. Notice of Motion was ordered on April 24, 1995. On service of notice the respondent entered appearance through M/s. Aiyar and Dolia and also filed counter affidavit, in the main Writ Petition. Therefore, the Writ Petition is admitted and by consent of both the parties the same is taken up for final hearing.
3(a). The impugned Office memorandum No. 14014/10/80-Estt.(D) dated March 18, 1982 reads as follows :
'1. The undersigned is directed to invite attention to para 6 of the revised instructions on the above subject, circulated vide this Department's O.M. No. 14014/1/77-Estt.(D) dated November 25, 1978 (based on orders issued in 1972) which permits Departments to extend the benefit of compassionate appointment even in cases of Government servants reiterating on medical grounds. These orders were issued mainly for the reason that Government servants retiring on medical grounds are deprived of the benefit of serving till the date of normal super-annuation and that such premature retirement may in some cases force the families to live in indigent circumstances and may, therefore, deserve to be viewed with the same compassion as in the case of those who die while in service.
2.........
3. It is, therefore, felt that extension of this benefit to sons/daughters/near relatives of officers retiring after they have attained the age of 55 years may not be justified. With a view to restricting the benefit of this concession to really deserving cases, it has been decided that the benefit of compassionate appointment envisaged in para 6 of the instructions referred to above should be confined to cases wherein Government Servants retire on medical grounds before they attain the age of 55 years. Accordingly, the following sentence may please be added at the end of para 6 :
'This concession should not, however, be extended to cases where the Government Servant has retired on or after attaining the age of 55 years'.
4. The petitioner's husband K. Ramachandran was working as R.P. Muzdoor, T.N. No. 1823 from May 2, 1969 onwards in the respondent Board and during his period of service he had unblemished records of service. He has to retire on 2007 and his last drawn salary is Rs. 3,000/-.
5. While he was in employment he fell sick and he underwent medical treatment and because of his ailment he could not continue his service and therefore, he was medically invalidated on May 24, 1989. Within a period of two months the petitioner's husband expired on July 21, 1989. The petitioner herein being wife of the deceased employee gave an application on May 15, 1990 requesting the respondent to provide an employment to the petitioner on compassionate ground, since the petitioner's husband was medically invalidated and expired before the age of retirement. Since the respondent did not consider the petitioner's application, she issued a lawyer's notice on February 6, 1995 for which the respondent gave reply dated February 25, 1995 in which the respondent has denied the liability or duty cast on the respondent to give appointments on compassionate grounds to the petitioner and to her son.
6. Ms. Yamini, learned counsel for the petitioner contended that as per the office memorandum above referred to, the petitioner's husband was medically invalidated and died before the age of retirement, the respondent is duty bound to consider her application and to provide employment either to her or to her son. She also argued the existence of legitimate expectation in this case, and that the said doctrine of legitimate expectation imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation. In this case, the respondent never considered the petitioner's legitimate expectation. Therefore, the Writ Petition has been filed for the aforesaid relief.
7. The respondent filed a counter affidavit opposing the claim of the petitioner. I have carefully gone through the affidavit and the counter affidavit filed by the parties and also considered carefully the arguments advanced by the learned counsel appearing on either side.
8. The respondent Board is a statutory body constituted under Dock Workers (Regulation of Employment) Scheme, 1948 and is controlled by Ministry of Surface Transport, Union of India. It administers four statutory schemes framed by the Central Government under Section 4 of the Act, and in the matters of policy is under obligation to carry out the directions of the Ministry of Surface Transport. The Board is a statutory agent securing wages and other terms and conditions of service to the Dock Workers such as Attendance allowance, leave with wages and disappointment money, etc., provided for under the respective four schemes. The nature of work done by the Dock Workers governed by each of the four schemes is distinct and different. The Board is a statutory agent supplying labour to the Stevedores and securing wages and other terms and conditions to the Dock Workers. For this purpose, levy and administrative charges are collected from the Stevedoring employers, who are licensed to do the Stevedoring business at the Madras Port and Dock by the Madras Port Trust which is a separate statutory body constituted under Major Port Trust Act.
9. Mr. G. Venkataraman, learned counsel for the respondent while denying the allegations made in the affidavit, on facts submitted that the husband of the petitioner did not die in harness and that he was medically unfitted on account of which his services were terminated on medical grounds on May 24, 1989 and he died on July 21, 1989. It was also contended that the petitioner's husband and for that matter any Dock Workers covered by the four statutory schemes are not Government servants and therefore to them the Memorandum passed by the Government of India in No. 1401/80 Estt(D) dated March 18, 1982 is not applicable. In matter of giving appointments to the legal heirs of Dock Workers dying in harness/medically invalidated there is no directive or instructions to the respondents from the Ministry of Surface Transport. Therefore, the petitioner cannot place reliance upon the aforesaid memorandum of Central Government and there is no right vested in her to claim for implementation of the same in her case.
10. As far as the respondent is concerned, it has formulated a policy of providing employment to the wards of those workers, who died in earlier years i.e., even before 1979 and who were minors at the time when the workers concerned died in harness. Even then there was no scope for giving employment to such wards on regular basis but could only give them employment as casuals. A resolution to this effect was passed by the Board on August 30, 1988 vide Res. No. 36 of 1988-89. Though before the resolution could be passed the aspect of providing employment to the legal heirs of medically invalidated workers also was considered for being provided with employment as casuals, ultimately the following resolution was passed :
'Resolved to post about 150 mazdoors on a purely casual basis under the listing scheme from those dependents of workers who died while in service from September 1979 to August 31, 1988 and the workmen representatives on the Board were parties to this resolution'.
As could be seen from the above, the benefit of compassionate appointment is being made available only to dependents of workers who died while in service from September 1979 to August 31, 1988 and that too as casuals under the listing scheme. Further the dependent of the worker can claim compassionate appointment only if the worker had died in harness.
11. As pointed out by the learned counsel for the respondent, the petitioner's husband died after his discharge from service on medical grounds. It is in the light of these facts when she caused a lawyer's notice to the respondent, the aforesaid true position was communicated to her by the Board through its lawyer in its reply dated February 25, 1995. It may opinion, neither the letter of the Union dated July 11, 1994 nor her aforesaid lawyer's notice is of any relevance in the light of the policy decision followed by the respondent Board. As already stated the Central Government memorandum dated March 18, 1982 is applicable only to Government servants and not to Dock Workers. Further the petitioner is not a dependent of worker who died in harness. Therefore, there is no legal obligation cast on the respondent to provide employment to the petitioner on compassionate grounds, when she has no right to claim the same.
12. When she has no right to claim the plea for issue of Writ of Mandamus, is misconceived and therefore, the Writ petition is liable to be dismissed and accordingly, the same is dismissed. No costs. However, the dismissal of the writ petition will not in any way preclude the respondent from considering the claim of the petitioner or her son in the event of their changing their policy for providing employment to the legal heirs of medically invalidated dock workers, since the petitioner comes under this category. This Court hopes and trust that the respondent will consider sympathetically the case of the petitioner. Consequently, WMP No. 9881 of 1995 is dismissed.