Judgment:
ORDER
K. Chandru, J.
1. I have heard Ms. V. Pushpa, learned Counsel appearing for the petitioner and Mr. M. Vaidyanathan, learned Counsel representing the respondents and have perused the records.
2. The petitioner is the daughter of one P.Veeran, Wireman, employed in Natham West, Dindigul Electricity Distribution Circle. Unfortunately, he passed away on 30.12.1998 leaving behind his wife and the petitioner daughter. The petitioner's mother Karpagavalli applied for employment assistance and sent a requisition on 05.4.2001. But she was informed that since she was not qualified and did not have the minimum educational qualification, she cannot be granted any employment. Thereafter, being the daughter of the deceased, the petitioner applied for employment under the Employment Assistance Scheme. In her application, she had stated that though she was married, she was deserted by her husband and, therefore, she is eligible for getting the employment under the Employment Assistance Scheme.
3. By Board Proceedings in Per B.P. (Ch) No.330 (Administrative Branch) dated 02.11.1993, it is stated that a daughter deserted by her husband is also eligible for getting employment by the Scheme. The following passage from the proceedings dated 02.11.1993, may be usefully extracted below:
(ii) It is considered that if a member of the family is already in employment and supports the family then the restriction that if there is already any earning member in the family of the Government servant, who died in harness, the other dependants of the deceased Government servant will not be eligible for compassionate appointment may be applied. When a dependant of the family is employed, the factors to be ascertained are, whether he is regularly employed and is actually supporting the family. If that person was employed even before the death of the Government servant and was living separately without extending any help to the family, then the case of other eligible dependant will be considered.
(iii) Only the dependants viz., Wife/Husband/Son/Unmarried daughter are eligible for appointment married daughter deserted by her husband/widowed or divorced daughter living with the family may be considered for employment assistance if the widow of the deceased employee gives her consent in writing.
(iv) Age Restriction of 30 in the case of Sons/Unmarried daughter or 40 in the case of Widow/Widower will continue.
2. After careful consideration, the Board hereby directs that the above concessions may be made applicable in Tamil Nadu Electricity Board in regard to providing employment assistance to the dependants of the deceased employees who died while in service and dependants of the invalidated employees on medical grounds.
In that proceedings, the Board has adopted G.O. Ms. No. 155 Labour and Employment Department dated 16.7.1993 providing for compassionate appointment for the deserted daughter.
4. The petitioner, along with her application, enclosed the Agreement dated 16.7.2001 for dissolution of marriage between her and her husband signed before the Community Panchayat as well as a Divorce Deed, which was also registered, as a proof of her being deserted by her husband. To avoid legal complications, she has also filed an application for divorce on the grounds of desertion and cruelty before the Sub-Court, Dindigul, in H.M.O.P. No. 55 of 2001 and in the said petition for divorce, a decree was granted by the Sub-Court on 11.4.2002. Responding to the petitioner's application, the third respondent Superintending Engineer, Tamil Nadu Electricity Board, by a communication dated 05.02.2002, requested the petitioner to rectify certain defects pointed out in the application. Apart from other details, they had also sought for the judgment from the Matrimonial Court regarding the divorce. Further details were also sought for, by a letter dated 12.8.2002. The petitioner also enclosed the decretal order of dissolving her marriage with her deserted husband. But, however, when these papers were forwarded to the second respondent, by a communication dated 06.5.2003, she was informed that on the day when she applied for appointment on compassionate ground, viz., 23.12.2001, she can be considered only as a married daughter since the decree of divorce was made only on 11.4.2002. Since she is a married daughter, she is ineligible for getting the appointment in terms of the Board Proceedings dated 02.11.1993. The petitioner sent a letter dated 05.10.2003 stating that she had applied for employment assistance only on the basis of a daughter deserted by her husband and not on the ground of divorced wife and, therefore, they should reconsider their decision. Since there was no reply, the petitioner was constrained to file the present writ petition.
5. The writ petition was admitted on 05.9.2005. A counter affidavit dated 31.8.2006 has been filed by the third respondent on behalf of the respondent Board wherein the same contentions have been raised. It is also stated that since the petitioner's father died on 30.12.1998, the last date for making any application was 30.12.2001 by which date, the petitioner's divorce had not come through and, therefore, her application was rejected.
6. The entire stand of the respondent Board is misconceived. Firstly, the petitioner's application was well within time, viz., within three years from the date of death of her father. Secondly, in her application, she did not claim as a divorced daughter but as a daughter deserted by her husband. For that purpose, she has produced two documents, viz., Agreement for dissolution of marriage and Divorce Deed. Though the legal value of the said documents may not be significant, but both the documents show that she had been deserted by her husband and was living with her mother. Further, even in her application in H.M.O.P. No., 55 of 2001 filed before the Sub-Court, Dindigul, under the Hindu Marriage Act, her claim was that she was deserted and subjected to cruelty by her husband which fact was later agreed by the Court and decree of divorce was granted on 11.4.2002. But that fact will not preclude the petitioner from claiming the fact that she was deserted by her husband.
7. In fact, for a divorce, under Section 13(1)(ib) of the Hindu Marriage Act, there must have been a desertion for a period of two years immediately preceding the date of presentation of the petition. Therefore, when a Matrimonial Court grants divorce, it only takes into account the prior existence of the fact which renders parties to have the benefit of the same. In any event, the petitioner filed two documents signed before the Community Panchayat, which may not have much value in the matter of granting divorce, but for the purpose of proving desertion by her husband, they can be sufficient material. Because, neither the Board nor the Government had prescribed any format or an authority for such certification. The petitioner has produced whatever material that was in her possession. Even in her application she had only claimed on the ground of a deserted daughter. It was the third respondent, by a communication dated 05.02.2002, who demanded production of a divorce decree from the Court. The petitioner had also obliged and produced the same. But this cannot be construed that the petitioner had applied only under the category of a divorced daughter. She merely complied with the requisition made by the third respondent.
8. In the light of the above, the writ petition stands allowed and the impugned order dated 06.5.2003 passed by the second respondent shall stand set aside. The respondents are directed to provide employment to the petitioner commensurate with her qualification, in the respondent Board within a period of four weeks from the date of receipt of a copy of this order. No costs.