Madras High Court
K.Ravi vs The Regional Director Of ... on 4 August, 2021
W.P.(MD) No.12064 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.(MD) No.12064 of 2018
and
W.M.P.(MD) No.10997 of 2018
K.Ravi ... Petitioner
-vs-
1.The Regional Director of Municipality
Tirunelveli
Tirunelveli District
2.The Commissioner
Aruppukottai Municipality
Virudhunagar District ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue
a writ of certiorarified mandamus to call for the records on the files of the
second respondent pertaining to its order bearing Na.Ka.No.3402/2016/E1,
dated 06.12.2016 and to quash the same and consequently direct the second
respondent to provide suitable employment on compassionate ground to the
petitioner.
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W.P.(MD) No.12064 of 2018
For Petitioner : Mr.S.C.Herold Singh
For Respondents : Mr.A.K.Manickam
Government Counsel for R1
Mr.N.Dilip Kumar, Standing Counsel for R2
ORDER
The prayer in the writ petition is for issuance of a writ of
certiorarified mandamus to quash the order dated 06.12.2016, passed by the
second respondent and to direct the second respondent to provide
employment on compassionate ground to the petitioner.
2. The case of the petitioner is that his father joined service as
Gancooli in the office of the second respondent and during service, he died on
30.03.2015 leaving behind the petitioner, his mother, one brother and three
sisters as legal heirs. According to the petitioner, he has completed Pre-
foundation Course and it is equivalent to 10th standard and the first year of
Foundation Course is equivalent to 11th standard and the second year is
equivalent to 12th standard. Therefore, according to the petitioner, he is
possessing requisite educational qualification for being appointed on
compassionate grounds.
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W.P.(MD) No.12064 of 2018
3. The petitioner would submit that his mother made an
application on 28.04.2015 seeking appointment on compassionate ground to
him and the other legal heirs of the deceased employee had also given their
consent for the same. However, the second respondent has passed the
impugned order, dated 06.12.2016, rejecting the application for
compassionate appointment. Challenging the same, he has filed this writ
petition.
4. The learned counsel appearing for the petitioner would submit
that the second respondent has erroneously rejected the petitioner's
application for compassionate appointment. According to the learned counsel,
the petitioner belongs to Scheduled Tribes community and therefore, he is
entitled for age relaxation. The learned counsel would further submit that as
per Rule 12(d) of Tamil Nadu State and Subordinate Service Rules, the
maximum age limit prescribed in the Special Rules is not applicable to the
candidates belonging to the Scheduled Castes and Scheduled Tribes
community. Therefore, on the sole ground, the impugned order is liable to be
set aside.
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W.P.(MD) No.12064 of 2018
5. The learned Standing Counsel appearing for the second
respondent – Municipality strongly objected to the contentions of the learned
counsel for the petitioner. According to the learned Standing Counsel, as per
Rule 11B of Tamil Nadu Municipal Service Rules, 1970, the maximum age
limit for appointment by direct recruitment on compassionate grounds, shall
be thirty years in respect of sons or the unmarried daughters and forty years
in respect of wife or husband of the municipal employee. The learned
Standing Counsel would further submit that the Honourable Supreme Court
as well as this Court in a catena of decisions have repeatedly held that
compassionate appointment cannot be made contrary to the relevant Rules.
That apart the object of the compassionate appointment is to enable the family
of the deceased employee to tide over the crisis caused as a result of the
untimely death of the employee and it is not a matter of right. Therefore, the
impugned order passed by the second respondent does not warrant any
interference of this Court.
6. I have anxiously considered the rival submissions of the learned
counsel for the parties and carefully perused the materials available on record.
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W.P.(MD) No.12064 of 2018
7. The primordial contention of the petitioner is that the second
respondent has rejected his request for compassionate appointment is only on
the ground that he is over aged at the time of submitting application.
According to the petitioner, as per Rule 12(d) of Tamilnadu State and
Subordinate Service Rules, the maximum age limit prescribed in the special
rules is not applicable to the Scheduled Caste and Scheduled Tribes
candidates. Therefore, as per Rule 12(d), he is entitled for age relaxation for
compassionate appointment.
8. On the other hand, as per Rule 11B of Tamil Nadu Municipal
Service Rules, 1970, the maximum age limit for appointment by direct
recruitment on compassionate grounds, shall be thirty years in respect of sons
or the unmarried daughters and forty years in respect of wife or husband of
the municipal employee. Therefore, when the aforesaid Rule is very clear and
there is no provision for granting age relaxation to the petitioner, the petitioner
is not entitled for age relaxation.
9. In Umesh Kumar Nagpal vs. State of Haryana [(1994) 4 SCC
138], the Honourable Supreme Court has held as follows:
“The whole object of granting compassionate
employment is thus to enable the family to tide over the
sudden crisis. The object is not to give a member of such
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W.P.(MD) No.12064 of 2018
family a post much less a post for post held by the
deceased. What is further, mere death of an employee in
harness does not entitle his family to such source of
livelihood. The Government or the public authority
concerned has to examine the financial condition of the
family of the deceased, and it is only if it is satisfied,
that but for the provision of employment, the family will
not be able to meet the crisis that a job is to be offered to
the eligible member of the family.”
10. In Bhawani Prasad Sankar vs. Union of India and Others
[2011 (3) LLN 37 (SC)], the Honourable Supreme Court has held as follows:
“(i) Compassionate employment cannot be made in
the absence of Rules or Regulations issued by the
Government or a Public Authority. The request is to be
considered strictly in accordance with the governing
scheme, and no discretion as such is left with any
authority to make Compassionate Appointment dehors the
Scheme.
(ii) ...
(iii) An appointment on compassionate ground is to
meet the sudden crisis occurring in the family on account
of the death or medical invalidation of the breadwinner
while in service. Therefore, compassionate employment
cannot be granted as a matter of course by way of
largesse irrespective of the financial condition of the
deceased/incapacitated employee's family at the time of
his death or incapacity, as the case may be.”
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W.P.(MD) No.12064 of 2018
11. In State of Himachal Pradesh and another vs. Parkash
Chand [(2019) 4 SCC 285], the Honourable Supreme Court has held as
follows:
“8.The High Court while deciding issue (ix) has
relied upon the decision of this Court in Govind Prakash
Verma v. LIC [(2005) 10 SCC 289] more specifically on
the observation that the mere fact that the elder brother
of the applicant was engaged in agricultural work and
was also doing the work of a casual painter, would not
be construed as gainful employment. This finding in
Govind Prakash Verma [(2005) 10 SCC 289] is purely
on the facts of that case and cannot be construed to be
of any relevance to the present case.
9. The High Court has observed that the State
should consider cases for appointment on
compassionate basis by dealing with the applications
submitted by sons, or as the case may be, daughters of
deceased government employees, even though, one
member of the family is engaged in the service of the
government or an autonomous board or corporation.
This direction of the judgment of the High Court virtually
amounts to a mandamus to the State Government to
disregard the terms which have been stipulated in
paragraph 5(c) of its Policy dated 18-1-1990. The policy
contains a limited exception which is available only to a
widow of a deceased employee who seeks
compassionate appointment even though one of the
children of the deceased employee is gainfully
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W.P.(MD) No.12064 of 2018
employed with the State. The basis for this exception is
to deal with cases where the widow is not being
supported financially by her children.
10. In the exercise of judicial review under Article
226 of the Constitution, it was not open to the High
Court to re-write the terms of the policy. It is well-settled
that compassionate appointment is not a matter of right,
but must be governed by the terms on which the State
lays down the policy of offering employment assistance
to a member of the family of a deceased government
employee. [Umesh Kumar Nagpal v. State of Haryana
[(1994) 4 SCC 138], SBI v. Kunti Tiwary [(2004) 7 SCC
271, Punjab National Bank v. Ashwini Kumar Teneja
[(2004) 7 SCC 265], SBI v. Somvir Singh [(2007) 4 SCC
778, Mumtaz Yunus Mulani v. State of Maharashtra
[(2008) 11 SCC 384], Union of India v. Shashank
Goswami [(2012) 11 SCC 307, SBI v. Surya Narain
Tripathi [(2014) 15 SCC 739 and Canara Bank v.
M.Mahesh Kumar [(2015) 7 SCC 412].
11. For the above reasons, we are of the view
that the judgment of the High Court is unsustainable.
The High Court has virtually rewritten the terms of the
Policy and has issued a direction to the State to
consider applications which do not fulfill the terms of
the policy. This is impermissible.”
12. In Government of India and another v. P.Venkatesh [(2019)
15 SCC 613], the Honourable Supreme Court has held as follows:
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W.P.(MD) No.12064 of 2018
“8. This ‘dispose of the representation’ mantra is
increasingly permeating the judicial process in the High
Courts and the Tribunals. Such orders may make for a
quick or easy disposal of cases in overburdened
adjudicatory institutions. But, they do no service to the
cause of justice. The litigant is back again before the
Court, as this case shows, having incurred attendant
costs and suffered delays of the legal process. This
would have been obviated by calling for a counter in the
first instance, thereby resulting in finality to the dispute.
By the time, the High Court issued its direction on 9-8-
2016, nearly twenty one years had elapsed since the
date of the death of the employee.
9. ...
10. Bearing in mind the above principles, this
Court held: (Umesh Kumar Nagpal v. State of Haryana,
(1994) 4 SCC 138) SCC pp.141-42, para 6)
“6. For these very reasons, the
compassionate employment cannot be granted
after a lapse of a reasonable period which must
be specified in the rules. The consideration for
such employment is not a vested right which can
be exercised at any time in future. The object
being to enable the family to get over the financial
crisis which it faces at the time of the death of the
sole breadwinner, the compassionate employment
cannot be claimed and offered whatever the lapse
of time and after the crisis is over.”
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W.P.(MD) No.12064 of 2018
13. The Honourable Full Bench in Paragraph No.13 of the
Judgment dated 11.03.2020 in W.P.(MD) No.7016 of 2011 has held as
follows:
“13. In the light of the above we find that the
judgment in the case of A.Kamatchi v. The Chairman,
Tamil Nadu Electricity Board, (2013) 2 CWC 758 is not
only contrary to the law laid down in the case of
E.Ramasamy v. The Chairman, Tamil Nadu Electricity
Board, (2006) 4 MLJ 1080, but it also has, as indicated
by our brother, Justice Subramonium Prasad, in his
judgment, misconstrued the same. In view of what has
been indicated above we are also of the view that the
period of three years is a rationale and reasonable
period under the relevant Government Orders and the
rules. We may, however, observe that it is open to the
State Government to make any provision for relaxation
of the period in exceptionally rare cases on the
principles as indicated herein above.”
14. In Tamil Nadu Municipal Service Rules, 1970, which is
applicable to the facts and circumstances of the case on hand, there is no
provision for granting age relaxation for compassionate appointment. Unless
there is age relaxation in the statute, the Court cannot traverse the period
prescribed by the Authority. Therefore, in view of the above settled legal
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W.P.(MD) No.12064 of 2018
position and the decisions cited supra, this Court is of the view that the
contention of the petitioner for age relaxation is liable to be rejected.
15. In fine, the writ petition is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
04.08.2021
Index : Yes / No
Internet : Yes / No
Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the advocate /
litigant concerned.
krk
To:
The Regional Director of Municipality,
Tirunelveli, Tirunelveli District.
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W.P.(MD) No.12064 of 2018
D.KRISHNAKUMAR, J.
krk
W.P.(MD) No.12064 of 2018
and
W.M.P.(MD) No.10997 of 2018
04.08.2021
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https://www.mhc.tn.gov.in/judis/
