Madras High Court
K.Durgadevi vs The Superintendent Of Police on 5 August, 2021
W.A.No.1883/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.08.2021
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.A.No.1883 of 2021
K.Durgadevi .. Appellant/Petitioner
Vs.
1. The Superintendent of Police,
Thiruvallur District.
2. The Director General of Police,
Dr.Radhakrishnan Salai,
Mylapore, Chennai-4.
3. The Secretary to Government,
Home (Police II) Department,
Fort St. George, Chennai-9. .. Respondents/Respondents
***
Prayer : Writ Appeal filed under Clause 15 of Letters Patent against the
order dated 26.04.2021 in W.P.No.18907 of 2014.
***
For Appellant : Mr.M.Muthappan
For Respondents : Mr.C.Jayaprakash,
State Government Counsel
JUDGEMENT
(Judgment was delivered by PUSHPA SATHYANARAYANA, J.)
The appellant is the writ petitioner and aggrieved by the order
dated 26.04.2021 dismissing W.P.No.18907 of 2014, wherein, the prayer
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sought for by her to quash the order of rejection of her request for
compassionate appointment was negatived, this appeal has been
instituted.
2. It is the case of the appellant/writ petitioner that her father
one Kumar, while working as Grade-II Police Constable in the Police
Department for about 10 years, died on 05.07.2007 in an accident. The
mother of the appellant pre-deceased him on 04.02.2002. They have
three female children, including the appellant and all of them were
minors then. From the date of death of parents, all the three children
were under the care and custody of their maternal uncle one K.Venu,
who had submitted an application on 30.04.2009 before the first
respondent seeking compassionate appointment to the writ petitioner.
Since the writ petitioner was a minor at that time aged 14 years, it was
rejected on 27.08.2009. Upon attaining majority, the writ petitioner
presented a representation on 16.06.2014 to the first respondent making
similar claim of compassionate appointment. The same was rejected
citing the same reason and the earlier rejection order. Thus, she filed
W.P.No.18907 of 2014 questioning the rejection order. Since it was
dismissed, she is before this Court.
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3. The learned counsel for the writ petitioner contended that the
application seeking compassionate appointment was submitted by the
guardian of the writ petitioner within six months from the date of death
of the deceased Government servant, but the same was rejected on the
ground that the writ petitioner was a minor and therefore, immediately,
after attaining majority, she filed the representation, which ought to have
been considered by the respondents, as the writ petitioner and her two
sisters were and are in indigent circumstances, having lost their parents
and living in the care of their maternal uncle with the meager family
pension. But both the respondents and the writ Court, without
appreciating all these materials, negatived the request of the writ
petitioner. Thus, he seeks to quash the said orders.
4. The learned State Government Counsel submitted that the
impugned orders were passed taking into account the guidelines issued
by the Government in respect of appointment under compassionate
ground. Since the writ petitioner is not entitled for the benefit of the
benevolent scheme, her claim was rightly rejected and the said orders
require no interference.
5. We have considered the rival submissions and perused the
materials placed before us.
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6. Admittedly, the writ petitioner was a minor at the time of
death of her father-the deceased police constable. The mother
predeceased him. The contention of the learned counsel for the appellant
is that pursuant to the rejection of the earlier application for
compassionate appointment on the ground of not attaining majority by
the claimant, the appellant submitted second application seeking
compassionate appointment after attaining majority within the period of
three years and as such, the same cannot be denied on the same and
similar ground that she was a minor at the time of death of her father.
But the learned Single Judge, in the impugned order, relying upon the
latest Government Order issued by the State Government extensively
culling out all the guidelines for appointment under compassionate
ground in G.O.Ms.No.18, Labour and Employment (Q1) Department,
dated 23.01.2020, upheld the rejection order of the respondents.
7. The learned Single Judge also relied upon the order of the
Full Bench of this Court dated 11.03.2020 in W.P.(MD).No.7016 of 2011.
It was held therein that the persons seeking compassionate appointment
must make the application without any delay and the Authority also to
consider the same within a reasonable time and as the compassionate
appointment is deviation from the regular procedure of recruitment
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intended to meet the sudden crisis occurring in the family on account of
the death of the breadwinner, any such application made has to be
considered within a reasonable period of time. The Full Bench relied upon
the judgment in Bhawani Prasad Sonkar V. Union of India & Others,
(2011) 4 SCC 209, wherein, in paragraph 20(ii), it was observed as
follows :
“(ii) An application for compassionate employment must be preferred
without undue delay and has to be considered within a reasonable period of
time.“
8. At this juncture, it is apt to refer to the judgment of the
Hon'ble Suprme Court in N.C.Santhosh V. State of Karnataka,
(2020) 7 SCC 617, wherein, it was held as follows :
"13. It is well settled that for all the government vacancies
equal opportunity should be provided to all aspirants as is
mandated under Articles 14 and 16 of the Constitution. However,
appointment on compassionate ground offered to a dependant of a
deceased employee is an exception to the said norms. In SAIL v.
Madhusudan Das (2008) 15 SCC 560, it was remarked accordingly
that compassionate appointment is a concession and not a right
and the criteria laid down in the Rules must be satisfied by all
aspirants.
14. This Court in SBI v. Raj Kumar, (2010) 11 SCC 661
while reiterating that no aspirant has a vested right to claim
compassionate appointment, declared that the norms that are in
force, when the application is actually considered, will be
applicable. The employer's right to modify the scheme depending
on its policies was recognised in this judgment. Similarly, in MGB
Gramin Bank v. Chakrawarti Singh, (2014) 13 SCC 583, this Court
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reiterated that compassionate appointment has to be considered in
accordance with the prevalent scheme and no aspirant can claim
that his case should be considered as per the scheme existing on
the date of death of the government employee.
15. However, in Canara Bank v. M. Mahesh Kumar, (2015)
7 SCC 412 in the context of major shift in policy, whereunder,
instead of compassionate appointment (envisaged by the scheme
dated 8-5-1993), ex gratia payment was proposed (under the
Circular dated 14-2-2005), the Court adopted a different
approach. Noticing the extinguishment of the right to claim
appointment, this Court held the “dying in harness scheme” which
was prevalent on the death of the employee, be the basis for
consideration.
16. A two-Judge Bench headed by Uday U. Lalit, J. noticed
the Supreme Court's view in SBI v. Raj Kumar, (2010) 11 SCC 661
and MGB Gramin Bank v. Chakrawarti Singh, (2014) 13 SCC 583
on one side and the contrary view in Canara Bank v. M. Mahesh
Kumar, (2015) 7 SCC 412, and felt the necessity of resolution of
the conflicting question on whether the norms applicable on the
date of death or on the date of consideration of application should
apply. Accordingly, in SBI v. Sheo Shankar Tewari, (2019) 5 SCC
600, the Court referred the matter for consideration by a larger
Bench so that the conflicting views could be reconciled.
17. The above discussion suggest that the view taken in
Canara Bank v. M. Mahesh Kumar, (2015) 7 SCC 412 is to be
reconciled with the contrary view of the coordinate Bench, in the
two earlier judgments. Therefore, notwithstanding the strong
reliance placed by the appellant's counsel on Canara Bank v. M.
Mahesh Kumar, (2015) 7 SCC 412 as also the opinion of the
learned Single Judge of the Karnataka High Court in Uday Krishna
Naik v. State of Karnataka, 1999 SCC OnLine Kar 209, it cannot be
said that the appellant's claim should be considered under the
unamended provisions of the Rules prevailing on the date of death
of the government employee.
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18. In the most recent judgment in State of H.P. v. Shashi
Kumar, (2019) 3 SCC 653 the earlier decisions governing the
principles of compassionate appointment were discussed and
analysed. Speaking for the Bench, Dr D.Y. Chandrachud, J.
reiterated that appointment to any public post in the service of the
State has to be made on the basis of principles in accord with
Articles 14 and 16 of the Constitution and compassionate
appointment is an exception to the general rule. The dependants
of a deceased government employee are made eligible by virtue of
the policy on compassionate appointment and they must fulfil the
norms laid down by the State's policy.
19. Applying the law governing compassionate appointment
culled out from the abovecited judgments, our opinion on the point
at issue is that the norms, prevailing on the date of consideration
of the application, should be the basis for consideration of claim
for compassionate appointment. A dependant of a government
employee, in the absence of any vested right accruing on the
death of the government employee, can only demand
consideration of his/her application. He is, however, disentitled to
seek consideration in accordance with the norms as applicable, on
the day of death of the government employee.
20. In view of the foregoing opinion, we endorse the
Tribunal's view as affirmed N.C. Santhosh v. State of Karnataka,
2012 SCC OnLine Kar 7396 by the High Court of Karnataka to the
effect that the appellants were ineligible for compassionate
appointment when their applications were considered and the
unamended provisions of Rule 5 of the Rules will not apply to
them. Since no infirmity is found in the impugned judgments [N.C.
Santhosh v. State of Karnataka, 2012 SCC OnLine Kar 7396],
[Sayeda Farheen Banao v. State of Karnataka, 2013 SCC OnLine
Kar 6616], [Santosh v. Revenue Deptt., WP No. 28738 of 2011,
order dated 2-12-2011 (Kar)], the appeals are found devoid of
merit and the same are dismissed."
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9. From the above, it is clear that the object of the scheme is
only to provide solace and succor to the family in difficult times, the
relevancy is at that stage of time when the employee passes away. In
view of the Government Orders prevalent as on date, the appellant
cannot submit application claiming compassionate appointment, after the
expiry of three years, though she may be a minor at that time. The
appellant and her sisters are in receipt of family pension and thus, it
cannot be stated that they are in indigent circumstances. At the risk of
repetition, it is to be stated that the compassionate appointment cannot
be claimed as a matter of right, that too, after seven years from the date
of death of the deceased Government servant.
10. The writ Court also rightly dismissed the writ petition and the
impugned order requires no interference. Accordingly, the Writ Appeal is
dismissed. In the facts and circumstances of the case, there shall be no
order as to costs.
(P.S.N., J.) (K.R., J.)
05.08.2021
Index : Yes / No
Internet: Yes
gg
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To
1. The Secretary to Government,
Home (Police II) Department,
Fort St. George, Chennai-9.
2. The Director General of Police,
Dr.Radhakrishnan Salai,
Mylapore, Chennai-4.
3. The Superintendent of Police,
Thiruvallur District.
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W.A.No.1883/2021
PUSHPA SATHYANARAYANA, J.
AND
KRISHNAN RAMASAMY, J.
gg
W.A.No.1883 of 2021
05.08.2021
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