Madras High Court
The State Of Tamil Nadu vs S.Sheeba Priyadharsini on 3 December, 2021
W.A(MD)No.2123 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.12.2021
CORAM:
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
W.A(MD)No.2123 of 2021
and
C.M.P(MD)No.9895 of 2021
1.The State of Tamil Nadu,
Rep. by its Secretary,
Department of School Education,
Fort St. George, Chennai – 600 009.
2.The Director of School Education,
College Road, Chennai – 600 006.
3.The Joint Director of School Education,
Department of School Education,
College Road, Chennai – 600 006.
4.The Chief Educational Officer,
Virudhunagar District.
5.The District Educational Officer,
Virudhunagar District.
6.The Headmistress,
Government Higher Secondary School,
Naduvapatti, Virudhunagar District.
... Appellant / Respondents
Vs.
S.Sheeba Priyadharsini ... Respondent/Writ Petitioner
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent, against
the order dated 06.07.2021 passed in W.P(MD)No.8058 of 2021.
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W.A(MD)No.2123 of 2021
For Appellants : Mr.M.Siddharthan,
Additional Government Pleader
For Respondents : Mr.K.Ragadeeshkumar for
M/s.Isaac Chambers
JUDGMENT
(Judgment of the Court was delivered by
PUSHPA SATHYANARAYANA, J.)
The Writ Appeal is preferred, challenging the order dated
06.07.2021 passed in W.P(MD)No.8058 of 2021.
2. This is an unfortunate case of a legal heir of the deceased
Government employee who died in harness and sought for appointment
on compassionate grounds. When the writ Court had allowed the writ
petition, this appeal is preferred by the Government.
3. The writ petitioner is the daughter of one Mrs.John Britto, who
died on 21.11.2009 while serving as a Teacher. She had left behind her
husband, son and the petitioner as legal heirs. After her death, on
02.03.2012, the petitioner had applied seeking an appointment on
compassionate ground and the sixth appellant school had sent a proposal
to the fifth appellant for appointment of the writ petitioner, which was
rejected on 27.12.2012 seeking certain particulars. After these particulars
were furnished, the fifth appellant was satisfied with the same and
forwarded the proposal to the fourth appellant on 19.02.2013
recommending
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W.A(MD)No.2123 of 2021
response and no action was taken. Meanwhile, the writ
petitioner/respondent was married in the year 2014 and became a widow
when she lost her husband in an accident in 2016. She also has a child.
While so, the fourth appellant on 16.05.2019 forwarded the proposal to
the third appellant along with recommendation for appointment of the writ
petitioner on compassionate grounds. However, the fourth appellant
rejected the request of the petitioner on 20.11.2020 which was assailed in
the writ petition.
4. Heard the learned counsel appearing on either side and perused
the materials available on record.
5. The appellants failed to see that on the date when the mother of
the writ petitioner died what was the financial position of the family and
whether they were entitled for compassionate appointment. The delay
and the time taken by the appellants cannot be counted to their
advantage to reject the claim of the writ petitioner.
6. The writ Court had specifically found that on the date of death of
the mother, the brother of the petitioner was not employed and he had
given consent for the petitioner to take up the appointment on
compassionate ground. The G.O.Ms.No.18, Labour and Employment (Q1)
Department, dated 23.01.2020, enables a widowed daughter of the
deceased
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W.A(MD)No.2123 of 2021
In this case, the District Educational Officer, the fifth respondent herein
had earlier recommended the petitioner for compassionate appointment.
It is after 11 years, they find that the brother of the petitioner was
employed. Therefore, she may not be eligible for compassionate
appointment, which is totally wrong defeating the concept of
compassionate appointment itself. When it is admitted by the appellants
that compassionate appointment is to meet the sudden crisis in the family
on account of the death of the breadwinner while in service, without
considering the financial position on the date of death of the employee
rejecting the claim after 11 years is very unfortunate. Citing the
employment of the brother after 10 years from the date of death of the
mother, cannot be a ground for rejection of employment of the petitioner.
7.In fact, in one of the writ appeals W.A(MD)No.695 of 2017(the
District Educational Officer, Cheranmahadevi, Tirunelveli District
and another vs. P.Suresh) wherein one of us is a party (Justice
P.VELMURUGAN) has held as follows:
“3.The employment of the brother or the father
receiving pension is no ground to deny Compassionate
Ground appointment to the petitioner, which he claims on
account of demise of his mother who died in harness while
functioning as a Head Mistress of a Middle School. With
regard to the allegation that the respondent was running a
medical shop, the learned Single Judge, found that there is
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W.A(MD)No.2123 of 2021
no record to substantiate the same and in the counter
affidavit, a specific denial of the said allegation has not been
made. The learned single Judge, took into consideration
the decision in the case of B.Jayakumar vs. Bharat Sanchar
Nigam Ltd., BSNL reported in 2007(6) MLJ 1293 for
allowing the writ petition.”
8.It would be relevant to advert to the Judgment of the Honourable
Supreme Court in Indian Bank and Others vs. Promila and Another
reported in (2020) 2 SCC 729, wherein while holding that the Scheme
for compassionate appointment must be decided only on the basis of
prevalent Scheme vis-a-vis the subsequent Scheme and held as follows:
“18. The question of applicability of any subsequent
Scheme really does not apply in view of judgment of this
Court in Canara Bank. Thus, it would not be appropriate to
examine the case of the respondents in the context of
subsequent Schemes, but only in the context of Scheme of
4-4-1979, the terms of which continued to be applicable even
as per the new Scheme of 5-11-1986 i.e. the Scheme
applicable to the respondents. There is no provision in this
Scheme for any ex gratia payment. The option of
compassionate appointment was available only if the full
amount of gratuity was not taken, something which was
done. Thus, having taken the full amount of gratuity, the
option of compassionate appointment really was not available
to the respondents.
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W.A(MD)No.2123 of 2021
19. We may also notice that though the subsequent
Schemes were not applicable, even if benefit was sought to
be given of those Schemes, initial non-disclosure and
subsequent disclosure by Respondent 1, of her employment
and her emoluments would disentitle her under those
Schemes, too. Thus, when the appellant was calling upon the
respondents to apply under the subsequent Schemes, that
could have been beneficial to the respondents only if they
were entitled to any of the benefits under that Scheme. That
could not happen because the benchmark provided in those
subsequent Schemes took the emoluments of respondents
beyond the prescribed limit, so as to disentitle them from
both, compassionate employment and ex gratia payment.”
9. In a recent judgment, a Three-Judge Bench of the Hon'ble
Supreme Court in N.C.Santhosh V. State of Karnataka, 2020 (7) SCC
617, held as follows :
"19. Applying the law governing compassionate
appointment culled out from the above cited 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."
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W.A(MD)No.2123 of 2021
10. The writ Court after elaborately discussing the facts in detail,
has set aside the order impugned in the writ petition and directed the
appellants to consider the representation of the petitioner for appointment
on compassionate ground and appoint her in a suitable post within four
weeks.
11. In the light of the above discussion and in the given facts, when
there is no explanation on the side of the appellants for the delay taken
for more than a decade in considering the application of the writ
petitioner, we also find no reason to interfere with the order of the learned
Single Judge.
12. In view of the same, the order of the learned Single Judge is
confirmed and four weeks time is granted to the appellants to issue an
order of appointment to the respondent/writ petitioner to any suitable
post that she may be eligible for.
13. In fine, the writ appeal is dismissed. No Costs. Consequently,
connected Miscellaneous Petition is closed.
[P.S.N.,J] [P.V.,J.]
03.12.2021
Index :Yes/No
Internet :Yes/No
pm
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W.A(MD)No.2123 of 2021
Copy to:
1.The Secretary,
Department of School Education,
Fort St. George, Chennai – 600 009.
2.The Director of School Education,
College Road, Chennai – 600 006.
3.The Joint Director of School Education,
Department of School Education,
College Road, Chennai – 600 006.
4.The Chief Educational Officer,
Virudhunagar District.
5.The District Educational Officer,
Virudhunagar District.
6.The Headmistress,
Government Higher Secondary School,
Naduvapatti, Virudhunagar District.
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.
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W.A(MD)No.2123 of 2021
PUSHPA SATHYANARAYANA,J.
and
P.VELMURUGAN,J.
pm
JUDGMENT MADE IN
W.A(MD)No.2123 of 2021
03.12.2021
https://www.mhc.tn.gov.in/judis
