Madras High Court

K.B.Devaraj vs The Director Of School Education on 10 December, 2021

                                                                                     W.P. No. 28923 of 2010

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 10.12.2021

                                                          CORAM

                                  THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU

                                                    W.P. No. 28923 of 2010
                K.B.Devaraj                                                                 ... Petitioner
                                                             -vs-
                1. The Director of School Education,
                   Chennai - 600 006.

                2. The District Educational Officer,
                   Coonoor,
                   The Nilgiris District.

                3. The Secretary,
                   Sri Sarguru Adivasi High School and Primary School,
                   Coonoor,
                   The Nilgiris District.

                4. J.B.Sivakumar                                                         ... Respondents

                Prayer:- Writ Petition filed under Article 226 of the Constitution of India, 1950,
                praying to issue a Writ of Mandamus, directing the Third Respondent to cancel
                the appointment of the Fourth Respondent and to appoint the Petitioner in the
                place of the Fourth Respondent on compassionate grounds.

                                   For Petitioner      : Mr. R.Ganesan for M/s. C.S.Associates

                                   For Respondents     : Mr. C.Harsha Raj,
                                                         Additional Government Pleader (for R1 & R2)

                                                        Mr. R.Saravanan
                                                        for Mr. T.Saikrishnan (for R3)


https://www.mhc.tn.gov.in/judis
                1/11
                                                                               W.P. No. 28923 of 2010

                                                   No appearance (for R4)

                                                   ORDER

(through video conference)

Heard R. Ganesan, Learned Counsel appearing for the Petitioner,

Mr. C.Harsha Raj, Learned Additional Government Pleader appearing for the

First and Second Respondents and Mr. R.Saravanan, Learned Counsel appearing

for the Third Respondent and perused the materials placed on record, apart from

the pleadings of the parties.

2. The father of the Petitioner, A.K. Belliraj, while working as Secondary

Grade Teacher in the School of the Third Respondent, had died in service on

09.11.1988 and the Petitioner has made an application for compassionate

appointment in the year 1993. The Third Respondent expressed its inability to

consider such application as one Pugalendhi, who was the son of another

employee who died while in service in 1989, had been given appointment on

compassionate grounds in the year 1991 itself. The Writ Petition in W.P.

No. 1993 of 2000 filed by the Petitioner long thereafter challenging the

appointment of the said Pugalendhi was dismissed by this Court by Order dated

21.04.2003 in W.P. No. 19931 of 2000. The Petitioner now challenges the

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W.P. No. 28923 of 2010

appointment of the Fourth Respondent who had been selected as Office Assistant

in furtherance to notification calling upon the eligible candidates to attend

interview on 18.05.2010 for that post.

3. The contention of the Petitioner is that such appointment of Office

Assistant ought not to have been made without considering the case of the

Petitioner on compassionate grounds to that post, but it is not possible to accept

the same for various reasons. In the first place, it requires to be pointed out that

the Petitioner has not produced any scheme of compassionate appointment in

justification of the claim made. Secondly, inasmuch as this Court in the Order

dated 21.04.2003 in W.P. No. 19931 of 2000 has already rejected the claim of

the Petitioner for consideration for appointment on compassionate grounds, it is

not permissible in law for the Petitioner to re-agitate the same matter under the

guise of impeaching a regular appointment made.

4. That apart, the legal position regarding appointment to the public services

on compassionate grounds has been lucidly summarized by the Hon'ble Supreme

Court of India in Umesh Kumar Nagpal -vs- State of Haryana [(1994) 4 SCC

138], as follows:-

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W.P. No. 28923 of 2010

“2. The question relates to the considerations which should

guide while giving appointment in public services on

compassionate ground. It appears that there has been a good deal

of obfuscation on the issue. As a rule, appointments in the public

services should be made strictly on the basis of open invitation of

applications and merit. No other mode of appointment nor any

other consideration is permissible. Neither the Governments nor

the public authorities are at liberty to follow any other procedure

or relax the qualifications laid down by the rules for the post.

However, to this general rule which is to be followed strictly in

every case, there are some exceptions carved out in the interests of

justice and to meet certain contingencies. One such exception is in

favour of the dependants of an employee dying in harness and

leaving his family in penury and without any means of livelihood.

In such cases, out of pure humanitarian consideration taking into

consideration the fact that unless some source of livelihood is

provided, the family would not be able to make both ends meet, a

provision is made in the rules to provide gainful employment to

one of the dependants of the deceased who may be eligible for such

employment. The whole object of granting compassionate https://www.mhc.tn.gov.in/judis

W.P. No. 28923 of 2010

employment is thus to enable the family to tide over the sudden

crisis. The object is not to give a member of such 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. The posts in Classes III and IV are the lowest posts in non-

manual and manual categories and hence they alone can be

offered on compassionate grounds, the object being to relieve the

family, of the financial destitution and to help it get over the

emergency. The provision of employment in such lowest posts by

making an exception to the rule is justifiable and valid since it is

not discriminatory. The favourable treatment given to such

dependant of the deceased employee in such posts has a rational

nexus with the object sought to be achieved, viz., relief against

destitution. No other posts are expected or required to be given by

the public authorities for the purpose. It must be remembered in https://www.mhc.tn.gov.in/judis

W.P. No. 28923 of 2010

this connection that as against the destitute family of the deceased

there are millions of other families which are equally, if not more

destitute. The exception to the rule made in favour of the family of

the deceased employee is in consideration of the services rendered

by him and the legitimate expectations, and the change in the

status and affairs, of the family engendered by the erstwhile

employment which are suddenly upturned.”

Recapitulating that compassionate appointment is an exception to the general

rule, the Hon'ble Supreme Court of India in State of Jammu and Kashmir -vs-

Sajad Ahmed Mir [(2006) 5 SCC 766], has held as follows:-

"11. ....Normally, an employment in the Government or other

public sectors should be open to all eligible candidates who can

come forward to apply and compete with each other. It is in

consonance with Article 14 of the Constitution. On the basis of

competitive merits, an appointment should be made to public

office. This general rule should not be departed from except where

compelling circumstances demand, such as, death of the sole

breadwinner and likelihood of the family suffering because of the

setback. Once it is proved that in spite of the death of the

breadwinner, the family survived and substantial period is over, https://www.mhc.tn.gov.in/judis

W.P. No. 28923 of 2010

there is no necessity to say “goodbye” to the normal rule of

appointment and to show favour to one at the cost of the interests

of several others ignoring the mandate of Article 14 of the

Constitution.”

Again, the Hon'ble Supreme Court of India in Local Administration

Department -vs- M. Selvanayagam [(2011) 13 SCC 42], has held as follows:-

"11. It has been said a number of times earlier but it needs to be

recalled here that under the scheme of compassionate appointment,

in case of an employee dying in harness one of his eligible

dependants is given a job with the sole objective to provide

immediate succour to the family which may suddenly find itself in

dire straits as a result of the death of the breadwinner. An

appointment made many years after the death of the employee or

without due consideration of the financial resources available to

his/her dependants and the financial deprivation caused to the

dependants as a result of his death, simply because the claimant

happened to be one of the dependants of the deceased employee

would be directly in conflict with Articles 14 and 16 of the

Constitution and hence, quite bad and illegal. In dealing with cases

of compassionate appointment, it is imperative to keep this vital https://www.mhc.tn.gov.in/judis

W.P. No. 28923 of 2010

aspect in mind.

12. Ideally, the appointment on compassionate basis should be

made without any loss of time but having regard to the delays in

the administrative process and several other relevant factors such

as the number of already pending claims under the scheme and

availability of vacancies, etc. normally the appointment may come

after several months or even after two to three years. It is not our

intent, nor it is possible to lay down a rigid time-limit within which

appointment on compassionate grounds must be made but what

needs to be emphasised is that such an appointment must have

some bearing on the object of the scheme.

13. In this case the respondent was only 11 years old at the time

of the death of his father. The first application for his appointment

was made on 2-7-1993, even while he was a minor. Another

application was made on his behalf on attaining majority after 7

years and 6 months of his father's death. In such a case, the

appointment cannot be said to subserve the basic object and

purpose of the scheme. It would rather appear that on attaining https://www.mhc.tn.gov.in/judis

W.P. No. 28923 of 2010

majority he staked his claim on the basis that his father was an

employee of the Municipality and he had died while in service.

14. In the facts of the case, the municipal authorities were

clearly right in holding that with whatever difficulty, the family of

Meenakshisundaram had been able to tide over the first impact of

his death. That being the position, the case of the respondent did

not come under the scheme of compassionate appointments."

In a recent decision in Government of India -vs- P.Venkatesh (Judgment dated

01.03.2019 in Civil Appeal No. 2425 of 2019), the Hon'ble Supreme Court of

India has reiterated the legal position as follows:-

" ....Compassionate appointment, it is well-settled, is intended

to enable the family of a deceased employee to tide over the crisis

which is caused as a result of the death of an employee, while in

harness. The essence of the claim lies in the immediacy of the

need...."

On a conspectus of the legal principles in the aforesaid legal decisions coupled

with the fact situation borne out of the record, it is apparent that the Petitioner

had been able to tide over the crisis with the passage of time for more than four

decades and if any indulgence is now shown at this distance of time brushing https://www.mhc.tn.gov.in/judis

W.P. No. 28923 of 2010

aside those germane aspects, it would unwittingly tantamount to unduly

favouring the Petitioner to the detriment of other citizens whose gravity of

suffering may be comparatively of higher magnitude, which cannot be

countenanced.

5. In that view of the matter, it is not possible to interfere with the

appointment of the Fourth Respondent to the post of Office Assistant in the

School of the Third Respondent.