Madras High Court
K.Shanmugasundaram vs The Secretary on 8 February, 2021
W.P.(MD).No.23785 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
Writ Petition (MD)No.23785 of 2017
K.Shanmugasundaram
... Petitioner
Vs.
1.The Secretary,
Department of Milk and Dairy Development,
Secretariat,
St. George Fort,
Chennai.
2.The General Manager,
Aavin,
Sathamangalam,
Madurai 625 020.
... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus to call for the records relating to
the impugned order passed by the second respondent in Letter No.Na.Ka.No.
3707/gzpf;FO-2/2017, dated 01.08.2017 and quash the same as arbitrary and
illegal and consequently direct the respondents to give employment on
compassionate grounds to the petitioner.
http://www.judis.nic.in
1/11
W.P.(MD).No.23785 of 2017
For Petitioner : Ms.R.Murugeswari
For R1 : Mr.D.Muruganantham
Additional Government Pleader
For R2 : Mr.E.Marees Kumar
Standing counsel
ORDER
This writ petition has been filed challenging the impugned order passed
by the second respondent in Letter No.Na.Ka.No.3707/gzpf;FO2/2017, dated
01.08.2017 and to quash the same and consequently direct the respondents to
give employment to the petitioner on compassionate ground.
2. The case of the petitioner is that his father was served as a Driver in
the second respondent Office and died in harness on 09.10.2000, leaving
behind the petitioner, wife, daughter, father and mother as legal heirs.
Therefore, the petitioner's mother made an application for compassionate
appointment to the second respondent on 11.01.2001. However, the second
respondent has rejected the same. Thereafter, the petitioner has made an
application on 27.06.2017, seeking compassionate appointment to him along
with all the relevant documents, after completing his graduation. But the said
application was rejected by the second respondent on 01.08.2017, on the
ground that the application was made after the period of three years from the
http://www.judis.nic.in
W.P.(MD).No.23785 of 2017
date of death of the petitioner's father. Challenging the same, the present writ
petition has been filed.
3. The learned counsel appearing for the petitioner would submit that the
order impugned in this writ petition is per se illegal on the ground that the
petitioner's mother has submitted the application immediately after the death of
the petitioner's father i.e., on 11.01.2001. However, the said application was
rejected and in pursuance of the earlier application, the petitioner has made the
application on 27.06.2017, for compassionate appointment. He would further
submit that at the time of death of the petitioners' father, he is a minor and
without considering the financial position of the petitioner's family, the said
application was rejected and the petitioner's mother also passed away on
20.12.2020. Hence, he prays for allowing this writ petition.
4. Per contra, the learned Additional Government Pleader appearing for
the first respondent would submit that initially the petitioner's mother has
submitted the application in the year 2001 for compassionate appointment, but
she has not produced the particulars. Thereafter, the petitioner has submitted
the application only on 27.06.2017, nearly 17 years after the death of the
petitioner's father. He would further submit that as per the G.O.(Ms.)No.120,
http://www.judis.nic.in
W.P.(MD).No.23785 of 2017
Labour and Employment Department, dated 26.06.1995, the application for
compassionate appointment should be made within three years from the date of
death of the Government Servant. Hence, the second respondent has rejected
the petitioner's application for compassionate appointment on the ground of
delay and he prays for dismissal.
5. Heard the learned counsel for the petitioner, learned Additional
Government Pleader appearing for the first respondent, the learned Standing
counsel for the third respondent and perused the materials available on record.
6. In the case on hand, it is not in dispute that the petitioner's father
passed away in the year 2000 and initially the petitioner's mother has submitted
the application for compassionate appointment in the year 2001. However, she
has not submitted the particulars required by the second respondent. Hence, the
second respondent has rejected the same. At the time of death of the petitioner's
father, the petitioner is a minor and after completing his degree, he has
submitted the application seeking employment to him and the said application
was rejected. As per the Scheme, the application for compassionate
appointment has to be made within a period of three years. In the present case,
it is evident that the petitioner had applied beyond the prescribed period of
http://www.judis.nic.in
W.P.(MD).No.23785 of 2017
three years and the petitioner's mother also not pursued the earlier application at
the relevant point of time.
7. Further, the Full Bench of this Court in W.P. (MD)Nos.7016 of 2011,
etc. Batch, vide order dated 11.3.2020 has held that the outer limit for
consideration of a candidature for compassionate appointment is only three
years and that too subject to the scheme that is in existence.
8. This Court, while dealing with a similar case in M.Vigneswaran – Vs
– Govt. of Tamil Nadu (W.P. No.25231 of 2014), vide order dated 09.12.2020,
considering the decision of the Full Bench on the issue of compassionate
appointment, held as under :-
“13. ....... In W.P. (MD)Nos.7016 of 2011, etc. Batch, vide order
dated 11.3.2020, on a reference made by the learned single Judge
of this Court relating to conflicting views in relation to
compassionate appointment, the matter was placed before the Full
Bench. The reference made to the Full Bench is as under :-
"Whether the view taken in A.Kamatchi's case holding that
an application for compassionate appointment made even
beyond three years of the death of the deceased needs
consideration, is the correct law or the judgment of the
Division Bench in N.Renugadevi's case, where a
contradictory view has been taken, is the correct law?"
http://www.judis.nic.in
W.P.(MD).No.23785 of 2017
Tracing the lineage on the advent of compassionate
appointment and the factors that are to be had in mind, while
considering a case of compassionate appointment, the Full
Bench sculpted the factors that needs to be taken into
consideration while looking at a case relating to grant of
compassionate appointment and for better understanding the
same is extracted hereunder :-
(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) An application for compassionate employment must be
preferred without undue delay and has to be considered
within a reasonable period of time.
(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.
(iv) Compassionate employment is permissible only to one
of the dependents of the deceased/incapacitated employee viz.
parents, spouse, son or daughter and not to all relatives, and
such appointments should be only to the lowest category that
is Class III and IV posts. (Refer Umesh Kumar Nagpal Vs.
http://www.judis.nic.in
W.P.(MD).No.23785 of 2017
State of Haryana (1994) 4 SCC 138).
15. From the above, it is unambiguously clear that
application for compassionate appointment should be made
without undue delay and it should be considered strictly in
accordance with the governing scheme and no discretion is
vested with the authority and that the concept of
compassionate appointment is only to meet the sudden crisis
that has befallen the family on the death of the breadwinner.
16. From the above the main ingredient for considering a
case for compassionate appointment is that it is only for the
purpose of meeting the sudden crisis that has occurred due to
the untimely death of the breadwinner. It is not that in all
cases where the breadwinner breathes his last in harness,
compassionate appointment, at any point of time, ought to be
given as a matter of right.
17. The Full Bench, in the above said decision, after
discussing the various Government Orders and also the laws
propounded on the subject by the High Court as well as by the
Hon'ble Apex Court, answered the reference in the following
terms :-
“In view of the above, the reference is answered as under:-
a) Appointment on compassionate basis has to be strictly
followed in accordance with the relevant G.O.'s or the scheme
that has been framed by the employer. Any deviation from the
scheme is not permissible.
b) In view of the above the judgment of the Division Bench
in E.Ramasamy Vs. Tamil Nadu Electricity Board and the
Secretary to Government Vs. Renugadevi, lays down the
correct law and the judgment of the Division Bench dated
http://www.judis.nic.in
W.P.(MD).No.23785 of 2017
06.08.2013 in A.Kamatchi Vs. The Chairman, Tamil Nadu
Electricity Board, which is contrary to the scheme framed by
the Tamil Nadu Electricity Board does not lay down the
correct proposition. Reference is answered accordingly.”
9. From the conceptual proposition of law laid down by the Full Bench,
it is implicitly clear that the appointment on compassionate basis should be
strictly in accordance with the Government Orders/the Scheme framed for the
said purpose by the employer.
10. On the above proposition of law, it is evident that the very concept of
giving a compassionate appointment is for the bereaved family to tide over the
financial difficulties faced by it due to the untimely death of the breadwinner.
11. It should not be lost sight of that appointments to public offices have
to comply with the requirements of Articles 14 and 16 of the Constitution of
India. Compassionate appointment is in the nature of an exception to the
ordinary norm of allowing equality of opportunity to other eligible persons to
compete for public employment.
http://www.judis.nic.in
W.P.(MD).No.23785 of 2017
12. A person in penury or distress will not take long to survive the
vagaries of penury for seeking information of such benefits. If a dependent
who sleeps over and does not make any effort by the reason of his own
incapacity, which also includes the dependent-claimant not having attained the
age of majority, such lapse of time on the part of the claimant will definitely
lead to dilute the immediacy of the requirement. The time spent to attain
majority cannot be a ground for claiming compassionate appointment.
Indigency is the need that needs to be established, even within the threshold
limit of three years, as is also evident from G.O. (Ms.) No.18, dated 23.01.2020,
to decide on providing compassionate appointment. Holistically considering,
the period of three years for moving an application for compassionate
appointment is provided, which means that if the dependent is only about 15
years of age, he/she can apply immediately after attaining the age of majority.
However, the lower the age of the dependent would not be an attributing factor
to extend the period, as such elasticity would have no ends to meet. Further, it
should also not be be out of context to state that the longer the period, the
sustenance of the members of the family would by itself be an attributing factor
to deny compassionate appointment.
http://www.judis.nic.in
W.P.(MD).No.23785 of 2017
13. For the reasons aforesaid, this Court is not inclined to interfere with
the order passed by the second respondent as no case has been made out by the
petitioner to substantiate his grievance. Accordingly, this Writ Petition, being
devoid of merits, is dismissed. However, there shall be no order as to costs.
08.02.2021
akv
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.
To
1.The Secretary,
Department of Milk and Dairy Development,
Secretariat,
St. George Fort,
Chennai.
2.The General Manager,
Aavin,
Sathamangalam,
Madurai 625 020.
M.DHANDAPANI,J.
http://www.judis.nic.in
W.P.(MD).No.23785 of 2017
akv
Writ Petition (MD)No.23785 of 2017
08.02.2021
http://www.judis.nic.in
