Madras High Court
T.Venkatesh vs The Director General Of Police on 9 February, 2021
W.P.(MD)No.21929 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.(MD)No.21929 of 2016
and
W.M.P.(MD).No.15275 of 2016
T.Venkatesh ... Petitioner
Vs.
1.The Director General of Police,
Chennai.
2.The Commissioner of Police,
Chennai. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, calling for the records
pertaining to the impugned proceedings issued by the first respondent in
Na.Ka.160731/C.A.1/2010 and quash the same and consequently direct
the respondents to appoint the petitioner in any suitable post on
compassionate grounds due to the death of his father K.Thavasi.
1/14
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W.P.(MD)No.21929 of 2016
For Petitioner : Mr.Mohammed Ayub
for M/s.Veera Associates
For Respondents : Mr.M.Muthugeethayan
Special Government Pleader
ORDER
This writ petition is filed for a writ of certiorarified mandamus, to
call for the records pertaining to the impugned proceedings issued by the
first respondent in Na.Ka.160731/C.A.1/2010 dated 10.07.2010 and
quash the same and consequently direct the respondents to appoint the
petitioner in any suitable post on compassionate grounds due to the death
of his father K.Thavasi.
2. By consent of both parties, the writ petition is taken up for final
disposal.
3. Heard the learned counsel appearing for the petitioner and
Mr.M.Muthugeethayan, learned Special Government Pleader, who takes
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W.P.(MD)No.21929 of 2016
notice for the respondents.
4. The case of the petitioner is that the petitioner's father, namely,
K.Thavasi, worked as a Head Constable under the second respondent
and while he was in service, due to harness, he died on 17.01.2005
leaving behind the petitioner's mother, the petitioner and his sister.
Initially, the petitioner's sister gave an application on 10.11.2005 before
the second respondent seeking for an appointment under compassionate
ground and the said application has been submitted well within the time
of three years for which the second respondent sent a communication
dated 26.04.2010 to her to appear before the Selection Committee with
all necessary documents and certificates on 08.06.2010. On the said
date, the petitioner appeared before the second respondent and requested
to provide any suitable appointment to him instead of his sister, since she
got married. However, the said application was rejected on 10.07.2010
on the ground that as per G.O.Ms.560 Employee and Employment
Department, dated 03.08.1977, married daughter is not entitled for
compassionate appointment and as per G.O.Ms.No.120, Labour and
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W.P.(MD)No.21929 of 2016
Employment Department, dated 26.06.1995, the petitioner is not entitled
as the petitioner's application is beyond three years from the date of
death of the petitioner's father. Challenging the said rejection order, this
writ petition has been filed.
5. The learned counsel for the petitioner would submit that the
impugned order was passed on 10.07.2010 inadvertently only on the
ground that the application was not made within three years from the date
of death of the employee. As the petitioner was a minor at the time of
the death of his father, he could not submit any application for
compassionate appointment within three years. Just because there is a
delay in submitting the application for the said reason by the petitioner
for compassionate appointment, it cannot be said that the family of the
deceased Government servant has got over the indigent circumstances.
Hence, he prays for allowing this writ petition.
6. Per contra, the learned Special Government Pleader would
submit that though initial application was made by the petitioner's sister,
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W.P.(MD)No.21929 of 2016
however, she is not interested to secure the job on compassionate
appointment and further she made a request to convert the application in
favour of her brother, which is impermissible, unless the petitioner
satisfied the eligibility criteria, as the very purpose of giving
compassionate ground appointment is only to help the family of the
deceased Government Servant to tide over the sudden indigent
circumstances unexpectedly created by the sudden demise of the
Government Servant who died in harness and the spirit of the scheme on
compassionate ground appointment is to relieve the distress of a family
as an emergency measure. Further, he submitted that the impugned order
was passed in the year 2010 and challenging the said impugned order, the
present writ petition was filed in the year 2016 without proper
explanation for delay in filing the present writ petition. In this regard,
reliance was placed on the decision of 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. Hence, this writ petition has to be dismissed
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W.P.(MD)No.21929 of 2016
on the ground of lapses.
7. 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
9312.2020, considering the decision of the Hon'ble 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?"
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
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W.P.(MD)No.21929 of 2016
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
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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. 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
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W.P.(MD)No.21929 of 2016
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 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.”
8. 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 be in accordance with the Government Orders/the
Scheme framed for the said purpose by the employer.
9. On the above proposition of law, it is evident that the very
concept of giving a compassionate appointment is for the bereaved
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W.P.(MD)No.21929 of 2016
family to tide over the financial difficulties faced by it due to the
untimely death of the breadwinner.
10. 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.
11. 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
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evident from G.O.Ms.No.18 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.
12. In the case on hand, the application submitted by the
petitioner's sister has not persuaded by her. However, the said application
came for consideration on 08.06.2010 and it is alleged that on the said
date, ie., 08.06.2010, the petitioner made a request to the second
respondent to provide suitable appointment to him instead of his sister.
However, there is no proof available for such a request was made on the
said date. Thereafter, the said application was rejected on 10.07.2010 on
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W.P.(MD)No.21929 of 2016
the ground of laches, which was challenged before this Court in the year
2016, ie., after a lapse of five years and there is no proper explanation for
such delay in filing the present writ petition. The purpose of providing
employment on compassionate basis is to mitigate the hardship of the
family which has arisen due to the death of the employee and such
appointment therefore has to be provided immediately to ensure that the
family tide over the sudden crisis which has arisen due to the death of the
employee. The dependent of a deceased employee cannot be permitted to
convert a tragedy into a bonanza. If the compassionate appointment is
treated as one more source of recruitment, then it will be violative of
Article 16 of the Constitution of India. It is settled by various decisions
of the Hon'ble Supreme Court, an appointment on compassionate basis is
a concession given by the employer to help the family of the deceased,
who has died in harness, to get over the immediate financial crisis. The
scheme under which compassionate appointment can be given to be
construed strictly. The ground on which the petitioner claims an
appointment on compassionate grounds is that taking into consideration
of the earlier application sent by his sister, the petitioner may be
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W.P.(MD)No.21929 of 2016
considered for compassionate appointment, which is not permissible in
law.
13. For the reasons aforesaid, this Court is not inclined to interfere
with the order passed by the first 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. Consequently, connected miscellaneous petition is
closed.
09.02.2021
Index:Yes/No
Internet:Yes/No
PJL
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.P.(MD)No.21929 of 2016
M.DHANDAPANI, J.
PJL
To
1.The Director General of Police,
Chennai.
2.The Commissioner of Police,
Chennai.
W.P.(MD)No.21929 of 2016
09.02.2021
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