Madras High Court
M.Sridharan vs The General Manager on 19 January, 2021
W.P.(MD) No.9443 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.01.2021
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P.(MD)No.9443 of 2017
and W.M.P.(MD)No.7177 of 2017
M.Sridharan ... Petitioner
Vs
1.The General Manager,
State Express Transport Corporation
Tamil Nadu Limited,
Pallavan Salai, Chennai-600 002.
2.The Deputy Manager (O&A),
State Express Transport Corporation
Tamil Nadu Limited,
Pallavan Salai, Chennai-600 002.
3.The Branch Manager,
State Express Transport Corporation,
Tamil Nadu Limited,
Melur Main Road,
K.K.Nagar, Madurai-20 ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the
records in pursuant to the impugned order passed by the first
respondent in his Letter No.Dip1641/Ma.Va.2/SETCTN/2017, dated
30.01.2017 and quash the same and consequently, direct the
respondents to provide employment to the petitioner on
compassionate grounds based on the educational qualification in the
respondents corporation.
1/13
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W.P.(MD) No.9443 of 2017
For Petitioner : Mr.V.Muthukamatchi
For Respondents : Mr.K.Sathiyasingh
standing counsel
ORDER
This writ petition is filed to issue a Writ of Cerrtiorarified
Mandamus, to quash the impugned order passed by the first
respondent in Letter No.Dip1641/Ma.Va.2/SETCTN/2017, dated
30.01.2017 and consequently, direct the respondents to provide
employment to the petitioner on compassionate grounds based on the
educational qualification in the respondent/Corporation.
2.The case of the petitioner is that the his father, viz., N.Mani
was employed as Conductor in State Express Transport Corporation
Tamil Nadu Limited, Madurai Region. The petitioner's father died in
harness on 31.05.2005, leaving behind the petitioner and his mother
and sister as his legal heirs. The petitioner further averred that the
petitioner's father was the only breadwinner of the family. On the
earlier occasion, the petitioner's mother made a representation to the
respondents on 20.06.2005 seeking compassionate appointment and
the said representation was not consiered. Thereafter, the petitioner's
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W.P.(MD) No.9443 of 2017
mother made another application on 13.09.2011 for providing
compassionate appointment for herself. However, no reply was given
by the respondents. Thereafter, the petitioner submitted an
application on 19.01.2017 for compassionate appointment along with
necessary documents and the same was received by the
respondent/Corporation on 23.01.2017. However, without properly
appreciating the said representation it was rejected on 30.01.2017 on
the ground of dealy. Challenging the same, the petitioner filed the
present writ petition with the above said prayer.
3.The learned counsel appearing for the petitioner, while
reiterating the submissions raised in the grounds filed in support of
the petition, submitted that the application of the petitioner has not
been considered in accordance with law and, therefore, this Court
may issue a direction to the respondents to pass orders on the said
representation within a particular time frame.
4.Per contra, learned standing counsel appearing for the
respondents, while did not refute the contention put forth by the
petitioner, however submitted that though the petitioner has averred
that his mother filed a representation for compassionate appointment
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W.P.(MD) No.9443 of 2017
for herself in the year 2005 and 2011, however, no documentary proof
evidencing the said representation has been filed. The application for
compassionate appointment has been filed by the petitioner after a
long lapse of 12 years, in the year 2017, when the petitioner's father
died in the year 2005. Since the said representation was filed beyond
the period of three years, which is the cut-off limit for considering the
case for compassionate appointment, the respondents have rightly
rejected the case of the petitioner and, therefore, no interference is
warranted with the said order.
5.Heard the learned counsel for the petitioner , the learned
Standing counsel for the respondents and perused the materials
available on record.
6. In W.P. (MD) Nos.7016 of 2011, etc. Batch, vide order
dated 11.3.2020, a learned single Judge of this Court, in view of of the
conflicting views in relation to compassionate appointment, made the
following reference for consideration by a larger Bench :-
"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
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W.P.(MD) No.9443 of 2017
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?"
7.Tracing the advent of compassionate appointment and the
factors that are to be borne 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
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W.P.(MD) No.9443 of 2017
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. State of Haryana (1994) 4 SCC
138).
8.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.
9.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.
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W.P.(MD) No.9443 of 2017
10.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 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.”
11.In Chief Commissioner, Central Excise and Customs,
Lucknow v. Prabhat Singh ((2013) 1 UPLBEC 357), the Supreme
Court has addressed words of caution in the following observations:
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W.P.(MD) No.9443 of 2017
“We are constrained to record that even
compassionate appointments are regulated by norms.
Where such norms have been laid down, the same
have to be strictly followed… The very object of
making provision for appointment on compassionate
ground, is to provide succor to a family dependent on
a government employee, who has unfortunately died
in harness. On such death, the family suddenly finds
itself in dire straits, on account of the absence of its
sole bread winner. Delay in seeking such a claim, is
an anti thesis, for the purpose for which
compassionate appointment was conceived. Delay in
raising such a claim, is contradictory to the object
sought to be achieved…
Courts and Tribunals should not fall prey to any
sympathy syndrome, so as to issue directions for
compassionate appointments, without reference to
the prescribed norms. Courts are not supposed to
carry Santa Claus's big bag on Christmas eve, to
disburse the gift of compassionate appointment, to
all those who seek a court's intervention. Courts and
Tribunals must understand, that every such act of
sympathy, compassion and discretion, wherein
directions are issued for appointment on
compassionate ground, could deprive a really needy
family requiring financial support, and thereby, push
into penury a truly indigent, destitute and
impoverished family. Discretion is therefore ruled
out. So are, misplaced sympathy and compassion.”
(Emphasis Supplied)
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W.P.(MD) No.9443 of 2017
12.From the conceptual proposition of law laid down by the Full
Bench as also the decision of the Hon'ble Apex Court, 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 and that the circumstances in which
the family is placed is of primary concern while deciding on giving
compassionate appointment and discretion should not be a misplaced
sympathy or compassion.
13.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. Further, indigency is one of the
relevant factors to be borne in mind while deciding on providing
compassionate appointment.
14.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
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W.P.(MD) No.9443 of 2017
opportunity to other eligible persons to compete for public
employment.
15.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 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
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the family would by itself be an attributing factor to deny
compassionate appointment.
16.In the case on hand, the petitioner's father died leaving
behind the petitioner his mother as his legal heirs. It is the case of
the petitioner that his mother had given representation for
compassionate appointment immediately after the death of his father,
but no orders have been passed on the said representation. Though
such an averment is made, however, there is no documentary proof in
support of the said averment. Such being the case, the application of
the petitioner for compassionate appointment not within the threshold
period of three years and further the indigent circumstances in which
the family is suffering having not been established and further the fact
that the longer the delay, the greater the sustenance of the family not
to be ruled out, this Court is of the considered opinion that the
respondents, on proper application of mind, has rejected the claim for
compassionate appointment, which does not call for any interference
from this Court.
17.In the light of the above decisions and also considering the
fact that the petitioner's family is not in a penurious condition, the
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W.P.(MD) No.9443 of 2017
petitioner is not eligible for compassionate appointment. Therefore,
the impugned order passed by the 1st respondent rejecting the request
of the petitioner for compassionate appointment is correct and
sustainable in law. Accordingly, the writ petition is dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
19.01.2021
Internet:Yes/No
Index:Yes/No
sji
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.9443 of 2017
M.DHANDAPANI, J.
sji
W.P.(MD) No.9443 of 2017
19.01.2021
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