Madras High Court
Esakkiammal vs The Managing Director on 19 January, 2021
W.P.(MD) No.7938 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.7938 of 2017
Esakkiammal ... Petitioner
Vs
1.The Managing Director,
Tamil Nadu State Transport
Corporation Tirunelveli Limited,
Tirunelveli.
2.The General Manager,
Tamil Nadu State Transport,
Corporation Tirunelveli Limited,
Ranithottam, Nagercoil-629001,
Kanyakumari District. ... 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 of the second respondent proceedings in Letter No.
3345/A10/TNSTC/TVL/NAGER/2017, dated 31.03.2017 and quash the
same as illegal and further direct the respondents to appoint the
petitioner's daughter Ramya on compassionate ground.
For Petitioner : Mr.N.S.Ramakrishnadass
For Respondents : Mr.K.Sathiyasingh
Standing counsel
1/14
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W.P.(MD) No.7938 of 2017
ORDER
This Writ Petition has been filed to quash the impugned order
passed by the second respondent, dated 31.03.2017 in Letter No.
3345/A10/TNSTC/TVL/NAGER/2017 and consequently, direct the
respondents to appoint the petitioners's daughter Ramya on
compassionate ground.
2.It is the case of the petitioner that her husband was working
as Conductor in the respondent Corporation in Ranithottam Branch-I,
at Nagercoil. While he was in service, on 10.09.2003 he met with an
accident and expired on the same day, leaving behind the petitioner
and three daughters as his legal heirs. Out of three daughters, two
daughters were already married and they are living in their
matrimonial homes. The petitioner runs the family with the meagre
income from the family pension. The petitioner further averred that
her husband died on 10.09.2003, immediately, after the death of her
husband, the petitioner made oral representation to the second
respondent on 10.12.2003 for settlement of terminal benefits and to
provide compassionate appointment and again, she made a
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W.P.(MD) No.7938 of 2017
representation on 30.12.2005. Though the terminal benefits were
settled in favour of the petitioner, however, compassionate
appointment was not provided. After her daughter completed her
school studies, the petitioner made another application on 14.03.2017
for providing compassionate appointment to her younger daughter,
namely, Ramya. The second respondent passed the impugned order,
dated 31.03.2017 rejecting the application on the ground that the
application has been made beyond the period of three years of death
of the employee. Challenging the same, the present writ petition is
filed with the above said prayer.
3.The learned counsel appearing for the petitioner submits that
the petitioner's application 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. It is further
submitted that the three years time limit stipulated is not mandatory
and it is only directory and the respondents have to consider the
indigent circumstances of the family while rejecting the application.
The respondents have not properly considered the application of the
petitioner for compassionate appointment of her daughter, keeping in
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W.P.(MD) No.7938 of 2017
mind the indigent circumstances and the rejection of the application
on the ground of the delay, is wholly sustainable in law.
4.The learned Standing Counsel appearing for the respondents
submits that the death of the petitioner's husband is in the year 2003,
while the application for compassionate appointment for her daughter
has been filed in the year 2017, which is after a lapse of almost 14
years. At the time of death of the petitioner's husband, her daughter
would have been aged about 20 years and a major. Though it is
averred that two previous representations have been given, however,
there is no whisper about the details thereof in the petition and the
follow up action taken by the petitioner on the said representation is
also not known. Further, the two of the petitioner's daughter are
married, which clearly shows that the family is not in indigent
circumstances. Neither the family being in indigent circumstance nor
the representation of the petitioner being on time, the rejection of the
representation is wholly permissible and, therefore, no interference is
warranted with the order impugned herein.
5.Heard the learned counsel for the petitioner, the learned
Standing counsel for the respondents and perused the materials
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W.P.(MD) No.7938 of 2017
available on record.
6.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 following reference was made to the Full 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
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
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W.P.(MD) No.7938 of 2017
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. 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
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W.P.(MD) No.7938 of 2017
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.
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
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W.P.(MD) No.7938 of 2017
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.”
22. 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:
“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
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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)
11.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
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sympathy or compassion.
12.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.
13.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.
14.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
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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
the family would by itself be an attributing factor to deny
compassionate appointment.
15.In the case on hand, the petitioner's husband died leaving
behind the petitioner and three daughters and on the date of his
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W.P.(MD) No.7938 of 2017
death, two of his daughters were married and the last of the daughter,
was aged about 20 years. Even according to the petitioner, her family
consisting of herself and her younger daughter are eking out their
livelihood on the family pension. It is to be pointed out that two of the
daughters of the petitioner are settled and residing in their
matrimonial home. No indigency has been claimed by the petitioner
for the purpose of compassionate appointment. Further, the
representation for compassionate appointment for her daughter has
been given after a period of 14 years, though it is averred that two
previous representations were given, for which there is no
documentary proof. Such being the case, the application of the
petitioner for compassionate appointment for her daughter 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.
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W.P.(MD) No.7938 of 2017
16.In the light of the above decisions and also considering the
fact that the petitioner's family is not in a penurious condition, the
petitioner is not eligible for compassionate appointment. Therefore,
the impugned order passed by the 2nd respondent rejecting the
request of the petitioner for compassionate appointment is correct
and sustainable in law. Accordingly, the writ petition is dismissed.
No costs.
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.7938 of 2017
M.DHANDAPANI, J.
sji
W.P.(MD)No.7938 of 2017
19.01.2021
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