Madras High Court
Ezlumalai vs The Principal Secretary To on 19 January, 2021
W.P.(MD) No.9968 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.9968 of 2017
and
W.M.P.(MD)No.7631 of 2017
Ezlumalai ... Petitioner
Vs
1.The Principal Secretary to
Government of Tamil Nadu,
Department of School Education,
Secretariat, Fort St. George,
Chennai.
2.The Director of Elementary Education,
DPI Office Compound,
College Road, Chennai-6.
3.The District Education Officer,
Pudukkottai. ... 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 third respondent in Na.Ka.No.3572/A1/2013, dated
20.02.2014 and quash the same as illegal and in consequence thereof
directing the respondents to provide employment to the petitioner
under compassionate appointment.
For Petitioner : Mr.Sekar
for Mr.P.Ganapathi Subramanian
For Respondents : Mrs.S.Srimathy, Spl. GP
1/14
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W.P.(MD) No.9968 of 2017
ORDER
This writ petition is filed to issue a Writ of Cerrtiorarified
Mandamus, to quash the impugned order passed by the third
respondent in Na.Ka.No.3572/A1/2013, dated 20.02.2014 and
consequently, direct the respondents to provide employment to the
petitioner under compassionate appointment scheme.
2.The case of the petitioner is that the petitioner's father,
namely, Chellam was working as Head Master of Panchayat Union
Primary School, Viralimalai and died on 03.08.1994, while he was in
service, leaving behind the petitioner, his old aged mother, three
daughters and two sons as his legal heirs. The petitioner is the
youngest son of the family. The petitioner's mother did not make an
application at the relevant point of time and at the time of death of his
father, the petitioner was aged about 8 years. No claim was made for
compassionate appointment for the other members of the family as
well. Since the petitioner's family was suffering and finding it difficult
to make both ends meet, on attaining the age of majority, the
petitioner made an application for compassionate appointment in the
year 2006. The said application was rejected by the second
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W.P.(MD) No.9968 of 2017
respondent vide order dated 02.07.2007, which was challenged before
this Court in W.P.(MD)No.2506 of 2013. This Court by an order dated
16.09.2013 set aside the order in the light of decision of this Court in
W.P.(MD)No.21596 of 2009 and remanded the matter back to the
authorities. Thereafter, the present impugned order was passed on
the ground that the application of the petitioner is beyond the period
of three years and in view of G.O.Ms.No.42, dated 12.03.2007, the
authorities cannot wait till the minor son attained majority for
providing compassionate appointment. Further, the petitioner's
family not suffered any financial crisis and further all the legal heirs
are also married and settled in their life, the application was rejected.
Challenging the same, the present 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.
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W.P.(MD) No.9968 of 2017
The respondents have not properly considered the application of the
petitioner for compassionate appointment, keeping in 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 father is in the year 1994,
while the application for compassionate appointment for her daughter
has been filed in the year 2006, which is after a lapse of almost 12
years. At the time of death of the petitioner's father, the petitioner
was aged only about 8 years and his siblings, four in number, have
already been married. It is further submitted that no representation
for compassionate appointment has been filed for almost 12 years and
out of the blue, the petitioner has filed the representation for
compassionate appointment. Further, the sisters of the petitioner 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.
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W.P.(MD) No.9968 of 2017
5.Heard the learned counsel for the petitioner, the learned
Special Government Pleader 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, 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 :-
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W.P.(MD) No.9968 of 2017
(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. State of Haryana (1994) 4 SCC
138).
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W.P.(MD) No.9968 of 2017
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.
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
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W.P.(MD) No.9968 of 2017
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:
“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
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W.P.(MD) No.9968 of 2017
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)
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.
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W.P.(MD) No.9968 of 2017
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
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
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W.P.(MD) No.9968 of 2017
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.
16. In the case on hand, the petitioner's father died leaving
behind the petitioner, his siblings and his mother. As on date, the
petitioner's siblings have been married and have settled in their lives.
At the time of death of the petitioner's father, the petitioner was aged
about 8 years. The petitioner being a minor on the date of death of
his father, it is not incumbent on the part of the respondents to
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W.P.(MD) No.9968 of 2017
appoint the petitioner on compassionate grounds on his attaining
majority, as 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. The fact
that his siblings have been married and settled in their lives even
after the death of his father clearly shows that there is no indigency
and the indigency, if any, claimed by the petitioner, in his
representation, is only for the purpose of arousing the sympathies of
the employer/respondent herein for compassionate appointment.
Further, the representation for compassionate appointment for has
been given after a period of 12 years and even according to the
petitioner, no representation has been given previously. Such being
the case, delay is fatal to the case of the petitioner and he cannot, as a
matter of right, claim appointment on compassionate grounds. 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. Such
being the case, the application of the petitioner for compassionate
appointment not being 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
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W.P.(MD) No.9968 of 2017
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
petitioner is not eligible for compassionate appointment. Therefore,
the impugned order passed by the 3rd 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.9968 of 2017
M.DHANDAPANI, J.
sji
To
1.The Principal Secretary to
Government of Tamil Nadu,
Department of School Education,
Secretariat, Fort St. George,
Chennai.
2.The Director of Elementary Education,
DPI Office Compound,
College Road, Chennai-6.
3.The District Education Officer,
Pudukkottai.
W.P.(MD)No.9968 of 2017
19.01.2021
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