Madras High Court
C.Sasikala vs The Managing Director on 19 January, 2021
W.P.(MD) No.8236 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.8236 of 2017
C.Sasikala ... Petitioner
Vs
1.The Managing Director,
Tamil Nadu State Transport Corporation
(Tirunelveli) Limited,
No.19, Trivandrum Road,
Vannarapettai Post,
Tirunelveli-627 001.
2.The General Manager,
Tamil Nadu State Transport Corporation
(Tiruelveli) Limited,
Nagercoil Region,
Ranithottam, Nesamony Nagar,
Nagercoil-629 001. ... 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
passed by the second respondent herein in his letter No.
1978/A10/TNSTC(TVL)/NGL/2017, dated 01.03.2017 and quash the same
and consequently, direct the respondents herein to consider the case of the
petitioner for appointment on compassionate grounds.
1/12
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W.P.(MD) No.8236 of 2017
For Petitioner : Mr.K.Vamanan
For Respondents : Mr.K.Sathiyasingh
Standing Counsel
ORDER
The writ petition has been filed to quash the impugned order passed
by the second respondent in Letter No.1978/A10/TNSTC(TVL)/NGL/2017,
dated 01.03.2017 and consequently, to direct the respondents to consider the
case of the petitioner for appointment on compassionate grounds.
2.The case of the petitioner is that the petitioner's husband was
appointed as a Conductor in the year 1995 in the respondents' Corporation.
While he was working in Collachel depot, he was allotted with route No.
564-B. The said bus was plying in between Nagercoil to Tirunelveli while
nearing Kavalkinaru, the driver of the bus applied sudden break, thereby,
the petitioner fell down and sustained grevious injurious and died in
harness, leaving behind the petitioner and her daughter as legal heirs. At
the time of death, the petitioner's daughter was aged 8 years old and she
suffered from mental illness. For the purpose of taking treatment, she was
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W.P.(MD) No.8236 of 2017
taken to the Kerala Hospital. Therefore, the petitioner was not able to made
an application for compassionate appointment within a period of three
years. The petitioner's husband is the only bread winner of her family and
she also faced huge financial crisis. Therefore, immediately after recovering
from the illness of her daughter, the petitioner made an application in the
year 2017 with a dealy of six years. However, the said application was
rejected on the ground that the application was made beyond the period of
three years. Challenging the same, the petitioner filed the present petition
with the above said prayer.
3.The learned counsel for the petitioner would submit that the
impugned order passed by the respondent reveals total non-application of
mind and the State Government had passed G.O.Ms.No.18, Labour &
Employment Department, dated 23.01.2020, wherein, a scheme has been
provided for compassionate appointment and that the petitioner should be
considered in consonance with the guidelines framed in the said
Government Order. However, without adverting to the Government Order
in a proper perspective, the petitioner's representation has been rejected
mechanically, which requires interference at the hands of this Court.
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W.P.(MD) No.8236 of 2017
Further, the learned counsel appearing for the petitioner submitted that the
very same issue came up for consideration before this Court in the Hon'ble
Full Bench of this Court in W.P. (MD) Nos.7016 of 2011, etc. Batch, vide
order, dated 11.3.2020, wherein, this Court had held that an application for
compassionate appointment must be made within a period of five years from
the date of the deceased employee. However, the authorities vested with the
discretion to relax the period in undue hardship for dealing with the case.
Therefore, the respondents mechanically rejected the petitioner's application
is not sustainable one and hence, she prayed for allowing this petition.
4.In support of his contention, the learned counsel relied on a
decision of a Hon'ble Full Bench of this Court in W.P. (MD) Nos.7016 of
2011, etc. Batch, vide order, dated 11.3.2020, wherein at paragraph No.12,
it has been held as follows:-
“12.While enunciating the principles governing
compassionate appointments, the Full Bench in paragraph 29 of
the judgment apart from having incorporated the rules that exist
in the State of Uttar Pradesh laid down the following principles,
which are extracted hereunder;
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W.P.(MD) No.8236 of 2017
“29.We now proceed to formulate the principles which
must govern compassionate appointment in pursuance of
Dying in Harness Rules:
(i)A provision for compassionate appointment
is an exception to the principle that there must be an
equality of opportunity in matters of public
employment. The exception to be constitutionally
valid has to be carefully structured and implemented
in order to confine compassionate appointment to
only those situations which subserve the basis object
and purpose which is sought to be achieved;
(ii)There is no general or vested right to
compassionate appointment. Compassionate
appointment can be claimed only where a scheme or
rules provide for such appointment. Where such a
provision is made in an administrative scheme or
statutory rules, compassionate appointment must fall
strictly within the scheme or, as the case may be, the
rules;
(iii)The object and purpose of providing
compassionate appointment is to enable the
dependent members of the family of a deceased
employee to tide over the immediate financial crisis
caused by the death of the bread-earner;
(iv)In determining as to whether the family is
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W.P.(MD) No.8236 of 2017
in financial crisis, all relevant aspects must be borne
in mind including the income of the family; its
liabilities, the terminal benefits received by the
family; the age, dependency and marital status of its
member, together with the income from any other
sources of employment;
(v)Where a long lapse of time has occurred
since the date of death of the deceased employee, the
sense of immediacy for seeking compassionate
appointment would cease to exist and this would be a
relevant circumstance which must weigh with the
authorities in determining as to whether a case for
the grant of compassionate appointment has been
made out;
(vi)Rule 5 mandates that ordinarily, an
application for compassionate appointment must be
made within five years of the date of death of the
deceased employee. The power conferred by the first
proviso is a discretion to relax the period in a case
of undue hardship and for dealing with the case in a
just and equitable manner;
(vii)The burden lies on the applicant, where
there is a delay in making an application with the
period of five years to establish a case on the basis
of reasons and a justification supported by
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W.P.(MD) No.8236 of 2017
documentary and other evidence. It is for the State
Government after considering all the facts to take an
appropriate decision. The power to relax is in the
nature of an exception and is conditioned by the
existence of objective considerations to the
satisfaction of the government;
(viii)Provisions for the grant of compassionate
appointment do not constitute a reservation of a post
in favour of a member of the family of the deceased
employee. Hence, there is no general right which can
be asserted to the effect that a member of the family
who was a minor at the time of death would be
entitled to claim compassionate appointment upon
attaining majority. Where the rules provide for a
period of time within which an application has to be
made, the operation of the rule is not suspended
during the minority of a member of the family..”
5.The learned Standing Counsel for the respondents' Corporation
would submit that though the petitioner's husband died in the year 2011, she
made an application for compassionate appointment not within the limited
period, however, the petitioner has made an application only in the year
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W.P.(MD) No.8236 of 2017
2017 beyond the period of three years, which cannot be entertained. Hence,
he prayed for dismissal of the writ petition.
6.I have considered the submissions made on either side and perused
the materials available on record.
7.In the present case, it is seen that the petitioner's husband died in
harness and leaving behind the petitioner and her daughter as his leagal
heirs and further it is averred that since the petitioner's daughter was
suffering from illness and she went to the Hospital at Kerala for taking
treament, she was not able to make an application within the limited period
of three years.
8. In the above background, it is necessary to refer the decision of this
Court, whether the application made after five years can be entertained or
not? For the risk of repetition, it is relevant to extract hereunder the
relevant paragraphs of the decision rendered by the Full Bench of this
Court(cited supra):
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W.P.(MD) No.8236 of 2017
(v)Where a long lapse of time has occurred since the
date of death of the deceased employee, the sense of
immediacy for seeking compassionate appointment
would cease to exist and this would be a relevant
circumstance which must weigh with the authorities in
determining as to whether a case for the grant of
compassionate appointment has been made out;
(vi)Rule 5 mandates that ordinarily, an
application for compassionate appointment must be
made within five years of the date of death of the
deceased employee. The power conferred by the first
proviso is a discretion to relax the period in a case of
undue hardship and for dealing with the case in a just
and equitable manner;
9. A perusal of the above decision, it makes it clear that the sense of
immediacy for seeking compassionate appointment would cease to exist and
this would be a relevant circumstance which must be weighed in
determining as to whether a case for grant of compassionate appointment
was made. Further, the Full Bench of this Court held that the application
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W.P.(MD) No.8236 of 2017
for appointment must be made within five years of the date of the death of
the deceased employee. Further it is also held that the power conferred by
the first proviso is a discretion to relax the period in a case of undue
hardship and for dealing with the case in a just and equitable manner.
10. In the present case, the petitioner-mother claimed that her
daughter suffered with mental illness, for which, she was taken treatment in
Kerala Institute of Medical Sciences. However, without analysing and
appreciating the above said aspects, the respondents mechanically rejected
the application is unsustainable one. Hence, this Court is of the view that
the order impugned is deserved to be interfered with. Accordingly, the
impugned order dated 01.03.2017 in Letter No.
1978/A10/TNSTC(TVL)/NGL/2017 passed by the second respondent is set
aside and the matter is remanded back to the second respondent for fresh
consideration and the second respondent is directed to consider the same
and pass orders on merits and in accordance with law, within a peirod of
twelve weeks from the date of receipt of a copy of this order.
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W.P.(MD) No.8236 of 2017
11.With the above direction, this Writ Petition is allowed. 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.
To
1.The Managing Director,
Tamil Nadu State Transport Corporation
(Tirunelveli) Limited,
No.19, Trivandrum Road,
Vannarapettai Post,
Tirunelveli-627 001.
2.The General Manager,
Tamil Nadu State Transport Corporation
(Tiruelveli) Limited,
Nagercoil Region,
Ranithottam, Nesamony Nagar,
Nagercoil-629 001.
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W.P.(MD) No.8236 of 2017
M.DHANDAPANI, J.
sji
W.P.(MD)No.8236 of 2017
19.01.2021
http://www.judis.nic.in
