Madras High Court

M.S.S.Jannathul Firthous vs The District Educational Officer ... on 19 January, 2021

                                                                             W.P.(MD) No.7595 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.7595 of 2017

                      M.S.S.Jannathul Firthous                                ... Petitioner
                                                            Vs

                      The District Educational Officer (i/c),
                      Dindigul District.                                      ... Respondent

                      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 respondent herein in Na.Ka.No.1039/A1/2017, dated
                      31.03.2017 and quash the same and consequently direct the respondent
                      herein to consider the petitioner's case for appointment on compassionate
                      grounds.
                                   For Petitioner      : Mr.M.Padmavathy

                                   For Respondent      : Mrs.S.Srimathy
                                                         Special Government Pleader

                                                        ORDER

This Writ Petition has been filed to quash the impugned order

passed by the respondent, dated 31.03.2017 in Na.Ka.No.1039/A1/2017 and

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consequently, direct the respondent herein to consider the petitioner's case

for appointment on compassionate grounds.

2.It is the case of the petitioner that the petitioner's mother

Tmt.T.Rathinam was serving as Drawing Teacher in the Government Higher

Secondary School at Natham Kovilpatti, Dindigul District. When the

petitioner's mother was in service, she died suddenly in harness on

01.05.2006 out of cancer leaving behind the petitioner's father, brother and

her sister. It is further averred that the petitioner's elder sister got married

prior to the demise of the petitioner's mother and subsequent to the demise

of the petitioner's mother, the brother got married, leaving behind

separately, who is a practising Advocate in different places. Thereafter, the

petitioner's marriage was also performed. Since both the elder sister and

brother are living separately, the petitioner is under the care and custody of

the petitioner's father, who is a retired Government Servant and is also

receiving the pension. Thereafter, the petitioner made an application for

compassionate appointment on 17.10.2007 and the said application was

rejected on 23.04.2014. Challenging the same, the petitioner filed a writ

petition before this Court in W.P.(MD)No.794 of 2015 and this Court

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allowed the writ petition and the matter was remanded back to the

authorities for fresh consideration. In the meantime, the petitioner got

married. However, the marriage was dissolved on 11.06.2012 and made an

application for compassionate appointment and again, the petitioner's

application was rejected, contrary to the decision of this Court in the above

said writ petition. Challenging the same, the petitioner filed W.P.(MD)No.

4994 of 2015 and this Court by order, dated 29.11.2016, in view of the

change in circumstances, remanded the matter again back to the authorities

for fresh consideration. Again, the said representation was rejected.

Challenging the same, the present writ petition is filed with the above said

prayer.

3.The learned counsel for the petitioner would submit that though the

petitioner's father and the petitioner's mother are Government Servants, the

petitioner's mother died in the year 2006. In the meanwhile, the petitioner's

father retired from service and is receiving the pension. The pensioner

cannot be termed as a Government employee and further, the petitioner's

brother, who is also a practising Advocate and her father pension are not

sufficient to maintain the family. Further, the petitioner and her sister also

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got married. Hence, the rejection order is not legally sustainable. Hence, he

prayed for allowing this petition.

4.The learned Special Government Pleader appearing for the

respondent would submit that admittedly, the petitioner's father and mother

are the Government Servants. The petitioner's mother died in the year 2006

and she made an application in the year 2007 and two times, the application

were rejected on the ground that the petitioner's family is not in indigent

circumstances and that the petitioner's father is receiving the family pension

and the petitioner's brother is also a practising Advocate. The scheme of the

compassionate appointment extended to the family, which is in harness and

in need for immediate financial support due to the death of a deceased

Government servant. However, in the present case, the petitioner's mother

passed away in the year 2006 and prior to that, the brother and sister got

married. Thereafter, the petitioner also got married and there is no proof

filed before this Court as if the petitioner was deserted by her husband. In

the absence of any proof, the rejection order is perfectly in order and hence,

she prayed for dismissal of the writ petition.

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5.Heard the learned counsel for the petitioner, the learned Special

Government Pleader for the respondent and perused the materials available

on record.

6.In the present case, this present writ petition is by way of third

round of litigation. Already, in the earlier occasion, this Court has set aside

the order and remanded the matter back to the authorities for re-

consideration and the entire scenario changed in view of the judgement of

the Hon'ble Full Bench of this Court in W.P.(MD)Nos.7016 of 2011, etc

batch, dated 11.03.2020 wherein, it has 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;

“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

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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 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

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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 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

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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..”

7.A perusal of the above decision makes it clear that object and

purpose of providing compassionate appointment is to enable the dependent

members of the family of the deceased employee to tide over the immediate

financial crisis caused due to the death of the bread-earner and further, the

competent authorities had processed as to whether the family is in financial

crisis and 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 members. However, applying the

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above said ratio, in the present case, the petitioner's father retired

Government employee and is receiving the pension and further, after the

death of her mother, the petitioner and other family members are receiving

the terminal benefits from the employer. Further, subsequent to the death of

the petitioner's mother, the petitioner also got married and all those persons

settled in their life. Hence, there are no indigent circumstances that arise for

consideration for providing the compassionate appointment to the

petitioner. Hence, I am not inclined to interfere with the order impugned in

this writ petition.