Annapushbam vs The Secretary To Government
2021 Latest Caselaw 1145 Mad

                                                                                W.P.(MD)No.11228 of 2017


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED: 20.01.2021

                                                       CORAM:

                              THE HONOURABLE MR.JUSTICE M.DHANDAPANI

                                            W.P. (MD) No.11228 of 2017
                                                       and
                                            W.M.P. (MD) No.8613 of 2017


                      Annapushbam                                        ... Petitioner

                                                            Vs.

                      1.The Secretary to Government,
                        Civil Supplies and Consumer Protection Department,
                        Government of Tamilnadu,
                        Secretariat,
                        Chennai-9.

                      2.The Managing Director,
                        Tamilnadu Civil Supplies Corporation Ltd.,
                        12, Thambusamy Salai,
                        Keelpauk, Chennai-10.

                      3.The Regional Manager,
                        Tamil Nad Civil Supplies Corporation Ltd.,
                        Tuticorin-8.                                      ... Respondents

                      Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
                      to issue a Writ of Certiorarified Mandamus, to call for the records pertaining
                      to the proceedings the third respondent in Na.Ka.No.E10/770/2016 dated
                      05.02.2016 and quash the same and direct the respondents to provide


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                                                                                W.P.(MD)No.11228 of 2017


                      suitable appointment to the petitioner's daughter namely Amutha on
                      compassionate ground and to pass appropriate orders within a period that
                      may be fixed by this Court.


                                   For Petitioner     : Mr.V.Kannan
                                   For R1 & R2        : Mr.A.Karthick, GA
                                   For R3             : Mr.S.Ramasamy


                                                       ORDER

This writ petition is filed by the petitioner, to call for the records

pertaining to the proceedings of the third respondent in

Na.Ka.No.E10/770/2016 dated 05.02.2016 and quash the same and further

to direct the respondents to provide suitable appointment to the petitioner's

daughter, namely Amutha on compassionate ground.

2.The case of the petitioner is that the petitioner's husband viz.,

Balachandran, while working as Junior Assistant in the Regional Office of

the Tamil Nadu Civil Supplies Corporation Ltd., at Tuticorin, was diagnosed

with H.I.V and while undergoing treatment in Meenakshi Mission Hospital

at Madurai died in harness on 18.06.2003 leaving behind the petitioner and

her four minor daughters and his aged parents as his legal heirs. At the time

of death of her husband, the petitioner's daughters were aged about 16, 11, 8

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and 5 years respectively. Therefore, the petitioner made an application to the

respondents for appointment on compassionate grounds. The third

respondent, by his proceedings, dated 31.07.2007, called upon the petitioner

to affix her signature in the necessary forms and papers for the purpose of

sending necessary proposal for compassionate appointment. However, the

petitioner was not able to appear before the office of the third respondent on

the ground that the petitioner was also suffering from H.I.V and she was

also under treatment. Whileso, for the purpose of compassionate

appointment, an Employment Assistance Programme was in place, framed

by the respective Government Departments or Corporations or Statutory

Bodies an in view of the aforesaid scheme, the petitioner did not pursue the

matter further on the premise that she would be provided with

compassionate appointment under the scheme. However, as no

compassionate appointment was provided to the petitioner, she filed a

representation to the third respondent for providing employment on

compassionate ground either to her or to her elder daughter. However, the

third respondent rejected the petitioner's claim by his proceedings, dated

05.02.2016, stating that the petitioner failed to appear before his office

pursuant to the application for compassionate appointment. Aggrieved over

the same, the present writ petition is filed.

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3. The learned counsel appearing for the petitioner submitted that the

application of the petitioner is well within the period mandated by the

various Government Orders pertaining to compassionate appointment. It is

the further submission of the learned counsel for the petitioner that the non-

appearance of the petitioner before the 3rd respondent was only on account

of the disease suffered by the petitioner and the petitioner, after recouping

herself, had approached the respondents with the representation. It is the

further submission of the learned counsel for the petitioner that the original

application of the petitioner was not rejected by the respondents, but the

third respondent, vide in his proceedings dated 31.07.2007 had only

directed the petitioner to appear before him and in the absence of any

rejection, the subsequent representation filed by the petitioner should only

be treated to be in continuity to the said application and cannot be treated as

a fresh application and, therefore, the order of rejection passed by the 3 rd

respondent is wholly unjustified and deserves interference at the hands of

this court.

4. Per contra, learned Government Advocate appearing for the

respondents 1 and 2 submitted that though the earlier application was

processed, the petitioner failed to appear before the authority, as directed

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and, therefore, the representation submitted by the petitioner could only be

deemed to be a fresh application, which has been submitted well beyond the

period of three years, which is the outer limit to consider the case for

compassionate appointment. The third respondent has rightly rejected the

application of the petitioner and therefore, no interference is warranted with

the order passed by the third respondent.

5. This Court bestowed its undivided attention to the contentions

advanced by the learned counsel on either side and also perused the

materials available on record.

6. The facts in issue are not in dispute. The husband of the petitioner,

due to sufferance of H.I.V., died in harness on 18.06.2003, leaving behind

the petitioner and four daughters, who were minors at the time of death of

her husband. It is equally admitted that the petitioner had submitted

application for compassionate appointment well within the prescribed time

and in furtherance to the same, she was asked to appear before the 3 rd

respondent for the purpose of processing the application. However, the

petitioner, due to cruelty of fate, also was suffering from H.I.V., which

precluded her from appearing before the 3rd respondent. It is not the case of

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the respondents that the petitioner was not suffering from H.I.V., though the

petitioner has put pen on paper in the form of affidavit stating that she was

also suffering from H.I.V., and was taking treatment for the same.

7. True it is that the non-appearance of the petitioner before the 3rd

respondent for the purpose of compassionate appointment is staring at her.

However, equally it also stares on the face of the 3rd respondent that no

order has been passed on the application of the petitioner for compassionate

appointment, but rejection order has been passed only on the representation

of the petitioner, which clearly means that all along, the application of the

petitioner was subsisting. Therefore, for all purposes, the application of the

petitioner for compassionate appointment is deemed to be pending

consideration before the 3rd respondent and that the said application of the

petitioner is well within time.

8. Be that as it may. It is evident from the materials on record, which

has been accepted by either side that a scheme is in vogue for providing

compassionate appointment and that the petitioner has applied only under

the said scheme.

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9. In this regard, it is to be pointed out that the Government has issued

a composite Government Order in G.O. Ms. No.18, Labour & Employment

Department, dated 23.1.20, on the lines highlighted in the decision of the

Full Bench of this Court in W.P. (MD) Nos.7016 of 2011, etc., Batch dated

11.3.2020.

10. W.P. (MD) Nos.7016 of 2011, etc. Batch, landed before the Full

Bench of this Court on a reference made by the learned single Judge of this

Court relating to conflicting views in relation to compassionate

appointment, and the reference made to the Full Bench is as under :-

"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?"

11. Tracing the advent of compassionate appointment and the factors

that are to be had in mind, while considering a case of compassionate

appointment, the Full Bench sculpted the factors that needs to be taken into

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consideration while looking at a case relating to grant of compassionate

appointment and vide order dated 1.3.2020, held as under:-

(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).

15. From the above, it is unambiguously clear that application for compassionate appointment should be

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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.

16. 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.

17. 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

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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.”

12. From the conceptual proposition of law laid down by the Full

Bench, 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.

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. 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.

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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 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 diluting the immediacy of the requirement.

15. Indigency is one of the governing factors, which has necessitated

the fixing of three years cut-off period for the purpose of filing application

for compassionate appointment. In the case on hand, it is not in dispute that

a scheme has been framed for providing compassionate appointment and

that the petitioner has also filed the application for compassionate

appointment well within the cut-off period of three years.

16. The period of three years for moving an application for

compassionate appointment is provided taking into consideration the need

of the family to come out of the sudden shock and depression, which it has

suffered on losing its breadwinner and their sole hope for survival.

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17. In the case on hand, it is not in dispute that the deceased has left

over his wife and four daughters, all minors at the relevant point of time, in

all about 5 persons, who were surviving on the earnings of the deceased.

Out of the blue, the deceased having left his mortal coil, the shock, pain and

suffering that would have engulfed the family should also be borne in mind,

with reference to the disease suffered by the deceased, which has been the

cause of his death. However, inspite of the same, the petitioner, viz., the

wife of the deceased had filed her application for compassionate

appointment well in time. However, as admitted by the parties, the

petitioner has not appeared before the 3rd respondent on the particular day,

when she was asked to report for completing the formalities for the purpose

of compassionate appointment. However, it is to be pointed out that the

non-appearance of the petitioner has not resulted in passing any order of

rejection of appointment to the petitioner. To put it in another way, the

application of the petitioner was put in cold-storage by the respondents

without acting on it.

18. The petitioner pleads that she was not in a position to appear

before the 3rd respondent on the designated day for the reason that she was

also the victim of H.I.V., and that she was taking treatment, which has not

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been disputed by the respondents. The above circumstances necessitated

the filing of the representation by the petitioner for providing the

compassionate appointment to her daughter, so that the family can make

ends meet and have two meals a day. In this backdrop, the respondents

ought to have considered the case of the petitioner on the touchstone of

humanity and not strictly on the basis of legality. Legality is a necessity to

be followed, but it should also be applied with humane touch, wherever the

survival and smile of the family is at stake. Legality is a necessity, but

equally humaneness is also a requisite criteria, while dealing with cases of

this sort.

19. In the case on hand, the petitioner's husband had breathed his last

on account of H.I.V., and the petitioner has also been the recipient of the

deadly virus and has been taking treatment for the same. At that relevant

point of time when the petitioner's husband passed away, the petitioner was

also suffering from H.I.V., and her daughters were all minors at that point of

time. It is not the stand of the respondents that the treatment taken by the

petitioner had not precluded her appearance before the 3 rd respondent.

However, it should not be lost sight of that the petitioner is not a highly

educated lady for understanding the nuances relating to employment, more

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especially compassionate appointment. She would have been under the

illusion that submission of application for compassionate appointment

would earn her a berth in a job, which in turn would alleviate her hardship

and provide two square meals to the surviving members of her family,

which would also have been guided by the fact that a scheme was in place

for providing compassionate appointment. However, the petitioner would

not have been aware of the intricacies in the appointment process, more so,

when she was also a victim of H.I.V., and was suffering the traumatic

experiences of having to live with the said ailment and looking at the doors

of heaven with the life of her four children at peril. Therefore, putting the

non-appearance against the petitioner to deny her appointment on

compassionate ground, more especially, without any order of rejection

having been passed by the 3rd respondent pertaining to the application

submitted by the petitioner, would be against the benevolent scheme

formulated by the Government for the purpose of safeguarding the family of

the Government servant.

20. On a careful reading of the aforesaid decision, it is unambiguously

clear that application for compassionate appointment should be made

without undue delay and it should be considered strictly in accordance with

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the governing scheme and no discretion is vested with the authority and that

the concept of compassionate appointment is only to meet out the sudden

crisis that has befallen the family on the death of the sole breadwinner. In

the present case, it is not only the loss of the sole breadwinner, which has

gravely affected the family, but also the hanging of the Damocles sword

over the head of the petitioner in the form of H.I.V., virus, which has also

crucified her to the cross.

21. The Hon'ble Supreme Court in Bhawani Prasad Sonkar Vs.

Union of India & Ors., (2011 (4) SCC 209), observed as under:-

"15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible.

Nevertheless, the concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the

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service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.

16. We do not propose to burden this judgment with reference to a long line of decisions of this Court on the point. However, in order to recapitulate the factors to be taken into consideration while examining the claim for appointment on compassionate ground, we may refer to a few decisions.

17. In Umesh Kumar Nagpal v. State of Haryana [(1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] , while emphasising that a compassionate appointment cannot be claimed as a matter of course or in posts above Classes III and IV, this Court had observed that:

“2. … The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest

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posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.”

(Emphasis Supplied)

22. The intent and purpose for which the benevolent act is intended is

to alleviate the poverty of the distressed family at the crucial hour and to

provide it with financial stability. As held above, the exception to the rule

made carved out in favour of the family of the deceased employee is in

consideration of the services rendered by him and the legitimate

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expectations, and the change in the status and affairs, of the family

engendered by the erstwhile employment which are suddenly upturned. In

the case on hand, the husband of the petitioner died leaving behind the

petitioner and his four minor daughters and that at the cruel hands of fate,

hangs the life of the petitioner, who is also infected with H.I.V. The

respondents ought to have considered the situation of the petitioner with the

object and intent of providing compassionate appointment and, even if the

respondents are to consider the case of the petitioner on the yardstick of

legality, it is to be pointed out that the application of the petitioner is well

within time, on which no orders were passed and the subsequent

representation filed by the petitioner is only a continuity to the application

filed by her, which was pending with the respondents and by no stretch of

imagination, could it be stated to be a fresh application, which is beyond the

cut-off period.. True it is that the act of the petitioner should fulfill the

legalistic requirement and in the case on hand, the petitioner has fulfilled

her obligation by filing the necessary application within the prescribed

period of three years. Mere non-reporting before the 3rd respondent alone

cannot be a ground to deny her the compassionate appointment, more so,

when the application filed by the petitioner was still alive with the

respondents on the date when she filed her representation. Such an act on

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the petitioner, in the light of the trauma suffered by the petitioner due to the

loss of her husband and also on account of the fact that she was also tested

H.I.V. positive and taking treatment for the same, the calamitous situation in

which the petitioner has been placed ought to have been appreciated by the

respondents while subsequently rejecting her representation, which is a

consequence of her application for compassionate appointment. When the

respondents have not rejected her application for compassionate

appointment and has taken a decision to reject her request for

compassionate appointment only pursuant to her representation, it should be

presumed that the representation submitted by the petitioner is only in

continuity of her application and it cannot be treated to be in isolation,

thereby, putting the said representation outside the ambit of the cut-off date

for it to be rejected by the 3rd respondent.

23. If this Court, in the whole scheme of the facts, negates the relief

sought for by the petitioner, interest of justice would be subserved only to

show that the scales of justice are not balanced. It is trite that each and

every case has to be decided on the facts and circumstances pertaining to the

said case and the ratio laid down on the legal issue thereof, with regard to

the principles to be followed, while exercise the inherent jurisdiction of this

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Court, should be on the careful analysis of the facts of the particular case

and it should not be on the basis of a straight-jacket formula. In the case on

hand, the facts as narrated above, pricks the conscience of this Court and in

the fitness of things and interest of justice warrants that the petitioner

should be provided with the relief of compassionate appointment, more so,

when she has fulfilled in principle, all the requisites, as put forth by the

Hon'ble Full Bench. The respondents ought to have appreciated the above

and passed an affirmative order in favour of the petitioner, based on her

representation and negation of the same, this Court is bound to redress the

grievance of the petitioner by exercising its inherent jurisdiction by

directing the respondents to consider the case of the petitioner for providing

compassionate appointment to her elder daughter.

24. It would not be out of context here for this Court to mention that

the main breadwinner having passed away and that his wife, the next in line

is also infected with the deadly H.I.V. virus, it can safely be said that the

family is passing through a distressed and calamitous period and, therefore,

for all purposes, the family is ensconced under the protective umbrella of

compassionate appointment to be provided to one of the members of the

family, as per the scheme formulated by the respondents, and if the same is

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not provided, it would cause very great prejudice and hardship to the family.

25. Considering the facts and circumstances as stated above, this

Court is of the considered view that this is a fit case for remanding the

matter back to the respondents for fresh affirmative consideration for

providing compassionate appointment to one of the eligible members of the

family, as sought for by the petitioner in her representation.

26. Accordingly, the writ petition is allowed and the impugned order

passed by the 3rd respondent is set aside and the matter is remanded back to

the third respondent for fresh consideration and the respondents are directed

to consider the petitioner's request for compassionate appointment to her

elder daughter, and pass appropriate orders, in accordance with law, within

a period of eight weeks from the date of receipt of a copy of this order.

Consequently, connected miscellaneous petition is closed. There shall be

no order as to costs.

20.01.2021 Index:Yes/No Internet:Yes/No Ns

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M.DHANDAPANI,J.

Ns

To

1.The Secretary to Government, Civil Supplies and Consumer Protection Department, Government of Tamilnadu, Secretariat, Chennai-9.

2.The Managing Director, Tamilnadu Civil Supplies Corporation Ltd., 12, Thambusamy Salai, Kilpauk, Chennai-10.

W.P.(MD)No.11228 of 2017

20.01.2021

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