Madras High Court
S.Saravanan vs The Director Of School Education on 21 January, 2021
W.P.(MD).No.23449 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
Writ Petition (MD)No.23449 of 2017
and
W.M.P.(MD).No.19711 of 2017
S.Saravanan ... Petitioner
Vs.
1.The Director of School Education,
DPI Complex, College Road,
Nungambakkam,
Chennai-6.
2.The District EducationalOfficer,
Tuticorin,
Tuticorin District.
3.The District Elementary Education Officer,
Tuticorin,
Tuticorin District.
4.The Assistant Elementary Education Officer,
Alwar Thirunagari,
Thenthirugorai,
Tuticorin District.
... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus to call for the records pertaining
to the proceedings in Na.Ka.No.87572/J3/2012, dated 12.04.2012 passed by the
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W.P.(MD).No.23449 of 2017
first respondent and quash the same and consequently direct the respondents to
consider the petitioner's representation dated 27.03.2017 on the basis to give
employment on the compassionate ground according to the education
qualification of the petitioner within the time limit stipulated by this Court.
For Petitioner : Mr.PR.Boomee Rajan
For Respondents : Mr.C.M.Marichelliah Prabhu
Additional Government Pleader
ORDER
This writ petition has been filed challenging the impugned order passed
by the first respondent in Na.Ka.No.87572/J3/2012, dated 12.04.2012 and
quash the same and consequently direct the respondents to consider the
petitioner's representation dated 27.03.2017.
2. The case of the petitioner is that his father worked as a Teacher in
Therkankulam Village Panchayat Board Primary School, Therkankulam,
Tuticorin District and died in harness on 16.09.1989, leaving behind the
petitioner, petitioner's mother, two sisters and six brothers. Thereafter, his
mother was also died. Hence, the petitioner's elder brother made a
representation to the fourth respondent seeking employment on compassionate
ground. However, the same was not considered and no order was passed.
Therefore, the petitioner has made an application on 06.10.2008, to the fourth
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W.P.(MD).No.23449 of 2017
respondent for compassionate appointment. But the same was rejected on
12.04.2012, on the ground that the application was made after the period of
three years from the date of death of the petitioner's father. Thereafter, the
petitioner made a representation on 27.03.2017, citing the decision of this Court
reported in 2012(1) CWC 469. However, till date the same was not considered.
Challenging the rejection order as well as to consider the petitioner's
representation, dated 27.03.2017, the present writ petition has been filed.
3. The learned counsel appearing for the petitioner would submit that at
the time of death of the petitioners' father, he is a minor and after attaining
majority, he filed an application for compassionate appointment. However,
without considering the financial position of the petitioner's family, the said
application was rejected, on the ground delay. He would further submit that
there is no delay on the part of the petitioner and hence, he prays for allowing
this writ petition.
4. Per contra, the learned Additional Government Pleader appearing for
the respondents would submit that initially the petitioner's brother made an
application seeking compassionate appointment in the year 1992 and he has not
submitted the additional details required by the District Elementary Educational
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W.P.(MD).No.23449 of 2017
Officer, Tuticorin. Thereafter, the petitioner made an application to the fourth
respondent in the year 2008, after he attaining majority. He would further
submit that as per the Government Letter No.38454/Personnel 9(1) 2007-1,
dated 27.12.2007, there is no provision for providing appointment on
compassionate ground to alternative legal heir. The Scheme provides only to
tide over the financial crisis faced by the deceased family and hence, he prays
for dismissal.
5. Heard the learned counsel for the petitioner, learned Additional
Government Pleader appearing for the respondents and perused the materials
available on record.
6. In the case on hand, it is not in dispute that the petitioner's father
passed away in the year 1989 and the petitioner's brother made an application in
the year 1992 seeking compassionate appointment. However, he has not
submitted the additional details required by the District Elementary Educational
Officer, Tuticorin. Thereafter, after lapse of nineteen years, the petitioner made
an application seeking employment to him in the year 2008. It is evident that
the petitioner had applied beyond the prescribed period of three years.
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W.P.(MD).No.23449 of 2017
7. Further, the Full Bench of this Court in W.P. (MD)Nos.7016 of 2011,
etc. Batch, vide order dated 11.3.2020 has held that the outer limit for
consideration of a candidature for compassionate appointment is only three
years and that too subject to the scheme that is in existence.
8. This Court, while dealing with a similar case in M.Vigneswaran – Vs
– Govt. of Tamil Nadu (W.P. No.25231 of 2014), vide order dated 09.12.2020,
considering the decision of the Full Bench on the issue of compassionate
appointment, held as under :-
“13. ....... 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 matter was placed before the Full
Bench. 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?"
Tracing the lineage on 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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W.P.(MD).No.23449 of 2017
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 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 made
without undue delay and it should be considered strictly in
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W.P.(MD).No.23449 of 2017
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 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.”
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W.P.(MD).No.23449 of 2017
9. 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.
10. 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.
11. 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.
12. 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
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W.P.(MD).No.23449 of 2017
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, dated 23.01.2020,
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.
13. For the reasons aforesaid, this Court is not inclined to interfere with
the order passed by the first respondent as no case has been made out by the
petitioner to substantiate his grievance. Accordingly, this Writ Petition, being
devoid of merits, is dismissed. However, there shall be no order as to costs.
Consequently, the connected Miscellaneous Petition is closed.
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W.P.(MD).No.23449 of 2017
21.01.2021
akv
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 Director of School Education,
DPI Complex, College Road,
Nungambakkam,
Chennai-6.
2.The District EducationalOfficer,
Tuticorin,
Tuticorin District.
3.The District Elementary Education Officer,
Tuticorin,
Tuticorin District.
4.The Assistant Elementary Education Officer,
Alwar Thirunagari,
Thenthirugorai,
Tuticorin District.
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W.P.(MD).No.23449 of 2017
M.DHANDAPANI,J.
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Writ Petition (MD)No.23449 of 2017
21.01.2021
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