Madras High Court
G.Rama Veera Sekaran vs The Secretary To The Government on 21 January, 2021
W.P.(MD).No.7947 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.7947 of 2017
and
W.M.P.(MD).No.2822 of 2018
G.Rama Veera Sekaran ... Petitioner
Vs.
1.The Secretary to the Government,
Department of Backward Classes and Minorities Welfare,
Fort St. George,
Chennai 600 009.
2.The Director,
Department of Backward Classes and Minorities Welfare,
Fort St. George,
Chennai 600 009.
3.The District Welfare Officer,
Department of Backward Classes and Minorities Welfare,
Sivagangai.
4.The District Collector,
Collectorate Office,
Sivagangai.
... Respondents
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W.P.(MD).No.7947 of 2017
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 impugned order passed by the third respondent in Na.Ka.Y.1/747/2017,
dated 13.01.2017 and quash the same, on the ground that the same is arbitrary,
illegal and without jurisdiction, consequently direct the respondents to appoint
the petitioner in any one of the suitable post on compassionate ground within a
time frame to be stipulated by this Court.
For Petitioner : Mr.V.Lakshmanan
For Respondents : Mr.C.M.Marichelliah Prabhu
Additional Government Pleader
ORDER
This writ petition has been filed challenging the impugned order passed
by the third respondent in Na.Ka.Y.1/747/2017, dated 13.01.2017 and to quash
the same and consequently direct the respondents to appoint the petitioner in
any one of the suitable post on compassionate ground.
2. The case of the petitioner is that his father was working as a
Watchman in the Government Most Backward Community and Welfare
College Hostel, Sivagangai and died in harness on 01.01.1998, leaving behind
the petitioner, daughter and wife as legal heirs. At the time of death of the
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W.P.(MD).No.7947 of 2017
petitioner's father, the petitioner was a minor and no eligible member is
available in the family for making compassionate appointment. After
completing 10th standard and attaining majority, the petitioner has submitted an
application for compassionate appointment on 26.08.2016. However, the said
application was rejected by the third respondent on 13.01.2017, on the ground
that the application was not filed within a period of three years. Challenging the
same, 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 and other
aspects, the third respondent has rejected the same on the ground of delay. In
support of his contentions, the learned counsel for the petitioner relied on a
decision of this Court in the case of K.Sankar v. the Commissioner,
Corporation of Chennai reported in (2017(1) CWC 486), wherein, in
Paragraph Nos.14 and 15, it is stated as follows:
“14.The aforesaid reason is not only in genuine but also
totally unjust. A minor child at the age of 7 or 10 cannot give
Application to the Employers seeking Compassionate Appointment.
In this case as stated above, the petitioner and his younger brother
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W.P.(MD).No.7947 of 2017
were 10 & 7 years old at the time of mother's death and even at the
time of father's death they were 7 & 4 years old. Both the parents
lost their lives while they were in service in the hands of the
Respondent-Corporation. There is no contrary opinion about the
penurious and indigent circumstances of the petitioner and his
family as the petitioner having lost both father and mother had
been struggling even for survival. However, when such an indigent
person has not been considered for Compassionate Appointment,
this Court feels that there is no other case than the one brought
before in this Writ Petition can be considered as a fit case for
compassionate appointment.
15. As has been rightly pointed out by the learned counsel
appearing for the petitioner, the 3 years rule is not a hard and fast
rule and it can never stand as a ban or prohibition in considering
the Application of indigent persons, who lost their near and dear in
family, ie., father or mother, at their young age and seek
appointment from the employer on attaining the majority. This
Court in a judgement reported in M.Uma v. Chief Engineer
(Personnel), Tamil Nadu Electricity Board, Chennai -2 and
another, 2010 (7) MLJ 644, held that the Application for the
appointment of Compassionate ground shall not be rejected on the
ground that it was filed after a lapse of time and the application
has to be considered on its own merits. The learned Judge in the
said judgment after following the number of judgments of the
Hon'ble Supreme Court as well as this Court has passed the said
order.”
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W.P.(MD).No.7947 of 2017
4. Per contra, the learned Additional Government Pleader appearing for
the respondents would submit that after lapse of 18 years from the date of death
of the petitioner's father, the petitioner has submitted an application for
compassionate appointment to the third respondent and his educational
qualification is 10th standard discontinued. He would further submit that as per
G.O.(Ms).No.120, Labour and Employment Department, dated 26.06.1995, the
application for appointment on compassionate ground should be made within
three years of the death of the Government servant and as per Government
Lr.Ms.No.202, Labour and Employment Department, dated 08.10.2007, the
time limit should be three years for filing an application from the date of death
of Government servant 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 present case, it is not in dispute that the petitioner's father
passed away in the year 1998 and at the time of death of the petitioner's father,
he is a minor and hence, he has submitted his application for compassionate
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W.P.(MD).No.7947 of 2017
appointment in the year 2016, after lapse of 18 years. It is evident that the
petitioner had applied beyond the prescribed period of three years. The issue
involved in the present writ petition is no more res integra. Already 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.
7. 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?"
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W.P.(MD).No.7947 of 2017
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
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.
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W.P.(MD).No.7947 of 2017
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
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
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W.P.(MD).No.7947 of 2017
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.”
8. 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 thee Government Orders/the Scheme framed for
the said purpose by the employer.
9. 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.
10. 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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W.P.(MD).No.7947 of 2017
11. 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 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.
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W.P.(MD).No.7947 of 2017
12. For the reasons aforesaid, this Court is not inclined to interfere with
the order passed by the third 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.
21.01.2021
Index : Yes/No
Internet : Yes/No
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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 Secretary to the Government,
Department of Backward Classes and Minorities Welfare,
Fort St. George,
Chennai 600 009.
2.The Director,
Department of Backward Classes and Minorities Welfare,
Fort St. George,
Chennai 600 009.
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W.P.(MD).No.7947 of 2017
M.DHANDAPANI,J.
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3.The District Welfare Officer,
Department of Backward Classes and Minorities Welfare,
Sivagangai.
4.The District Collector,
Collectorate Office,
Sivagangai.
Writ Petition (MD)No.7947 of 2017
21.01.2021
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