Madras High Court
A.Kayal Vizhi vs The Chief Educational Officer on 11 January, 2021
W.P.(MD)No.290 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.(MD)No.290 of 2021
A.Kayal Vizhi ... Petitioner
Vs.
The Chief Educational Officer,
O/o.The Chief Educational Officer,
Theni,
Theni District. ... Respondent
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 impugned order in O.Moo.No.4377/Aa5/2020, dated
19.11.2020 on the file of the respondent and quash the same as illegal
and consequently, to direct the respondent to provide compassionate
ground appointment to the petitioner within the time stipulated by this
Court.
For Petitioner : Mr.Louis.S
For Respondent : Mr.N.Shanmugaselvam,
Additional Government Pleader
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W.P.(MD)No.290 of 2021
ORDER
This writ petition is filed challenging the impugned order passed
by the respondent in O.Moo.No.4377/Aa5/2020, dated 19.11.2020 and
to quash the same and consequently, to direct the respondent to provide
compassionate appointment to the petitioner.
2. Mr.Shanmugaselvan, learned Addl. Government Pleader takes
notice for the respondents and by consent of both parties, the writ
petition is taken up for final disposal.
3.The case of the petitioner is that the petitioner's mother, who was
working as Secondary Grade Teacher at V.O.C Middle School at
Koodalur, died in harness on 05.11.2004. At the time of the death of the
petitioner's mother, the petitioner was aged 12 years. It is the averment
of the petitioner that since the petitioner had not attained majority and
not in possession of the requisite qualification, the school authorities
informed the petitioner to approach for compassionate appointment after
attaining the age of majority and acquiring the necessary educational
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W.P.(MD)No.290 of 2021
qualification. It is the further case of the petitioner that pursuing her
education, she completed B.Sc.,(Mathematics) and also studied B.Ed
degree from Tamil Nadu Teachers Education University and came out
successful in first class with distinction. Thereafter, on 16.10.2020, the
petitioner submitted a representation seeking compassionate
appointment. However, the said representation was rejected on the
ground that there is no scheme for providing compassionate appointment
in the aided school. Therefore, the petitioner has filed the present writ
petition for the aforesaid relief.
4. The learned counsel appearing for the petitioner submits that the
impugned order passed by the respondent reveals total non-application of
mind wherein, in respect of the aided school, already the State
Government passed G.O.Ms.No.18,Labour & Employment Dept., dated
23.01.2020, 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 proper perspective, the petitioner's
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W.P.(MD)No.290 of 2021
representation has been rejected mechanically, which requires
interference at the hands of this Court.
5. Per contra, learned Additional Government Pleader appearing
for the respondents submit that though the petitioner's mother died while
in service on 05.11.2004, at which time the petitioner was a minor, aged
about 12 years. The petitioner, after completion of her education and
attaining majority has submitted her application, which is beyond the
period of three years mandated under G.O. Ms. No.18, which
Government Order was issued in consonance with the decisions of this
Court, as could be seen from the Government Orders. Further, it is
submitted by the learned Addl. Government Pleader that 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. The petitioner having
given her application beyond the period of three years and there being no
scheme for compassionate appointment in aided schools, the
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W.P.(MD)No.290 of 2021
representation was rejected, which requires no interference.
6. 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 Hon'ble 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
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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
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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 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
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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.”
7. 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.
8. On the above proposition of law, it is evident that the very
concept of giving a compassionate appointment is for the bereaved
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W.P.(MD)No.290 of 2021
family to tide over the financial difficulties faced by it due to the
untimely death of the breadwinner.
9. 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.
10. 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
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evident from G.O. Ms. No.18 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.
11. In the case on hand, it is not in dispute that on the date of death
of the petitioner's father, the petitioner was aged about 12 years and on
acquiring the requisite educational qualifications and also on attaining
the age of majority, viz., 18 years, the petitioner submitted an application
for compassionate appointment, which has been rejected. It is evident
that the petitioner had applied beyond the prescribed period of three
years. The ground on which the petitioner claims an appointment on
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compassionate grounds is that her mother died in harness and, therefore,
as her surviving legal heir, she is entitled to compassionate appointment.
12. As pointed out above, 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. In the
case on hand, the mother of the petitioner died while the petitioner was
aged about 12 years of age. Even in the calamitous situation, the
petitioner has been brought up and has completed her education upto
graduation and had also obtained teacher training education, which
clearly shows that the family definitely had means to sustain itself even
during the distressed situation. Therefore, the plea of the petitioner to
direct the respondents to provide the relief of compassionate appointment
to the petitioner by issuing appropriate directions would be an exercise,
beyond the scope and ambit of compassionate appointment and issuing
such a direction would defeat the very purpose for which the said
benevolence has been granted to deserving individuals.
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W.P.(MD)No.290 of 2021
13. Further, it is to be pointed out that G.O. Ms. No.18, on which
reliance has been placed by the learned counsel for the petitioner that the
petitioner would be entitled for compassionate appointment even in aided
school, does not deserve acceptance for the simple reason that such a
clause is not found in the said Government Order. Further, the
Government Order itself stipulates framing of scheme for providing
compassionate appointment and in the absence of any scheme being
pointed out by the petitioner, the case of the petitioner that she is eligible
to be considered on the basis of the above Government Order does not
merit acceptance.
14. For the reasons aforesaid, this Court is not inclined to interfere
with the order passed by the respondents as no case has been made out by
the petitioner to substantiate her grievance. Accordingly, this writ
petition, being devoid of merits, is dismissed. However, there shall be no
order as to costs.
11.01.2021
Index:Yes/No
Internet:Yes/No
Ns
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W.P.(MD)No.290 of 2021
To
The Chief Educational Officer,
O/o.The Chief Educational Officer,
Theni,
Theni District.
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W.P.(MD)No.290 of 2021
M.DHANDAPANI,J.
Ns
W.P.(MD)No.290 of 2021
11.01.2021
http://www.judis.nic.in
