Madras High Court
K.Suresh vs The State on 11 March, 2021
W.P.No.5518 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.03.2021
CORAM:
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
W.P.No.5518 of 2022
and
W.M.P No.5605 of 2022
K.Suresh ... Petitioner
vs.
1. The State, rep. by
Secretary to Government
Department of Education
Secretariat
Fort St. George
Chennai-600 009.
2. The Director of School Education
College Road
Nungambakkam
Chennai-600 006.
3. The District Educational Officer
District Educational Office
Virudhachalam
Cuddalore District.
4. The Head Master
Government Boys Higher Secondary School
Thittakudi
Cuddalore District.
5.The Chief Educational Officer
Cuddalore District
Cuddalore. ... Respondents
1/13
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W.P.No.5518 of 2022
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus, to call for the
records of the 5th respondent made in Na.Ka.No.010191/A3/2014 dated
10.12.2021 and quash the same and consequently direct the respondents to
provide compassionate appointment to the post of Junior Assistant either in
the 4th respondent school or in any other schools.
For Petitioner : Mr.Vijaya
For RR1, 2, 3 & 5 : Mr.V.Nanmaran
Additional Government Pleader
ORDER
This writ petition has been filed for issuance of a Writ of Certiorarified
Mandamus, to call for the records of the 5th respondent made in
Na.Ka.No.010191/A3/2014 dated 10.12.2021 and quash the same and
consequently direct the respondents to provide compassionate appointment to
the post of Junior Assistant either in the 4th respondent school or in any other
schools.
2. Heard the learned counsel appearing for the petitioner and the
learned Additional Government Pleader appearing for the respondents.
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W.P.No.5518 of 2022
3. The case of the writ petitioner is that the petitioner's father
S.Kaliamurthy worked as Weaving Teacher in the 4th respondent school and
while he was in service, he died on 04.02.2001, leaving behind the
petitioner's mother Saraswathi and sisters Sumathi, Gomathi and brothers
Arun and Sanasi as his legal heirs. Thereafter, the petitioner made a request
before the respondents for appointment as Junior Assistant on compassionate
ground. At the time of submission of his application, the other legal heirs
had given No Objection letters to the respondents authority to give
appointment for the petitioner. On receipt of such application, the 3rd
respondent has rejected the same on the ground that there was a ban for
appointment by the Government. After the lift of the ban, the 4th respondent
recommended the petitioner's case to the 3rd respondent to provide
compassionate appointment. Again, by proceedings dated 27.04.2006, the
3rd respondent rejected the application on the ground that he has not
submitted the legal heir certificate and at the time of submission of
application, the petitioner has completed only Higher Secondary Course and
he did not ask suitable post as per qualification. Thereafter, the petitioner has
submitted the legal heir certificate obtained from the Tahsildar, Thittakudi
dated 20.07.2006 disclosing the fact that his sister K.Gomathi was
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W.P.No.5518 of 2022
unemployed from the date of death of his father till the date of her marriage.
Thereafter, the 3rd respondent recommended the petitioner's case to the 2nd
respondent for providing employment on compassionate ground and again,
the 3rd respondent by his proceedings dated 18.05.2007, rejected the request
made by the petitioner. Again, the 4th respondent addressed a letter to the 3rd
respondent to provide appointment on compassionate ground and the same
was rejected. As against the said rejection order, the petitioner filed W.P
No.22197 of 2014 before this Court and the same was allowed on
19.07.2021. Thereafter, the impugned order has been passed by the 5th
respondent rejecting the claim of the petitioner on the ground that the
Government has passed G.O. Ms. No.18 Labour and Employment
Department dated 23.01.2020. Hence the instant writ petition.
4. As per the aforesaid G.O Ms. No.18, one of the family members is
eligible for the employment under the compassionate ground after the death
of the employee. On considering the factual position, it reveals that the
petitioner's sisters namely, Sumathi, Gomathi and brother, namely Arun were
working respectively in the school and other Government department. The
said fact has not been disputed by the petitioner. The petitioner has raised the
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W.P.No.5518 of 2022
grounds in the affidavit that the brothers and sisters got employment based on
their qualification and attending interviews at a later point of time and their
job is nothing to do with the genuine request to provide compassionate
appointment. The reasons stated by the petitioner has not been accepted. The
respondent department has to consider the appointment on compassionate
ground only based on the government order. However, in G.O Ms. No.18
Labour and Employment Department dated 23.01.2020, clause-v, it is stated
as follows:
(v) The compassionate ground appointment will not be
considered.
(a) In case any person of the deceased Government
Servant's family is in regular employment in
Government/Private Enterprises.
(b) The wife of the deceased Government Servant who
applied for appointment for herself is remarried.
Following the aforesaid Government Order, the respondent department has
rightly rejected the claim of the petitioner seeking for appointment on
compassionate ground.
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W.P.No.5518 of 2022
5. In Umesh Kumar Nagpal vs. State of Haryana [(1994) 4 SCC
138], the Honourable Supreme Court has held as follows:
“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.”
6. In Bhawani Prasad Sankar vs. Union of India and
Others [2011 (3) LLN 37 (SC)], the Honourable Supreme Court has held
as follows:
“(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) ...
(iii) An appointment on compassionate ground is
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W.P.No.5518 of 2022
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.”
7. In State of Himachal Pradesh and another vs. Parkash
Chand [(2019) 4 SCC 285], the Honourable Supreme Court has held as
follows:
“8.The High Court while deciding issue (ix)
has relied upon the decision of this Court in Govind
Prakash Verma v. LIC [(2005) 10 SCC 289] more
specifically on the observation that the mere fact
that the elder brother of the applicant was engaged
in agricultural work and was also doing the work of
a casual painter, would not be construed as gainful
employment. This finding in Govind Prakash Verma
[(2005) 10 SCC 289] is purely on the facts of that
case and cannot be construed to be of any
relevance to the present case.
9. The High Court has observed that the
State should consider cases for appointment on
compassionate basis by dealing with the
applications submitted by sons, or as the case may
be, daughters of deceased government employees,
even though, one member of the family is engaged
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W.P.No.5518 of 2022
in the service of the government or an autonomous
board or corporation. This direction of the judgment
of the High Court virtually amounts to a mandamus
to the State Government to disregard the terms
which have been stipulated in paragraph 5(c) of its
Policy dated 18-1-1990. The policy contains a
limited exception which is available only to a widow
of a deceased employee who seeks compassionate
appointment even though one of the children of the
deceased employee is gainfully employed with the
State. The basis for this exception is to deal with
cases where the widow is not being supported
financially by her children.
10. In the exercise of judicial review under
Article 226 of the Constitution, it was not open to
the High Court to re-write the terms of the policy. It
is well-settled that compassionate appointment is
not a matter of right, but must be governed by the
terms on which the State lays down the policy of
offering employment assistance to a member of the
family of a deceased government employee. [Umesh
Kumar Nagpal v. State of Haryana [(1994) 4 SCC
138], SBI v. Kunti Tiwary [(2004) 7 SCC 271,
Punjab National Bank v. Ashwini Kumar Teneja
[(2004) 7 SCC 265], SBI v. Somvir Singh [(2007) 4
SCC 778, Mumtaz Yunus Mulani v. State of
Maharashtra [(2008) 11 SCC 384], Union of India v.
Shashank Goswami [(2012) 11 SCC 307, SBI v.
Surya Narain Tripathi [(2014) 15 SCC 739 and
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W.P.No.5518 of 2022
Canara Bank v. M.Mahesh Kumar [(2015) 7 SCC
412].
11. For the above reasons, we are of the
view that the judgment of the High Court is
unsustainable. The High Court has virtually
rewritten the terms of the Policy and has issued a
direction to the State to consider applications which
do not fulfill the terms of the policy. This is
impermissible.”
8. In Government of India and another v. P.Venkatesh
[(2019) 15 SCC 613], the Honourable Supreme Court has held as follows:
“8. This ‘dispose of the representation’
mantra is increasingly permeating the judicial
process in the High Courts and the Tribunals. Such
orders may make for a quick or easy disposal of
cases in overburdened adjudicatory institutions.
But, they do no service to the cause of justice. The
litigant is back again before the Court, as this case
shows, having incurred attendant costs and
suffered delays of the legal process. This would
have been obviated by calling for a counter in the
first instance, thereby resulting in finality to the
dispute. By the time, the High Court issued its
direction on 9-8- 2016, nearly twenty one years had
elapsed since the date of the death of the employee.
9. ...
10. Bearing in mind the above principles, this
Court held: (Umesh Kumar Nagpal v. State of
Haryana, (1994) 4 SCC 138) SCC pp.141-42, para
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6)
“6. For these very reasons, the
compassionate employment cannot be
granted after a lapse of a reasonable period
which must be specified in the rules. The
consideration for such employment is not a
vested right which can be exercised at any
time in future. The object being to enable the
family to get over the financial crisis which it
faces at the time of the death of the sole
breadwinner, the compassionate employment
cannot be claimed and offered whatever the
lapse of time and after the crisis is over.”
The aforesaid object of the claim was provided for the employment only due
to the death of the employee while he was in harness and supporting the
family members to maintain them. In the present case on hand, the deceased
employee died in the year 2001. After a lapse of 21 years, the request of the
petitioner seeking for such employment will not be considered by this Court,
in the light of the aforesaid decision of the Hon'ble Supreme Court reported
in [(2019) 15 SCC 613],.
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W.P.No.5518 of 2022
9. Considering the facts and circumstances of the case and the
decisions cited supra, prima facie, there is no merits in this petition and
therefore, this Court is not inclined to interfere with the order passed by the
respondent department.
10. In fine, the writ petition stands dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
11.03.2022
Index : Yes / No
Internet : Yes / No
uma
To
1. The Secretary to Government
Department of Education
Secretariat
Fort St. George
Chennai-600 009.
2. The Director of School Education
College Road
Nungambakkam
Chennai-600 006.
https://www.mhc.tn.gov.in/judis
W.P.No.5518 of 2022
3. The District Educational Officer
District Educational Office
Virudhachalam
Cuddalore District.
4. The Head Master
Government Boys Higher Secondary School
Thittakudi
Cuddalore District.
5.The Chief Educational Officer
Cuddalore District
Cuddalore.
https://www.mhc.tn.gov.in/judis
W.P.No.5518 of 2022
D.KRISHNAKUMAR. J
uma
W.P.No.5518 of 2022
11.03.2022
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