Kalidass vs /
2021 Latest Caselaw 22407 Mad

                                                                                   W.P.(MD)No.322 of 2018



                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                     DATED: 16.11.2021

                                                         CORAM:

                                  THE HONOURABLE DR.JUSTICE ANITA SUMANTH

                                                 W.P.(MD)No.322 of 2018
                                                          and
                                                W.M.P.(MD)No.335 of 2018

                     Kalidass                                              ...Petitioner

                                                           /Vs./
                     The Superintending Engineer,
                     Tamil Nadu Generation and Distribution Corporation Ltd.,
                     (TANGEDCO),
                     Virudhunagar.                                  ...Respondent

                     PRAYER:- Writ Petition - filed under Article 226 of the Constitution of
                     India, praying for the issuance of a Writ of Certiorari, to call for the
                     records pertaining to the impugned order passed by the respondent in his
                     proceedings        Ka.No.13667/625/Ni.Pi2/Asst.2/Ko Vaarisu Velai/2017
                     dated 01.09.2017 and quash the same as illegal.


                                    For Petitioner      : Mr.K.Kulanthai Vickram
                                                        for Mr.C.Mayilvahana Rajendran
                                    For Respondent      : Mr.T.Sakthi Kumaran
                                                        Standing Counsel


                     1/9



https://www.mhc.tn.gov.in/judis
                                                                                  W.P.(MD)No.322 of 2018




                                                       ORDER

Read this in conjunction and continuation of my order dated

08.11.2021, extracted below:

“Heard the learned counsel for the petitioner.

2.Counter affidavit has been filed on behalf of the respondent.

3.The father of the petitioner had passed away on 29.03.2013 and the petitioner had sought compassionate appointment in his place which request had come to be rejected vide the impugned order, dated 01.09.2017.

4.The representation of the petitioner was 24.08.2017 and has come to be rejected in light of the delay of 4½ years in making such request.

5.According to the petitioner, though a representation was earlier filed within time, the same was returned seeking no-objection from other family members, causing the delay.

6.No prior representation has been placed on record and the learned counsel for the petitioner seeks a short date to circulate a copy of the same.

7.List this matter on 16.11.2021 expressly for the aforesaid purpose.”

2.Today, the petitioner has filed an additional compilation of

documents comprising an unexecuted consent deed on stamp paper dated

https://www.mhc.tn.gov.in/judis W.P.(MD)No.322 of 2018

01.10.2013 and a copy of representation dated 06.05.2014, that does not

bear any acknowledgment or receipt by the respondent.

3.According to the learned counsel for the petitioner, the

representation dated 06.05.2014 came to be filed pursuant to the demise

of his father. He was, upon receipt thereof, asked to produce consent

from his mother and other legal heirs of his father.

4.He is said to have put forth his difficulty in doing so,

explaining that his parents had divorced and his mother re-married.

However, upon insistence of the respondent, the petitioner had, with

great difficulty, managed to obtain no-objection from both his mother as

well as step mother on 17.08.2017.

5.The consent-affidavit executed by the petitioner’s mother and

step mother, both dated 17.08.2017, have been placed in the original

compilation. In the additional compilation, a draft consent deed is placed,

ostensibly to convince the Court, that since the stamp paper is dated

01.10.2013, the petitioner had taken efforts even as early as in October,

2013 to obtain consent.

6.Frankly, this unexecuted draft does not inspire any

https://www.mhc.tn.gov.in/judis W.P.(MD)No.322 of 2018

confidence whatsoever. As per proceedings in B.P.(FB)No.46, dated

13.10.1995, applications for appointment on compassionate basis are to

be made within a period of three years from the date of death of the

concerned employee. The draft consent deed and the representation that,

also does not bear any acknowledgement of receipt, constitute efforts

that, I would go sofar as to say, have been created merely as an attempt to

bring events within the period of three years, as required by proceedings

dated 13.10.1995.

7.A Full Bench of this Court in Nandini Devi vs. Secretary to

Government, Health and Family Welfare Department, Secretariat,

Chennai, orders dated 11.03.2020 in W.P.(MD)No.7016 of 2011 and

batch, has considered the scope and ambit of compassionate appointment

holding categorically that such appointments must come within the four

corners of the Rules that governed such appointments at the relevant

point in time.

8.The Bench reiterates the settled proposition that

appointments on compassionate basis are to be construed as matters of

right, and neither do they constitute a source of recruitment. In fact, such

https://www.mhc.tn.gov.in/judis W.P.(MD)No.322 of 2018

appointments constitute an exception to the general rule of recruitment.

The period of three years set out in proceedings dated 13.10.1995 was

held to be reasonable.

9.The majority opinion refers to and extracts the observations of

the Full Bench of the Allahabad High Court in Shiv Kumar Dubey Vs.

State of Uttar Pradesh (AIR 2015 All. 47) that govern compassionate

appointment as follows:

“12.While enunciating the principles governing compassionate appointments, the Full Bench in paragraph 29 of the judgment apart from having incorporated the rules that exist in the State of Uttar Pradesh laid down the following principles, which are extracted hereunder:

"29. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules:

(i) A provision compassionate appointment is an exception to the principle that there must be an equality of opportunity in the matter of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved;

https://www.mhc.tn.gov.in/judis W.P.(MD)No.322 of 2018

(ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules;

(iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner;

(iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne mind including the income the family; its liabilities, the terminal received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment;

(v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate has been made out;

(vi) Rule 5 mandates ordinarily, an application for compassionate appointment must be made within years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the

https://www.mhc.tn.gov.in/judis W.P.(MD)No.322 of 2018

period in a case of undue hardship and for dealing with the case in a just and equitable manner;

(vii) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government;

(viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family.””

10.The Bench has also reiterated categorically that the period

set out for compassionate appointment must be held to be sacrosanct and

though deviations by the State are possible in exceptional cases, as a

https://www.mhc.tn.gov.in/judis W.P.(MD)No.322 of 2018

general norm, the candidate in question must be seen to have satisfied all

required and applicable parameters.

11.This Writ Petition, in light of the above discussion, stands

dismissed. No costs. Consequently, connected Miscellaneous Petition is

closed.

16.11.2021 Internet: Yes Index :Yes/No sm

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.

https://www.mhc.tn.gov.in/judis W.P.(MD)No.322 of 2018

DR.ANITA SUMANTH, J.

sm

Order made in W.P.(MD)No.322 of 2018

Dated:

16.11.2021

https://www.mhc.tn.gov.in/judis