Madras High Court
J.Saravanan vs The Managing Director on 22 November, 2021
W.P.No.18429 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.No.18429 of 2014
J.Saravanan ... Petitioner
-vs-
1.The Managing Director,
Chennai Metro Water Supply and Sewerage Board,
No.1, Pumping Station Road,
Chintadripet, Chennai-600 002.
2.The General Manager,
Chennai Metro Water Supply and Sewerage Board,
No.1, Pumping Station Road,
Chintadripet, Chennai-600 002. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a
Writ of Certiorarified Mandamus calling for the records relating to impugned
order of the 2nd respondent in his letter No.Cekuvaa/Pamani/Nima 4 / 10756 /
2014 dated 21.03.2014 and quash the same as highly illegal violative of Articles
14 and 16 of the Constitution of India and consequently, direct the respondents to
give appointment to the petitioner on compassionate grounds.
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For Petitioner : Mr.P.Ayyamperumal
For Respondents : Mr.N.Ramesh
for R1 and R2
ORDER
The petitioner, challenging the impugned order of the second respondent
dated 21.03.2014, in and by which his request for appointment on compassionate
ground came to be rejected, has filed this writ petition.
2. The case of the petitioner is that his father was working as an employee
in Division 10 of Chennai Metro Water Supply and Sewerage Board and he died
on 16.08.1990, while he was in service, leaving behind his wife and
son/petitioner herein. On 07.01.1991, the petitioner's mother J.Devaki, who was
36 years of age at that time, had submitted an application to the respondents
Board seeking appointment on compassionate ground. According to the
petitioner, pending consideration of his mother's application seeking
compassionate appointment, she became over aged and the respondents informed
that she did not possess the educational qualification and also orally informed the
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petitioner's mother to resubmit an application afresh for considering
compassionate ground appointment in favour of the petitioner. Accordingly, the
petitioner's mother had submitted another application on 17.12.1997, seeking
appointment on compassionate ground in favour of her son/ petitioner herein.
The petitioner also submitted repeated representations thereafter to the
respondents Board dated 04.02.2008, 23.01.2009 and 17.03.2014 and vide
impugned order dated 21.03.2014, the second respondent rejected the petitioner's
request on the ground that the application seeking appointment on compassionate
ground was not submitted within the prescribed period of 3 years and also that
compassionate appointment cannot be given to an alternative legal heir.
Challenging the aforesaid order of the second respondent, the present writ
petition has been filed.
3. The learned counsel for the petitioner would submit that initially the
application seeking appointment on compassionate ground was submitted by the
petitioner's mother on 7.01.1991, i.e., within the prescribed period of three years
and it was kept pending without passing any orders on account of administrative
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W.P.No.18429 of 2014
reasons till 2007 and as per the oral instructions by the respondents Board, the
petitioner's mother re-submitted the application on 17.02.1997 seeking
appointment on compassionate ground to the petitioner/son and therefore, there is
no delay on the part of the petitioner and however, the respondents have rejected
the petitioner's request through the impugned order by citing untenable reasons
and therefore, prays for setting aside the impugned order and for a consequential
direction to the respondents Board to give appointment to the petitioner on
compassionate ground. The learned counsel for the petitioner, in support of his
contentions, has placed reliance on the decision of a learned Single Judge of this
Court in Mohanambal v. The Director Land and Survey Department,
Kancheepuram and Others reported in 2011 (1) CTC 349.
4. Mr.N.Ramesh, learned Standing Counsel for the respondents has drawn
the attention of this Court to the counter affidavit filed by the second respondent
and would submit that the Government vide their letter No.28324/MW2/2006-5
MA&WS Department dated 29.06.2007 has clarified that the Government have
not issued any order to consider the alternative legal heir for the one who had
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W.P.No.18429 of 2014
already applied for appointment on compassionate ground immediately after the
death of the Government Servant and the petitioner had already been informed by
the respondents vide various letters dated 27.03.2006, 30.09.2006, 30.09.2008,
17.02.2009, 11.07.2011, 21.03.2014 that there is no provision for giving
compassionate appointment to an alternative legal heir and the averment of the
petitioner that his application was rejected only on 21.03.2014 is totally contrary
to facts. The learned Standing Counsel would further contend that the
employee/petitioner's father died on 16.08.1990 and the family of the deceased
survived for more than 24 years and the claim of the petitioner for employment
after 24 years of death of his father was not to mitigate the indigent circumstance
and therefore, prays for dismissal of this writ petition.
5. I have anxiously considered the rival submissions of the learned counsel
for the parties and perused the materials placed on record.
6. Admittedly, the petitioner's father died on 16.08.1990 and the petitioner's
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W.P.No.18429 of 2014
mother submitted the application on 07.01.1991 seeking compassionate ground
appointment to herself and at that time, the petitioner's mother did not possess the
requisite educational qualification and even the respondents Board had deferred
all the appointments since 1992 for administrative reasons and resumed the
Scheme in the year 2007 and in the meantime, the petitioner's mother submitted
the application dated 17.02.1997 seeking appointment to his son and the
respondents had already informed through various communications including the
impugned order to the petitioner stating that his request cannot be considered as
the application was not filed within the mandatory period of three years and there
is no provision for giving compassionate ground appointment to an alternative
legal heir.
7. The object of giving compassionate ground appointment is to mitigate
the immediate sudden financial crisis caused to the family of the deceased on
account of demise of the Government Servant. At this juncture, it is useful to
refer to the decision of the Hon'ble Apex Court in Umesh Kumar Nagpal vs.
State of Haryana [(1994) 4 SCC 138], wherein the Honourable Supreme Court
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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.”
8. 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
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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 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.”
9. 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
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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 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
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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 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.”
10. An Identical issue came up before a Honourable Division Bench of this
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Court in W.A.No.1749 of 2019 (Sudhanthira Devi vs. The State of Tamil Nadu
and others) [in the said Judgment, myself (DKKJ) had an occasion to share the
Division Bench] and the Division Bench, by Judgment dated 03.09.2019,
following the decisions of the Honourable Supreme Court, has held that
applications for compassionate appointment submitted beyond the period of three
years cannot be entertained.
11. In Government of India and another v. P.Venkatesh [(2019) 15 SCC
613], wherein the Hon'ble 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.
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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 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.”
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W.P.No.18429 of 2014
12. The Honourable Full Bench of this Court in Paragraph No.13 of the
Judgment dated 11.03.2020 in W.P.(MD) No.7016 of 2011 has held as follows:
“13. In the light of the above we find that the
judgment in the case of A.Kamatchi v. The Chairman,
Tamil Nadu Electricity Board, (2013) 2 CWC 758 is not
only contrary to the law laid down in the case of
E.Ramasamy v. The Chairman, Tamil Nadu Electricity
Board, (2006) 4 MLJ 1080, but it also has, as indicated
by our brother, Justice Subramonium Prasad, in his
judgment, misconstrued the same. In view of what has
been indicated above we are also of the view that the
period of three years is a rationale and reasonable
period under the relevant Government Orders and the
rules. We may, however, observe that it is open to the
State Government to make any provision for relaxation
of the period in exceptionally rare cases on the
principles as indicated herein above.”
13. Furthermore, G.O.(Ms) No.18, Labour and Employment (Q1)
Department, dated 23.01.2020, has clearly prescribed the time limit to prefer
application for compassionate appointment as three years from the date of death
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W.P.No.18429 of 2014
of the Government servants. In the said Government Order, the Government has
issued a comprehensive guidelines for compassionate ground appointment, in
supersession of all the earlier orders issued. Further, in the above said
Government order, with regard to alternative application, it has been held thus:
Alternative Application: If the applicant (legal heir of
deceased Government Servant) died after applying for compassionate
ground appointment, an alternative application may be accepted from
the another legal heir of the deceased Government Servant, subject to
conditions prescribed for compassionate ground appointment.
14. It is also to be noted that the petitioner's family was able to survive for
about 24 years after the death of the deceased/employee and the claim of the
petitioner for employment after 24 years of death of his father was not to mitigate
the indigent circumstance and the very purpose of the act would be defeated if the
respondent is directed to consider the case of the petitioner for appointment on
compassionate ground.
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W.P.No.18429 of 2014
15. In view of the aforesaid facts and the settled legal position, the claim of
the petitioner cannot be entertained and it deserves to be rejected. This Court
finds no reason to interfere in the impugned impugned order passed by the
second respondent.
16. Accordingly, this writ petition stands dismissed. It is made clear that
this order will not stand in the way of the respondents to pass appropriate orders
on the application for compassionate ground appointment filed by the petitioner's
mother, which is pending before the authorities/respondents. No costs.
22.11.2021
Index : Yes / No
Internet : Yes / No
Jvm
To:
1.The Managing Director,
Chennai Metro Water Supply and Sewerage Board,
No.1, Pumping Station Road, Chintadripet, Chennai-600 002.
D.KRISHNAKUMAR, J.
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W.P.No.18429 of 2014
Jvm
2.The General Manager,
Chennai Metro Water Supply and Sewerage Board,
No.1, Pumping Station Road,
Chintadripet, Chennai-600 002.
W.P.No.18429 of 2014
22.11.2021
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