Madras High Court
Irosa vs Government Of Tamil Nadu on 6 September, 2021
Writ Appeal No.1877 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.09.2021
CORAM :
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
Writ Appeal No.1877 of 2021
1. Irosa
2. P.Prabhakaran ...
Appellants
vs.
1. Government of Tamil Nadu,
Represented by Secretary to Government,
Revenue Department,
Secretariat, Chennai 600 009.
2. The Principal Secretary and Commissioner of
Revenue Administration,
Chepauk, Chennai 600 005.
3. The District Collector,
Tiruchirapalli District,
Tiruchirapalli. ...
Respondents
Writ Appeal filed under Clause 15 of Letters Patent against the order
dated 05.08.2020 passed by this Court in W.P.No.10203 of 2020.
For Appellants : Mr.M.Ravi
Page No.1 of 14
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Writ Appeal No.1877 of 2021
For Respondents : Mr.K.Tippu Sulthan,
Government Advocate
JUDGMENT
(Judgment of the Court delivered by S.VAIDYANATHAN,J.)
This Writ Appeal is filed challenging the order dated 05.08.2020
passed by the learned Single Judge in W.P.No.10203 of 2020, whereby, the
request of the Writ Petitioners seeking compassionate appointment was
rejected on the ground that, they have approached the Court after three
decades.
2. Heard the learned counsel on either side and perused the material
documents available on record.
3. The delay attributed for approaching this Court belatedly that, a
Civil Suit was pending between the Writ Petitioners and the rival Claimants,
cannot be accepted, as, the civil proceedings came to an end in the year 2013
itself, and that, compassionate appointment cannot be sought after a period of
three decades. The learned Single Judge has observed that, a Government job
cannot be a subject matter of inheritance and cannot be claimed as a matter of
right, and it can only be claimed as a matter of grace, as appointment itself is
qualified as compassionate appointment.
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Writ Appeal No.1877 of 2021
4. Undoubtedly, the Scheme for compassionate appointment is
meant to render immediate employment assistance to the family members of
the deceased employee and such employment cannot be kept pending, as, in
the case on hand, the Writ Petitioners have slept over the matter for more than
three decades.
5. In the case on hand, the first Appellant viz. Irosa claims to be the
first wife of the deceased employee and the second Appellant is his son. The
employee died while in service on 30.03.1988 and the first Appellant, who is
his wife made an Application seeking appointment on compassionate ground
on 22.02.1990. At that point of time, another lady, claiming to be the wife of
the deceased employee made a counter-claim for compassionate appointment.
This made the Government to take a neutral stand that, unless otherwise, the
relationship between the first Appellant and the deceased employee is
established by the competent Court of Law, the request for compassionate
appointment cannot be considered.
6. Accordingly, the first Appellant viz. Irosa approached the
competent civil Court to get a declaration that, she is the legally wedded wife
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Writ Appeal No.1877 of 2021
of the deceased employee. The District Munsif Court, Jayamkondam passed a
judgment and decree on 17.09.2013 in O.S.No.173 of 1996, dismissing the
said Suit filed by the counter-Claimants. Even during the pendency of the
Suit, the first Appellant made an Application as early as in 2008, requesting
to grant compassionate appointment to her son viz. P.Prabhakaran. But, the
District Collector, Tiruchirapalli, vide proceedings dated 27.12.2008,
observed that, parties must obtain orders from the Court that, they are the
Legal Heirs of the deceased Government servant, in order to consider their
request.
7. Though the Service Register of the deceased employee was found
to be missing, based on the available records, the District Collector came to
the conclusion that, the deceased employee was in employment from
10.11.1987 in Tiruchirapalli District Revenue Unit till 30.03.1988, on which
date, he died in an accident. By passage of time, the son of the deceased
employee viz. P.Prabhakaran, the second Appellant herein, who was only four
years old at the time of death of the employee, attained majority.
8. A feeble argument has been advanced by the learned Government
Advocate appearing for the Respondents herein that, on the date of the
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Writ Appeal No.1877 of 2021
judgment and decree, the second Appellant was 23 years old and that, he
should have made an Application at least within three years after attaining
majority. The said argument cannot be accepted in the light of the order
dated 27.12.2008 passed by the District Collector, Tiruchirapalli, whereby,
the parties have been asked to await the verdict of the civil Court.
9. There are a catena of Apex Court decisions holding that,
compassionate appointment cannot be granted, when an Application is made
beyond the time stipulated. In that regard, it is worth referring to an Apex
Court decision in the case of Bhawani Prasad Sonkar vs. Union of India
reported in (2011) 4 SCC 209, relevant portion of which, is extracted
hereunder:
"20. Thus while considering a claim for
employment on compassionate ground, the following
factors have to be borne in mind:
(i) Compassionate employment cannot be
made in the absence of rules of 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 de-hors 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.
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Writ Appeal No.1877 of 2021
(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 bread-winner while in service.
Therefore, compassionate employment cannot be
granted as a matter of course by way of largess
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 dependants 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."
10. In the light of the facts discussed supra, it is clear that, neither the
Appellants nor the Respondents herein are said to be at fault, and it is only
due to the pendency of the litigation before the civil Court, the request of the
first Appellant herein, i.e. the wife of the deceased employee, could not be
considered. When the Department wanted to consider the case of the first
Appellant, she had already crossed the age limit for appointment. By passage
of time, as stated supra, the second Appellant attained majority and became
eligible to be considered for compassionate appointment.
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Writ Appeal No.1877 of 2021
11. Though, we are entirely in agreement with the observation made
by the learned Single Judge that, compassionate appointment is not a matter
of right, in the present set of facts, moreso, when the Government has passed
an order to keep the request of the Appellants for compassionate appointment
in abeyance, by asking the parties to produce the order of the civil Court, the
case of the Appellants cannot be rejected.
12. The Court renders judgment, which is completely different from
rendering justice. That is, in life, expectation is different from reality. For
example, in most of the criminal cases, 'Truth never triumphs', as benefit of
doubt goes in favour of the accused, even though Lawyers will know that, the
accused is the culprit, but, in the absence of chain link, the accused will come
out from the charges. In all cases, we would like to render justice rather than
rendering judgment. Though, there is enormous delay of more than three
decades on the part of the Appellants in approaching this Court, neither the
Appellants nor the Government are at fault and that, the delay is only on the
part of the civil Court in disposing of the matter. Hence, this Court is of the
considered view that, the second Appellant shall not be deprived of
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Writ Appeal No.1877 of 2021
compassionate appointment, if he is otherwise eligible to be considered.
13. This Court, in a similar circumstance, in W.P.(MD) Nos.4129,
7045, 16624 and 20786 of 2014 and W.P.(MD) Nos.19455 and 19530 of
2018 [S.Gowtham Balu vs. The Managing Director, Tamil Nadu
Electricity Generation and Distribution Corporation, Chennai, decided
on 24.09.2018], has considered all the aspects pertaining to grant of
compassionate Appointment and passed a detailed order by extending a few
suggestions to the Government. For better appreciation, relevant portion of
the same, is extracted hereunder:
“6. The Government may think of issuing a fresh
Government Order, if they want to stick on compassionate
appointment scheme and one such condition is that
compassionate appointment would be considered only for
Class-IV employment and that age can be relaxed and the
qualifications can be entirely relaxed, as there is no need for
any qualification for the purpose of appointing the persons
as sweeper, gardener and the like. In the event the spouse
refusing to accept the Class-IV employment, the same can
be rejected and the children, after becoming major, cannot
seek for compassionate appointment. There should be a
prescribed procedures so that the application can be routed
through Email and the said application will have to be
considered and orders to be passed within the stipulated
time. For making an application a time limit can be fixed as
one year instead of three years. The appointment through
compassionate appointment is a substantial litigation in this
Court and the Government should ensure that they take an
unbiased decision within a maximum period of six months
so that the applicant will know where they stand. As a
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matter of right, the applicant cannot demand that based on
the higher qualification they shall be appointed in Class-III
posts, as the Class-III posts is meant either for promotion or
for direct recruitment and shall not be taken for
compassionate appointment. In addition to the above, this
Court expects the Government to take into account the
following suggestions and issue a Government Order
immediately so that it can be given effect to from 1 st
January, 2019:
(i) the compassionate shall be made within a period
of one year from the date of death of the deceased
Government employee;
(ii) the qualification for Class-IV employees can be
completely exempted for the purpose of giving
compassionate appointment and though Basic Rules provide
for certain category of posts falling under compassionate
appointment, the same is only illustrative in nature. For
example, for appointment to the post of Sweeper, there is no
need to prescribe any qualification and what is required is, it
must be ensured as to whether persons to be appointed to the
post of Sweeper on compassionate ground know to read and
write and ride bicycle / two wheeler and other basic
household / office works;
(iii) as held by the Hon'ble Supreme Court in the case
reported in [(2011) 4 SCC 209], the purpose of
compassionate appointment is to meet the sudden crisis and
there is no need to keep a post to claim after 18 years.
Therefore, it is clear that the request for appointment on
compassionate ground for the child in the womb, by seeking
reservation of one post till the child' majority cannot be
entertained;
(iv) whenever an application for compassionate
appointment is made, it should be decided within a period of
three months from the date of receipt of the said application
and the person making such application for compassionate
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appointment should despatch the same either by speed post
or by registered post. Once an application is received, it is
open to the concerned authorities to call for the documents
from the deponents / legal heirs so that her case can be
considered and decision should be taken within a period of
two months thereafter. Once a request is made calling for
documents, the concerned person will have to submit the
required documents within 15 days. If the application for
compassionate appointment is not decided within three
months from the date of receipt of such application, then the
concerned Officer, who is responsible to take a decision
thereon, should be removed from the post and posted in a
non-sensitive post. This will avoid further litigation, as the
persons applying for compassionate appointment have been
approaching this Court for disposal of the representation
after lapse of decades and getting an order so as to litigate
unnecessarily and the order of disposal of representation is
not a conclusive one for litigants, but a starting point of
litigation;
(v) the documents sought by the concerned
authorities should be uploaded by the application so that
there would be no quarrel with regard to non-consideration
of vital documents by the authorities, while scrutinizing the
application for compassionate appointment. The applicant
shall also furnish his/her Cell Number, Email Address, etc.,
to enable the authorities to communicate the order to be
passed in his/her application.
(vi) for the sake of brevity, it is reiterated that the
compassionate appointment should be restricted only to
Class-IV employment instead of Class-III & IV so that the
claim for compassionate appointment would be reduced;
(vii) in case compassionate appointment is
considered other than the spouse, then 25% of the gross
monthly income shall be directly paid to the spouse by way
of NEFT or RTGS and the said gross income is subject to
income tax deductions. The reason for not granting 25% of
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Writ Appeal No.1877 of 2021
the amount from the Nett salary is that the employee may
take loans and ensure that the take-home salary is very less
and the 25% of the amount payable on the Nett after loan
deduction would be very meagre and will not be sufficient
to have a square meal for the day for the spouse at the old
age. Many of the children, after getting employment, are
driving the parents to old age home and in order to ensure
that the spouses are protected and taken care of, 25% of the
amount has got to be given to them. As per the provisions
of the Maintenance and Welfare of Parents and Senior
Citizens Act, 2007, it is the bounden duty of children to take
care of them and their children should not be allowed to
leave their parents in lurch, thereby letting them scot-free
and the old aged people at the fag end of their life are
rushing to Courts to get money from their children. In order
to avoid such a haphazard situation, this Court wants to
ensure that 25% of the gross shall be paid to the spouses,
which would be subjected to income tax payable by the
employee.
(viii) the spouse, who is getting 25% of the amount
as mentioned supra shall produce the life certificate once in
a year preferably on the 1st March of every year;
(ix) we suggest that the Government issues a
Government Order to that effect, as the Court is burdened
with not less than 5% of the service matters, seeking
employment on compassionate ground from various
departments, such as Electricity Board, etc and since there is
no uniform guidelines for all the Government departments,
there is always a confusion and chaos, thereby creating
unnecessary litigations;
(x) the compassionate appointment shall not be
considered as a back door entry and it is based on rules,
regulations, guidelines and Government Orders. However, it
should be remembered that compassionate appointment is
not an usual recruitment process and the candidates seeking
such appointment will have to satisfy all the requirements
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contemplated under the Rules with regard to the age,
qualification, etc, but however, it is subject to relaxation
depending upon the circumstances of each case.”
14. In view of the foregoing, we are inclined to interfere with the
order of the learned Single Judge. Accordingly, the order dated
05.08.2020 passed by the learned Single Judge in W.P.No.10203 of 2020
is set aside and the Government is directed to consider the case of the
second Appellant viz. P.Prabhakaran, if he is otherwise eligible for
compassionate appointment in class IV post alone, and take a decision and
communicate the same to the second Appellant, within a period of three
months from the date of receipt of a copy of this order.
15. It is made clear that, this order cannot be treated as a
precedent, as compassionate appointment for the second Appellant is
directed to be considered, only by taking into account the peculiar facts and
circumstances of the case.
The Writ Appeal is ordered accordingly. No costs.
[S.V.N.,J.] [A.A.N.,J.]
06.09.2021
Index : Yes/No
Speaking Order : Yes/No
(vm/aeb)
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Writ Appeal No.1877 of 2021
To:
1. The Secretary,
Government of Tamil Nadu,
Revenue Department,
Secretariat, Chennai 600 009.
2. The Principal Secretary and Commissioner of
Revenue Administration,
Chepauk, Chennai 600 005.
3. The District Collector,
Tiruchirapalli District,
Tiruchirapalli.
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Writ Appeal No.1877 of 2021
S.VAIDYANATHAN,J.
AND
A.A.NAKKIRAN,J.
(aeb)
Judgment in
W.A.No.1877 of 2021
06.09.2021
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