Madras High Court

J.Suseela vs The Chairman Cum Managing ... on 23 February, 2022

                                                                         W.P.(MD) No.5076 of 2020



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED : 23.02.2022

                                                       CORAM

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM


                                              W.P.(MD) No.5076 of 2020

                     J.Suseela                                               ... Petitioner

                                                          -vs-

                     1. The Chairman cum Managing Director,
                        Tamil Nadu Generation Electricity
                         Distribution Corporation Ltd.,
                        144, Annasalai,
                        Chennai-600 002.

                     2. The Chief Engineer Personnel,
                        Tamil Nadu Generation Electricity
                          Distribution Corporation Ltd.,
                        144, Annasalai,
                        Chennai-600 002.

                     3. The Superintending Engineer,
                        Tamil Nadu Generation Electricity
                         Distribution Corporation Ltd.,
                        Dindigul Electricity Distribution Circle,
                        Dindigul.                                            ... Respondents




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                                                                                W.P.(MD) No.5076 of 2020




                     Prayer:- Petition filed under Article 226 of the Constitution of India praying

                     for issuance of Writ of Certiorarified Mandamus to call for the records

                     relating to the 3rd respondent's orders in his reference Nos.(1) Ka.No.

                     18435/681/Ni.Pi.2/U.1/Ko.Va.Ve/17 dated 25.11.2017 and his subsequent

                     order in his ref. No. Ka.No.20306/8050/Ni.Pi/U.1/Ko.Va.Ve/18 dated

                     05.10.2018 to quash the same and directing the respondents to consider the

                     petitioner for an appointment on compassionate grounds.


                                  For Petitioner     :         Mr.R.Thangasamy

                                  For Respondents    :         Mr.S.Arivalagan,
                                                               Standing Counsel


                                                          ******

                                                         ORDER

The order of rejection dated 25.11.2017 rejecting the claim of the

writ petitioner for compassionate appointment on the ground that during the

death of the deceased employee, the petitioner, daughter of the deceased

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employee, was living with her husband and therefore, as per the Board

proceedings, she is not eligible for compassionate appointment, and the

subsequent order dated 05.10.2018 are under challenge in the present writ

petition.

2.The fact remains that the father of the writ petitioner

Late.Mr.K.Jayaram was working as Foreman Grade-I and died on

29.08.2008 while he was in service. The mother of the writ petitioner has

not applied for compassionate appointment. However, the petitioner, who is

the daughter of the deceased employee, submitted an application for

compassionate appointment.

3.The learned counsel for the petitioner mainly contended that

subsequently during the year 2011, the Board issued a revised proceedings

stating that the married daughters are also eligible for appointment on

compassionate grounds. In view of the fact that the order of rejection was

passed in the year 2017, the policy adopted in the year 2011, to provide

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appointment to the married daughters, must be extended to the writ

petitioner.

4.The learned counsel for the petitioner further contended that the

petitioner, during the relevant point of time, was within the permissible age

limit for appointment as per the Board Regulations. However, now she has

crossed 40 years. But the age during the relevant point of time is to be

taken into consideration for extending the benefit of compassionate

appointment scheme.

5.The learned Standing Counsel for the respondents opposed the

said contention by stating that the date of death of an employee is the

consideration, which was shown by the authorities as per the terms and

conditions of the scheme of the compassionate appointment. Date of

rejection is immaterial and the date of death of the employee and the scheme

which was in force during the relevant point of time are to be applied for the

applications made for appointment. Thus, the reasons stated in the

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impugned order are in consonance with the terms and conditions of the

scheme.

6.Considering the arguments of the respective learned counsels

appearing on behalf of the parties to the lis on hand, this Court is of the

considered opinion that the scheme of compassionate appointment is an

exception and therefore, cannot be claimed as a matter of right. The scheme

is to be implemented strictly in accordance with the policy. The Hon'ble

Supreme Court of India in a very recent case in the case of Secretary to

Government, Department of Education (Primary) and Others vs.

Bheemesh Alias Bheemappa reported in 2021 SCC OnLine SC 1264

examined the application of the scheme of compassionate appointment with

reference to the earlier judgments of the Hon'ble Supreme Court.

7.In the said judgment, the Apex Court in unequivocal terms held

that “the rules of interpretation relating to 'substitution' are not to be applied

to the case of 'insertion of additional words'”. The various cases earlier

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decided by the Hon'ble Supreme Court were also considered by the Supreme

Court in the case cited supra and the details of those cases are as follows:-

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8.In para 17 of the judgment, the Apex Court made a critical

analysis in respect of all the earlier judgments of the Supreme Court and

made a finding as under:-

“17. Keeping the above in mind, if we critically analyse the way in which this Court has proceeded to interpret the applicability of a new or modified Scheme that comes into force after the death of the employee, we may notice an interesting feature. In cases where the benefit under the existing Scheme was taken away or substituted with a lesser benefit, this Court directed the application of the new Scheme. But in cases where the benefits under an existing Scheme were enlarged by a modified Scheme after the death of the employee, this Court applied only the Scheme that was in force on the date of death of the employee. This is fundamentally due to the fact that compassionate appointment was always considered to be an exception to the normal method of recruitment and perhaps looked down upon with lesser compassion for the individual and greater concern for the rule of law.”

9.In para 18, the Hon'ble Supreme Court again reiterated that

appointment on compassionate grounds is not automatic, but subject to strict

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scrutiny of various parameters including the financial position of the family,

the economic dependence of the family upon the deceased employee and the

avocation of the other members of the family. Therefore, no one can claim

to have a vested right for appointment on compassionate grounds. The

important aspect about the conflict of opinion is that it revolves around two

dates, viz., (i) date of death of the employee and (ii) date of consideration of

the application of the dependant. In this regard, para 19 of the judgment is

relevant, which reads as under:-

“19.The important aspect about the conflict of opinion is that it revolves around two dates, namely, (i) date of death of the employee; and (ii) date of consideration of the application of the dependant. Out of these two dates, only one, namely, the date of death alone is a fixed factor that does not change. The next date namely the date of consideration of the claim, is something that depends upon many variables such as the date of filing of application, the date of attaining of majority of the claimant and the date on which the file is put up to the competent authority. There is no principle of statutory interpretation which permits a decision on the applicability of a rule, to be based upon an indeterminate or variable factor. Let us take for instance a hypothetical case where 2 Government

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servants die in harness on January 01, 2020. Let us assume that the dependants of these 2 deceased Government servants make applications for appointment on 2 different dates say 29.05.2020 and 02.06.2020 and a modified Scheme comes into force on June 01, 2020. If the date of consideration of the claim is taken to be the criteria for determining whether the modified Scheme applies or not, it will lead to two different results, one in respect of the person who made the application before June 1, 2020 and another in respect of the person who applied after June 01, 2020. In other words, if two employees die on the same date and the dependants of those employees apply on two different dates, one before the modified Scheme comes into force and another thereafter, they will come in for differential treatment if the date of application and the date of consideration of the same are taken to be the deciding factor. A rule of interpretation which produces different results, depending upon what the individuals do or do not do, is inconceivable. This is why, the managements of a few banks, in the cases tabulated above, have introduced a rule in the modified scheme itself, which provides for all pending applications to be decided under the new/modified scheme.

Therefore, we are of the considered view that the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor.”

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10.The Hon'ble Supreme Court allowed the Civil Appeal filed by

the State and rejected the application of the respondent therein for

compassionate appointment. The findings of the Hon'ble Supreme Court

unambiguously stipulate that the scheme is to be implemented so as to serve

the purpose and object and to mitigate the circumstances arising on account

of the sudden death of the Government employee. It is not as if one

appointment is to be provided to the family of the deceased employee. The

scope of the scheme cannot be expanded by the Courts by granting a relief

of appointment. In such an event, the very constitutional scheme of

appointments based on the relevant Recruitment Rules are not only diluted

it will result in equal opportunity enunciated under the Constitution of

India. All appointments are to be made strictly in accordance with the rules

in force. Compassionate appointment, being an exception, to be restricted

to the extent and in accordance with the scheme. Thus, the scheme cannot

be extended in such circumstances and there is a long delay or the

applicants are not falling within the ambit of the scheme itself.