Madras High Court
R.Hariharan vs The Tamil Nadu Electricity Board on 23 February, 2022
W.P.(MD) No.3093 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.3093 of 2020
R.Hariharan ... Petitioner
Vs.
1.The Tamil Nadu Electricity Board,
Rep.by its Chairman,
The Chairman,
Anna Salai,
Chennai-2.
2.The Superintendent Engineer,
Dindigul Electricity Division,
Meenatchi Nayakanpatti,
Dindigul Division. ... Respondents
Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus, calling for the
records of the second respondent letter No.No.22836/937/epgp/2-c/1-
nfh/thnt-18 dated 29.10.2018 herein and quash the same and
consequently directing the respondents to give the petitioner appointment
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on compassionate ground on par with the petitioners thereon.
For Petitioner : Mr.G.Balumahendran
For Respondent : Mr.S.Arivalagan
******
ORDER
The order of rejection rejecting the claim of the writ petitioner for
compassionate appointment on the ground that the application seeking
appointment itself was filed beyond the period of three years is under
challenge in the present Writ Petition.
2. The father of the writ petitioner was working as Line Inspector
in the Tamil Nadu Electricity Board and died on 27.06.2015, while he was
in service. The petitioner submitted a representation, when he was a minor.
However, the application was not considered on account of the fact that the
petitioner had not completed the age of 18 years. Therefore, the petitioner,
on completion of 18 years of age, submitted another application on
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W.P.(MD) No.3093 of 2020
22.10.2018. The said application was considered by the Competent
Authority and rejected on the ground that the eligible application was
submitted by the petitioner after a period of three years from the date of
death of the employee.
3. The learned counsel appearing for the petitioner made a
submission that the petitioner submitted his first application within a period
of three years. Therefore, the petitioner is eligible to be considered for
appointment on compassionate grounds.
4. This Court is of the considered opinion that at the time of
submission of the first application, the petitioner was a minor and therefore,
the application itself is not entertainable. On attaining the age of majority,
he has submitted another application. At that time, the period of three years
lapsed. No doubt, the petitioner met loss of an opportunity of appointment
on compassionate grounds. However, the scheme of compassionate
appointment is a concession and therefore, the same cannot be construed as
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W.P.(MD) No.3093 of 2020
an absolute right. The appointment on compassionate ground is an
exception. Therefore, the scheme is to be strictly implemented in accordance
with the terms and conditions of the scheme and any violation would lead to
discrimination and denial of opportunity to all other eligible persons, who
are all aspiring to secure public employment through open competitive
process.
5. The scheme of compassionate appointment was introduced to
mitigate the circumstances arising on account of sudden demise of the
Government Employee. Compassionate appointment is not a regular
appointment, nor an appointment under the constitutional scheme. It is a
concession granted to the Government employees on certain exceptional
circumstances. Thus, the compassionate appointment can never be claimed
as a matter of right and only if a person is entitled under the terms and
conditions, then alone the scheme can be extended, but not otherwise.
Equal opportunity in public employment is a constitutional mandate. All
appointments are to be made in accordance with the rules and by providing
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equal opportunity to participate in the process of selection.
6. As far as the compassionate appointments are concerned, no
selection is conducted, no suitability or eligibility are tested, but persons are
appointed merely based on death of an employee. Therefore, compassionate
appointment is to be restricted in the interest of the efficient public
administration. No doubt, the Government has also restricted the
compassionate appointments and it is to be extended only to the deserving
family and more so, after a lapse of many years. Providing compassionate
appointment after a lapse of many years would not only defeat the purpose
and object of the scheme, but also the penurious circumstances arose on
account of the sudden death became vanished. Thus, the lapse of time is
also a ground to reject the claim for compassionate appointment. Number of
judgments are delivered by this Court and the Government has also issued
revised instructions for providing compassionate appointment in G.O.(Ms)
No.18, Labour and Employment (Q1) Department, dated 23.01.2020.
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7. Even recently, the Honourable Supreme Court in the case of
State of Uttar Pradesh and Others vs. Premlata, reported in (2022) 1 SCC
30, has made observations in respect of implementation of the scheme of
compassionate appointment and the relevant portion of the observations are
extracted hereunder:
“8. While considering the issue involved in the
present appeal, the law laid down by this Court on
compassionate ground on the death of the deceased
employee are required to be referred to and considered. In
the recent decision, this Court in State of Karnataka vs.
V.Somayashree [(2021) 12 SCC 20], had occasion to
consider the principle governing the grant of appointment
on compassionate ground. After referring to the decision
of this Court in N.C.Santhosh vs. State of Karnataka
[(2020) 7 SCC 617], this Court has summarized the
principle governing the grant of appointment on
compassionate ground as under:
10.1. That the compassionate appointment is
an exception to the general rule;
10.2. That no aspirant has a right to
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compassionate appointment;
10.3. The appointment to any public post in
the service of the State has to be made on the basis
of the principle in accordance with Articles 14 and
16 of the Constitution of India;
10.4. Appointment on compassionate ground
can be made only on fulfilling the norms laid down
by the State’s policy and/or satisfaction of the
eligibility criteria as per the policy;
10.5. The norms prevailing on the date of the
consideration of the application should be the basis
for consideration of claim for compassionate
appointment.
9. As per the law laid down by this Court in a catena of
decisions on the appointment on compassionate ground, for all
the government vacancies equal opportunity should be provided
to all aspirants as mandated under Articles 14 and 16 of the
Constitution. However, appointment on compassionate ground
offered to a dependent of a deceased employee is an exception
to the said norms. The compassionate ground is a concession
and not a right.
9.1. In the case of H.P. v. Shashi Kumar [(2019) 3 SCC
653], this Court in paras 21 and 26 had an occasion to consider
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W.P.(MD) No.3093 of 2020
the object and purpose of appointment on compassionate
ground and considered decision of this Court in Govind
Prakash Verma v. LIC [(2005) 10 SCC 289], it is observed and
held as under:
“21. The decision in Govind Prakash
Verma, has been considered subsequently in
several decisions. But, before we advert to those
decisions, it is necessary to note that the nature of
compassionate appointment had been considered
by this Court in Umesh Kumar Nagpal v. State of
Haryana [(1994) 4 SCC 138]. The principles
which have been laid down in Umesh Kumar
Nagpal have been subsequently followed in a
consistent line of precedents in this Court. These
principles are encapsulated in the following
extract:
“2. … As a rule, appointments in the public
services should be made strictly on the basis of
open invitation of applications and merit. No other
mode of appointment nor any other consideration
is permissible. Neither the Governments nor the
public authorities are at liberty to follow any other
procedure or relax the qualifications laid down by
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the rules for the post. However, to this general rule
which is to be followed strictly in every case, there
are some exceptions carved out in the interests of
justice and to meet certain contingencies. One
such exception is in favour of the dependants of an
employee dying in harness and leaving his family
in penury and without any means of livelihood. In
such cases, out of pure humanitarian
consideration taking into consideration the fact
that unless some source of livelihood is provided,
the family would not be able to make both ends
meet, a provision is made in the rules to provide
gainful employment to one of the dependants of the
deceased who may be eligible for such
employment. 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
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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. The posts in Classes III and IV are the
lowest posts in non-manual and manual categories
and hence they alone can be offered on
compassionate grounds, the object being to relieve
the family, of the financial destitution and to help it
get over the emergency. The provision of
employment in such lowest posts by making an
exception to the rule is justifiable and valid since it
is not discriminatory. The favourable treatment
given to such dependant of the deceased employee
in such posts has a rational nexus with the object
sought to be achieved viz. relief against
destitution. No other posts are expected or
required to be given by the public authorities for
the purpose. It must be remembered in this
connection that as against the destitute family of
the deceased there are millions of other families
which are equally, if not more destitute. The
exception to the rule made in favour of the family
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of the deceased employee is in consideration of the
services rendered by him and the legitimate
expectations, and the change in the status and
affairs, of the family engendered by the erstwhile
employment which are suddenly upturned.”
“26. The judgment of a Bench of two Judges in
Mumtaz Yunus Mulani v. State of Maharashtra
[Mumtaz Yunus Mulani v. State of Maharashtra,
(2008) 11 SCC 384 : (2008) 2 SCC (L&S) 1077]
has adopted the principle that appointment on
compassionate grounds is not a source of
recruitment, but a means to enable the family of
the deceased to get over a sudden financial crisis.
The financial position of the family would need to
be evaluated on the basis of the provisions
contained in the scheme. The decision in Govind
Prakash Verma [Govind Prakash Verma v. LIC,
(2005) 10 SCC 289 : 2005 SCC (L&S) 590] has
been duly considered, but the Court observed that
it did not appear that the earlier binding
precedents of this Court have been taken note of in
that case.”
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8. In view of the fact that the case of the petitioner is not falling
within the ambit of scheme of compassionate appointment, this Court do not
find any infirmity in respect of order of rejection passed by the respondents.
9. Accordingly, the Writ Petition stands dismissed. No costs.
Connected miscellaneous petitions are closed.
23.02.2022
ssb
To
1.The Tamil Nadu Electricity Board,
Rep.by its Chairman,
The Chairman,
Anna Salai,
Chennai-2.
2.The Superintendent Engineer,
Dindigul Electricity Division,
Meenatchi Nayakanpatti,
Dindigul Division.
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W.P.(MD) No.3093 of 2020
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S.M.SUBRAMANIAM, J.
ssb
W.P.(MD) No.3093 of 2020
23.02.2022
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