Madras High Court

V.K.Elakkiya vs The Government Of Tamil Nadu on 12 September, 2022

                                                                               W.P.No.32399 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 12.09.2022

                                                      CORAM :

                            THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                          Writ Petition No.32399 of 2017

                     V.K.Elakkiya                                             ...Petitioner
                                                        -Vs-

                     1. The Government of Tamil Nadu,
                        Rep.by its Secretary to
                        Government School Education Dept.,
                        St.George Fort, Chennai-9

                     2. The Director of School Education,
                        College Road, Chennai-06,

                     3. The District Elementary Educational Officer,
                        Vellore District,
                        Vellore.

                     4. The Assistant Elementary Educational Officer,
                        K.V.Kuppam,
                        Vellore District.                             ...Respondents

                     Prayer: Writ Petition filed under Article 226 of the Constitution of India
                     praying for the issuance of a Writ of Certiorarified Mandamus or
                     direction or order in the nature of writ, calling for records pertaining to
                     impugned order of the 3rd respondent passed in Na.Ka.No.96/A1/2017
                     dated 14.02.2017 and quash the same and direct the 3rd respondent to
                     issue order of employment to the petitioner according to petitioner's
                     educational qualification.
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                                                                                      W.P.No.32399 of 2017



                                        For Petitioner      : Mr.M.Thamizhavel

                                        For Respondents : Mr.B.Vijay, AGP


                                                             ORDER

The order of rejection, rejecting the claim of the writ petitioner for

compassionate appointment, is under challenge in the present writ

petition.

2. The father of the writ petitioner, late V.Kumaran was working as

Secondary Grade Teacher and died on 03.09.2006 while he was in

service. The mother of the writ petitioner, Smt.G.Sudha Devi presented

an application on 20.08.2007 to the fourth respondent, seeking

employment on compassionate grounds. However, her application was

not considered by the respondents stating that the mother of the writ

petitioner was not possessing certain qualifications which were sought

for.

3. The learned counsel for the petitioner states that no such

information was given to the mother of the writ petitioner. May that as it

be. The matter was pending for few years and the application submitted

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W.P.No.32399 of 2017

by the mother of the writ petitioner was not considered for appointment.

The petitioner was a minor at the time of the death of her father. On

attaining the age of majority, she submitted an application on 24.10.2016

and the said application was not considered by the authorities. Thus, the

petitioner filed W.P.No.41266 of 2016 and this Court directed the

authorities to consider the representation and pass orders. Pursuant to the

directions issued by this Court, the order impugned dated 14.02.2017

was issued. The order impugned states that the petitioner submitted an

application after a lapse of about 10 years from the date of the death of

her father and therefore, the application is not entertainable with

reference to the terms and conditions of the scheme of compassionate

appointment.

4. The learned counsel for the petitioner made a submission that

the mother submitted an application within a period of three years. The

said application was not properly considered by the authorities for which

the applicant cannot be penalized. The petitioner was a minor during the

relevant point of time. Thus, she had submitted an application seeking an

appointment on compassionate grounds on 24.11.2016 and therefore, the

case of the petitioner is to be considered. https://www.mhc.tn.gov.in/judis

W.P.No.32399 of 2017

5. The learned Additional Government Pleader appearing on

behalf of the respondents objected to the said contentions by stating that

the petitioner submitted an application after a lapse of many years from

the date of the death of the deceased employee. The application

submitted by the mother of the writ petitioner was not considered in view

of the fact that the mother was not eligible for appointment. As per the

terms and conditions of the scheme, the second application filed by

another legal heir of the deceased employee is not entertainable and

further the application itself was submitted beyond the period of three

years from the date of the death of the deceased employee, thus, the case

of the writ petitioner cannot be considered.

6. Compassionate appointment is a concession and can never be

claimed as an absolute right. Scheme being violative of the Articles 14

and 16 of the Constitution of India, is to be implemented strictly in

accordance with the terms and conditions stipulated. The very purpose

and object of the scheme of compassionate appointment is to mitigate the

circumstances arising on account of the sudden death of an employee.

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W.P.No.32399 of 2017

7. Compassionate appointment is to be provided within a

reasonable period of time from the date of death of the deceased

employee. Lapse of time would also provide a ground to draw a factual

inference that the penurious circumstances aroused on account of the

sudden death of an employee became vanished. Thus, Courts have

repeatedly held that compassionate appointment cannot be granted after

several years. It is not as if the scheme is contemplated to provide

appointment to the family of the deceased employee.

8. Even recently, the Hon'ble Supreme Court, in the case of State

of Uttar Pradesh and Others vs. Premlata reported in (2022) 1 SCC 30,

made observations in respect of implementation of the scheme of

compassionate appointment and the relevant portion of the order is

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

W.P.No.32399 of 2017

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 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

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W.P.No.32399 of 2017

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 the object and purpose of appointment on compassionate ground and considered decision of this Court in Govind Prakash Verma vs. 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

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W.P.No.32399 of 2017

liberty to follow any other procedure or relax the qualifications laid down by 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 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 https://www.mhc.tn.gov.in/judis

W.P.No.32399 of 2017

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 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 vs. 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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9. In view of the facts and circumstances, this Court do not find

any infirmity in respect of the orders passed by the respondent. As of

now, 16 years lapsed from the date of the death of the deceased

employee. The scheme of Compassionate Appointment, being a

concession and not a right, cannot be extended now after a lapse of 16

years from the date of the death of the deceased employee. It is not as if

one employment should be provided to the family of the deceased

employee. The very purpose and object of the scheme is to mitigate the

circumstances which arises on account of the sudden death of an

employee and even lapse of time is also a ground to draw an inference