Madras High Court
M.Gnanavel vs The Director Of School Education on 1 August, 2023
W.A.No.2645 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.08.2023
CORAM :
THE HON'BLE MR. JUSTICE R. MAHADEVAN
AND
THE HON'BLE MR. JUSTICE MOHAMMED SHAFFIQ
W.A.No.2645 of 2022
M.Gnanavel ... Appellant
Vs.
1.The Director of School Education,
College Road,
Chennai - 600 006.
2.The District Education Officer,
Villupuram District,
Villupuram - 605 102. ... Respondents
Writ Appeal filed under Clause 15 of the Letters Patent, against the order
dated 26.08.2022 passed by the learned Judge in W.P.No.32385 of 2014.
For Appellant : Dr.E.Muralidharan
For respondents : Mr.S.Silambanan
Additional Advocate General
Assisted by Mr.S.Yashwanth
Additional Government Pleader
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JUDGMENT
(Judgment of the Court was delivered by R. MAHADEVAN, J.)
This writ appeal is directed against the order of dismissal dated 26.08.2022
passed by the learned Judge in W.P.No.32385 of 2014.
2. For the purpose of disposal of this appeal, facts of the case which are
germane and necessary, are stated as under:
2.1. The appellant's father V.Mayakrishnan, who was working as a
Headmaster in Panchayat Union Elementary School, Ammanankuppam,
Kandamangalam, Villupuram District, died in harness on 04.05.1995, leaving
behind his wife, four daughters and four sons as his legal heirs. The appellant
being one of the sons of the deceased employee, applied for compassionate
appointment on 30.10.1995 to the second respondent. However, the said
application was returned for want of certain details and documents, which were
duly complied with by the appellant. Even thereafter, no action was taken on the
same. Hence, the appellant filed W.P.No.3073 of 2006, which was disposed on
17.09.2009, with a direction to the appellant to produce the required documents
as called for by the second respondent and on production of the same, the
second respondent should consider the appellant's claim and pass orders on
merits and in accordance with law.
2.2. Pursuant to the aforesaid order, the appellant furnished all the
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details and documents to the second respondent. But, vide order dated
18.03.2010, the second respondent rejected the appellant's application on the
ground that the elder son of the deceased was alive and as such, the juniors are
not entitled to make application. Aggrieved by the same, the appellant preferred
WP.No.3056 of 2011, which by order dated 17.10.2012, was allowed by quashing
the order of the second respondent and remitting the matter for fresh
consideration.
2.3. Thereafter, the claim of the appellant seeking compassionate
appointment was reconsidered by the second respondent and was ultimately,
rejected by order dated 26.02.2013, on the premise that the appellant's family
was not in indigent circumstances and they possess immovable properties and are
deriving income from such immovable properties. Challenging the said order
dated 26.02.2013, the appellant filed the instant writ petition in W.P.No.32385 of
2014, which was dismissed by the learned Judge on 26.08.2022 stating that the
family possess immovable properties and the appellant is over aged and hence,
he is ineligible for appointment on compassionate grounds. Feeling aggrieved, the
appellant is before this court with the present appeal.
3. The learned counsel for the appellant made his submissions, assailing
the order passed by the learned Judge on the two grounds viz., the appellant is
not an indigent person and he is over-aged.
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3.1. Insofar as the first ground relating to non-indigent person, is
concerned, it is submitted by the learned counsel that the Tahsildar vide report
dated 01.01.2001 stated that the appellant owns 3.30 acres of agricultural land,
thereby earning a sum of Rs.80,000/- per year, however, the learned Judge
observed, as if the appellant was earning a sum of Rs.80,000/- per month.
Further, in the earlier two writ petitions filed by the appellant viz., W.P.No.3073
of 2006 and W.P.No.3056 of 2011, the learned Judges decided the matters in
favour of the appellant and directed the respondents to consider the application
of the appellant seeking appointment on compassionate grounds. By overlooking
those two orders, the learned Judge passed the order impugned in this appeal,
dismissing the writ petition filed by the appellant, which amounts to violation of
Doctrine of Stare Decisis. In support of the same, the learned counsel has
referred to the following decisions of the Apex Court:
(i) In Union of India v. S.K.Kapoor [Manu/SC/0246/2011], it was
held that it is well settled that if a subsequent co-ordinate bench of equa strength
wants to take a different view, it can only refer the matter to a larger bench, if a
bench takes a contrary to the settled decision, is a judgement per incuriam.
(ii) In Government of A.P. and another v. B.Satyanarayana Rao
[(2000) 4 SCC 262], it was held that the rule of per incuriam can be applied
where a court omits to consider a binding precedent of the same court or the
superior court rendered on the same issue or where a court omits to consider any
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statute while deciding that issue.
3.2. Regarding the ground of over-aged, it is contended by the learned
counsel for the appellant that the father of the appellant died on 04.05.1995 and
the appellant applied for compassionate appointment on 30.10.1995 and during
that time, the appellant was only 23 years, and now, the age of the appellant is
50 years and the delay of 27 years was due to the inaction and dubious acts of
the respondents and the lapse of time due to judicial process. Thus, the reasons
for the delay are absolutely not on the part of the appellant and hence, the same
cannot be fastened upon him. In support of the said contention, the learned
counsel has placed reliance on the decisions of the Apex Court in (i)Malaya
Nanda Sethy v. State of Orissa [2002 LiveLaw (SC) 522] and (ii)Chief
General Manager Telecommunications, BSNL and others v. Vidya Prasad
[(2021) SCC OnLine SC 840]; and the order in T.Aruljothi v. The Director
of School Education, DPI Campus, Chennai & Others [(2021) 5 MLJ 538]
rendered by one of us (RMDJ).
3.3. Continuing further, the learned counsel for the appellant submitted
that the appellant belongs to a poor agricultural family of downtrodden
community and he met with a road accident and due to the same, his left leg
below the knee got injured resulting in 40% disability. Stating so, the learned
counsel prayed to set aside the order passed by the learned Judge and to direct
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the authorities to consider the case of the appellant for compassionate
appointment to the post of Junior Assistant / Clerk, for which he is well qualified,
on humanitarian grounds.
4. Per contra, the learned Additional Advocate General appearing for the
respondents would submit that the Government has reviewed the earlier orders
and formulated the guidelines/conditions and issued consolidated instructions in
G.O.Ms.No.18, Labour and Employment (Q1) Department, dated 23.01.2020 and
according to the said G.O., the appellant is not eligible for concession under
compassionate grounds, as the family of the appellant was not in indigent
circumstances. The learned Additional Advocate General further submitted that
the whole object of granting compassionate employment is to enable the family to
tide over the sudden crisis and it cannot be claimed as a matter of right. Thus,
according to him, the learned Judge, on a proper appreciation of facts, rightly
dismissed the writ petition, by the order impugned in this appeal, which warrants
no interference in the hands of this Court.
5. Heard the learned counsel on either side and perused the materials
available on record, carefully and meticulously.
6. It is seen from the order impugned herein that the learned Judge
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rejected the claim of the appellant seeking appointment on compassionate
grounds stating that the family of the appellant was not in indigent
circumstances, as he was earning income at Rs.80,000/- per month through
agricultural land. The main contention of the learned counsel for the appellant is
that the appellant's income was Rs.80,000/- per annum, whereas the same was
misquoted as Rs.80,000/- per month by the learned Judge. To substantiate the
same, he drew the attention of this court to the Tahsildar's report dated
01.01.2001 which clearly stated that the appellant possesses 3.30 acres of
agricultural land and earns an annual sum of Rs. 80,000/-. However, this court is
of the view that such a contention cannot support the claim of the appellant
seeking compassionate appointment, as it is evident from the Tahsildar's report of
the year 2001 that the appellant owns 3.30 acres of agricultural land and earns
Rs.80,000/- per year, which does not fall under the category of an indigent
person. Even the income certificate dated 21.06.2023 recently obtained from the
Tahsildar, Vikkiravandi Taluk, Villupuram District, as to the present financial
position of the appellant, would disclose that his family's annual income is
Rs.90,000/- per annum, which also does not meet out the requirement that he is
in indigent circumstances and therefore, the appellant is ineligible to be
considered for compassionate appointment.
7. Admittedly, the application seeking compassionate appointment was
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originally, submitted by the appellant at the age of 23 years, to the second
respondent on 30.10.1995. After several rounds of litigation, the order impugned
in the present appeal has been passed in the year 2022, ultimately, rejecting the
claim of the appellant. As of now, the appellant is certainly over aged. Hence, it is
not feasible for considering his candidature for appointment at this length of time.
In this context, it will be useful to refer to the decision of the Hon'ble Supreme
Court in Fertilizers and Chemicals Travancore Ltd., & Ors., Vs. Anusree
K.B., [2022 LiveLaw (SC) 819], wherein, it was held that “the appointment on
compassionate ground made after a period of 24 years from the death of the
deceased employee, shall be against the object and purpose for which the same
is provided”. The relevant passage of the said judgment reads as follows:
“7. 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 the case of Director of Treasuries in Karnataka and Anr. Vs. V.
Somyashree, 2021 SCC Online SC 704, 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 summarised the principle governing the grant of appointment
on compassionate ground as under:-
(i) that the compassionate appointment is an exception to the general
rule;
(ii) that no aspirant has a right to compassionate appointment;
(iii) 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;
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(iv) 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;
(v) the norms prevailing on the date of the consideration of the
application should be the basis for consideration of claim for compassionate
appointment.
8. As per the law laid down by this Court in 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. 8.1 In the
case of State of Himachal Pradesh and Anr. Vs. Shashi Kumar reported in (2019)
3 SCC 653, this Court had an occasion to consider the object and purpose of
appointment on compassionate ground and considered the decision of this Court
in the case of Govind Prakash Verma Vs. LIC, reported in (2005) 10 SCC 289, in
paras 21 and 26, it is observed and held as under:-
“21. The decision in Govind Prakash Verma [Govind
Prakash Verma v. LIC, (2005) 10 SCC 289, 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 [Umesh Kumar
Nagpal v. State of Haryana, (1994) 4 SCC 138]. The principles
which have been laid down in Umesh Kumar Nagpal [Umesh
Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138] have
been subsequently followed in a consistent line of precedents in
this Court. These principles are encapsulated in the following
extract: (Umesh Kumar Nagpal case [Umesh Kumar Nagpal v.
State of Haryana, (1994) 4 SCC 138], SCC pp. 139-40, para 2)
“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 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
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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 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 v. State of Maharashtra [(2008) 11 SCC 384] 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. Thus, as per the law laid down by this Court in the aforesaid decisions,
compassionate appointment is an exception to the general rule of appointment in
the public services and is in favour of the dependents of a deceased dying in
harness and leaving his family in penury and without any means of livelihood,
and 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 such family a post much less a post held by the
deceased.
9.1 Applying the law laid down by this Court in the aforesaid decisions to
the facts of the case on hand and considering the observations made hereinabove
and the object and purpose for which the appointment on compassionate ground
is provided, the respondent shall not be entitled to the appointment on
compassionate ground on the death of her father, who died in the year 1995.
After a period of 24 years from the death of the deceased employee, the
respondent shall not be entitled to the appointment on compassionate ground. If
such an appointment is made now and/or after a period of 14/24 years, the same
shall be against the object and purpose for which the appointment on
compassionate ground is provided.
9.2 Under the circumstances, both, the learned Single Judge as well as
the Division Bench of the High Court have committed a serious error in directing
the appellants to reconsider the case of the respondent for appointment on
compassionate ground. The impugned judgment and order passed by the High
Court is unsustainable.”
Thus, it is vivid from the above judgment that compassionate appointment can
only be granted, when the deceased employee dies in harness, leaving his family
in penury and without any means of livelihood; that, such appointment is based
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on humanitarian grounds and aims to help the family overcome a sudden crisis,
and that, the object of granting compassionate employment is not to give such
family a post must less a post held by the deceased. Applying the said principle to
the facts of the present case, wherein, the family of the appellant is not in
indigent situation and hence, the appellant does not satisfy the eligibility criteria
stipulated in the Government Order in vogue, for considering him for grant of
compassionate appointment at this length of time.
8. Though the learned counsel for the appellant made a plea that the
earlier two writ petitions praying for appropriate direction to the respondent
authorities to consider his claim of compassionate appointment, were decided in
favour of the appellant, the order of the learned Judge which is impugned in this
appeal, overlooking the previous orders, amounts to violation of the doctrine of
stare decisis, the same cannot be countenanced by this court in view of the fact
that pursuant to the order dated 17.10.2012 passed in the second writ petition
no.3056 of 2011, the second respondent after detailed analysis of the facts and
circumstances of the case in the light of the documents / materials produced,
rejected the claim of the appellant on the ground that the family of the appellant
is not in indigent circumstances and the said ground is also validly established
through the recent income certificate issued by the competent authority. Further,
the decisions relied on by the learned counsel for the appellant, cannot be
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applicable to the facts of the present case, as they are factually distinguishable.
Thus, this court finds no reason much less valid reason to interfere with the order
of the learned Judge, dismissing the writ petition, thereby rejecting the claim of
the appellant.
9. In fine, the writ appeal fails and is accordingly, dismissed. No costs.
[R.M.D,J.] [M.S.Q, J.]
01.08.2023
rns
Speaking Order /Non-speaking order
Internet : Yes.
Index : Yes / No
To
1.The Director of School Education,
College Road,
Chennai - 600 006.
2.The District Education Officer,
Villupuram District,
Villupuram - 605 102.
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W.A.No.2645 of 2022
R. MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
rns
W.A.No.2645 of 2022
01.08.2023
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