Madras High Court
K.Surya Prakash vs The Principal Director on 24 November, 2023
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).No.25436 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 20.11.2023
ORDER PRONOUNCED ON : 24.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).No.25436 of 2023
K.Surya Prakash ....Petitioner
Vs
1.The Principal Director
Highways Department
Chennai 600 025
2.The Divisional Engineer (NH)
Nabard and Village Roads
Pudukkottai ...Respondents
Prayer: This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, to call for the records from the first
respondent in his proceedings in Fwpg;ghiz vz;.; 0518/eph; 1(2)/2021 dated
23.04.2021 and quash the same consequently direct the respondents to
provide employment to the petitioner in anyone of the suitable post on
compassionate ground in view of the death of his father namely
Kaliyaperumal within the period stipulated by this Court.
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1/14
W.P(MD).No.25436 of 2023
For Petitioner : Mr.N.Sathish Babu
For Respondents : Mr.J.Ashok
Additional Government Pleader
ORDER
The present writ petition has been filed challenging an order dated
23.04.2021 passed by the first respondent herein rejecting the request of the
petitioner for compassionate appointment.
(A).The undisputed facts are as follows:
2.The petitioner's father was working as a Junior Drafting Officer in
the second respondent office and he passed away on 29.01.2015 while in
service. At the time of death of his father, the petitioner was aged about 14
years and 11 months. The petitioner's mother submitted an application on
28.11.2017 seeking appointment for the petitioner on compassionate ground
as soon as he attains the age of majority.
3.The petitioner and the respondents herein were continuously
communicating with each other for production of various documents.
Ultimately under the impugned order dated 23.04.2021, the request of the
petitioner was rejected citing G.O(Ms).No.18, Labour and Employment
Department dated 23.01.2020 wherein the minimum age for filing application
for compassionate appointment is prescribed as 18 years. Challenging the
same, the present writ petition has been filed.
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(B).Contentions of the learned counsel for the petitioner:
4.The application seeking compassionate appointment has been
submitted well within a period of three years from the date of death of the
petitioner's father. G.O(Ms).No.18, Labour and Employment Department was
brought into force only on 23.01.2020. Therefore, the condition imposed in
the said G.O will not be applicable to the case of the petitioner.
5.In view of sudden death of the petitioner's father, the family
continuous to be in a distress condition which was solely depending upon the
income of the petitioner's father.
6.Where penurious circumstances continues, without strictly applying
the Government Orders, the authorities should take a sympathetic view and
consider the case of the petitioner for compassionate appointment.
7.The Government of Tamil Nadu has notified the statutory rules under
G.O(Ms).No.33 Larbour Welfare and Skill Development (Q1) Department,
dated 08.03.2023 wherein a minor is eligible to file an application seeking
compassionate appointment. As per policy of the Government, the minor is
entitled to make an application.
8.The Hon'ble Division Bench of this Court in a judgment reported in
WA(MD).No.1063 of 2022 (The Superintendent of Police Vs.H.Sridevagi)
dated 20.09.2022 has dismissed the appeal filed by the State confirming the
grant of compassionate appointment to a candidate who was a minor at the
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time of filing an application. Hence, he prayed for allowing the writ petition.
(C).Contentions of the learned Additional Government Pleader are
as follows:
9.The appointment of compassionate ground can be made only on the
basis of scheme. Unless the scheme permits a minor to make an application,
the authorities have no other option than to reject the application.
10.As per G.O.Ms.No.155, Labour and Employment Department dated
10.12.2014, not only for appointment, even for making an application for
appointment on compassionate ground, the applicant should be a major.
11. G.O(Ms).No.18, Labour and Employment Department which was
brought into force on 23.01.2020 was operating on the date when the
impugned order was passed. Therefore, the request of the petitioner can be
considered only under the said Government Order. The petitioner cannot rely
upon a Government Order that was passed two years after passing of the
impugned order. Hence, he prayed for dismissal of the writ petition.
12.I have considered the submissions made on either side and perused
the material records.
(D).Discussion:
13.The following issue arises for consideration:
(i)What is the Scheme or Rule to be applied for considering an
application seeking compassionate appointment?
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(ii)Whether the Authorities have any power to make
compassionate appointment dehors of the Scheme/Rule?
(iii)Whether the application seeking compassionate appointment
by a minor can be entertained by the authorities?
(D.1).Applicable Scheme:
14.The Hon'ble Supreme Court in a judgement reported in (2020) 7
SCC 617 (N.C.Santhosh Vs. State of Karnataka and others) in paragraph
No.19 has held as follows:
“19.Applying the law governing compassionate appointment
culled out from the above cited judgments, our opinion on the point
at issue is that the norms, prevailing on the date of consideration of
the application, should be the basis for consideration of claim for
compassionate appointment. A dependent of a government
employee, in the absence of any vested right accruing on the death
of the government employee, can only demand consideration of
his/her application. He is however, disentitled to seek consideration
in accordance with the norms as applicable, on the day of death of
the government employee.”
15.In view of the above said judgment of the Hon'ble Supreme Court, it
is clear that the scheme that is prevailing on the date of consideration of the
application for compassionate appointment alone will prevail. The aspirant
cannot seek to rely upon any scheme prevailing before the date of
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consideration or after the date of consideration. Therefore, in the present case,
the petitioner cannot rely G.O(Ms).No.33 Labour Welfare and Skill
Development (Q1) Department, dated 08.03.2023 which has been passed two
years after the date of the impugned order.
(D.2).Appointments to be made strictly as per Scheme:
16.The petitioner's father had passed away on 29.01.2015 and an
application seeking appointment has been submitted by the petitioner's
mother on behalf of the petitioner on 28.11.2017. The petitioner had attained
majority on 18.12.2020. The impugned order has been passed on 23.04.2021.
The Government has passed G.O.Ms.No.155, Labour and Employment
Department dated 10.12.2014 wherein it has been specifically pointed out that
from 04.05.2010 onwards unless the legal heirs/aspirant for compassionate
appointment had completed 18 years, he will not be eligible to make an
application.
17. In G.O(Ms).No.18, Labour and Employment Department which
was brought into force on 23.01.2020, it has been specifically pointed out that
at the time of submitting an application, the aspirant should have completed
18 years. Therefore, it is clear that on the date of death of the petitioner's
father, on the date of making of application and on the date when the
impugned order came to be passed, a minor was not entitled to make an
application seeking compassionate appointment as per the scheme.
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18.The Hon'ble Supreme Court in a judgment reported in (2007) 4 SCC
778 (State Bank of India and another Vs. Somvir Singh) in paragraph No.10
has held as follows:
“10.......... In our considered opinion the claim for
compassionate appointment and the right, if any, is traceable
only to the scheme, executive instructions, rules etc. framed by
the employer in the matter of providing employment on
compassionate grounds. There is no right of whatsoever nature
to claim compassionate appointment on any ground other than
the one, if any, conferred by the employer by way of scheme or
instructions as the case may be.”
19.The Hon'ble Supreme Court in a judgment reported in (2019) 3
SCC 653 (State of Himachal Pradesh and another Vs.Shashi Kumar) in
paragraph No.18 has held as follows:
“18...... Where the authority finds that the financial and other
circumstances of the family are such that in the absence of
immediate assistance, it would be reduced to being indigent, an
application from a dependant member of the family could be
considered. The terms on which such applications would be
considered are subject to the policy which is framed by the State
and must fulfil the terms of the Policy. In that sense, it is a
well-settled principle of law that there is no right to
compassionate appointment. But, where there is a policy, a
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dependant member of the family of a deceased employee is entitled
to apply for compassionate appointment and to seek consideration
of the application in accordance with the terms and conditions
which are prescribed by the State.”
20.In view of the judgments of the Hon'ble Supreme Court cited supra,
it is clear that any request for compassionate appointment should be
considered strictly in accordance with the scheme or policy framed by the
Government. Dehors of the said scheme or policy, the aspirant could not have
any right to claim compassionate appointment. Therefore, in the present case,
as per the Scheme prevailing on the date of consideration of the application
of the petitioner, a minor's application cannot be considered. There is no
possibility to deviate from the Scheme and no discretion has been vested
upon the authorities. This Court is not in a position to direct any appointment
in deviation/dehors of the scheme framed by the State.
(D.3).Right of minor to submit application:
21.The Hon'ble Supreme Court in a judgment reported in (2000) 7
SCC 192 ( Sanjay Kumar Vs. State of Bihar and others) in paragraph No.3
has held as follows:
“3......It is also Significant to notice that on the date when
the first application was made by the petitioner on 2.6.88, the
petitioner was a minor and was not eligible for appointment.
This is conceded by the petitioner. There cannot be reservation
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of a vacancy till such time as the petitioner becomes a major
after a number of years, unless there is some specific provisions.
The very basis of compassionate appointment is to see that the
family gets immediate relief. “
22.The Hon'ble Supreme Court in a judgment reported in (2004) 12
SCC 487 (National Hydroelectric Power Corporation and another Vs.
Nanak Chand and another) in paragraph No.7 has held as follows:
“7....The fact that the ward was a minor at the time of
death of his father is no ground, unless the scheme itself
envisage specifically otherwise, to state that as and when such
minor becomes a major he can be appointed without any time
consciousness or limit. .....”
23.The Hon'ble Supreme Court in a judgment reported in (2011) 13
SCC 42 (Local Administration Department and another Vs.
M.Selvanayagam Alias Kumaravelu) in paragraph Nos.13 and 14 has held as
follows:
“13. In this case the respondent was only 11 years old at
the time of the death of his father. The first application for his
appointment was made on July 2, 1993, even while he was a
minor. Another application was made on his behalf on attaining
majority after 7 years and 6 months of his father's death. In such
a case, the appointment cannot be said to sub-serve the basic
object and purpose of the scheme. It would rather appear that
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on attaining majority he staked his claim on the basis that his
father was an employee of the Municipality and he had died
while in service.
14.In the facts of the case, the municipal authorities were
clearly right in holding that with whatever difficulty, the family
of Meenakshisundaram had been able to tide over the first
impact of his death. That being the position, the case of the
respondent did not come under the scheme of compassionate
appointments.”
24.A Division Bench of our High Court in a judgement reported in
2016 (5) CTC 125 (The Inspector General of Prisons, Trichirappalli
District and another Vs.P.Marimuthu) in paragraph Nos.38 and 39 has held
as follows:
“38. Needless to state that for entry into any service in the
State, the minimum age is 18 years, and no minor can be appointed
to any service. Therefore, he cannot make any application for
appointment to any post in service and no post can be kept vacant
for him, till he attains majority. Posts which fall vacant have to be
filled up as per the recruitment rules. Employment assistance on
compassionate appointment, is only a concession, extended to an
eligible member of the family, to apply for a suitable post, in the
service, in which, the employee/Government servant died in
harness and it is not a right, which can be exercised by a minor on
attainment of majority.
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39. Thus, for the reasons stated supra, we are of the view
that continuation of penury or indigent circumstances of the family,
alone is not the factor to be considered by the department, while
examining the request of an applicant for appointment on
compassionate grounds. Reading of the Government orders shows
that scheme can be extended only to eligible member of the family
and not to an ineligible person. Scheme has not been framed to
provide employment assistance as and when the son or daughter of
the deceased employee attains majority. Under the scheme, the
department is not obligated to keep any post vacant, till the
applicant attains majority or to consider his candidature on
attaining majority. Scheme only enables those who are eligible and
satisfy all the eligibility criteria including age, within three years
from the date of death.”
25.In view of the judgments of the Hon'ble Supreme Court and the
Division Bench of our High Court, it is clear that a minor cannot make an
application seeking compassionate appointment and the post cannot be kept
vacant till he attains majority unless there are some specific provisions in the
Scheme. In the present case, as per the Scheme prevailing on the date of
consideration of the application, a minor was not eligible to submit an
application seeking compassionate appointment. Therefore, even though the
application seeking appointment was filed within a period of three years by
the petitioner through his mother, the same is an invalid application in view of
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the fact that such an application has been presented on behalf of an ineligible
person to get an appointment
(E).Conclusion:
26.In view of the above said deliberations, this Court is of the
considered opinion that the authorities have rightly rejected the application
seeking compassionate appointment based upon the Scheme prevailing on the
date of consideration of the application. Therefore, there are no merits in the
writ petition. The writ petition stands dismissed. No costs.
24.11.2023
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
msa
https://www.mhc.tn.gov.in/judis
To
1.The Principal Director
Highways Department
Chennai 600 025
2.The Divisional Engineer (NH)
Nabard and Village Roads
Pudukkottai
https://www.mhc.tn.gov.in/judis
R.VIJAYAKUMAR, J.
msa
Pre-delivery order made in
24.11.2023
https://www.mhc.tn.gov.in/judis
