Madras High Court
P.Praveena vs The Joint Commissioner on 20 September, 2023
W.P.(MD).No.26845 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.09.2023
CORAM
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD).No.26845 of 2022
P.Praveena ... Petitioner
Vs.
1.The Joint Commissioner,
Tamil Nadu Educational Department,
Chennai.
2.The Chief Educational Officer,
Virudhunagar District,
Virudhunagar. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, to call for the
records pertaining to the order passed by the second respondent in N.M.No.
4979/A1/2021, dated 05.04.2022 and quash the same as illegal and
consequently direct the second respondent to appoint the petitioner under
compassionate ground in the office of the second respondent.
For Petitioner : Mr.D.Selvanayagam
for Mr.M.P.Balamurugan
1/15
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For Respondents : Mr.N.Ramesh Arumugam
Government Advocate
ORDER
The present writ petition has been filed for a Writ of Certiorarified
Mandamus, to call for the records pertaining to the order passed by the second
respondent in N.M.No.4979/A1/2021, dated 05.04.2022 and quash the same as
illegal and consequently direct the second respondent to appoint the petitioner
under compassionate ground in the office of the second respondent.
2. Heard the learned Counsel for the petitioner and the learned
Government Advocate for the respondents and carefully perused the materials
available on record.
3. The petitioner's father was working as a Physical Education Teacher at
Virudhunagar under the second respondent. While in service, on 31.03.2014, he
passed away. He was survived by the petitioner's mother, the petitioner and her
sister. The petitioner's elder sister Pradeepa's husband passed away and along
with her two minor children she is residing with the petitioner and her mother
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as of now from the date of death of her husband. The petitioner's mother
submitted an application for compassionate appointment for the petitioner on
15.12.2014 to the second respondent. The petitioner's mother was serving as a
Teacher for a period of 6 years and 8 months and on attaining her age of
superannuation, she retired from service on 30.06.2014, (i.e.,) within three
months from the date of death of the petitioner's father. At the time of
submitting the application seeking appointment on compassionate ground, the
petitioner's mother had retired from service and no other person from the family
of the petitioner are working either in Government or private sectors. While so,
the impugned order, dated 05.04.2022, rejecting the petitioner's application
seeking compassionate appointment, on the ground that on the date of death of
her father, the petitioner's mother had been in service. Assailing the same, this
writ petition came to be filed.
4. The learned Government Advocate for the respondents have filed
counter and he submitted that since the petitioner's mother was working on the
date of death of the employee, in terms of G.O(Ms)No.998 of the Labour and
Service, dated 02.05.1981, the petitioner's request for granting appointment on
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compassionate ground could not be positively considered and hence, the same
was rejected and on that basis, sought for dismissal of this writ petition.
5. However, in the facts and circumstances of the instant case, the same
in no more res integra and this Court in a similar case in W.P.No.3261 of 2021
(S.Archana Vs. The Secretary to Government, School Education
Department, Fort St. George, Chennai-9), dated 21.06.2023 has passed
favorable order to the petitioner thereat and the relevant portion of which is
extracted as follows:
"13. ............In the meanwhile, the State Government has
issued G.O(Ms)No.18 Labour and Employment (Q1) Department,
dated 23.01.2020. A copy of the aforesaid Government Order is
placed before this Court. It is stated in the said Government Order
that the scheme of Compassionate Ground appointment was
introduced by the Government in the year 1972, and the salient
features of the scheme is extracted hereunder:-
“Employment is to be provided by relaxing the
normal procedure of recruitment through employment
exchanges to the legal heirs of the Government Servants
who dies in harness leaving his family in indigent
circumstances.
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It is a welfare measure of the Government to help
the legal heirs of the deceased Government Servants
appreciating their service rendered by them for the
Government.
Compassionate Ground appointment cannot be
claimed as a matter of right. It is a scheme devised by the
Government to help the needy legal heirs whose lives are
at distress after the Government Servants dies in
harness.”
14. It appears in compliance of the order dated 19.06.2019, in
writ petition in W.P(MD)No.20900 of 2015 of the Madurai Bench of
Madras High Court and some other orders passed by the High
Court Madras, the State Government has examined the whole issue
of Compassionate Ground Appointment in detail and issued
comprehensive guidelines in supersession of the orders issued
earlier and issued G.O(Ms)No.18 Labour and Employment
Department, dated 23.01.2020, the relevant guidelines are extracted
hereunder for adjudication of the issue involved in the present writ
petition:-
“(i) Son / Unmarried Daughter / Wife / Husband /
legally adopted son / legally Unmarried adopted
daughter / widowed daughter / divorced daughter /
deserted daughter of the deceased Government servant.
(ii) Father / Mother and unmarried brothers and
unmarried sisters of the unmarried deceased Government
Servants.
(iii) Married daughter of the deceased Government
Servant who is otherwise eligible.
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(iv) If any person, in the deceased Government
Servant's family was employed even before the death of
the Government servant but was living separately
without extending any help to the family, then the case of
other eligible dependant will be considered.
(v) If any dependant / dependants of deceased
Government Servant is / are employed in Military
Service, one of the other dependants is eligible for
appointment under compassionate ground.
(vi) If any member of the deceased Government
Servant's family is working on Temporary / part time
basis as noon-meal organizer and helpers, and those who
work on daily wages, the other dependants of the family
may be considered for providing appointment.”
15. On perusal of the above guidelines, it appears that the
guideline No.IV is considered by the respondents to reject the claim
of the petitioner. On careful examination of the said guideline
No.IV. It appears that if any person in the deceased Government
Servant family was employed even before the death of the
Government servant, but was living separately without extending
any help to the family, then the case of the other eligible person will
be considered.
16. On careful examination of the guideline No.IV, this Court
has no hesitation to observe that the respondents without
understanding the guideline No.IV in proper manner and
misinterpreting the same, rejected the claim of the petitioner. There
is no dispute that the brother of the petitioner who is the son of the
deceased Government servant i.e, one S.Tamil Selvan aged about 30
years, married long back and living separately. There is no material
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W.P.(MD).No.26845 of 2022
placed by the respondents to substantiate their contention that the
brother of the petitioner is living with the petitioner / deceased
Government servant family and he is extending any help to the
family by supporting financially. In the absence of placing such
material before the Court by the respondents, it has to accepted that
the brother of the petitioner is living separately as already he got
married and with the meagre income he derives from the private
employment, he is not in a position to extend any help or financial
support to the family of the deceased Government Servant.
17. Under these circumstances, it has to be held that the
respondents rejected the claim of the petitioner without considering
the guidelines issued by the State Government in G.O(Ms)No.18
Labour and Employment Department, dated 23.01.2020 in proper
manner. As such, the action of the respondents in rejecting the claim
of the petitioner for compassionate appointment is held as illegal,
arbitrary and unjust and contrary to the aims and object of the
G.O(Ms)No.18 Labour and Employment (Q1) Department, dated
23.01.2020.
18. The opinion of this Court has fortified by the reported
judgment of this Court in 2020 SCC Online Mad 7543 in the case of
K.Ilayarani Vs. The District Collector, Madurai District, Madurai.
The relevant paragraphs in the said order is extracted hereunder:-
"11. The paragraph 3 of G.O(Ms)No.155 and
Clause 4 of G.O(Ms)No.18 were sought to be given an
interpretation by the respondent to state that, since the
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said clauses enabling the employer to consider the other
legal heir for the purpose of compassionate appointment,
if the family of the deceased Government servant is not
looked after by other legal heir, who is already in service
and getting a permanent salary even prior to the death of
the Government servant. Therefore, the respondent has
come to the conclusion that, here in the case in hand, it is
not the case, where, one of the legal heir of the deceased
Government servant, who not got a job prior to the death
of the Government servant, but only after the death of the
Government servant. Therefore, even though the said
legal heir, who, after getting a Government job
permanently, is not able to look after the family of the
deceased Government servant, the other legal heir
cannot be considered for the compassionate appointment,
as such kind of situation is not supported either under
paragraph No.3 of the G.O(Ms)No.155 or under Clause 4
of the G.O(Ms)No.18. This interpretation, in the
considered opinion of this Court, as has been given by
the respondent through the impugned order, is
thoroughly detrimental to the intention of the
Government, where the Government issued these two
G.Os., as illustratively given a situation, where, even if
already a legal heir of the deceased Government servant
is in a permanent job or a Government job well prior to
the death of the Government servant, the other legal heir
of the deceased Government servant can be considered
for compassionate appointment, provided the other legal
heir, who is already in Government job or permanent
job, is not looking after the family of the deceased
Government servant. The said position or situation is
noway inferior than the present situation faced by the
writ petitioner and her rest of the family, where, the
widow and two children of the deceased Government
servant, have been left in lurch without any support and
they have been in continuous indigent circumstances or
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W.P.(MD).No.26845 of 2022
penurious situation, where no one is there in their family
to look after or bail out their family.
12. In such circumstances, one legal heir of the
deceased Government servant, though got a job in 2013
ie., two years after the death of the Government servant,
admittedly, he is not looking after the family of the
deceased Government servant. This position has been
accepted by the respondent. Therefore, the import of
paragraph No.3 of G.O(Ms)No.155 and Clause 4 of
G.O(Ms)No.18 shall be put in with purposive
interpretation, where, the Government thought if fit to
extend the benefit of compassionate appointment to the
other legal heir of a deceased Government servant, even
though already a legal heir of the deceased Government
servant is in a permanent job, provided, that legal heir,
who was already in a permanent job, is not looking after
the family or living separately without taking care of the
other family members of the deceased Government
servant.
13. Exactly the situation now prevail in the family
of the petitioner can very well be fit in either under
paragraph No.3 of G.O(Ms)No.155 or under Clause 4 of
G.O(Ms)No.18. Therefore, a negative interpretation
sought to be given by the respondent through the
impugned order for those clauses of the respective G.Os.,
by thus, denying the request of the petitioner for
consideration of the request of compassionate
appointment, cannot be accepted, as such interpretation
would destroy the very purpose for which, the G.Os.,
especially the relevant clauses were issued by the
Government.”
19. In the case of P.Balasubramanian Vs. The Manager (P
& IR) LIC, Divisional Office, Palayamcottai, Tirunelveli in
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W.P(MD)No.12143 of 2015, dated 26.11.2020 when an identical
issue raised before this Court, it is held as extracted hereinunder:-
“7. The only ground on which the respondent has
denied the appointment on compassionate grounds is
that the petitioner's elder brother is working in a private
company and therefore, as per the rules, if a family
member is gainfully employed, then the other family
member is not entitled for compassionate appointment. It
is equally admitted fact that the elder brother of the
petitioner is married even before the death of the
petitioner's father and settled separately in Chennai
which had been disclosed by the petitioner by producing
salary certificate and he has not been financially
supporting the family of the petitioner. This aspect has
not been considered by the authorities. The petitioner
would rely on the judgment in Govind Prakash Verma
Vs. Life Insurance Corporation of India and Others
reported in 2005 (10) SCC 289, wherein, the Hon'ble
Supreme Court at paragraph 6 has held as follows:-
'The scheme of compassionate appointment
is over and above whatever is admissible to the
legal representatives of the deceased employee as
benefits of service which one gets on the death of
the employee. Therefore, compassionate
appointment cannot be refused on the ground
that any member of the family received the
amounts admissible under the Rules. So far as the
question of gainful employment of the elder
brother is concerned, we find that it had been
given out that he has been engaged in cultivation.
We hardly find that it could be considered as
gainful employment if the family owns a piece of
land and one of the members of the family
cultivates the filed. This statement is said to have
been contradicted when it is said that the elder
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brother had stated that he works as a painter.
This would not necessarily be a contradiction
much less leading to the inference drawn that he
was gainfully employed somewhere as painter
also. Nothing has been indicated in the enquiry
report as to where he was employed as a regular
painter. The other aspects, on which the officer
was required to make enquiries, have been
conveniently omitted and not a whisper is found
in the report submitted by the officer. In the
above circumstances, in our view, the orders
passed by the High Court are not sustainable.
The respondents have wrongly refused
compassionate appointment to the appellant. The
inference of gainful employment of the elder
brother could not be acted upon. The terminal
benefits received by the widow and the family
pension could not be taken into account.'
8. The petitioner would also rely on the decision of
this Court in W.P(MD)No.1278 of 2018 decided on
21.02.2018 (M.Suresh Vs. The Additional Director
General of Police, Prison Department, Chennai and
Superintendent of Police, Chennai), wherein at
paragraphs 4 to 6, it has been held as follows:-
'4. The learned Counsel appearing for the
petitioner drew the attention of this Court to
G.O(Ms)No.155, Labour and Employment
Department, dated 16.07.1998, wherein the
paragraph No.3, it has been stated as follows:-
“3.In regard to the second condition mentioned
in Para 1 above, it is considered that if a member
of the family is already in employment and
supports the family then the restriction may be
applied. When a dependant of the family is
employed, the factors to be ascertained are,
whether he is regularly employed and is actually
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supporting the family and is actually supporting
the family. If that person was employed even
before the death of the Government Servant and
was living separately without extending any help
to the family, then the case of other eligible
dependants will be considered.”
5. In this case, it has been demonstrated
that the petitioner's brother got employment even
before the death of the petitioner's father.
Therefore, the ground on which the impugned
order of rejection rests is clearly unsustainable in
law. The order impugned in the writ petition
stands quashed.
6. Therefore, the respondents are directed
to consider the case of the petitioner on
compassionate grounds and pass appropriate
orders afresh in accordance with law within a
period of eight weeks from the date of receipt of a
copy of this order.”
9. In my considered opinion, the above judgments
are squarely applicable to the present facts and
circumstances of the case and therefore, I am inclined to
interfere with the impugned order. Accordingly, the
impugned order dated 09.08.2014 issued by the
respondent is set aside and the respondent is directed to
provide appointment to the petitioner on compassionate
basis within a period of eight weeks from the date of
receipt of a copy of this order.”
6. I am fully in consonance to the order passed by this Court in the case
referred supra. This case is squarely covered by the said order and the
condition of the petitioner's family that she is the sole legal heir, who has to
take care of the entire family survived by the petitioner's father cannot be
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doubted, in view of the fact that already her elder sister has attained
widowhood due to the death of her husband. That apart, the petitioner's mother
has retired even before making the application seeking compassionate
appointment. That apart, in terms of G.O(Ms)No.18 of the Labour and
Employment (Q1) Department, dated 23.01.2020, it has been mandated that
even if one of the family members is employed, that will not be a bar for grant
of compassionate appointment to the one of the dependants of the employee,
who is not working.
7. In view of the same, this Court hereby quash the impugned order,
dated 05.04.2022 and thereafter, direct the second respondent to appoint the
petitioner forthwith in a suitable post, within a period of twelve (12) weeks
from the date of receipt of a copy of this order.
8. This writ petition stands allowed, accordingly. There shall be no order
as to costs.
20.09.2023
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W.P.(MD).No.26845 of 2022
NCC : Yes
Index : Yes
Internet : Yes
BTR
To
1.The Joint Commissioner,
Tamil Nadu Educational Department,
Chennai.
2.The Chief Educational Officer,
Virudhunagar District,
Virudhunagar.
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W.P.(MD).No.26845 of 2022
L.VICTORIA GOWRI, J.
BTR
W.P.(MD).No.26845 of 2022
20.09.2023
https://www.mhc.tn.gov.in/judis
