S.Surekha v. The District Collector
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :04.09.2017
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No.39259 of 2015 S. Surekha .. Petitioner Vs 1.The District Collector, Villupuram District, Villupuram.
2.The Block Development Officer, Koliyanur Panchayat Union, Koliyanur.
.. Respondents Prayer:
Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the entire records pursuant to the order of the 1st respondent in Na.Ka.No.Ba.Aa1/7417/2013 dated 03.11.2014, quash the same and consequently direct the 1st respondent to consider the petitioner for compassionate appointment. For Petitioner : Mr. K. Sudhakar For Respondents : Mr.M. Perumal Government Advocate
O R D E R
The father of the writ petitioner was working as night watchman and died on 11.08.1997, while he was in service. 2.
The learned counsel appearing for the writ petitioner made a submission that an application seeking appointment for compassionate ground was made to the respondents and the respondents had not considered the same. However, the writ petitioner at the time of demise of the Government employee was a minor and on attaining the age of majority, the writ petitioner made an application on 19.12.2011. His claim of compassionate appointment was rejected on the ground that the application was not submitted within a period of three years and further initial application was made by the wife of the deceased employee and thereafter in the year 2011, the writ petitioner submitted an application seeking appointment. Therefore, no
procedure under the scheme for conversion of application. 3.
This court is of the view that the deceased employee died on 11.08.1997. Now, after lapse of 20 years, the question of considering the indigent circumstance of the family of the writ petitioner does not arise at all. Further, the second application seeking compassionate appointment has been submitted in the year 2011,after a lapse of 14 years from the date of demise of the Government employee. The legal principles in this regard are settled by this Court as hereunder: The Inspector General of Prisons vs. P.Marimuthu [2016 (5) CTC 125], in paragraphs 36 to 41, held as follows: "36. In National Institute of Technology v. Niraj Kumar Singh reported in 2007 (2) SCC 481, an employee died, leaving behind his wife. She made an application to the respondent therein, for appointment of her grandson on compassionate grounds.
Thereafter, he was appointed on daily wages and his services were extended from time to time. After a gap of about 15 years, he made an application for his appointment on compassionate grounds on regular basis. Thereafter, wife of the deceased employee, sought for appointment for her son and while claiming so, she also requested cancellation of the respondent's appointment. As her request was rejected, she filed a writ petition, which was dismissed. One of the reasons assigned for dismissal of the writ petition filed by the wife was that at the time of death of the deceased employee, her son was aged one and half years old and that the application was submitted only after attaining majority i.e. after 18 years and therefore, no appointment can be given to the employee's son on compassionate ground.
Letters patent appeal was also dismissed by the Hon'ble Division Bench. There were other issues of making a false claim by the grandson. Suo-motu contempt notice was issued.
"21. The appointment on compassionate ground, thus, could have been offered only to a person who was the widow of the deceased or a dependent child. Admittedly, the son of the deceased Ashutosh Kumar was only one year old at the time of his father's death. He could not, thus, have been given any appointment on compassionate ground. It may be true that Smt. Vidhya Devi filed an application for grant of appointment on compassionate ground in favour of the respondent. But, it now stands admitted that he was not the natural grandson of late Shri B.P. Sinha but was a grandson of his cousin
brother. Therefore, he was not entitled for appointment in terms of the scheme of the Institute. The Institute, therefore, committed an illegality in granting him such an appointment. Moreover the purported the appointment on compassionate ground had been given in 2001, i.e., after more than 15 years from the date of death of the said Shri B.P. Sinha.
22. If the appointment of the respondent was wholly illegal and without jurisdiction and such an appointment had been obtained by practising fraud upon the appellant, the same was a nullity. We are, however, not oblivious of the fact that the same attained finality in view of the fact that the writ petition of the said Vidhya Devi was dismissed. Despite the same, the principles of res judicata shall not apply in a case of this nature. It is well- known that where an order is passed by an authority which lacks inherent jurisdiction, the principles of res judicata would not apply, the same being nullity. [See Chief Justice of A.P., v. L.V.A.Dixitulu, 1979 (2) SCC 34 and Union of India v. Pramod Gupta (D) by LRs. And Ors., (2005) 12 SCC 1]"
37.
to time, that the application should be submitted within three years from the date of death, cannot be ignored. A member of the family, otherwise eligible, on the date of death of the employee, has to submit the application within three years from the date of death or in a given case, if he was a minor at the time of death aged between 15 to 18 years, he can also submit an application, within three years from the date of death, on attaining majority.
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.
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.
40. In view of the above discussion, the request of the petitioner for appointment on compassionate grounds, ought not to have been entertained, as on the date of application, he was minor, aged about 12 years. Reference can also be made to a decision made in Sushma Gosain v. Union of India reported in 1989 (4) SCC 468.
41. In the result, the Writ Appeal is allowed. No costs. Order made in W.P(MD)No.6538 of 2009 dated 22.04.2014 is set aside. Consequently, connected
Miscellaneous Petition is closed."
4.
In view of the facts and circumstances, this writ petition stands dismissed. However, no order as to costs. s/d- Assistant Registrar(CS-III) True Copy Sub-Assistant Registrar rpl To 1.The District Collector, Villupuram District, Villupuram.
2.The Block Development Officer, Koliyanur Panchayat Union, Koliyanur.
+1 Cc to Mr. K. Sudhakar, Advocate sr 64174.
+1 Cc to Govt. Pleader sr 64072.
W.P.No.39259 of 2015 CNR(CO) sp(11/10/2017)