Gowtham Balu.S v. The Chairman And Managing Director

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 15.03.2022

CORAM

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM S.Gowtham Balu ... Petitioner Vs 1 The Chairman and Managing Director, Tamil Nadu Electricity Generation and Distribution Corporation (TANGEDCO), 10th Floor, NPKRR Maaligai, No.144, Anna Salai, Chennai 600 002.

2 The Superintending Engineer Virudhunagar Electricity Generation and Distribution Circle, TANGEDCO, No.65/1, Ramamoorthy Road, Virudhunagar 626 001.

...Respondents

Prayer:-Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus, directing the respondents to grant Appointment on Compassionate Grounds in favour of the petitioner by considering the representations of the petitioner dated 28.11.2018 , 07.03.2019, 03.10.2019, 08.02.2020 and 5th representation dated 03.12.2020 in consonance with the Judgment passed by this Court in WP(MD).No.4129 of 2014 dated 24.09.2018.

For Petitioner :

Mr.J.Sanjey Vignesh For Respondents :

Mr.S.Arivalagan

O R D E R

The relief sought for in the present Writ Petition is to direct the respondents to grant appointment to the petitioner on compassionate ground, based on his representation dated 28.11.2018, 07.03.2019 03.10.2019 and 08.02.2020.

2. The petitioner states that his mother namely P.Nallamuthu was working as Accounts Supervisor and died on 25.01.2010, while she was in service. During the relevant point of time, the petitioner was a minor and therefore, not eligible for appointment on compassionate grounds.

3. The learned counsel appearing for the petitioner made a submission that the father abandoned the family and he was not living with his mother, even she was alive. The petitioner was taken care of by his deceased mother. The divorce petition filed by the mother was allowed by the Competent Sub-Court. Under these circumstances, the petitioner submitted an application in the year 2012 seeking appointment on compassionate grounds. The said application was not considered as the petitioner was minor. On attaining the age of majority, the petitioner submitted an application in the year 2013, by that time, the period of three years as contemplated under the scheme of compassionate appointment expired.

4. The learned counsel appearing for the petitioner reiterated that the case of the petitioner is a distinct one and the petitioner is to be considered for appointment.

5. However, the learned counsel appearing for the respondent made a submission that as per the scheme of compassionate appointment, once the period of three years lapsed from the date of death of the deceased employee, no application is entertainable. It is not as if a minor, on attaining the age of majority, may submit an application beyond the period of three years from the date of death of the deceased employee. In such circumstances, the scheme presumes that an indigent circumstances arose on account of sudden death became vanished and therefore, the application submitted after a lapse of three years cannot be entertained.

6. The learned counsel appearing for the petitioner made a submission that earlier the petitioner has filed a Writ Petition in W.P(MD).No.4129 of 2014, wherein, this Court passed an order directing the Authorities to consider the case of the writ petitioner by indicating the procedures to be followed. The learned counsel appearing for the petitioner states that the said order passed by this Court was not responded, as far as the writ petitioner is concerned.

7. If at all there is non-compliance, another writ petition cannot be a solution for the purpose of re-dressal of his grievances. However, the fact remains that this Court directed the Authorities to follow the guidelines and even clause (i) of paragraph No.6 of the order passed in W.P.(MD).No. 4129 of 2014, states that "the compassionate shall be made within a period of one year from the date of death of the deceased employee". Other directions were also issued by this Court. However, the Hon'ble Supreme Court repeatedly emphasized that the scheme of compassionate appointment being violative of Article 14 and 16 of the Constitution of India, is to be implemented strictly in accordance with the terms

and conditions stipulated. The compassionate appointment not being the procedures recognized under the Constitution for public appointments, it is to be restricted to the extent possible so as to ensure that the public appointments are made under the Constitutional schemes through open competitive process by providing appointments to all the eligible persons who are aspiring to secure public employment. The petitioner has already possessed the Educational Qualification of Diploma in Electrical and Electronics Engineering. Therefore, he may have an ample opportunity to get employment. As far as the compassionate appointments are concerned, the terms and conditions of the scheme are to be followed scrupulously.

8. The scheme of compassionate appointment was introduced to mitigate the circumstances arising on account of sudden demise of the Government Employee. Compassionate appointment is not a regular appointment, nor an appointment under the constitutional scheme. It is a concession granted to the Government employees on certain exceptional circumstances. Thus, the compassionate appointment can never be claimed as a matter of right and only if a person is entitled under the terms and conditions, then alone the scheme can be extended, but not otherwise. Equal opportunity in public employment is a constitutional mandate. All appointments are to be made in accordance with the rules and by providing equal opportunity to participate in the process of selection.

9. As far as the compassionate appointments are concerned, no selection is conducted, no suitability or eligibility are tested, but persons are appointed merely based on death of an employee. Therefore, compassionate appointment is to be restricted in the interest of the efficient public administration. No doubt, the Government also restricted the compassionate appointment and it is to be extended only to the deserving family and more so, not after a lapse of many years. Providing compassionate appointment after a lapse of many years would not only defeat the purpose and object of the scheme, but also the penurious circumstances arose on account of the sudden death became vanished. Thus, the lapse of time is also a ground to reject the claim for compassionate appointment. Number of judgments are delivered by this Court and the Government also issued revised instructions for providing compassionate appointment in G.O.Ms.18, Labour and Employment, dated 23.01.2020.

10. Even recently, the Honourable Supreme Court in the case of State of Uttar Pradesh and Others vs. Premlata, reported in (2022) 1 SCC 30, has made observations in respect of implementation of the scheme of compassionate appointment and the relevant portion of the observations are 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 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 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 v. 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 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.

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 [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."

11. As far as the writ petitioner is concerned, the petitioner is not entitled to claim appointment on compassionate ground as he was minor during the relevant point of time when his mother died and the application was submitted beyond the period of three years, after his attaining the age of majority and as per the Scheme, the application cannot be entertained.

12. Accordingly, the Writ Petition stands dismissed. No costs. Sd/- Assistant Registrar (Records) // True Copy // / /2022 Sub Assistant Registrar(CS) ssb To

1. The Chairman and Managing Director, Tamil Nadu Electricity Generation and Distribution Corporation (TANGEDCO), 10th Floor, NPKRR Maaligai, No.144, Anna Salai, Chennai 600 002.

2. The Superintending Engineer, Virudhunagar Electricity Generation and Distribution Circle, TANGEDCO, No.65/1, Ramamoorthy Road, Virudhunagar 626 001. 15.03.2022 MGJ(31.03.2022) 7P 3C