K.Venkateshwari, v. The Commissioner

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:19.01.2021

CORAM:

THE HONOURABLE MR.JUSTICE M.DHANDAPANI K.Venkateshwari

...Petitioner

Vs The Commissioner, Corporation of Madurai, Aringyar Anna Maligai, Tallakulam, Madurai-625 002.

...Respondent

P RAYER:

Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, to call for the records passed by the respondent herein vide in MaNi 11/M.Po3/00890/99 dated 30.12.2016 and quash the same and consequently direct the respondent to consider the case of the petitioner for compassionate appointment.

For Petitioner : Ms.M.Muthulakshmi For Respondent : Mr.T.S.Mohamed Mohideen Standing Counsel

O R D E R

This writ petition has been filed to quash the impugned order passed by the respondent herein vide MaNi 11/M.Po3/00890/99 dated 30.12.2016 and consequently, to direct the respondent to consider the case of the petitioner for compassionate appointment. 2.The case of the petitioner is that her father Late P.Krishnan Served as Watchman in Madurai Corporation Garbage Plant and he died in harness on 6.01.1988, while he was in service leaving behind his wife and daughter/petitioner herein in indigent circumstances. At the time of the death of the petitioner's father, the petitioner was studying fifth standard. Thereafter, the petitioner's family survived with her mother and the petitioner alone. Immediately thereafter, the petitioner's mother also died in the year 1990. Thereafter, the petitioner was developed by her paternal uncle and under his care and custody, she completed her school studies including the Degree in the year 1998-2001 in Madurai Kamarajar University. Thereafter, on 05.01.1999, the petitioner sent a written representation with an application and other necessary 1/5

particulars seeking compassionate appointment. The respondent sent a reply communication vide letter dated 19.06.2000, directing the petitioner to submit the family economic status report to be obtained from the Tahsildar, Madurai. To that effect, Office of the Tahsildar, Madurai, has issued the certificate to the petitioner on 18.07.2000 and the same was also submitted to the respondent immediately. However, the petitioner's application is not processed in view of the ban imposed by the Government. Thereafter, the petitioner pursued the matter repeatedly with the respondent. Finally, the petitioner's application was rejected on the ground that the application was made beyond three years. Challenging the same, the present writ petition has been filed. 3.

The learned counsel for the petitioner would submit that admittedly, the scheme provides three years time, for making application for compassionate appointment, from the date of death of the Government employee. However, in the present case, the stand is in different footing. The petitioner is the only daughter to the deceased Government servant and no other legal heirs are available. Further, the petitioner's father was worked as Night Watchman in Madurai Corporation and the mother is illiterate women and both were died in the year 1988 and 1990 and thereafter, the petitioner pursued her studies with the help of an orphanage and noble persons and she successfully completed B.Com studies.

Instead of appreciating the earnest efforts taken by the petitioner, the respondent simply rejected her application on the ground of delay, which is unsettled one. Accordingly, he prayed for allowing the writ petition.

4.Mr.T.S.Mohamed Mohideen, learned Standing Counsel for the respondent would submit that admittedly, the scheme provides three years time limit for making application. In the present case, the petitioner made an application after 11 years, which is belated one and the same cannot be considered. Hence, he prayed for dismissal of the writ petition.

5.This Court has to consider the twin test for compassionate appointment. The first one is whether the family is in indigent circumstances and further, they have sent an application within a period of three years. In the present case, admittedly, the petitioner's father died in harness in the year 1988. Immediately thereafter, the petitioner's mother also passed away in the year 1990 and on her own, the petitioner has completed her school studies and bachelor degree in the year 2001. After completion of school studies, the petitioner made an application in the year 1999 for compassionate appointment. In respect of the compassionate appointment, a full bench of this Court elaborately considered the various aspects and passed a detailed order in W.P (MD) No.7016 of 2011, dated 11.03.2020, wherein, it has held as follows:- 2/5

"...12.While enunciating the principles governing compassionate appointments, the Full Bench in paragraph 29 of the judgment apart from having incorporated the rules that exist in the State of Uttar Pradesh laid down the following principles, which are extracted hereunder; "29.We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules:

(i)A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basis object and purpose which is sought to be achieved;

(ii)There is no general or vested right to compassionate appointment.

Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules;

(iii)The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner; (iv)In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its member, together with the income from any other sources of employment;

(v)Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out;

(vi)Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the 3/5

deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner;

(vii)The burden lies on the applicant, where there is a delay in making an application with the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government;

(viii)Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family.."

6.On perusal of the above decision, makes it clear that as per Rule 5, ordinarily an application for compassionate appointment must be made within a period of five years from the death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in case of undue hardship for dealing with the case in just and equitable manner. In the present case, the petitioner's father and her mother passed away during short span of time, i.e., 1988-1990. at the time, she is the minor daughter and no other person is taking care. However, some benevolent person taking care of her education and her future development. After completing her school studies she made an application. Hence, the authority may exercise the discretionary power to consider the petitioner's genuine claim for compassionate appointment. However, the authority, without exercising the discretionary power available, mechanically rejected the application on the ground of delay, which is unacceptable and unsustainable one. Hence, the impugned order liable to be set aside.

7.In view of the above observations, this Writ Petition is allowed and the impugned order passed by the respondent herein vide MaNi 11/M.Po3/00890/99 dated 30.12.2016 is set aside and the matter is remanded back to the respondent for fresh consideration and to pass orders within a period of twelve weeks from the date of receipt 4/5

of a copy of this order, in the light of the decision made in W.P (MD) No.7016 of 2011, dated 11.03.2020, in Paragraph No.12. Sd/- Assistant Registrar (AE) // True Copy // / /2021 Sub Assistant Registrar(CS) NOTE:

In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

+1 CC to M/s.N.MUTHU LAKSHMI, Advocate ( SR-1428[F] dated 20/01/2021 ) +1 CC to M/s.T.S.MOHAMED MOHIDEEN, Advocate ( SR-1473[F] dated 20/01/2021 ) 19.01.2021 KUN(CO) KB(08.03.2021) 5P 3C 5/5