M.Sridharan, S/O.Late.N.Mani, v. The General Manager,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.01.2021

CORAM

THE HONOURABLE MR. JUSTICE M.DHANDAPANI and W.M.P.(MD)No.7177 of 2017 M.Sridharan ... Petitioner Vs 1.The General Manager, State Express Transport Corporation Tamil Nadu Limited, Pallavan Salai, Chennai-600 002.

2.The Deputy Manager (O&A), State Express Transport Corporation Tamil Nadu Limited, Pallavan Salai, Chennai-600 002.

3.The Branch Manager, State Express Transport Corporation, Tamil Nadu Limited, Melur Main Road, K.K.Nagar, Madurai-20 ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, to call for the records in pursuant to the impugned order passed by the first respondent in his Letter No.Dip1641/Ma.Va.2/SETCTN/2017, dated 30.01.2017 and quash the same and consequently, direct the respondents to provide employment to the petitioner on compassionate grounds based on the educational qualification in the respondents corporation.

For Petitioner : Mr.V.Muthukamatchi For Respondents : Mr.K.Sathiyasingh standing counsel 1/7

O R D E R

This writ petition is filed to issue a Writ of Cerrtiorarified Mandamus, to quash the impugned order passed by the first respondent in Letter No.Dip1641/Ma.Va.2/SETCTN/2017, dated 30.01.2017 and consequently, direct the respondents to provide employment to the petitioner on compassionate grounds based on the educational qualification in the respondent/Corporation. 2.The case of the petitioner is that the his father, viz., N.Mani was employed as Conductor in State Express Transport Corporation Tamil Nadu Limited, Madurai Region. The petitioner's father died in harness on 31.05.2005, leaving behind the petitioner and his mother and sister as his legal heirs. The petitioner further averred that the petitioner's father was the only breadwinner of the family.

On the earlier occasion, the petitioner's mother made a representation to the respondents on 20.06.2005 seeking compassionate appointment and the said representation was not consiered. Thereafter, the petitioner's mother made another application on 13.09.2011 for providing compassionate appointment for herself. However, no reply was given by the respondents. Thereafter, the petitioner submitted an application on 19.01.2017 for compassionate appointment along with necessary documents and the same was received by the respondent/Corporation on 23.01.2017. However, without properly appreciating the said representation it was rejected on 30.01.2017 on the ground of dealy. Challenging the same, the petitioner filed the present writ petition with the above said prayer. 3.

The learned counsel appearing for the petitioner, while reiterating the submissions raised in the grounds filed in support of the petition, submitted that the application of the petitioner has not been considered in accordance with law and, therefore, this Court may issue a direction to the respondents to pass orders on the said representation within a particular time frame. 4.Per contra, learned standing counsel appearing for the respondents, while did not refute the contention put forth by the petitioner, however submitted that though the petitioner has averred that his mother filed a representation for compassionate appointment for herself in the year 2005 and 2011, however, no documentary proof evidencing the said representation has been filed.

The application for compassionate appointment has been filed by the petitioner after a long lapse of 12 years, in the year 2017, when the petitioner's father died in the year 2005.

compassionate appointment, the respondents have rightly rejected the case of the petitioner and, therefore, no interference is warranted with the said order.

5.Heard the learned counsel for the petitioner , the learned Standing counsel for the respondents and perused the materials available on record.

6. In W.P. (MD) Nos.7016 of 2011, etc. Batch, vide order dated 11.3.2020, a learned single Judge of this Court, in view of of the conflicting views in relation to compassionate appointment, made the following reference for consideration by a larger Bench :- "Whether the view taken in A.Kamatchi's case holding that an application for compassionate appointment made even beyond three years of the death of the deceased needs consideration, is the correct law or the judgment of the Division Bench in N.Renugadevi's case, where a contradictory view has been taken, is the correct law?"

7.Tracing the advent of compassionate appointment and the factors that are to be borne in mind, while considering a case of compassionate appointment, the Full Bench sculpted the factors that needs to be taken into consideration while looking at a case relating to grant of compassionate appointment and for better understanding the same is extracted hereunder :- "(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.

(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.

(iv) Compassionate employment is permissible only to one of the dependents of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, 3/7

and such appointments should be only to the lowest category that is Class III and IV posts. (Refer Umesh Kumar Nagpal Vs. State of Haryana (1994) 4 SCC 138)."

8.From the above, it is unambiguously clear that application for compassionate appointment should be made without undue delay and it should be considered strictly in accordance with the governing scheme and no discretion is vested with the authority and that the concept of compassionate appointment is only to meet the sudden crisis that has befallen the family on the death of the breadwinner.

9.From the above the main ingredient for considering a case for compassionate appointment is that it is only for the purpose of meeting the sudden crisis that has occurred due to the untimely death of the breadwinner. It is not that in all cases where the breadwinner breathes his last in harness, compassionate appointment, at any point of time, ought to be given as a matter of right.

10.The Full Bench, in the above said decision, after discussing the various Government Orders and also the laws propounded on the subject by the High Court as well as by the Hon'ble Apex Court, answered the reference in the following terms :- "In view of the above, the reference is answered as under:- a) Appointment on compassionate basis has to be strictly followed in accordance with the relevant G.O.'s or the scheme that has been framed by the employer. Any deviation from the scheme is not permissible.

b) In view of the above the judgment of the Division Bench in E.Ramasamy Vs. Tamil Nadu Electricity Board and the Secretary to Government Vs. Renugadevi, lays down the correct law and the judgment of the Division Bench dated 06.08.2013 in A.Kamatchi Vs. The Chairman, Tamil Nadu Electricity Board, which is contrary to the scheme framed by the Tamil Nadu Electricity Board does not lay down the correct proposition. Reference is answered accordingly."

11.In Chief Commissioner, Central Excise and Customs, Lucknow v. Prabhat Singh ((2013) 1 UPLBEC 357), the Supreme Court has addressed words of caution in the following observations: 4/7

"We are constrained to record that even compassionate appointments are regulated by norms. Where such norms have been laid down, the same have to be strictly followed... The very object of making provision for appointment on compassionate ground, is to provide succor to a family dependent on a government employee, who has unfortunately died in harness. On such death, the family suddenly finds itself in dire straits, on account of the absence of its sole bread winner. Delay in seeking such a claim, is an anti thesis, for the purpose for which compassionate appointment was conceived. Delay in raising such a claim, is contradictory to the object sought to be achieved... Courts and Tribunals should not fall prey to any sympathy syndrome, so as to issue directions for compassionate appointments, without reference to the prescribed norms.

Courts are not supposed to carry Santa Claus's big bag on Christmas eve, to disburse the gift of compassionate appointment, to all those who seek a court's intervention. Courts and Tribunals must understand, that every such act of sympathy, compassion and discretion, wherein directions are issued for appointment on compassionate ground, could deprive a really needy family requiring financial support, and thereby, push into penury a truly indigent, destitute and impoverished family. Discretion is therefore ruled out. So are, misplaced sympathy and compassion." (Emphasis Supplied) 12.

From the conceptual proposition of law laid down by the Full Bench as also the decision of the Hon'ble Apex Court, it is implicitly clear that the appointment on compassionate basis should be strictly be in accordance with the Government Orders/the Scheme framed for the said purpose by the employer and that the circumstances in which the family is placed is of primary concern while deciding on giving compassionate appointment and discretion should not be a misplaced sympathy or compassion. 13.On the above proposition of law, it is evident that the very concept of giving a compassionate appointment is for the bereaved family to tide over the financial difficulties faced by it due to the untimely death of the breadwinner.

Further, indigency is one of the relevant factors to be borne in mind while deciding on providing compassionate appointment. 14.

of the Constitution of India. Compassionate appointment is in the nature of an exception to the ordinary norm of allowing equality of opportunity to other eligible persons to compete for public employment.

15.A person in penury or distress will not take long to survive the vagaries of penury for seeking information of such benefits. If a dependent who sleeps over and does not make any effort by the reason of his own incapacity, which also includes the dependent-claimant not having attained the age of majority, such lapse of time on the part of the claimant will definitely lead to dilute the immediacy of the requirement. The time spent to attain majority cannot be a ground for claiming compassionate appointment. Indigency is the need that needs to be established, even within the threshold limit of three years, as is also evident from G.O. Ms. No.18 to decide on providing compassionate appointment.

Holistically considering, the period of three years for moving an application for compassionate appointment is provided, which means that if the dependent is only about 15 years of age, he/she can apply immediately after attaining the age of majority. However, the lower the age of the dependent would not be an attributing factor to extend the period, as such elasticity would have no ends to meet. Further, it should also not be be out of context to state that the longer the period, the sustenance of the members of the family would by itself be an attributing factor to deny compassionate appointment.

16.In the case on hand, the petitioner's father died leaving behind the petitioner his mother as his legal heirs. It is the case of the petitioner that his mother had given representation for compassionate appointment immediately after the death of his father, but no orders have been passed on the said representation. Though such an averment is made, however, there is no documentary proof in support of the said averment. Such being the case, the application of the petitioner for compassionate appointment not within the threshold period of three years and further the indigent circumstances in which the family is suffering having not been established and further the fact that the longer the delay, the greater the sustenance of the family not to be ruled out, this Court is of the considered opinion that the respondents, on proper application of mind, has rejected the claim for compassionate appointment, which does not call for any interference from this Court.

17.In the light of the above decisions and also considering the fact that the petitioner's family is not in a penurious condition, the petitioner is not eligible for compassionate appointment. Therefore, the impugned order passed by the 1st respondent rejecting the request of the petitioner for 6/7

compassionate appointment is correct and sustainable in law. Accordingly, the writ petition is dismissed. No costs.

Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (AS) // True Copy // / /2021 Sub Assistant Registrar(CS) sji 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 Mr.K.SATHIYA SINGH, Advocate ( SR-1445[F] dated 20/01/2021 ) W.P.(MD) No.9443 of 2017 19.01.2021 KM (03.03.2021) 7P 2C 7/7