B.Deivamanikandan, v. The Principal Secretary To
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI Writ Petition (MD)No.
17155 of 2017 and W.M.P.(MD).No.13730 of 2017 B.Deivamanikandan ... Petitioner Vs.
1.The Principal Secretary to Government, Revenue Department, Secretariate, Chennai 600 009.
2.The District Collector, Ramanathapuram District, Ramanathapuram.
3.The Tahsildar, Kamudi Taluk, Ramanathapuram District.
... Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus to call for the records of the second respondent i.e., the District Collector, Ramanathapuram passed in his Na.Ka.A3/23351/2017 dated 14.06.2017 and quash the same and consequently direct the respondents to provide compassionate ground appointment according to the petitioner's qualification and it cannot be denied on the only ground that the petitioner did not attain majority on the date of death of his father, within a specified time frame that may be fixed by this Court. For Petitioner : Mr.S.Visvalingam For Respondents : Mr.M.Muthu Geethayan Special Government Pleader
O R D E R
This writ petition has been filed challenging the impugned order passed by the second respondent in Na.Ka.A3/23351/2017, dated 14.06.2017 and to quash the same and consequently direct the respondents to provide compassionate appointment to the petitioner.
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2. The case of the petitioner is that his father was working as Village Assistant in Mustakurichi Group, Kamuthi Taluk and died in harness on 08.12.2010, leaving behind the petitioner and his mother as legal heirs. At the time of death of the petitioner's father, the petitioner was a minor. Hence, the petitioner's mother made an application on 21.12.2012, seeking compassionate appointment to the petitioner. However, the said application was rejected on 22.12.2013, on the ground that the petitioner is a minor and directed the petitioner's mother to renew the application for compassionate appointment, after attaining majority. In compliance of the above said order, the petitioner has made an application on 1205.2017. But the said application was rejected on the ground that the application was filed beyond the period of three years. Challenging the same, the present writ petition has been filed.
3. The learned counsel appearing for the petitioner would submit that initially the petitioner's mother has made an application for the petitioner. However, the said application was rejected on the ground that the petitioner was a minor and also directed the petitioner's mother to renew the application, after attaining majority. In compliance of the above said order, the petitioner has submitted the application seeking compassionate appointment, after he attaining majority. But, contrary to the earlier order, the second respondent has rejected the same, on the ground that the application is filed beyond the period of three years, which is unsustainable one. Hence, he prays for allowing this writ petition.
4. Per contra, the learned Special Government Pleader appearing for the respondents would submit that the petitioner's mother made an application on 21.12.2012, seeking compassionate appointment to the petitioner, after he attaining majority and that application itself shows that at the relevant point of time, though the eligible member is available in the family, she made application only to the petitioner, which cannot be considered and the Scheme provides only to tide over the financial crisis faced by the deceased family. In the present case, the indigent circumstances of the family was not established before the authority and hence, he prays for dismissal.
5. Heard the learned counsel for the petitioner, learned Special Government Pleader appearing for the respondents and perused the materials available on record.
6. In the case on hand, it is not in dispute that the petitioner's father passed away in the year 2010 and the petitioner's mother made an application on 21.12.2012 for 2/6
compassionate appointment to the petitioner and this application is made well within the time. However, in the said application, the petitioner's mother seeking employment only to the petitioner, after he attaining majority. Thereafter, the petitioner has submitted his application for compassionate appointment in the year 2017. It is evident that the petitioner had applied beyond the prescribed period of three years.
7. Further, the Full Bench of this Court in W.P. (MD)Nos.7016 of 2011, etc. Batch, vide order dated 11.3.2020 has held that the outer limit for consideration of a candidature for compassionate appointment is only three years and that too subject to the scheme that is in existence.
8. This Court, while dealing with a similar case in M.Vigneswaran - Vs - Govt. of Tamil Nadu (W.P. No.25231 of 2014), vide order dated 09.12.2020, considering the decision of the Full Bench on the issue of compassionate appointment, held as under :- "13. ....... In W.P. (MD)Nos.7016 of 2011, etc. Batch, vide order dated 11.3.2020, on a reference made by the learned single Judge of this Court relating to conflicting views in relation to compassionate appointment, the matter was placed before the Full Bench. The reference made to the Full Bench is as under :- "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?"
Tracing the lineage on the advent of compassionate appointment and the factors that are to be had 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 3/6
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, 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).
15. 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.
16. 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.
17. 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.
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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."
9. From the conceptual proposition of law laid down by the Full Bench, 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.
10. 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.
11. It should not be lost sight of that appointments to public offices have to comply with the requirements of Articles 14 and 16 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.
12. 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, dated 23.01.2020, 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.
13. For the reasons aforesaid, this Court is not inclined to interfere with the order passed by the respondents as no case has been made out by the petitioner to substantiate his grievance. Accordingly, this Writ Petition, being devoid of merits, is dismissed. However, there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (CS-I) // True Copy // / /2021 Sub Assistant Registrar(CS) AKV 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. To 1.The Principal Secretary to Government, Revenue Department, Secretariate, Chennai 600 009.
2.The District Collector, Ramanathapuram District, Ramanathapuram.
3.The Tahsildar, Kamudi Taluk, Ramanathapuram District.
+1 CC to SGP ( SR-1841[F] dated 22/01/2021 ) +1 CC to MR.S.VISVALINGAM, Advocate ( SR-1706[F] dated 21/01/2021 ) 21.01.2021 KM (05.03.2021) 6P 6C 6/6