Madras High Court
D.Sivakumar vs The Government Of Tamil Nadu on 10 October, 2017
Author: R.Subbiah
Bench: R.Subbiah
Writ Appeal No.751 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 01.03.2021
Judgment Delivered on : 16.04.2021
Coram:
THE HON'BLE MR.JUSTICE R.SUBBIAH
and
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Writ Appeal No.751 of 2019
D.Sivakumar,
S/o G.Damodharan .. Appellant
Vs.
1. The Government of Tamil Nadu,
Rep. by its Secretary to Government,
Department of Agriculture,
Fort St.George, Chennai-9.
2. The Commissioner of Agriculture,
Chepauk, Chennai-600 005.
3. The Joint Director of Agriculture,
Erode, Erode District.
4. The Joint Director of Agriculture,
Tirupur, Tirupur District.
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Writ Appeal No.751 of 2019
5. The Agriculture Development Officer,
Kankeyam-638 701,
Tirupur District. .. Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the
order dated 10.10.2017 passed by the learned Single Judge made in Writ
Petition No.6024 of 2014 on the file of this Court.
For appellant : Mr.R.Saseetharan
For respondents: Mrs.A.Srijayanthi, Spl.G.P.
JUDGMENT
R.SUBBIAH, J This appeal has been filed as against the order dated 10.10.2017 passed in W.P.No.6024 of 2014, whereby and whereunder, the learned Single Judge dismissed the Writ Petition filed by the appellant for quashing the order dated 25.10.2011 passed by the second respondent and consequently to direct the respondents to grant compassionate appointment to him.
2. Brief facts which are necessary to decide the issue involved in this Writ Appeal are as follows:
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(a) The father of the appellant herein was employed as Deputy Agriculture Officer in the office of the fifth respondent during the year 1988. While serving so, his father died on 15.01.1988, leaving the appellant, his mother and two sisters as legal heirs. At the time of the death of his father, the appellant was 9 years old.
(b) Thereafter, the appellant completed SSLC in the year 1995 and Higher Secondary Course in the year 1997. Due to precarious financial condition in the family, he could not continue his further studies. Hence, he was constrained to make an application to the third respondent on 21.08.1997 requesting to provide him appointment on compassionate grounds. The appellant's sister and mother have also given their "no objection" for considering the appellant for appointment on compassionate grounds.
(c) In the meanwhile, the appellant had passed Junior Grade Typewriting Examination in Tamil and English in the month of January 1998 and thereafter, he had also completed Senior Grade Typewriting Examination in Tamil and English in the year 1999. He also obtained a Conductor licence. Further, the Tahsildar, Kangeyam had also given a Page No.3/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 Certificate dated 17.07.1997 certifying that no one from his family is employed in the Government as well as in any private undertaking.
(d) The fifth respondent-Agriculture Development Officer, Kangeyam forwarded the appellant's application to Assistant Agriculture Director, Kangeyam, vide letter dated 27.08.1997. The Assistant Agriculture Director, Kangeyam, in turn, forwarded his application for appointing him on compassionate grounds, by his letter dated 25.09.1997 to the concerned authority. The Agriculture Assistant Director, Kangeyam, by letter dated 27.11.1997 asked the appellant's mother to produce a Certificate to the effect that no one in the family is employed in Government service, that a Certificate from Tahsildar saying that the family has no movable or immovable property and a Certificate to show that except the appellant/writ petitioner, no one from their family will claim seniority in Employment Exchange. Pursuant to the same, the appellant's mother also furnished all the documents as required by the Assistant Agriculture Director, Kangeyam on 27.11.1997.
(e) Thereafter, the third respondent, vide letter dated 23.04.1998, had sought permission from the second respondent to permit him to appoint the Page No.4/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 appellant as Junior Assistant-cum-Typist in the existing vacancy, by forwarding all his documents. Subsequently, the first respondent had informed that necessary action would be taken only on seniority basis.
(f) Finally, after various correspondences between the parties, the application of the appellant was rejected by the second respondent, by order dated 25.10.2011 on the ground that the application was belatedly submitted. Challenging the same, the appellant filed the Writ Petition in W.P.No.6024 of 2014 for the relief stated supra.
3. The said Writ Petition was opposed by the respondents by filing counter affidavit.
4. The learned Single Judge dismissed the Writ Petition by holding that after lapse of 29 years from the date of demise of the deceased employee, the question of providing compassionate appointment does not arise at all. The learned Single Judge further observed that the normal presumption of a prudent man is that, when the family of the deceased employee is able to survive for about 29 years after the death of the deceased employee, then the indigent circumstances prevailing at the time of the death of the deceased employee, vanishes, and thus consideration in Page No.5/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 relation to compassionate appointment will certainly amount to depriving the equal opportunity for public employment to the eligible youth and citizens of this great Nation.
5. Aggrieved by the above order of the learned Single Judge, dated 10.10.2017, the present Writ Appeal is filed by the appellant/writ petitioner.
6. The learned counsel for the appellant/writ petitioner submitted that the writ petition has been dismissed mainly on the ground that the appellant had submitted the application belatedly. The said reason assigned by the learned Single Judge is not applicable to the factual aspects of the present case. So far as the present case is concerned, the appellant was nine years old at the time of the death of his father. His father died in harness on 15.01.1988. The Government of Tamil Nadu, by G.O.Ms.No.120, Labour and Employment Department, dated 26.06.1995, had prescribed three years period of limitation for submitting an application for appointment on compassionate grounds. The said G.O. will not have retrospective effect. In fact, the Government also, by subsequent letter dated 11.10.1995 of Labour and Employment Department, clarified that the time limit of three years specified in G.O. Ms. No.120, dated 26.06.1995, would be applicable only Page No.6/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 to the dependants of the Government servant who died while in service after 26.06.1995 and the said order is not applicable to the past cases. Therefore, absolutely, there is no impediment for the respondents to consider the application of the appellant for compassionate appointment without reference to three years period of limitation, particularly, when the appellant had submitted the application within three years after attaining majority on 09.03.1997. He submitted application on 21.08.1997 to the third respondent, through the Assistant Director of Agriculture, Kangeyam, for providing appointment on compassionate grounds in the Government service. By entertaining the said application, the Assistant Director of Agriculture, Kangeyam recommended the appellant's case to the Joint Director of Agriculture, Erode. In this regard, the learned counsel for the appellant invited the attention of this Court to various correspondences exchanged between the appellant and the respondent(s) to show that his application was under active consideration from 25.09.1997.
7. It is the further submission of the learned counsel for the appellant/writ petitioner that, finally, on 25.10.2011, the application of the appellant was rejected by the second respondent on the ground that the Page No.7/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 application was submitted belatedly. In this regard, the learned counsel for the appellant/writ petitioner submitted that the said reason assigned by the second respondent is not legally sustainable. When the said G.O.Ms.No.120 specifically prescribes that the period of limitation will not have retrospective effect, the order of rejection is not sustainable. In fact, the Government, by its subsequent letter dated 11.10.1995, Labour and Employment Department, has also clarified that the time limit of three years specified in the said G.O.Ms.No.120, dated 26.06.1995, would be applicable only to the dependants of the Government servants who died while in service on or after 26.06.1995. The learned Single Judge, without considering these aspects, had dismissed the Writ Petition and thus, the learned counsel appearing for the appellant/writ petitioner prayed to allow the Writ Appeal.
8. Countering the above submissions, the learned Special Government Pleader appearing for the respondents submitted that, on 21.08.1997, the appellant's mother made an application on behalf of her son, who is the appellant herein and when it was pending, another application was submitted by the mother, wherein she requested for compassionate Page No.8/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 appointment to her daughter. The said application was rejected on 19.11.2001 and again, the appellant made another application, which was rejected on 22.11.2002. The appellant, for the third time, sent an application to the Chief Minister's Grievance Cell on 24.01.2007, which was also rejected on 16.03.2007. On the fourth occasion, on 20.06.2011, the appellant made another application, which was rejected on 25.10.2011. It is this order of rejection dated 25.10.2011, which is under challenge in W.P.No.6024 of 2014. The writ petition was filed on 16.02.2014. In view of the recent Full Bench judgment of this Court decided on 11.03.2020 in W.P.(MD).Nos.7016 of 2011, 582 of 2015, 4805 of 2014, 20028 of 2013 and 34962 of 2005, the issue is no more "res-integra". In this regard, the learned Special Government Pleader appearing for the respondents submitted that there were conflicting views with regard to the appointment on compassionate grounds by two Division Benches of this Court namely
(a) A.Kamatchi Vs. Chairman, Tamil Nadu Electricity Board, reported in 2013 (2) CWC 758 and (b)Secretary to Government Vs. Renugadevi (W.A.No.269 of 2012) delivered on 11.06.2012. Therefore, the Full Bench was constituted to decide the issue. In said Kamatchi case, a Division Bench Page No.9/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 had taken the view that an application for compassionate appointment even beyond three years of the death of the deceased, needs consideration, whereas in the Renugdevi's case, another Division Bench had taken a contrary view, Therefore, a reference was made by a learned Single Judge of this Court by order dated 08.07.2014 in W.P.No.7016 of 2011, K.Shanmugam Vs. Tamil Nadu State Transport Corporation, rep. by its Managing Director, Villupuram, to the following effect:
"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?
9. The learned Special Government Pleader appearing for the respondents further submitted that the Full Bench had come to the conclusion that the period of three years for submission of application Page No.10/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 seeking compassionate appointment, is rationale and reasonable period under the relevant Government order and the Rules. Even in the Kamatchi's case and Renugadevi's case (both cited supra), the death of the Government employees was prior to the above said G.O.Ms.No.120. The Full Bench, by considering the said Government Order, came to the conclusion that the application for compassionate appointment has to be made within three years from the date of death of the Government employee and it cannot be made beyond three years, even though there is no specific scheme for appointment on compassionate grounds. The learned Special Government Pleader further submitted that the Full Bench had dealt with the case where the death of the Government employee was prior to issuance of the said G.O.Ms.No.120. The learned counsel for the appellant cannot differentiate by putting forth his submission that the three-year period of limitation will not apply to the cases where the death of the Government employee is prior to issuance of the said G.O.Ms.No.120.
10. The learned Special Government Pleader appearing for the respondents further submitted that, in the instant case, the scheme/norms prevailing as on the date of making application seeking for appointment on Page No.11/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 compassionate grounds, alone is to be considered. If it is so considered, the writ petitioner is not entitled for compassionate appointment. That apart, the learned Special Government Pleader also submitted that, admittedly, in the present case, the appellant/writ petitioner did not prove that his family was in indigent circumstances. It is her further contention that the compassionate appointment is only a concession and not a hereditary right. Moreover, the employer cannot create any supernumerary post in the cases falling under the compassionate appointment.
11. The further submission of the learned Special Government Pleader appearing for the respondents is that, in the present case, the appellant's mother did not make any application immediately after the death of the father of the appellant. Only after attaining majority in 1997, i.e. after lapse of nine years from the date of the death of his father in 1988, the appellant had applied for compassionate appointment. Furthermore, in the year 2001, the appellant's sister made application through her mother, which was rejected by the respondents-authorities. In the year 2011, the appellant made another application, which was rejected by the order under challenge, dated 25.10.2011. But belatedly, the Writ Petition in W.P.No.6024 of 2014 Page No.12/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 was filed, i.e. after three years from the date of rejection of the order, dated 25.10.2011. The application of the appellant/writ petitioner was correctly rejected by the second respondent on 25.10.2011, which was duly considered by the learned Single Judge to dismiss the Writ Petition. The learned Special Government Pleader also relied on the following decisions in support of her arguments:-
(i) 2010 (11) SCC 661 (State Bank of India and another Vs. Rajkumar) ;
(ii) 2014 (13) SCC 583 (MGB.Gramin Bank Vs. Chakrawarthi Singh), and
(iii) 2015 (7) SCC 412 (Canara Bank and another Vs. M.Mahesh Kumar).
The learned Special Government Pleader appearing for the respondents therefore sought for dismissal of the Writ Appeal:
12. In reply, the learned counsel for the appellant/writ petitioner submitted that, in paragraph 32(a), the Full Bench (in W.P.(MD).No.7016 of 2011, etc., (cited supra)), while answering the reference, held that, "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 Page No.13/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 the employer. Any deviation from the scheme is not permissible." Further, in paragraph 10, the Full Bench, after dealing with all the relevant G.Os. on the subject, specifically observed that, "10. The narration of the above mentioned Government Orders would show that there have been different schemes at different point of time. It is again well settled that the scheme available on the date of death of the Government employee has to be applied and not any scheme which has been framed after the cause of action has arisen. A perusal of the orders would show that after 1995, all the schemes provide that an application for appointment on compassionate basis has to be made within a period of three years from the date of death of the deceased employee." By placing reliance on the aforesaid observations of the Full Bench, the learned counsel for the appellant/writ petitioner submitted that the same will have to be interpreted in favour of the appellant/writ petitioner. In this regard, the learned counsel for the appellant/writ petitioner relied on a decision of the Supreme Court reported in 2004 (2) SCC 362 (Mehboob Dawood Shaikh Vs. State of Maharashtra) to contend that, "... The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the Page No.14/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 questions which were before this Court (See CIT Vs. Sun Engg. Works (P) Ltd. - 1992 (4) SCC 363)". The learned counsel for the appellant/writ petitioner also relied on a decision of the Supreme Court reported in 2004 (2) SCC 56 (Prabha Shankar Dubey Vs. State of M.P), wherein it has been held that, "12. ... A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations".
13. In the above context, the learned counsel for the appellant/writ petitioner also based his submissions on the decision of the Supreme Court reported in 1996 (6) SCC 665 (J.K.Industries Ltd. Vs. Chief Inspector of Factories and Boilers), wherein, it has been held that, "23. ... The judgment in Mackenzie case (John Donald Mackenzie Vs. Chief Inspector of Factories - AIR 1962 SC 1351 : 1961 (2) LLJ 412) therefore, has to be understood in the context in which it was given .. .. .... It is not fair or proper to read a sentence from the judgment of this Court, divorced from the complete context in which it was given and to build up a case treating as if that sentence is the complete law on the subject. Judgemnts of this Court are not to be read in that manner."Page No.15/32
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14. Thus, it is the submission of the learned counsel for the appellant/writ petitioner that the judgment of the Full Bench of this Court (cited supra) in paragraph 2(i), 10 and 32(a), has to be read as a whole and if it is read together, the irresistible conclusion is that the scheme or the Government Order available on the date of death of a Government employee, has to be applied and not the scheme which had been framed after the cause of action had arisen. Resultantly, the appellant's counsel prayed for allowing the Writ Appeal.
15. Keeping in mind the submissions made on either side, we have carefully perused the entire materials available on record.
16. Though very many contentions have been raised on either side, the short question that falls for consideration in this Writ Appeal is whether the three-year period of limitation for submitting the application for appointment on compassionate grounds from the date of death of the deceased Government employee, as prescribed under G.O.Ms.No.120 (supra) will be applicable to this case or not.
17. In the above context, the learned counsel appearing for the appellant/writ petitioner submitted that even though the said Page No.16/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 G.O.Ms.No.120 issued by Labour and Employment Department, prescribes three-year period for submitting the application seeking compassionate appointment, it will not be applicable to the cases where the deceased Government employee died prior to 26.06.1995, since this G.O. will not have retrospective effect. In this regard, the learned counsel appearing for the appellant/writ petitioner relied on clarificatory letter dated 11.10.1995 issued by the Government, in which it was clarified that the time limit specified in G.O.Ms.No.120 will be applicable only to the dependants of the Government employee who died while in service on or after 26.06.1995.
18. Countering the above submissions of the learned counsel appearing for the appellant/writ petitioner, the learned Special Government Pleader appearing for the respondents fully relied on a decision of a Full Bench of this Court in W.A.(MD).No.7016 of 2011, etc., batch, dated 11.03.2020, where a reference was made with regard to the applicability of three-year period from the date of death of the Government employee, in relation to appointment on compassionate grounds.
19. It is useful to extract paragraph 2 of the said decision of the Full Bench of this Court, as follows:
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https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 "2. It is now well settled that while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:
(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 dependants 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)."
20. Further, the facts leading to the reference of the case put forth before the Full Bench of this Court relates to the death of the Government employee prior to issuance of G.O.Ms.No.120. In fact, in the above said Page No.18/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 decision of the Full Bench of this Court, G.O.Ms.No.120 has also been discussed. The scheme of first of such compassionate appointment was framed by the Government in G.O.Ms.No.225, Labour Department, dated 15.02.1972. Thereafter, the Government passed G.O.No.155, dated 16.07.1993, modifying the said G.O.Ms.No.225 and the other Government Orders regarding compassionate appointment explaining the criteria for indigent circumstances. Subsequently, the Government issued G.O.Ms.No.42, Labour and Employment (Q1) Department, dated 12.03.2007, laying down fresh guidelines for appointment for compassionate basis. As observed by the Full Bench, the Government clarified on the subject by a letter bearing No.39924/Q1/95-1, dated 11.10.1995, whereby the limit of three years specified in G.O.Ms.No.120, Labour and Employment Department, dated 26.06.1995, was made applicable only to those dependants of the deceased Government servants who died while in service on or after 26.06.1995, but the above orders were not applicable to past cases. The Full Bench, after referring to various Governments Orders on the subject, ultimately held as follows: Page No.19/32
https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 "Subramonium Prasad,J:
8. The above mentioned Government Order was clarified by a letter bearing No.39924/Q1/95-1, dated 11.10.1995, whereby the limit of three years specified in G.O.Ms.No,120, Labour and Employment dated 26.06.1995 was made applicable only to those dependants of the deceased Government servants who died while in service on or after 26.06.1995 but the above orders were not applicable to the past cases. It was further clarified in the said letter, that the age limit of 50 years for appointment under the scheme in the case of widows as ordered in G.O.Ms.No.120, Labour and Employment, dated 26.06.1995, is also applicable only to widows of Government servants who died on or after 26.06.1995."
"9. G.O.Ms.,No.120, the clarification letter No.39924/Q1/95-1, dated 11.10.1995, and G.O.Ms.No.42, have been further clarified by a letter Ms.No.202, dated 08.10.2007. The relevant portions of the said letter which is the final letter produced before us insofar as the scheme for appointment on compassionate basis is concerned, is being reproduced:-
"3. The very purpose of giving compassionate ground appointment scheme is only to help the family of the deceased Government servant to tide over the sudden indigent circumstances unexpectedly created by, the sudden and untimely death of the Government servant. So the, appointment should, therefore be provided immediately to redeem the family in distress and the provision of compassionate appointment after a lapse of very long time defeats the very purpose of the compassionate ground appointment scheme.
The Supreme Court has made critical Page No.20/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 observations with regard to this issue and that the critical issue is whether the family is in indigent circumstances, in the cases of application made after ten years, twenty years and thirty years from the date of death of the Government servant, obviously the family cannot be considered in indigent circumstances. In view of this, the instructions issued in the reference 2nd cited could not be considered to be applicability to past cases after the lapse of 3 years, even where the government servant died prior to 26.6.95. In other words the applicability of the clarification issued in second letter cited was for only to past cases to cover the period of 3 years only and not for infinite period.
4. In this connection, I am to add that based on the direction of the Supreme Court regarding indigent circumstances of the family and the decision taken by the Cabinet accepting the recommendations of the Staff Committee, the Government direct that the compassionate ground appointment have to be made as per the detailed guidelines issued in the Government Order fifth cited wherein it has been clearly mentioned that the existing time limit of 3 years for filing applications from the date of death of Government servant shall be continued.
5. I am, therefore, to request you to follow the above guidelines issued in the Government Order fifth cited for all present, past and future cases and the instructions issued in Government Letter second cited cannot be taken into account. The crux of matter is that the time limit shall be 3 years for filing of application from the date of the death of Page No.21/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 Government servant and is applicable to all cases, including where the Government Servant has died in service even prior to 26.6.1995 also."
"10. The narration of the above mentioned Government Orders would show that there have been different schemes at different point of time. It is again well settled that the scheme available on the date of death of the Government employee has to be applied and not any scheme which has been framed after the cause of action has arisen. A perusal of the orders would show that after 1995, all the schemes provide that an application for appointment on compassionate basis has to be made within a period of three years from the date of death of the deceased employee."
"28. It is well settled that appointment on compassionate grounds is not a source of recruitment and an exception to general rule. The appointment to a service in a State can be made only in accordance with Article 14 and 15 of the Constitution of India. It is also now settled that the dependants of the employees who died in harness do not have any right to employment except by way of concession, that is under the service rules or by a separate scheme to enable the family of the deceased to get over financial crises and destination. The claim of appointment on compassionate basis is therefore traceable only to the service rule permitting such appointment on compassionate basis or a scheme framed for this purpose. In none of the cases before us the scheme of the Government orders has been challenged. The appointments are therefore to be made strictly in accordance with the same. (Refer Canara Bank Vs. M.Mahesh Kumar (2015) 7 SCC
412) and Bhawani Prasad Sonkar VS. Union of India & Ors., (2011) 4 SCC 209)."Page No.22/32
https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 "30. As stated earlier, if the policy is to ensure an immediate indigency of the family to be taken care of, then a belated application will not serve the purpose. However, it is pertinent to mention that in cases where the employee has passed away prior to 1995, then the employer has to consider the application on the facts of each case and after taking into account the indigent circumstances in which the family is placed...."
"31. The Hon'ble Supreme Court in Sanjay Kumar Vs. State of Bihar, (2000) 7 SCC 192, has held that when the very purpose of compassionate appointment is to see that the family gets immediate relief, then the application by the dependent of the deceased employee filed after he attains majority cannot be entertained. Considering a belated application will be contrary to the scheme framed by the Government and will be also contrary to the judgments of the Supreme Court."
"32. 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."Page No.23/32
https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 The Hon'ble Chief Justice and Abdul Quddhose,J:
"5. ..... 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 to establish the existence of indigence even after attaining the age of majority. This, in our opinion, has also been taken due care of by providing a period of three years for moving an application for compassionate appointment which means that if the dependant is only about 15 years of age, he/she can apply immediately after attaining the age of majority."
"6. The question of relaxing the period further or otherwise is within the realm of a policy to be undertaken by the Government in this regard and it is certainly not for this Court to expand the time limit more so in the absence of any such provision or rules indicating relaxation. Relaxation is a discretionary power and should not be exercised so as to swallow the main or the substantive provision thereby rending the basic purpose and object of the legislation nugatory."
"8. In our considered opinion, the claim of compassionate appointment is not a heritable right and being an exception to the ordinary rule of law and jurisprudence of public employment, it has otherwise also to stand the test of scrutiny of the fundamental rights guaranteed in the Constitution for the reason that there are millions who are standing in the queue for an public employment to reach their family for the first time even when there is no deceased employee in their family. Such broader aspects need not be overlooked in the name of mere sympathy or compassion. The Page No.24/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 request for appointment on compassionate grounds should be proximate to the death of the employee and, therefore, the period of three years is a reasonable period as contained in the scheme of the Government order."
"9. It is for this reason that the Hon'ble Supreme Court has in catena of decisions time and again laid stress that compassionate appointment should be made only in accordance with the rules or the scheme applicable and not beyond the same as travelling beyond the limits of the rules and scheme would negate the rights of those who are otherwise eligible for public appointment which would have been available to them but for the claim of compassionate appointment."
"13. In the light of the above, we find that the judgment in the case of A.Kamatchi Vs. The Chairman, Tamil Nadu Electricity Board, (2013) 2 CWC 758 is not only contrary to the law laid down in the case of E.Ramasamy Vs. The Chairman, Tamil Nadu Electricity Board, (2006) 4 MLJ 1080, but it also has, as indicated by our brother, Justice Subramonium Prasad, in his judgment, misconstrued the same. In view of what has been indicated above we are also of the view that the period of three years is a rationale and reasonable period under the relevant Government Orders and the rules. We may, however, observe that it is open to the State Government to make any provision for relaxation of the period in exceptionally rare cases on the principles as indicated herein above."
21. On a reading of the judgment of the Full Bench of this Court, as extracted above, it is clear that the period of limitation will apply even to Page No.25/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 those cases where the Government employee died prior to issuance of G.O.Ms.No.120. In this regard, it will be useful to refer a decision of the Supreme Court reported in 2011 (4) SCC 209 (Bhawani Prasad Sonkar Vs. Union of India), as relied on by the Full Bench and in the said case (2011 (4) SCC 209), the Supreme Court observed as follows:
"20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:
(i) Compassionate employment cannot be made in the absence of rules or regulation issued hy 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 de-hors 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 be meet the sudden crisis occurring in the family on account of the death or medical invalidation of the bread-winner 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 dependants of the Page No.26/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 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."
22. It is also worthwhile to refer a judgment of the Supreme Court reported in 2015 (7) SCC 412 (Canara Bank Vs. M.Maheshkumar), as relied on by the learned Special Government Pleader appearing for the respondents and in which, it was held that the scheme of compassionate appointment should be considered without any delay.
23. A reading of the above judgments clearly shows that the application seeking appointment on compassionate ground cannot have a bearing with the death of a Government servant prior to or after the issuance of G.O.Ms.No.120. The application seeking compassionate appointment must be made within three years from the date of death of a Government servant and the application cannot be made beyond three years, even though there is no specific scheme under the said appointment on compassionate grounds.
24. We wish to observe that the appointment on compassionate Page No.27/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 grounds, as observed by the Supreme Court in a catena of decisions, is to be made only to relieve the sufferings of the family members of the deceased Government employee from the immediate financial distress. The intention behind appointing a person on compassionate grounds, is to enable the family of the deceased employee to tide over the sudden crises that had resulted due to the death of the bread-winner who had left the family in penury and without any means of livelihood. The reason for compassionate appointment, according to the Government, is to ameliorate the grievance of the family whose bread-winner died in harness and in view of the indigent circumstances prevailing at the time of death. Thus, one has to understand that the compassionate appointment is not a bounty given by the Government and it is only to relieve the financial stress of the bereaved family on account of the death of a Government servant in harness. Therefore, the compassionate appointment will be considered by the Government in deserving cases, based on the Rules existing as on the date of application with an avowed intention to rescue the family of the deceased government servant by giving them appointment on compassionate ground. The compassionate appointment is not a vested right that can be exercised at Page No.28/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 any time in future and it is to be further noted that the compassionate appointment cannot be given merely in the case of the death of an employee and it is a concession that is given so that the deceased employee's family will recover from the financial obstacles. In many cases, it was cautioned by the Supreme Court that the compassionate appointment cannot be granted after a lapse of a reasonable period.
25. In the case on hand, more than 30 years have lapsed from the date of death of the Government employee, i.e. the Government employee in this case died in 1988. At this juncture, there is no scope for considering the application of the appellant for compassionate appointment. All along, the family of the appellant survived and/or managed the financial stress without getting any appointment in any Government service. While so, at this stage, an appointment under compassionate ground, as sought for by the appellant, will only be contrary to the scheme. In any event, we are of the view that this is not a fit case where this Court will be justified in issuing a direction to the respondents to confer appointment to the appellant on compassionate grounds. Accordingly, we do not find any compelling circumstance warranting this Court to make interference in the order passed by the learned Page No.29/32 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.751 of 2019 Single Judge.
26. For the foregoing reasonings, the Writ Appeal is liable to be dismissed and the same is dismissed. No costs.
(R.P.S.J) (S.S.K.J)
16.04.2021
Index: Yes
Speaking Order:Yes
cs
To
1. The Government of Tamil Nadu,
Rep. by its Secretary to Government,
Department of Agriculture,
Fort St.George, Chennai-9.
2. The Commissioner of Agriculture,
Chepauk,
Chennai-600 005.
3. The Joint Director of Agriculture,
Erode,
Erode District.
4. The Joint Director of Agriculture,
Tirupur,
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Writ Appeal No.751 of 2019
Tirupur District.
5. The Agriculture Development Officer,
Kankeyam-638 701,
Tirupur District.
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Writ Appeal No.751 of 2019
R.SUBBIAH, J
and
SATHI KUMAR SUKUMARA KURUP, J
cs
Pre-delivery Judgment
in W.A.No.751 of 2019
Judgment delivered on 16.04.2021
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