Madras High Court
E.Elayaragavan vs The Government Of Tamil Nadu on 24 August, 2022
Author: D. Krishnakumar
Bench: D.Krishnakumar
W.P.No.16241 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 24.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.No.16241 of 2022
E.Elayaragavan ... Petitioner
vs.
1.The Government of Tamil Nadu,
Represented by it Secretary,
Labour and Employment (Q1) Department,
Secretariat, Chennai - 600 009, Tamil Nadu.
2.The District Collector,
1st Floor, Main Building, District Collectorate,
Dharmapuri - 636 705, Tamil Nadu.
3.The Block Development Officer (B.P),
Block Development Office, Pappireddipatti - 636 905,
Dharmapuri District, Tamil Nadu. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India praying to issue a Writ of Certiorarified Mandamus, to call for the
records of the 2nd Respondent culminating in his impugned
communication bearing Na.Ka.No.6703/2020/K.3 dated 08.04.2022,
forwarded to the Petitioner through the 3rd Respondent, rejecting the
Petitioner's claim for compassionate ground appointment upon the
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W.P.No.16241 of 2022
demise of his father Late. Mr.A.Elangovan, who died in harness on
11.08.2020 while he was working as Deputy Block Development
Officer (Block-I), Pappireddipatti Panchayat Union, Rural Development
and Panchayat Raj Development, Dharmapuri District, quash the same
and direct the 2nd Respondent to provide compassionate appointment to
the Petitioner for a post in C and D Groups, within a stipulated time to
be fixed by this Court.
For Petitioner : Mr.Arun Anbumani
For R1 and R2 : Mr.T.Arunkumar
Additional Government Pleader
For R3 : Mr.T.Chezhiyan
Additional Government Pleader
ORDER
This Writ Petition has been filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the 2nd respondent culminating in his impugned communication bearing Na.Ka.No.6703/2020/K.3 dated 08.04.2022, forwarded to the petitioner through the 3rd respondent, rejecting the petitioner's claim for compassionate ground appointment upon the demise of his Late father Mr.A.Elangovan, who died in harness on 11.08.2020 while he was Page 2 of 19 https://www.mhc.tn.gov.in/judis W.P.No.16241 of 2022 working as Deputy Block Development Officer (Block-I), Pappireddipatti Panchayat Union, Rural Development and Panchayat Raj Development, Dharmapuri District, quash the same and to direct the 2nd respondent to provide compassionate appointment to the petitioner for a post in C and D Groups, within a stipulated time to be fixed by this Court.
2. According to the petitioner, the petitioner's father was serving as Deputy Block Development Officer (Block – I) in Pappireddipatti Panchayat Union, Rural Development and Panchayat Raj Department, Dharmapuri District and he died in harness on 11.08.2020 leaving behind his mother, his first wife viz.,Savithri, his second wife viz., Rajajehwari, Elayamathi and Indhumathi children born to his first wife/Savithri and Elayaragavan, Bharath and Sandhiya children born to his second wife/Rajeshwari. According to the petitioner, the petitioner's father had two wives. At the time of petitioner's father died, while he was in service, the petitioner's family was in indigent circumstances without any financial support. The petitioner's family are depending only on the income of the petitioner's father. Page 3 of 19 https://www.mhc.tn.gov.in/judis W.P.No.16241 of 2022
3. According to the petitioner, the other legal heirs of the deceased petitioner's father had given their no objection letters for providing employment to the petitioner under compassionate ground. Based on that, the petitioner submitted an application along with necessary records through the office of the 3 rd respondent seeking appointment under compassionate ground. As per the Government Orders, the said application was submitted within a period of three years. Thereafter, the 3rd respondent by his communication dated 30.11.2021 has forwarded the said proposal to the 2 nd respondent and recommended to give appointment to the petitioner under compassionate ground. Thereafter, the petitioner has received the rejection order passed by the 2nd respondent in Na.Ka.No.6703/2020/K.3, dated 08.04.2022, which is under challenge in the instant writ petition.
4. The learned counsel appearing for the petitioner submitted that the 2nd respondent has rejected the application of the petitioner for the reason that the petitioner is the son of the second wife of the deceased employee. Therefore, he is not entitled for compassionate appointment. Page 4 of 19 https://www.mhc.tn.gov.in/judis W.P.No.16241 of 2022 The said reason is unsustainable and in violation of the principles of natural justice. He also relied upon the following decisions of this Court as well as the Hon'ble Supreme Court,
(i) In Geetha Ramani vs. District Educational Officer, Kancheepuram and others, reported in 2004 (4) L.L.N. 235.
(ii) In N.Panneerselvam vs. The Secretary to Government and others, reported in 2008 (6) CTC 806.
(iii) In Chennai Metro Water Supply and Sewerage Board vs. V.Sureshbabu, reported in 2016 (4) LW 613.
(iv) In Union of India and Others vs. Smt.M.Karumbayee and another (W.P.No.36981 of 2015, dated 28.02.2017).
(v) In Union of India and another vs. V.R.Tripathi, reported in 2019 (14) SCC 646.
(vi) Mukesh Kumar and another vs. Union of India and others (SLP (C) No.18571 of 2018, dated 24.02.2022).
5. According to the learned counsel appearing for the petitioner, the law laid down by this Court as well as the Hon'ble Supreme Court in the aforesaid decisions that the children born from the second wife of Page 5 of 19 https://www.mhc.tn.gov.in/judis W.P.No.16241 of 2022 a deceased employee, is entitled for compassionate appointment. He further submitted that in the light of the aforesaid decisions, the petitioner is entitled for compassionate appointment on the death of his father.
6. The learned Additional Government Pleader appearing for the 1st and 2nd respondents submitted that as per the Government Order in G.O.(Ms).No.18, Labour and Employment (Q1) Department, 23.01.2020, wherein there is no specific clause for considering the eligibility of the petitioner and for considering his request for providing compassionate appointment. The said Government Order states that the son and daughter of the legal heirs are entitled for compassionate appointment. The petitioner being the legal heir of the deceased employee's second wife. Therefore, the 2nd respondent has rightly rejected the claim of the petitioner.
7. Upon considering the submissions of the parties and perused the materials available on record.
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8. The legal issue involved in the writ petition whether the petitioner is entitled for compassionate appointment being son of the deceased employee's second wife.
9. The learned counsel appearing for the petitioner during the attention of this Court by relying upon the recent judgment of the Hon'ble Supreme Court in the case of Union of India and another vs. V.R.Tripathi, reported in 2019 (14) SCC 646, Paragraph No.20 of the said judgment held as follows:-
“20. The High Court has proceeded on the basis that the recognition of legitimacy in Section 16 is restricted only to the property of the deceased and for no other purpose. The High Court has missed the principle that Section 16(1) treats a child born from a marriage which is null and void as legitimate. Section 16(3), however, restricts the right of the child in respect of property only to the property of the parents. Section 16(3), however, does not in any manner affect the principle declared in sub- section (1) of Section 16 in regard to the legitimacy of the child. Our attention has also been drawn to a judgment of a learned Single Judge of the Madras High Page 7 of 19 https://www.mhc.tn.gov.in/judis W.P.No.16241 of 2022 Court in M Muthuraj v. State10 adopting the same position. In the view which we have taken, we have arrived at the conclusion that the exclusion of a child born from a second marriage from seeking compassionate appointment under the terms of the circular of the Railway Board is ultra vires. A Division Bench of the Madras High Court followed the view of the Calcutta High Court in Namita Goldar2 in Union of India v. M. Karumbayee11. A Special leave petition filed against the judgment of the Division Bench was dismissed by this Court on 18-9-201712.”
10. Following the aforesaid decision of the Hon'ble Supreme Court, the yet another judgment of the Hon'ble Supreme Court has been placed before this Court in the case of Mukesh Kumar and another vs. Union of India and others (SLP (C) No.18571 of 2018, dated 24.02.2022), which is unreported judgment. The Hon'ble Supreme Court has analysed the aforesaid issues involved whether the illegitimate sons and daughters of the second wife of the deceased employee are entitled for compassionate appointment. The relevant paragraphs of the said judgment are held as follows:- Page 8 of 19
https://www.mhc.tn.gov.in/judis W.P.No.16241 of 2022 “6. It is true that the matter is no more res integra. This Court in V.R. Tripathi considered the very same policy and circular that arise for the consideration in the present case. The judgment covers the issue, as is evident from the following passages:
“14. The real issue in the present case, however, is whether the condition which has been imposed by the circular of the Railway Board under which compassionate appointment cannot be granted to the children born from a second marriage of a deceased employee (except where the marriage was permitted by the administration taking into account personal law, etc.) accords with basic notions of fairness and equal treatment, so as to be consistent with Article 14 of the Constitution....
16. The issue essentially is whether it is open to an employer, who is amenable to Part III of the Constitution to deny the benefit of compassionate appointment which is available to other legitimate children. Undoubtedly, while designing a policy of compassionate appointment, the State can prescribe the terms on which it can be granted. However, it is not open to the State, while making the scheme or rules, to lay down a condition which is inconsistent with Article 14 of the Constitution. The purpose of compassionate appointment is to prevent destitution and penury in the family of a deceased employee. The effect of the circular is that irrespective of the destitution which a child born from a second marriage of a deceased employee may face, compassionate appointment is to be refused unless the second marriage was contracted with the permission of the Page 9 of 19 https://www.mhc.tn.gov.in/judis W.P.No.16241 of 2022 administration. Once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires.
17. Even if the narrow classification test is adopted, the circular of the Railway Board creates two categories between one class of legitimate children. Though the law has regarded a child born from a second marriage as legitimate, a child born from the first marriage of a deceased employee is alone made entitled to the benefit of compassionate appointment. The salutary purpose underlying the grant of compassionate appointment, which is to prevent destitution and penury in the family of a deceased employee requires that any stipulation or condition which is imposed must have or bear a reasonable nexus to the object which is sought to be achieved. The learned Additional Solicitor General has urged that it is open to the State, as part of its policy of discouraging bigamy to restrict the benefit of compassionate appointment, only to the spouse and children of the first marriage and to deny it to the spouse of a subsequent marriage and the children. We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be Page 10 of 19 https://www.mhc.tn.gov.in/judis W.P.No.16241 of 2022 impermissible to exclude them from being considered for compassionate appointment.
Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination.
18. The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries legitimate children.”
7. This Court held that the scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has no nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it would be impermissible to Page 11 of 19 https://www.mhc.tn.gov.in/judis W.P.No.16241 of 2022 exclude them from being considered under the policy. Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee. This judgment has now been followed by a number of High Courts as well.2
8. Apart from the discrimination ensuing from treating equals unequally, which is writ large as demonstrated in the judgment of this Court referred to above, there is also discrimination on the ground of descent, which is expressly prohibited under Article 16(2). In V. Sivamurthy v. State of A.P. 3, this Court observed that appointments made only on the basis of descent is impermissible. However, compassionate appointments are a well-recognized exception to the general rule if they are carved out in the interest of justice to meet public policy considerations.4 It lends justification only that far and no further.
9. While compassionate appointment is an exception to the constitutional guarantee under Article 16, a policy for compassionate appointment must be consistent with the mandate of Articles 14 and 16. That is Page 12 of 19 https://www.mhc.tn.gov.in/judis W.P.No.16241 of 2022 to say, a policy for compassionate appointment, which has the force of law, must not discriminate on any of the grounds mentioned in Article 16(2), including that of descent. In this regard, descent must be understood to encompass the familial origins of a person.5 Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimants legitimacy as their child. The policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant. Apart from the fact that strict scrutiny would reveal that the classification is suspect, as demonstrated by this Court in V.R. Tripathi, it will instantly fall foul of the constitutional prohibition of discrimination on the ground of descent. Such a policy is violative of Article 16(2).
10. We note with approval the decision of the Delhi High Court in Union of India v. Pankaj Kumar Sharma,6 to which one of us (Justice S. Ravindra Bhat) was a party, which held that descent cannot be a ground for denying employment under the scheme of compassionate appointments. Speaking through Sanghi J., the Court Page 13 of 19 https://www.mhc.tn.gov.in/judis W.P.No.16241 of 2022 held:
“22. The Court is of opinion that -
apart from being textually sound – understanding 'descent' in terms of prohibiting discrimination against a person on the basis of legitimacy, or on the basis of his mother's status as a first or second wife, fits within the principles underlying Article 16(2). Not only is one's descent, in this sense, entirely beyond one's control (and therefore, ought not to become a ground of State- sanctioned disadvantage), but it is also an established fact that children of 'second' wives, whether counted as illegitimate or legitimate, have often suffered severe social disadvantage. Another significant observation here is that at the entry level
- "legitimacy" is and cannot be a ground for denial of public employment. For these reasons, this Court is of the opinion that the Petitioner's regulation violates Article 16(2).”
11. Given the above, we hold that the issue arising for consideration, in this case, is covered by the judgment of this Court in Union of India and Ors. v. V.K. Tripathi and consequently the judgment and order dated 18.01.2018 of the High Court of Judicature at Patna passed in CWJC No. 18153 of 2017 is set aside. As we have held that appellant No.1, Shri Manish* Kumar, cannot be denied consideration under the scheme of compassionate appointments only because he is the son of the second wife, there shall be a direction to consider Page 14 of 19 https://www.mhc.tn.gov.in/judis W.P.No.16241 of 2022 his case as per the extant policy. The Authorities shall be entitled to scrutinize whether the application for compassionate appointment fulfils all other requirements in accordance with the law. The process of consideration of the application shall be completed within a period of three months from today.”
11. Considering the said facts of the case, the 2nd respondent has denied to give appointment to the petitioner under compassionate scheme is contrary to the aforesaid judgments of the Hon'ble Supreme Court. Therefore, this Court has no hesitation to set aside the impugned order dated 08.04.2022 passed by the 2nd respondent. Keeping in mind the ratio laid down in the above cited judgments of the Hon'ble Supreme Court, this Court is of the view that the petitioner is entitled for the relief in the instant writ petition.
12. In view of the facts and circumstances of the case and considering the aforesaid judgments of the Hon'ble Supreme Court, this Court is inclined to pass orders as follows:-
(i) The impugned order in Na.Ka.No.6703/2020/K.3, dated Page 15 of 19 https://www.mhc.tn.gov.in/judis W.P.No.16241 of 2022 08.04.2022 passed by the 2nd respondent is quashed.
(ii) The 2nd respondent is directed to serve notice to all the legal heirs of the deceased employee/A.Elangovan and to consider the petitioner's application seeking appointment under compassionate ground and pass appropriate orders in the light of the Government Order in G.O.(Ms).No.18, Labour and Employment (Q1) Department, 23.01.2020.
(iii) The said exercise shall be completed by the 2 nd respondent, within a period of twelve weeks from the date of receipt of a copy of this order.
13. With the above directions, the writ petition stands allowed. No costs.
24.08.2022
Index : Yes/No
Speaking Order : Yes/No
dm
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W.P.No.16241 of 2022
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W.P.No.16241 of 2022
To
1.The Secretary,
Government of Tamil Nadu,
Labour and Employment (Q1) Department,
Secretariat, Chennai - 600 009, Tamil Nadu.
2.The District Collector, 1st Floor, Main Building, District Collectorate, Dharmapuri - 636 705, Tamil Nadu.
3.The Block Development Officer (B.P), Block Development Office, Pappireddipatti - 636 905, Dharmapuri District, Tamil Nadu.
Page 18 of 19 https://www.mhc.tn.gov.in/judis W.P.No.16241 of 2022 D. KRISHNAKUMAR, J.
dm W.P.No.16241 of 2022 24.08.2022 Page 19 of 19 https://www.mhc.tn.gov.in/judis