Madras High Court
R.Kanagasanthi vs Tamil Nadu Civil Supplies Corporation on 6 February, 2014
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.02.2014
Coram
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
W.P. No.11522 of 2012
R.Kanagasanthi .. Petitioner
Versus
1. Tamil Nadu Civil Supplies Corporation,
rep. by its Managing Director,
No.25, Thambusamy Road,
Kilpauk, Chennai 600 0010.
2. The Regional Manager,
Tamil Nadu Civil Supplies Corporation.
Thiruvannamalai.
.. Respondents
Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records on the file of the 2nd respondent relating to the impugned order dated 09.07.2010, bearing Na.Ka.No.E1/5893/2006 and quash the same and consequently direct the respondents to consider and appoint the petitioner in any suitable Class III/IV posts on compassionate basis.
For Petitioner : M/ Sai Bharat and Ilan
For Respondents : Mr.L.P.Shanmugasundaram
ORDER
This writ petition is filed to quash the impugned order of the 2nd respondent dated 09.07.2010, denying compassionate appointment to the petitioner and for a direction to the respondents to consider and appoint him in any suitable Class III/IV posts on compassionate basis.
2. The case of the petitioner is that his father V.Ramanathan, joined the services of the respondent Corporation in 1989 as Daily Rated Packer and after 11 years of service, his services were regularised; on 26.06.2003, his father died, leaving behind him and his two younger brothers; his mother pre-deceased his father in the year 1996; that he completed 10th Standard schooling and also possessed a driving licence to drive light motor vehicle and hence, he is entitled to be appointed in Class III/IV posts in the respondent Corporation, by extending the benefit of compassionate appointment; however, by a communication dated 29.03.2004, replying to his application for compassionate ground appointment dated 08.10.2003, the 2nd respondent has stated that there was a ban by the Government for appointments on compassionate ground and hence directed him to represent after the ban was lifted; in the year 2006, after the ban was lifted, the petitioner made a representation and as per the direction given by the respondent Corporation, he also gave an undertaking that he would work in any region without insisting a posting in the native region on 26.04.2007; however, the application of the petitioner for compassionate appointment was rejected by the impugned order dated 09.07.2010, that there was a change in policy on 05.04.2007, by which, it has been decided that wards of the daily rated employees, who were regularised would not be entitled to compassionate appointment; since the said policy was given effect to only prospectively, the same could not be made applicable to his case, therefore, he made a representation on 12.08.2010, followed by several reminders and since there is no response, the petitioner has come forward with this writ petition,challenging the impugned order dated 09.07.2010.
3. The 2nd respondent has filed a detailed counter affidavit on behalf of the 1st respondent also. In the counter it is stated that the petitioner has approached this Court belatedly and the delay itself would prove that he does not require appointment on compassionate grounds. Further, it is stated that the service of petitioner's father was regularised in the year 2000 and he died within 3 years thereafter. The 2nd respondent has further stated that even though an application for compassionate appointment was made immediately after the demise of the petitioner's father, in view of ban for appointment on compassionate ground, the petitioner's case could not be considered and that when the ban was lifted in 2006, the application of the petitioner was considered carefully, and by an order, it was made clear that the services of the petitioner's father were regularised, subject to certain conditions and since the benefits of leave encashment, washing allowance and compassionate appointments were denied to the father of the petitioner, while his services were regularised, the representation of the petitioner was rightly rejected by the respondents. The 2nd respondent has further stated that the ban on recruitment and conditions of regularisation of the service of the father of the petitioner stand a bar to the petitioner from claiming compassionate appointment, that there is no change in policy of appointment, especially the compassionate appointment and therefore, pleaded that the writ petition may be dismissed as devoid of merits.
4. The learned counsel for the petitioner has contended that the father of the petitioner was the sole breadwinner of the family and the family is in grave financial distress and hence the petitioner deserves compassionate appointment. It is the further contention of the learned counsel for the petitioner that subsequent change of policy cannot be applied retrospectively when the petitioner was eligible for compassionate appointment on the date of the demise of his father on 26.06.2003. Hence, the impugned order dated 09.07.2010 was passed with total non application of mind and therefore, the same has got to be quashed and the petitioner should be considered and appointed in a suitable Class III/IV posts on compassionate grounds.
5. In support of the above contentions, the learned counsel for the petitioner relying on a decision of this Court dated 01.12.2011 rendered in W.P.No.17588 of 2011, has submitted that in similar circumstances Manoharan, the petitioner therein was given employment during the pendency of the said writ petition. Therefore, the petitioner has also to be given the same benefit.
6. On the other hand, the learned Additional Government Pleader, relying on the decision of the Hon'ble Apex Court reported in (2011) 3 SCC 42 (Local Administration Department and another vs. M.Selvanayagam Alias Kumaravelu), has contended that as there is a delay in approaching this Court, the petitioner is not entitled for compassionate appointment.
7. Further, the learned Additional Government Pleader relying upon the decision of the Hon'ble Supreme Court in (2010) 11 Supreme Court Cases 661 (State Bank of India and Another vs. Raj Kumar) has contended that the petitioner herein is not entitled to any relief. The learned Additional Government Pleader has contended that in that case, a new scheme replaced the old scheme and ex-gratia payment was directed to be ordered in the place of compassionate appointment.
8. I have heard the learned counsel for the petitioner and the learned Additional Government Pleader for the respondents and perused the materials available on record.
9. As far as W.P.No.17588 of 2011 relied on by the learned counsel for the petitioner is concerned, from the prayer, it appears that the said Manoharan was qualified for appointment in the post that was meant for direct recruitment. Since the details are not available, the said decision cannot be followed in the case on hand.
10. As far as the decision of the Hon'ble Apex Court reported in (2011) 13 SCC 42 relied on by the learned Additional Government Pleader is concerned, in that case, the concerned person was 11 years old at the time of the death of his father viz., on 22.11.1988 and the first application was made on 29.07.1993, when he was minor. Another application was made on attaining the majority, after 7 years and 6 months of his father's death. The Hon'ble Apex Court held that in such a case, the appointment cannot be said to sub serve the basic object and the purpose of the scheme. It further held that the municipal authorities were right in rejecting that case of compassionate appointment. However, as far as the case in hand is concerned, the petitioner's father died on 26.06.2003 and he made an application for compassionate appointment immediately thereafter and by a communication dated 29.03.2004, the respondents stated that there was a ban on appointment and in case, the ban is lifted, he would be given preference in case of appointment. Hence, the decision cited supra cannot be made applicable, more particularly, in view of the fact that the respondents have themselves admitted in the counter that the application for compassionate appointment has been made by the petitioner immediately after the demise of his father.
11. In this context, it is useful to refer to a decision reported in (2012) 7 Supreme Court Cases 248 (Shreejith L. vs. Deputy Director (Education) Kerala and Others, wherein the Hon'ble Apex Court, while dealing with the object of compassionate appointment, has held that it is not obligatory on the part of the employer to search out legal heirs of deceased employee who died in harness or to educate heirs of their right to seek compassionate appointment. As far as the case in hand is concerned, in fact, the other legal heirs of the petitioner's father have given an affidavit that they have no objection in their brother, the petitioner herein, in getting a Government job and that they have not received any consideration for signing this affidavit and the said affidavit has been given with pleasure and without threat or force or coercion. The said affidavit was notarized on 05.11.2006. In the above cited decision, the Hon'ble Apex Court has also considered about the inordinate delay and held that it would be fatal in claiming appointment on compassionate ground. As far as the case in hand is concerned, as stated supra, there is no delay on the part of the petitioner in claiming compassionate appointment and this fact has been admitted by the respondents in paragraph 4 of the counter affidavit, the relevant portion of which is extracted below:-
"......Though the application for compassionate appointment was made immediately thereafter, the same could not be considered as there was ban on appointment on compassionate grounds. The said ban was lifted during 2006, the application of the petitioner was considered carefully, wherein it was made clear that the father of the petitioner was regularized subject to certain conditions......."
12. At this juncture, it is relevant to point out paragraph No.20 of a decision reported in (2011) 4 SCC 209, Bhawani Prasad Sonkar vs. Union of India and others, wherein the Hon'ble Apex Court has held 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 of 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."
In that case, the Hon'ble Apex Court has allowed the case of the appellant by holding that testing on the touchstone of these broad guidelines governing appointment on compassionate ground, it was of the opinion that the appellant has made out a case for such appointment. As far as the case in hand is concerned, the application for compassionate ground appointment was made within the time limit. It has also been held in a catena of decisions of the Hon'ble Apex Court that to provide immediate succor to the family which may suddenly find itself in dire straits as a result of the death of the breadwinner, compassionate appointment has got to be made. This has been established by the petitioner. The spirit of the compassionate appointment was to provide relief to the family members of the deceased persons and that on yardstick of social justice, such relief cannot be withdrawn retrospectively as the Government stopped appointments for certain periods and when there was a modification, after lifting the ban, the new scheme or modification has to take effect only prospectively. The writ petitioner has rightly contended that when there is a change in policy on 05.04.2007, while lifting the bank, it could not result in denial of compassionate appointment to the petitioner, as any change would only be prospective in nature.
13. As far as the decision reported in (2010) 11 Supreme Court Cases 661 relied on by the learned Additional Government Pleader is concerned, the Hon'ble Apex Court, while considering the case of compassionate appointment for the dependent of the deceased employee, who died on 01.10.2004, has held that the heirs are entitled to the benefits of the new scheme for getting lump sum ex-gratia payment. However, the Hon'ble Apex Court has further held that compassionate appointment under the scheme cannot be given vested right and the scheme that is in force when the application was actually considered, and not the scheme that was in force earlier, when the application was made, will be applicable. By referring to its another Judgment, the Hon'ble Apex Court has further held that there can be an exception to the rule when the right had already accrued and vested with the applicant, before change of policy. Hence, as far as the case of the petitioner herein is concerned, I am of the view that the Corporation has considered the request of the petitioner for compassionate appointment and as extracted supra, the 1st respondent has admitted that immediately after the demise of the petitioner's father, an application was made and it has been deferred only on the ground that there was a ban on appointments and hence after lifting the ban, the petitioner should be put back and given the benefits. If the petitioner had applied for compassionate appointment, after the change in policy on 05.04.2007, this Court would have dismissed the writ petition on the ground of delay and also on the ground that even though his father had died during the time when the old scheme was in force for appointment on compassionate grounds, the application has been made after the new scheme has come into force. But, these two grounds are not available for rejecting the case of the petitioner as the application has been made within time the application has been made prior to the coming into force of the new scheme/policy on 05.04.2007. The respondents having kept quiet in not providing employment on compassionate appointment, may be due to the genuine reason on the ground of ban on compassionate appointment, now, passing the impugned order, rejecting the application of the petitioner, is not only unwarranted but also unjustified and it smacks victimization and a clear case of discrimination and arbitrariness.
14. Further, even though I am not accepting the decision of the learned Single Judge in W.P.No.17588 of 2011, as the pleadings are not available on record and the prayer sought for is to appoint the petitioner therein in direct recruitment post, there is no hard and fast rule in depriving the petitioner's compassionate appointment, when he fits into the guidelines or the commandments issued by the Hon'ble Apex Court which are extracted supra. The amount paid or payable to the deceased employee cannot be taken into account for the purpose of depriving compassionate appointment and those benefits are in any event have to be paid to the dependents/legal heirs of the deceased employee and that cannot be quoted as a reason for not extending the compassionate appointment. In any event, that is not the reason given in the impugned order.
15. In view of the aforesaid discussions, I am of the view that the petitioner has to succeed. Hence, the writ petition is allowed and the impugned order of the 2nd respondent dated 09.07.2010 is quashed. The respondents are directed to provide appointment on compassionate grounds to the petitioner in the next vacancy arising in Class III/IV and the order should be complied with, within a period of three months from the date of receipt of a copy of this order. No costs.
06.02.2014 rg Index : Yes / Internet : Yes / To
1. Tamil Nadu Civil Supplies Corporation, rep. by its Managing Director, No.25, Thambusamy Road, Kilpauk, Chennai 600 0010.
2. The Regional Manager, Tamil Nadu Civil Supplies Corporation.
Thiruvannamalai.
S.VAIDYANATHAN, J rg Pre-delivery Order W.P. No.11522 of 2012 06.02.2014