Madras High Court
V.Sampath vs The District Collector on 19 December, 2011
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.12.2011 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN Writ Petition No.10490 of 2008 & M.P.No.1 of 2008 V.Sampath .. Petitioner Vs. 1. The District Collector, Thiruvannamalai District, Thiruvannamalai. 2. Thiruvannamalai Panchayat Union, rep. by its Commissioner, Thiruvannamalai. .. Respondents Writ Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, to call for the records in Na.Ka.2613/2007 Pa A.I, dated 2.1.2008 on the file of the first respondent and quash the same and direct the respondents to appoint the petitioner on compassionate grounds. For petitioner : Mr.K.Shanmugakani For respondents: Mr.M.Dig Vijaya Pandian, Addl.G.P. For R-1 Ms.C.K.Vishnupraiya for R-2 ORDER
The son of the deceased Government employee challenges the order of rejection of compassionate appointment in the proceedings of the first respondent/District Collector in Na.Ka.No.2613/2007/PA/AA1, dated 2.1.2008, seeking to quash the same and for a consequential direction to the respondents to appoint the petitioner on compassionate grounds.
2. The case of the petitioner is as follows:
(a) The petitioner's father Vadivel was employed as a Class IV employee in Tiruvannamalai Panchayat Union Office, and he died in harness on 2.10.1995, leaving behind his wife--Smt.Boopathy, two sons--Saravanan and Sampath (writ petitioner) and one daughter--Vasanthi. His father was the sole bread winner of the family and they have no other source of income. On the sudden demise of the petitioner's father, the family was forced to stand on the streets.
(b) After the death of the petitioner's father, the petitioner applied for a Legal Heirship certificate, but the Village Administrative Officer (for short, 'the VAO') of Mettu Kosalai Village, without issuing the heirship certificate of his deceased father Vadivel, tried to project as if the said Vadivel was married to one Laxmi and as such, the said Laxmi was the widow of the said deceased Vadivel and fabricated documents to show as the heirs of the deceased Vadivel.
(c) While that being the position, the petitioner's mother filed a Writ Petition before this Court in W.P.No.1188 of 1996 for a direction to the respondents to issue the Legal Heirship Certificate and this Court directed the respondents therein to consider the representation of the petitioner therein and pass orders. However, the Tahsildar, Tiruvannamalai, passed the order on 22.5.1996, directing the petitioner to get the orders from the Civil Court by obtaining a succession certificate.
(d) Therefore, the petitioner and the other heirs of the deceased Vadivel filed a civil suit in O.S.No.5555 of 1999 before the 18th Assistant Judge, City Civil Court, Chennai for a declaration that the plaintiffs are the heirs of the deceased Vadivel and also for a consequential direction that the plaintiffs (legal heirs of the deceased Vadivel) are entitled to get the terminal benefits arising out of the death of Vadivel. Pending the suit suit, the alleged wife of the deceased Vadivel, namely Lakshmi, the Village Administrative Officer, Mettukosalai Village, Tiruvannamalai, Secretary of the Local Administration Department, Chennai, Paramasivam and the Executive Officer of Thiruvannamalai Panchayat Union, were impleaded as parties to the said suit. All the parties have filed their pleadings and contested the case for trial and let in oral and documentary evidence. After the contested trial, the learned 18th Assistant Judge, City Civil Court, granted a decree as prayed for on 4.4.2005 and declared the plaintiffs (one of the sons, Sampath--writ petitioner herein, Boopathy--wife of the deceased Vadivel, Saravanan--another son of the deceased Vadivel and Vasanthi--the daughter of the deceased Vadivel) as the heirs of the deceased Vadivel and also held that the plaintiffs are entitled to get the terminal benefits on the death of Vadivel.
(e) Only thereafter, the petitioner was able to approach the appropriate authorities to get the certificates, which are indispensably required for making application on compassionate grounds. As the petitioner's father Vadivel (deceased) was a Class IV employee in the second respondent-Panchayat Union, on a regular appointment and had died in harness on 2.10.1995, the petitioner is entitled to get appointment on compassionate grounds.
(f) Due to the sudden demise of the petitioner's father, the entire family was stranded on the streets in the midst of lengthy litigation, and only after the decree of the Civil Court in the said suit, the petitioner was able to obtain the following certificates:
(i) Conduct Certificate;
(ii) Death Certificate of the deceased Vadivel (petitioner's father);
(iii) Tahsildar Certificate of the death of Vadivel in harness;
(iv) Tahsildar Certificate about the properties held by the deceased and the source of income;
(v) The Certificate issued by the Tahsildar that the deceased Vadivel's widow was not re-married and
(vi) The Certificate issued by the Tahsildar about the family status of the petitioner.
(g) After getting the necessary certificates, on 14.2.2007, the petitioner applied to the first respondent-District Collector for appointment on compassionate grounds due to the death of his father. The District Collector however passed the order on 2.1.2008, rejecting the application on compassionate grounds, on the sole ground that the application for appointment on compassionate grounds, was made after three years from the date of the death of the petitioner's father on 2.10.1995.
3. The petitioner assails the impugned order of rejection of application seeking for appointment on compassionate grounds, on the following grounds:
(i) The impugned order passed by the first respondent-District Collector is arbitrary, il, unjust and against the principles of law and justice.
(ii) The respondents have failed to take note of the circumstances under which the petitioner's family was forced to approach the Civil Court for getting the necessary declaration of the status and because of their approach to the VAO and due to the lengthy litigation period, the delay has occurred, and therefore, the impugned order passed by the first respondent is without considering the circumstances and the material facts in getting the Legal Heirship Certificate, which is a necessary document to be enclosed along with the application seeking for compassionate appointment.
4. The respondents have filed their counter affidavit, inter-alia stating as follows:
(i) The petitioner Thiru.V.Sampath who is the son of late Thiru.Vadivel, who was working as Gang Coolie in Tiruvannamalai Panchayat Union Office, died on 2.10.1995 while in service. The family of the deceased employee included his wife Tmt.Bhoopathy, daughter--Tmt.Vasanthi, sons--Saravanan and Sampath (writ petitioner).
(ii) The petitioner being one of the heirs of the deceased employee submitted application for appointment on compassionate grounds belatedly on 14.2.2007 to the Block Development Officer (for short, 'the BDO'), Tiruvannamalai, and after scrutinising the relevant documents, the proposal for compassionate grounds appointment was forwarded to the Director of Rural Development and Panchayat Raj Department, in the office letter No.2613/2007/PA4, dated 28.5.2007 for orders.
(iii) In the meantime, the Government constituted a Staff Committee for compassionate appointment and its recommendations were placed before the Cabinet and based on the decision taken by the Cabinet, the Government ordered new guidelines in G.O.Ms.No.42, Labour and Employment (Q1) Department, dated 12.3.2007. The time limit fixed for filing the application under compassionate grounds, is three years from the date of the death of the Government servant, and this was subsequently clarified by the Government in Letter No.202, Labour and Employment Department, dated 8.10.2007, stating that the guidelines issued in the abovesaid G.O. are applicable for all present, past and future cases and the time for filing of the application shall be three years from the date of the death of the Government servant and it is applicable to all cases including where the Government servant who died in harness even prior to 26.6.1995.
(iv) The death of the employee in this case occurred on 2.10.1995 and the application for appointment under compassionate grounds, should have been submitted within three years, whereas the application was made by the petitioner on 14.2.2007, after a lapse of 12 years, and therefore, based on the guidelines and the instructions of the Director of Rural Development, Chennai, the application of the petitioner was rejected and the intimation was sent to him in the Office Letter No.PA4/2613/2007, dated 2.7.2008.
(v) The petitioner stated that there was a dispute pending before 18th Assistant Judge, City Civil Court, Chennai, for getting the Heirship Certificate and it took time to declare him as one of the heirs of the deceased employee (petitioner's father) and finally on 4.4.2005, the Civil Court passed the orders, but the petitioner-applicant should have submitted his application for appointment on compassionate grounds within three years with all the other documents before the authority, and hence, the fact that the petitioner-applicant has failed to submit his application within time, is proved.
(vi) The application on compassionate grounds appointment should be made within three years from the date of the death of his father. The petitioner's father died on 2.10.1995, but the application seeking compassionate appointment was made belatedly after 12 years from the date of his father's death, and therefore, as per the Government Orders issued periodically, the application for compassionate appointment shall be made within the time limit, which is contrary to the guidelines of the Government in the said Government letter dated 8.10.2007, fixing the three years' period of time from the date of the death of the Government servant to make an application and it cannot be deviated from such rules and guidelines for any reason and on the ground of belated application, the petitioner's request has been rejected, as he has made the said application only on 14.2.2007.
(vii) The application of the petitioner was rejected based on the Government instructions which were issued based on the observations and directions of the Supreme Court. The explanation of the petitioner is not acceptable in respect of the delay in making the application after 12 years, for the reason that though it took him time to obtain the Legal Heirship Certificate belatedly, he should have submitted his application requesting the appointment under compassionate grounds along with all the other documents including the heirship Certificate and he should have registered his name in time, but the petitioner has failed to do the same, within the prescribed time. The administration will not be held responsible and he has failed to submit his application in time and without procuring the Legal Heirship Certificate, the application could not be processed, as per the Government Orders and guidelines. The Supreme Court observed that the very purpose of giving compassionate appointment scheme is only to help the family of the deceased Government servant to tide over the sudden indigent circumstances unexpectedly happened when such application is made in time by the sudden and the death of the Government servant.
(viii) The issue is whether the family is in indigent circumstances, and the application should have been made in time, if really needed, and in this case, the application was made after 12 years from the date of the death of the Government servant, and obviously, the family cannot be considered to be in indigent circumstances and the time limit shall be three years for filing of application from the date of the death of the Government servant and the same is applicable to all cases, including where the Government servant died in service even prior to 26.6.1995 also. Therefore, the respondents pray for dismissal of the Writ Petition.
5. Mr.K.Shanmugakani, learned counsel appearing for the petitioner, in his submissions, strenuously contended that immediately after the death of the petitioner's father, the petitioner applied for heirship Certificate, but the VAO of the concerned Village, dragged the matter and ultimately, a writ petition was filed by the petitioner's mother before this Court, and it is stated by the learned counsel for the petitioner that this Court in the said W.P., directed the authorities to consider the representation of the petitioner's mother, and only then, the Tahsildar concerned has directed the petitioner to approach the Civil Court for obtaining the succession certificate, which shows as if there was a dispute with regard to the heir status of the family. The Legal Heirship Certificate/Succession Certificate are basic documents for claiming the appointment on compassionate grounds and as there was delay in obtaining the same, the petitioner could not make his application for compassionate appointment immediately.
6. Learned counsel for the petitioner further contended that though the family of the petitioner was in indigent circumstances, they have spared no efforts to move the concerned authorities for necessary certificates and applied before the authority concerned for compassionate appointment. The Tahsildar of Tiruvannamalai District, instead of considering the representation of the petitioner seeking for compassionate appointment in right spirit, directed the petitioner to obtain succession certificate from the Civi Court, and subsequently, they have also moved the competent Civil Court to obtain a declaration and consequential direction and thereafter, after obtaining the Civil Court's decree, the petitioner has immediately moved the competent authority claiming appointment on compassionate grounds. Steps have also been taken by the petitioner's mother in 1996 by filing Writ Petition before this Court, as stated above, and the pendency of litigation is itself a proof that they have meticulously taken efforts to get the Legal Heirship Certificate/Succession Certificate, even though the authorities before whom they have moved, were not doing their duties diligently and acted in snail's pace in guiding the petitioner about the limitation in making the application for compassionate appointment. However, in the interregnum, the delay has occurred, which is neither wilful nor wanton, and it cannot be solely attributed on the part of the petitioner, but it was only due to the process in obtaining necessary Certificates from the concerned authorities, and the petitioner was diligently approaching the authorities as per law and was taking appropriate steps, which are all evident even from the counter affidavit filed by the respondents.
7. It is the further contention of the learned counsel for the petitioner that the guidelines were fixed by the Government in the various Orders issued from time to time. It is to be noted that the application of the petitioner seeking for compassionate appointment was made even before the clarification letter of the Government dated 12.3.2007, which gives the three years' limitation and it has stated in categorical terms that the time limit would apply to all the past, present and future cases also. For all the above reasons, the impugned order of rejection of compassionate appointment, suffers from infirmities and it cannot be sustained, and the same cannot be put against the petitioner to deprive his legitimate claim for compassionate appointment.
8. Learned counsel for the petitioner relied on the following decisions in support of his above contentions:
(a) 1998 (5) SCC 192 (Director of Education (Secondary) Vs. Pushpendra Kumar):
8. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. ........ In Umesh Kumar Nagpal Vs. State of Haryana (1994 (4) SCC 138 = 1994 SCC (L & S) 930 = 1994 (27) ATC 537) this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that the Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. .... "
(b) 2000 (7) SCC 192 (Sanjay Kumar Vs. State of Bihar):
"3. .... This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the breadearner who had left the family in penury and without any means of livelihood. In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education Vs. Pushpendra Kumar (1998 (5) SCC 192 : 1998 SCC (L & S) 1302 : 1998 (2) Pat LJ 181). ...."
and
(c) 2010 (7) MLJ 644 (Madras High Court): (M.Uma Vs. Chief Engineer (Personnel), TNEB):
"Aggrieved by the rejection of her claim for appointment on compassionate grounds, a writ petition has been filed by the petitioner."
"Whether the order rejecting the application for appointment on compassionate grounds on the ground that it was not submitted within three years from the date of the death of the deceased employee is justified?"
"10. In the light of the above judgments of the Supreme Court as well as the Division Bench judgments of this Court and having regard to the fact that the petitioner's application was rejected by order dated 26.2.2005 on the ground that she has not submitted the application within three years and the application was submitted by the petitioner's brother on 29.4.2002 and after the said rejection, the petitioner applied on 10.6.2002 and the proof of sending the application is filed in the typed set of papers and also the fact that the petitioner's family is still in indigent circumstances, I am of a firm view that the petitioner has made out a case to issue a mandamus directing the respondents to consider the claim of the petitioner seeking compassionate appointment without reference to the objection raised in the impugned order, i.e. the petitioner has not applied within three years from the date of the death of the petitioner's father. Necessary revised order is directed to be passed by the respondents within a period of three months from the date of receipt of a copy of this order. No costs."
"The application for the appointment on compassionate grounds is not to be rejected on the ground that it was filed after a lapse of time and the application, is to be considered on its own merits".
Learned counsel for the petitioner also relied on various other decisions of the Apex Court, which have all been quoted by this Court in-extensu, in the decision reported in 2011 (4) MLJ 438 (Madurai Bench) (A.Musthfa Iqbal Basha Vs. State of T.N) (W.P.(MD).No.119 of 2010, dated 15.3.2011), and hence it is enough to quote the said decision of this Court reported in 2011 (4) MLJ 438 (cited supra) for the ratio-decidendi of this Writ Petition and the dictum laid down by this Court in 2011 (4) MLJ 438 (cited supra) is as follows:
"Writ Petition has been filed for quashing the order passed by the District Educational Officer rejecting the claim for compassionate appointment of petitioner and to direct the respondents to pass an order of appointment for any suitable post on compassionate ground in any of the Government Schools."
"Whether lapse of time in filing application can be a ground for rejecting the claim for compassionate appointment?"
"Any delay in the submission of application for compassionate appointment on the reason of attainment of majority of applicant, does not give an implication that the family of the concerned deceased Government employee has gotten over their indigent circumstances and an order rejecting such claim for compassionate appointment on ground of such lapse of time is unsustainable."
"5a. In support of his case, learned counsel for the petitioner has relied on the following :
(i) a decision of this court reported in (2004) 4 MLJ 238 in the case of T.Meer Ismail Ali vs. Tamil Nadu Electricity Board & others "3. It is not in dispute that the petitioner completed 18 years of age only in the year 2000. When the petitioner's earlier application was rejected on the ground that he did not complete 18 years of age, it cannot be held that the petitioner was not diligent in seeking for compassionate appointment at the earliest point of time. In fact, immediately after attaining 18 years of age and also after qualifying on 04.07.2000, in all fairness, the respondent should have considered the petitioner's claim on merits. In fact in the application, the petitioner would claim that one of his sisters is mentally retarded and therefore, he is the only bread winner of the family.
4. In such circumstances, it was a deserving case where the respondent should have shown some compassion while considering the petitioner's application for compassionate appointment. Unfortunately, the respondent did not seem to have shown any compassion at all and mercilessly rejected the petitioner's application on a hyper technical ground."
(ii) another decision of this court reported in (2010) 7 MLJ 644 in the case of M.Uma vs. Chief Engineer (Personnel), Tamil Nadu Electricity Board, Chennai and another "13. Though the learned single Judge while rejecting the request of the petitioner relied on judgment of one of us (PSJ) made in W.P.No.14134 of 1991 dated 25.01.1999 and the case of Union of India vs. Bhagwan Singh (1995) 6 SCC 476 as well as the case of State of U.P. vs. Parasnath 1998 (2) SCC 412, for the same reasons as stated in para 11 above, those judgments are not directly applicable to the case on hand. In the case of G.Vijayaraghavan vs. General Manager (P) Indian Bank 2000 (3) LLN 625, learned single Judge of this court (PSJ) in similar circumstances directed the Indian Bank to consider the claim of the petitioner therein, who made an application on attaining majority for employment on compassionate ground. In that decision, it is held that, irrespective of settlement of full term service gratuity and other benefits, eligible person can claim appointment on compassionate grounds.
(iii) yet another judgment of this court, dated 17.06.2010 made in W.P.No.3078 of 2006 in the case of R.Prasath vs. The Secretary, Labour and Employment Department and others "16.Though we are conscious of the directions of the Supreme Court which we have already referred to in the earlier part of our order, in view of the Board's proceedings referred to above and of the fact that that the petitioner has made an application within three years from the date of death of her husband. i.e., within the prescribed period and also made subsequent application as directed by the 2nd respondent and also taking note of the assertion of the petitioner that after her husband's death, in the absence of any income, she is living in poverty, her claim has to be considered. In this regard, it is worthwhile to refer the case of the Supreme Court in the case of Balbir Kaur vs. Steel Authority of India Ltd. reported in 2000 (6) SCC 493, wherein, their Lordships have held that in the case of appointment considering the social and economic justice as enshrined in the Constitution, denial of deserving cases are liable to be set aside. Further, the purpose of providing compassionate ground to a son or daughter or a near relative of the deceased government servant is to render assistance to the family, which is found in indigent circumstances. Hence, in considering the case for compassionate appointments, the authorities are supposed to adopt a humane outlook. We do not find any delay or laches on the part of the petitioner, we are unable to accept the conclusion arrived at by the learned single Judge in our case and we are satisfied that the petitioner has made out a case for consideration of her claim. Accordingly, the order of the learned single Judge as well as the order impugned in the writ petition, viz. W.P.No.21512 of 2003 are set aside and the respondents are directed to consider the petitioner's application dated 13.01.2003 on merits and provide necessary relief. "
(iv) a Supreme Court decision reported in (2006) 9 SCC 195 in the case of Syed Khadim Hussain vs. State of Bihar and others "5. We are unable to accept the contention of the counsel for the State. In the instant case, the widow had applied for appointment within the prescribed period and without assigning any reasons the same was rejected. When the appellant submitted the application he was 13 years' old and the application was rejected after a period of six years and that too without giving any reason and the reason given by the authorities was incorrect as at the time of rejection of the application he must have crossed 18 years and he could have been very well considered for appointment. Of course, in the rules framed by the State, there is no specific provision as to what should be done in case the dependants are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application.
6. As the widow had submitted the Application in time the authorities should have considered her Application. As eleven years have passed she would not be in a position to join the Government service. In our opinion, this is a fit case where the appellant should have been considered in her place for appointment. Counsel for the State could not point out any other circumstance for which the appellant would be disentitled to be considered for appointment. In the peculiar facts and circumstances of this case, we direct the respondent-authorities to consider the application of the appellant and give him appropriate appointment within a reasonable time at least within a period of three months. The appeal is disposed of in the above terms. No costs."
(v) a decision of this court reported in 2011 (1) CTC 349 in the case of Mohanambal vs. The Director, Land and Survey Department, Kancheepuram & others "9. Similar issue was considered by the Supreme Court in the decision reported in Syed Khadim vs. State of Bihar, 2006 (9) SCC 195, wherein also the Supreme Court considered the fact that the wife of the deceased, having applied for compassionate appointment in time and as she was found not eligible, the Application submitted by the other heir was directed to be considered even after the lapse of eleven years.
11. Similar claim of the deceased Tamil Nadu Electricity Board Employee was considered and relief granted by the Division Bench of this court in Indirani Ammal vs. Chief Engineer, TNEB, W.A.No.3050 of 2003 dated 08.03.2005 (P.Sathasivam, J. (as he then was) and S.K.K.,J.). The said decision was confirmed by the Supreme Court in Civil Appeal No.2039 of 2006 dated 30.03.2010. Another Division bench of this court in W.A.No.42 of 2007 dated 02.07.2009 also took the same view, which was also confirmed by the Supreme Court in S.L.P.(C) No.8305 of 2010 dated 06.07.2010. The contra view taken by another Division Bench of this court was set aside by the Supreme Court in Civil Appeal No.2858-2859 of 2010 dated 30.03.2010.
12. Here in this case, the petitioner's mother applied for compassionate appointment within one year and she was not given appointment due to want of minimum qualification of 8th standard and the petitioner being the only other heir, pursuing the matter and agitating her right for all these years. In the light of the present financial status of the petitioner, the decision reported in Syed Khadim Hussain vs. State of Bihar, 2006 (9) SCC 195 (cited supra) applies to the facts of this case."
6. On the other hand, learned Government Advocate appearing for the respondents would contend that the very purpose of giving compassionate appointment is to tide over the immediate financial crisis of the deceased Government Servant, but, in this case, the petitioner has submitted an application on 30.12.1999, which is much after a period of six years and against the Rules and therefore, the respondents have rightly rejected the application of the petitioner for compassionate appointment. In support of his contentions, he has relied on a judgment reported in CDJ 2010 MHC 7723 in the case of The Chairman, Tamil Nadu Electricity Board vs. P.Muthukumar. Relevant paragraphs of the said judgment are extracted hereunder:
"27. Direction for appointment on compassionate ground in Electricity Board for the dependants of deceased employee came up for consideration before the First Bench in 2007 Writ L.R. 796 in the case of E.Ramasamy vs. The Tamil Nadu Electricity Board and another. Referring to various judgments, the Hon'ble Supreme Court observing that the Courts cannot direct appointments on compassionate grounds dehors the provisions of the Scheme in force, governed by Rules/Regulations/instructions. The first Bench of this court has held as under :
15. In Sanjay Kumar vs. State of Bihar and others, (2000 (7) SCC 193), Justice M.Jagannadha Rao speaking for the Bench held as follows :
"We are unable to agree with the submissions of the learned senior counsel for the petitioner. This court has held in a number of cases that Compassionate Appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. In fact, such a view has been expressed in the very decision cited by the petitioner in Director of Education vs. Pushpendra Kumar (1998) 5 SCC 192. It is also significant to notice that on the date when the first application was made by the petitioner on 02.06.1998, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief."
30. Coming to the facts of the case on hand, as pointed out earlier, the respondent's father retired from service on medical grounds with effect from 20.11.1995. As per B.P.Ms. (F.B.) 46, (Adm. Branch), dated 13.10.1995 r/w B.P.Ms. (F.B.) 51, the application should be made within three years from the date of retirement on medical grounds. The application even though made within three years, the respondent has not completed 18 years and was not eligible for appointment. There cannot be reservation of vacancy till such time he becomes a major after number of years, unless there are specific provisions. No such specific provision was brought to our notice by the learned counsel for the respondent. The subsequent application was made beyond three years and rejected by the Board. When the Board declined Compassionate Appointment and has taken a decision not to deviate from the provisions underlying the scheme, the court cannot compel the authorities to exercise discretion in a particular manner. Therefore, the order of the learned single Judge cannot be sustained and is liable to be interfered with. "
7. I have given careful consideration to the submissions made by the learned counsel on either side and perused the materials available on record.
8. Admittedly, the petitioner's father was employed with the respondent Department and he died in harness on 15.10.1993. At that time, the petitioner was aged about 13 years and he was doing 8th standard. Thereafter, the petitioner's mother applied for Heir Certificate and obtained the same on 04.11.1993 and a Certificate dated 16.06.1999 was issued by the Tahsildar certifying that the petitioner's mother was receiving Rs.1,250/- as family pension. Though the petitioner has not stated in his pleadings anything about the suit in O.S.No.4234 of 1993, in which the petitioner's mother was a party, a copy of the decree dated 08.12.1998 dismissing the said suit as settled out of court do find place in the records. In the meantime, the petitioner completed SSLC and on attaining the age of majority, he submitted an application to the 4th respondent on 30.12.1999 requesting him to provide compassionate appointment.
9. It is true, as contended by the learned Government Advocate, that the objective of providing compassionate appointment is to tide over the sudden indigent circumstances unexpectedly created by the sudden death of the Government Servant. As the petitioner was a minor at the time of the death of his father and at the same time his mother was also not eligible for appointment, he could not submit any application for compassionate appointment. Instead, he, immediately after attaining majority, submitted an application to the respondents. Just because there is a delay in submitting the application for the said reason by the petitioner for compassionate appointment, it cannot be said that the family of the deceased Government servant has got over the indigent circumstances. It is seen from the records that the two sisters of the petitioner are married and the brother is living separately. Now, the persons left out in the family are the petitioner and his mother, who are without any job and in every need of employment. In the given situation, it is very difficult for them to get two square meals a day. Therefore, I am of the considered opinion that the family of the deceased government servant cannot be left in lurch.
10. In the case of G.Vijayaraghavan vs. General Manager (P) Indian Bank (2000 (3) LLN 625), this court has directed the Indian Bank to consider the claim of the petitioner therein, who made an application on attaining majority for employment on compassionate ground. The principle laid down in the said decision is that irrespective of settlement of full term service, gratuity and other benefits, the eligible person can claim appointment on compassionate grounds. Further, in the case of Balbir Kaur vs. Steel Authority of India Ltd. (2000 (6) SCC 493), the proposition is that in the case of appointment, considering the social and economic justice as enshrined in the Constitution, denial of deserving cases are liable to be set aside. It is further observed therein that the purpose of providing compassionate ground to a son or daughter or a near relative of the deceased government servant is to render assistance to the family, which is found in indigent circumstances. The Supreme Court, in the case of Syed Khadim Hussain vs. State of Bihar and others ((2006) 9 SCC 195), holding that in the rules framed by the State, there is no specific provision as to what should be done in case the dependants are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application, allowed the case of the petitioner for compassionate appointment.
11. In a similar circumstance, in the case of M.Uma vs. Chief Engineer (Personnel), TNEB, Chennai, (2010) 7 MLJ 644, wherein the petitioner's application was rejected on the ground that she has not submitted the same within three years, this court, taking into account the indigent circumstances of the family directed the respondents therein to consider the claim of the petitioner seeking compassionate appointment without reference to the objection raised in the impugned order. Also are cases in Mohanambal vs. The Director, Land & Survey Department (supra) and R.Prasath vs. The Secretary, Labour and Employment Department and others, (supra) wherein, this court has held that the application for appointment on compassionate grounds is not to be rejected on the ground that it was filled after a lapse of time and the application is to be considered on its own merits.
12. It is also worth referring to a decision in the case of Sushma Gosain and others vs. Union of India and others, reported in AIR 1989 SC 1976 : 1989 (4) SCC 468 : 1990 (1) LLJ 169, wherein in the case of wherein, the Supreme Court, on the principle of considering the mitigating circumstances and hardship, has held as follows :
"9. We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant."
13. Of course, there cannot be any reservation of vacancy till such time the petitioner becomes a major after a number of years. In the case on hand, since the sudden death of the government servant had left his family in penury and without any means of livelihood, I feel it justified that the petitioner can be accommodated in any suitable post as per his qualification, as against the post held by his father.
14. In view of the propositions laid down in the decisions referred to supra, this court is of the opinion that the petitioner's claim for compassionate appointment cannot be denied and therefore, the impugned order dated 06.11.2009 passed by the 4th respondent is set aside. The respondents are directed to consider the claim of the petitioner for compassionate appointment without reference to the objection raised in the impugned order i.e., the petitioner has not applied within three years from the date of death of his father, but taking into account the fact that the sudden death of his father has left his family in penury and without any means of livelihood, and pass appropriate orders within a period of two (2) months from the date of receipt of a copy of this order.
The writ petition is allowed with the above direction. No costs. Consequently, the connected M.P.(MD) No.1 of 2010 is closed."
9. Per contra, Mr.M.Dig Vijaya Pandian, learned Additional Government Pleader appearing for the first respondent-District Collector and Ms.C.K.Vishnu Priya, learned Standing Counsel appearing for the second respondent-Tiruvannamalai Panchayat Union that a decision was taken by the Government based on the Staff Committee's recommendations and the guidelines were issued in G.O.(Ms).No.42, Labour and Employment (Q1) Department, dated 12.3.2007, and subsequent clarification was also issued in Government Lr.No.202, Labour and Employment Department, dated 8.10.2007 clarifying that the said G.O.(Ms).No.42 is applicable for all present, past and future cases and therefore, the said G.O. and the clarification letter would be applicable to all cases including where the Government servant died in harness even prior to 26.6.1995 also. Therefore, the said stipulation of the three-year period of limitation for making application for compassionate appointment, from the date of the death of the Government servant, will also be applicable to the case of the petitioner herein, and the petitioner made the application only on 14.2.2007 seeking for compassionate appointment belatedly, just before the said G.O. and the said clarification letter of the Government came into force. Therefore, according to the learned counsel for the respondents, the impugned decision of the first respondent-District Collector is based on the guidelines issued by the Government from time to time, which cannot be found fault with. Hence, the petitioner is not liable to claim any appointment on compassionate grounds on belated application.
10. I have heard the learned counsel appearing for the parties and perused the records and the decisions relied on by the learned counsel for the petitioner and given thoughtful consideration to the submissions made by the learned counsel for the parties.
11. A circumspection of facts reveals that the petitioner's father was a Class-IV employee in the second respondent-Tiruvannamalai Panchayat Union Office. He died in harness on 2.10.1995, leaving behind Smt.Boopathy--wife, two sons--Saravanan and Sampath (writ petitioner) and daughter--Vasanthi. Immediately after the death of the father of the petitioner, the petitioner applied for Legal Heirship Certificate to the VAO of Mettu Kosalai Village, but without issuing the Heirship Certificate, the VAO tried to project the case as if the deceased Vadivel (petitioner's father) was married to one Laxmi, and she is alleged to be the widow of the deceased Vadivel, and hence, the petitioner could not be issued with the Legal Heirship Certificate.
12. Finding that there was no effective remedy, the petitioner's mother moved this Court earlier in W.P.No.1188 of 1996. It is seen from the records of this Court that the said W.P. was dismissed for default on 26.4.2002, though it is stated in the affidavit filed in support of the Writ Petition that this Court in the said W.P.No.1188 of 1996 directed the respondents therein to dispose of the representation and pass orders. It is seen that the Tahsildar, Tiruvananamalai, passed an order on 22.5.1996, directing the petitioner to get orders from the competent Civil Court by obtaining a Succession Certificate. This has forced the petitioner to move the Civil Court in O.S.No.5555 of 1999 on the file of the 18th Assistant City Civil Court, Chennai, for a declaration that the plaintiffs (including the petitioner herein) are the heirs of the deceased Vadivel and for consequential direction that the plaintiffs are entitled for terminal benefits accrued on account of the deceased Vadivel. Pending the said suit, the alleged wife of the deceased Vadivel, namely Laxmi, the Village Administrative Officer, Mettukosalai Village, Tiruvannamalai, Secretary of the Local Administration Department, Chennai, Paramasivam and the Executive Officer of Thiruvannamalai Panchayat Union, were impleaded as parties to the said suit. All the parties have filed their pleadings before the trial Court and contested the suit for trial and let in oral and documentary evidence. After the contested trial, the learned 18th Assistant Judge, City Civil Court, granted a decree as prayed for on 4.4.2005 and declared the plaintiffs (one of the sons, Sampath--writ petitioner herein, Boopathy--wife of the deceased Vadivel, Saravanan--another son of the deceased Vadivel and Vasanthi--the daughter of the deceased Vadivel) as the heirs of the deceased Vadivel and also held that the plaintiffs are entitled to get the terminal benefits on the death of Vadivel.
13. Thereafter, the petitioner obtained necessary certificates from the competent authorities and made an application to the first respondent-District Collector on 14.2.2007, seeking for compassionate appointment, enclosing the following certificates:
(i) Conduct Certificate;
(ii) Death Certificate of the deceased Vadivel (petitioner's father);
(iii) Tahsildar Certificate of the death of Vadivel in harness;
(iv) Tahsildar Certificate about the properties held by the deceased and the source of income;
(v) The Certificate issued by the Tahsildar that the deceased Vadivel's widow was not re-married and
(vi) The Certificate issued by the Tahsildar about the family status of the petitioner.
However, the first respondent-District Collector rejected the claim of the petitioner seeking for compassionate appointment on the ground that it was made after three years of the prescribed time limit and the same is not in accordance with the guidelines issued by the Government in the letter of clarification dated 8.10.2007.
14. The impugned order dated 2.1.2008 rejecting the claim of the petitioner, by the first respondent-District Collector, is assailed by the petitioner on the ground that as there is no time limit prescribed in any of the Rules of the State during the relevant period of time, the petitioner moved the concerned authority for Legal Heirship Certificate immediately on the death of the Government servant, viz., his father, coupled with the fact that even the petitioner's mother moved this Court in 1996 itself in W.P.No.1188 of 1996, as quoted above. When the application seeking for compassionate appointment was made by the petitioner before the competent authority on 14.2.2007, the Government subsequently issued G.O.(Ms).No.42, Labour and Employment (Q1) Department, dated 12.3.2007, whereby the Government stipulated that the existing time limit of three years for filing application from the date of death of the Government servant, shall be continued as per the orders issued by the Government in G.O.(Ms).No.62, Labour and Employment (Q1) Department, dated 19.7.2006 and the said prescription of three years' will operate only prospectively and not retrospectively so as to deprive the benefit to the petitioner and the subsequent clarification letter issued by the Government, dated 8.10.2007 stipulates that it will apply to all past, present and future cases, including where the Government servant died in service even prior to 26.6.1995 also.
15. Learned counsel for the petitioner submitted that the impugned order is not sustainable, as the claim of the petitioner being held to be belated by the authorities, could have very well been considered by the competent authority before-ever the rejection order was passed, as the delay has occurred only due to the lis-pendens before the Civil Court for getting necessary certificate, also taking into consideration the peculiar circumstances under which the petitioner was forced to move the Civil Court for getting heirship/Succession Certificate, and the competent authority might have sympathetically considered the case of the petitioner and the competent authority ultimately left the petitioner in lurch by citing lame excuse, namely to get the succession certificate from Court, thereby, throwing the ball upon the petitioner to approach the appropriate Civil Court, which approach of the competent authority is without any humane consideration. Thus the delay has been properly explained by the petitioner, which could not be attributed solely on the part of the petitioner, inspite of the fact that the petitioner took diligent steps to obtain necessary certificate from Court and also moved the appropriate authorities, but in vain.
16. Learned counsel for the petitioner further submitted that mere rejection of the claim of the petitioner on the ground of delay, cannot be the stumbling block for considering the case of the petitioner for compassionate appointment on merciful consideration by taking sympathetic view.
17. To examine the legality of the impugned order of rejection passed by the first respondent-District Collector, it is to be seen that the petitioner's father was a Class-IV employee in the second respondent-Panchayat Union, who died in harness on 2.10.1995. The petitioner initially moved the VAO immediately without any delay, which shows his genuine intention for making efforts to approach the competent authority to obtain necessary certificate so as to get the compassionate appointment. The petitioner's mother, within a year of the death of the petitioner's father, moved this Court in 1996 itself, in W.P.No.1188 of 1996, as stated above and thereafter, the Tahsildar, Tiruvannamalai passed the order on 22.5.1996 directing the petitioner to approach the Civil Court for obtaining Succession Certificate and hence, the petitioner, along with the other heirs of the deceased Vadivel, moved the Civil Court in O.S.No.5555 of 1999 before the 18th Assistant Judge, City Civi Court, Chennai, which, after considering the oral and documentary evidence, decreed the suit as prayed for on 4.4.2005, declaring that the plaintiffs are the heirs of the deceased Vadivel and also entitling them to claim the terminal benefits on the death of Vadivel. Based on the said decree of the Civil Court, the petitioner approached the first respondent-District Collector claiming compassionate appointment, by enclosing appropriate certificates, without any delay.
18. It is submitted by the learned counsel on either side that during the relevant period, there was a ban imposed by the Government for giving compassionate appointment, till 2006. The petitioner has narrated the various circumstances under which he moved the appropriate authorities immediately on the death of his father and took all efforts diligently to move the authorities, as also his mother, by knocking the doors of the authorities in time. Immediately, he made the application for appointment on compassionate grounds on 14.2.2007 to the BDO, Tiruvannamalai, who, on scrutinising the relevant documents while enquiring the said application, forwarded the same to the Director of Rural Development and Panchayat Raj Department by letter dated 28.5.2007.
19. It is stated that in the meantime, the Government constituted a Staff Committee for compassionate appointments and its recommendations were placed before the Cabinet, and based on the decision of the Cabinet, the Government stipulated new guidelines in G.O.Ms.No.42, Labour and Employment (Q1) Department, dated 12.3.2007 and the time limit fixed for filing the application under compassionate appointment is three years from the date of the death of the deceased Government servant, which has also been subsequently clarified in the letter of the Government dated 8.10.2007, to the effect that the guidelines are applicable for all--present, past and future cases, including where the Government servant died in service even prior to 26.6.1995 also.
20. It is to be noted that in the instant case, the death of the petitioner's father, a Class-IV Government employee, occurred on 2.10.1995 and the application for appointment under compassionate grounds, should have been submitted by the petitioner, within three years thereafter, i.e. on or before 3.10.1998 and on the narrow compass of delay in applying for compassionate appointment, the legitimate claim of the petitioner was rejected, without considering the merits or otherwise of the claim of petitioner in proper perspective.
21. On an analysis of the entire facts and circumstances of the case, and the Government guidelines issued from time to time, as quoted above, it is noteworthy to be mentioned at this juncture that when the petitioner applied for compassionate appointment, by the time, the orders were passed by the Government indicating the instructions in the Government Order/letter of clarification, thereby making it crystal clear that the time limit for applying on compassionate grounds is three years from the date of death of the Government servant. Even before the death of the petitioner's father Vadivel on 2.10.1995, the relevant guidelines of the Government were in force. It is argued that the clarification of the Government in letter dated 8.10.2007 is subsequent to the death of the petitioner's father, which will not have any application to the case of the petitioner's father who died on 2.10.1995, and hence, the case of the petitioner for compassionate appointment should have been considered, notwithstanding the said clarification letter of the Government. In the absence of any specific Rule/guidelines by the State, restricting the compassionate appointment on the flimsy ground of delay, it could not be construed that the three years' period of limitation will have a direct bearing on the case of the petitioner seeking for compassionate appointment.
22. At this juncture, it is relevant to notice the decision of the Supreme Court reported in 2006 (9) SCC 195 (Syed Khadim Hussain Vs. State of Bihar), in which case, the Apex Court observed that, "... in the matters of compassionate appointments the authorities should extend the service in an effective manner so that the eligible candidate may avail the opportunity. .." Though the orders of rejection of the application of the appellant's mother was not challenged the appellant pursued the matter and submitted the application later." In that case, the Supreme Court rejected the contention of the counsel for the State that the application filed after five years after the date of death of the Government employee, will not be considered, and the further submission that the application filed on 7.9.1995 therein, was rightly rejected by the authority, was also not accepted by the Supreme Court. Further, in the said case, the Supreme Court also observed that, ".. Of course, in the rules framed by the State there is no specific provision as to what should be done in case the dependants are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application. .."
23. While applying the observations of the Supreme Court in the case on hand, it is seen that the Government imposed the guidelines only on 12.3.2007 by issuing G.O.(Ms).No.42, Labour and Employment (Q1) Department, and also subsequently by way of a letter of clarification, dated 8.10.2007, clarifying that the earlier guidelines imposing the three-year limit for application of compassionate appointment from the date of the death of the deceased Government servant, would apply even to past, present and the future cases also, including where the Government servant died in service even prior to 26.6.1995 also. This clarification/guideline will not in any way help the respondents to reject the claim of the petitioner for compassionate appointment, inasmuch as the petitioner applied for compassionate appointment on 14.2.2007, and only thereafter, the said G.O.Ms.No.42 and the clarification letter dated 8.10.2007 are subsequently issued, which will have no retrospective effect on the case of the petitioner, as rightly alleged by the learned counsel for the petitioner.
24. One more circumstance to be worth-mentioning in this case for testing the validity of the impugned order, is that, though it is not the intention of the petitioner to drag on the matter by filing the application seeking for compassionate appointment, belatedly, to espouse his own cause, he was diligently acting as per the procedures and it is to be noted that his mother also earlier filed writ petition on his behalf, seeking for appointment, and they have also approached the appropriate authorities. It appears that the deceased Government servant (the petitioner's father) is a Class-IV employee and his son (the writ petitioner herein) has spared no efforts along with his mother in knocking at the doors of law for espousing his cause, not only before the Revenue authorities/administrative authorities, but also before this Court, within one year from the date of death of his father. They have initially approached the VAO, who has complicated the matter by forwarding the application to the Tahsildar, who in turn, was not magnanimous in his approach, but simply directed the petitioner to approach the Civil Court for issuance of the Succession Certificate/Legal Heirship Certificate and ultimately thereafter, the Civil Court has come to his rescue of the parties, by granting decree on 4.4.2005 of declaration that the plaintiffs (including the petitioner herein) are the heirs of the deceased Vadivel, with a further observation that the plaintiffs are entitled to the terminal benefits on the death of the father, and like a last straw on the camel's back, not being wary of the movements from pillar to post under one pretext or the other, the petitioner approached the first respondent-District Collector for compassionate appointment, which was monotonously rejected on the sole and lone ground that it was belated, which is being put in question in this Writ Petition inter-alia sustainable grounds.
25. The above facts and circumstances are making the petitioner's claim conspicuously clear, thereby giving an indelible impression to this Court that this is one such case where the period of limitation could not have any application at all, as the delay had been duly explained by the petitioner, and the petitioner has also explained the chronological factors which led to the filing of the application for compassionate appointment, which was belatedly made on 14.2.2007, which delay is neither wilful nor wanton, legitimately expecting a job from the authorities to eke out his livelihood and to bring the family from the perils of financial crunch and uphold the majesty of familyhood. Furthermore, the compassionate appointment is being followed by the State/Union of India to bring-forth the bereaved family from the fiscal crunch removing their yearning for a decent livelihood.
26. One more aspect which has to be noticed by this Court is that as this end-stage of the litigation when the Writ Petition has come up for final hearing, this Court was doubtful as to whether the family of the petitioner is still in the indigent circumstances, so as to deprive him the compassionate appointment. It is stated at the Bar that the petitioner is not gainfully employed elsewhere. The answer is in the affirmative. It is also stated that he is now only a Coolie. To substantiate this submission, learned counsel for the petitioner produced a Certificate issued by the Tahsildar, dated 29.11.2011, as directed by this Court on 18.11.2011, and the said Certificate reads as follows:
VERNACULAR (TAMIL) PORTION DELETED
27. From the above Certificate of the Tahsildar, dated 29.11.2011, it is evident that the petitioner was a Coolie. To add fuel to the fire of his poverty, his mother also kicked the bucket on 30.9.2007, who was getting family pension and supporting the petitioner's family by all means and at all costs, and it is further evident from the said Certificate of the Tahsildar, that the said family pension was also stopped to the petitioner's family. The petitioner is now ultimately squandering for job in the streets to support his family consisting of his brother and sister. Furthermore, the petitioner is academically qualified with X Standard (SSLC) and he is eligible for compassionate appointment in any suitable post, and the authorities should be broad-minded in giving him atleast a Class-IV job, taking into consideration the indigent circumstances, his qualification and the pros and cons/trials and tribulations of the petitioner's family on the death of the father. It is resultantly clear that the petitioner is in dire need of a job and his claim is justifiable, and therefore, the competent authority must have considered the claim of the petitioner for compassionate appointment in right spirit to mitigate the sufferings of the petitioner, especially taking into account the fiscal background of the family of the petitioner, let alone the poverty.
28. It is to be noticed that the decision of the Supreme Court reported in 2006 (9) SCC 195 (cited supra), had been followed by this Court in the decision reported in 2011 (1) CTC 349 (cited supra) and also in the decision of this Court, reported in 2011 (2) CTC 839 (V.K.Ramesh Vs. The Superintending Engineer), in which, this Court observed as under:
"11. The purpose of providing employment to a dependant of a Government servant dying in harness in preference to anybody else is to mitigate the hardship caused to the family of the employee on account of his unexpected death while in service. In the case of Syed Khadim Hussain v. State of Bihar and others (referred to supra), the Supreme Court has allowed the case of the petitioner for compassionate appointment. Further, in the case of Balbir Kaur v. Steel Authority of India Ltd., 2000 (6) SCC 493, the proposition laid down by the Supreme Court is that in the case of appointment, considering the social and economic justice as enshrined in the Constitution, denial of deserving cases are liable to be set aside. In a similar circumstance, in the case of M.Uma v. Chief Engineer (Personnel), TNEB, Chennai, 2010 (7) MLJ 644, wherein the petitioner's Application was rejected on the ground that she has not submitted the same within three years, this Court, taking into account the indigent circumstances of the family directed the respondents therein to consider the claim of the petitioner seeking compassionate appointment without reference to the objection raised in the impugned order. Also, in the case of G.Vijayaraghavan v. General Manager (P) Indian Bank, 2000 (3) LLN 625, the principle laid down by this Court is that irrespective of settlement of full term service, gratuity and other benefits, the eligible person can claim appointment on compassionate grounds.
12. In view of the propositions laid down in the decisions referred to supra and considering the fact that the petitioner has preferred an Application for compassionate appointment well within the prescribed time, this Court is of the opinion that the petitioner's claim for compassionate appointment cannot be denied and that the petitioner can be accommodated in any suitable post as per his qualification. Therefore, the impugned order dated 07.05.2001 passed by the first respondent is set aside and the respondents are directed to consider the claim of the petitioner for compassionate appointment in any suitable post and pass appropriate orders within a period of twelve (12) weeks from the date of receipt of a copy of this order."
29. This Court, in the above decisions, allowed the case holding that the delay cannot be attributed on the part of the petitioner and the matter has been remanded to the authorities for considering the claim of the petitioner therein in the light of the income certificate of the petitioner. In the present case, the case of the petitioner is substantiated by all fours with the Certificate of the Tahsildar, dated 29.11.2011, given for appointment on compassionate grounds.
30. Keeping in mind the decisions cited above and the facts and circumstances of the case, it is to be noticed that the indigence of the dependants of the deceased employee is the first pre-condition to bring the case under the scheme of compassionate appointment. The very purpose and object of the scheme is to provide immediate succour to the family of an employee that, on his death, may suddenly find itself in a state of destitution. If the element of indigence and the need to provide immediate assistance for relief from financial deprivation is taken out from the scheme of compassionate appointments, it would turn out to be a reservation in favour of the dependants of an employee who died while in service which would be directly in conflict with the ideal of equality guaranteed under Articles 14 and 16 of the Constitution.
31. In the decision of the Apex Court reported in 2010 (11) SCC 661 (State Bank of India v. Raj Kumar), the Supreme Court elucidated the nature of the scheme of compassionate appointments observing as follows:
"It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant."
32. Again, the Supreme Court in Civil Appeal No.2206 of 2006, dated 5.4.2011, in Local Administration Department and another Vs. M.Selvanayagam @ Kumaravelu, reported in AIR 2011 SC 1880 = 2011 (4) SCALE 265, observed as follows:
"7. We think that the explanation given for the wife of the deceased not asking for employment is an after-thought and completely unacceptable. A person suffering from anaemia and low blood pressure will always greatly prefer the security and certainty of a regular job in the municipality which would be far more lucrative and far less taxing than doing menial work from house to house in an unorganised way. But, apart from this, there is a far more basic flaw in the view taken by the Division Bench in that it is completely divorced from the object and purpose of the scheme of compassionate appointments. It has been said a number of times earlier but it needs to be recalled here that under the scheme of compassionate appointment, in case of an employee dying in harness one of his eligible dependants is given a job with the sole objective to provide immediate succour to the family which may suddenly find itself in dire straits as a result of the death of the bread winner. An appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependants and the financial deprivation caused to the dependants as a result of his death, simply because the claimant happened to be one of the dependants of the deceased employee would be directly in conflict with Articles 14 & 16 of the Constitution and hence, quite bad and ill. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind.
8. Ideally, the appointment on compassionate basis should be made without any loss of time but having regard to the delays in the administrative process and several other relevant factors such as the number of already pending claims under the scheme and availability of vacancies etc., normally the appointment may come after several months or even after two to three years. It is not our intent, nor it is possible to lay down a rigid time limit within which appointment on compassionate grounds must be made but what needs to be emphasised is that such an appointment must have some bearing on the object of the scheme."
33. In yet another decision of the Supreme Court reported in 2007 (8) SCC 398 (Mukesh Kumar Vs. Union of India), the Apex Court observed as under:
"5. Learned counsel for the appellant submitted that both CAT and the High Court proceeded on a factually incorrect premise. CAT proceeded on the basis as if the father was rendered medically unfit because of paralytic attack in 1988 and was retired in 1988. Actually and indisputably, the father had retired in 1994. The application made by the appellant was rejected in 1999 and the appeal was dismissed by order dated 17-2-2000. Therefore, the question of 15 years' delay did not arise. The High Court proceeded on the basis as if the appellant's father had died in 1994 and the claim for compassionate appointment was raised for the first time after about ten years. In fact the father had not died and had retired and the application was not made after about ten years. In fact, immediately after passing the Senior Secondary Examination, the application was made for the post of clerk since the minimum qualification was passing of Senior Secondary Examination, which was held in the year 1997 and the result was declared in May 1998. The application was made immediately thereafter. In essence, it is submitted that the findings recorded by CAT and the High Court are unsustainable.
6. In response, the learned counsel for the respondent submitted that for compassionate appointment the consideration is the need to urgent financial needs. As the appellant was prosecuting studies after his father's retirement, it has to be presumed that the family was not in indigent condition. It is to be noted that the appellant's application was rejected on the ground that the family was not found to be in financially indigent condition.
7. There is no indication as to on the basis of which materials the conclusion was arrived at. It is also not clear as to what were the materials before the Circle Level Selection Committee to conclude that the family was not in financially indigent condition. To add to it, both CAT and the High Court proceeded on factually erroneous premises, as has been highlighted by the appellant and noted supra. Above being the position, the appeal deserves to be allowed, which we direct. The orders of the Central Administrative Tribunal and the High Court are set aside. The matter is remitted to the Central Administrative Tribunal, Chandigarh Bench for fresh hearing. Parties shall be permitted to place materials in support of their respective stand."
34. At this juncture, it is pertinent to quote the factors to be decided while dealing with the compassionate appointment scheme, as laid down by the Supreme Court in the decision reported in 2011 (4) SCC 209 (Bhawani Prasad Sonkar Vs. Union of India), in paragraphs 15 and 20, quoted hereunder:
"15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our Constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve."
"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 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."
35. In the decision of the Supreme Court reported in AIR 2000 SC 106 = MANU/SC/0708/1999 (State of Bihar Vs. Dr.Braj Kumar Mishra and others), the Apex Court held that normally, mandamus can be issued by a Writ Court, directing the authority to consider the case of the writ petitioner. In exceptional circumstances, however, a positive direction can be issued by granting relief in favour of the writ petitioner if the Court is otherwise satisfied.
36. For the sake of repetition, it is pertinent to notice the decision of the Madurai Bench of this Court reported in 2011 (4) MLJ 438 (A.Musthfa Iqbal Basha Vs. State of T.N) (cited supra), wherein, this Court, while exhaustively relying on various decisions of the Apex Court, as also this Court, laid down the ratio-decidendi as follows:
"Any delay in the submission of application for compassionate appointment on the reason of attainment of majority of applicant, does not give an implication that the family of the concerned deceased Government employee has gotten over their indigent circumstances and an order rejecting such claim for compassionate appointment on ground of such lapse of time is unsustainable."
37. In yet other decision of this Court (Madurai Bench) reported in 2007 (8) MLJ 665 (P.Rajamani (Tmt.) Vs. Chairman, Tamil Nadu Electricity Board), the Division Bench observed as follows:
"The appellant, on the death of her husband, applied to the Electricity Board for compassionate appointment for her elder son within five months of the death. The application was rejected on the ground that the son was overaged. Then she applied for such appointment for her younger son then a minor. Pending correspondence, he attained majority and he made an application for such appointment. This was rejected on the ground of his minority on the date of the first application and the application was not made within three years of the death. Hence the writ and on its dismissal, the appeal. The very purport of extending a helping hand to a destitute, on the death of employee of the Board, by way of compassionate appointment would get defeated if such claims are turned down on hyper technical grounds.
There was an application by the elder son within five months of the death. It was unfortunate that the said application came to be rejected on the ground of his overage. After such rejection the appellant had to wait for an application to be made on behalf of her younger son. An application was made during his minority well within time. On attaining majority the younger son made another application. All the above steps go to show that the appellant was diligently pursuing the claim for compassionate appointment. The board should be much more sympathetic and practical in considering the claim of the widow having no other source of livelihood. The writ had to be allowed with a direction to the board to entertain the application for compassionate appointment."
Ratio Decidendi:
"The very purport of extending a helping hand to a destitute on the death of employee of the Electricity Board by way of compassionate appointment would get defeated if such claims are turned down on hyper technical grounds."
38. When it is the consistent policy of the State to give compassionate appointment to any one of the heirs of the deceased Government servant who dies in harness, in this case, the first respondent/District Collector has outrightly rejected the claim of the petitioner for compassionate appointment on the ground that it was belated, though the said claim was not with any inordinate delay and that too it was neither wilful nor wanton, which had been duly explained by the petitioner to the satisfaction of the Court, by supporting material documents in the typed set of papers filed along with the Writ Petition. The whole delay was due to the fact that the petitioner approached the Civil Court for getting declared his status so also the Revenue authorities for necessary Certificates, as a matter of policy, to prove his claim for compassionate appointment. In such a position, it is the duty of the respondents to ensure that the petitioner's expectations are fulfilled "mutatis-mutandis" the Government policies and its Departments, in administering the affairs of the country, are expected to honour their statements of policy or intention. The policy statement cannot be disregarded unfairly. Unfairness and arbitrariness are akin to violation of the principles of natural justice. In this case, the Government policy of granting compassionate appointment had been duly not followed, in spite of various authoritative pronouncements, which are unambiguous that the same will apply to all present, past and future cases, supporting the claim of the petitioner for compassionate appointment.
39. One thing to be noticed in this case is that on a perusal of the impugned order, it is not known as to whether the petitioner had been duly heard in person before-ever passing the impugned order, in spite of the fact he substantiated his claim based on necessary Certificate(s) from the competent authority as also the Civil Court decree declaring his legal heir status.
40. In this case, in spite of relevant GOs/clarification letter of the State, the respondents failed to frame appropriate Rule in protecting the interest of the claimant for compassionate appointment, in unambiguous terms. Therefore, the conclusion arrived at by the first respondent in the impugned order for rejecting the claim of the petitioner for compassionate appointment, cannot be sustained, as it is legally infirmed.
41. For the foregoing reasons, the impugned order passed by the first respondent is set aside. The Writ Petition is allowed, with a direction to the respondents to consider the petitioner's claim for compassionate appointment, taking into consideration the Certificate issued by the Tahsildar, Tiruvannamalai, dated 29.11.2011 and pass appropriate orders within a period of eight weeks from the date of receipt of a copy of this order. No costs. The Miscellaneous Petition is closed.
cs/dixit To
1. The District Collector, Thiruvannamalai District, Thiruvannamalai.
2. The Commissioner, Thiruvannamalai Panchayat Union, Thiruvannamalai