Madras High Court
G.Uma Sankar vs The Superintending Engineer on 30 March, 2015
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30.03.2015 CORAM THE HON'BLE Ms. JUSTICE V.M.VELUMANI W.P.(MD)No.4581 of 2011 G.Uma Sankar .. Petitioner vs The Superintending Engineer, Virudhunagar Electricity Distribution Circle, Virudhunagar. ... Respondent Petition filed under Article 226 of the constitution of India to issue a writ of certiorarified mandamus, calling for the records pertaining to the impugned letter of the respondent dated 22.08.2007 vide letter No.00350/Ni.Pi.2/Oo.2/2007, quash the same and further directing the respondent to provide employment to the petitioner on compassionate ground. !For Petitioner ... Mr.A.Jayarama chandran ^For Respondent ... Mr.G.Kasinathadurai :ORDER
The petitioner has filed this writ petition calling for the records pertaining to the impugned letter of the respondent, dated 22.08.2007 vide letter No.00350/Ni.Pi.2/Oo.2/2007, quash the same and further directing the respondent to provide employment to the petitioner on compassionate ground.
2. The petitioner is the daughter of one Gurusamy, who was working as wireman in Tamil Nadu Electricity Board, Srivilliputtur Division. He was compulsorily retired on 22.11.1995 on medical grounds. He died on 21.7.2001 due to illness. Petitioner's mother also died unexpectedly on 25.10.2001. The petitioner's father was only earning member and entire family was depending upon his income. After his death, entire family was under acute poverty. The petitioner with great difficulty completed her Higher Secondary School Education.
3. On 25.2.2002, the petitioner made an application to the respondent for employment on compassionate ground. Her elder sisters gave 'No Objection Letter'. The respondents did not pass any orders. Again, petitioner sent representation on 20.4.2005. By proceedings dated 02.5.2005, the respondents rejected the request of the petitioner for appointment on compassionate ground on the grounds that petitioner applied for employment after 3 years of death of her father and that she was married.
4. The petitioner gave a representation to Chief Minister Cell. The same was forwarded to respondent, who by impugned letter dated 22.8.2007 rejected the request on the ground that petitioner was married and there is no provision in Board Rules to provide employment on compassionate ground to married daughter. The reason given by respondent is unreasonable and arbitrary.
5. The impugned letter is discriminatory as married male legal heirs are given employment on compassionate ground while female legal heirs are denied employment on compassionate ground. The respondent failed to see that the petitioner's husband has deserted her and eloped with another lady and the petitioner is struggling to maintain herself and her tender aged children out of her meagre income earning through house hold jobs. Petitioner has borrowed money to maintain the family after the death of her parents.
6. The respondent in the counter affidavit stated that petitioner's father was compulsorily retired from service on 22.11.1995 due to unfitness for service because of his illness and he died on 25.10.2001. There is no provision for the appointment on compassionate grounds to the legal heirs of pension holders or who got compulsorily retired from service.
7. The compassionate appointment is not made as a matter of course. Only the dependents of the deceased workers are given appointment on compassionate ground in crisis situation. The respondent in the counter affidavit relied on the following Judgments of the Hon'ble Apex Court:
(i) Bawani Prasad Sonkar Vs.Union of India and others reported in 2011 (4) SCC 209
(ii) Local Administration Department and another Vs. Selvanayagam @ Kumaravel reported in 2011 (5) MLJ 892 (SC).
8. I have considered the rival submissions put forth on either side and perused the materials on records.
9. The learned counsel for the petitioner contended that the respondent erred in rejecting the application for appointment on compassionate ground on the ground that the said application was made beyond three years of death of father of petitioner. This stand of respondent is contrary to the facts. The petitioner's father died on 21.7.2001. Petitioner made representation on 25.2.2002. Further, this Court held that seeking appointment on compassionate ground after three years of death of an employee cannot be put against legal heir of the deceased employee, who are in indigent condition. The learned counsel relied on the following Judgments:
(i) 2010 (7) MLJ 644 [M.Uma vs. Chief Engineer (Personnel), Tamil Nadu Electricity Board, Chennai - 600 002 and another], wherein in paragraph 10, it has been held as follows:-
"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 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."
(ii) W.A.(MD)No.682 of 10, dated 02.07.2013 [The Chief Engineer, Tamil Nadu Electricity Board, Chennai and another vs. N.Elavarasan], wherein in paragraphs 13 and 14, it has been held as follows:
"13. My learned Brother in his said decisions reviewed the case-laws on the point and held that within 3 years of death of her husband, when the widow applied for appointment on compassionate ground, and due to bar of age etc., when she could not be appointed and the request for appointment has been followed by her son/daughter, who have then not attained majority and subsequently, applied within three years of their attaining majority, the request could be considered as continuation of their mother's application and the application given by him/her during the minority also could be considered as continuation of such earlier application and it cannot be denied on the ground that the application has been presented beyond 3 years of death of the father.
14. It is not the case of the appellants that the family of the respondent is not in indigent status as on today. In the circumstances, we have no occasion to deviate from the view taken by the Writ Court."
10. The learned counsel nextly contended that rejection of petitioner's request on the ground that married daughters are not eligible for appointment on compassionate ground is discriminatory, as married sons are given appointment on compassionate grounds. This Court has on number of cases set aside the order of employer rejecting petition for compassionate appointment on the ground that married daughters are not eligible for compassionate appointment. The learned counsel for the petitioner relied on the Judgment of this Court, dated 10.7.2013, made in W.P.No.18660 of 2013 [Krishnaveni Vs. The Superintending Engineer, Kadamparai Electricity Generation Block, Minparai, Coimbatore District], wherein in paragraph 6, it has been held as follows:
"6. In similar circumstances, the matter was considered by me in W.P.(MD) No.5183 of 2013 (M.Sudha vs. the District Collector, Thanjavur District), and I set aside the similar impugned order and issued direction to the respondent therein to consider the case of the petitioner therein for compassionate appointment, if the petitioner therein was otherwise eligible for appointment. In fact, in the said judgment, I followed the earlier judgment of mine in W.P.(MD) No.8686 of 2011. The relevant paragraph 5 of the aforesaid judgment is extracted hereunder:
"5. As rightly contended by the learned counsel for the petitioner, the matter is squarely covered by a decision dated 2.7.2012 rendered by me in W.P.(MD) No.8686 of 2011. Paragraph 9 of the judgment is extracted hereunder: "9. As stated above, if marriage is not a bar in the case of son, the same yardstick shall be applied in the case of a daughter also. At this juncture, it is relevant to take note of the statute, namely the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which places equal duty on both the son and daughter to take carte of the parents at the old age. Therefore, in the case of death of the parents, there cannot be any unequal treatment among the children based on sex. Further, as rightly contended by the learned counsel for the petitioner, the judgment of this Court reported in 2008 5 CTC 685 (G.Girija vs. Assistant Director (Panchayats) Kancheepuram, Kancheepuram District) applies to the facts of this case. In the said case, the Government servant died on 26.2.1991. The daughter got married on 10.9.2006. She gave an application for compassionate appointment on 2.6.1997. This court quashed the order declining to give compassionate appointment holding that there cannot be any discrimination between sons and daughters in the case of giving compassionate appointment. The said judgment squarely applies to the facts of this case. Therefore, I have no hesitation to quash the impugned order. Accordingly, the impugned order is quashed and a direction is issued to the respondents to consider the claim of the petitioner for compassionate appointment without reference to the marriage of the petitioner and to pass appropriate orders in the light of this judgment within a period of eight weeks from the date of receipt of a copy of this order."""
11. The learned counsel for the petitioner nextly contended that the respondent failed to consider whether the petitioner is in indigent circumstances or not. The respondent failed to consider that the petitioner's husband eloped with another lady and the petitioner is unable to maintain herself and her three children from the meagre income she receives by doing household works.
12. The learned counsel nextly contended that the respondent failed to consider that the legal heirs of an employee compulsorily retired on medical grounds are entitled to employment on compassionate ground as per Board proceedings. The condition to be satisfied are that employee must have incapacitated on medical grounds before he completed 53 years and legal representatives satisfy the required other conditions for appointment on compassionate ground.
13. The learned counsel for the petitioner relied on the Judgment of the Hon'ble Apex Court reported in 2008 (13) SCC 730 [V.Sivamurthy Vs. State of Andhra Pradesh and others], wherein in paragraph 27, it has been held as follows:
"27*. When an employee dies in harness, his family is thrown into penury and sudden distress on account of stoppage of income. But where a person is permanently incapacitated due to serious illness or accident, and his services are consequently terminated, the family is thrown into greater financial hardship, because not only the income stops, but at the same time there is considerable additional expenditure by way of medical treatment as also the need for an attendant to constantly look after him. Therefore, the consequences in case of an employee being medically invalidated on account of a serious illness/accident, will be no less, in fact far more than the consequences of death-in-harness. Though generally death stands on a higher footing than sickness, it cannot be gainsaid that the misery and hardship can be more in cases of medical invalidation involving total blindness, paraplegia, serious incapacitating illness, etc."
14. Per contra, the learned counsel for the respondent stated that compassionate appointment cannot be claimed as a matter of right. The appointment on compassionate ground can be granted only when the family is in indigent circumstances and only when appointment is given, the family will survive. As per Board Rule, there is no provision for compassionate appointment for married daughters. Further, petitioner's father did not die while he was in service. He died after being retired on medical grounds and while receiving pension. The Board can appoint a person on compassionate ground only as per scheme.
15. The learned counsel for respondent relied on following Judgments:
(i) 2008 (4) CTC 446 [V.Sivamurthy and others vs. State of Andhra Pradesh and others], wherein in paragraph 9, it has been held as follows:
"9*.The principles relating to compassionate appointments may be summarised thus:
(a) Compassionate appointment based only on descent is impermissible.
Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are a well-recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies.
(b) Two well-recognised contingencies which are carved out as exceptions to the general rule are:
(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service.
(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner.
Another contingency, though less recognised, is where landholders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project-affected persons. (Particularly where the law under which the acquisition is made does not provide for market value and solatium, as compensation).
(c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies.
(d) Compassionate appointments are permissible only in the case of a dependant member of the family of the employee concerned, that is, spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, Classes III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts."
(ii) 2009 (4) MLJ 237 [M.Raju Vs. Union of India, Rep. by its Secretary to Govt., Ministry of Home Affairs, New Delhi and others], wherein in paragraphs 7 and 8, it has been held as follows:
"7. Recently, the Apex Court in State of J & K and Others v. Sajad Ahmed Mir, reported in 2006 (4) MLJ 605, has held that once it is established that in spite of the death of the bread-winner, the family had survived for a period of 15 years, there is no necessity to order appointment on compassionate ground. 8.Factually, in this case, the Family has survived for a period of 14 years after the demise of the father of the petitioner and therefore, we do not find any reason to interfere with the order of rejection. Accordingly, the writ petition is dismissed. No costs."
(iii) W.P.(MD)No.1846 of 2010, dated 13.09.2010 [A.Murugeswari Vs. The District Collector, Virudhunagar District, Virudhunagar and others], wherein in paragraph 12, it has been held as follows:
"12. It is, thus, clear that the Courts cannot direct appointments on compassionate grounds de hors the provisions of the Scheme in force governed by rules/regulations/instructions. If in a given case, the department of the Government concerned declines, as a matter of policy, not to deviate from the mandate of the provisions underlying the Scheme and refuses to relax the stipulation in respect of ceiling fixed therein, the Courts cannot compel the authorities to exercise its jurisdiction in a particular way and that too, by relaxing the essential conditions, when no grievance of violation of substantial rights of parties could be held to have been provided otherwise. 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. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments. None of these considerations can operate when the application is made after the death of the employee. The reason for making compassionate appointment, which is exceptional, is to provide immediate financial assistance to the family of a Government servant who dies in harness when there is no other earning member in the family."
(iv) W.P.No.2625 of 2007, dated 13.03.2013 [S.Karthikeyan Vs. The Tamil Nadu Electricity Board, Rep. by its Chairman, Chennai and others], wherein in paragraph 13, it has been held as follows:
"13. In this regard, the attempt made by the learned counsel for the petitioner to contend that application seeking compassionate appointment was made as early as on 21.03.2001 cannot be accepted for the reasons indicated supra. At the cost of repetition, it is pointed out that in the representation dated 21.03.2001 made to the Hon'ble Chief Minister, the petitioner had not sought for appointment on compassionate grounds as per the scheme applicable to the TNEB. The said representation itself reveals the knowledge of the petitioner that in accordance with the then prevailing scheme the dependents of Sarangapani were not entitled to seek appointment on compassionate grounds. It should also be noticed that the age relaxation relaxing the age from 50 to 53 years came to be made on 09.10.2001 with retrospective effect from 19.10.2000 as per B.P.(FB) No.25. Before passing of the said proceedings, the representation to the Hon'ble Chief Minister came to be made. Therefore, the said representation can, at no stretch of imagination, be construed to be an application made in accordance with the Board proceedings and the scheme applicable to the TNEB. That is the reason why the petitioner chose to submit a proper application on 31.01.2005 seeking compassionate appointment. The said application came to be made not only after three years from the date of retirement of his father on medical invalidation, but also beyond three years from the date from which the amendment was brought into effect and also beyond three years from the date of Board proceedings B.P.(F.B.) No.25 bringing about an amendment in the age criterion."
16. I have carefully considered the rival submissions and also the Judgments relied on by either side.
17. The respondent has rejected the application of petitioner for appointment on compassionate ground on the ground that the said application was made after three years of death of her father and as married daughter, she is not entitled to compassionate appointment. Both the reasons are untenable. This Court in Judgment reported in 2010 (7) MLJ 644 [cited supra] and Judgments, dated 02.7.2013, made in W.A.(MD)No.682 of 2010 held that the application made beyond 3 years must also be considered on merits to decide whether the applicant was still in indigent condition.
18. The counsel for the respondent relied on earlier Judgment of this Court reported in 2009 (4) MLJ 237 (cited supra) and contended that application made after 3 years is not maintainable. It is well settled that, later Judgment has to be followed rather than earlier. In view of this well settled proposition, I am inclined to follow the Judgment dated 02.07.2013, made in W.A(MD)No.682 of 2010 and hold that application of petitioner has to be considered on merits. Further, the petitioner has made application within 3 years of the death of her father.
19. Now, it is well settled that married daughter is entitled to be considered for compassionate appointment on par with married son. Denial of compassionate appointment on the ground of gender is indiscriminatory and rejection of application on this ground is illegal.
20. The respondent held that the petitioner's father did not die while in service and therefore, the petitioner is not entitled to appointment on compassionate ground. The respondent failed to consider whether entitlement to compassionate appointment as legal heir of employee, who was compulsorily retired on medical grounds are entitled to appointment on compassionate ground. The respondent failed to consider whether the petitioner is entitled to compassionate appointment as legal heir of employee, who was compulsorily retired on medical grounds as per the Board proceedings B.P.Ms.(CH)No.411, Administrative Branch, dated 22.7.1983, the procedure to be followed has been formulated. For these reasons, I am inclined to accept the contentions of the learned counsel for the petitioner. The Judgments relied on by the learned counsel for the petitioner is squarely applicable to the facts of the case.
21. In the result, writ petition is allowed. The respondent is directed to consider the application of the petitioner for appointment on compassionate ground as a legal heir of employee compulsorily retired on medical grounds and issue appointment order, if petitioner is eligible for such appointment and continues to be indigent person. The respondent is directed to pass orders within eight weeks from the date of receipt of the copy of this order. No costs.
To The Superintending Engineer, Virudhunagar Electricity Distribution Circle, Virudhunagar.