Madras High Court
)The Inspector General Of Prisions vs P.Marimuthu on 22 April, 2016
Bench: S.Manikumar, G.Chockalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.04.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM
Writ Appeal(MD)No.329 of 2015
M.P(MD)No.2 of 2015
1)The Inspector General of Prisions,
Tiruchirapalli District,
Tiruchirapalli-1.
2)The Chief Director,
Prison Department,
Office of the Chief Director of
Prison Department,
Egmore, Chennai 600 008. ... Appellants
Vs.
P.Marimuthu ... Respondent
Appeal filed under Clause 15 of Letters Patent, against the order dated
22.04.2014 in W.P(MD)No.6538 of 2009.
!For Appellants : Mr.M.Alagudevan,
Special Government Pleader
^For Respondent : Mr.S.K.Mani
:JUDGMENT
(Judgment of the Court was made by S.MANIKUMAR, J.) Writ appeal is directed against the order made in W.P.(MD)No.6538 of 2009, by which, the Writ Court has quashed the order, dated 01.12.2008, passed by the Inspector General of Prisons, Tiruchirappalli, 1st appellant herein, rejecting the claim for compassionate appointment, on the grounds that the writ petitioner had not attained majority, within a period of three years, from the date of death of the deceased employee.
2. Facts deduced from the supporting affidavit filed to the writ petition and the materials on record are, that the mother of the petitioner was working as a sweeper in Central Prison, Tiruchirappalli. On 30.03.1998, she died in harness. At that time, the writ petitioner was a minor, aged about 16 years. Hence, his grandmother has made an application, dated 30.09.2000, to the 1st appellant herein, seeking for employment assistance on compassionate grounds. Vide communication, dated 22.07.2007, grandmother of the petitioner was instructed to obtain documents, such as, legal heir certificate, fitness certificate and conduct certificate. Thereafter, vide order, dated 01.12.2008, the request of the petitioner's grandmother, was rejected.
3. Before the Writ Court, while assailing the order of rejection, reliance has been placed on the following decisions of this Court in Superintending Engineer, Madurai Electricity Distribution Circle v. V.Jaya reported in 2007 (6) MLJ 1011, J.Jeba Mary v. The Chairman, Tamil Nadu Electricity Board reported in 2011 (3) LLN 405 (Mad.) and P.Sathiaraman v. The Secretary to the Government reported in 2013 (8) MLJ 190. Following the above decisions, the rejection order has been set aside and consequently, directions have been issued to the petitioner to submit relevant documents, before the Inspector General of Prisions, Tiruchirapalli District, Tiruchirapalli, the 1st appellant herein, and on such submission, the Writ Court has further directed the appellants herein to consider the claim of the petitioner, for appointment on compassionate grounds.
4. Assailing the correctness of the impugned judgment, Mr.M.Alagudevan, learned Special Government Pleader, appearing for the appellants submitted that at the time of the death of petitioner's mother, the petitioner was a minor, aged 12 years. He further submitted that there is no provision to reserve any post as vacant, till the writ petitioner attains the age of majority. Placing reliance on the observations of the Hon'ble Supreme Court in Union of India v. M.K.Sarkar reported in 2010 (2) SCC 59, he submitted that if someone has been wrongly extended a benefit, that cannot be cited as a precedent for claiming similar benefit by others. Learned Special Government Pleader also contended that on the date of submission of application, seeking employment assistance on compassionate grounds, the applicant should be eligible to be considered and that there is no obligation to consider his application on attaining majority. For the abovesaid reasons, he prayed for reversal of the impugned order.
5. Defending the impugned directions of the writ Court, reiterating the decisions considered and placing reliance on few other decisions in Mukesh Kumar v. Union of India [2007 (8) SCC 398], V.Sampath v. District Collector [CDJ 2012 MHC 14], D.Sankar v. Chief Director, Construction and Maintenance [CDJ 2015 MHC 1828] & A.Karthik v. The Government of Tamil Nadu [CDJ 2015 MHC 3405] and the guidelines issued by the Government in G.O.Ms.No.120, Labour and Employment, dated 26.06.1995, by which, modifications have been issued for implementing the scheme for compassionate appointment, Mr.S.K.Mani, learned counsel for the writ petitioner submitted that the scheme of compassionate appointment is to tide over the financial constraint of the bereaved family of a Government servant and it should be extended, even after several years, from the date of death of the Government servant, when there is no improvement in the economic status of the family. He further submitted that consideration of applications, on attaining majority, would sub serve the intention of the Government, to provide employment assistance on compassionate grounds, and on the facts and circumstances of the case, directions issued by the Writ Court have to be sustained.
6. Placing reliance on a decision of the Apex Court in Vijaya Ukarda Athor (Athawale) v. State of Maharashtra reported in 2015 (3) SCC 399, learned counsel for the writ petitioner further submitted that, considering the object behind the scheme, the date on which, the application was submitted for employment assistance, on compassionate grounds, and the mere fact that the petitioner was a minor at the time of submitting the application, need not be put against him. He prayed that suitable directions be issued to the Government/appointing authority, as done in the above referred judgment.
7. In the case on hand, the government servant died on 30.03.1998. Writ petitioner was born on 08.06.1988. At that time, he was aged nearly 10 years. Application was made by grandmother on 30.09.2000, which is well within the prescribed period of three years. Necessary certificates are also stated to have been produced. As per the date of birth of the petitioner, he attained majority i.e., completed 18 years, on 08.06.2006.
8. Now, let us refer to the facts considered in the decisions, relied on, by the writ Court. In Superintending Engineer, Madurai Electricity Distribution Circle v. V.Jaya reported in 2007 (6) MLJ 1011, husband of the petitioner therein died on 05.10.1999, while he was discharging his duties as a helper. Wife applied for compassionate appointment on 15.11.2000 and that the same was rejected on the ground that she did not possess the minimum educational qualification, viz., a pass in 8th Standard. Again, she applied and the same was rejected on 07.03.2002, on the very same ground. She passed standard 8th in December, 2004 and again, applied for compassionate appointment. Vide proceedings, dated 03.06.2005, her request was rejected on the ground that she did not file her application, within three years, from the date of death of her husband. On the above facts, following a decision made in S.L.P.No.6387 of 2005, dated 04.04.2005, confirming the judgment made in W.A.No.4008 of 2004, the writ Court has issued direction for compassionate appointment. Though Electricity Board has placed reliance on a decision of the Hon'ble Division Bench of this Court in K.Ramasamy v. TNEB, reported in 2006 (4) MLJ 1080, wherein, a Mandamus sought for, to keep one post vacant, for the dependent of the deceased employee, was rejected, the Hon'ble Division Bench in V.Jaya's case, following a decision in Punjab National Bank v. Ashwini Kumar Taneja reported in AIR 2004 SC 4155 = 2004 (7) SCC 265 and by observing that the writ petitioner therein had submitted her application, as early as on 15.11.2000, within 3 years from the date of death of her husband, sustained the order made in the writ petition.
9. In J.Jeba Mary v. The Chairman, Tamil Nadu Electricity Board reported in 2011 (3) LLN 405 (Mad.), a learned single Judge has considered a case, wherein the petitioner's father, Helper, died on 02.08.1991. Wife/petitioner's mother submitted an application on 31.07.1992. The application was kept pending for consideration. When the petitioner submitted another application on 08.04.2005, it was rejected on the ground that it was not submitted within three years, from the date of death of the petitioner's father. On the above facts, taking into consideration, the judgment of the Hon'ble Supreme Court in Indirani Ammal's case, and by observing that petitioner's mother had already applied for compassionate appointment, well within the time, this Court has issued directions to the respondents therein, to consider the case for compassionate appointment. The Court has further held that the subsequent application submitted on attaining majority, is only a continuation of the earlier application, though the applicant was minor, at the time of death of the employee/government servant.
10. In P.Sathiaraman v. The Secretary to the Government reported in 2013 (8) MLJ 190, father of the appellant, working in Electricity Department, as Reading Inspector, died. Widow requested for employment assistance on compassionate grounds. Request was rejected on the ground that she did not possess the minimum educational qualification of 8th standard. On attaining the age of majority, the appellant applied for compassionate appointment. Application was rejected on the ground that it was beyond the period of three years, from the date of death of the deceased employee. A learned single Judge dismissed the writ petition. A Hon'ble Division Bench held that, as the mother therein had already applied for appointment on compassionate grounds, within three years from the date of death of the employee, application given by the appellant, for appointment on compassionate grounds, after majority, has to be considered as continuation of his mother's earlier application and that the electricity board cannot deny the request, on the ground that application was presented beyond the period of three years from the date of death of the employee
11. In Mukesh Kumar v. Union of India reported in 2007 (8) SCC 398, challenge before the Hon'ble Supreme Court was to the order passed by a Hon'ble Division Bench of the Punjab and Haryana High Court, dismissing a writ petition filed by the appellant therein, who challenged the correctness of the order passed by the Central Administrative Tribunal, Chandigarh Bench.
12. Short facts leading to the above decision are that the appellant's father retired on medical grounds and was receiving invalid pension. At that time, the appellant was a minor and studying in a school. His 12th Standard Examination results were published on 19.05.1998. He filed an application for the post of clerk, on compassionate grounds. His date of birth was 12th June, 1980. He made an application on 20th July, 1998, which was rejected by the Post Master General, Punjab Region, Chandigarh, by order dated 18.10.1999 on the ground that "family was not found to be financially in indigent condition". Appeal filed before the Director General of Post Offices, New Delhi, was rejected on 17.02.2000, on the ground that the father of the appellant was getting a sum of Rs.1783/- per month, as pension. The appellant moved the Central Administrative Tribunal by filing a Original Application, which was rejected, on the ground that there was inordinate delay of 15 years in filing the application. Appellant's father died in 1994. When the order of the Tribunal was challenged, the High Court proceeded on the basis that the appellant's father died in 1994 and that the claim for compassionate appointment was raised for the first time after ten years. The Hon'ble Supreme Court considered that immediately after passing of the Senior Secondary Examination, the application was made for the post of clerk, since the minimum qualification for the post, was a pass in Senior Secondary Examination. While holding that the application was made immediately after passing the Secondary Grade Examination and the findings recorded by the CAT and High Court as unsustainable, the Hon'ble Supreme Court, on the abovesaid facts, at paragraph 7 ordered as follows:-
''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.''
13. On the facts and circumstances of the above reported case, it could be deduced that though the appellant's father retired in 1988, due to medical unfitness of paralytic attack, he died only in the year 1994 and the application for employment assistance was made in 1998. Orders impugned therein have been set aside, mainly on the ground that the Central Administrative Tribunal erred in sustaining the order passed by the authorities, in holding that the appellant's family was not in a financially indigent condition. The Hon'ble Apex Court held that there was no indication as to the basis on which the said conclusion was arrived at. Thus, on that ground alone, the Apex Court remitted the matter to the Central Administrative Tribunal for fresh hearing and also permitted the parteis to place materials, in support of their stand.
14. With due respect, the judgment in Mukesh Kumar's case cannot be made applicable to the facts of this case, where the question called upon to be decided by this Court is whether a minor can make an application for employment assistance, on compassionate grounds, within the stipulated period of three years from the date of death of the breadwinner and whether the appointing authorities are bound to consider the said application to provide employment assistance, on the minor attaining majority.
15. In Bhawani Prasad Sonkar v. Union of India reported in 2011 (4) SCC 209, the appellant's father, a Guard Mail/Express, North Eastern Railway was declared as medically unfit, vide certificate dated 6th March, 1998 by the Medical Board. Again, he appeared before the Medical Board and was declared medically unfit, as de-categorized employee. However, he was found fit in category B1 and below. He appeared before the Standing Committee, which permitted him to retire, without offering him any alternate employment. Accordingly, on 30.09.1999, orders were passed. At that time, compassionate appointment in Railways was governed by the Railway Board Circular, dated 22.09.1995, when a railway board employee was medically de-categorized. The Board has also issued Circular on 29.04.1999, stating inter alia that in the light of the mandate of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, employees who became incapacitated from holding the post, they were currently holding, but found eligible for retention in service in posts corresponding to lower medical category, shall be offered alternative employment in the posts for which they are found suitable. The appellant's father moved an application dated 01.09.1999, before respondent No.2 therein, requesting that his son be given compassionate appointment, as a Class IV employee. As there was no response, he moved another application dated 30th December, 1999, before respondent No.3 therein. Thereafter, the Railway Board issued a letter dated 18.01.2000, stating that when an employee was declared as medically unfit to perform the work, which he was performing, and found to be fit to perform work in a lower category, any request for giving compassionate employment to such employee's ward would not be considered, if the employee opts for voluntary retirement after being de-categorized. Thereafter, on 29th November, 2001, the General Manager (Personnel), Gorakhpur, issued a letter stating that in case of employees who opted for voluntary retirement after 29th April, 1999, cases of wards of only totally incapacitated employees, would be considered for appointment on compassionate grounds. Pursuant thereto, respondent No.3 therein issued a letter dated 15th February, 2002 to the appellant's father stating that the application for appointment of his son on compassionate grounds cannot be considered by the competent authority. In these circumstances, the appellant preferred Original Application before the Central Administrative Tribunal, Lucknow, which dismissed the application as hereunder:-
"I have considered the facts of the case and submissions made on behalf of the parties, and I am of the view that the O.A. deserves to be dismissed on the basis of the circular letter dated 29.11.2001 which had the effect of superseding the earlier instructions on the subject. Since, the applicant's father was not totally incapacitated and retired on 30.8.99, the claim of the applicant for compassionate appointment has to be considered in the light of the instructions of the Railway Board letter dated 29.11.2001 according to which he is not eligible for compassionate appointment."
16. Thereafter, the appellant preferred a writ petition before the High Court which dismissed the same. Appellant preferred a review application before the Tribunal, for reviewing the earlier order dated 31st December, 2002. The said application was dismissed by the Tribunal, on the ground that it was barred by limitation. In the abovesaid circumstances, the appellant moved the Hon'ble Supreme Court. After considering the decisions in Umesh Kumar Nagpal Vs. State of Haryana and others reported in 1994 (4) SCC 138, SAIL vs. Madhusudan Das, reported in 2008 (15) SCC 560, and V.Sivamurthy vs. State of A.P reported in 2008 (13) SCC 730, the Hon'ble Supreme Court, at paragraph 20 laid down the factors to be borne in mind in the matter of compassionate appointment. On the merits of the case, with reference to the applicability of the circular dated 29.11.2001 and of the facts that the Standing Committee had recommended the appellant's father retirement, without providing any alternative employment, held that the circular dated 29.11.2001 was not applicable to the case of the appellant and that the earlier circular dated 29.04.1999 alone was applicable. Consequently, it was held that the appellant therein was entitled to employment assistance on compassionate grounds, as the said circular contemplates compassionate appointment for the wards of those employees who have been medically decategorised and retired, without being offered an alternative suitable job. Thus on the above facts, the Hon'ble Supreme Court allowed the appeal preferred by the appellant setting at naught the order passed by the Tribunal and the High Court. Facts of the reported case are not apposite to the case on hand.
17. In K.Nalini v. The Registrar, Central Administrative Tribunal reported in CDJ 2015 MHC 82, an employee died on 26th October 2005, while in service, leaving behind his wife, son and daughter. Wife submitted an application for compassionate appointment to her son. The said application was rejected on the ground that her son secured only 43 marks and as such, it is not possible to give her son, employment assistance on compassionate grounds. The said order was challenged before the Central Administrative Tribunal, which found that the petitioner's son had secured 43 marks only and as such, her son was rightly denied compassionate appointment. The said order was challenged in a Writ Petition. The respondents therein had taken cognizance of the benefits received by the petitioner and her monthly pension for calculating the weightage marks. However, there was no attempt to take note of the positive and negative factors, while awarding marks. On the above aspect, orders passed by the 2nd respondent therein and the Tribunal, were set aside. With due respect, decision in K.Nalini v. The Registrar, Central Administrative Tribunal reported in CDJ 2015 MHC 82, cannot be said to be a precedent on the question raised in this appeal.
18. In D.Sankar v. Chief Director, Construction and Maintenance reported in CDJ 2015 MHC 1828, an employee died in harness on 28.9.1989. As per the date of birth, had he been alive, the date of attaining superannuation was 31.3.1991. The appellant, at the time of death of his father, was aged about 17+ years. He made an application for compassionate appointment on 2.4.1997 and his representation was forwarded to the competent authority on 27.07.1998. Thereafter, there was no response. On 17.10.2012, the appellant received a communication, rejecting the application for compassionate appointment. When the same was challenged, the writ Court, relying on a decision of the Apex Court in Bhawani Prasad Sonkar v. Union of India reported in 2011 (4) SCC 209, came to the conclusion that the application of the petitioner was barred by limitation, having been filed after a period of nine years from the date of death of the deceased employee. After considering the decisions in Umesh Kumar Nagpal Vs. State of Haryana and others reported in 1994 (4) SCC 138 and MGB Gramin Bank v. Chakrawarti Singh reported in 2014 (13) SCC 583, a Hon'ble Division Bench, in D.Sankar's case dismissed the writ appeal. At this juncture, this court deems it fit to consider the decisions referred to by the Hon'ble Division Bench.
19. Decision in Umesh Kumar Nagpal Vs. State of Haryana and others reported in 1994 (4) SCC 138, is reproduced hereunder:-
''2.....The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. 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.....'' It was further held as under :
''6.For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.''
20. In MGB Gramin Bank v. Chakrawarti Singh, at paragraph 6 the Apex Court held as follows:-
''6.Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its breadearner. Mere death of a Government employee in harness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing 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. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.''
21. Perusal of the order made in D.Sankar's case shows that the respondents therein have not placed any judgments of the Hon'ble Apex Court. No doubt, a learned single Judge has expressed his view that it cannot be treated as a belated application, if not submitted within three years from the date of death.
22. In Vijaya Ukarda Athor (Athawale) v. State of Maharashtra reported in 2015 (3) SCC 399, daughter of the deceased employee through first wife, a minor, at the time of death of the deceased employee, submitted an application seeking compassionate appointment on 29.12.1997. Her father died on 18.06.1997. Again, on attaining majority, she submitted a fresh application on 19.03.1998. She got married in 2009. Her application for compassionate appointment was considered in 2012 and rejected, stating that since in terms of Government Resolution No.Comp.1093/2335/M. No.90/93/Eight dated 26.10.1994 only unmarried daughter of the deceased employee was eligible for appointment. However, as per the subsequent policy decision dated 26.02.2013, married daughters were also extended the benefit of compassionate appointment, subject to certain conditions. The High court dismissed the appeal. Review application also failed on the ground that since on the date of consideration of the application, she was married. When the correctness of the abovesaid order was tested, holding that the High Court failed to consider the issues like, (I) effect of the Government Resolution dated 26.10.1994; (ii) plea that appellant had submitted application before getting married, and not considered for about 15 years;
(iii) whether respondent No.3, illegitimate son of deceased through second wife, was eligible for appointment; (iv) effect of subsequent policy decision dated 26.02.2013, remitted the matter to the High Court, for considering the above questions, on the facts and circumstances of the case. With due respect, decision in Vijaya Ukarda Athor (Athawale) v. State of Maharashtra, cannot be said to be a precedent to be applied, to the facts on hand.
23. In V.Sampath v. District Collector reported in CDJ 2012 MHC 14, decided by a learned single Judge of this Court, reference has been made to Paragraphs 5 and 6 of a decision of the Hon'ble Apex Court in Syed Khadim Hussain v. State of Bihar reported in 2006 (9) SCC 195, as follows:
?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."
24. In Shreejith L. vs. Deputy Director (Education) Kerala and others, reported in 2012 (7) SCC 248, the breadwinner, father died on 14.10.2000. The 5th respondent before the Hon'ble Supreme Court was a minor, aged 16 years, at that time. He attained majority on 21.04.2002. His mother applied for compassionate appointment under the then existing compassionate appointment scheme, to the Deputy Director(Education), who informed her that respondent No.5 could apply to the Management for appointment as and when he attains majority. Respondent No.5 applied for appointment as Sanskrit teacher on 07.02.2005. The post of a Lower Grade Sanskrit Teacher fell vacant in the school on 1st June, 2005, but the respondent No.5 therein, was informed that his claim would be considered in the next arising vacancy of a non-teaching staff in the school. Representation made to the District Educational Officer resulted in a direction to the Manager of the school, to consider the claim of respondent No.5 therein, yet an appointment order was issued by the Manager, in favour of the appellant before the Hon'ble Supreme Court, in preference to the claim made by the former. Being aggrieved, respondent No.5 therein, filed a writ petition in the High Court of Kerala at Ernakulam. During the pendency of the said petition, a vacancy in the post of Peon arose in the school, which was offered to him by the Manager. High Court disposed of the writ petition, permitting respondent No.5, to accept the offer made by the Manager and to file a separate petition for redressal of his grievance if any. Thus, after the appointment, the 5th respondent joined the said post without prejudice to his claim, against the post of Junior Sanskrit Teacher in the school.
25. As liberty was reserved, respondent No.5 therein, by another writ petition prayed for a writ of certiorari, to quash the order issued to the appellant, appointing him in the post of Junior Sanskrit Teacher and consequently, sought for a mandamus directing the Manager of the school to appoint the 5th respondent, in the place of the appellant as a full time Junior Sanskrit Teacher. A learned single Judge allowed the writ petition, quashing the appointment of the appellant herein, and directed the Manager to appoint respondent No.5, in his place, effective from 1st August, 2006. The Appellant's appeal was dismissed. Testing the correctness of the same, appellant moved the Hon'ble Supreme Court.
26. Before the Hon'ble Apex Court, the appellant therein, contended that appointment on compassionate basis is made only to give succour to the family in financial distress on account of the untimely death of an earning member and therefore such appointment cannot be directed to be made where the family concerned has managed to survive for several years before the appointment is made, by someone, who was eligible. On the facts of the case, contention has also been made that appointment of respondent No.5 made, nearly five years after the demise of his father was liable to be rejected. It was also submitted that as the appointment of the appellant as Junior Sanskrit Teacher was regularly made and also approved by the department of education, the same ought not to have been set at naught. Defending the orders of the High Court, respondent No.5 has submitted that the application was filed within the period of limitation under the prescribed rules and therefore, it cannot be rejected on the ground of delay. Contention has also been made that during the intervening period from the date of death of the breadwinner and the impugned appointment order, there was no material change in the economic status of the family, which continued to suffer in penury.
27. In the reported judgment, the Hon'ble Apex Court has extracted paragraph 19 of the Government Order dated 24.05.1999 which inter alia stipulates the period of limitation for preferring applications. The said paragraph is as under:-
?19. The time limit for preferring applications under the scheme will be 2 years from the date of death of govt. Servants. In the case of minor, the period will be within 3 years after attaining majority.?
28. On the facts and circumstances of the case, the Hon'ble Supreme Court found that the application filed by the respondent No.5 for appointment to the post of Junior Sanskrit Teacher, was within three years from the date of his attaining majority, as per Government Order. He also satisfied the requirements for the abovesaid post.
29. Though based on the decisions, Mr.S.K.Mani, learned counsel for the writ petitioner contended that continuation of penury should be considered as the paramount factor, while taking a decision on the application submitted for employment assistance on compassionate grounds and emphasized the same, on the strength of the decision in Shreejith's case, irrespective of the length of period, between the date of death of the employee, and the date on which an application is submitted and further contended that the application submitted on behalf of the minor, or by him, on attaining majority, should be considered, only with reference to indigent circumstances, the same cannot be countenanced, for the reason that in the unreported judgment, the Hon'ble Supreme Court has considered only the eligibility of the petitioner, to seek for compassionate appointment with reference to paragraph 19 of the Government Order dated 24.05.1999 and that the said G.O also stipulates the conditions of eligibility including family income. The reported case cannot be said to be apposite to the facts of the present case on hand, for the reason that as per the Government Orders in force, applicable to the case on hand, employment assistance on compassionate grounds, is given to tide over the financial constraint of the family and that it is extended to all the eligible members of the family.
30. In Rajasthan State Road Transport Corporation vs. Revat Singh, reported in 2015 Supreme (SC) 137, father of the respondent, a driver in Rajasthan State Road Transport Corporation died on 26.6.2006. Respondent sought for compassionate appointment to the post of driver. The educational qualification was a pass in 8th standard. Request was rejected on the ground that respondent was not qualified either for the post of driver or that of conductor. It was communicated on 18.1.2008. The respondent obtained driving licence on 23.1.2007. However, said licence was not for heavy vehicle. The appellant State Transport Corporation did not accept the request for appointment against the post of driver. Hence, he was constrained to file a writ petition, which was allowed by a learned Single Judge. Transport corporation filed intra court appeal. The Hon'ble Division Bench confirmed the same, by observing that the order impugned advanced the cause of justice considering the hardship faced by the family of deceased employee. However, the Hon'ble Division Bench has also observed that the order should be treated as one under special facts and circumstances of the case. Reported case does not deal with the question raised in the present appeal before us.
31. Though Mr.S.K.Mani, learned counsel for the respondent emphasised that fair play, good conscience and equity are the elements to be considered while adverting to the correctness of the order assailed before us and further submitted that when the respondent has satisfied the qualifications eligible for the post sought for, the order impugned need not be interfered with, this Court is not inclined to accept the said submission, for the reason that the scheme of employment assistance on compassionate grounds is extended only to those persons who are eligible to submit their applications within three years from the date of death.
32. It is well settled, in a catena of decisions extracted supra, that the scheme of compassionate appointment is to tide over the financial constraint of the family and that the person seeking for employment assistance should make an application to the competent authorities within three years from the date of death of the employee, subject to satisfying the eligibility criteria, for the post to which he seeks for. Reference can also be made to the decision in Steel Authority of India Limited v. Madhusudan Das, (2008) 15 SCC 560, wherein, the Hon'ble Supreme Court has clarified the law relating to compassionate appointments and held that it is only a concession and not a right:
"15. This Court in a large number of decisions has held that the appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for in the rules. The criteria laid down therefor viz. that the death of the sole bread earner of the family, must be established. It is meant to provide for a minimum relief. When such contentions are raised, the constitutional philosophy of equality behind making such a scheme be taken into consideration. Articles 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts which have fallen vacant. Appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said rule. It is a concession, not a right. (See SBI v. Anju Jain, (2008) 8 SCC 475 para 33.)"
33. In State of Gujarat v. Arvindkumar T. Tiwari, reported in (2012) 9 SCC 545, the Hon'ble Supreme Court while examining the scheme, in the matters of compassionate appointment, has made the following observations:
"11. The courts and tribunals do not have the power to issue direction to make appointment by way of granting relaxation of eligibility or in contravention thereof. In State of M.P. v. Dharam Bir (1998) 6 SCC 165, this Court while dealing with a similar issue rejected the plea of humanitarian grounds and held as under: (SCC p. 175, para 31) "31. ... The courts as also the tribunals have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing the essential educational qualifications, should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the statutory provisions made by the Government under Article 309 of the Constitution.
12. Fixing eligibility for a particular post or even for admission to a course falls within the exclusive domain of the legislature/executive and cannot be the subject-matter of judicial review, unless found to be arbitrary, unreasonable or has been fixed without keeping in mind the nature of service, for which appointments are to be made, or has no rational nexus with the object(s) sought to be achieved by the statute. Such eligibility can be changed even for the purpose of promotion, unilaterally and the person seeking such promotion cannot raise the grievance that he should be governed only by the rules existing, when he joined service. In the matter of appointments, the authority concerned has unfettered powers so far as the procedural aspects are concerned, but it must meet the requirement of eligibility, etc. The court should therefore, refrain from interfering, unless the appointments so made, or the rejection of a candidature is found to have been done at the cost of "fair play", "good conscience" and "equity".
(Vide State of J&K v. Shiv Ram Sharma (1999)3 SCC 653 and Praveen Singh v. State of Punjab (2000) 8 SCC 633.)"
34. In A.Karthick v. The Government of Tamil Nadu reported in CDJ 2015 MHC 3405, the petitioner's father, working as Irrigation Engineer, died on 04.09.2002, while he was in service. At the time of death of his father, the petitioner was a minor and aged about 12 years. There was a ban between November 2001 to February 2006. He attained majority and made an application for compassionate appointment on 27.07.2009. Thereafter, his mother made a representation on 17.09.2009. The said application was rejected on the ground that it was submitted after seven years, from the date of death of the Government servant. Observing that the application filed by the petitioner therein, on attaining majority, cannot be treated as a belated application, as the petitioner therein, was a minor, at the time of death of petitioner's father, the court has remitted the matter back to the concerned authority to consider the claim of the petitioner therein, seeking employment assistance on compassionate grounds. With due respect, the question as to whether a minor can make an application for employment assistance has not been specifically framed and answered.
35. With due respect, decisions made in V.Jaya's case and J.Jeba Mary's case, cannot be considered to be precedents, on the specific issue, as to whether, a minor is eligible to seek for employment assistance on compassionate grounds, on attaining majority, after a long number of years, after the death of the Government servant, de hors the condition that it has to be submitted within three years from the date of death of the Government servant, and when the scheme of employment assistance on compassionate grounds, is to tide over the financial constraint of the deceased family. The issue to be considered is when the scheme provides for a limitation or a specific period within which, an application for employment assistance has to be made, and how the said period of three years from the date of death of the Government Servant has to be computed, whether a person, who is otherwise not eligible to apply within the said period, on account of age or not satisfying the required qualifications for any post in the service, in which the employee died, can make an application, on attaining majority and whether such application has to be considered irrespective of the period of limitation? On this aspect, this Court deems fit to consider few decisions of the Hon'ble Apex Court.
(ii) In Union of India (UOI) and Others Vs. Bhagwan Singh, reported in 1995(6) SCC 476, a Senior Clerk in Railways died on September 12, 1972, leaving behind his wife, two major sons and the respondent (before the Hon'ble Supreme Court), who was a minor, aged about 12 years. He passed Higher Secondary Examination in 1983. Stating that he had attained majority only in 1980/1981, he sought appointment on compassionate grounds. The same was rejected. The authorities took the view that the application was beyond the period of limitation (five years) and that the case of the respondent was not covered by the relevant rules, at the time of the demise of Ram Singh.
Besides, there were two other major sons of the deceased, who did not seek for employment and that the family was not in financial distress. The Central Administrative Tribunal, held that the order of rejection as unjustified and directed Union of India to reconsider the case of the respondent therein, if he was otherwise qualified. Testing the correctness of the order of the Central Administrative Tribunal and taking note of the object behind the grant of special concession of employment assistance on compassionate grounds to provide immediate financial assistance to the family of a Government Servant who dies in harness, the Hon'ble Supreme Court, at paragraph No.8, held as follows:
"8. It is evident, that the facts in this case point out, that the plea for compassionate employment is not to enable the family to tide over the sudden crisis or distress which resulted as early as September 1972. At the time Ram Singh died on September 12, 1972 there were two major sons and the mother of the children who were apparently capable of meeting the needs in the family and so they did not apply for any job on compassionate grounds. For nearly 20 years, the family has pulled on, apparently without any difficulty. In this background, we are of the view that the Central Administrative Tribunal acted illegally and wholly without jurisdiction in directing the Authorities to consider the case of the respondent for appointment on compassionate grounds and to provide him with an appointment, if he is found suitable. We set aside the order of the Tribunal dated February 22, 1993. The appeal is allowed."
(iii) In Haryana State Electricity Board and another Vs. Hakim Singh, reported in 1997 (8) SCC 85, Haryana Electricity Board challenged an order of the High Court of Punjab and Haryana contending inter-alia that the respondent therein was not entitled to be considered for appointment in the Board on compassionate grounds. In the reported case, father of the respondent therein was a Lineman in employment of the Board. He died on 24.8.1974 in harness, leaving behind him, his widow and minor children, including the respondent. About 14 years, after the death of the said Lineman, widow applied for appointment to her son in the Board, on compassionate grounds, based on two circulars. As per the said circulars, one member of the family of the deceased employee could be considered for employment in the service of the Board, as a goodwill gesture, provided the request for such employment is made within one year of the death of the employee. The respondent filed a writ petition in the High Court contending inter-alia that when his father died, he was only four years old and therefore, his mother could make an application in the prescribed form and when he attained majority, he made a request. The Board did not give any favourble response to the repeated representations made in the matter. The Board took a stand that as the application was not made within the period specified in the circulars, the Board was unable to entertain the request for appointment on compassionate grounds. The High Court ordered the Board to consider the case of the respondent therein for compassionate appointment on the ground that, even if the dependents happened to be a minor child, at the time of death of the employee, the policy mandates his case to be considered by an extended period i.e., the time till the defendant attained majority. The Board's appeal was negatived by the Hon'ble Division Bench, with a direction to comply with the orders of the Single Judge, within a time frame. When the correctness of the above said orders was tested, at paragraph No.8 of the judgment, the Hon'ble Supreme Court held as follows:
"8. The rule of appointment to public service is that they should be on merits and through open invitation. It is the normal route through which one can get into a public employment. However, as every rule can have exceptions there are a few exceptions to the said rule also which have been evolved to meet certain contingencies. As per one such exception relief is provided to the bereaved family of a deceased employee by accommodating one of his dependents in a vacancy. The object is to give succour to the family which has been suddenly plunged into penury due to the untimely death of its sole bread-winner. This Court has observed time and again that the object of providing such ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment."
As regards the extended period, on attaining majority, the Hon'ble Supreme Court at paragraph Nos.14 and 15, held as follows:
"14. In that case widow of a deceased employee made an application almost twelve years after the death of her husband requesting for accommodating her son in the employment of the Board, but it was rejected by the Board. When she moved the High Court the Board was directed to appoint him on compassionate ground. This Court upset the said directions of the High Court following two earlier decisions rendered by this Court one in Umesh Kumar Nagpal v. State of Haryana and Ors. [1994 (3) SCR 893], the other in Jadgish Prasad v. State of Bihar and Anr. 1996 (1) SCC 301 . In the former, a Bench of two Judges has pointed out that "the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for the post held by the deceased". In the latter decision which also was rendered by a Bench of two judges, it was observed that "the very object of appointment of dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of earning member of the family". The learned Judges pointed out that if the claim of the dependent which was preferred long after the death of the deceased employee is to be countenanced it would amount to another mode of recruitment of the dependent of the deceased government servant "which cannot be encouraged, dehors the recruitment rules."
15. It is clear that the High Court has gone wrong in giving a direction to the Board to consider the claim of the respondent as the request was made far beyond the period indicated in the circular of the Board dated 1.10.1986. Respondent, if he is interested in getting employment in the Board has to pass through the normal route now."
Ultimately, the Hon'ble Supreme Court set aside the impugned orders of the High Court.
(iv) In Sanjay Kumar Vs. The State of Bihar and Others, reported in 2000 (7) SCC 192, the petitioner was 10 years old, and his mother working as a Excise Constable, died. He made an application on 02.06.1988, soon after the death of his mother, seeking appointment on compassionate grounds. The said application was rejected on 10.12.1996. Fresh application subsequently made was also rejected on 21.04.1997. Being aggrieved by the same, he preferred a writ petition before the High Court. A learned Single Judge dismissed the writ petition and that the same was also confirmed by the Hon'ble Division Bench. On appeal, the Hon'ble Supreme Court, at paragraph No.3, held as follows:
"3. 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 and Anr. v. Pushpendra Kumar and Ors. (Supra). It is also significant to notice that on the date when the first application was made by the petitioner on 2.6.1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there is some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief."
(v) In Sushma Gosain v. Union of India reported in 1989 (4) SCC 468, it was observed that in all the claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the breadwinner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the Scheme itself envisages specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati v. Union of India [1991 Supp (2) SCC 689] and Union of India v. Bhagwan Singh [1995 (6) SCC 476].
(vi) In Director of Education (Secondary) v. Pushpendra Kumar reported in 1998 (5) SCC 192, it was observed that in the matter of compassionate appointment, there cannot be insistence for a particular post. Out of purely 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, provisions are made for giving appointment to one of the dependents of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for grant of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependent of the deceased employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision.
(vii) In Director, Defence Metal Research Laboratory v. G. Murali, reported in 2003(9) SCC 247, the applicant was aged about two years, at the time of death of his father and that his application for compassionate ground appointment made, on attainment of majority was rejected, on the ground of non-availability of posts. The Central Administrative Tribunal, rejected the challenge. However, the High Court directed appointment on compassionate grounds, with a direction to the respondent's therein to create a post to accommodate him. The Civil appeal filed by the Director (Defense) and another, was allowed and at paragraph No.4, the Hon'ble Supreme Court opined as follows:
"4. We do not find any flimsy ground or technicalities in the Tribunal?s order. In fact, we find the High Court?s order to be unsustainable. There has been a failure to appreciate what the Tribunal had rightly taken into account, namely, that the writ petitioner and his family had coped without the compassionate appointment for about eighteen years. There was no warrant in such circumstances for directing the writ petitioner?s appointment on compassionate grounds and that too with the direction to the respondents to the writ petition to create a post to accommodate him"
(viii) In National Hydroelectric Power Corporation and Anr. Vs. Nanak Chand and Anr., reported in 2004 (12) SCC 487, father of the respondent was working under Hydro Electric Project of Government of India and died on 10.12.1976. The project was handed over to the appellant Corporation in 1978. The respondent, after attaining majority in 1986 applied for compassionate appointment which was rejected on the ground that the application was made after 10 years and that Corporation had surplus staff. Placing reliance on the instructions issued by the Government, contained in Swamy's Complete Manual and Establishment and Administration, the High Court granted the relief in favour of the respondent/dependent. Setting aside the said order, the Hon'ble Supreme Court, after referring to a catena of decisions held that the impugned judgment therein, as unsustainable. The Apex Court further held that the fact that the ward was a minor at the time of death of his father, was no ground to grant compassionate ground appointment, unless the Scheme itself envisages.
(ix) In State Bank of India v. Somvir Singh, reported in 2007 (4) SCC 778, at Paragraphs 7 and 10, the Hon'ble Apex Court held as follows:
"7. Article 16(1) of the Constitution of India guarantees to al its citizens equality of opportunity in matters relating to employment or appointment to any office under the State. Article 16(2) Protects citizens against discrimination in respect of any employment or office under the State on grounds only of religion, race, caste, sex and descent. It is so well settled and needs no restatement at our end that appointment on compassionate grounds is an exception carved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. Such appointments are required to be made on the basis of open invitation of applications and merit. Dependents of employees died in harness do not have any special or additional claim to public services other than the one conferred, if any, by the employer.
10. There is no dispute whatsoever that the appellant bank is required to consider the request for compassionate appointment only in accordance with the scheme framed by it and no discretion as such is left with any of the authorities to make compassionate appointment dehors the scheme. In our considered opinion the claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules, etc. framed by the employer in the matter of providing employment on compassionate grounds. There is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be."
The Hon'ble Supreme Court further held that it is well settled that the hardship of the dependent does not entitle one, to compassionate appointment, dehors the scheme or the statutory provisions, as the case may be.
(x) In S.Venkateswaran v. The Additional Director, Land Survey and Records Department [W.P.(MD)No.9086 of 2011, dated 14.09.2011], it is held as follows:
?The principles enunciated in the above said judgments would makes it clear that compassionate appointment is not a vested right which can be exercised at any time, in future. Compassionate employment cannot be claimed after a lapse of time, after the crisis is over. On the facts and circumstances of the above case, the Apex Court proceeded to observe that the employee died in harness in the year 1981 and after a long squabble by the dependents of the deceased, they have arrived at a settlement that the son- in-law (husband of the second daughter) who was unemployed may request for appointment on compassionate grounds. The request so made was accepted by the Personal Manager of the Company subject to the approval of the Director of the Company. The Director (P) , who is the competent authority for post facto approval, keeping in view the object and purpose of providing compassionate appointment has cancelled the provisional appointment on the ground that nearly after 12 years from the date of death of the employee such an appointment could not have been offered to the so called dependent of the deceased employee. The Supreme Court held that the decision of the employer was in consonance with Umesh Kumar Nagpal's case and the same should not have been interfered with by the High Court.?
(xi) In Local Administration Department v. M.Selvanayagam reported in 2011 AIR SCW 2198, an application was made by the son of the deceased, after 7+ years, from the date of death of his father, who died as a Watchman in Karaikal Municipality on 22.11.1988, leaving behind, his wife and two sons, including the respondent therein. At the time of his death, the respondent therein was aged 11 years. After about 5+ years from the date of his father's death, the respondent therein passed S.S.L.C. examination in April, 1993. Thereafter, for the first time on July, 29, 1993, the respondent's mother therein made an application for his appointment on compassionate grounds. No action was taken on the application, since the respondent therein was still a minor. A learned Single Judge directed the authorities to consider his claim for appointment on compassionate grounds, afresh and to pass an order on his application, within four months, from the date of passing of the order. As the same was not complied with, a contempt proceeding was initiated. The Municipality rejected the respondent's claim therein, for compassionate appointment. Once again, a writ petition was filed and this time, a learned Single Judge rejected the same. The Hon'ble Division Bench, which considered the correctness of the said order, allowed the writ appeal and that the same was challenged before the Hon'ble Apex Court. After considering the scheme of employment assistance on compassionate grounds, at Paragraphs 7 to 9, the Hon'ble Apex Court, held 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 anemia 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 unorganized 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 dependents is given a job with the sole objective to provide immediate succor 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 dependents and the financial deprivation caused to the dependents 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 illegal. 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 emphasized is that such an appointment must have some bearing on the object of the scheme.
9. In this case the Respondent was only 11 years old at the time of the death of his father. The first application for his appointment was made on July 2, 1993, even while he was a minor. Another application was made on his behalf on attaining majority after 7 years and 6 months of his father's death. In such a case, the appointment cannot be said to sub-serve the basic object and purpose of the scheme. It would rather appear that on attaining majority he staked his claim on the basis that his father was an employee of the Municipality and he had died while in service. In the facts of the case, the municipal authorities were clearly right in holding that with whatever difficulty, the family of Meenakshisundaram had been able to tide over the first impact of his death. That being the position, the case of the Respondent did not come under the scheme of compassionate appointments."
36. In National Institute of Technology v. Niraj Kumar Singh reported in 2007 (2) SCC 481, an employee died, leaving behind his wife. She made an application to the respondent therein, for appointment of her grandson on compassionate grounds. Thereafter, he was appointed on daily wages and his services were extended from time to time. After a gap of about 15 years, he made an application for his appointment on compassionate grounds on regular basis. Thereafter, wife of the deceased employee, sought for appointment for her son and while claiming so, she also requested cancellation of the respondent's appointment. As her request was rejected, she filed a writ petition, which was dismissed. One of the reasons assigned for dismissal of the writ petition filed by the wife was that at the time of death of the deceased employee, her son was aged one and half years old and that the application was submitted only after attaining majority i.e. after 18 years and therefore, no appointment can be given to the employee's son on compassionate ground. Letters patent appeal was also dismissed by the Hon'ble Division Bench. There were other issues of making a false claim by the grandson. Suo-motu contempt notice was issued. On the above facts and considering the policy of the Government, at Paragraphs 21 and 22, the Hon'ble Supreme Court, held as follows:
?21. The appointment on compassionate ground, thus, could have been offered only to a person who was the widow of the deceased or a dependent child. Admittedly, the son of the deceased Ashutosh Kumar was only one year old at the time of his father's death. He could not, thus, have been given any appointment on compassionate ground. It may be true that Smt. Vidhya Devi filed an application for grant of appointment on compassionate ground in favour of the respondent. But, it now stands admitted that he was not the natural grandson of late Shri B.P. Sinha but was a grandson of his cousin brother. Therefore, he was not entitled for appointment in terms of the scheme of the Institute. The Institute, therefore, committed an illegality in granting him such an appointment. Moreover the purported the appointment on compassionate ground had been given in 2001, i.e., after more than 15 years from the date of death of the said Shri B.P. Sinha.
22. If the appointment of the respondent was wholly illegal and without jurisdiction and such an appointment had been obtained by practising fraud upon the appellant, the same was a nullity. We are, however, not oblivious of the fact that the same attained finality in view of the fact that the writ petition of the said Vidhya Devi was dismissed. Despite the same, the principles of res judicata shall not apply in a case of this nature. It is well- known that where an order is passed by an authority which lacks inherent jurisdiction, the principles of res judicata would not apply, the same being nullity. [See Chief Justice of A.P., v. L.V.A.Dixitulu, 1979 (2) SCC 34 and Union of India v. Pramod Gupta (D) by LRs. and Ors., (2005) 12 SCC 1]?
37. Though learned counsel for the writ petitioner submitted that under the existing scheme, and the Government orders issued from time to time, on the aspect of considering the right of the minors, at the time of death of breadwinner, in making an application for employment assistance, on attaining majority, there are no rules or guidelines restricting the period, for consideration of such application and further submitted that what is relevant to be considered by the authorities, is whether the penury of the family continued to exist, or not, even after a long time and it should be the only objective factor, to subserve proper implementation of the scheme and further contended that when the scheme does not contemplate that on the date of death of the employee, the applicant should be an adult member irrespective of the period prescribed for submission of the application, this Court is not inclined to accept the said submissions, for the reason that even if indigent circumstances of the family continued to exist for a long time, the scheme of employment assistance on compassionate grounds and modified by various Government orders issued from time to time, makes it clear that though indigent circumstance is one of the factors to be considered, while examining the eligibility of an applicant to seek for employment assistance, equally, the other requirement under the Government orders issued from time to time, that the application should be submitted within three years from the date of death, cannot be ignored. A member of the family, otherwise eligible, on the date of death of the employee, has to submit the application within three years from the date of death or in a given case, if he was a minor at the time of death aged between 15 to 18 years, he can also submit an application, within three years from the date of death, on attaining majority.
38. Needless to state that for entry into any service in the State, the minimum age is 18 years, and no minor can be appointed to any service. Therefore, he cannot make any application for appointment to any post in service and no post can be kept vacant for him, till he attains majority. Posts which fall vacant have to be filled up as per the recruitment rules. Employment assistance on compassionate appointment, is only a concession, extended to an eligible member of the family, to apply for a suitable post, in the service, in which, the employee/Government servant died in harness and it is not a right, which can be exercised by a minor on attainment of majority.
39. Thus, for the reasons stated supra, we are of the view that continuation of penury or indigent circumstances of the family, alone is not the factor to be considered by the department, while examining the request of an applicant for appointment on compassionate grounds. Reading of the Government orders shows that scheme can be extended only to eligible member of the family and not to an ineligible person. Scheme has not been framed to provide employment assistance as and when the son or daughter of the deceased employee attains majority. Under the scheme, the department is not obligated to keep any post vacant, till the applicant attains majority or to consider his candidature on attaining majority. Scheme only enables those who are eligible and satisfy all the eligibility criteria including age, within three years from the date of death.
40. In view of the above discussion, the request of the petitioner for appointment on compassionate grounds, ought not to have been entertained, as on the date of application, he was minor, aged about 12 years. Reference can also be made to a decision made in Sushma Gosain v. Union of India reported in 1989 (4) SCC 468.
41. In the result, the Writ Appeal is allowed. No costs. Order made in W.P(MD)No.6538 of 2009 dated 22.04.2014 is set aside. Consequently, connected Miscellaneous Petition is closed.
To
1)The Inspector General of Prisions, Tiruchirapalli District, Tiruchirapalli-1.
2)The Chief Director, Prison Department, Office of the Chief Director of Prison Department, Egmore, Chennai 600 008..