Compassionate appointment was sought after about fifteen years of pursuing representations. The Court dismissed the challenge to rejection, holding that appointment could not be granted beyond a reasonable period or by extending the scheme's terms. The connected miscellaneous petition was also dismissed, without costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :19.06.2018
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.4175 of 2014
and
M.P.No.1 of 2014
N.Thangaraj ..Petitioner
vs
1.The Chairman,
Tamilnadu Generation and
Distribution Corporation Ltd.(TANGEDCO),
144, Anna Salai,
Chennai – 600 002.
No.948, EVN Salai, Erode – 638 009. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus, calling for the records of the 3rd respondent in his proceedings No.Ka.No.020115/1048/NP2(1)/2012-12, dated 02.12.2013 and consequential order of the 3rd respondent passed in his letter No.Ka.No.020115/1048/ NP2(1)/2012-13, dated 08.01.2014 and quash the same as illegal and without jurisdiction and further direct the respondents to provide suitable employment assistance for the petitioner in the Tamilnadu Generation and Distribution Corporation Ltd.(TANGEDCO) on compassionate grounds.
For Petitioner : M/s.K.Sasindran For Respondents : Mr.P.R.Dhilipkumar
O R D E R
The order of rejection issued by the respondent in respect of the claim of the writ petitioner for compassionate appointment is under challenge in this writ petition.
2.The learned counsel appearing on behalf of the writ petitioner made a submission that the father of the writ petitioner, Late.A.Natarajan was employed as Wireman in the erstwhile Tamil Nadu Electricity Board and passed away on 25.10.1997. On account of the sudden demise of the deceased employee, the family was in penurious circumstances and was not in a position to meet out the day-to-day expenditures of the family, as the deceased employee was the sole breadwinner of the family.
3.The learned counsel for the petitioner states that an application seeking appointment on compassionate grounds was made as early as on 18.12.1998 before the respondent Board. However, there was an enormous delay in providing an appointment to the writ petitioner by the respondent Board. Citing certain correspondences between the writ petitioner and the respondents, the learned counsel for the petitioner urged this Court by stating that there is no fault on the part of the writ petitioner in pursuing the matter, he was continuously approaching and submitting the respondents for providing an appointment on compassionate grounds. In spite of his repeated efforts, he could not able to secure any appointment though he is entitled for compassionate appointment under the scheme.
4.The learned counsel appearing on behalf of the respondents opposed the contentions by stating that the writ petitioner is employed as a contract labourer in the Electricity Board. Further, the application submitted by the writ petitioner is incomplete and he had not submitted the educational qualification and the relevant certificates for the purpose of considering the claim of the writ petitioner. Thus, the respondents had rejected the same on the ground of delay also.
5.On a perusal of the impugned order, this Court is of an opinion that the same has been issued in proceedings dated 02.12.2013. The learned counsel for the petitioner states that the writ petitioner submitted his application seeking appointment on compassionate ground in the year 1998. Thus, the writ petitioner except by submitting representation, not pursued the matter in accordance with law for about fifteen years. If at all, the family was in penurious circumstances on account of the sudden demise of the deceased employee, a factual inference has to be drawn that the penurious circumstances arosed became vanished on account of long delay. The very object and purpose
of the scheme of compassionate appointment is to mitigate the circumstances arousing on account of the sudden demise of a Government employee. It is not, as if, the scheme of compassionate appointment can be implemented by providing an appointment after a lapse of more than fifteen years or otherwise. If at all any legal heir of the deceased employee, eligible under the scheme, the scheme to be implemented within a reasonable period of time i.e., three years or at least in five years, however, not more than that. If the appointment is not provided within such a reasonable period, it is to be presumed that the indigent circumstances arosed, became vanished and thereafter, the eligible persons are bound to participate in the open competitive process for the purpose of securing public employment.
6.Equal opportunity in public employment is the constitutional mandate. The scheme of compassionate appointment is an exception and can never be construed as a regular recruitment process. All appointments are to be made under the constitutional schemes and by following the recruitment rules in force, strictly and scrupulously. The competent authorities are bound to provide and follow the constitutional perspectives and implement the selection process only in the manner known to law. Compassionate appointment, being an exception and can never be claimed as a matter of right. Scheme, being a special one, has to be implemented strictly in accordance with the terms and conditions stipulated. Even the State is not empowered to extend the scheme or dilute the terms, since, the scheme itself is in violation of Articles 14 and 16 of the Constitution of India. Thus, the State must also implement the schemes properly and without affecting the equality principles enunciated in the Constitution.
7.This Court is of an opinion that consideration for appointment on compassionate ground is to be construed as violation of Articles 14 and 16 of the Constitution of India and is only in the nature of concession and therefore does not create a vested right in favour of the claimant. A compassionate appointment scheme is a non-statutory scheme and is in the form of a concession and it cannot be claimed as a matter of right by the claimant to be enforced through a writ proceeding. A compassionate appointment is justified when it is granted to provide immediate succor to the deceased employee. Mere death of a Government employee in his harness, it 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 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 of the deceased employee.
8.The concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.
9.The philosophy behind giving compassionate appointment is just to help the family in harness to get over the immediate crisis due to the loss of sole breadwinner. This category of appointment cannot be claimed as a matter of right after certain period, when the crisis is over. More so, the financial status of the family is also to be looked into as per the scheme framed by the employer while giving compassionate appointment and such appointment cannot be conferred contrary to the parameters of the scheme.
11.The million dollar question is 'Whether offering 'appointment' on compassionate ground (i.e., sympathy) is the only option /solution to mitigate 'hardship and distress of the family of an employee dying in-harness? The answer is an emphatic 'No'. Firstly, the Rules, as such, contain no provision to ensure that the dependent who gets appointment shall continue to maintain other dependents.
13.In this view of the matter, this Court has to examine
the scope of the scheme. The scheme being an exception, the authorities competent has to implement it in its strict terms. Equal opportunity in a public employment is a Constitution mandate.
● Second is the comparative merit amongst the candidates who are participating in the regular open competitive process.
15.In case of compassionate appointments, no such constitutional mandated requirements have been followed. Thus, very scheme itself is an exception and not in accord with the constitutional scheme. Compassionate appointment scheme as a special one necessarily to be restricted to the extent possible, so as to provide appointment only to the genuine and warranting families. This apart, the over all strength of the compassionate appointees should not exceed more than the restricted level and if such a kind of special appointments are increased in the public posts, this Court is of the view that the efficiency level in the public administration will certainly be affected.
17.Thus, the concept of compassionate appointment itself is to be reconsidered by the Government and it should be restricted so as to provide appointment only to the legal heirs of the deceased in genuine circumstances. Otherwise, the scheme of compassionate appointment will have a negative impacts on the good governance and further, it will affect the chances of the meritorious candidates, who can participate in the public administration in the better manner.
18.Rules of Reservation being a constitutional mandate any scheme violating the same has to be implemented cautiously and restrictedly. Thus, genuineness of the claim made by the person on compassionate grounds to be strictly in accordance with the terms and conditions and further, the State cannot be going on extending the scope of compassionate appointment so as to dilute the principles of reservation under the Constitution.
19.Such being the scope of the scheme, Courts are also to be cautious, while extending the benefit of compassionate appointment in favour of the legal heirs of the deceased employee and the legal presumption in this regard is that the indigent circumstances certainly vanishes after a lapse of long years.
20.The learned counsel appearing for the writ petitioner in this regard relied on the orders passed by the Hon'ble Division Bench in Writ Appeal No.205 of 2017 on 15.09.2017. The Hon'ble Division Bench in a case, where the deceased employee died on 28.08.1986, held that the legal heirs who was aged about 10 years at the time of death of the employee, on attaining the majority, submitted an application on 11.12.1995. The Hon'ble Division Bench in the said case allowed the claim of the writ petitioner. It is pertinent to note that the legal principles in relation to the scheme of compassionate appointment settled by the Hon'ble Supreme Court of India in various judgments have not been brought to the notice of the Hon'ble Division Bench. Thus, the above said case the Hon'ble Division Bench has dismissed the appeal filed by the Chennai Metropolitan Water Supply and Sewerage Board on the facts of the case. If the legal principles are not discussed or settled in an order passed in appeal, the same need not be followed in a routine manner.
21.The Judicial discipline require that all the Courts have to follow the legal principles and the judgments delivered by the higher forum. So also this Court has to follow the legal precedents laid down both by the Hon'ble Division Bench, Full Bench and the Hon'ble Supreme Court of India. However, a fine distinction is to be drawn between the ''orders'' and the ''judgments'' passed by the Constitutional Courts. If any order is passed based on certain factual circumstances or by showing some leniency or sympathy, such orders need not be followed. Contrarily, if the legal principles and the law relating to the particular subject has been settled by the Hon'ble Supreme Court, certainly this Court is bound to follow the legal principles formulated and settled by the Hon'ble Supreme Court of India.
for Judgment and Order, “ An order is a decision made during the progress of the cause, either prior or subsequent to final judgment, settling some point of practice or some point collateral to the main issue presented by the pleadings, and necessary to be disposed of before such issue can be passed upon by the Court, or necessary to be determined in carrying into execution of the final judgment.
“Judgment acts by a fixed rule; it admits of no question or variation; discretion acts according to circumstances and is its own rule. Judgment determines in the choice of what is good; discretion sometimes only guards against error or direct mistakes; it chooses what is nearest to the truth. Judgment requires knowledge and actual experience; discretion requires reflection and consideration; a general exercise is judgment in the disposition of his army, and in the mode of attact; whilst it is following the rules of military or it exercise its discretion in the choice of officers of different posts, in the in the treatment of men, in its negotiation with its enemy and various other measures which depend upon contingencies.”
27.The learned counsel appearing on behalf of the writ petitioner repeatedly emphasized that the Hon'ble Division Bench has allowed the writ appeal on 15.09.2017 in W.A.No.205 of 2017, and therefore, this Court also should allow the claim of the writ petitioner in this writ petition. However, this Court has to follow the legal principles settled by the Hon'ble Supreme Court of India in relation to the scheme of compassionate appointment.
28.Yet another judgment also is brought to the knowledge of this Court by the learned counsel appearing for the writ petitioner passed in W.A.No.44 of 2016 on 20.10.2016. In this
case also the application was submitted on 29.04.2002 seeking compassionate appointment of the deceased employee, who died on 02.01.1995. However, the Hon'ble Division Bench has not discussed and adjudicated the entire legal principles with regard to the scheme of compassionate appointment, contrarily the order was passed based on factual aspects.
29.The Hon'ble Supreme Court in the matter of compassionate appointment has rendered a judgment setting out the principles, the guidelines and the scope of providing appointment on compassionate ground. Compassionate ground being an exception to that of the general recruitment, the same should be provided with all caution taking note of the fact that compassionate appointment will certainly deprive the eligible meritorious youths and citizens of the country to get public employment. When the Courts are providing an exceptional scheme of compassionate appointment to the individual, it is equally relevant to keep in mind that such facilities provided should not affect the rights of other citizens, who are otherwise qualified, meritorious and aspiring to participate in the open competitive process. The granting of relief, if it affects the Constitutional rights of other citizens, then the Courts must be slow in granting such relief.
31.Thus, this Court is of the view that a striking balance ought to have been adopted in such circumstances and Court in its wisdom has to analyze the possible direct and indirect impacts in this regard, in order to provide equal opportunity in public employment to all the citizens. The Courts are bound to borne in mind that equality clause also to be weighed before stretching the scope of such an exceptional scheme of compassionate appointment. Thus, this Court cannot consider the orders produced by the learned counsel for the writ petitioner and this Court has to follow legal principles and the precedents settled by another Division Bench of this Court in the case of Inspector General of Prisons Vs. Marimuthu (2016 5 CTC 125) and all other judgments of the Hon'ble Supreme Court of India in this regard.
32.The learned counsel appearing on behalf of the writ petitioner cited the Judgment of the Hon'ble Supreme Court of India in the case of Vijaya Ukarda Athor (Athawale) Vs. State of Maharashtra and Others reported in [(2015) 3 Supreme Court Cases 399]. On a reading of the above judgment, the order passed by the High Court in Review Application and in the writ petition are set aside by the Hon'ble Supreme Court of India and the matter was remitted back to the High Court for consideration of the matter afresh. Thus, the Hon'ble Supreme Court left open the issue in respect of the facts and circumstances of the legal principles and directed the High Court to decide the matter afresh. Such a judgment rendered by the Hon'ble Supreme Court in respect of the particular facts and circumstances of that case cannot be considered in respect of the facts of the present writ petition on hand.
33.The Hon'ble Supreme Court time and again emphasized that the facts and circumstances of each case has to be considered and the legal principles are to be considered only with relevant to the facts of the particular case. The above case cited by the learned counsel for the petitioner cannot have any relevance in respect of the facts and circumstances of the present case, since in the above case the Hon'ble Supreme Court remitted the matter back for consideration. For all these reasons, no consideration is required in this writ petition.
34.In Sanjay Kumar vs. State of Bihar and Others {(2000) 7 SCC 192}, wherein the Hon'ble Supreme Court, in paragraph-3 of its judgment, held as under:-
“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 another v. Pushpendra Kumar and others (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.”
“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 bread-winner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.”
“In Smt. Sushma Gosain and others vs. Union of India and others (1989 (4) SCC 468) it was observed that in all claims of appointments 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 bread-earner 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 envisage 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 re-iterated in Phoolwati (Smt.) vs. Union of India and others (1991) Supp. (2) SCC 689) and Union of India and others vs. Bhagwan Singh (1995 (6) SCC 476). In Director of Education (Secondary) and Anr. vs. Pushpendra Kumar and others (1998 (5) SCC 192) it was observed that in 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 dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground 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 there nullity the main provision by taking away completely the right conferred by the main provision.”
“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 General Manager, State Bank of India and Others vs. Anju Jain (2008) 8 SCC 475, para 33]”
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.
belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated.
“vested.----fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are ‘vested’ when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute “vested rights”.
“14. Date of effect of the
scheme and disposal of pending applications.--The Scheme will come into force with effect from the date it is approved by the Board of Directors. Applications pending under the Compassionate Appointment Scheme as on the date on which this new Scheme is approved by the Board will be dealt with in accordance with Scheme for payment of exgratia lump sum amount provided they fulfill all the terms and conditions of this scheme.”
considered.”
“ 11. India being a socialistic republic, keeps evolving various schemes to further the objectives enshrined in Part IV of our Constitution. It is relevant to take note of the fact that State is required to endeavour for promoting the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political should prevail. The State is also required to make effective provisions for securing the right to work and to public assistance in case of unemployment, old age, sickness, disablement and any other causes of undeserved want. As a part of promotion of the welfare of those recruited by the State to various services established by it, the necessity to provide for employment opportunities to the members of the family of the deceased Government servants has arisen.
the goodwill from its grateful citizens for the quality of services rendered to them, by those servants including the deceased employee'.
claim for compassionate appointment should be entertained beyond a reasonable period of say three years or five years, as the case may be. If a family of the deceased civil servant can survive for long periods entirely on their own, it presupposes that the surviving members have the necessary wherewithal to survive, notwithstanding the departure of the breadwinner.
“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. (i) 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." (ii) 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 interalia 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 breadwinner. 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."
Ultimately, the Hon'ble Supreme Court set aside the impugned orders of the High Court.
(iii) 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. vs. 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."
(iv) 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].
(v) 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.
(vi) 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"
(vii) 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.
(viii) 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.
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.
(ix) 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.?” (x) In Local Administration Department v. M.Selvanayagam reported in 2011 AIR SCW 2198, an application was made by the son of the deceased, after 7½ 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 5½ 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.
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."
“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.
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.
42.Accordingly, the writ petition stands dismissed. Consequently, the connected Miscellaneous Petition is also dismissed. However, there shall be no order as to costs. Sd/Assistant Registrar(CS-VI) //True Copy// Sub Assistant Registrar kak To 1.The Chairman, Tamilnadu Generation and Distribution Corporation Ltd.(TANGEDCO), 144, Anna Salai, Chennai – 600 002. 2.The Chief Engineer(Personnal) Tamilnadu Generation and Distribution Corporation Ltd.(TANGEDCO) 144, Anna Salai, Chennai – 600 002.
W.P.No.4175 of 2014
CP(CO) TR(27/06/2018)
2 issues framed by the court
Could compassionate appointment be directed after about fifteen years despite repeated representations?
Could the court extend compassionate appointment beyond the terms and conditions of the scheme?
Colour shows how this judgement treated each authority
Writ Appeal No.205 of 2017 on 15.09.2017Distinguished¶43
W.A.No.44 of 2016 on 20.10.2016Distinguished¶54
The Inspector General of Prisons vs. P.MarimuthuFollowed¶108
The Inspector General of Prisons vs. P.Marimuthu {2016 (5) CTC 125}
Vijaya Ukarda Athor (Athawale) Vs. State of Maharashtra and OthersDistinguished¶61
Vijaya Ukarda Athor (Athawale) Vs. State of Maharashtra and Others reported in [(2015) 3 Supreme Court Cases 399]
Sanjay Kumar vs. State of Bihar and OthersRelied on¶63
Sanjay Kumar vs. State of Bihar and Others {(2000) 7 SCC 192} · Who else cites this
Umesh Kumar Nagpal vs. State of Haryana and OthersRelied on¶67
Umesh Kumar Nagpal vs. State of Haryana and Others {(1994) 4 SCC 138} · Who else cites this
State of Manipur vs. Md. RajaodinRelied on¶69
State of Manipur vs. Md. Rajaodin {(2003) 7 SCC 511} · Who else cites this
Steel Authority of India Limited vs. Madhusudan Das and OthersRelied on¶73
Steel Authority of India Limited vs. Madhusudan Das and Others {(2008) 15 SCC 560} · Who else cites this
MGB Gramin Bank vs. Chakrawarti SinghRelied on¶75
MGB Gramin Bank vs. Chakrawarti Singh {(2014) 13 SCC 583} · Who else cites this
W.P.No. 8773 of 2015 dated 27.07.2017Relied on¶97
1 provisions across 1 enactments
N.Thangaraj
The Chairman, Tamilnadu Generation and Distribution Corporation Ltd.(TANGEDCO)
The Chief Engineer(Personnal) Tamilnadu Generation and Distribution Corporation Ltd.(TANGEDCO)
The Superintending Engineer, Erode Electricity Distribution Circle, Tamilnadu Generation and Distribution Corporation Ltd.(TANGEDCO)
S.M.SUBRAMANIAM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
