Allowed

Irosa v. Government of Tamil Nadu

Madras HC6 Sept 2021WA/1877/2021

Case brief

AI extract

What is this about?

In a Writ Appeal challenging a rejection of compassionate appointment due to a 30-year delay, the Court held that delay caused by civil litigation on heirship cannot be faulted against the applicants. The Single Judge's order was set aside, and the Government directed to reconsider the second appellant's eligibility for a Class IV post within three months.

What did the court decide?

The order dated 05.08.2020 in W.P.No.10203 of 2020 is set aside. The Government of Tamil Nadu is directed to consider the second appellant's case for compassionate appointment in Class IV posts within

Irosa Vs Government of Tamil Nadu — Pension and Retirement Benefits | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 06.09.2021

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CORAM :

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THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
AND

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THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN

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Writ Appeal No.1877 of 2021

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1.Irosa

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2.P.Prabhakaran ... Appellants

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vs.

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1. Government of Tamil Nadu, Represented by Secretary to Government, Revenue Department, Secretariat, Chennai 600 009.

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2.The Principal Secretary and Commissioner of
Revenue Administration,
Chepauk, Chennai 600 005.

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3.The District Collector,
Tiruchirapalli District,
Tiruchirapalli. ... Respondents

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Writ Appeal filed under Clause 15 of Letters Patent
against the order dated 05.08.2020 passed by this Court in
W.P.No.10203 of 2020.

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Prayer in W.P.No.10203 of 2020: Writ Petition filed under
Article 226 of the Constitution of India praying for issuance of
a writ of certiarified Mandamus to call for the entire records
pertaining to the proceedings Na.Ka.No.A4/56374/2008 dated
11.02.2020 issued by the 3rd respondent and quash the same and
to direct the respondents herein to provide appointment on
compassionate grounds to the second petitioner herein within a
limited time frame.

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For Appellants: Mr.M.Ravi

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For Respondents: Mr.K.Tippu Sulthan,
 Government Advocate

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https://hcservices.ecourts.gov.in/hcservices/

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J U D G M E N T

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(Judgment of the Court delivered by S.VAIDYANATHAN,J.)

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This Writ Appeal is filed challenging the order dated
05.08.2020 passed by the learned Single Judge in W.P.No.10203 of
2020, whereby, the request of the Writ Petitioners seeking
compassionate appointment was rejected on the ground that, they
have approached the Court after three decades.

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2. Heard the learned counsel on either side and perused
the material documents available on record.

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3.The delay attributed for approaching this Court
belatedly that, a Civil Suit was pending between the Writ
Petitioners and the rival Claimants, cannot be accepted, as, the
civil proceedings came to an end in the year 2013 itself, and
that, compassionate appointment cannot be sought after a period
of three decades. The learned Single Judge has observed that, a
Government job cannot be a subject matter of inheritance and
cannot be claimed as a matter of right, and it can only be
claimed as a matter of grace, as appointment itself is qualified
as compassionate appointment.

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4.Undoubtedly, the Scheme for compassionate appointment
is meant to render immediate employment assistance to the family
members of the deceased employee and such employment cannot be
kept pending, as, in the case on hand, the Writ Petitioners have
slept over the matter for more than three decades.

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5.In the case on hand, the first Appellant viz. Irosa
claims to be the first wife of the deceased employee and the
second Appellant is his son. The employee died while in service
on 30.03.1988 and the first Appellant, who is his wife made an
Application seeking appointment on compassionate ground on
22.02.1990. At that point of time, another lady, claiming to be
the wife of the deceased employee made a counter-claim for
compassionate appointment. This made the Government to take a
neutral stand that, unless otherwise, the relationship between
the first Appellant and the deceased employee is established by
the competent Court of Law, the request for compassionate
appointment cannot be considered.

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6.Accordingly, the first Appellant viz. Irosa approached
the competent civil Court to get a declaration that, she is the
legally wedded wife of the deceased employee. The District
Munsif Court, Jayamkondam passed a judgment and decree on
17.09.2013 in O.S.No.173 of 1996, dismissing the said Suit filed
by the counter-Claimants. Even during the pendency of the Suit,
the first Appellant made an Application as early as in 2008,
requesting to grant compassionate appointment to her son viz.
P.Prabhakaran. But, the District Collector, Tiruchirapalli,

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https://hcservices.ecourts.gov.in/hcservices/

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vide proceedings dated 27.12.2008, observed that, parties must
obtain orders from the Court that, they are the Legal Heirs of
the deceased Government servant, in order to consider their
request.

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7.Though the Service Register of the deceased employee
was found to be missing, based on the available records, the
District Collector came to the conclusion that, the deceased
employee was in employment from 10.11.1987 in Tiruchirapalli
District Revenue Unit till 30.03.1988, on which date, he died in
an accident. By passage of time, the son of the deceased
employee viz. P.Prabhakaran, the second Appellant herein, who
was only four years old at the time of death of the employee,
attained majority.

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8.A feeble argument has been advanced by the learned
Government Advocate appearing for the Respondents herein that,
on the date of the judgment and decree, the second Appellant was
23 years old and that, he should have made an Application at
least within three years after attaining majority. The said
argument cannot be accepted in the light of the order dated
27.12.2008 passed by the District Collector, Tiruchirapalli,
whereby, the parties have been asked to await the verdict of the
civil Court.

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9.There are a catena of Apex Court decisions holding
that, compassionate appointment cannot be granted, when an
Application is made beyond the time stipulated. In that regard,
it is worth referring to an Apex Court decision in the case of
Bhawani Prasad Sonkar vs. Union of India reported in (2011) 4
SCC 209, relevant portion of which, is extracted hereunder:

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"20. Thus while considering a claim for employment
on compassionate ground, the following factors have to be
borne in mind:

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(i) Compassionate employment cannot be made in
the absence of rules of regulations issued by the
Government or a public authority. The request is to be
considered strictly in accordance with the governing
scheme, and no discretion as such is left with any
authority to make compassionate appointment de-hors the
scheme.

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(ii)Anapplicationforcompassionate
employment must be preferred without undue delay and has
to be considered within a reasonable period of time.

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(iii) An appointment on compassionate ground is
to meet the sudden crisis occurring in the family on
account of the death or medical invalidation of the

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https://hcservices.ecourts.gov.in/hcservices/

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bread-winner while in service. Therefore, compassionate
employment cannot be granted as a matter of course by
way of largess irrespective of the financial condition
of the deceased/incapacitated employee's family at the
time of his death or incapacity, as the case may be.

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(iv) Compassionate employment is permissible only
to one of the dependants of the deceased/incapacitated
employee viz. Parents, spouse, son or daughter and not
to all relatives, and such appointments should be only
to the lowest category that is Class III and IV posts."

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10.In the light of the facts discussed supra, it is clear
that, neither the Appellants nor the Respondents herein are said
to be at fault, and it is only due to the pendency of the
litigation before the civil Court, the request of the first
Appellant herein, i.e. the wife of the deceased employee, could
not be considered. When the Department wanted to consider the
case of the first Appellant, she had already crossed the age
limit for appointment. By passage of time, as stated supra, the
second Appellant attained majority and became eligible to be
considered for compassionate appointment.

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11.Though, we are entirely in agreement with the
observation made by the learned Single Judge that, compassionate
appointment is not a matter of right, in the present set of
facts, moreso, when the Government has passed an order to keep
the request of the Appellants for compassionate appointment in
abeyance, by asking the parties to produce the order of the
civil Court, the case of the Appellants cannot be rejected.

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12.The Court renders judgment, which is completely
different from rendering justice. That is, in life, expectation
is different from reality. For example, in most of the criminal
cases, 'Truth never triumphs', as benefit of doubt goes in
favour of the accused, even though Lawyers will know that, the
accused is the culprit, but, in the absence of chain link, the
accused will come out from the charges. In all cases, we would
like to render justice rather than rendering judgment. Though,
there is enormous delay of more than three decades on the part
of the Appellants in approaching this Court, neither the
Appellants nor the Government are at fault and that, the delay
is only on the part of the civil Court in disposing of the
matter. Hence, this Court is of the considered view that, the
second Appellant shall not be deprived of compassionate
appointment, if he is otherwise eligible to be considered.

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13.This Court, in a similar circumstance, in W.P.(MD)
Nos.4129, 7045, 16624 and 20786 of 2014 and W.P.(MD) Nos.19455
and 19530 of 2018 [S.Gowtham Balu vs. The Managing Director,
Tamil Nadu Electricity Generation and Distribution Corporation,

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https://hcservices.ecourts.gov.in/hcservices/

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Chennai, decided on 24.09.2018], has considered all the aspects
pertaining to grant of compassionate Appointment and passed a
detailed order by extending a few suggestions to the Government.
For better appreciation, relevant portion of the same, is
extracted hereunder:

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“6. The Government may think of issuing a fresh
Government Order, if they want to stick on compassionate
appointment scheme and one such condition is that
compassionate appointment would be considered only for
Class-IV employment and that age can be relaxed and the
qualifications can be entirely relaxed, as there is no
need for any qualification for the purpose of appointing
the persons as sweeper, gardener and the like. In the
event the spouse refusing to accept the Class-IV
employment, the same can be rejected and the children,
after becoming major, cannot seek for compassionate
appointment. There should be a prescribed procedures so
that the application can be routed through Email and the
said application will have to be considered and orders to
be passed within the stipulated time. For making an
application a time limit can be fixed as one year instead
of three years. The appointment through compassionate
appointment is a substantial litigation in this Court and
the Government should ensure that they take an unbiased
decision within a maximum period of six months so that
the applicant will know where they stand. As a matter of
right, the applicant cannot demand that based on the
higher qualification they shall be appointed in Class-III
posts, as the Class-III posts is meant either for
promotion or for direct recruitment and shall not be
taken for compassionate appointment. In addition to the
above, this Court expects the Government to take into
account the following suggestions and issue a Government
Order immediately so that it can be given effect to from
1st January, 2019:

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(i) the compassionate shall be made within a
period of one year from the date of death of the deceased
Government employee;

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(ii) the qualification for Class-IV employees can
be completely exempted for the purpose of giving
compassionate appointment and though Basic Rules provide
for certain category of posts falling under compassionate
appointment, the same is only illustrative in nature. For
example, for appointment to the post of Sweeper, there is
no need to prescribe any qualification and what is
required is, it must be ensured as to whether persons to
be appointed to the post of Sweeper on compassionate

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https://hcservices.ecourts.gov.in/hcservices/

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ground know to read and write and ride bicycle / two
wheeler and other basic household / office works;

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(iii) as held by the Hon'ble Supreme Court in the
case reported in [(2011) 4 SCC 209], the purpose of
compassionate appointment is to meet the sudden crisis
and there is no need to keep a post to claim after 18
years. Therefore, it is clear that the request for
appointment on compassionate ground for the child in the
womb, by seeking reservation of one post till the child'
majority cannot be entertained;

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(iv) whenever an application for compassionate
appointment is made, it should be decided within a period
of three months from the date of receipt of the said
application and the person making such application for
compassionate appointment should despatch the same either
by speed post or by registered post. Once an application
is received, it is open to the concerned authorities to
call for the documents from the deponents / legal heirs
so that her case can be considered and decision should be
taken within a period of two months thereafter. Once a
request is made calling for documents, the concerned
person will have to submit the required documents within
15 days. If the application for compassionate appointment
is not decided within three months from the date of
receipt of such application, then the concerned Officer,
who is responsible to take a decision thereon, should be
removed from the post and posted in a non-sensitive post.
This will avoid further litigation, as the persons
applying for compassionate appointment have been
approaching this Court for disposal of the representation
after lapse of decades and getting an order so as to
litigate unnecessarily and the order of disposal of
representation is not a conclusive one for litigants, but
a starting point of litigation;

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(v) the documents sought by the concerned
authorities should be uploaded by the application so that
there would be no quarrel with regard to non-
consideration of vital documents by the authorities,
while scrutinizing the application for compassionate
appointment. The applicant shall also furnish his/her
Cell Number, Email Address, etc., to enable the
authorities to communicate the order to be passed in
his/her application.

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(vi) for the sake of brevity, it is reiterated
that the compassionate appointment should be restricted
only to Class-IV employment instead of Class-III & IV so
that the claim for compassionate appointment would be

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https://hcservices.ecourts.gov.in/hcservices/

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reduced;

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(vii) in case compassionate appointment is
considered other than the spouse, then 25% of the gross
monthly income shall be directly paid to the spouse by
way of NEFT or RTGS and the said gross income is subject
to income tax deductions. The reason for not granting 25%
of the amount from the Nett salary is that the employee
may take loans and ensure that the take-home salary is
very less and the 25% of the amount payable on the Nett
after loan deduction would be very meagre and will not be
sufficient to have a square meal for the day for the
spouse at the old age. Many of the children, after
getting employment, are driving the parents to old age
home and in order to ensure that the spouses are
protected and taken care of, 25% of the amount has got to
be given to them. As per the provisions of the
Maintenance and Welfare of Parents and Senior Citizens
Act, 2007, it is the bounden duty of children to take
care of them and their children should not be allowed to
leave their parents in lurch, thereby letting them scot-
free and the old aged people at the fag end of their life
are rushing to Courts to get money from their children.
In order to avoid such a haphazard situation, this Court
wants to ensure that 25% of the gross shall be paid to
the spouses, which would be subjected to income tax
payable by the employee.

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(viii) the spouse, who is getting 25% of the
amount as mentioned supra shall produce the life
certificate once in a year preferably on the 1st March of
every year;

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(ix) we suggest that the Government issues a
Government Order to that effect, as the Court is burdened
with not less than 5% of the service matters, seeking
employment on compassionate ground from various
departments, such as Electricity Board, etc and since
there is no uniform guidelines for all the Government
departments, there is always a confusion and chaos,
thereby creating unnecessary litigations;

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(x) the compassionate appointment shall not be
considered as a back door entry and it is based on rules,
regulations, guidelines and Government Orders. However,
it should be remembered that compassionate appointment is
not an usual recruitment process and the candidates
seeking such appointment will have to satisfy all the
requirements contemplated under the Rules with regard to
the age, qualification, etc, but however, it is subject

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https://hcservices.ecourts.gov.in/hcservices/

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to relaxation depending upon the circumstances of each
case.”

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14.In view of the foregoing, we are inclined to interfere
with the order of the learned Single Judge. Accordingly, the
order dated 05.08.2020 passed by the learned Single Judge in
W.P.No.10203 of 2020 is set aside and the Government is directed
to consider the case of the second Appellant viz. P.Prabhakaran,
if he is otherwise eligible for compassionate appointment in
class IV post alone, and take a decision and communicate the
same to the second Appellant, within a period of three months
from the date of receipt of a copy of this order.

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15.It is made clear that, this order cannot be treated as
a precedent, as compassionate appointment for the second
Appellant is directed to be considered, only by taking into
account the peculiar facts and circumstances of the case.

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The Writ Appeal is ordered accordingly. No costs.

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Sd/-
Assistant Registrar (CS-II)

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// True Copy //

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Sub Assistant Registrar

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(vm/aeb)

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To:

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1. The Secretary, Government of Tamil Nadu, Revenue Department, Secretariat, Chennai 600 009.

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2. The Principal Secretary and Commissioner of Revenue Administration, Chepauk, Chennai 600 005.

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3. The District Collector, Tiruchirapalli District, Tiruchirapalli.

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+1CC to M/s.M.Ravi, Advocate, SR.No. 45406

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W.A.No.1877 of 2021

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PA(CO)
B.VC (06/10/2021)

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https://hcservices.ecourts.gov.in/hcservices/

Irosa v. Government of Tamil Nadu

Case brief

What is this about?

What did the court decide?

Irosa v. Government of Tamil Nadu

Case brief

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