Judgment · High Court · 2011
Case at a glance
Outcome
Allowed
The appeal is allowed subject tothe aforesaid observations
Provisions considered
- Constitution of India art. 136
Key paragraphs
- Para 66. The Government found that at the time of death ofpetitioner's father, his mother was in employment. It is only afternine years after his death, his mother went on voluntary retirementand that immediately after his death, none of the legal heirs hadstaked any claim. Therefore…
- Para 88. On the other hand, the Supreme Court in more or lessidentical circumstances in S.Mohan Vs. Government of Tamil Nadu andanother reported in (1998) 9 SCC 485 has held that if anycompassionate appointment is made contrary to rules, the saidappointment should be cancelled and the…
- Para 99. Further, it must be noted that the scheme of compassionateappointment is an exception to Articles 14 and 16 of the Constitution. If a person has applied for an appointment oncompassionate appointment, the background of his family will haveto be taken note of before appointment…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 07.06.2011CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.10205 of 2010 (T)(O.A.NO.6433 OF 1996)Duraimozhivarman .. PetitionerVs.
The State of Tamilnadu, rep by the Secretary to Government, Survey & Land Records Department, Secretariat, Chennai-9.
The Commissioner and Director of Land Survey and Land Settlement, Ezhilagam, Chepauk, Chennai-5.
The Assistant Director, Land Survey & Records, Tiruvannamalai Sambuvarayar Dist... RespondentsO.A.No.6433 of 1996 has been preferred before the Tamil NaduAdministrative Tribunal and on transfer to this court renumbered asW.P.No.10205 of 2010 praying for the issue of a writ ofcertiorarified mandamus to call for the records on the file of thethird respondent in connection with the order passed by him in hisproceedings Na.Ka.No.A2 4158/96(1) dated 1.10.1996 and to quash thesame and to direct the respondents to reinstate the applicant withall monetary and service benefits. For Petitioner : Mr.S.RameshFor Respondents : Mr.R.Murali, GAORDERThe petitioner filed O.A.No.6433 of 1996 before the Tamil NaduAdministrative Tribunal, seeking to challenge an order of the thirdrespondent, i.e., Assistant Director of Land Survey and Records, dated 01.10.1996. By the impugned order, the petitioner's servicewas terminated on the ground that his appointment on compassionateground as a Land Surveyor cannot be made and that approval of theTNPSC was also not obtained for his appointment. https://hcservices.ecourts.gov.in/hcservices/
2. The Tribunal had admitted the OA and had granted an interimstay on ground that no notice was given to him vide order dated08.11.1996. Subsequently, the interim order came to be extendedfrom time to time and finally, until further orders by a furtherorder dated 29.11.1996.3.In the meanwhile, the petitioner filed a writ petition beingW.P.No.33911 of 2005 to withdraw the OA and renumber it as a writpetition to be heard by this court. By an order dated 21.10.2005,this court mistook the prayer of the petitioner and had passed anorder that the petitioner was permitted to withdraw the OA pendingbefore the Tribunal. Thereafter, the petitioner filed WPMP No.278of 2010 seeking for clarification. It was stated by the petitionerthat his intention was not to withdraw the OA from the Tribunal, but to transfer it from the Tribunal to this Court to be heard as awrit petition. This Court by an order dated 16.4.2010 had clarifiedthe order and directed to renumber the OA as a writ petition. It isnot clear as to what was the status of the petitioner from21.10.2005, the date on which his OA was dismissed by this court aswithdrawn till 16.04.2010, the day on which the matter was restoredand to be treated as a writ petition. Accordingly, by a subsequentorder, the OA was transferred and renumbered as W.P.No.10205 of2010. Though an application was filed to vacate the stay ordertogether with supporting reply affidavit, the Tribunal did notnumber the application. When the matter came up before this court, this court directed the original files to be circulated. Accordingly, the original file was circulated.
It is seen from the records that the petitioner's fatherlate K.P.Harikrishnan was working as a Sub Inspector of Survey inthe respondent Department. He died on 19.6.1984 in harness. Even atthat time, the petitioner's mother was working as a village helpnurse. After working for more than nine years after the death ofthe petitioner's father, she had applied for voluntary retirementand got voluntary retirement on 30.11.1993. Therefore, at the timeof death of the petitioner's father, the petitioner was noteligible for any appointment on compassionate ground. Butnotwithstanding the same, the petitioner was appointed oncompassionate ground based on the report of the Cheyyar Tahsildar.
At the time of the death of the petitioner's father, thepetitioner had an elder brother Arulmozhivarman, who was a graduateand who was 26 years old and the petitioner was 24 years having ITIqualification. His application was not entertained. Thereafter, thepetitioner's mother had written a letter to the Commissioner for Revenue Administration. The same was forwarded with an endorsementby the Commissioner to the District Collector to sympatheticallyconsider his representation. Thereafter, the petitioner was giventemporary appointment under Rule 10(a)(1) as a Land Surveyor in thedepartment. It was also indicated that the appointment would besubject to approval by the department head as well as by the Government. https://hcservices.ecourts.gov.in/hcservices/
The Government found that at the time of death ofpetitioner's father, his mother was in employment. It is only afternine years after his death, his mother went on voluntary retirementand that immediately after his death, none of the legal heirs hadstaked any claim. Therefore, none of the legal heirs were eligiblefor any employment on compassionate grounds. Without consideringthe revenue income of the family, the recommendation has been madeby the Tahsildar, Cheyyar. Therefore, an appropriate disciplinaryaction was directed to be taken against the Tahsildar and thepetitioner's service should also be terminated. Accordingly, thepetitioner was terminated by an officer order dated 1.10.1996. Itwas also served on him on the same day. It was thereafter thepetitioner moved the Tribunal and had obtained an interim stay. Onthe basis of the stay order, he was restored to duty on 27.11.1996.Thereafter when the writ petition was dismissed as withdrawn by anorder of this court on 21.10.2005, a copy was also marked to allthe respondents. But the office file did not indicate that anyaction was taken and that it had a continued endorsement statingthat the case was pending before the Tribunal and it will take somemore time for disposal. It was only on 25.09.2007, an endorsementwas made that the matter was transferred to the High Court andfinal orders are expected. It clearly shows that in the office ofthe respondents, there are persons to help the petitioner and thatwas why even the orders dated 21.10.2005 and 16.4.2010 were notreferred to in the file.
In any event, the learned counsel for the petitionerMr.S.Ramesh contended that the petitioner did not suppress anyinformation at the time of joining duty. Therefore, at this time, he cannot be terminated from service. In this context, he referredto a judgment of this Court in S.Thangappan and others Vs. TheGovernment of Tamil Nadu rep by the Commissioner and Secretary, Rural Development and Local Administration Department, Fort St.George, Madras reported in 1986 WLR 204. In that case, the courtfound that the appointment even if it is found to be contrary torules, the disciplinary action should be taken against the officersconcerned and no termination should be made. However, the saidobservation was not laying down any universal law.
On the other hand, the Supreme Court in more or lessidentical circumstances in S.Mohan Vs. Government of Tamil Nadu andanother reported in (1998) 9 SCC 485 has held that if anycompassionate appointment is made contrary to rules, the saidappointment should be cancelled and the mere continuance for a longtime will not enure to the benefit of such employee. In paragraph4, the Supreme Court had observed as follows: "4. Learned counsel for the appellant has strenuouslyurged that the appointment of the appellant oncompassionate grounds was justified and that theappellant had not suppressed any fact at the time of https://hcservices.ecourts.gov.in/hcservices/ seeking appointment on compassionate grounds. Thequestion, however, is whether in the facts andcircumstances set out, could the appointment of theappellant have been made on compassionate grounds aftera lapse of 10 years from the date of the death of hismother. Secondly, whether the circumstances justify theappointment of the appellant on compassionategrounds. ............. Looking to all the circumstances, the Government had rightly refused to give himappointment. The fact that the appellant was continuedin service on account of the interim orders passedduring the pendency of the proceedings taken out by theappellant will not be of any help to the appellant sincehe was throughout aware that these were only interimorders which were subject to the outcome of theproceedings. We do not see any reason to set aside theorder of the Tribunal. The appeal is, therefore, dismissed. There will, however, be no order as tocosts. "
Further, it must be noted that the scheme of compassionateappointment is an exception to Articles 14 and 16 of the Constitution. If a person has applied for an appointment oncompassionate appointment, the background of his family will haveto be taken note of before appointment is made. In this context, itis necessary to refer to a judgment of the Supreme Court in Stateof Haryana v. Ankur Gupta reported in (2003) 7 SCC 704. Inparagraphs 4 to 10, the Supreme Court observed as follows:4. Learned counsel for the appellant Statesubmitted that the approach of the High Court iserroneous. When the appointment was made inviolation of the policy, and by mistake therespondent had been appointed, that does not conferany legal right upon him. In response, learnedcounsel for the respondent submitted that asrightly observed by the High Court, there was nomisrepresentation or fraud practised by therespondent in gaining employment.
The respondenthas worked for more than 4 years and in view ofwhat has been stated by this Court in Union of India v. K.P. Tiwari1, jurisdiction under Article136 of the Constitution of India, 1950 (in short“the Constitution”) should not be exercised.5. We find that the appointment, admittedly, wasnot permissible in view of the policy which cameinto force from 22-8-1996. The earlier policy waschanged in view of a decision of the High Court. The correctness of the policy decision was notunder challenge.6. As was observed in State of Haryana v. RaniDevi2 it need not be pointed out that the claim of https://hcservices.ecourts.gov.in/hcservices/ the person concerned for appointment oncompassionate ground is based on the premise thathe was dependent on the deceased employee. Strictly, this claim cannot be upheld on thetouchstone of Article 14 or 16 of the Constitutionof India. However, such claim is considered asreasonable and permissible on the basis of suddencrisis occurring in the family of such employee whohas served the State and dies while in service.
That is why it is necessary for the authorities toframe rules, regulations or to issue suchadministrative orders which can stand the test of Articles 14 and 16. Appointment on compassionateground cannot be claimed as a matter of right. Die-in-Harness Scheme cannot be made applicable to alltypes of posts irrespective of the nature ofservice rendered by the deceased employee. In RaniDevi case2 it was held that the scheme regardingappointment on compassionate ground if extended toall types of casual or ad hoc employees includingthose who worked as apprentices cannot be justifiedon constitutional grounds. In LIC of India v. AshaRamchhandra Ambekar3 it was pointed out that the High Courts and Administrative Tribunals cannotconfer benediction impelled by sympatheticconsiderations to make appointments oncompassionate grounds when the regulations framedin respect thereof do not cover and contemplatesuch appointments.
It was noted in Umesh KumarNagpal v. State of Haryana4 that as a rule, inpublic service appointments should be made strictlyon the basis of open invitation of applications andmerit. The appointment on compassionate ground isnot another source of recruitment but merely anexception to the aforesaid requirement taking intoconsideration the fact of the death of the employeewhile in service leaving his family without anymeans of livelihood. In such cases the object is toenable the family to get over sudden financialcrisis. But such appointments on compassionateground have to be made in accordance with therules, regulations or administrative instructionstaking into consideration the financial conditionof the family of the deceased.7. In Director of Education (Secondary) v.Pushpendra Kumar5 it was observed that in thematter of compassionate appointment there cannot beinsistence for a particular post.
Out of purelyhumanitarian consideration and having regard to thefact that unless some source of livelihood isprovided the family would not be able to make both https://hcservices.ecourts.gov.in/hcservices/ ends meet, provisions are made for givingappointment to one of the dependants of thedeceased who may be eligible for appointment. Carehas, however, to be taken that provision for grantof compassionate employment which is in the natureof an exception to the general provisions does notunduly interfere with the right of those otherpersons who are eligible for appointment to seekappointment against the post which would have beenavailable, but for the provision enablingappointment being made on compassionate grounds ofthe dependant of the deceased employee. As it is inthe nature of exception to the general provisions, it cannot substitute the provision to which it isan exception and thereby nullify the main provisionby taking away completely the right conferred bythe main provision.8.
These aspects have been highlighted by this Court in a recent decision in State of Manipur v.Md. Rajaodin6.9. Above being the legal position, the logic ofthe policy cannot be undermined. Coming to thequestion whether there was any fraud ormisrepresentation, we find that right from thebeginning, the officers concerned were acting in amanner contrary to the policy. When the Director of Industrial Training and Vocational Education, Haryana wrote to the Commissioner and Secretary, Industrial Training and Vocational EducationDepartment, Haryana Government, on 22-5-1997, itwas clearly indicated that the mother of therespondent was already in government service. Itwas also noted that according to the governmentinstructions only those dependants of the deceasedemployee/officer whose family income is up toRs2500 per month can be appointed. In the letteritself it is mentioned that the monthly salary ofthe respondent’s mother was Rs5880 and, therefore, there was no scope for appointing the respondent.
Having said so, it was indicated that relaxationmay be given in his case. The High Court proceededon the basis as if there was relaxation of thestipulations. No provision could be shown to uswhereby relaxation is permissible, particularlywhen the policy in this respect was modified on thebasis of and in implementation of the decision ofthe High Court. Though the learned counsel for therespondent referred to the 1970 guidelines wherethere was scope for relaxation, the same does notassist the respondent because that was operative ata point of time when the policy dated 22-8-1996 https://hcservices.ecourts.gov.in/hcservices/ notified to be in line with the High Court’sjudgment was not in operation.
Operative part
Looked at from any angle, the view of the High Court is indefensible. The judgment of the High Court is, therefore, set aside. But whileallowing the State’s appeal, it cannot be lostsight of that the respondent was in governmentservice for more than about four years. It isstated by the learned counsel for the respondentthat he has already become overaged for governmentemployment. In the peculiar circumstances, in casethe respondent applies for a job in the Governmentwithin a period of two years and is selected dehorsthe compassionate appointment scheme, the questionof his having crossed the age bar, would not standin his way and the service rendered by him shall beduly considered. The appeal is allowed subject tothe aforesaid observations. Costs made easy. 10. In a case where appointment is made suppressing informationof employment of another person in the family of the employee, thensuch a person can be terminated without even notice as held by the Supreme Court in Secretary, Andhra Pradesh Social WelfareResidential Educational Institutions Vs.
Pindiga Sridhar and othersreported in 2007 (13) SCC 352. The Supreme Court has held inparagraph 7 as follows: "7. The High Court on the basis of theerroneous view upset the well-merited judgmentof the learned Single Judge. By now, it is well-settled principle of law that principles ofnatural justice cannot be applied in astraitjacket formula. Their application dependsupon the facts and circumstances of each case. To sustain the complaint of the violation ofprinciples of natural justice one must establishthat he was prejudiced for non-observance of theprinciples of natural justice. In the presentcase, the fact on which the appellant terminatedthe services of the respondent appointed oncompassionate ground was admitted by therespondent himself that when he applied for thepost on compassionate ground by his applicationdated 6-5-1996, his mother was in service. Soalso when he secured the appointment by an orderdated 22-11-2002 his wife was in service since3-8-1997 as Extension Officer in RuralDevelopment and later on promoted as MandalParishad Development Officer at the time when hewas appointed on compassionate ground.
Thesefacts clearly disclose that the appointment oncompassionate ground was secured by playing https://hcservices.ecourts.gov.in/hcservices/ fraud. Fraud cloaks everything. In such admittedfacts, there was no necessity of issuing show-cause notice to him. The view of the High Courtthat termination suffers from the non-observanceof the principles of natural justice is, therefore, clearly erroneous. In our view, inthe given facts of this case, no prejudicewhatsoever has been caused to the respondent. The respondent could not have improved his caseeven if a show-cause notice was issued to him. "
In the present case, technically it was argued that thepetitioner's mother was not in employment at the time ofappointment of the petitioner. But the fact that the petitioner'smother had continued in employment about nine years after the deathof petitioner's father was not taken note of. If that was broughtto the notice of the appointing authority, certainly no appointmentwould have been granted. But, in this case, such an information wasbrought to the Government only when approval for his appointmentwas sought for. The competent authority is only the StateGovernment. Therefore, the State Government had correctly refusedto ratify the appointment. The petitioner had continued in serviceunder the stay order, which stay order was also not in force from21.10.2005 to 16.4.2010. This fact was not brought to the notice ofthe higher-ups by the department officials and that the petitionermust have continued merrily without the knowledge of this court. Inany event, as held in S.Mohan's case (cited supra), suchcontinuance will not help the case of the petitioner.
In the light of the above, the writ petition will standdismissed. However, there will be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar.vvkTo1.The Secretary to Government, The State of Tamilnadu, Survey & Land Records Department, Secretariat, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/
2. The Commissioner and Director of Land Survey and Land Settlement, Ezhilagam, Chepauk, Chennai-5.3.The Assistant Director, Land Survey & Records, Tiruvannamalai Sambuvarayar Dist.1 cc to Government Pleader, Sr. 327731 cc to M/s. s. Ramesh, Advocate, Sr. 32846W.P.NO.10205 of 2010SAI (CO)kk 10/6
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: The appeal is allowed subject tothe aforesaid observations
Which statutory provisions did this judgment involve?
Constitution of India — art. 136.
Which court decided this case, and when?
Madras High Court, on 07 Jun 2011. The bench was K CHANDRU.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.