High Court · 2011

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.08.2011CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.6195 of 2009andM.P.No.2 of 2009E.Venugopal.. Petitioner Vs.1.The State of Tamil Nadu rep by its Agricultural Production Commissioner and Secretary to Government, Agricultural (A.A.8) Department, Secretariat, Chennai-600 009.2.The Director of Agricultural Marketing and Agri-Business, Chennai-600 032.3.The Secretary, Cuddalore Market Committee, Cuddalore... Respondents This writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records relating to theorder in proceeding No.A1/7360/96 dated 04.02.2007 of the SecretaryCuddalore Market committee, Cuddalore the 3rd respondent hereinand the order in Letter No.44013/AA8/2006 dated 18-10-2007 of theAgricultural Production Commissioner and Secretary to Government,Secretariat, Chennai 600009 the first respondent herein and quashthe same and to direct the first Respondent to consider the claimof the petitioner in a proper perspective and sympathetically inview of his continuance in office for over 10 years andappiont him as Office Assistant on compassionate ground withall attendant and consequential benefits.For Petitioner : Mr.R.MuthukannuFor Respondents : MrV.Subbiah, Spl.G.P. For RR1 and 2 Mr.G.Sankaran for R-3ORDERThe petitioner has filed the present writ petition seekingto challenge an order dated 4.2.2007 passed by the third respondentand the order of the first respondent, dated 18.10.2007 and alsoseeks for a direction to consider his claim in a proper perspectiveand sympathetically in view of his continuance in the office for https://hcservices.ecourts.gov.in/hcservices/ over 10 years and appoint him as an Office Assistant oncompassionate ground with all attendant and consequential benefits.2.By the impugned order, dated 4.2.2007, the thirdrespondent had terminated the services of the petitioner from thepost of Office Assistant in the Marketing Committee at CuddaloreOld Town with effect from 1.1.2007. Thereafter, a proposal sent forre-appointment of the petitioner as an Office Assistant consequenton the death of his father S.Ethirajulu on 8.1.1986 was examined bythe Government. The Government by a letter dated 18.10.2007 hadstated that the petitioner's continuance for over 10 years on thebasis of the Court's order cannot be a ground for considering hisre-employment and that the earlier order passed by the StateGovernment on 8.7.1996 will hold good. 3.In the writ petition, notice of motion was ordered on13.4.2009. On notice from this court, the third respondent hasfiled a counter affidavit, dated Nil (January, 2010) together withtyped set out documents supporting the stand taken in the counter. 4.It is seen from the records that the petitioner's fatherS.Ethirajulu working as an Office Assistant in the third respondentMarketing Committee died on 8.1.1986. Thereafter, after sevenyears, the petitioner made a representation seeking for employmentassistance on compassionate grounds. The petitioner was informedthat when his mother made a request for compassionate appointmentfor him, the same was refused on the ground that his mother was inemployment. Thereafter, after he got married, he did not get anyassistance from his mother. Therefore, he must be given anemployment assistance. Based upon the same, the third respondenthad recommended the case of the petitioner. It was also stated inthe said recommendation that the petitioner's mother was working asa Secondary Grade Teacher in the Cuddalore Municipal School.Thereafter, the second respondent had requested the firstrespondent whether the petitioner can be given appointment as aJunior Assistant. When there was no reply, the second respondenthad informed the third respondent that since the petitioner hadmodified his request to become an Office Assistant and furthersince the petitioner was struggling for existence, the thirdrespondent being the appointing Authority, after obtaining writtenassurance that he will not claim for the post of Junior Assistant,he can be appointed for the post of the Office Assistant. 5.Once again the second respondent sent a ratification forpermitting the third respondent to appoint the petitioner as anOffice Assistant with the first respondent. In the meanwhile, thethird respondent had appointed the petitioner by proceedings, dated27.4.1995 for the post of Office Assistant and probation wasprescribed. Bur, however, the first respondent by a communication,dated 8.7.1996 had refused to ratify the appointment of thepetitioner and stated that it was irregular and contrary to thescheme of compassionate appointment. Therefore, the thirdrespondent was directed to terminate the service of the petitioner.Pursuant to the direction, by an order dated 31.7.1996, the https://hcservices.ecourts.gov.in/hcservices/ petitioner's service was terminated. The petitioner, thereafter,filed O.A.No.4112 of 1996 before the Tribunal challenging the orderof termination. The Tribunal had granted an ex parte interim stayon 6.8.1996 and the petitioner continued to work as an OfficeAssistant on the strength of the interim order. On account ofabolition of the Tribunal, the said OA was transferred to thiscourt and renumbered as W.P.No.19890 of 2006 and the writ petitioncame to be disposed of by an order dated 20.11.2006. Though thiscourt held that the appointment of the petitioner was irregular andit was not intended to help the case of the persons like petitionerand also a finding was given that his mother was employed evenafter the death of his father and hence the question of appointmentof the petitioner on compassionate appointment will not arise, butafter stating so, in paragraph 5, the Court had observed asfollows:"5.Mr.R.Muthukannu learned counsel appearing for thepetitioner produced a copy of the Government Letterbearing No.26906/AM.I/95.6 dated 08.07.1996, wherebythe Government instructed the second respondent toterminate the service of the petitioner, but at thesame time directed him to send a proposal afresh tothe Government. In view of the fact that the matterwas pending for the past ten years before theTribunal and also in view of the fact that thepetitioner had the benefit of stay and continued inservice, it is not known whether the secondrespondent has sent any proposal afresh in accordancewith the contents of the said letter of theGovernment dated 08.07.1996. In view of the fact thatthe petitioner is in service for the past 11 yearspursuant to the interim order of the Tribunal andalso in view of the fact that the Government directedthe second respondent to send a proposal, even whiledismissing the writ petition, the second respondentis permitted to send the proposal to the firstrespondent in accordance with the aforesaid letter ofthe Government and the first respondent-Government isdirected to consider the case of the petitionersympathetically, in view of his continuance in officefor the past ten years. With the above direction, thewrit petition is disposed of."6.In the meanwhile, the petitioner's service was terminatedby an order dated 4.2.2007 subsequent to the order passed by thisCourt. A representation, dated 8.2.2007 was forwarded by the secondrespondent as directed by this Court. On receipt of the same, theState Government by an order dated 18.10.2007 had rejected the saidrequest. Therefore, the only question is that the petitioner'scontinuance in service for 10 years can be a ground for grant ofemployment assistance on compassionate ground? https://hcservices.ecourts.gov.in/hcservices/

7.This Court has already held that the petitioner is nothaving any right for grant of compassionate appointment. In thecounter affidavit, the third respondent had stated that even afterthe petitioner lost his case, in order to comply with the courtorder, a proposal was sent to the Government and the Government hadrefused to re-consider its earlier order stating that merelybecause the petitioner had worked for 10 years, that cannot be aground.8.Notwithstanding the same, Mr.R.Muthukannu, learnedcounsel for the petitioner referred to the following judgments ofthis Court.(i)W.Ruben Franklin Vs. Government of TamilNadu and others reported in (2008) 5 MLJ 1322.(ii)V.Balakrishnan Vs. The Joint Director ofAgriculture, Tiruvannamalai and others in W.A.No.1559of 2009, dated 03.11.2009.9.But, the Supreme Court in an identical circumstance inSecretary, Andhra Pradesh Social Welfare Residential EducationalInstitutions v. Pindiga Sridhar reported in (2007) 13 SCC 352 inparagraph 7 had observed as follows:"7.The High Court on the basis of the erroneousview upset the well-merited judgment of the learnedSingle Judge. By now, it is well-settled principle oflaw that the principles of natural justice cannot beapplied in a straitjacket formula. Their applicationdepends upon the facts and circumstances of eachcase. To sustain the complaint of the violation ofprinciples of natural justice one must establish thathe was prejudiced for non-observance of theprinciples of natural justice. In the present case,the fact on which the appellant terminated theservices of the respondent appointed oncompassionate ground was admitted by the respondenthimself that when he applied for the post oncompassionate ground by his application dated 6-5-1996, his mother was in service. So also when hesecured the appointment by an order dated 22-11-2002his wife was in service since 3-8-1997 as ExtensionOfficer in Rural Development and later on promoted asMandal Parishad Development Officer at the time whenhe was appointed on compassionate ground. These factsclearly disclose that the appointment oncompassionate ground was secured by playing fraud.Fraud cloaks everything. In such admitted facts,there was no necessity of issuing show-cause noticeto him. The view of the High Court that terminationsuffers from the non-observance of the principles ofnatural justice is, therefore, clearly erroneous. In https://hcservices.ecourts.gov.in/hcservices/ our view, in the given facts of this case, noprejudice whatsoever has been caused to therespondent. The respondent could not have improvedhis case even if a show-cause notice was issued tohim."10.Merely because the petitioner had worked for 10 yearscannot be a ground to order employment on ground of sympathy. TheSupreme Court in State of West Bengal v. Banibrata Ghosh reportedin (2009) 3 SCC 250 had observed in paragraphs 31 and 32 asfollows:"31.Shri Ghosh, learned Senior Counsel, appearingfor the respondents, at this stage, says that weshould take a compassionate view of the matter, sinceas a result of this judgment, the respondent would bethrown in a state of unemployment. We are afraid, wecannot show any such misplaced sympathy, which wasshown by the Division Bench. We are told at the Barthat this Court had issued directions to make thepayment of salaries and some payments have been madeto the respondent. We direct that such payments shallnot be recovered from the respondent.32.Considering that the writ petition remainedpending for 10 years and thereby, the respondentmight now have become barred by age for freshemployment, we recommend that the Government mayconsider the condonation of the age bar, if any, onthe part of the respondent. We accordingly set asidethe judgment of the Division Bench and restore thatof the learned Single Judge and allow the appeal butwithout any order as to costs."11.Further, the Supreme Court vide its judgment in BhawaniPrasad Sonkar Vs. Union of India and others reported in (2011) 4SCC 209 had observed in paragraphs 15 and 20 as follows:"15.Now, it is well settled that compassionateemployment is given solely on humanitarian groundswith the sole object to provide immediate relief tothe employee's family to tide over the suddenfinancial crisis and cannot be claimed as a matter ofright. Appointment based solely on descent isinimical to our Constitutional scheme, and ordinarilypublic employment must be strictly on thebasis of open invitation of applications andcomparative merit, in consonance withArticles 14 and 16 of the Constitution of India.No other mode of appointment is permissible.Nevertheless, the concept of compassionateappointment has been recognized as an exceptionto the general rule, carved out in the interest ofjustice, in certain exigencies, by way of https://hcservices.ecourts.gov.in/hcservices/ a policy of an employer, which partakes thecharacter of the service rules. That being so, itneeds little emphasis that the scheme orthe policy, as the case may be, isbinding both on the employer and the employee. Beingan exception, the scheme has to be strictly construedand confined only to the purpose it seeks toachieve. 20.Thus, while considering a claim foremployment on compassionate ground, thefollowing factors have to be borne in mind: (i)Compassionate employment cannot bemade in the absence of rules orregulations issued by the Government or apublic authority. The request is to be consideredstrictly in accordance with the governingscheme, and no discretion as such isleft with any authority to makecompassionate appointment dehors the scheme. (ii)An application for compassionateemployment must be preferred without unduedelay and has to be considered within areasonable period of time. (iii)An appointment on compassionate ground isto meet the sudden crisis occurring in the family onaccount of the death or medical invalidation of thebread winner while in service. Therefore,compassionate employment cannot be granted as amatter of course by way of largesseirrespective of the financial condition ofthe deceased/incapacitated employee's family atthe time of his death or incapacity, asthe case may be. (iv)Compassionate employment ispermissible only to one of the dependants ofthe deceased/incapacitated employee, viz.parents, spouse, son or daughter and not to allrelatives, and such appointments should be only tothe lowest category that is Class III and IVposts.12.Again, the Supreme Court in Civil Appeal No.2206 of2006, dated 05.04.2011 in Local Administration Department andanother Vs. M.Selvanayagam @ Kumaravelu in paragraphs 7 to 9 hadobserved as follows:"7.We think that the explanation givenfor the wife of the deceased not askingfor employment is an after-thought andcompletely unacceptable. A person suffering https://hcservices.ecourts.gov.in/hcservices/ from anaemia and low blood pressure willalways greatly prefer the security andcertainty of a regular job in the municipalitywhich would be far more lucrative andfar less taxing than doing menial workfrom house to house in an unorganised way.But, apart from this, there is a far morebasic flaw in the view taken by theDivision Bench in that it is completelydivorced from the object and purpose ofthe scheme of compassionate appointments. Ithas been said a number of times earlier but itneeds to be recalled here that under thescheme of compassionate appointment, in caseof an employee dying in harness one ofhis eligible dependents is given a jobwith the sole objective to provideimmediate succour to the family which maysuddenly find itself in dire straits as a result ofthe death of the bread winner. An appointmentmade many years after the death of theemployee or without due consideration of thefinancial resources available to his/herdependents and the financial deprivation caused to thedependents as a result of his death, simply becausethe claimant happened to be one of thedependents of the deceased employee wouldbe directly in conflict with Articles 14 &16 of the Constitution and hence, quitebad and illegal. In dealing with cases ofcompassionate appointment, it is imperative to keepthis vital aspect in mind.8.Ideally, the appointment on compassionate basisshould be made without any loss of time but havingregard to the delays in the administrativeprocess and several other relevant factorssuch as the number of already pendingclaims under the scheme and availability ofvacancies etc. normally the appointment maycome after several months or even after twoto three years. It is not our intent, nor it ispossible to lay down a rigid time limitwithin which appointment on compassionategrounds must be made but what needs tobe emphasised is that such an appointment musthave some bearing on the object of the scheme. 9. In this case the respondent wasonly 11 years old at the time of thedeath of his father. The first applicationfor his appointment was made on July 2,1993, even while he was a minor. Anotherapplication was made on his behalf on https://hcservices.ecourts.gov.in/hcservices/ attaining majority after 7 years and 6 months of hisfather's death. In such a case, theappointment cannot be said to sub-serve thebasic object and purpose of the scheme. Itwould rather appear that on attaining majorityhe staked his claim on the basis that his father wasan employee of the Municipality and he had diedwhile in service. In the facts of thecase, the municipal authorities were clearlyright in holding that with whatever difficulty, thefamily of Meenakshisundaram had been able totide over the first impact of his death. That beingthe position, the case of the respondentdid not come under the scheme of compassionateappointments."13.Though the counsel for the petitioner referred to ajudgment of the division bench in W.A.No.1559 of 2009, the divisionbench did not go into the latest judgment of the Supreme Court andin paragraph 6 of the judgment, it was observed as follows:"6....We quite see the force in the submission of thelearned Government Pleader. Compassionate appointmentis not meant for persons who do not in fact face thedifficulty. It is meant to tide over the immediatedifficulty of the family. For a moment, we do notapprove the manner in which he has obtained theemployment. At the same time, it is also to be seenthat in the instant case nearly after four years, theState Government has moved to cancel the appointment.Nothing is placed on record as to what action wastaken against the officers, who are responsible forthe disputed appointment and delayed action on thepart of the Government. Almost similar facts werethere in the two matters which have been referredherein in the sense that the persons were sought tobe removed after passing of good number of years.Besides, by now, nearly 15 years have gone since thetime the appellant has been initially appointed, and,therefore, we do not think that it will be fair todisturb his employment."14.But, however in the present case, the first round oflitigation has been negatived by this court vide its judgment inW.P.No.19890 of 2006, dated 20.11.2006. Thereafter, afterreconsidering the case, the Government had negatived the same andthat the petitioner is not in service after the order passed bythis court. Therefore, the reliance placed upon the judgment of thedivision bench has no application to the case on hand. https://hcservices.ecourts.gov.in/hcservices/

15.In the light of the above, the writ petition will standdismissed. No costs. Consequently connected miscellaneous petitionstands closed.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarvvkTo1.The Agricultural Production Commissioner and Secretary to Government, The State of Tamil Nadu Agricultural (A.A.8) Department, Secretariat, Chennai-600 009.2.The Director of Agricultural Marketing and Agri-Business, Chennai-600 032.3.The Secretary, Cuddalore Market Committee, Cuddalore.+ 1 cc to Mr.G. Sankaran, SR.51897+ 1 cc to Mr.R. Muthukannu, SR.51429+ 1 cc to Government Pleader SR.51739 W.P.NO.6195 of 2009SJ(CO)Eu 30.8.11