Writ Appeal No. 502 of 2008 · Madras High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30-07-2009CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE R. SUBBIAHWRIT APPEAL NO.502 OF 2008andM.P.NO.1 OF 20091.The Director of Town PanchayatOffice at KuralagamChennai 600 108.2.The Assistant Director of TownPanchayats, Salem Zone, Salem 1... AppellantsVs.S. Thirumalar SelviD/o. Late S.R. Sundar Rajan.. RespondentAppeal filed under Section 15 of the Letters Patent against theorder passed by the learned single Judge in W.P.No.892 of 2008, dated6.2.2008. Filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of certiorarified mandamus tocall for the records on the file of the second respondent inconnection with his proceedings in Oo.Mu.No.3480/2006/P dated3.11.2006 and Na.Ka.No.16/2007/B dated 30.11.2007; to quash the sameand to consequently direct the respondent to appoint the petitioneron compassionate grounds on considering the appeal dated 5.10.2007.For Appellants: Mr.S. Nagnathan Govt. AdvocateFor Respondent: Mrs.T. Aananthi- - -J U D G M E N TP.K. MISRA, JThe present appeal is filed by the Director of Panchayatsand the Assistant Director of Panchayats, Kuralagam, against theorder of the learned single Judge in W.P.No.892 of 2008, dated https://hcservices.ecourts.gov.in/hcservices/

6.2.2008, whereunder the learned single Judge, while quashing theorders passed by the present appellants dated 3.11.2006 and30.11.2007, directed them to appoint the present Respondent oncompassionate grounds.

The facts were as follows :-The father of the petitioner, who was initially employed as BillCollector and subsequently promoted as Junior Assistant, died inharness on 30.11.1991. The respondent after attaining majority filedan application on 20.5.2002 seeking appointment on compassionategrounds and it is stated that such application was registered asSl.No.16 in the register maintained for compassionate appointments. By communications dated 21.6.2002, 19.9.2002 and 27.8.2003, therespondent was informed that since there was a ban on appointment in Government service, the application for appointment on compassionategrounds would be considered in accordance with the Rules after theban was lifted. Subsequently, however, by the impugned orders dated3.11.2006 and 30.11.2007 the respondent (writ petitioner) wasinformed that since she had already got married, her claim forcompassionate appointment cannot be considered. Such communicationswere challenged in W.P.No.892 of 2008.

Learned single Judge by placing reliance upon a DivisionBench decision of this Court reported in 2006(2) LW 324 (U. ARULMOZHIv. THE DIRECTOR OF SCHOOL EDUCATION & OTHERS), wherein it was heldthat the subsequent marriage of the applicant will not be a bar forappointment on compassionate grounds, allowed the writ petition andissued a direction to the present appellants to appoint the presentrespondent. This direction is in question in the present appeal.

Learned counsel for the appellants has submitted that asa matter of fact the death had occurred in the year 1991 and the writpetition was filed in the year 2008 for quashing the communicationdated 3.11.2006 and the subsequent communication dated 30.11.2007,rejecting the claim for compassionate appointment. It is submittedthat the main intention in any scheme for compassionate appointmentis to enable the members of the bereaved family, whose breadwinnerhas died in harness, to tide over the immediate financial stringencyand issuing a direction regarding appointment on compassionategrounds about 17 years after the death of the quondam employee cannotbe sustained in law. Learned counsel for the appellants has furthersubmitted that the ratio of the earlier Division Bench decision wasnot at all applicable.

Learned counsel for the respondent has submitted that atthe time when the father of the present respondent expired, she was aminor girl and soon after attaining majority she made an application, which was kept pending, and thereafter such application was rejectedonly on the ground that she had married in the meantime. It istherefore submitted by her that the ratio of the earlier Division https://hcservices.ecourts.gov.in/hcservices/ Bench decision was squarely applicable, which was followed by thelearned single Judge and, therefore, there should not be anyinterference in this appeal.

Before considering other aspects, it is first necessaryto consider regarding the applicability of the earlier Division Benchdecision. In the said reported decision, the death of the father hadtaken place on 31.7.1990 and the unmarried daughter had applied forappointment on compassionate grounds on 30.6.1994 and in fact she wasgiven appointment on 15.9.1998. However, subsequently theappointment was terminated on the ground that such applicant afterseeking appointment on compassionate grounds had got married. In theabove context, it was observed :-"8. There is no dispute that the Government has madeprovision for appointment on compassionate ground, obviously with a view to enable the family members of thedeceased employee to tide over immediately the financialstringency on account of the death of the breadwinner inthe family. It is of course true that as per theG.O.Ms.No.73, Employment Services dated 26.10.1983, only anunmarried daughter is eligible and not a married daughter. However, there is no requirement in the G.O. that at thetime of actual employment such unmarried daughter shouldcontinue to be unmarried nor there is any requirement thatafter an unmarried daughter gets employment on thecompassionate ground, she cannot marry in future. There isno dispute that the present petitioner was eligible to makethe application and she make an application as an unmarrieddaughter. The appropriate authority took about 3 to 4years to finalise the matter. Merely because the unmarrieddaughter got married in the meantime and that too with aspecific understanding that her husband would have noobjection to her maintaining the members of the family ofher father, it cannot be said that such person had gotemployment by suppressing any material fact. "

Termination of employment, which was already made, onthe ground that by the time the employment was given the daughter hadalready married, was the core issue. In the above context it washeld that merely because the unmarried daughter, who was eligible tomake the application, had got married by the time the application wasconsidered and thereafter got employment, it cannot be said that suchperson had got employment by suppressing any material fact. Thedecision no where lays down that even if the death had taken placeeons ago, a person would be entitled to seek for appointment oncompassionate grounds. As a matter of fact, in the said decision itwas also highlighted that appointment on compassionate grounds isgiven with a view to enable the family member to tide overimmediately the financial stringency. https://hcservices.ecourts.gov.in/hcservices/

In the present case, the basic fact that the death hadtaken place in the year 1991 and a direction was sought to be issuedseeking appointment on compassionate grounds after about 17 years, has been completely lost sight of by the learned single Judge. Inthe above context, it is necessary to highlight several decisions ofthe Supreme Court on the scope and aspect relating to appointment oncompassionate grounds.

In (1989) 4 SCC 468 (SMT. SUSHMA GOSAIN & OTHERS v.UNION OF INDIA AND OTHERS), the Supreme Court had observed :- "9. . . . in all claims for appointment oncompassionate grounds, there should not be any delay inappointment. The purpose of providing appointment oncompassionate ground is to mitigate the hardship due todeath of the bread earner in the family. Such appointmentshould, therefore, be provided immediately to redeem thefamily in distress. "

In (1994) 2 SCC 718 (LIFE INSURANCE CORPORATION OFINDIA v. ASHRA RAMACHHANDRA AMBEKAR), it was observed :-"10. . . . The High Courts and the AdministrativeTribunals cannot confer benediction impelled by sympatheticconsideration.. . .17. . . . Thus, apart from the direction as toappointment on compassionate grounds being againststatutory provisions, such direction does not take note ofthis fact. Whatever it may be, the Court should not havedirected the appointment on compassionate grounds. Thejurisdiction under mandamus cannot be exercised in thatfashion. It should have merely directed consideration ofthe claim of the second respondent. . . ."

Matters which should be considered while giving up anappointment in public service on compassionate ground was againconsidered in (1994) 4 SCC 138 (UMESH KUMAR NAGPAL v. STATE OFHARYANA AND OTHERS), wherein it was observed as follows :-"2. The question relates to the considerations whichshould guide while giving appointment in public services oncompassionate ground. It appears that there has been a gooddeal of obfuscation on the issue. As a rule, appointmentsin the public services should be made strictly on the basisof open invitation of applications and merit. No other modeof appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are atliberty to follow any other procedure or relax thequalifications laid down by the rules for the post. https://hcservices.ecourts.gov.in/hcservices/ However, to this general rule which is to be followedstrictly in every case, there are some exceptions carvedout in the interests of justice and to meet certaincontingencies.

4. It is for these reasons that we have not been in aposition to appreciate judgments of some of the High Courtswhich have justified and even directed compassionateemployment either as a matter of course or in posts aboveClasses III and IV. We are also dismayed to find that thedecision of this Court in Sushma Gosain v. Union of Indiahas been misinterpreted to the point of distortion. Thedecision does not justify compassionate employment eitheras a matter of course or in employment in posts aboveClasses III and IV. . . . ...6. For these very reasons, the compassionateemployment cannot be granted after a lapse of a reasonableperiod which must be specified in the rules. Theconsideration for such employment is not a vested rightwhich can be exercised at any time in future. The objectbeing to enable the family to get over the financial crisiswhich it faces at the time of the death of the solebreadwinner, the compassionate employment cannot be claimedand offered whatever the lapse of time and after the crisisis over. "

In (1994) 4 SCC 448 (STATE OF HARYANA v. NARESH KUMARBALI), it has been stressed that even where the AdministrativeTribunal or the High Court comes to a conclusion that the petitionerbefore it has made out a case of appointment on compassionategrounds, it can only direct the authorities concerned to consider"the claim of the applicant in accordance with the relevant law orrules, if any".

In (2007) 4 SCC 778 (STATE BANK OF INDIA AND ANOTHER v.SOMVIR SINGH), after referring Umesh Kumar Nagpal's case and thedecision reported in (2006) 7 SCC 350 (UNION BANK OF INDIA AND OTHERSv. M.T. LATHEESH), it was observed:-"10. There is no dispute whatsoever that theappellant Bank is required to consider the request forcompassionate appointment only in accordance with thescheme framed by it and no discretion as such is left withany of the authorities to make compassionate appointmentdehors the scheme. In our considered opinion the claim forcompassionate appointment and the right, if any, istraceable only to the scheme, executive instructions, rules, etc. framed by the employer in the matter ofproviding employment on compassionate grounds. There is noright of whatsoever nature to claim compassionateappointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructionsas the case may be. " https://hcservices.ecourts.gov.in/hcservices/

In (2003) 7 SCC 704 (STATE OF HARYANA v. ANKUR GUPTA),it was observed :-"6. As was observed in State of Haryana v. Rani Deviit need not be pointed out that the claim of the personconcerned for appointment on compassionate ground is basedon the premise that he was dependent on the deceasedemployee. Strictly, this claim cannot be upheld on thetouchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable andpermissible on the basis of sudden crisis occurring in thefamily of such employee who has served the State and dieswhile in service. That is why it is necessary for theauthorities to frame rules, regulations or to issue suchadministrative orders which can stand the test of Articles14 and 16. Appointment on compassionate ground cannot beclaimed as a matter of right. Die-in-Harness Scheme cannotbe made applicable to all types of posts irrespective ofthe nature of service rendered by the deceased employee. InRani Devi case it was held that the scheme regardingappointment on compassionate ground if extended to alltypes of casual or ad hoc employees including those whoworked as apprentices cannot be justified on constitutionalgrounds. In LIC of India v. Asha Ramchhandra Ambekar it waspointed out that the High Courts and AdministrativeTribunals cannot confer benediction impelled by sympatheticconsiderations to make appointments on compassionategrounds when the regulations framed in respect thereof donot cover and contemplate such appointments. It was notedin Umesh Kumar Nagpal v. State of Haryana that as a rule, in public service appointments should be made strictly onthe basis of open invitation of applications and merit. Theappointment on compassionate ground is not another sourceof recruitment but merely an exception to the aforesaidrequirement taking into consideration the fact of the deathof the employee while in service leaving his family withoutany means of livelihood. In such cases the object is toenable the family to get over sudden financial crisis. Butsuch appointments on compassionate ground have to be madein accordance with the rules, regulations or administrativeinstructions taking into consideration the financialcondition of the family of the deceased. "

In AIR 2006 SC 2743 : (2006) 5 SCC 766 (STATE OF JAMMU& KASHMIR v. SAJAD AHMED MIR), it was observed:-"17. . . .When the Division Bench decided the matter, more than fifteen years had passed from the date of thedeath of the father of the applicant. The said fact wasindeed a relevant and material fact which went to show https://hcservices.ecourts.gov.in/hcservices/ that the family survived in spite of the death of theemployee. . . ."

The observation made in Umesh Kumar Nagpal's case wasagain followed in (2008) 3 SCC 462 (A.P.SRTC v. SARVARUNNISA BEGUM).

In a very recent unreported decision of a DivisionBench of this Court in W.A.No.1221 of 2008 (DIRECTOR OF SCHOOLEDUCATION, CHENNAI & 2 OTHERS v. FANNY SUSIL KUMARI), disposed of on11.6.2009, almost a similar question had cropped up, wherein it wasobserved as follows :-"2. The father of the respondent was working as aHeadmaster in a school situated in Chengam Taluk in Tiruvannamalai District. He died on 01.06.1991. Itappears that the mother of the respondent applied for ajob, but she did not get it. The respondent herselfapplied sometime in the year 2001, which application waskept pending. In the meantime, the respondent got marriedin November, 2004. Her application was rejected on theground of her marriage. Being aggrieved by the said order, the respondent filed the writ petition, which came to beallowed. It was pointed out before the learned singleJudge that the respondent got married in November 2004 andshe was no longer supporting the family, which she ought tobe supporting.

We hardly see any difference in the factual backgroundof the above case and the present case. Judged in the light of theabove decisions of the Supreme Court as well as the Division Benchdecision of this Court, we are afraid the order passed by the learnedsingle Judge, which apparently based more on sympathy and less on thescheme for appointment on compassionate grounds, cannot be sustained.

Learned counsel appearing for the respondent hassubmitted that at the time when the father of the respondent expired, she was a minor and soon after attaining majority, she had made theapplication and, therefore, long lapse of time should not beconsidered as a bar against such compassionate appointment.

We do not think such a contention can be countenanced. There is no law in the land which ensures appointment of a progenyof a deceased employee as no such appointment can be claimed as anhereditary right. If there is any scheme relating to compassionateappointment, an eligible person can make application to be consideredin accordance with such scheme. It is not the case of the presentrespondent that as per the scheme available, a minor has a right tomake application for appointment on compassionate grounds after sheattains majority irrespective of the number of years elapsed in themeantime.

It is well settled that an appointment on compassionategrounds is an exception to the ordinary mode of recruitment andcannot be claimed as a matter of right bereft of the scheme or therule applicable to the particular organization. It has to beremembered that as between an employee dying in harness leavingbehind some dependent members and a man on the street without anyapparent means of livelihood, the members of the bereaved family ofthe deceased employee are more fortunate in the sense that at leastsome benefits in the shape of ex-gratia compensation or pension tothe widow or members of the bereaved family are available; whereasnothing is available to the members of the bereaved family where thedecease happens to be a jobless person. It is always consideredthat appointment on compassionate grounds on account of death of the https://hcservices.ecourts.gov.in/hcservices/ employee is an exception to the normal rule and being an exception itis required to be enforced and interpreted strictly.

Learned counsel for the respondent has placed relianceupon a decision of the Supreme Court reported in (1995) 6 SCC 476(UNION OF INDIA AND OTHERS v. BHAGWAN SINGH) in support of thecontention that minor child of a deceased employee is entitled tofile an application for appointment on compassionate grounds afterattaining majority.

We have carefully perused the aforesaid decision. Wedo not think that the aforesaid decision anywhere lays down that aclaim for compassionate appointment can be made even after lapse ofmore than a decade after the death of the concerned employee merelybecause the child was minor at the time of such death. On the otherhand, the said decision clearly lays down that the claim forcompassionate appointment can be made only in accordance with therules or the scheme and not de hors the scheme. As a matter of fact, in the above decision, the direction issued by the AdministrativeTribunal regarding giving appointment on compassionate grounds wasset aside in appeal on account of the fact that the petition seekingfor appointment on compassionate grounds has been filed before theconcerned Administrative Tribunal after fairly long delay.

For the aforesaid reasons, we allow the appeal anddismiss the writ petition. No costs. Consequently, the connectedmiscellaneous petition is closed. DpkSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Director of Town PanchayatOffice at KuralagamChennai 600 108.2.The Assistant Director of TownPanchayats, Salem Zone, Salem 1.+ 1 cc to Mr. G. Sankaran, Advocate SR No.33597BVN(CO)SR/25.8.2009JUDGMENT IN WA.502/2008