Judgment · High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.4.2009CORAM:THE HON’BLE MR. JUSTICE K.CHANDRUW.P.No.30878 of 2006(O.A.No.9050 of 1997)R.Rajakrishna.. PetitionerVs.

The State of Tamil Nadurep. By its Secretary to Government, Labour and Employment Department, Fort ST.George, Chennai-600 009.

The State of Tamil Nadurep. By its Secretary to Government, School EducationDepartment, Fort St.George, Chennai-600 009.

The Director of School Education,D.P.I.Campus, Chennai-600 006... RespondentsPrayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of Certiorarified Mandamus to call for the recordsrelating to the 3re respondent in SE.Mu.O.Mu.82916/J.3/97 dated8.7.97 and that of the 1st respondent in Letter No.22247/N.I/82-4dated 23.11.82 and quash the same in so far as the petitioner isconcerned and consequently direct the respondents to provide thepetitioner with suitable employment in any of the GovernmentDepartment. For Petitioner :: Mr.M.Sriram For Respondent :: Mr.P.Gurunathan, GA https://hcservices.ecourts.gov.in/hcservices/

O R D E R The petitioner is the son of one Rajavel, who was working as HeadMaster of A.Ramalingapuram Panchayat Union Middle Schoolbelonging to Srivilliputhur block. He got himself medicallydischarged on 13.8.1996. At that time, the petitioner's father was53 years old. The petitioner on the basis of the medicaldisqualification of his father applied for compassionate appointment.2. According to the petitioner such of those of the employees, who got medical invalidated can be give compassionate appointment interms of G.O.Ms.1025 Labour and Employment dated 22.11.1996. Thepetitioners recommendation was rejected by the third respondent, Director by communication dated 08.07.1997. It is stated in the saidcommunication that by the Government letter dated 23.11.1982, thescheme for appointment will apply to those persons who are medicallyinvalid before completion of 50 years of age. Since the petitioner'sfather was retired for medical invalidation at the age of 53, thegrievance of the petitioner cannot be considered. This order waschallenged before the Tamil Nadu Administrative Tribunal inO.A.No.9050 of 1997. 3. In view of the abolition of the Tribunal, the matter stoodtransferred to this Court and was re-numbered as W.P.No.30878 of2006.

Learned counsel for the petitioner submitted that a letter ofthe Government dated 23.11.1982 is in the nature of the executiveorder that cannot deprive the petitioner getting benefit in terms ofthe Government Order issued by the Government. Though the learnedcounsel attempted to state that the scheme of compassionateappointment available in the State Government services is statutory, there is no reference to any statutory rules under Article 309 of the Constitution of India. On the contrary, the entire scheme ofcompassionate appointment is based upon the set of Government guidelines and letters issued from time to time. Therefore, the argumentthat by an executive instruction the scheme has been curtailed, cannot be accepted. It must be stated that the Supreme Court hastime and again emphasized that the scheme of compassionateappointment by offering employment to legal heir of Governmentservants is an exception to Article 16 of the Constitution of Indiaand the scheme will have to be construed strictly. In the absence ofany scheme, no person has got right to demand compassionateappointment dehors existing rules. https://hcservices.ecourts.gov.in/hcservices/

Learned counsel placed reliance upon the Judgment of the Supreme Court in FOOD CORPORATION OF INDIA AND ANOTHER VS. RAMKESHYADAV AND ANOTHER reported in (2007) 9 SCC 531 in support of hisargument. In that case, the fact situation which arose before the Supreme Court was, there was a conditional invalidation of the Government servant with a request for the compassionate appointmentto the ward of the said servant and therefore, the Food Corporationof India having allowed to retire, the corresponding application tooffer employment to the son of the employee was not granted. Therefore, the Supreme Court in the fact situation and also thescheme prevailing in Food Corporation of India granted a relief inthat that case. This can be seen in paragraph 17 of the Judgment asextracted below: " The question in this case is not whether the requestof the respondent was contrary to the scheme. Not is it thequestion, whether the scheme would be violated if the firstrespondent is appointed on compassionate grounds. Thelimited question is whether FCI, having accepted performanceof the offer by the second respondent, can refuse to performor comply with the condition subject to which such offer wasmade. The answer is obviously in the negative. Havingaccepted the offer, FCI cannot avoid performance of thecondition subject which the offer was made. As notifiedearlier, nothing prevented FCI from rejecting theapplication of the employee outright, or inform the employeebefore accepting the offer of voluntary retirement that itcould not accept the condition, so that the employee wouldhave had the option to withdraw the offer itself. "