Janaki v. The Director of School Education & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.08.2011CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.26502 of 2009Janaki ... PetitionerVs.1.The Director of School Education, College Road, Chennai -6.2.The District Educational Officer, Karur District.3.The Head Master, Government High School, P.Thottakurichi Post, Karur District.... RespondentsWrit Petitions preferred under Article 226 of the Constitution ofIndia praying for the issue of a writ of Certiorarified mandamus,calling for the records relating to the proceedings of the secondrespondent dated 16.11.2009 issued in Ni.Mu.No.12246/A1/2009 andquash the same and consequently to direct the second respondent toconsider the claim of compassionate appointment of the petitioner'sson namely M.Gunasekaran based on his educational qualification.For Petitioner : Mr.P.I.ThirumurthyFor Respondents : Mr.I.Arokiasamy,G.A.(Edn)O R D E RThe petitioner has filed the present writ petition, seeking tochallenge an order of the second respondent viz., DistrictEducational Officer, Karur dated 16.11.2009 and after setting asidethe same seeks for a direction to consider the claim ofcompassionate appointment for the petitioner's son based on hiseducational qualification.2. The writ petition was admitted on 21.12.2009.3. It is seen from the records that the petitioner's husbandMurugesan, who was working as Office Assistant in the GovernmentHigh School P.Thottakurichi died while in service on 20.12.1999. https://hcservices.ecourts.gov.in/hcservices/ After his death, he has left the petitioner, his wife and threesons M/s.Chandrasekaran, Gunasekaran and Ramesh as his legal heirs.When his terminal benefits were not given, the petitioner filed asuit in O.S.No.630 of 2000, claiming declaration that she was thelegally married wife of Late Murugesan and that she is eligible forall benefits payable on account of his death. The suit was decreedin favour of the petitioner by judgment and decree dated29.04.2003. It was thereafter, the petitioner sent a representationseeking for grant of compassionate appointment for her second sonviz., Gunasekaran. In the representation she claimed that herapplication for terminal benefits was returned informing that shewas the second wife of Late Murugesan and hence, she filed a suitand the suit was decreed in her favour. Thereafter, due to mentalagony, she went away to some town station. Therefore, there was adelay in seeking compassionate appointment. Her application wasprocessed by the second respondent and certain details were alsocalled for. However, the petitioner was informed by the impugnedorder that since the death of the late Murugesan was on 20.11.1999and she had claimed compassionate appointment only on 01.03.2006,she is not eligible for grant of compassionate appointment and thatthe claim was belated. Challenging the same, the writ petitioncame to be filed.4. On notice from this Court, the second respondent has fileda counter affidavit dated Nil (February 2010). In the counteraffidavit, the ground taken was that as per Government LetterNo.202 Labour and Employment Department, dated 08.10.2007, a claimfor compassionate appointment will have to be made within threeyears from the date of death of the deceased employee. Since thepetitioner's claim was time barred, no relief can be given.5. The learned counsel for the petitioner placed reliance uponthe following judgments of the Division Bench of this Court:i) Indiraniammal v. The Chief Engineer (Personnel), The TamilNadu Electricity Board, W.A.No.3050 of 2003 dated 08.03.2005ii) The Chief Engineer/Personnel, Tamil Nadu Electricity Boardv. B.Suder, W.A.No.1652 of 2006 dated 30.03.2009.iii)The Superintending Engineer, Madurai ElectricityDistribution Circle v. V.Jaya reported in 2008 (3) CLT 152.6. All the three judgments were relating to Tamil NaduElectricity Board and different proceedings were issued by theBoard and due to that fact, there were several orders passed bythis Court. These judgments were rendered on the factual aspect ofvarious Board circular and proceedings but no decision of theSupreme Court which have a bearing on the case had been considered.7. The Supreme Court has held that a claim of compassionateappointment has to be strictly construed as it is an exception to https://hcservices.ecourts.gov.in/hcservices/ Articles 14 and 16 of the Constitution. The fact that thepetitioner has to run to the Civil Court for establishing her legalright cannot be a ground to get over the limitation period. 8. The learned counsel for the petitioner placed reliance uponthe judgment of the Supreme Court in Syed Khadim Hussain v. Stateof Bihar and others reported in (2006) 9 SCC 195 for contendingthat the Supreme court granted relief even in case of belatedapplication. In that case, the Supreme Court had exercisedextraordinary power under Article 142 of the Constitution, whichpower is not available to the High Court under Article 226 of theConstitution. In paragraph 6 of the judgment, it was held asfollows:-"6. ....In the peculiar facts and circumstances ofthis case, we direct the respondent authorities toconsider the application of the appellant and givehim appropriate appointment within a reasonable timeat least within a period of three months. The appealis disposed of in the above terms."9. On the contrary, the Supreme Court very recently negativedsimilar claim in the two following two judgments. The Supreme Courtvide its judgment in Bhawani Prasad Sonkar Vs. Union of India andothers reported in (2011) 4 SCC 209 had observed in paragraphs 15and 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 ofa 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. https://hcservices.ecourts.gov.in/hcservices/

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 is permissibleonly to one of the dependants of thedeceased/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.10. The Supreme Court in Civil Appeal No.2206 of 2006, dated05.04.2011 in Local Administration Department and another Vs.M.Selvanayagam @ Kumaravelu in paragraphs 7 to 9 held 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 sufferingfrom 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. https://hcservices.ecourts.gov.in/hcservices/ 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 onattaining 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. It https://hcservices.ecourts.gov.in/hcservices/ would 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."11. In the light of the above, there are no infirmities orirregularities in the order passed by the respondents. Hence, thewrit petition stands dismissed. However, there will be no order asto costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsvkiTo1.The Director of School Education, College Road, Chennai -6.2.The District Educational Officer, Karur District.3.The Head Master, Government High School, P.Thottakurichi Post, Karur District.1 cc To The Government Pleader, SR.517441 CC to Mr.P.I.Thirumoorthy, Advocate, S.R.No.51471 ORDER INW.P.No.26502 of 2009SAI(CO)SRA(6/9/2011)