D.Nagaraju v. Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.02.2010 CORAM:THE HONOURABLE MR. JUSTICE K. CHANDRUWrit Petition No.48301 of 2006(O.A.No.2236 of 2001)D.Nagaraju .. Petitioner/AppellantVs.1.Government of Tamil Nadu, rep. By its Secretary to Government, School Education Department, Chennai.2.The Director of School Education, Chennai. .. RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of writ of certiorarified mandamus to call for therecords relating to Govt. Lr.No.31936/C1/2000-4, School EducationDepartment, dated 8.2.2001, quash the same and to issue directions tothe first respondent to pass orders relaxing the upper age limit forappointment on compassionate grounds in favour of the applicant andproviding appointment on compassionate grounds to him. For Petitioner : Mr.M.RaviFor Respondents : Ms.Sneha, GAO R D E RHeard both sides.2.The petitioner is the son of late Baby Saroja, who wasworking as S.G.Teacher in the Municipal School at Salem.3.The present writ petition arose out of O.A.No.2236 of 2001filed before the Tamil Nadu Administrative Tribunal, seeking for adirection to the respondents to provide compassionate appointment tothe petitioner on account of the death of his mother. In view of theabolition of the Tribunal, the matter stood transferred to this Courtand renumbered as W.P.No.48301 of 2006. On notice from the Tribunal,the respondents have filed a reply affidavit, dated 11.7.2001. Thepetitioner's mother died in harness as early as 06.06.1994.4.By the impugned order dated 8.2.2001, it was stated that on https://hcservices.ecourts.gov.in/hcservices/ the date of her death, he had crossed 30 years and he had notproduced any certificate to show that the income for the family isinadequate to maintain the family. His earlier request was alsorejected by second respondent as early as 2.7.1998. This is inaccordance with the orders of the Government in the matter ofemployment assistance.5.In State of Haryana and others v. Rani Devi and another[AIR 1996 SC 2445 : 1996 (5) SCC 308], the Supreme Court whileexamining the object of compassionate appointment pointed out thatthe claim of the person concerned for appointment on compassionateground is based on the premise that he was a dependant of thedeceased employee. Strictly this claim cannot be upheld on thetouchstone of Articles 14 or 16 of the Constitution of India.However, such claim is considered as reasonable and permissible onthe basis of sudden crisis occurring in the family of such employeewho has served the State and dies while in service. That is why it isnecessary for the authorities to frame rules, regulations or to issuesuch administrative orders which can stand the test of Articles 14and 16. Appointment on compassionate ground cannot be claimed as amatter of right. In the aforesaid case, it was held that if thescheme regarding appointment on compassionate ground is extended toall types of casual or ad hoc employees including those who worked asapprentices, then such scheme cannot be justified on constitutionalgrounds.6.In the decision reported in 1994 (2) SCC 718 : 1994 – II-LLJ – 173 [Life Insurance Corporation of India v. Asha RamachandraAmbedkar (Mrs.) and another], it was pointed out that the High Courtsand the Administrative Tribunals cannot confer benediction impelledby sympathetic considerations to make appointment on compassionategrounds when the regulations framed in respect thereof do not coverand contemplates such appointment.7.In Umesh Kumar Nagpal v. State of Haryana and others [1994(4) SCC 138 : 1995–I–LLJ 798], it was noted that as a rule in publicservice, appointment should be made strictly on the basis of openinvitation of application and merit. The appointment on compassionateground is not another source of recruitment but merely an exceptionto the aforesaid requirement taking into consideration the fact ofthe death of the employee while in service leaving his family withoutany means livelihood. In such cases, the object is to enable thefamily to get over sudden financial crisis. But such appointments oncompassionate ground have to be made in accordance with the rules,regulations or administrative instructions taking into considerationthe financial condition of the family of the deceased.8.In Smt. Sushma Gosain and others v. Union of India andothers [AIR 1989 SC 1976 : 1989 (4) SCC 468 : 1990 – I – LLJ –169], it was observed that in all claims of appointment on https://hcservices.ecourts.gov.in/hcservices/ compassionate grounds, there should not be any delay in appointment.The purpose of providing appointment on compassionate ground is tomitigate the hardship due to death of the bread-earner in the family.Such appointments should, therefore, be provided immediately toredeem the family in distress. The fact that the ward was a minorat the time of death of his father is no ground, unless the schemeitself envisages specifically otherwise, to state that as and whensuch minor becomes a major he can be appointed without any timeconsciousness or limit.9.In State of U.P. and others v. Paras Nath [AIR 1998 SC2612 : 1998 (2) SCC 412 : 1992 – II – LLJ 454, it was held thatthe purpose of providing employment to the dependant of a Governmentservant dying in harness in preference to anybody else, is tomitigate the hardship caused to the family of the employee on accountof his unexpected death while in service. To alleviate the distressof the family, such appointments are permissible on compassionategrounds provided there are Rules providing for such appointments. 10.In Punjab National Bank v. Ashwini Kumar Taneja, [(2004) 7SCC 265], the Supreme Court observed that appointment oncompassionate ground is not a source of recruitment but merely anexception to the requirement of making appointments on openinvitation of application on merits. The basic intention is that onthe death of the employee concerned his family is not deprived of themeans of livelihood. The object is to enable the family to get oversudden financial crisis. 11.In State of Haryana and others v. Rani Devi and another(cited supra), the Supreme Court observed as follows:“It was also impressed that appointments oncompassionate ground cannot be made after lapse ofreasonable period which must be specified in the rulesbecause the right to such employment is not a vestedright which can be exercised at any time in future.”12.It is, thus, clear that the Courts cannot directappointments on compassionate grounds de hors the provisions of theScheme in force governed by rules / regulations / instructions. If ina given case, the department of the Government concerned declines, asa matter of policy, not to deviate from the mandate of the provisionsunderlying the Scheme and refuses to relax the stipulation in respectof ceiling fixed therein, the Courts cannot compel the authorities toexercise its jurisdiction in a particular way and that too, byrelaxing the essential conditions, when no grievance of violation ofsubstantial rights of parties could be held to have been providedotherwise. The purpose of providing employment to a dependant of aGovernment servant dying in harness in preference to anybody else is https://hcservices.ecourts.gov.in/hcservices/ to mitigate the hardship caused to the family of the employee onaccount of his unexpected death while in service. To alleviate thedistress of the family, such appointments are permissible oncompassionate grounds provided there are Rules providing for suchappointments. None of these considerations can operate when theapplication is made after the death of the employee. The reason formaking compassionate appointment, which is exceptional, is to provideimmediate financial assistance to the family of a Government servantwho dies in harness when there is no other earning member in thefamily.13.In Sanjay Kumar v. State of Bihar and others [(2000) 7 SCC192], the Supreme Court has expressly held that there cannot bereservation of a vacancy till such time as the applicant becomes amajor after a number of years, unless there are some specificprovisions. The very basis of compassionate appointment is to seethat the family gets immediate relief. An application made after theperiod stipulated under the scheme is not maintainable, and it is notpermissible to hold that such application could be made afterattaining majority. 14.In the light of the above binding precedents of the SupremeCourt, the request of the petitioner cannot be considered. Thereis no illegality or infirmity in the impugned order. Hence, thewrit petition will stand dismissed. No costs.Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarvvkTo1.The Secretary to Government, Government of Tamil Nadu, School Education Department, Chennai.2.The Director of School Education, Chennai.1 cc to Mr.M.Ravi, Advocate, Sr.No.11943W.P.No.48301 of 2006GS {CO}TP/26.2.2010.