C.Sivakumar v. School Education

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01.10.2009 CORAM:THE HONOURABLE MR. JUSTICE K. CHANDRUWrit Petition No.2959 of 2006(O.A.No.6551 of 1998) C.Sivakumar.. PetitionerVs.1.The Director of School Education, DPI Compound, College Road, Chennai-6.2.The District Educational Officer, Trichy.3.The Asst. Educational Officer, Trichy. .. RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of writ of certiorarified mandamus to call for therecords from the file of the first respondent in his proceedingsNo.E.Mu.No.54924/J3/98, dated 2.7.98 and to set aside the same andto further direct the first respondent to appoint the applicant asJunior Assistant or in any other equivalent post within astipulated time. For Petitioner : Mr.K.SanjayFor Respondents : Mr.R.Neelakantan, GA- - - - O R D E RHeard the arguments of Mr.K.Sanjay, learned counsel appearingfor the petitioner and Mr.R.Neelakantan, learned GovernmentAdvocate for the respondents and perused the records. The O.A.filed by the petitioner got transferred to this court by an order,dated 20.10.2005 made in W.P.No.33520/05 and was renumbered asW.P.No.2959 of 2006. A reply affidavit, dated 9.2.2000 was filed bythe second respondent before the Tribunal. https://hcservices.ecourts.gov.in/hcservices/

2.The petitioner is the son of late Tmt.V.Ramathilagam, whowas working as Teacher in the Municipal School at Tiruchirappalli.3.The present writ petition has been filed seeking for adirection to the respondents to provide compassionate appointmentin the post of Junior Assistant to the petitioner. Thepetitioner's mother died in harness as early as 7.12.1992.4.By the impugned order dated 2.7.98, the petitioner wasinformed that since the petitioner's father was in employment, heis not eligible for Government service. This is in accordance withthe orders of the Government in the matter of employmentassistance. 5.In State of Haryana and others v. Rani Devi andanother [AIR 1996 SC 2445 : 1996 (5) SCC 308], the Supreme Courtwhile examining the object of compassionate appointment pointed outthat the claim of the person concerned for appointment oncompassionate ground is based on the premise that he was adependant of the deceased employee. Strictly this claim cannot beupheld on the touchstone of Articles 14 or 16 of the Constitutionof India. However, such claim is considered as reasonable andpermissible on the basis of sudden crisis occurring in the familyof such employee who has served the State and dies while inservice. That is why it is necessary for the authorities to framerules, regulations or to issue such administrative orders which canstand the test of Articles 14 and 16. Appointment oncompassionate ground cannot be claimed as a matter of right. Inthe aforesaid case, it was held that if the scheme regardingappointment on compassionate ground is extended to all types ofcasual 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 HighCourts and the Administrative Tribunals cannot confer benedictionimpelled by sympathetic considerations to make appointment oncompassionate grounds when the regulations framed in respectthereof do not cover and 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 inpublic service, appointment should be made strictly on the basis ofopen invitation of application and merit. The appointment oncompassionate ground is not another source of recruitment butmerely an exception to the aforesaid requirement taking intoconsideration the fact of the death of the employee while in https://hcservices.ecourts.gov.in/hcservices/ service leaving his family without any means livelihood. In suchcases, the object is to enable the family to get over suddenfinancial crisis. But such appointments on compassionate groundhave to be made in accordance with the rules, regulations oradministrative instructions taking into consideration the financialcondition of the family of the deceased.8.In Smt. Sushma Gosain and others v. Union of Indiaand others [AIR 1989 SC 1976 : 1989 (4) SCC 468 : 1990 – I –LLJ – 169], it was observed that in all claims of appointment oncompassionate grounds, there should not be any delay inappointment. The purpose of providing appointment on compassionateground is to mitigate the hardship due to death of the bread-earnerin the family. Such appointments should, therefore, be providedimmediately to redeem the family in distress. The fact that theward was a minor at the time of death of his father is no ground,unless the scheme itself envisages specifically otherwise, to statethat as and when such minor becomes a major he can be appointedwithout any time consciousness 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 aGovernment servant dying in harness in preference to anybody else,is 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. 10.In Punjab National Bank v. Ashwini Kumar Taneja, [(2004)7 SCC 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 thaton the death of the employee concerned his family is not deprivedof the means of livelihood. The object is to enable the family toget over sudden financial crisis. 11.In State of Haryana and others v. Rani Devi andanother (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 therules because the right to such employment is not avested right which can be exercised at any time infuture.” https://hcservices.ecourts.gov.in/hcservices/

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. Ifin a given case, the department of the Government concerneddeclines, as a matter of policy, not to deviate from the mandate ofthe provisions underlying the Scheme and refuses to relax thestipulation in respect of ceiling fixed therein, the Courts cannotcompel the authorities to exercise its jurisdiction in a particularway and that too, by relaxing the essential conditions, when nogrievance of violation of substantial rights of parties could beheld to have been provided otherwise. The purpose of providingemployment to a dependant of a Government servant dying in harnessin preference to anybody else is to mitigate the hardship caused tothe family of the employee on account of his unexpected death whilein service. To alleviate the distress of the family, suchappointments are permissible on compassionate grounds providedthere are Rules providing for such appointments. None of theseconsiderations can operate when the application is made after thedeath of the employee. The reason for making compassionateappointment, which is exceptional, is to provide immediatefinancial assistance to the family of a Government servant who diesin harness when there is no other earning member in the family.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 afterthe period stipulated under the scheme is not maintainable, and itis not permissible to hold that such application could be madeafter attaining 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. VvkSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Director of School Education, DPI Compound, College Road, Chennai-6.2.The District Educational Officer, Trichy.3.The Asst. Educational Officer, Trichy.+ 1 cc to Mr.K.Sanjay, Advocate SR No.50740AKR(CO)SR/12.10.2009W.P.No.2959 of 2006