[CASE NUMBER] IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.09.2019 CORAM: THE HON'BLE MR.JUSTICE [ENTITY] AND THE HON'BLE MR.JUSTICE [ENTITY] W.A.No.3080 of 2019 [ENTITY] Appellant Vs. 1. The [ENTITY] - 9. 2. The [ENTITY] 3. The [ENTITY]. Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the Order dated 03.08.2012 made in [CASE NUMBER]. For Appellant : Mr.[ENTITY]
(Order of the Court was delivered by [ENTITY], J) Instant writ appeal is directed against the order dated 03.08.2012 made in [CASE NUMBER].
http: www.judis.nic.in
2. Short facts leading to the filing of writ appeal are as follows:
(i) Father of the Writ petitioner / appellant viz., [ENTITY], was employed, as a Pre-Vocational Instructor (Weaving Teacher), in the Panchayat Union Middle School, Sitharevu. He had an unblemished record of service, for more than 30 years and died on 09.05.1994, while in service.
(ii) Writ petitioner / appellant is the only daughter and none of the family members were employed. She had applied to the District Education Officer, Dindigul, the third respondent, on 28.05.1994, for appointment on compassionate ground. She had submitted all the relevant documents along with her application. On 06.10.994, the third respondent placed the petitioner at No.12 in the seniority list. However, due to the order passed by the Government of Tamil Nadu banning fresh recruitment, for nearly 7 years, the petitioner could not be appointed on compassionate grounds, as prayed for.
Thereafter, the third respondent had been issuing several communications, periodically, asking the petitioner to furnish several documents issued by the revenue and educational authorities concerned. In the meantime, the petitioner got married to an agricultural labourer. As the petitioner is the only legal heir of her father, having necessary educational qualifications, she made a further request to the third respondent to appoint her on compassionate grounds, even though she is married, as per the Government Order, in http: www.judis.nic.in G.O.Ms.No.165, Labour and Employment Department, dated 03.08.2010. The said Government Order permits the appointment of a married person, on compassionate ground, after obtaining an undertaking that she would take care of the needs of the dependent members of the family of the deceased employee. However, there has been no proper response from the respondents.
(iii) In such circumstances, writ petitioner/ appellant filed [CASE NUMBER] before this Court, for a writ of mandamus, directing the respondents to consider her case for appointment on compassionate grounds in any one of the vacancies in the respondents' department at the earliest in the light of G.O.Ms.No.165, Labour and Employment Department, dated 30.08.2010 and dispose of her representation dated 12.07.2011.
3. Before the writ Court, writ petitioner/appellant relied on the judgment of a Hon'ble Division Bench of this Court in [PRECEDENT] and also the order of this Court, dated 18.07.2008, made in [CASE NUMBER].
4. After hearing the learned counsel for the parties, writ Court rejected the plea of the writ petitioner/appellant for appointment on compassionate ground and dismissed [CASE NUMBER] vide order dated 03.08.2012.
http: www.judis.nic.in Relevant portion of the order reads thus:
"8. In view of the submissions made by the learned counsels appearing for the petitioner, as well as the respondents, and on a perusal of the records available, and in view of the decisions cited supra, this Court is of the considered view that the claim of the petitioner, for appointment on compassionate ground, after more than 18 years from the date of the death of her father, who had died in harness, on 09.05.1994, cannot be sustained.
9. It is a settled position in law that a request for appointment on compassionate ground ought to be considered immediately following death of the breadwinner of the family, who had died in harness. Such appointments are made to alleviate the sufferings of the family in distress. Further, a number of conditions ought to be satisfied, by the persons requesting for such appointments, as per the established Rules and Regulations and the guidelines issued by the Government concerned.
10. In a number of decisions, the Supreme Court had made it clear that the appointment on compassionate grounds, which is an exception to the General Rules of recruitment, cannot be purely based on the sympathy factor. Further, such appointments ought not to be made, after a considerable lapse of time, even if the delay in making such appointments is not due to the claimant.
11. The decisions cited supra, relied on by the learned counsel appearing for the petitioner, cannot be said to be applicable to the present case.
12. The decision of the Division Bench of this Court, in [PRECEDENT], relates to an appointment made on compassionate ground, which was sought to be cancelled, subsequently, due to the alleged non-disclosure, by the person so appointed, the fact that she had been http: www.judis.nic.in married at the time of granting of such appointment.
13. The order passed by the Division Bench of this Court in [PRECEDENT], had been followed in the order, dated 18.7.2008, made in [CASE NUMBER]. However in the present case, there has been a prolonged delay of more than 18 years in considering the claim of the petitioner for appointment on compassionate ground. Even though the explanation had been given that a substantial part of the delay was due to the ban imposed, by the Government of Tamil Nadu, in respect of fresh recruitments in the Government services, no convincing reasons are shown on behalf of the petitioner for filing the present writ petition, only in the year 2011, when the father of the petitioner had died in harness, in the year 1994.
14. Further, no vested right would be available to the petitioner, to make a demand for her appointment on compassionate ground, after a delay of more than 18 years from the date of death of her father. In such view of the matter, this Court finds it appropriate to pass an order, dismissing the writ petition. Hence, the writ petition stands dismissed. No Costs. Connected [CASE NUMBER] is closed."
5. Being aggrieved by the abovesaid order, writ petitioner has filed the instant appeal on the following grounds,
(i) Writ Court failed to consider that the appellant had filed her application seeking compassionate appointment within three years from the date of death of the appellant's father.
(ii) Writ Court failed to consider that there is no delay on the appellant's side in claiming the appointment on compassionate ground.
http: www.judis.nic.in
(iii) Writ Court ought to have considered that the conditions required to be satisfied by the person requesting for such appointment as per the established rules and regulations and the guidelines issued by the Government all were complied with by the appellant.
(iv) Writ Court failed to consider that till date, suffering of the family is continuing and the family is in distress and ought not to have dismissed the petition.
6. On this day, when the matter came up for hearing, Mr.[ENTITY], learned Government Advocate submitted that the writ petition has been filed belatedly and prayed for dismissal of the writ appeal.
7. In the case on hand, appellant's father died on 09.05.1994. The appellant submitted her application on 28.05.1994. The [ENTITY], third respondent herein, is stated to have placed her in 12th position. Thereafter, she claimed to have sent repeated representations and the last was on 12.07.2011 to the 2nd respondent. Appellant has filed the writ petition in the year 2011, after seven years.
http: www.judis.nic.in
8. Contention of the learned counsel for the petitioner that repeated representations were made and that the petitioner/appellant was waiting for appropriate orders, cannot be accepted for the reason that even equitable remedy under [SECTION] of the [ACT], cannot be extended to those, who approach the Court with inordinate delay.
9. Though reasonable time is not prescribed in the rules framed under [SECTION] of the [ACT], the words "reasonable time', as explained in [PRECEDENT], at Paragraph 13, is extracted hereunder:
"13. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In [ENTITY] The Law Lexicon it is defined to mean:
"A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the http: www.judis.nic.in circumstances, conveniently to do what the contract requires should be done; some more protracted space than "directly"; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea."
10. There is an inordinate delay and laches on the part of the appellant in approaching this Court. What is laches is as follows:
"Laches or reasonable time are not defined under any Statute or Rules. "Latches" or "Lashes" is an old french word for slackness or negligence or not doing. In general sense, it means neglect to do what in the law should have been done for an unreasonable or unexplained length of time. What could be the latches in one case might not constitute in another. The latches to non-suit, an aggrieved person person from challenging the acquisition proceedings should be inferred from the conduct of the land owner or an interested person and that there should be a passive inaction for a reasonable length of time. What is reasonable time has not been explained in any of the enactment. Reasonable time depends upon the facts and circumstances of each case.'
11. It is also well settled that delay defeats equity. In [PRECEDENT], the Supreme Court has observed as follows:-
http: www.judis.nic.in
"12. Delay defeats discretion and loss of limitation destroys the remedy itself. Delay amounting to laches results in benefit of discretionary power being denied on principles of equity. Loss of limitation resulting into depriving of the remedy, is a principle based on public policy and utility and not equity alone."
12. In [PRECEDENT], the Supreme Court considered a case, where the appellant therein, approached the court, with an inordinate delay, claiming right to appointment. The proposition of law held by the Hon'ble Apex Court is that there is no indefeasible right to appointment. A candidate included in rank list cannot obtain a mandamus, unless arbitrariness or discrimination is established. While addressing the aspect of delay, the Hon'ble Supreme Court, at paragraph 17, held as follows:-
"17. It is also well-settled principle of law that 'delay defeats equity'. The Government Order was issued on 15-1-2002. The appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala preferred an appeal there against, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible http: www.judis.nic.in for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage."
13. In [PRECEDENT], the Hon'ble Supreme Court, while considering the scope of equitable relief, considered the following decisions, "14. It is now well settled that who claims equity must enforce his claim within a reasonable time. For the said proposition, amongst others, we may notice a decision of a three- Judge Bench of this Court in [PRECEDENT], wherein it has been opined: (SCC pp. 359-60, para 34) ?34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in [PRECEDENT] The plea of delay, which Mr [ENTITY] states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief http: www.judis.nic.in to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law."
14. In a recent decision in [PRECEDENT], the Hon'ble Supreme Court considered the aspect of compassionate appointment and the delay in approaching the Court and held as follows:
"21. The decision in [PRECEDENT] has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in [ENTITY] v. State of Haryana [[ENTITY] v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930] . The principles which have been laid down in [ENTITY] [[ENTITY] v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930] have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract: ([ENTITY] case [[ENTITY] v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930] , SCC pp. 139-40, para 2) 2. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out http: www.judis.nic.in in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in http: www.judis.nic.in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.
26. The judgment of a Bench of two Judges in [PRECEDENT]] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in [PRECEDENT] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case.
28. The same principle has been reiterated in another decision of a Bench of two Judges of this Court in [PRECEDENT] . While adverting to a submission of the learned counsel based on the decision in [PRECEDENT] , this Court noted thus: ([PRECEDENT] , SCC p. 741, paras 8-9) 8. He relied upon the judgment of this Court in [PRECEDENT] where a view has been taken that the compassionate appointment cannot be refused on the ground that another member of the family had received appropriate employment and the service benefits were adequate. We may humbly state that this view runs counter to the view which was taken earlier in [ENTITY] http: www.judis.nic.in [[ENTITY] v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930] which was not cited before the Court in [PRECEDENT]. The subsequent two judgments which were referred above also take the same view as in [ENTITY] [[ENTITY] v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930] . Mr [ENTITY] has drawn our attention to the judgment in [PRECEDENT] where the 1998 Scheme has been considered.
9. In all the matters of compassionate appointment it must be noticed that it is basically a way out for the family which is financially in difficulties on account of the death of the breadearner. It is not an avenue for a regular employment as such. This is in fact an exception to the provisions under [SECTION] of the [ACT]. That being so, if an employer points out that the financial arrangement made for the family subsequent to the death of the employee is adequate, the members of the family cannot insist that one of them ought to be provided a comparable appointment. This being the principle which has been adopted all throughout, it is difficult for us to accept the submission made on behalf of the respondent.
29. Now, it is in this background that it would be necessary to advert to the decision in Canara Bank [[PRECEDENT]] . A scheme for compassionate appointment of 8-5-1993 was prevalent in Canara Bank when the employee died on duty in October 1998. Faced with the rejection of an application for compassionate appointment, the High Court was moved in a writ petition in which a learned Single Judge issued [M. Mahesh Kumar v. Canara Bank, 2003 SCC OnLine Ker 657 :
(2003) 98 FLR 1030] a direction for reconsideration of the claim for appointment. During the pendency of the appeal before the Division Bench, the scheme for compassionate appointment was replaced by a http: www.judis.nic.in new scheme providing for ex gratia in lieu of appointment. The main issue which fell for consideration before this Court was whether the subsequent scheme which was formulated in 2005 providing for ex gratia payment would govern or whether the application would have to be disposed of on the basis of the earlier scheme of 1993. It may be noted that the application for compassionate appointment in that case had been rejected on the ground that the family of the respondent was not in indigent circumstances, as required by the scheme for compassionate appointment of 1993.
30. Dealing with the applicability of the subsequent scheme, a Bench of two Judges of this Court held, following the earlier decision in [PRECEDENT] , that the cause of action to be considered for compassionate appointment arose when the earlier scheme was in force. Hence, the claim could not be decided on the basis of the subsequent scheme which provided only for the payment of ex gratia. Moreover, as a matter of fact, the subsequent scheme was superseded in 2014 by reviving the scheme for the provision of compassionate appointment.
34. That leads the Court to the next aspect of the matter relating to the fixation of an income slab. In our view, the fixation of an income slab is, in fact, a measure which dilutes the element of arbitrariness. While, undoubtedly, the facts of each individual case have to be borne in mind in taking a decision, the fixation of an income slab subserves the purpose of bringing objectivity and uniformity in the process of decision making. The High Court was of the view that it was not open to the Finance Department to amend the scheme. The circulars which are issued by the Finance Department cannot be construed to be an amendment of the policy. They are really clarificatory of the intent and purpose of the scheme. The circulars are explanatory, since they are intended to guide the decision maker on the http: www.judis.nic.in concept of indigency which is incorporated in the scheme. In fact, as we have noted earlier, in the decision of this Court in [PRECEDENT] , the Court was specifically dealing with a circular of the Comptroller and Auditor General of India which had imposed income limits respectively for Group B, C and D posts for the purpose of guiding the decision in the case of compassionate appointment. The fixation of income limits was not construed to be and is not an arbitrary exercise of power. However, what we find from the record of this case is that the income limit was fixed (as the High Court observed) on 29-9- 2008 by the letter of the Finance Department. The income limit of Rs 1,00,000 for a family of four persons has since been revised to Rs 1,50,000 on 20-4-2011. Mr [ENTITY] has, on instructions, stated before this Court that this ceiling has been reiterated on 27-7-2017. What should be the appropriate income criterion is undoubtedly a matter of policy for the State Government to determine. However, we would impress upon the State Government the need to periodically revise the income limits preferably at intervals of three years. Inflation and the increase in the cost of living have an important bearing on financial exigencies faced by families of serving as well as deceased employees. In fixing the income criteria for considering cases of compassionate appointment, it would be appropriate if the State revisits the income limit at periodic intervals, as we have indicated above. We clarify that it would be open to the State to revise the income limits at a frequency of less than three years, if the State is so advised.
35. Insofar as the individual facts pertaining to the respondent are concerned, it has emerged from the record that the writ petition before the High Court was instituted on 11-5-2015. The application for compassionate appointment was submitted on 8-5-2007. On 15-1-2008 the Additional Secretary had required that the amount realised by way http: www.judis.nic.in of pension be included in the income statement of the family. The respondent waited thereafter for a period in excess of seven years to move a petition under [SECTION] of the [ACT]. In [ENTITY] [[ENTITY] v. State of Haryana, (1994) 4 SCC 138 :
1994 SCC (L&S) 930] , this Court has emphasised that the basis of a scheme of compassionate appointment lies in the need of providing immediate assistance to the family of the deceased employee. This sense of immediacy is evidently lost by the delay on the part of the dependant in seeking compassionate appointment.
36. We are not impressed with the submission that delay should not be taken into account since Para (8) of the policy/scheme contemplates that in a situation where all the dependent children of the deceased employee have yet to attain the age of majority, the time- limit for submission of an application is extended until the first of the children attains the age of twenty-one years. A case where each of the children is a minor falls in a different class altogether. This cannot be equated with a situation where a dependant of a deceased employee who was a major on the date of death fails to submit an application within a reasonable period of time from the death of the employee. This aspect of delay has been dealt with in other decisions of this Court, including [PRECEDENT] and [PRECEDENT]]."
15. In yet another decision in [PRECEDENT], dated 01.03.2019], on the aspect of delay in approaching the Court in the matter of compassionate appointment, the http: www.judis.nic.in Hon'ble Supreme Court, observed thus, "8. The primary difficulty in accepting the line of submissions, which weighed with the High Court, and were reiterated on behalf of the respondent in these proceedings, is simply this: Compassionate appointment, it is well-settled, is intended to enable the family of a deceased employee to tide over the crisis which is caused as a result of the death of an employee, while in harness. The essence of the claim lies in the immediacy of the need. If the facts of the present case are seen, it is evident that even the first recourse to the Central Administrative Tribunal was in 2007, nearly eleven years after the death of the employee. In the meantime, the first set of representations had been rejected on 3 January 1997. The Tribunal, unfortunately, passed a succession of orders calling upon the appellants to consider and then re- consider the representations for compassionate appointment. After the Union Ministry of Information and Broadcasting rejected the representation on 13 November 2007, it was only in 2010 that the Tribunal was moved again, with the same result. These successive orders of Tribunal for re-consideration of the representation cannot obliterate the effect of the initial delay in moving the Tribunal for compassionate appointment over a decade after the death of the deceased employee. This dispose of the representation mantra is increasingly permeating the judicial process in the High Courts and the Tribunals. Such orders may make for a quick or easy disposal of cases in overburdened adjudicatory institutions. But, they do no service to the cause of justice. The litigant is back again before the Court, as this case shows, having incurred attendant costs and suffered delays of the legal process. This would have been obviated by calling for a counter in the first instance, thereby resulting in finality to the dispute. By the time, the High Court issued its direction on 9 August 2016, nearly twenty one years had elapsed since the date of the death of the employee.
http: www.judis.nic.in
9. In [ENTITY] v. State of Haryana [(1994) 4 SCC 138], this Court held thus:
2The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency.
10. Bearing in mind the above principles, this Court held:
6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.
11. The recourse to the Tribunal suffered from a delay of over a decade in the first instance. This staleness of the claim took away the very basis of providing companssionate appointment. The claim was liable to be rejected on that ground and ought to have been so rejected. The judgment of the High Court is unsustainable." http: www.judis.nic.in
16. We perused the abovesaid judgments. Under [SECTION] of the [ACT], the law declared by the Hon'ble Supreme Court is binding on all Courts within the territory of India. Therefore, in view of the judgments of the Hon'ble Supreme Court, quoted supra, instant writ appeal is dismissed.
No costs.
[[ENTITY], J.] [[ENTITY], J.] 05.09.2019 Index : Yes Internet : Yes Speaking/Non-speaking order ars http: www.judis.nic.in To 1. The [ENTITY] - 9. 2. The [ENTITY] 3. The [ENTITY]. http: www.judis.nic.in [ENTITY], J. AND [ENTITY], J. ars/dm 05.09.2019 http: www.judis.nic.in