1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.7639 of 2011 R.Anandabagavathy ... Petitioner -Vs- 1. The Principal Secretary PWD Secretariat, Chennai - 9 2. The Engineer In Chief (Water Resources Organisation) And Chief Engineer (General) PWD Chepauk, Chennai - 5 ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Mandamus directing the first respondent to consider the petitioner's representation dated 24.01.2008 requesting the respondents to appoint her on compassionate ground due to the death of her father M.Rajendran Office Assistance (Electrical) Madurai Division on 12.05.1999, while he was in service within a time limit. For Petitioner : Mr.PT.S.Narendravasan For Respondents : Mr.B.Pugalenthi, Special Government Pleader O R D E R The petitioner seeks for a Mandamus, directing the respondent to consider her representation, dated 24.01.2008, for employment Assistance on compassionate ground. 2. Pleadings disclose that the petitioner's father who worked as Office Assistant (Electrical) Madurai, died on 12.5.1999 leaving behind the petitioner and her mother as legal heirs. The petitioner's date of birth is 10.04.1989 and at the time of death of the Government Servant, she was 10 years old. Her mother was aged 33 years. It is the further case of the petitioner that her mother made a representation, dated 31.08.1999 to the respondents seeking employment assistance on compassionate grounds. The petitioner attained majority in 2007 and considering the ill-health ofher mother, made an application on 24.01.2008, to the respondents for appointment on compassionate grounds. On receipt of the application, the Engineer In Chief, (Water Resources Organisation) and Chief Engineer (General) PWD Chepauk, Chennai - 5, vide order dated 27.08.2008, directed the petitioner to submit all other original documents. Accordingly, she submitted all the documents, which were also forwarded to the first respondent, with a recommendation to relax the rule and provide employment assistance. 3. Though the petitioner has approached the respondents on several occasions, there was no response, while that be so, vide order dated 04.05.2011, the Principal Secretary, PWD Secretariat, Chennai - 9, the first respondent herein rejected the mother's application for employment assistance. Being aggrieved by the same, the petitioner has sent a further representation, dated 12.05.2011, on the above facts, the petitioner has https://hcservices.ecourts.gov.in/hcservices/ 2 sought for a Mandamus to dispose of her representation, dated 24.01.2098. 4. When the petitioner's father died on 12.05.1999, the petitioner was a minor, aged about 10 years. The petitioner's mother made a representation, dated 31.08.1999 to the respondents requesting to provide employment assistance. Subsequently the petitioner attained majority in the year 2007 and considering the health condition, the petitioner's mother has requested the respondents to appoint the petitioner on compassionate ground, instead of appointing her. A representation, dated 24.01.2008, has been preferred by the petitioner for appointment on compassionate ground and in response to the same, the Engineer In Chief, (Water Resources Organisation) and Chief Engineer (General) PWD Chepauk, Chennai - 5, after collecting the documents, vide letter dated 09.02.2010, has forwarded the same to the the Principal Secretary, PWD Secretariat, Chennai - 9, the first respondent herein, to relax the rules and to provide employment assistance. 5. The scheme of compassionate appointment has been introduced by the Government to tide over the financial constraint, faced by the dependents of a deceased Government servant. The application for employment assistance has to be made, within three years from the date of the death of the Government servant. A legal heir of the Government servant can seek fro employment assistance suitable to his /her educational qualification. If there is more than one legal heir, then No Objection has to be obtained from the others, to avoid rival claim. 6. In the case on hand, the petitioner's mother had applied for employment assistance in the year 31.08.1999, within three months from the date of death of her husband. Admittedly the petitioner was a minor, aged about 10 years. Her date of birth is 10.04.1989. After expiry of nearly 9 years, the petitioner's mother has submitted a petition to the respondents, requesting a suitable job to be provided to her daughter. 7. Perusal of the letter, dated 09.02.2010, of the Engineer In Chief, (Water Resources Organisation) and Chief Engineer (General) PWD Chepauk, Chennai - 5, the second respondent herein, shows that the petitioner has submitted an application on 24.01.2008 and after the receipt of certain documents, the said authority has forwarded the recommendation for relaxation of the relevant rules for providing employment assistance. Mere forwarding of any recommendation would not confer a right on the writ petitioner to seek for employment assistance. 8. In the case on hand, after considering the representation of the petitioner's mother and the application dated 09.01.1992, submitted after three years from the date of the death, the first respondent, by observing that the application as belated ie., after three years has turned down, the request of the writ petitioner for employment assistance and accordingly, directed that the certificates be returned, to the writ petitioner. 9. The contention of the writ petitioner that she was a minor at the time of death of Government servant and therefore, on attaining the majority, she submitted a fresh application on 24.01.2008, and that it has not been considered in proper perspective, cannot be countenanced for the reason that, the Supreme Court in a catena of decisions has held that when the scheme of employment assistance, is only to the tide over the financial https://hcservices.ecourts.gov.in/hcservices/ 3 constraint, no post can be kept vacant for long number of years till the dependent attains majority. 10. On the aspect of condoning the delay in applying for compassionate appointment, the Supreme Court has consistently held that delay in applying for compassionate assistance cannot be condoned, as it would be introducing a concept of condonation of delay, which is otherwise not provided in the scheme of compassionate assistance. In this context, it is worthwhile to extract few decisions of the Supreme Court. 11. In Union of India (UOI) and Others Vs. Bhagwan Singh, reported in 1995(6) SCC 476, one Ram Sigh, a Senior Clerk in Railways died on September 12, 1972, leaving behind his wife, two major sons and the respondent (before the Supreme Court), who was a minor aged 12 years. He passed Higher Secondary Examination in 1983. Stating that he has attained majority only in 1980/1981, he sought appointment on compassionate grounds. The same was rejected. The Authorities took the view that the application was beyond the period of limitation (five years) and that the case of the respondent was not covered by the relevant rules, at the time of the demise of Ram Singh. Besides, there were two other major sons of the deceased, who did not seek for employment and that the family was not in financial distress. The Central Administrative Tribunal, held that the order of rejection as unjustified and directed the Union of India to reconsider the case of the respondent therein, if he was otherwise qualified. 12. Testing the correctness of the order of the Central Administrative Tribunal and the object behind the grant of special concession of employment assistance on compassionate grounds to provide immediate financial assistance to the family of a Government Servant who dies in harness, the Supreme Court, at paragraph No.8, held as follows: "8. It is evident, that the facts in this case point out, that the plea for compassionate employment is not to enable the family to tide over the sudden crisis or distress which resulted as early as September 1972. At the time Ram Singh died on September 12, 1972 there were two major sons and the mother of the children who were apparently capable of meeting the needs in the family and so they did not apply for any job on compassionate grounds. For nearly 20 years, the family has pulled on, apparently without any difficulty. In this background, we are of the view that the Central Administrative Tribunal acted illegally and wholly without jurisdiction in directing the Authorities to consider the case of the respondent for appointment on compassionate grounds and to provide him with an appointment, if he is found suitable. We set aside the order of the Tribunal dated February 22, 1993. The appeal is allowed." 13. In Haryana State Electricity Board and another Vs. Hakim Singh, reported in 1997 (8) SCC 85, the Haryana Electricity Board challenged an order of the High Court of Punjab and Haryana contending inter-alia that the respondent therein was not entitled to be considered for appointment in the Board on compassionate grounds. In the reported case, father of the respondent therein was a Lineman in the employment of the Board. He died on 24.8.1974 in harness, leaving behind him, his widow and minor children https://hcservices.ecourts.gov.in/hcservices/ 4 including the respondent. About 14 years, after the death of the said Lineman, the widow applied for appointment to her son in the Board, on compassionate grounds, based on two circulars. As per the said circulars, one member of the family of the deceased employee could be considered for employment in the service of the Board as a goodwill gesture, provided the request for such employment is made within one year of the death of the employee. The respondent filed a writ petition in the High Court contending inter-alia that when his father died, he was only four years old and therefore, his mother could make an application in the prescribed form and when he attained majority, he made a request. The Board did not give any favourble response to the repeated representations made in the matter. The Board took a stand that as the application was not made within the period specified in the circulars, the Board was unable to entertain the request for appointment on compassionate grounds. The High Court ordered the Board to consider the case of the respondent therein for compassionate appointment on the ground that, even if the dependents happened to be a minor child, at the time of death of the employee, the policy mandates his case to be considered by an extended period i.e., the time till the defendant attained majority. The Board's appeal was negatived by the Division Bench, with a direction to comply with the orders of the Single Judge within a time frame. When the correctness of the above said orders was tested, at paragraph No.8 of the judgment, the Supreme Court held as follows: "8. The rule of appointment to public service is that they should be on merits and through open invitation. It is the normal route through which one can get into a public employment. However, as every rule can have exceptions there are a few exceptions to the said rule also which have been evolved to meet certain contingencies. As per one such exception relief is provided to the bereaved family of a deceased employee by accommodating one of his dependents in a vacancy. The object is to give succour to the family which has been suddenly plunged into penury due to the untimely death of its sole bread-winner. This Court has observed time and again that the object of providing such ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment." 14. As regards the extended period, on attaining the majority, the Court at paragraph Nos.14 and 15, held as follows: "14. In that case widow of a deceased employee made an application almost twelve years after the death of her husband requesting for accommodating her son in the employment of the Board, but it was rejected by the Board. When she moved the High Court the Board was directed to appoint him on compassionate ground. This Court upset the said directions of the High Court following two earlier decisions rendered by this Court one in Umesh Kumar Nagpal v. State of Haryana and Ors. MANU/SC/0701/1994 : [1994]3SCR893 , the other in Jadgish Prasad v. State of Bihar and Anr. 1996 (1) SCC 301 . In the former, a Bench of two Judges has pointed out that "the whole object of granting compassionate employment is 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 the post held by the https://hcservices.ecourts.gov.in/hcservices/ 5 deceased". In the latter decision which also was rendered by a Bench of two judges, it was observed that "the very object of appointment of dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of earning member of the family". The learned Judges pointed out that if the claim of the dependent which was preferred long after the death of the deceased employee is to be countenanced it would amount to another mode of recruitment of the dependent of the deceased government servant "which cannot be encouraged, dehors the recruitment rules." 15. It is clear that the High Court has gone wrong in giving a direction to the Board to consider the claim of the respondent as the request was made far beyond the period indicated in the circular of the Board dated 1.10.1986. Respondent, if he is interested in getting employment in the Board has to pass through the normal route now." Ultimately, the Supreme Court set aside the impugned orders of the High Court. 15. In State of U.P and others Vs. Paras Nath, reported in 1998(2) SCC 412, father of the respondent working as an Assistant Teacher in a Basic School, died on 08.06.1969. At that time, there was no rule permitting appointment of a dependent of such a person dying in harness on compassionate grounds. The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, came into force on 21.12.1973. Even after the commencement of the rules, no application was made by any dependent of the deceased. The respondent, who sought employment on compassionate grounds was just two years old, at the time when his father died. Seventeen years later, he made an application on 08.01.1986 for being considered to the post of Primary School Teacher under the said rules. His application was rejected. He therefore filed a writ petition before the High Court, which was allowed and lateron confirmed by the Division Bench. When the correctness of the order of the High Court was tested, the Supreme Court, after considering the purpose for which employment assistance is given, and taking note of a decision in Union of India Vs. Bhagwan Singh, reported in 1995 (6) SCC 436, at paragraph Nos.5 to 7 has held as follows: "5. The purpose of providing employment to a dependent of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case. 6. We may, in this connection, refer to only one judgment of this Court in the case of Union of India v. Bhagwan Singh, In this case, the application for appointment on similar compassionate grounds was made twenty years after the railway servant's death. This Court https://hcservices.ecourts.gov.in/hcservices/ 6 observed: "The reason for making compassionate appointment, which is exceptional, is to provide immediate financial assistance to the family of a government servant who dies in harness, when there is no other earning member in the family." 7. No such considerations would normally operate seventeen years after the death of the government servant. The High Court was therefore, not right in granting any relief to the respondents." 16. In Sanjay Kumar Vs. The State of Bihar and Others, reported in 2000 (7) SCC 192, the petitioner was 10 years old, when his mother died. She was working as an Excise Constable. He made an application on 02.06.1988, soon after the death of his mother, seeking appointment on compassionate grounds. The said application was rejected. A fresh application made subsequently was also rejected. Being aggrieved by the same, he preferred a writ petition before the High Court. A learned Single Judge dismissed the writ petition and that the same was also confirmed by the Division Bench. On appeal, the Supreme Court at paragraph No.3, held as follows: "3. We are unable to agree with the submissions of the learned senior counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood: In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education and Anr. v. Pushpendra Kumar and Ors. (Supra). It is also significant to notice that on the date when the first application was made by the petitioner on 2.6.1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there is some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief." 17. In State of Manipur Vs. Md. Rajaodin, reported in 2003 (7) SCC 511, the respondent's father died in harness on 19.07.1980. He made a request seeking compassionate appointment on 25.07.1997. The writ petition was filed in the year 2001. Since no appointment was made, a direction to the authorities concerned for giving compassionate appointment under the Die-in-Harness Scheme was sought for. The claim was resisted by the State on the following grounds: (i)that it was a belated claim; (ii)that in view of the ban imposed on appointment under the Scheme by an office memorandum dated 24.07.2001, the question of making any such appointment did not arise; and (iii)that the letter issued was inconsequential in view of the clear stipulation in the Scheme itself about the concurrence of the Government, Department of Personnel and Administrative Reforms (Personnel Division) in making such appointments. https://hcservices.ecourts.gov.in/hcservices/ 7 A Single Judge, allowed the writ petition. The appeal filed by the State before the Division Bench was dismissed. The correctness of the orders of the High Court were challenged before the Supreme Court and after considering the Office Memorandum of the Government dated 02.05.1984, dealing with appointment on compassionate grounds, in which a specific time period has been stipulated, within which an application should be made and the object of providing employment assistance on compassionate grounds, the Supreme Court at paragraph Nos.9 to 11 has held as follows: "9. Admittedly, the respondent’s father died before the office memorandum came into operation. In the memorandum a time period is stipulated. Since the Scheme itself was not in operation when the respondent’s father died, the time stipulation as provided in the Scheme would not be strictly applicable to the case of the respondent and anyone seeking for relief thereunder has to at least move within the time stipulated commencing from the date of the order. Nevertheless, keeping in view at any rate the object for which such appointments which are also compassionate appointments are made, the minimum requirement is that the request for appointment should be made as expeditiously as the circumstances warrant. It could not be brought to our notice whether there was any scheme in operation prior to the Scheme of 1984 referred to above. As the appointments of such nature envisaged under the said Scheme are made to tide over immediate difficulties, there is an inbuilt requirement of urgency in making the application. Though it was contended that the respondent was a minor at the time of his father’s death, it is to be noted that he was 10 years of age in 1980 when his father died. Even if a reasonable period after he attained majority is taken, certainly the application on 25-7-1997 seeking appointment was highly belated. 10. As was observed in State of Haryana v. Rani Devi it need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the premise that he was dependent on the deceased employee. Strictly, this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of a sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in-Harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi case it was held that the Scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In LIC of India v. Asha Ramchhandra Ambekar it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic https://hcservices.ecourts.gov.in/hcservices/ 8 considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana that as a rule public service appointments should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of an employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. 11. In Sushma Gosain v. Union of India it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the breadwinner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the Scheme itself envisages specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati v. Union of India and Union of India v. Bhagwan Singh. In Director of Education (Secondary) v. Pushpendra Kumar it was observed that in the matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependents of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for grant of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the