IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.6195 of 2009 and M.P.No.2 of 2009 E.Venugopal .. Petitioner Vs. 1.The State of Tamil Nadu rep by its Agricultural Production Commissioner and Secretary to Government, Agricultural (A.A.8) Department, Secretariat, Chennai-600 009. 2.The Director of Agricultural Marketing and Agri-Business, Chennai-600 032. 3.The Secretary, Cuddalore Market Committee, Cuddalore. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the order in proceeding No.A1/7360/96 dated 04.02.2007 of the Secretary Cuddalore Market committee, Cuddalore the 3rd respondent herein and the order in Letter No.44013/AA8/2006 dated 18-10-2007 of the Agricultural Production Commissioner and Secretary to Government, Secretariat, Chennai 600009 the first respondent herein and quash the same and to direct the first Respondent to consider the claim of the petitioner in a proper perspective and sympathetically in view of his continuance in office for over 10 years and appiont him as Office Assistant on compassionate ground with all attendant and consequential benefits. For Petitioner : Mr.R.Muthukannu For Respondents : MrV.Subbiah, Spl.G.P. For RR1 and 2 Mr.G.Sankaran for R-3 ORDER The petitioner has filed the present writ petition seeking to challenge an order dated 4.2.2007 passed by the third respondent and the order of the first respondent, dated 18.10.2007 and also seeks for a direction to consider his claim in a proper perspective and sympathetically in view of his continuance in the office for https://hcservices.ecourts.gov.in/hcservices/ over 10 years and appoint him as an Office Assistant on compassionate ground with all attendant and consequential benefits. 2.By the impugned order, dated 4.2.2007, the third respondent had terminated the services of the petitioner from the post of Office Assistant in the Marketing Committee at Cuddalore Old Town with effect from 1.1.2007. Thereafter, a proposal sent for re-appointment of the petitioner as an Office Assistant consequent on the death of his father S.Ethirajulu on 8.1.1986 was examined by the Government. The Government by a letter dated 18.10.2007 had stated that the petitioner's continuance for over 10 years on the basis of the Court's order cannot be a ground for considering his re-employment and that the earlier order passed by the State Government on 8.7.1996 will hold good. 3.In the writ petition, notice of motion was ordered on 13.4.2009. On notice from this court, the third respondent has filed a counter affidavit, dated Nil (January, 2010) together with typed set out documents supporting the stand taken in the counter. 4.It is seen from the records that the petitioner's father S.Ethirajulu working as an Office Assistant in the third respondent Marketing Committee died on 8.1.1986. Thereafter, after seven years, the petitioner made a representation seeking for employment assistance on compassionate grounds. The petitioner was informed that when his mother made a request for compassionate appointment for him, the same was refused on the ground that his mother was in employment. Thereafter, after he got married, he did not get any assistance from his mother. Therefore, he must be given an employment assistance. Based upon the same, the third respondent had recommended the case of the petitioner. It was also stated in the said recommendation that the petitioner's mother was working as a Secondary Grade Teacher in the Cuddalore Municipal School. Thereafter, the second respondent had requested the first respondent whether the petitioner can be given appointment as a Junior Assistant. When there was no reply, the second respondent had informed the third respondent that since the petitioner had modified his request to become an Office Assistant and further since the petitioner was struggling for existence, the third respondent being the appointing Authority, after obtaining written assurance that he will not claim for the post of Junior Assistant, he can be appointed for the post of the Office Assistant. 5.Once again the second respondent sent a ratification for permitting the third respondent to appoint the petitioner as an Office Assistant with the first respondent. In the meanwhile, the third respondent had appointed the petitioner by proceedings, dated 27.4.1995 for the post of Office Assistant and probation was prescribed. Bur, however, the first respondent by a communication, dated 8.7.1996 had refused to ratify the appointment of the petitioner and stated that it was irregular and contrary to the scheme of compassionate appointment. Therefore, the third respondent was directed to terminate the service of the petitioner. Pursuant to the direction, by an order dated 31.7.1996, the https://hcservices.ecourts.gov.in/hcservices/ petitioner's service was terminated. The petitioner, thereafter, filed O.A.No.4112 of 1996 before the Tribunal challenging the order of termination. The Tribunal had granted an ex parte interim stay on 6.8.1996 and the petitioner continued to work as an Office Assistant on the strength of the interim order. On account of abolition of the Tribunal, the said OA was transferred to this court and renumbered as W.P.No.19890 of 2006 and the writ petition came to be disposed of by an order dated 20.11.2006. Though this court held that the appointment of the petitioner was irregular and it was not intended to help the case of the persons like petitioner and also a finding was given that his mother was employed even after the death of his father and hence the question of appointment of the petitioner on compassionate appointment will not arise, but after stating so, in paragraph 5, the Court had observed as follows: "5.Mr.R.Muthukannu learned counsel appearing for the petitioner produced a copy of the Government Letter bearing No.26906/AM.I/95.6 dated 08.07.1996, whereby the Government instructed the second respondent to terminate the service of the petitioner, but at the same time directed him to send a proposal afresh to the Government. In view of the fact that the matter was pending for the past ten years before the Tribunal and also in view of the fact that the petitioner had the benefit of stay and continued in service, it is not known whether the second respondent has sent any proposal afresh in accordance with the contents of the said letter of the Government dated 08.07.1996. In view of the fact that the petitioner is in service for the past 11 years pursuant to the interim order of the Tribunal and also in view of the fact that the Government directed the second respondent to send a proposal, even while dismissing the writ petition, the second respondent is permitted to send the proposal to the first respondent in accordance with the aforesaid letter of the Government and the first respondent-Government is directed to consider the case of the petitioner sympathetically, in view of his continuance in office for the past ten years. With the above direction, the writ petition is disposed of." 6.In the meanwhile, the petitioner's service was terminated by an order dated 4.2.2007 subsequent to the order passed by this Court. A representation, dated 8.2.2007 was forwarded by the second respondent as directed by this Court. On receipt of the same, the State Government by an order dated 18.10.2007 had rejected the said request. Therefore, the only question is that the petitioner's continuance in service for 10 years can be a ground for grant of employment assistance on compassionate ground? https://hcservices.ecourts.gov.in/hcservices/ 7.This Court has already held that the petitioner is not having any right for grant of compassionate appointment. In the counter affidavit, the third respondent had stated that even after the petitioner lost his case, in order to comply with the court order, a proposal was sent to the Government and the Government had refused to re-consider its earlier order stating that merely because the petitioner had worked for 10 years, that cannot be a ground. 8.Notwithstanding the same, Mr.R.Muthukannu, learned counsel for the petitioner referred to the following judgments of this Court. (i)W.Ruben Franklin Vs. Government of Tamil Nadu and others reported in (2008) 5 MLJ 1322. (ii)V.Balakrishnan Vs. The Joint Director of Agriculture, Tiruvannamalai and others in W.A.No.1559 of 2009, dated 03.11.2009. 9.But, the Supreme Court in an identical circumstance in Secretary, Andhra Pradesh Social Welfare Residential Educational Institutions v. Pindiga Sridhar reported in (2007) 13 SCC 352 in paragraph 7 had observed as follows: "7.The High Court on the basis of the erroneous view upset the well-merited judgment of the learned Single Judge. By now, it is well-settled principle of law that the principles of natural justice cannot be applied in a straitjacket formula. Their application depends upon the facts and circumstances of each case. To sustain the complaint of the violation of principles of natural justice one must establish that he was prejudiced for non-observance of the principles of natural justice. In the present case, the fact on which the appellant terminated the services of the respondent appointed on compassionate ground was admitted by the respondent himself that when he applied for the post on compassionate ground by his application dated 6-5- 1996, his mother was in service. So also when he secured the appointment by an order dated 22-11-2002 his wife was in service since 3-8-1997 as Extension Officer in Rural Development and later on promoted as Mandal Parishad Development Officer at the time when he was appointed on compassionate ground. These facts clearly disclose that the appointment on compassionate ground was secured by playing fraud. Fraud cloaks everything. In such admitted facts, there was no necessity of issuing show-cause notice to him. The view of the High Court that termination suffers from the non-observance of the principles of natural justice is, therefore, clearly erroneous. In https://hcservices.ecourts.gov.in/hcservices/ our view, in the given facts of this case, no prejudice whatsoever has been caused to the respondent. The respondent could not have improved his case even if a show-cause notice was issued to him." 10.Merely because the petitioner had worked for 10 years cannot be a ground to order employment on ground of sympathy. The Supreme Court in State of West Bengal v. Banibrata Ghosh reported in (2009) 3 SCC 250 had observed in paragraphs 31 and 32 as follows: "31.Shri Ghosh, learned Senior Counsel, appearing for the respondents, at this stage, says that we should take a compassionate view of the matter, since as a result of this judgment, the respondent would be thrown in a state of unemployment. We are afraid, we cannot show any such misplaced sympathy, which was shown by the Division Bench. We are told at the Bar that this Court had issued directions to make the payment of salaries and some payments have been made to the respondent. We direct that such payments shall not be recovered from the respondent. 32.Considering that the writ petition remained pending for 10 years and thereby, the respondent might now have become barred by age for fresh employment, we recommend that the Government may consider the condonation of the age bar, if any, on the part of the respondent. We accordingly set aside the judgment of the Division Bench and restore that of the learned Single Judge and allow the appeal but without any order as to costs." 11.Further, the Supreme Court vide its judgment in Bhawani Prasad Sonkar Vs. Union of India and others reported in (2011) 4 SCC 209 had observed in paragraphs 15 and 20 as follows: "15.Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our Constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of https://hcservices.ecourts.gov.in/hcservices/ a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve. 20.Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind: (i)Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme. (ii)An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (iii)An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the bread winner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be. (iv)Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee, viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts. 12.Again, the Supreme Court in Civil Appeal No.2206 of 2006, dated 05.04.2011 in Local Administration Department and another Vs. M.Selvanayagam @ Kumaravelu in paragraphs 7 to 9 had observed as follows: "7.We think that the explanation given for the wife of the deceased not asking for employment is an after-thought and completely unacceptable. A person suffering https://hcservices.ecourts.gov.in/hcservices/ from anaemia and low blood pressure will always greatly prefer the security and certainty of a regular job in the municipality which would be far more lucrative and far less taxing than doing menial work from house to house in an unorganised way. But, apart from this, there is a far more basic flaw in the view taken by the Division Bench in that it is completely divorced from the object and purpose of the scheme of compassionate appointments. It has been said a number of times earlier but it needs to be recalled here that under the scheme of compassionate appointment, in case of an employee dying in harness one of his eligible dependents is given a job with the sole objective to provide immediate succour to the family which may suddenly find itself in dire straits as a result of the death of the bread winner. An appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependents and the financial deprivation caused to the dependents as a result of his death, simply because the claimant happened to be one of the dependents of the deceased employee would be directly in conflict with Articles 14 & 16 of the Constitution and hence, quite bad and illegal. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind. 8.Ideally, the appointment on compassionate basis should be made without any loss of time but having regard to the delays in the administrative process and several other relevant factors such as the number of already pending claims under the scheme and availability of vacancies etc. normally the appointment may come after several months or even after two to three years. It is not our intent, nor it is possible to lay down a rigid time limit within which appointment on compassionate grounds must be made but what needs to be emphasised is that such an appointment must have some bearing on the object of the scheme. 9. In this case the respondent was only 11 years old at the time of the death of his father. The first application for his appointment was made on July 2, 1993, even while he was a minor. Another application was made on his behalf on https://hcservices.ecourts.gov.in/hcservices/ attaining majority after 7 years and 6 months of his father's death. In such a case, the appointment cannot be said to sub-serve the basic object and purpose of the scheme. It would rather appear that on attaining majority he staked his claim on the basis that his father was an employee of the Municipality and he had died while in service. In the facts of the case, the municipal authorities were clearly right in holding that with whatever difficulty, the family of Meenakshisundaram had been able to tide over the first impact of his death. That being the position, the case of the respondent did not come under the scheme of compassionate appointments." 13.Though the counsel for the petitioner referred to a judgment of the division bench in W.A.No.1559 of 2009, the division bench did not go into the latest judgment of the Supreme Court and in paragraph 6 of the judgment, it was observed as follows: "6....We quite see the force in the submission of the learned Government Pleader. Compassionate appointment is not meant for persons who do not in fact face the difficulty. It is meant to tide over the immediate difficulty of the family. For a moment, we do not approve the manner in which he has obtained the employment. At the same time, it is also to be seen that in the instant case nearly after four years, the State Government has moved to cancel the appointment. Nothing is placed on record as to what action was taken against the officers, who are responsible for the disputed appointment and delayed action on the part of the Government. Almost similar facts were there in the two matters which have been referred herein in the sense that the persons were sought to be removed after passing of good number of years. Besides, by now, nearly 15 years have gone since the time the appellant has been initially appointed, and, therefore, we do not think that it will be fair to disturb his employment." 14.But, however in the present case, the first round of litigation has been negatived by this court vide its judgment in W.P.No.19890 of 2006, dated 20.11.2006. Thereafter, after reconsidering the case, the Government had negatived the same and that the petitioner is not in service after the order passed by this court. Therefore, the reliance placed upon the judgment of the division bench has no application to the case on hand. https://hcservices.ecourts.gov.in/hcservices/ 15.In the light of the above, the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petition stands closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vvk To 1.The Agricultural Production Commissioner and Secretary to Government, The State of Tamil Nadu Agricultural (A.A.8) Department, Secretariat, Chennai-600 009. 2.The Director of Agricultural Marketing and Agri-Business, Chennai-600 032. 3.The Secretary, Cuddalore Market Committee, Cuddalore. + 1 cc to Mr.G. Sankaran, SR.51897 + 1 cc to Mr.R. Muthukannu, SR.51429 + 1 cc to Government Pleader SR.51739 W.P.NO.6195 of 2009 SJ(CO) Eu 30.8.11 https://hcservices.ecourts.gov.in/hcservices/