1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.8027 of 2011 K.Krishnan ... Petitioner -Vs- The Superintending Engineer Tirunelveli Electricity Distribution Circle Tamil Nadu Electricity Board Tirunelveli ... Respondent PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus calling for the records of the impugned order of the respondent in letter No. Ka.No. 009205/131/Ni.Pi.2/U.2/Ko.Va.Vac/10 dated 01.04.2010 and quash the same and further direct the respondent to provide the petitioner an employment on compassionate ground. For Petitioner : Mr.H.Arumugam For Respondent : Mr.T.S.Mohamed Mohideen Additional Government Pleader O R D E R Challenge in this Writ Petition is to an order, dated 01.04.2010, rejecting the request of the petitioner to provide employment assistance on compassionate grounds. The order reads as follows:- "jh';fs; thhpR Btiy ghh;itapy; fz;l kpd;thhpa tpjpKiwfspd; go ghprPypid bra;ag;gl;ljpy; j';fsJ je;ij jpU.Bf.fe;jd; nwe;j ehshd 3.11.2007 Kjy; 3 tUl';fSf;Fs; mjhtJ 2.11.2010f;Fs; j';fSf;F 18 taJ g {h;j;jp Mfhjjhy; thhpa tpjpKiwg;go j';fSila thhpR Btiy tpz;zg;gj;jpid ghPrpyid bra;a nayhJ vd;w tpguk; bjhptpj;Jf;bfhs;sg;gLfpwJ." 2. Pleadings disclose that the petitioner's father employed as Electric Line Inspector, Tamil Nadu Electricity Board,who met with an accident on 03.11.2007, died, in harness leaving behind the petitioner, his mother, brother and two sisters, as legal heirs. At the time of death, the petitioner was aged only 14 years. It is the further contention of the petitioner that after completing SSLC, he had joined diploma course of engineering and being the elder member in the family, he is saddled with a liability to maintain the family and in such instances, made an application on 24.03.2010 to the respondent requesting for employment assistance which has been rejected by the impugned order on the ground that the petitioner had not completed 18 years of age within three years after his death of father, and the application made cannot be considered. 3. In addition to the above pleadings and in support of the relief sought for, Mr.H.Arumugam, learned counsel for the petitioner placed reliance on a decision made in Mohanambal Vs. Director and others reported in (2011) 2 MLJ 47. In the above Writ Petition, the request of the petitioner herein rejected on the ground that the application was made beyond the prescribed period. After considering, the decisions https://hcservices.ecourts.gov.in/hcservices/ 2 reported in Punjab National Bank Vs. Ashwini Kumar Taneja reported in 2004-III-LLJ-536, Sanjay Kumar Vs. State of Bihar reported in (2000) 1 MLJ 44, Santosh Kumar Dubey Vs. State of Uttar Pradesh reported in (2009) 5 MLJ 1284, Syed Khadim Hussain V. State of Bihar reported in (2006) 9 SCC 195 and U.Arulmozhi V. Director of School Education reported in 2006 (2) LW 324, a learned Single Judge of this Court has held that the application for compassionate appointment submitted on attainment of majority by legal heir, who was a minor at the time of death of employee, has to be considered for grant of appointment and cannot be rejected on the ground of lapse of prescribed period. 4. Pleadings disclose that the petitioner's father died and at that time, he was only aged at 14 years. Employment assistance is provided to the dependents of a Government Servant, who die in harness to tide over the financial constraint. Employment assistance can be sought for by any one of the legal heirs, whose eligible for any post in the establishment / Government, subject to satisfying the eligibility criteria and the recruitment rules. The Hon'ble Supreme Court has also consistently held that belated applications claiming employment assistance should not be entertained, as it would be amounting to importing a proposition of condonation in making an application, which ought to have been made within the prescribed period. Merely because a legal heir was a minor at the time of death of the employee, it cannot be said that the right to seek for employment assistance continuous to remain till he/she attains majority or the necessary qualifications required for any post applied for. In the case on hand, when the petitioner applied for the post on compassionate grounds, he was a minor, and therefore, the competent authority has rejected his candidate. No minor, can seek for appointment to any civil post, in the State service or Corporation etc. Useful reference can be made to the following decisions of the Supreme Court, as to how the scheme for employment assistance, has to be implemented. 5. 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 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. 6. 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: https://hcservices.ecourts.gov.in/hcservices/ 3 "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." 7. 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 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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." 8. As regards the extended period, on attaining the majority, the Apex 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 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. 9. 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 https://hcservices.ecourts.gov.in/hcservices/ 5 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 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." 10. 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 https://hcservices.ecourts.gov.in/hcservices/ 6 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." 11. In Director, Defence Metal Research Laboratory v. G. Murali, reported in 2003(9) SCC 247, the claimant was aged about two years, at the time of death of his father and that his application for compassionate ground appointment made, on attainment of majority was rejected, on the ground of non-availability of the posts. The Central Administrative Tribunal, rejected the challenge. However, the High Court directed appointment on compassionate grounds and that too, with a direction to the respondent's therein to create a post to accommodate him. The Civil appeal filed by the Director (Defense) and another, was allowed and at paragraph No.4, the Supreme Court opined as follows: "4. We do not find any flimsy ground or technicalities in the Tribunal’s order. In fact, we find the High Court’s order to be unsustainable. There has been a failure to appreciate what the Tribunal had rightly taken into account, namely, that the writ petitioner and his family had coped without the compassionate appointment for about eighteen years. There was no warrant in such circumstances for directing the writ petitioner’s appointment on compassionate grounds and that too with the direction to the respondents to the writ petition to create a post to accommodate him" 12. In National Hydroelectric Power Corporation and Anr. Vs. Nanak Chand and Anr., reported in 2004 (12) SCC 487, father of the respondent was working under Hydro Electric Project of Government of India and died on 10.12.1976. The project was handed over to the appellant Corporation in 1978. The respondent after attaining majority in 1986 applied for compassionate appointment which was rejected on the ground that the application was made after 10 years and that Corporation had surplus staff. 13. Placing reliance on the instructions issued by the Government as contained in Swamy's Complete Manual and Establishment and Administration, the High Court granted the relief in favour of the respondent/dependent. Setting aside the said order, the Supreme Court, after referring to a catena of decisions held that the impugned judgment therein as unsustainable. The Apex Court further held that the fact that the ward was a minor at the time of death of his father, was no ground to grant compassionate ground appointment, unless the Scheme itself envisages. 14. In State Bank of India v. Somvir Singh, reported in 2007 (4) SCC 778, at Paragraphs 7 and 10, the Apex Court held as follows: "7. Article 16(1) of the Constitution of India guarantees to al its citizens equality of opportunity in matters relating to employment or appointment to any office under the State. Article 16(2) Protects citizens against discrimination in respect of any employment or office under the State on grounds only of religion, race, caste, sex and descent. It https://hcservices.ecourts.gov.in/hcservices/ 7 is so well settled and needs no restatement at our end that appointment on compassionate grounds is an exception carved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. Such appointments are required to be made on the basis of open invitation of applications and merit. Dependents of employees died in harness do not have any special or additional claim to public services other than the one conferred, if any, by the employer. 10. There is no dispute whatsoever that the appellant bank is required to consider the request for compassionate appointment only in accordance with the scheme framed by it and no discretion as such is left with any of the authorities to make compassionate appointment dehors the scheme. In our considered opinion the claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules, etc. framed by the employer in the matter of providing employment on compassionate grounds. There is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be." 15. In Eastern Coalfields Ltd. Vs. Anil Badyakar and Ors., reported in 2009 (13) SCC 122, died on 31.12.1981. Initially, wife of the deceased sought for appointment and subsequently, the elder daughter made an application for compassionate appointment on 07.03.1983. Thereafter, there was an understanding between the family members and the 2nd daughter's husband (respondent before the Apex Court) who was nominated for seeking appointment on compassionate grounds, which was also given to him, on 10.05.1993. But the competent authority, who was to grant post facto approval, cancelled it, on 23.09.1993, on the ground that the appointment cannot be given after a lapse of 12 years from the date of death of the employee. Cancellation of the appointment made, i.e., in extending the benefit to the son-in-law of the deceased, after 12 years was held as invalid by the High Court. After considering the nature and object of appointment, on compassionate grounds the Apex Court and at paragraph Nos.7 to 19 of the decisions on compassionate grounds have been extracted as follows: "7. In the case of Jagdish Prasad v. State of Bihar 1996 (1) SCC 301 , it was observed that: The very object of appointment of a 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 the earning member of the family. 8. In MMTC Ltd. v. Pramoda Dei : (1997) 11 SCC 390 , it is observed by the court: As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment. https://hcservices.ecourts.gov.in/hcservices/ 8 9. In the case of S. Mohan v. Government of T.N., reported in 1998 (9) SCC 485 , the court stated that: 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. 10. This Court has observed in Director of Education (Secondary) v. Pushpendra Kumar, reported in 1998 (5) SCC 192 : The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure 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, a provision is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee. In Umesh Kumar Nagpal v. State of