IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.08.2011 CORAM THE HONOURABLE Mr.JUSTICE D.HARIPARANTHAMAN W.P.No. 8605 of 2011 T.R.Shyamraj ... Petitioner Vs 1. The Superintendent, E.S.I Hospital, Ayanavaram, Chennai – 600 023. 2. The Director, D.M.S. (E.S.I. Wing), Teynampet, Chennai – 600 018. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus, calling for the records in the proceedings Na.Ka.No.16041/Tho.Aa.E/N/1/10 dated 27.09.2010 of the respondent and directing the respondent to issue an appointment order to the petitioner on compassionate ground on the basis of his educational qualification. For Petitioner : Mr.A.Panneerselvam For Respondents : Mr. M.C.Swamy, Special Government Pleader ORDER The petitioner's mother was employed under the respondent as Junior Assistant. She died on 10.06.1991. The petitioner joined in the course of Indian Medicine (B.A.M.S.). After obtaining the Degree, he registered his name in the Tamil Nadu Board of Indian Medicine, Chennai, on 20.07.2009. He made a representation dated 16.05.2010 to the second respondent seeking compassionate appointment, in commensurate with his qualification viz., B.A.M.S. The same was dismissed by the second respondent by an order dated 27.09.2010 on the following two grounds. https://hcservices.ecourts.gov.in/hcservices/ "(1)The petitioner should have been made an application within three years from the date of death of his mother, as per G.O.Ms.No.120, Labour Welfare Department, dated 26.06.1995. (2)The petitioner could not seek employment as an Ayurvedic Doctor citing his B.A.M.S. qualification ." 2.The learned counsel for the petitioner submits that there was no limitation prescribed for making application for compassionate appointment before the order in G.O.Ms.No.120, Labour and Employment Department, dated 26.06.1995, was passed. The Government issued order in G.O.Ms.No.120, prescribing three years period of limitation from the date of death of the Government servant to seek compassionate appointment. Even the said order was clarified by the Government in Letter No.39924/Q1/95-1, dated 11.10.1995, stating that the aforesaid Government Order is applicable only to the deaths that occur after 26.06.1995 and not to past cases. Compassionate appointments were granted to so many persons without reference to limitation. The learned counsel for the petitioner relies on the following passage from the said letter dated 11.10.1995. "...In this connection, it is clarified that the time limit of three years period specified in the Government Order first cited is applicable only to the dependants of the Government servants those who died while in service on or after 26.6.95 and the above order are not applicable to the past cases..." 3.However, the learned counsel for the petitioner is not able to explain as to how he is entitled to seek employment as an Ayurvedic Doctor which belongs to Group-B Services. 4.The learned counsel for the respondents relies on the decision of the Honourable Apex Court in State of M.P. v. Ramesh Kumar Sharma, 1994 Supp (3) SCC 661, at page 662 wherein it is held as follows: 3. Learned counsel for the appellants has contended that under the instructions in question the respondent is not entitled to a higher post of his choice merely because he fulfils the requisite eligibility qualifications. Learned counsel for the respondent has attempted to defend his case by citing the illustration of another applicant — Rajiv Dwivedi — who, according to him, was appointed in similar circumstances as APP, Grade II. The facts relating to Rajiv Dwivedi are not on record https://hcservices.ecourts.gov.in/hcservices/ and it is the mere assertion of the respondent that the circumstances are identical. Even assuming that Rajiv Dwivedi's case was similar to that of the respondent, the applicant has no right to any particular post of his choice, he can only claim to be considered for that post. It would ultimately be for the authority to decide if some common principle was involved in the two cases. If a mistake was committed in an earlier case, that cannot be a ground for directing the State to perpetuate the error for all times to come. Learned counsel for the respondent has not been able to show before us any rule or Government instructions under which the respondent can claim the post of APP, Grade II. 4. In these facts and circumstances, we think that the Tribunal was not right in allowing the case of the respondent. Accordingly, the appeal is allowed, the impugned judgment is set aside and the prayer of the respondent for his appointment as APP, Grade II is rejected. It will, however, be open to the respondent to indicate his agreement to accept the post of lower division clerk which was offered to him by the appellants in 1988 and if he does so, the appellants shall promptly appoint him against that post. 5.Yet another decision of the Honourable Apex Court in State of Bihar v. Samsuz Zoha, (1996) 4 SCC 546, at page 547, wherein it is held as follows: 4. The question that arises for consideration is whether the High Court is right in giving directions to appoint them afresh or give them promotion? It is not in dispute that there is no right vested in the candidates for particular appointment on compassionate grounds. The State had taken a policy decision to appoint all the candidates irrespective of the qualifications as Class IV post and, therefore, the Committee consisting of the Secretary, Additional Secretary and the Registrar met and decided the principle that all the available posts in Class IV should be made available to the candidates in the waiting list for appointment on compassionate grounds. 12 posts available in Class III were reserved for appointment by promotion to the Class IV candidates who were entitled thereto as per the rules. The principle adopted by the Government cannot be said to be unjustified or illegal. Undoubtedly, some candidates had gone to the court and obtained orders and in compliance thereof, at pain of contempt petition, the Government, instead of appointing them to Class IV posts since by https://hcservices.ecourts.gov.in/hcservices/ then the Class III posts were not available, upgraded Class IV post as Class III post and confirmed them as Class III employees. That order which was wrongly made by the High Court cannot be a base to issue directions. In other words, if the directions are complied with all the Class IV posts would be converted into Class III posts which is against the discipline of the service. The High Court, therefore, was not justified in issuing directions in all the cases for appointment to Class III post." 6.In view of the decision of the Honourable Apex Court, the petitioner cannot seek for appointment to the post of Ayurvedic Doctor on compassionate ground. Hence, there is no merit in the writ petition and therefore, the writ petition fails. Accordingly, this writ petition is dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. mps To 1. The Superintendent, E.S.I Hospital, Ayanavaram, Chennai – 600 023. 2. The Director, D.M.S. (E.S.I. Wing), Teynampet, Chennai – 600 018. 1 cc to Mr.A. Pnnerchelvan, Advocate, Sr. 53214 1 cc to Government Pleader, Sr. 53308 W.P.No. 8605 of 2011 SAI (CO) kk 16/9 https://hcservices.ecourts.gov.in/hcservices/