1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/08/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.9063 of 2011 M.Archana Devi ... Petitioner Vs 1. The District Collector The District Collector office, Tirunelveli District. 2. The Block Development Officer (BDO) Panchayat Union Office, Vasudevanallur, Tirunelveli District. ... Respondents Prayer : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus to direct the first respondent to provide the petitioner a suitable employment on compassionate ground. For petitioner ...Mr.K.M.Boopathy For respondents ... Mr.T.S.Mohammed Mohideen Additional Government Pleader O R D E R The petitioner has sought for a mandamus directing the first respondent to provide the petitioner a suitable employment on compassionate ground. 2. Mr.T.S.Mohammed Mohideen, learned Additional Government Pleader, takes notice on behalf of the respondents. By consent, this writ petition is taken up for final disposal. 3. Mandamus sought for to provide employment assistance to the petitioner has already been rejected on 28.02.2011 by the District Collector (Development), Tirunelveli, on the ground that when the petitioner's mother sought for an employment assistance to the petitioner, she was a minor. On attaining the majority, the petitioner has made representations, dated 30.05.2011 and 05.08.2011, to the respondents to provide employment assistance. 4. On the aspect of 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. 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 https://hcservices.ecourts.gov.in/hcservices/ 2 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: "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 https://hcservices.ecourts.gov.in/hcservices/ 3 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." 8. 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 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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 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. https://hcservices.ecourts.gov.in/hcservices/ 5 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." 11. 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. The 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 compassionate ground appointment, in which a specific time period has been stipulated within which the 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 https://hcservices.ecourts.gov.in/hcservices/ 6 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 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 https://hcservices.ecourts.gov.in/hcservices/ 7 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 right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependent of the deceased employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision." On the above said grounds, the Supreme Court set aside the orders of the High Court. 12. 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 https://hcservices.ecourts.gov.in/hcservices/ 8 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" 13. 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. 14. 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. 15. 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 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.