1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.9086 of 2011 S.Venkateswaran ... Petitioner Vs. 1. The Additional Director, Land Survey and Records Department, Survey House, Chepakkam, Chennai 600 005. 2. The Assistant Director, District Survey Office, Tirunelveli 627 009. ... Respondents 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 second respondent in letter Oo.Mu.a.11/14132/10, dated 26.11.2010, quash the same and consequently, direct the respondent to provide appointment on compassionate grounds to the petitioner. For Petitioner : M/s.Sun Associates For Respondents : Mr.B.Pugalendhi, Spl.G.P O R D E R Challenge in this writ petition is to a memo, dated 26.11.2010 of the Assistant Director, District Survey Office, Tirunelveli, second respondent herein, rejecting the request of the petitioner's father, for employment assistance to the petitioner on compassionate grounds, on the ground that the application, seeking appointment has been filed after three years from the date of death of the government servant. 2. According to the petitioner, his mother was working as Draughtsman in the Office of the Assistant Director, District Survey Office, Tirunelveli. She was suffering from hysteria and was treated in a private hospital. On one particular day, she went out of the house and did not return. A police complaint was lodged. Subsequently, it was found that she died in a road accident on 03.10.2003. After obtaining necessary certificate from the Court in the year 2006, the petitioner's father made applications on 27.02.2006 and 20.04.2006 respectively, for employment assistance. At the time of death of his mother, the petitioner was aged 10 years. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The Assistant Director, District Survey Office, Tirunelveli, second respondent herein, by his letter, dated 30.03.2006, informed the petitioner's father, that he had to apply to the appointing authority for compassionate appointment. Pursuance to the said letter, the petitioner's father applied to the Assistant Director of District and Land Survey, Tirunelveli. But by impugned order, the same has been rejected on the ground that the petitioner's mother died on 03.10.2003 and that the application was not within three years' time. 4. According to the petitioner, the initial application is well within the time. Thereafter, on attaining majority on 03.06.2011, he made an application on 06.06.2011 to the second respondent, by enclosing the copy of the correspondences between 27.02.2006 and 06.06.2011. Since there was no response, the petitioner was constrained to file an application to the Additional Director of Land and Survey, Chennai, for compassionate appointment, which is still pending. In these circumstances, the impugned order has been passed. 5. Assailing the correctness of the order and placing reliance on a decision of this Court in Mohanambal v. Director of Land and Survey Department, Kanchipuram reported in 2011 (2) MLJ 47, Mr.N.Sundareshan, learned counsel for the petitioner submitted that the application for grant of appointment on compassionate grounds, by a legal heir, who was minor at the time of death of the employee, cannot be rejected on the ground of lapse of prescribed period. 6. Heard the learned counsel for the parties and perused the materials available on record. 7. Material on record shows that earlier, when the petitioner's father made a representation, dated 20.04.2006, the Assistant Director, District Survey Office, Tirunelveli, second respondent herein, in his proceedings, in Rc.No.A8/1496/04, dated 22.05.2006, has sent a reply, stating that a copy of the judgment relied on by the petitioner's father had not been enclosed along with his requisition and therefore, only after receipt of the said judgment, he could be called upon for verification, as per the Office Letter in Rc.No.A8/14967/04, dated 10.04.2006 and then, the request for grant of the terminal benefits to the deceased employee, could be considered. Subsequently, on the same lines, another letter, dated 01.09.2006, has been sent by the second respondent, requesting the petitioner's father, to send a copy of the judgment stated supra. Thereafter, when the petitioner's father, made a representation, dated 06.02.2008, to provide employment assistance to his son (petitioner herein), aged 14 years, the second respondent, without considering the earlier correspondences sent, in proceedings in O.Mu.2050/08, dated 12.02.2008, has rejected the request on the ground that the application had not been filed within three years. Subsequently, the petitioner seemed to have made another representation, dated 22.11.2010, on the ground that he had completed https://hcservices.ecourts.gov.in/hcservices/ 3 10th Standard and, sought for employment assistance, which has been rejected by the impugned order. 8. In Mohanambal Vs. Director of Land and Survey Department, kanchipuram reported in (2001 (2) MLJ 47) the petitioner's father therein died in harness, leaving behind her and mother (wife of the deceased employee). After passing Plus Two (+2) examinations, the Petitioner therein, has submitted an application in the year 2001, along with all relevant certificates and at that time, the Petitioner therein had completed 18 years of age and was not married. The said application was kept pending for seven years, due to the ban order issued by the Government in G.O.Ms.No.212, P & AR Department, dated 29.11.2001 and during the pendency of the said application, on 2.2.2004, Petitioner therein got married and her husband was not employed. The ban was lifted on 21.2.2006 and thereafter, the petitioner therein, once again made an application, dated 20.6.2007, with all the relevant documents, which came to be rejected on 24.8.2007, stating that the Petitioner was a married woman and not entitled to employment assistance on compassionate grounds. Following the judgments in Syed Khadim Hussain v. State of Bihar reported in (2006) 9 SCC 195, W.A.No.3050 of 2003, dated 8.3.2005 [Indirani Ammal v. Chief Engineer, WEB], which was confirmed by the Supreme Court in Civil Appeal No.2039 of 2006, dated 30.3.2010 and another Judgment in W.A.No.42 of 2007, dated 2.7.2009, which was also confirmed by the Supreme Court in S.L.P.(C)No.8305 of 2010, dated 6.7.2010, a learned Single Judge, set aside the impugned order and remitted the matter back to the competent authority to consider the claim of the petitioner therein, in the light of the Income Certificate produced by her. 9. In Syed Khadim Hussain v. State of Bihar reported in (2006) 9 SCC 195, wife of the deceased has applied for compassionate appointment in time and as she was found not eligible, an application submitted by the other legal heir, was directed to be considered, even after the lapse of eleven years. At paragraphs 5 and 6 of the said judgment, the Supreme Court held as follows, "5. We are unable to accept the contention of the counsel for the State, in the instant case, the widow had applied for appointment within the prescribed period and without assigning any reasons the same was rejected. When the Appellant submitted the application he was 13 years' old and the application was rejected after a period of six years and that too without giving any reason and the reason given by the authorities was incorrect as at the time of rejection, of the application he must have crossed 18 years and he could have been very well considered for appointment. Of course, in the rules framed by the State there is no specific provision as to what should be done in case the dependents are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application. https://hcservices.ecourts.gov.in/hcservices/ 4 6. As the widow had submitted the application in time, the authorities should have considered her application. As eleven years have passed she would not be in a position to join the government service. In our opinion, this is a fit case where the Appellant should have been considered in her place for appointment. Counsel for the State could not point out any other circumstance for which the Appellant would be disentitled to be considered for appointment. In the peculiar facts and circumstances of this case, we direct the Respondent authorities to consider the application of the Appellant and give him appropriate appointment within a reasonable time at least within a period of three months. The appeal is disposed of in the above terms. No costs." 10. Let me consider some of the judgments of the Supreme court, when applications were submitted, beyond the period, stipulated under the scheme or the Government orders, dealing with compassionate appointment. 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 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. https://hcservices.ecourts.gov.in/hcservices/ 5 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 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 https://hcservices.ecourts.gov.in/hcservices/ 6 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 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 https://hcservices.ecourts.gov.in/hcservices/ 7 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." 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: https://hcservices.ecourts.gov.in/hcservices/ 8 "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. 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 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 https://hcservices.ecourts.gov.in/hcservices/ 9 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