IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.12.2011 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN Writ Petition No.10490 of 2008 & M.P.No.1 of 2008 V.Sampath .. Petitioner Vs. 1. The District Collector, Thiruvannamalai District, Thiruvannamalai. 2. Thiruvannamalai Panchayat Union, rep. by its Commissioner, Thiruvannamalai. .. Respondents Writ Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, to call for the records in Na.Ka.2613/2007 Pa A.I, dated 2.1.2008 on the file of the first respondent and quash the same and direct the respondents to appoint the petitioner on compassionate grounds. For petitioner : Mr.K.Shanmugakani For respondents: Mr.M.Dig Vijaya Pandian, Addl.G.P. For R-1 Ms.C.K.Vishnupraiya for R-2 ORDER The son of the deceased Government employee challenges the order of rejection of compassionate appointment in the proceedings of the first respondent/District Collector in Na.Ka.No.2613/2007/PA/AA1, dated 2.1.2008, seeking to quash the same and for a consequential direction to the respondents to appoint the petitioner on compassionate grounds. 2. The case of the petitioner is as follows: (a) The petitioner's father Vadivel was employed as a Class IV employee in Tiruvannamalai Panchayat Union Office, and he died in harness on 2.10.1995, leaving behind his wife--Smt.Boopathy, two sons--Saravanan and Sampath (writ petitioner) and one daughter-- Vasanthi. His father was the sole bread winner of the family and they https://hcservices.ecourts.gov.in/hcservices/ have no other source of income. On the sudden demise of the petitioner's father, the family was forced to stand on the streets. (b) After the death of the petitioner's father, the petitioner applied for a Legal Heirship certificate, but the Village Administrative Officer (for short, 'the VAO') of Mettu Kosalai Village, without issuing the heirship certificate of his deceased father Vadivel, tried to project as if the said Vadivel was married to one Laxmi and as such, the said Laxmi was the widow of the said deceased Vadivel and fabricated documents to show as the heirs of the deceased Vadivel. (c) While that being the position, the petitioner's mother filed a Writ Petition before this Court in W.P.No.1188 of 1996 for a direction to the respondents to issue the Legal Heirship Certificate and this Court directed the respondents therein to consider the representation of the petitioner therein and pass orders. However, the Tahsildar, Tiruvannamalai, passed the order on 22.5.1996, directing the petitioner to get the orders from the Civil Court by obtaining a succession certificate. (d) Therefore, the petitioner and the other heirs of the deceased Vadivel filed a civil suit in O.S.No.5555 of 1999 before the 18th Assistant Judge, City Civil Court, Chennai for a declaration that the plaintiffs are the heirs of the deceased Vadivel and also for a consequential direction that the plaintiffs (legal heirs of the deceased Vadivel) are entitled to get the terminal benefits arising out of the death of Vadivel. Pending the suit suit, the alleged wife of the deceased Vadivel, namely Lakshmi, the Village Administrative Officer, Mettukosalai Village, Tiruvannamalai, Secretary of the Local Administration Department, Chennai, Paramasivam and the Executive Officer of Thiruvannamalai Panchayat Union, were impleaded as parties to the said suit. All the parties have filed their pleadings and contested the case for trial and let in oral and documentary evidence. After the contested trial, the learned 18th Assistant Judge, City Civil Court, granted a decree as prayed for on 4.4.2005 and declared the plaintiffs (one of the sons, Sampath--writ petitioner herein, Boopathy--wife of the deceased Vadivel, Saravanan--another son of the deceased Vadivel and Vasanthi--the daughter of the deceased Vadivel) as the heirs of the deceased Vadivel and also held that the plaintiffs are entitled to get the terminal benefits on the death of Vadivel. (e) Only thereafter, the petitioner was able to approach the appropriate authorities to get the certificates, which are indispensably required for making application on compassionate grounds. As the petitioner's father Vadivel (deceased) was a Class IV employee in the second respondent-Panchayat Union, on a regular appointment and had died in harness on 2.10.1995, the petitioner is entitled to get appointment on compassionate grounds. https://hcservices.ecourts.gov.in/hcservices/ (f) Due to the sudden demise of the petitioner's father, the entire family was stranded on the streets in the midst of lengthy litigation, and only after the decree of the Civil Court in the said suit, the petitioner was able to obtain the following certificates: (i) Conduct Certificate; (ii) Death Certificate of the deceased Vadivel (petitioner's father); (iii) Tahsildar Certificate of the death of Vadivel in harness; (iv) Tahsildar Certificate about the properties held by the deceased and the source of income; (v) The Certificate issued by the Tahsildar that the deceased Vadivel's widow was not re-married and (vi) The Certificate issued by the Tahsildar about the family status of the petitioner. (g) After getting the necessary certificates, on 14.2.2007, the petitioner applied to the first respondent-District Collector for appointment on compassionate grounds due to the death of his father. The District Collector however passed the order on 2.1.2008, rejecting the application on compassionate grounds, on the sole ground that the application for appointment on compassionate grounds, was made after three years from the date of the death of the petitioner's father on 2.10.1995. 3. The petitioner assails the impugned order of rejection of application seeking for appointment on compassionate grounds, on the following grounds: (i) The impugned order passed by the first respondent-District Collector is arbitrary, il, unjust and against the principles of law and justice. (ii) The respondents have failed to take note of the circumstances under which the petitioner's family was forced to approach the Civil Court for getting the necessary declaration of the status and because of their approach to the VAO and due to the lengthy litigation period, the delay has occurred, and therefore, the impugned order passed by the first respondent is without considering the circumstances and the material facts in getting the Legal Heirship Certificate, which is a necessary document to be enclosed along with the application seeking for compassionate appointment. 4. The respondents have filed their counter affidavit, inter-alia https://hcservices.ecourts.gov.in/hcservices/ stating as follows: (i) The petitioner Thiru.V.Sampath who is the son of late Thiru.Vadivel, who was working as Gang Coolie in Tiruvannamalai Panchayat Union Office, died on 2.10.1995 while in service. The family of the deceased employee included his wife Tmt.Bhoopathy, daughter--Tmt.Vasanthi, sons--Saravanan and Sampath (writ petitioner). (ii) The petitioner being one of the heirs of the deceased employee submitted application for appointment on compassionate grounds belatedly on 14.2.2007 to the Block Development Officer (for short, 'the BDO'), Tiruvannamalai, and after scrutinising the relevant documents, the proposal for compassionate grounds appointment was forwarded to the Director of Rural Development and Panchayat Raj Department, in the office letter No.2613/2007/PA4, dated 28.5.2007 for orders. (iii) In the meantime, the Government constituted a Staff Committee for compassionate appointment and its recommendations were placed before the Cabinet and based on the decision taken by the Cabinet, the Government ordered new guidelines in G.O.Ms.No.42, Labour and Employment (Q1) Department, dated 12.3.2007. The time limit fixed for filing the application under compassionate grounds, is three years from the date of the death of the Government servant, and this was subsequently clarified by the Government in Letter No.202, Labour and Employment Department, dated 8.10.2007, stating that the guidelines issued in the abovesaid G.O. are applicable for all present, past and future cases and the time for filing of the application shall be three years from the date of the death of the Government servant and it is applicable to all cases including where the Government servant who died in harness even prior to 26.6.1995. (iv) The death of the employee in this case occurred on 2.10.1995 and the application for appointment under compassionate grounds, should have been submitted within three years, whereas the application was made by the petitioner on 14.2.2007, after a lapse of 12 years, and therefore, based on the guidelines and the instructions of the Director of Rural Development, Chennai, the application of the petitioner was rejected and the intimation was sent to him in the Office Letter No.PA4/2613/2007, dated 2.7.2008. (v) The petitioner stated that there was a dispute pending before 18th Assistant Judge, City Civil Court, Chennai, for getting the Heirship Certificate and it took time to declare him as one of the heirs of the deceased employee (petitioner's father) and finally on 4.4.2005, the Civil Court passed the orders, but the petitioner- applicant should have submitted his application for appointment on compassionate grounds within three years with all the other documents before the authority, and hence, the fact that the petitioner- https://hcservices.ecourts.gov.in/hcservices/ applicant has failed to submit his application within time, is proved. (vi) The application on compassionate grounds appointment should be made within three years from the date of the death of his father. The petitioner's father died on 2.10.1995, but the application seeking compassionate appointment was made belatedly after 12 years from the date of his father's death, and therefore, as per the Government Orders issued periodically, the application for compassionate appointment shall be made within the time limit, which is contrary to the guidelines of the Government in the said Government letter dated 8.10.2007, fixing the three years' period of time from the date of the death of the Government servant to make an application and it cannot be deviated from such rules and guidelines for any reason and on the ground of belated application, the petitioner's request has been rejected, as he has made the said application only on 14.2.2007. (vii) The application of the petitioner was rejected based on the Government instructions which were issued based on the observations and directions of the Supreme Court. The explanation of the petitioner is not acceptable in respect of the delay in making the application after 12 years, for the reason that though it took him time to obtain the Legal Heirship Certificate belatedly, he should have submitted his application requesting the appointment under compassionate grounds along with all the other documents including the heirship Certificate and he should have registered his name in time, but the petitioner has failed to do the same, within the prescribed time. The administration will not be held responsible and he has failed to submit his application in time and without procuring the Legal Heirship Certificate, the application could not be processed, as per the Government Orders and guidelines. The Supreme Court observed that the very purpose of giving compassionate appointment scheme is only to help the family of the deceased Government servant to tide over the sudden indigent circumstances unexpectedly happened when such application is made in time by the sudden and the death of the Government servant. (viii) The issue is whether the family is in indigent circumstances, and the application should have been made in time, if really needed, and in this case, the application was made after 12 years from the date of the death of the Government servant, and obviously, the family cannot be considered to be in indigent circumstances and the time limit shall be three years for filing of application from the date of the death of the Government servant and the same is applicable to all cases, including where the Government servant died in service even prior to 26.6.1995 also. Therefore, the respondents pray for dismissal of the Writ Petition. 5. Mr.K.Shanmugakani, learned counsel appearing for the https://hcservices.ecourts.gov.in/hcservices/ petitioner, in his submissions, strenuously contended that immediately after the death of the petitioner's father, the petitioner applied for heirship Certificate, but the VAO of the concerned Village, dragged the matter and ultimately, a writ petition was filed by the petitioner's mother before this Court, and it is stated by the learned counsel for the petitioner that this Court in the said W.P., directed the authorities to consider the representation of the petitioner's mother, and only then, the Tahsildar concerned has directed the petitioner to approach the Civil Court for obtaining the succession certificate, which shows as if there was a dispute with regard to the heir status of the family. The Legal Heirship Certificate/Succession Certificate are basic documents for claiming the appointment on compassionate grounds and as there was delay in obtaining the same, the petitioner could not make his application for compassionate appointment immediately. 6. Learned counsel for the petitioner further contended that though the family of the petitioner was in indigent circumstances, they have spared no efforts to move the concerned authorities for necessary certificates and applied before the authority concerned for compassionate appointment. The Tahsildar of Tiruvannamalai District, instead of considering the representation of the petitioner seeking for compassionate appointment in right spirit, directed the petitioner to obtain succession certificate from the Civi Court, and subsequently, they have also moved the competent Civil Court to obtain a declaration and consequential direction and thereafter, after obtaining the Civil Court's decree, the petitioner has immediately moved the competent authority claiming appointment on compassionate grounds. Steps have also been taken by the petitioner's mother in 1996 by filing Writ Petition before this Court, as stated above, and the pendency of litigation is itself a proof that they have meticulously taken efforts to get the Legal Heirship Certificate/Succession Certificate, even though the authorities before whom they have moved, were not doing their duties diligently and acted in snail's pace in guiding the petitioner about the limitation in making the application for compassionate appointment. However, in the interregnum, the delay has occurred, which is neither wilful nor wanton, and it cannot be solely attributed on the part of the petitioner, but it was only due to the process in obtaining necessary Certificates from the concerned authorities, and the petitioner was diligently approaching the authorities as per law and was taking appropriate steps, which are all evident even from the counter affidavit filed by the respondents. 7. It is the further contention of the learned counsel for the petitioner that the guidelines were fixed by the Government in the various Orders issued from time to time. It is to be noted that the application of the petitioner seeking for compassionate appointment was made even before the clarification letter of the Government dated 12.3.2007, which gives the three years' limitation and it has https://hcservices.ecourts.gov.in/hcservices/ stated in categorical terms that the time limit would apply to all the past, present and future cases also. For all the above reasons, the impugned order of rejection of compassionate appointment, suffers from infirmities and it cannot be sustained, and the same cannot be put against the petitioner to deprive his legitimate claim for compassionate appointment. 8. Learned counsel for the petitioner relied on the following decisions in support of his above contentions: (a) 1998 (5) SCC 192 (Director of Education (Secondary) Vs. Pushpendra Kumar): 8. 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 dependants 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. ........ In Umesh Kumar Nagpal Vs. State of Haryana (1994 (4) SCC 138 = 1994 SCC (L & S) 930 = 1994 (27) ATC 537) this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that the Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. .... " (b) 2000 (7) SCC 192 (Sanjay Kumar Vs. State of Bihar): "3. .... 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 breadearner who had left the family in penury and without any means of livelihood. In https://hcservices.ecourts.gov.in/hcservices/ fact such a view has been expressed in the very decision cited by the petitioner in Director of Education Vs. Pushpendra Kumar (1998 (5) SCC 192 : 1998 SCC (L & S) 1302 : 1998 (2) Pat LJ 181). ...." and (c) 2010 (7) MLJ 644 (Madras High Court): (M.Uma Vs. Chief Engineer (Personnel), TNEB): "Aggrieved by the rejection of her claim for appointment on compassionate grounds, a writ petition has been filed by the petitioner." "Whether the order rejecting the application for appointment on compassionate grounds on the ground that it was not submitted within three years from the date of the death of the deceased employee is justified?" "10. In the light of the above judgments of the Supreme Court as well as the Division Bench judgments of this Court and having regard to the fact that the petitioner's application was rejected by order dated 26.2.2005 on the ground that she has not submitted the application within three years and the application was submitted by the petitioner's brother on 29.4.2002 and after the said rejection, the petitioner applied on 10.6.2002 and the proof of sending the application is filed in the typed set of papers and also the fact that the petitioner's family is still in indigent circumstances, I am of a firm view that the petitioner has made out a case to issue a mandamus directing the respondents to consider the claim of the petitioner seeking compassionate appointment without reference to the objection raised in the impugned order, i.e. the petitioner has not applied within three years from the date of the death of the petitioner's father. Necessary revised order is directed to be passed by the respondents within a period of three months from the date of receipt of a copy of this order. No costs." "The application for the appointment on compassionate grounds is not to be rejected on the ground that it was filed after a lapse of time and the application, is to be considered on its own merits". Learned counsel for the petitioner also relied on various other decisions of the Apex Court, which have all been quoted by this Court in-extensu, in the decision reported in 2011 (4) MLJ 438 (Madurai Bench) (A.Musthfa Iqbal Basha Vs. State of T.N) (W.P.(MD).No.119 of 2010, dated 15.3.2011), and hence it is enough to quote the said https://hcservices.ecourts.gov.in/hcservices/ decision of this Court reported in 2011 (4) MLJ 438 (cited supra) for the ratio-decidendi of this Writ Petition and the dictum laid down by this Court in 2011 (4) MLJ 438 (cited supra) is as follows: "Writ Petition has been filed for quashing the order passed by the District Educational Officer rejecting the claim for compassionate appointment of petitioner and to direct the respondents to pass an order of appointment for any suitable post on compassionate ground in any of the Government Schools." "Whether lapse of time in filing application can be a ground for rejecting the claim for compassionate appointment?" "Any delay in the submission of application for compassionate appointment on the reason of attainment of majority of applicant, does not give an implication that the family of the concerned deceased Government employee has gotten over their indigent circumstances and an order rejecting such claim for compassionate appointment on ground of such lapse of time is unsustainable." "5a. In support of his case, learned counsel for the petitioner has relied on the following : (i) a decision of this court reported in (2004) 4 MLJ 238 in the case of T.Meer Ismail Ali vs. Tamil Nadu Electricity Board & others "3. It is not in dispute that the petitioner completed 18 years of age only in the year 2000. When the petitioner's earlier application was rejected on the ground that he did not complete 18 years of age, it cannot be held that the petitioner was not diligent in seeking for compassionate appointment at the earliest point of time. In fact, immediately after attaining 18 years of age and also after qualifying on 04.07.2000, in all fairness, the respondent should have considered the petitioner's claim on merits. In fact in the application, the petitioner would claim that one of his sisters is mentally retarded and therefore, he is the only bread winner of the family. 4. In such circumstances, it was a deserving case where the respondent should have shown some compassion while considering the petitioner's application for compassionate appointment. Unfortunately, the respondent did not seem to have https://hcservices.ecourts.gov.in/hcservices/ shown any compassion at all and mercilessly rejected the petitioner's application on a hyper technical ground." (ii) another decision of this court reported in (2010) 7 MLJ 644 in the case of M.Uma vs. Chief Engineer (Personnel), Tamil Nadu Electricity Board, Chennai and another "13. Though the learned single Judge while rejecting the request of the petitioner relied on judgment of one of us (PSJ) made in W.P.No.14134 of 1991 dated 25.01.1999 and the case of Union of India vs. Bhagwan Singh (1995) 6 SCC 476 as well as the case of State of U.P. vs. Parasnath 1998 (2) SCC 412, for the same reasons as stated in para 11 above, those judgments are not directly applicable to the case on hand. In the case of G.Vijayaraghavan vs. General Manager (P) Indian Bank 2000 (3) LLN 625, learned single Judge of this court (PSJ) in similar circumstances directed the Indian Bank to consider the claim of the petitioner therein, who made an application on attaining majority for employment on compassionate ground. In that decision, it is held that, irrespective of settlement of full term service gratuity and other benefits, eligible person can claim appointment on compassionate grounds. (iii) yet another judgment of this court, dated 17.06.2010 made in W.P.No.3078 of 2006 in the case of R.Prasath vs. The Secretary, Labour and Employment Department and others "16.Though we are conscious of the directions of the Supreme Court which we have already referred to in the earlier part of our order, in view of the Board's proceedings referred to above and of the fact that that the petitioner has made an application within three years from the date of death of her husband. i.e., within the prescribed period and also made subsequent application as directed by the 2nd respondent and also taking note of the assertion of the petitioner that after her husband's death, in the absence of any income, she is living in poverty, her claim has to be considered. In this regard, it is worthwhile to refer the case of the Supreme Court in the case of Balbir Kaur vs. Steel Authority of India Ltd. reported in 2000 (6) SCC 493, wherein, their https://hcservices.ecourts.gov.in/hcservices/ Lordships have held that in the case of appointment considering the social and economic justice as enshrined in the Constitution, denial of deserving cases are liable to be set aside. Further, the purpose of providing compassionate ground to a son or daughter or a near relative of the deceased government servant is to render assistance to the family, which is found in indigent circumstances. Hence, in considering the case for compassionate appointments, the authorities are supposed to adopt a humane outlook. We do not find any delay or laches on the part of the petitioner, we are unable to accept the conclusion arrived at by the learned single Judge in