IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.02.2008 CORAM: THE HONOURABLE MR. JUSTICE S.MANIKUMAR Writ Petition No. 6528 of 2006 W.P.M.P.No.100 of 2008 R.Manikandan .. Petitioner v. The Superintendent of Police District Police Office Namakkal District alias Namakkal. .. Respondent Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified Mandamus, to call for the records relating to the order of the respondent herein passed in his proceedings Na.Ka.No.A5/31060/2001 dated 31.10.2005 passed by the respondent herein rejecting the petitioner's case for consideration of appointment on compassionate grounds and quash the same and direct the respondent to consider the petitioner's case for appointment on compassionate grounds, as Junior Assistant or tTypist in the police department will all consequential monetary and service benefits and for further orders. For petitioner : Mr. S.Ravi For respondents : Mr. A.Arumugam AGP O R D E R The petitioner has sought a Writ of certiorarified Mandamus, to quash the order of the respondent, dated 31.10.2005, rejecting his case for consideration of appointment on compassionate ground and consequently for a direction to the respondent to consider his application for the post of Junior Assistant or Typist in the department and for further orders. 2. It is the case of the petitioner that his father, S.P.Ramachandran, was a Head Constable in Namakkal District and during his life time, he married one Pappa and they had a female child by name Selvi. His wife Pappa died on 5.1.1982 due to illness. After her demise, the petitioner's father married his mother, R.Subbulakshmi on 4.6.1982. After the second marriage, first wife's daughter, Selvi married one Thiru.S.Elangovan on 05.03.1999. He was self-employed and both of them are living separately. When the petitioner's father was in service at Namakkal District, he died on 18.12.1999. Except the salary of his father, there was no other source of income. The retirement benefits of the petitioner's father were paid to petitioner's mother, as she was the nominee and surviving member of the family. She was also paid family pension at the rate of Rs.1400/- per month. 3. It is the further case of the petitioner that as per the Government guidelines, the application for appointment on compassionate grounds, should be submitted within three years from the date of death of the government servant and since his father had expired on 18.12.1999, the petitioner ought to have submitted his application on or before 18.12.2002. He passed SSLC on 20.12.2000 and was qualified for appointment to the post of Junior Assistant. Subsequently, he passed Typewriting both in English and Tamil (Junior Grade) in February, 2001 and also acquired Senior Grade in English Typewriting. Though he would be completing 18 years of age only in the year 2003, considering the indigent circumstances and that the family pension of Rs.1400/- was insufficient to meet the basic needs, his mother submitted a representation, dated 29.01.2001 to the District Superintendent of Police, Namakkal District to provide him an appointment as Junior Assistant or Typist on compassionate grounds. Subsequent to the filing of the application, the petitioner had passed +2 Examination on 16.5.2002. 4. The petitioner has further submitted that in response to the said application, a communication was sent to his mother, calling upon her to explain as to whether, Mrs.Selvi, daughter of the first wife, Pappa, was living with the deceased before his death and her present status. In reply to the said communication, his mother furnished all the details regarding the marriage of Mrs.Selvi and particulars of separate to the respondent. To that effect, the petitioner's sister, Mrs.Selvi also gave a letter, stating that after marriage, she is living separately with her husband, who is self-employed. Subsequently, on 11.3.2005, the Superintendent of Police, Namakkal District instructed his mother to send the Income Certificate from the Tahsildar. The required documents viz., (1) No Objection Certificate from the elder sister of the petitioner, (2) Legal Heir Certificate, (3) Income Certificate etc., were submitted as required by the department. Inspite of production of all the documents as called for by the department, the respondent, by order dated 30.11.2005, has rejected the request of the petitioner on the sole ground that, the petitioner is the son of the second wife and there is no provision in the Government Order to provide appointment to the son of the second wife on compassionate ground. Aggrieved by the said order, the petitioner has filed this Writ Petition for the relief as stated above. 5. The respondent in his counter affidavit has submitted that the petitioner was born through the second wife of the deceased government servant, S.P.Ramachandran, who served as Grade I Police Constable in the Police Department and died on 18.12.1999, while he was in service. After his demise, one R.Subalakshmi, second wife of the deceased government Servant and mother of the petitioner, has submitted a petition on 29.1.2001, for employment to the petitioner on compassionate grounds. Her petition was processed and particulars were also obtained. Finally, her request was rejected on 30.10.2005 on the ground that there is no provision to provide employment to the children born through the second wife of the deceased government Servant under Compassionate ground scheme, as per Government Letter No.125/B1/85, dated 30.4.1985 and G.O.Ms.No.2(D) No.390, Home (Pol.XV) Department, dated 4.12.2000. 6. The respondent has further contended that the appointment under compassionate ground cannot be claimed as a matter of right, since the scheme itself is only to mitigate the hardship faced by the family members of the deceased government servant and when there is a restriction in providing employment to the children born to the second wife, no interference is warranted to quash the impugned order and hence, prayed for dismissal of the Writ Petition. 7. Mr.S.Ravi, learned counsel for the petitioner submitted that when the government have issued orders, providing employment to the dependants of the deceased government Servant, who died in harness, it is applicable to a legitimate child of a government Servant and there cannot be any difference on the ground that the child was born through the second wife. He further submitted that after the demise of the first wife, in order to take care of his six months old female child, the deceased government servant married the petitioner's mother on 4.6.1982 and therefore, the marriage is valid under the Hindu Marriage Act and the children born to them are legitimate. He further submitted that when the policy of the government is to extend the benefit of compassionate appointment to a legitimate child of the government servant, denial of the same on the ground that there is no provision in the rules to appoint a second wife's son on compassionate ground, is contrary to the policy of the Government. 8. Learned counsel for the petitioner further submitted that Mrs.Selvi, daughter of the first wife got married to one Elangovan on 5.3.1999 and that she has also given a No Objection Certificate to the respondent, stating that she is not interested in claiming any government job, as she is living with her husband. He further submitted that when all the required documents, such as, Legal Heir Certificate, No Objection Certificate, Non-Employment Certificate issued by the Tahsildar to the petitioner's mother, Indigent Certificate and Property Certificate etc., were furnished to the Superintendent of Police, Namakkal District, he ought to have provided appointment on compassionate grounds and after keeping the application for a considerable period of four years from the date of receipt of application, has arbitrarily rejected the same, stating that there are no provisions in the rule to provide appointment to the second wife's son. 9. Learned counsel for the petitioner further submitted that the petitioner has passed +2 and Typewriting English Senior Grade as well as Tamil Typewriting Junior Grade. As per the recruitment rules, the petitioner possesses required qualifications for the post coming under the purview of the Tamil Nadu Public Service Commission and therefore, appointment on compassionate grounds can be given and later, the concurrence of the Tamil Nadu Public Service Commission can be obtained under Rule 16 (b) of the TNPSC Regulations, 1954 as done in other cases of compassionate appointment. He further submitted that when the petitioner was qualified for appointment, the respondent has unnecessarily delayed the disposal of the representation submitted by the petitioner's mother, without considering the intention of the beneficial policy to the Government to provide immediate assistance to the family members of the deceased Government servant, who are in indigent circumstance. 10. Learned counsel for the petitioner further submitted that the impugned order has merely states that a legal heir of the second wife of a deceased government servant is not entitled to compassionate appointment, as there is no provision in the government orders and the reasons stated is arbirary. Referring to the objections stated in paragraph 7 of the counter-affidavit filed by the respondent, he further submitted that Government Letter No.125/B1/85, dated 30.4.1985 and G.O.Ms.No.2(D) No.390 Home (Pol. XV) Department dated 4.12.2000, are not applicable to the facts of the present case. 11. Per contra, Mr.A.Arumugam learned Additional Government Pleader appearing for the respondent, placing reliance on G.O.Ms.No.2(D) No.390 Home (Pol. XV) Department dated 4.12.2000, submitted that the petitioner is not entitled to compassionate appointment, as there is no provision in the rules to provide appointment to a son of the second wife of the deceased government servant. He has no answer as to why the particulars were called for on earlier occasions. Heard the counsel appearing for the parties and perused the materials available on record. 12. Before adverting to the facts of the case, it would be relevant to extract few Government Orders, dealing with appointment on compassionate grounds. The Government have issued certain clarifications in G.O.Ms.No.155, Labour and Employment Department, dated 16.7.93 with regard to appointment to one member, if another member was already employed in the family of the deceased. The said G.O., is extracted hereunder: Government of Tamil Nadu Abstract Public Services  Appointment on compassionate grounds indigent circumstances of families of deceased Government servant  Provident Fund & Death  Retirement Gratuity not to be included  Appointment to one member if another member was already employed in the family of the deceased  Clarification  issued. Labour and Employment Department G.O.Ms.No.155 Dated 16.07.93 Read: 1. G.O.Ms.No.225, Labour and Employment, dated 15.02.72 2. G.O.Ms.No.560, Labour and Employment, dated 03.08.77 3. G.O.Ms.No.998, Labour and Employment, dated 02.05.81 4. Govt.Lr.No.18274/N1/82-3, Labour and Employment, dated 09.07.82 5. G.O.Ms.No.73, Employment Service, dated 26.10.83 6. G.O.Ms.No.8, Employment Service, dated 07.01.87 7. G.O.Ms.No.567, Labour and Employment, dated 11.04.90 Read also: 8. G.O.Ms.No.23, Labour and Employment, dated 10.02.93. ORDER: One of the conditions prescribed under the scheme of appointment on compassionate grounds formulated in the G.O., first read above is that the family of the deceased Government servant should be "indigent circumstances". Another condition introduced in the G.O., third read above is that if there is already any earning member in the family of the Government servant who died in harness, the other dependants of the deceased Government servant will not be eligible for compassionate appointment. 2. The Government have re-examined the above mentioned conditions. The expression "indigent circumstances". Another has not been precisely defined. It has been left mostly to the subjective satisfaction of the appointing authorities. Therefore, the service Associations have represented that this condition be deleted. The family of the deceased Government servant is entitled to provident fund accumulations, Family benefit, Death-cum-Retirement Gratuity, encashment of leave at credit, of the time of death, etc. The Government consider that those amounts or the interest earnings that will accrue on depositing these amount need not be taken into consideration. It is therefore necessary to ascertain whether the family is without any extra help. The Government therefore direct that the criteria for indigent circumstances is that the family should not own any house or landed properties or if owned, the income from which is insufficient to sustain the family. A certificate from the Tahsildar to this effect will have to be produced. 3. In regard to the second condition mentioned in Para 1 above, it is considered that if a member of the family is already in employment and supports the family than the restriction may be applied. When a dependent of the family is employed, the factors to be ascertained are, whether he is regularly employed, who is actually supporting the family. If that person was employed even before the death of the Government servant and was living separately without extending any help to the family. Then the case of other eligible dependants will be considered. 4. However, the restriction that only one of the dependants will be entitled for appointment on compassionate grounds will continue. 5. Only the dependants of the deceased Government servant son/wife/husband/unmarried daughter will be eligible appointments. If the widow is not educationally qualified/eligible for appointment, she could be given a job like sweeper. The Government also direct that a married daughter who is deserted by her husband and living with the family of the deceased Government servant given her consent in writing. 6. Age restrictions of 30 in the case of sons/unmarried daughter or 40 in the case of widow/widower will continue. 7. All cases requiring relaxation will be decided by the committee constituted with reference to para 20 of the Chief Minister's standing order No.2 Personnel and Administrative Reforms, dated 09.01.92. 8. Those orders will be applicable to families of Government servant who have retired on medical invalidation before attaining the age of 50 years. BY ORDER OF THE GOVERNMENT R.Varadharajulu, Secretary to Government. 13. Pursuant to the decision of the Tamil Nadu Administrative Tribunal, Chennai in O.A.No.6554 of 1993, dated 15.10.1993 and O.A.No.5111 of 1994, dated 17.10.1994, the Government have issued orders in G.O.Ms.No.120, Labour and Employment Department, dated 26.06.1995, whereby, certain modifications have been made to the scheme of Compassionate appointment and the said Government Order reads as follows: GOVERNMENT OF TAMIL NADU ABSTRACT Public services  Scheme of Compassionate ground appointments  modifications  Issued. LABOUR AND EMPLOYMENT DEPARTMENT G.O.Ms.No.120 Dated: 26.06.95 i. G.O.Ms.No.225, Labour and Employment, dated 15.02.72 ii. G.O.Ms.No.560, Labour and Employment, dated 03.08.77 iii. G.O.Ms.No.1579, Labour and Employment, dated 21.07.81 iv. Govt.Lr.No.2563/N1/82-2, Labour and Employment, dated 11.03.82 v. Govt.Lr.No.43242/N1/81-9, Labour and Employment, dated 01.06.82 vi. Govt.Lr.No.4810/Q1/95-3, Labour and Employment, dated 28.02.95. ORDER: The Tamil Nadu Administrative Tribunal, Madras in its orders in O.A.No.6554 of 1993, dated 15.10.1993 and O.A.No.5111 of 1994, dated 17.10.1994 had observed that the existing Government Orders under the scheme of Compassionate ground appointments may be reviewed and until such review appointment on compassionate ground may be suspended. Accordingly, the Government in the letter sixth read above had issued instructions to all Heads of Departments to keep in abeyance all appointments and matter relating to compassionate ground appointments. 2. Simultaneously, the Government also reviewed the existing orders under the scheme. After careful review the Government issued the following modification to the scheme. i.The application for appointment on compassionate grounds should be made within three years of the death of Government servant; ii.The maximum age limit for such appointment be raised to 50 in the case of widows of the deceased Government servants. This order will take effect from the date of the issue of the order. /BY ORDER OF THE GOVERNOR/ P.SHANKAR Secretary to Government. 14. Subsequently, the Government, by letter dated 11.10.1995, have issued clarifications, relating to the time limit of three years period specified in the above said government Order and the relevant passage is extracted hereunder: ".....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 26.06.95 and the above orders are not applicable to the past cases. Further the Government clarify, that the age limit of 50 years for appointment under the scheme in the case of widows as ordered in the said Government Order is also applicable only to the widows of the Government servants those who died on or after 26.06.1995." 15. In Police Department, certain persons were appointed on compassionate grounds and to regularise their services, the Government, along with their letter No.2111/Pol XV/97-1, dated 7.1.1997 have enclosed a check-list sending the proposals for regularisation of services. The said Check-list is extracted hereunder: "1) Application from the spouse and/or son/daughter of the deceased Government servant. 2) Application also to be made within three years from the date of death of the Government servant (This rule is applicable only after 26.6.95 and prior to this date, application to be made by the son/daughter within 30 years and by the wife within 40 years). 3) Age: The son/daughter to be within the age of 30 years and wife within the age of 40 years (50 years after 26.6.95) on the date of death of the Government Servant. 4) Possession of educational qualification needed for the post to which appointed. 5) Certificates to be sent with the proposals:- i) Death Certificate ii) Legal Heirship Certificate iii) Educational Qualification Certificate iv) Transfer Certificate v) Community Certificate x vi) Income Certificate x to be issued vii) Property Certificate x not below viii) Unemployment Certificate of x the rank of other legal heirs. x Tahsildar ix) Proforma x) Declaration xi) No Objection Certificates from other legal heirs. (Applications and No Objection Certificates should have been attested by the Officer of the Police Department concerned.)" Let me now extract some of the judgments of the Hon'ble Supreme Curt dealing with compassionate appointment. 16. The object underlying the provisions for grant of compassionate appointment is explained in the decision of the Supreme Court in Director of Education (Secondary) v. Puspendra Kumar reported in 1998 (5) SCC 192. In paragraph 8 of the judgment, the Apex Court held as follows: "The object underlying a provision for grant of compassionate employment is to enable the family of 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 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 of making appointment by following prescribed procedure. It is in the nature of an exception to the general provisions. An exception cannot subsume the main provision 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 for appointment to seek employment against the post which would have been compassionate grounds of the dependent of a deceased employee." 17. In State of U.P. v. Paras Nath reported in 1998(2) SCC 412, the Supreme Court held that the purpose of providing employment to the dependent of a Government servant, dying in harness, in preference to anybody else is to mitigate harship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided that there are rules providing for such appointments. 18. In Balbir Kaur v. Steel Authority of India Ltd., reported in 2000 (6) SCC 493, the Supreme Court, at Paragraph 19, held as follows: "We are not called upon to assess the situation but the fact remains that having due regard to the constitutional philosophy to decry a compassionate employment opportunity would neither be fair nor reasonable. The concept of social justice is the yardstick to the justice administration system or the legal justice and as Roscoe Pound pointed out the greatest virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law courts also to apply the law depending upon the situation since the law is made for the society and whatever is beneficial for the society, the endeavour of the law court would be to administer justice having due regard in that direction." 19. In the above reported judgment, while considering the necessary provisions of the tri-parte agreement, NJSC of 1983 and 1989 in the matter of providing employment to the deceased family, after extracting the relevant clause of NJSC agreement 1983 and the tri-parted agreement 1989, the Supreme Court, has observed as follows: "8. The employer being Steel Authority of India, admittedly an authority within the meaning of Article 12, has thus an obligation to act in terms of the avowed objective of social and economic justice as enshrined in the Constitution but has the authority in the facts of the matters under consideration acted like a model and an ideal employer  it is in this factual backdrop, the issue needs an answer as to whether we have been able to obtain the benefit of constitutional philosophy of social and economic justice or not. Have the lofty ideals which the founding fathers placed before us any effect in our daily life  the answer cannot however but be in the negative  what happens to the constitutional philosophy as is available in the Constitution itself which we ourselves have so fondly conferred on to ourselves. The socialistic pattern of society as envisaged in the Constitution has to be attributed its full meaning. A person dies while taking the wife to a hospital and the cry of the lady for bare subsistence would go unheeded on a certain technicality. The breadearner is no longer available and prayer for compassionate appointment would be denied as it is likely to open a Pandoras box  this is the resultant effect of our entry into the new millennium. Can the law courts be mute spectators in the matter of denial of such a relief to the horrendous sufferings of an employees family by reason of the death of the breadearner? It is in this context this Courts observations in Dharwad Distt. P.W.D. Literate Daily Wage Employees Assn. v. State of Karnataka seem to be rather apposite." 20. In a recent decision 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. framed by the employer in the matter of providing employment on compassionate grounds. There is no right of whatsoever nature