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Judgment
A.P. Shah, C.J.—All these appeals relate and involve common questions of law and facts, and hence are disposed of by this common
judgment.
The facts giving rise to these appeals are stated in a nutshell as follows:
Writ Appeal No. 336 of 2003
The father of the appellant herein was employed as a Lineman with the Tamil Nadu Electricity Board. He died in harness on 22.01.1994. At that
time, the appellant was aged about 11 years. The appellant''s elder brother namely, E. Govindaraj was aged 19 years at the time of his father''s
death and he applied for compassionate appointment immediately on the death of his father. However, the respondent/Board vide order dated
30.10.1996 rejected the request for compassionate appointment, as the appellant''s brother did not possess necessary educational qualification for
being appointed in the service of the Board. The appellant attained majority in the year 2001. In the same year, the mother of the appellant sent a
representation to the respondent/Board requesting for appointment of the appellant on compassionate ground. Since there was no response to the
said representation, a fresh representation was made on 8.8.2002 and a legal notice was also sent by registered post with acknowledgment due.
As there was no response from the Board even after legal notice, the appellant filed Writ Petition No. 39441 of 2002 seeking a direction to the
respondent/Board for providing compassionate appointment to him. The learned single Judge relying upon the judgment of the Supreme Court in
Sanjay Kumar v. State of Bihar 2000 (7) SCC 193 held that if the appellant/petitioner is to be appointed on compassionate ground, it would
amount to compelling the Electricity Board to keep one post vacant for ever to be filled up on compassionate ground, among the persons coming
under the family of the deceased employee. The learned single Judge further held that there is no express provision under the scheme of the
Electricity Board to keep such post forever. Consequently, finding no legal right vested with the petitioner for being considered for appointment on
compassionate ground, the learned single Judge dismissed the petition.
W.A. No. 997 of 2006
The father of the respondent, who was working as Wireman/Lineman under the Tamil Nadu Electricity Board/first appellant herein, died in harness
on 20.10.999 leaving behind him the respondent, his elder brother, his mother and two daughters. The respondent was 14 years of age and was
studying 8th standard at the time of his father''s death. The respondent made an application on 18.11.2000 for appointment on compassionate
ground. The appellant/Board declined the request made by the respondent for appointment in the first appellant/Board on the ground that he had
not completed 18 years of age. The respondent attained majority on 10.04.2003. He made another representation on 23.9.2003 to the Board
requesting for compassionate appointment, which was rejected by the Board vide order dated 07.11.2003. Being aggrieved, the respondent filed
W.P. No. 17640 of 2004 seeking a direction to the appellant/Board to provide compassionate employment to the respondent. The learned single
Judge following the earlier decision of this Court in T. Meer Ismail Ali Vs. The Tamil Nadu Electricity Board and The Superintending Engineer,
Tamil Nadu Electricity Board, held that the application made by the respondent on attaining majority is maintainable, and consequently issued
direction to the appellant/Board to consider the application of the respondent within a period of six weeks.
W.A. No. 1006 of 2006
The father of the respondent was working as a Field Assistant under the Tamil Nadu Electricity Board/first appellant herein, and he died on
8.12.2001 leaving behind his wife, two daughters including the respondent. The mother of the respondent requested the Board to give
compassionate appointment to the respondent on 22.4.2004. By order dated 11.8.2004, the appellant/Board declined the request of the
respondent on the ground that the application ought to have been filed within three years. The respondent completed 18 years of age on
15.06.2005. She sent a fresh representation on 12.9.2005. As there was no response from the Board, the respondent approached this Court
seeking a direction to the Board to provide compassionate appointment. The learned single Judge rejected the defence of the Board that the
application was filed beyond the period of three years and therefore not maintainable. In support of his conclusion, he relied upon the decision of
this Court reported in Meer Ismail Ali.T v. The Tamil Nadu Electricity Board (cited supra).
Learned standing counsel for the Electricity Board strenuously contended that under the scheme framed by the Board, an application for
compassionate ground is required to be made within three years from the date of death of the employee, and there can be no reservation for the
minor to become major and claim appointment on compassionate ground, unless the scheme envisages such an eventuality. Learned standing
counsel drew our attention to the several judgments of the Supreme Court laying down that the grant of compassionate employment is in the nature
of exception to Articles 14 and 16 and the appointments have to be made strictly in conformity with the provisions or guidelines governing the
scheme and the Court has no power to give directions contrary to the scheme.
On the other hand, learned Counsel appearing for the legal heirs of the deceased/employee, contended that in cases of legal heirs of the
deceased employee being minor, fairness demands that such persons should be allowed to make application after attaining majority. Heavy
reliance was placed on the unreported decision of the Division Bench of this Court in W.A. No. 3050 of 2003 dated 08.03.2005 (Indiraniammal
v. The Chief Engineer (Personnel), The Tamil Nadu Electricity Board, No. 800, Anna Salai, Chennai - 600 002 and Anr.). According to the
learned Counsel, the Division Bench in the aforesaid case has held that it is open for the legal heirs of the deceased employee to make an
application after attaining majority and there is nothing in the rule, which precludes the consideration of such application and therefore, the rejection
of the request of the heirs of the deceased employee is clearly contrary to law and further held that the learned single Judge has rightly intervened in
the matter and directed the Board to decide the application made by the legal heirs of the deceased employee on merits.
The G.O. bearing B.P. Ms. (FB) No. 46 (Adm.Branch) dated 13.10.1995 which lays down the scheme for appointment on compassionate
grounds reads thus:
TAMIL NADU ELECTRICITY BOARD
(ABSTRACT)
Recruitment - Employment assistance to the dependant of the deceased employee of the Board who died while in service. Appointment on
Compassionate grounds - Modification orders - issued.
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Permanent B.P.Ms.(FB) No. 46 (Adm.Branch) Dt.13.10.95
Thiruvalluvar Aandu 2026
Yuva Aandu Purattasi 26.
READ:
G.O.Ms. No. 120 (Labour and Employment Department) dt.26.6.95
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PROCEEDINGS:
In the G.O. cited, the Government of Tamil Nadu (Labour and Employment Department) have issued the following modifications to the scheme of
compassionate grounds appointment to the dependants of the deceased employees:
(a) The application for appointment on compassionate grounds should be made within three years of the death of Govt. Servant.
(b) The maximum age limit, for such appointment be raised to 50 years in the case of widows of the deceased Govt. Servants.
As per the existing scheme in the Board, the employment assistance is being considered to the dependants of the employees of the Board who
died while in service without any time limit for the submission of the application for employment/assistance. It is specified that the age of
sons/unmarried daughters, widowed or deserted daughters, divorced daughters should not be more than 30 years and in the case of widow 40
years on the date of death of the Board employee.
The Board has decided to adopt the orders of the Govt. Accordingly the following modification of the existing scheme of providing employment
assistance to the dependants of the deceased employees of the Board is ordered.
1.The application for appointment on compassionate grounds should be made within three years from the date of death of employees of the Board.
2.The maximum age limit, for such appointment be raised to 50 (Fifty) years in the case of widows of the deceased employees of the Board.
3.In the case of already expired staff while in service the dependants should apply for employment assistance within three years from the date of
issue of this order.
(BY ORDER OF THE BOARD)
Olney Aron
Chief Engineer (Personnel)
It appears that earlier there was a provision that if the applicant is a minor, he had to make an application after attaining majority and the fresh
application after attaining majority would be considered based on the Rules of the Board applicable on that day. By Circular dated 06.04.2002 in
040574/G8/G82/2002-1 the above provision was deleted, and as per the amended G.O the outer limit for filing application for employment on
compassionate grounds is three years from the date of death of the employee.
In State of Haryana and Others Vs. Rani Devi and Another, , the Supreme Court while examining the object of compassionate appointment
pointed out that the claim of the person concerned for appointment on compassionate ground is based on the premise that he was dependant on
the deceased-employee. Strictly this claim cannot be upheld on the touchstone of Articles 14 and 16 of the Constitution of India. However, such
claim is considered as reasonable and permissible on the basis of 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. In the aforesaid 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 Life Insurance Corporation of India Vs. Mrs. Asha Ramachandra Ambekar and another, , it was pointed out that High Courts and
Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointment on compassionate grounds when
the regulations framed in respect thereof do not cover and contemplates such appointment.
In Umesh Kumar Nagpal Vs. State of Haryana and Others, , it was noted that as a rule in public service appointment should be made strictly on
the basis of open invitation of application 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 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 administrative instructions taking into consideration the financial condition of
the family of the deceased.
In Smt. Sushma Gosain and Others Vs. Union of India (UOI) and Others, , 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 bread-earner 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 envisage specifically otherwise, to state that as
and when such minor becomes a major he can be appointed without any time consciousness or limit.
In State of U.P. and Others Vs. Paras Nath, , it was held that the purpose of providing employment to the dependant of a Government servant
dying-in-harness in preference to anybody else is to mitigate hardship 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 there are rules
providing for such appointments.
In Punjab National Bank and Others Vs. Ashwini Kumar Taneja, , the Court observed that appointment on compassionate ground is not a
source of recruitment but merely an exception to the requirement of making appointments on open invitation of application on merits. The basic
intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to
get over sudden financial crisis.
In State of J & K; v. Sajad Ahmed 2006 (7) Scale 136, the Bench observed:
In Umesh Kumar Nagpal Vs. State of Haryana and Others, , it was ruled that public service appointment should be made strictly on the basis of
open invitation of applications and on merits. The appointment on compassionate ground cannot be a source of recruitment. It is merely an
exception to the requirement of law keeping in view the fact of the death of 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. Such appointments on compassionate ground,
therefore, have to be made in accordance with rules, regulations or administrative instructions taking into consideration the financial condition of the
family of the deceased. This favourable treatment to the dependant of the deceased employee must have clear nexus with the object sought to be
achieved thereby, i.e., relief against destitution. At the same time, however, it should not be forgotten that as against the destitute family of the
deceased, there are millions and millions of other families which are equally, if not more, destitute. The exception to the rule made in favour of the
family of the deceased employee is in consideration of the services rendered by him and the legitimate expectation, and the change in the status and
affairs of the family engendered by the erstwhile employment, which are suddenly upturned.
In State of Harayana and Ors. v. Rani Devi and Anr. (cited supra) the Court observed:
It was also impressed that appointments on compassionate ground cannot be made after lapse of reasonable period which must be specified in the
rules because the right to such employment is not a vested right which can be exercised at any time in future.
In Sanjay Kumar v. State of Bihar and Ors. (cited supra), Justice M.Jagannadha Roa speaking for the Bench held as follows:
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 (Secondary) and Another Vs. Pushpendra Kumar and Others, . It is also significant to notice that on the
date when the first application was made by the petitioner on 2.6.1998, the petitioner was a minor and was not eligible for appointment. This is
conceded by the petitioner. There cannot be reservation of vacancy till such time as the petitioner becomes a major after a number of years, unless
there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief.
It is, thus, clear that the courts cannot direct appointments on compassionate grounds de hors the provisions of the Scheme in force governed
by rules/regulations/instructions. If in a given case, the department of the Government concerned declines, as a matter of policy, not to deviate from
the mandate of the provisions underlying the Scheme and refuses to relax the stipulation in respect of ceiling fixed therein, the courts cannot compel
the authorities to exercise its jurisdiction in a particular way and that too by relaxing the essential conditions, when no grievance of violation of
substantial rights of parties could be held to have been provided, otherwise. The purpose of providing employment to a dependant 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. None of these considerations can operate when the application is made after the death of
the employee. 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.
In Sanjay Kumar''s case (cited supra), the Court has expressly held that there cannot be reservation of a vacancy till such time as the applicant
becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that
the family gets immediate relief. An application made after the period stipulated under the scheme is not maintainable, and it is not permissible to
hold that such application could be made after attaining majority. We are afraid, the Division Bench which rendered the judgment in Indiraniammal
v. The Chief Engineer (Personnel), The Tamil Nadu Electricity Board, No. 800, Anna Salai, Chennai - 600 002 and Anr.) (cited supra) has not
followed the earlier decisions of the Supreme Court and does not lay down correct law. The order of the learned single Judge in Meer Ismail Ali.T
v. The Tamil Nadu Electricity Board (cited supra) is rather cryptic wherein the learned single Judge has observed that without going into the merits
of the controversy the petitioner be given employment on humanitarian consideration. None of the judgments of the Supreme Court cited above
are considered.
Coming to the facts of W.A. No. 336 of 2003, it is seen that the father of the appellant died on 22.01.1994, and the application for
compassionate appointment was made by the appellant only in the year 2002 after attaining majority, which was obviously beyond the period
prescribed under the scheme. In W.A. No. 997of 2006, the application was made by the respondent within three years, but at that time he was a
minor, and therefore the application was not maintainable. The respondent attained majority only in the year 2003 and thereafter he made the
second application, which was also rejected by the Board as the same was filed beyond three years time. Similarly in W.A. No. 1006/2006, the
application for compassionate appointment was made by the respondent when he was a minor and was, therefore, rightly rejected by the Board. A
fresh application was made only in the year 2005, which was beyond the period of three years. Consequently, the Board rejected the application
as it was filed beyond the prescribed period of three years. Thus in none of these cases the applications were made within three years period as
prescribed by the scheme. Under the circumstances, the Board was justified in rejecting the request for compassionate appointment.
In the result, in view of the foregoing discussion, Writ Appeal Nos. 997 of 2006 & 1006 of 2006 are allowed. The impugned orders are set
aside. Writ Appeal No. 336 of 2003 is dismissed.