P. Paventhan vs Tamil Nadu Electricity Board and Another

P. Jyothimani, J.—This writ appeal is filed by the original writ petitioner against the order of the learned Judge in dismissing the writ petition which relates to the rejection of an application made by the appellant to the respondent/Electricity Board for appointment on compassionate ground. Brief facts of the case relevant for disposal of this writ appeal are summarized as under: Admittedly, the father of the appellant was an employee of the Tamil Nadu Electricity Board and he was employed as a Junior Assistant in the office of the Executive Engineer, Gingee. He died in harness on 24.10.1988 and at the time of his death the appellant was three years old and his younger brother was one year old.

1.1. The appellant''s mother, who lost her husband in her young age, laid a claim to the first respondent for appointment on compassionate ground, which was rejected on the ground that no suitable job was available. After the appellant attained the age of majority in the year 2003, he applied to the first respondent for appointment on compassionate ground and according to the appellant, even at that time the family was in impecunious circumstances. The appellant has passed SSLC examination. However, his claim was repudiated by the first respondent on the ground that the application has been made tardily.

1.2. The said rejection was challenged by the appellant by filing writ petition on the ground that the family is still in a state of impoverishment and therefore, there is no amelioration of their family situation so as to deny the appellant his claim for appointment on compassionate ground.

1.3. The said claim was resisted by the Electricity Board based on the Board Proceedings in B.P.Ms. (FB) No. 46, Administration Branch, dated 13.10.1995, wherein the guidelines prescribed show that the application for appointment on compassionate ground should be made within three years of the death of an employee; the maximum age limit be raised to 50 years in the case of widows of the deceased employees of the Board; and in the case of already expired staff while in service, the dependent should apply for employment assistance within three years from the date of issue of the said order.

1.4. Admittedly, the minimum qualification required was VIII Standard and it is not in dispute that at the time of the death of the father of the appellant in the year 1988, the appellant was only three years old and after he completed 18 years and passed SSLC examination, he made application that came to be rejected.

1.5. The learned Judge, in the impugned order, relied upon the decisions of the Supreme Court in State Bank of India and Another Vs. Somvir Singh, ; I.G. (Karmik) and Others Vs. Prahalad Mani Tripathi, and Union Bank of India and Others Vs. M.T. Latheesh, wherein it was held that appointment on compassionate ground is an exception carved out to the general rules of recruitment and the same must be made in a transparent manner. The learned Judge even though relied upon a judgment of the Supreme Court in Mohan Mahto Vs. Central Coal Field Ltd. and Others, ) wherein the Supreme Court has recognized that the mode of appointment on compassionate ground is an exception to Article 16(1) of the Constitution of India, has dismissed the writ petition on the ground that when once the claim of the appellant''s mother was rejected on 2.9.1989 itself for want of qualification and the subsequent representation of the mother of the appellant on 6.2.2002 seeking compassionate appointment to the appellant, being her son, came to be rejected on 20.3.2003, the subsequent representation is not maintainable. The learned Judge has also relied upon B.P.Ms. (FB) No. 46, Administration Branch, dated 13.10.1995 to come to a conclusion that as per the guidelines the appellant was not qualified.

1.6. Aggrieved by the said order of the learned Judge, the appellant has filed the present appeal on various grounds, including that even in respect of the same Board such representations of minors of the deceased employees on attaining the age of majority were considered, as it is seen in the judgments of this Court in W.A. No. 3053 of 2003, dated 8.3.2005; W.A. No. 1652 of 2006, dated 30.3.2009; and W.A. No. 3883 of 2004, dated 5.2.2007 wherein the Division Bench has taken note of the same board proceedings and found that the appellant therein was entitled to appointment on compassionate ground, and according to the appellant, the judgments relied upon by the learned single Judge are not with reference to the rules in issue.

It is the contention of the learned counsel for the appellant that when it was the clear case of the appellant that the financial condition of the family due to the death of his father in harness continued to be the same as at the time of the death, even after the appellant became a major, and when that is the criterion to be considered for appointment on compassionate ground, the finding of the learned judge is not proper.

It is not in dispute and it is also not the case of the appellant that the appointment on compassionate ground is automatic and it amounts to entry into service not as per the Rules. But the concept of appointment on compassionate ground, which has been recognized by all the Courts in India, is to tide over the family which is in distress due to the sudden death of its breadwinner from the financial constraint and it is on the basis of such schemes or rules which are framed by the appointing authorities, some solace is given to the families to recoup from the state of impoverishment.

It was in Sanjay Kumar Vs. The State of Bihar and Others, the Supreme Court has restated the object of appointment on compassionate ground. No doubt, in that case the Supreme Court having found that the first application made by the petitioner, who happened to be a minor at the time, was rejected since he was ineligible for appointment, observed that it cannot be said that a vacancy should be reserved till he becomes a major in the absence of any specific provision, and in categoric terms held that the object of appointment on compassionate ground is to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service. Therefore, the very basis of compassionate appointment is to see that the family gets immediate relief. The Supreme Court has 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 breadearner 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 2-6-1988, 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 are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief.

It is also true that appointment on compassionate ground cannot be said to be a matter of right unless the same is available by way of scheme or rules framed by the employer and it is certainly not a public office which is heritable, as it was held by the Supreme Court in State Bank of India and Others Vs. Jaspal Kaur, In that case, on fact, when it was found that the family was not in destitution and the appellants have already been paid a substantial amount and family pension is being paid and there was a fact-finding body which has given a finding about the financial condition of the family, the Supreme Court held that the appellant was not entitled to seek appointment on compassionate ground. Nevertheless, the Supreme Court has held that the major criterion for appointment of a person on compassionate ground is the financial condition of the family of the deceased person, in the following words:--

Hence a major criterion while appointing a person on compassionate grounds should be the financial condition of the family the deceased person left behind. Unless the financial condition is entirely penurious, such appointments cannot be made. In the present case the financial condition of the respondent''s family is not one of destitution, the appellants have already paid a sum of Rs. 4,57,607 as terminal benefits (after deducting Rs. 19,183 towards liabilities); a sum of Rs. 2,055 p.m. was being paid towards family pension and monthly income under Staff Mutual Welfare Scheme and in addition the total monthly income of the family comes to Rs. 5,855 (monthly pension of Rs. 2,055 + Rs. 3,800 p.m. as notional interest on the investment of Rs. 4,57,607). The competent fact-finding authority on the basis of the above financial details had arrived at the conclusion that the financial condition of the family is not penurious and that the family earns sufficient income to maintain themselves. Hence appointment on compassionate ground was not granted to the respondent. We however, do not feel the necessity to interfere with this order of the Bank Authority on the fact situation of this case.

It is true that in cases where immediately after the death of the only breadwinner of the family or thereafter the financial condition of the family is not that imbalanced, appointment on compassionate ground cannot be thought of. But in cases where even after lapse of many years from the death of the only breadwinner the strain on the financial condition continues, for example a case like this wherein the father dies in his young age leaving behind him is young widow, apart from the appellant who was only three years at that time and another son who was one year old, and it has been the case of the appellant that the poverty-stricken family continues to be in the same financial position even by the time when the appellant has become major, merely because the mother has brought him up educating him up to SSLC, that itself does not mean that the financial position of the family is good, so as to deny him appointment on compassionate ground. Therefore, the object of compassionate appointment is one of existence of penurious condition and not that of passage of time.

However, the Supreme Court in State Bank of India and Another Vs. Somvir Singh, has held that such appointment on compassionate ground is based on the scheme or executive instructions or rules, as follows:--

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 de hors 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 to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be.

When there was inordinate delay in making application for appointment on compassionate ground, namely in that case the minor was ten years old in 1980 at the time of death of his father, however he has chosen to make application on 25.7.1997, the Supreme Court in State of Manipur Vs. Md. Rajaodin, has rejected the application on the ground that it is highly belated. The observation of Supreme Court in this regard is as under:--

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 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.

As it was held by a Division bench of this Court presided over by A. P. Shah, C.J. (as His Lordship then was) in E. Ramasamy Vs. Tamil Nadu Electricity Board, if the scheme framed by the Electricity Board stipulates a period within which an application is to be made, such application seeking appointment on compassionate ground should be made within such time.

It is no doubt true that compassionate appointment cannot be held to be a bonanza or another source of recruitment, as held by the Supreme Court in Santosh Kumar Dubey Vs. State of U.P. and Others, in the following words:--

The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints.

The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in Government service.

Ergo, it is clear that the concept of granting appointment on compassionate ground is neither a matter of right nor a manner of recruitment, but it is compassionate in the sense that the same is granted based on the scheme or rules or order by the employer as a matter of consolation to help the family in distress to transcend the state of impoverishment. However, in cases where the scheme implies a period within which such application must be made, it has to be scrupulously followed.

Now, it is seen that the learned Judge has relied upon B.P.Ms. (FB) No. 46, Administration Branch, dated 13.10.1995, which originally stipulated as follows:--

a) The application for compassionate grounds should be made within 3 years of the death of an employee.

b) The maximum age limit be raised to 50 years in the case of widows of the deceased employees of the Board.

c) In the case of already expired staff while in service the dependent should apply for employment assistance within 3 years from the date of issue of the above said order.

However, it is not in dispute that such board proceedings in respect of the Tamil Nadu Electricity Board regarding the appointment on compassionate ground and all other matters are being passed from time to time and the period mentioned in the board proceeding in B.P.Ms. (FB) No. 46, Administration Branch, dated 13.10.1995 has never been treated as rule forever and that has been ever changing based on various circumstances. It is now seen that the Electricity Board has passed B.P.Ms. (FB) No. 17, Administration Branch, dated 1.11.2011, in which the rule has been framed by way of a scheme as follows:--

(Vernacular matter omitted..... Ed.)

A reference to clause (sic) makes it clear that any application made for compassionate appointment before 23.8.2005, which is within three years from the date of the death of the only breadwinner, even though such person has not completed 18 years, if he has the necessary requirements, such candidate should be treated as a person having qualification.

In the instant case, in fact the appellant''s mother has made application for herself in the year 1989 and she was found to be ineligible and thereafter, she has applied on 6.2.2002 which is few months before the appellant became major seeking employment to her son, namely the appellant. Therefore, by applying B.P.Ms. (FB) No. 17, Administration Branch, dated 1.11.2011, the appellant is entitled to be considered for appointment on compassionate ground and his claim cannot be rejected especially when it is the categoric case of the appellant that the family still continues to be in a state of impoverishment.

In such view of the matter, the reliance placed on B.P.Ms. (FB) No. 46, Administration Branch, dated, 13.10.1995 by the learned Judge to turn down the claim of the petitioner is unsustainable in the changed situation by virtue of B.P.Ms. (FB) No. 17, Administration Branch, dated 1.11.2011, referred supra. The latest B.P.Ms. (FB) No. 17, Administration Branch, dated 1.11.2011 is the rule which has to be applied insofar as it relates to the claim for appointment on compassionate ground by any person. Inasmuch as the case of the appellant falls under clause (sic) of the B.P.Ms. (FB) No. 17, Administration Branch, dated 1.11.2011, the impugned order of the learned Judge is liable to be set aside. For the foregoing reasons, the writ appeal is allowed and the order of the learned Judge is set aside. The first respondent is directed to consider the claim of the appellant taking into consideration the prevailing financial condition of the family and if satisfied that the family is in penury, the first respondent shall pass appropriate orders granting appointment on compassionate appointment, if the appellant is otherwise eligible based on his qualification, and such order shall be passed within a period of four weeks from the date of receipt of a copy of this order. While parting with, we are constrained to observe by placing on record our deep sense of appreciation of the efforts taken by the counsel for the respondent/Electricity Board in bringing forth all the relevant case laws on the subject and also the latest Board Proceedings. No costs.