T. Marimuthu vs Chief Engineer, Tamil Nadu Electricity Board (Personal), Regional Chief Engineer, Tamil Nadu Electricity Board and Superintending Engineer (Central), Tamil Nadu Electricity Board

S. Palanivelu, J.—The appellant is aggrieved against the order of the learned Single Judge dated 05.01.2005 passed in W.P. (MD) No.

4150/2004. The appellant is the petitioner in the above said writ petition.

One Thangaraj, the father of the petitioner, was working as a Lineman in the Tamil Nadu Electricity Board, (in short ''the Board'') in Mathur

Division under the 3rd respondent''s control. He died in harness on 12.11.1985. His wife made a representation before the 3rd respondent on

12.04.1999 requesting him to consider her family circumstances and provide employment on compassionate ground for her son, the appellant,

who has studied upto 9th standard, as heir of the deceased. In response to it, the 3rd respondent, by means of his letter dated 19.11.1999, replied

that as per the Board''s Scheme, till the individual attains the age of 18 years, her request could not be considered. Thereafter, on 23.04.2001, she

again sent a representation to the 3rd respondent stating that her son had completed 18 years and therefore an employment on compassionate

grounds may be provided to him. On 07.05.2001, a reply was sent by the 3rd respondent to her mentioning that since 16 years have passed after

the death of the deceased, her request could not be considered.

Thereafter, the appellant, himself sent a request on 21.04.2003 to the 1st respondent requesting for appointment on compassionate grounds. As

there was no response, he filed the writ petition praying for a direction to the respondents to appoint him on compassionate ground on the basis of

the written representations made on behalf of him on 12.04.1999 and 23.04.2001. However, the said writ petition was dismissed by the learned

Single Judge placing reliance on the judgment of the Hon''ble Supreme Court reported in National Hydroelectric Power Corporation and Another

Vs. Nanak Chand and Another, . Hence the writ appeal.

Learned Counsel for the appellant would submit that the wife of the deceased employee was an illiterate and their children were in tender years

and therefore they did not make any representation within three years from the date of the death of the employee. He further submitted that in fact

the wife of the deceased employee had approached the higher authorities for appointment on compassionate ground, for which a reply was given

stating that the children should attain majority. Learned Counsel for the appellant would draw the attention of this Court to a Division Bench

decision of this Court, in which one of us is a party F.M. Ibrahim Kalifulla, J., reported in 2007 W.L.R.306 P. Rajamani v. The Chairman, Tamil

Nadu Electricity Board and two Ors. In the said decision, it was held that the rejection of the request on the ground of delay was not sustainable

and justifiable and consequently the authorities were directed to entertain the request of the appellant therein and give appointment to the son of the

appellant expeditiously.

Learned Counsel for the respondents Board submitted that as per the Board''s Proceedings Ms. (FB) No. 46, dated 13.10.1995, the appellant

ought to have applied for employment on compassionate ground within three years from the date of issue of the Board''s Proceedings and as there

was considerable delay in submitting his application the same could not be considered by the Board. In support of his submission, the learned

Counsel relied on the decision of a Division Bench of this Court reported in 2007 W.L.R.796 E. Ramasamy v. Tamil Nadu Electricity Board and

Ors., wherein it has been held that Courts cannot direct appointments on compassionate grounds de hors the provisions of the Scheme in force.

We have given our anxious consideration to the submissions made by the counsel on either side and also gone through the materials on record.

The Government of Tamil Nadu passed G.O.Ms. No. 120 (Labour and Employment Department), dated 26.06.1995, in which a scheme has

been formulated by the Government with regard to providing appointment on compassionate grounds to the dependents of the employees who die

in harness. The said scheme was adopted by the Board in its Proceedings No. 46, dated 13.10.1995. The relevant portion of the said Board''s

Proceedings is being extracted, which reads as follows:

As per the existing scheme in the Board, the employment assistance is being considered to the dependents of the employees of the Board who

dies while in service without any time limit for the submission of the application for employment assistance. It is specified that the age of the

son/unmarried daughters, widowed or deserted daughters, divorced daughters should not be more than 30 years and in case of widow 40 years

on the date of death of the Board Employee.

The Board has decided to adopt the orders of the Government. Accordingly the following modification of the existing schemes for providing

employment assistance to the dependents of the deceased employees of the Board is ordered.

The application for appointment on compassionate ground should be made within three years from the date of death of employees of the Board.

The maximum age limit, for such appointment be raised to 50 (fifty) years in case of widows of the deceased employees of the Board.

In case of already expired staff while in service the dependents should apply for employment assistance within three years from the date of issue

of this order.

As per the said Scheme, any application for appointment on compassionate grounds shall be made within three years from the date of death of

the employees of the Board. Further it is stipulated therein that in the case of already expired staff, the application should be made within three

years from the date of issue of the Board''s proceedings.

The decision of a Division Bench of this Court reported in 2007 W.L.R.796 E. Ramasamy v. Tamil Nadu Electricity Board and Ors., cited

supra, throws much light on the subject, wherein, after considering the Board''s proceedings No. 46 dated 13.10.1995 and the legal proposition

with regard to the appointment on compassionate grounds as laid down by the Hon''ble Supreme Court of India in various decisions, the Division

Bench has held as follows.

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 concern declines, as a matter of policy, not to deviate from

the mandate of the provisions underlining the Scheme and refuses to relax the stipulation in respect of the 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 the parties could be held to have been provided, otherwise. 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 appointments....

The Hon''ble Supreme Court, while dealing with this subject in National Hydroelectric Power Corporation and Another Vs. Nanak Chand and

Another, , referred to an earlier decision reported in Smt. Sushma Gosain and Others Vs. Union of India (UOI) and Others, in which it was held

that 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. The said view was reiterated in

Smt. Phoolwati Vs. Union of India and Others, and in Union of India and Ors. v. Bhagwan Singh 1995 (5) SCC 476. In State of U.P. and Others

Vs. Paras Nath, , the Supreme Court has further laid down the principles that the purpose of providing employment to the dependent 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 and that to alleviate the distress of the family, such appointments are permissible on compassionate grounds

provided there are rules providing for such appointments and that none of these considerations can operate when the application is made after a

long period of time.

In the recent decision reported in AIR 2007 SCW 1571 State Bank of India v. Somvir Singh, the Hon''ble Supreme Court has held on the

subject as under.

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 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 instruction, 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.

Firstly, even though it may be contended that the wife of the deceased employee was an illiterate and the children were in tender ages at the

time of death of the employee, the application should have been made within three years from the date of issue of the Government order i.e.

13.10.1995. The time limit can be fixed in the case of the appellant, on the strength of the above said Board''s Proceedings, as 13.10.1998. But,

the first representation was submitted only on 12.04.1999 which was beyond the period of three years from the date of issue of the aforesaid

Board''s Proceedings. Hence on this ground, the rejection made by the 3rd respondent is sustainable.

As far as the facts of the present case are concerned, there is no Scheme enabling the authorities to consider the request for appointment on

compassionate ground at any point of time, particularly the aforesaid proceedings prescribes the upper limit of three years for making application

for the said purpose, that is to say from 13.10.1995. In the decision relied on by the learned Counsel for the appellant reported in 2007

W.L.R.306 P. Rajamani v. The Chairman, Tamil Nadu Electricity Board and two Ors., the facts discussed were not similar to those available in

the case on hand. The observations rendered in the aforesaid decisions are not applicable to the present case while the circumstances of this matter

are considered.

The principles laid down by the Apex Court are to the effect that the object of provisions to make such appointment on compassionate ground

shall be enabling the family to get over the sudden financial crises and the appointments be made immediately and the basic intention is that on the

death of the employee concerned his family is deprived of the means of livelihood. The very basis of compassionate appointment is to see that the

family gets immediate relief.

Applying the ratio laid down in the decisions of the Apex Court to the facts and circumstances of the case on hand, it must be observed that

the request of the appellant, which has been made after three years from the date of passing the Board''s Proceedings, cannot be countenanced.

The object of the Scheme shall not be shattered by allowing them to wait for an indefinite period till the minor dependent of the deceased employee

attains majority keeping a vacancy for such an individual. Consideration of such cases on humanitarian grounds for providing appointments of the

individuals may amount varying the existing scheme framed.

For the foregoing reasons, we are of the considered view that the request of the appellant cannot be sustained and there is no scope to

interfere with the order of the learned Single Judge. Accordingly, the writ appeal is dismissed. No costs.