@JUDGMENTTAG-ORDER
Honourable Mr. Justice V. Dhanapalan
1. The challenge in this Writ Petition is to the order dated 7.1.2008 passed by the Additional Director of Medical and Rural Health Services (Administration), Chennai-600 006, in his proceedings in Na.Ka.No.13645/N.P.8/1/02, dated 07.01.2008, whereby, the petitioner''s application dated 15.10.2007, for appointment on compassionate grounds in the place of the petitioner''s deceased father-Selvaraj, who was employed as a Pharmacist in Chengam Medical Hospital, was rejected, seeking to quash the same and for a consequential direction to the respondents to absorb the petitioner in any suitable post in the Government.
2. The background facts in a nut-shell, are as follows:
(a) The petitioner''s father-Selvaraj worked as a Pharmacist under the fourth respondent during the period from 29.11.1976 to 8.3.1998 and died in harness on 8.3.1998, leaving behind the following legal heirs:
(i) Meenakshi--wife;
(ii) Sathish Kumar--1st son (writ petitioner herein);
(iii) Mahalakshmi--daughter;
(iv) Rajagopal--father of the deceased Selvaraj and
(v) Thulasi--mother of the deceased Selvaraj.
A legal heirship certificate has been furnished by the Taluk Officer, Chengam.
(b) The petitioner was minor at the time of the death of his father and his mother was an illiterate. The other legal heirs have submitted their willingness letter for the petitioner''s appointment in the post held by his deceased father. The willingness letter as well as the legal heirship certificate were already submitted to the fourth respondent within the stipulated period of three years.
(c) The petitioner''s mother sought for extension of time for appointment of the petitioner, as he was minor. Except on the dependency of pension, the petitioner''s family does not own either movable or immovable property.
(d) The second respondent sent a letter to the third respondent, vide Na.Ka.No.18080/B5/4/2000, dated 7.3.2001 with regard to the petitioner''s mother--Meenakshi Ammal''s representation relating to the petitioner''s appointment in the place of his deceased father.
(e) The respondents have not complied with the provisions made in G.O.Ms.No.123, Labour and Employment Department, dated 8.9.2006, G.O.Ms.No.16, Labour and Employment Department, dated 21.2.2006 and G.O.Ms.No.61, Labour and Employment Department, dated 19.7.2006.
(f) Therefore, the petitioner prays that the plight of the petitioner''s family, financial status, besides the inconceivable difficulties faced by the petitioner, could be considered for passing suitable orders for appointment on compassionate grounds in the place of his deceased father, and accordingly sought for quashing the impugned order.
3. The respondents have filed their counter affidavit, inter-alia contending as follows:
(i) Thiru.R.Selvaraj, who was working as Pharmacist in the Government Hospital, Chengam, Thiruvannamalai District, expired on 8.3.1998 while in service. The petitioner''s mother Tmt.Meenakshi, wife of the deceased Government servant, who is the first legal heir, aged about 33 years, made an application seeking for appointment of her son on compassionate grounds in her representation dated 21.2.2000, stating that she was not in a position to take up an appointment and therefore, she requested for an appointment for her son on compassionate grounds after four years, so that her son would attain the age of 18 years.
(ii) The very purpose of giving compassionate ground appointment scheme is only to help the family of the deceased Government servant to tide over the sudden indigent circumstances unexpectedly created by the sudden demise of the Government servant who died in harness. The concept of compassionate grounds appointment is against the request of the petitioner and the same is liable for rejection.
(iii) In letter Na.Ka.No.13645/N.P.8/1/2002, dated 7.1.2008, it was informed to the petitioner that the time limit of three years from the date of death fixed by the Government, is completed on 7.3.2001 and during that time, no ban order was issued by the Government. It was also informed that after a lapse of ten years, the request for appointment on compassionate grounds, cannot be complied with.
(iv) The death of the petitioner''s father occurred on 8.3.1998. The legal heirship certificate was submitted to the fourth respondent on 21.2.2000 by Tmt.Meenakshi, wife of the deceased Government servant, wherein, she has stated that the age of her son, Thiru.Sathish Kumar is 14 years and she has requested to give employment to her son on completion of 18 years.
(v) On receipt of the required particulars from the petitioner through the Joint Director of Health Services, Thiruvannamalai, his request was examined with reference to the existing rules and the instruction received from the Government in Letter (Ms).No.202, Labour and Employment Department, dated 8.10.2007. The request of the petitioner was found to be not feasible for consideration, since the family of the deceased Government servant could not be classified to be living in indigent circumstances.
(vi) The very purpose of giving compassionate ground appointment scheme is only to help the family of the deceased Government servant to tide over the sudden indigent circumstances unexpectedly created by the sudden and untimely death of the Government servant. So, the appointment should be provided immediately to redeem the family in distress and the provision of compassionate appointment after a lapse of very long time, defeats the very purpose of the compassionate ground appointment scheme. If the family of the Government servant was actually in indigent circumstances, the wife of the deceased Government servant might have submitted the application for herself for appointment on compassionate grounds immediately after the death of the Government servant. Therefore, the application dated 21.2.2000 requesting to provide an appointment on compassionate grounds to the petitioner in future is not acceptable as per the existing Government rules and there is also no provision for the same under the rules.
(vii) The Government in G.O.(Ms).No.16, Labour and Employment Department, dated 21.2.2006, relaxed the ban on compassionate grounds appointment. In G.O.(Ms).No.61, Labour and Employment Department, dated 9.7.2006, the Government issued certain guidelines in regard to the compassionate grounds appointment. The request of the petitioner was rejected based on the guidelines issued in the Government Orders cited and on the guidelines issued in Government Letter (Ms).No.202, Labour and Employment Department, dated 8.10.2007.
(viii) If the family of the deceased Government servant is actually living in the indigent circumstances, the petitioner''s mother as well as the wife of the deceased Government servant, aged about 33 years, would have requested for an appointment to herself to relieve the distress of her family as an emergency measure. The mother of the petitioner purposefully waited for her son''s higher education, so as to enable her to seek an higher grade of appointment to her son. The concept of the said scheme cannot be defeated and therefore, the petitioner''s request is against the purpose of the scheme, and is liable to be rejected. The respondents pray for dismissal of the Writ Petition.
4. Mr. K. Nagarajan, learned counsel appearing for the petitioner, in his submissions, strenuously contended that the petitioner''s mother gave a representation for providing compassionate appointment to her son (the writ petitioner) on 21.2.2000 and therefore, the application of the petitioner was made within a period of three years from the date of the death of the father of the petitioner and at that time, the writ petitioner was minor and as soon as the petitioner attained majority, she made further application on 15.10.2007 seeking for appointment on compassionate grounds for her son (writ petitioner), and the rejection of the application of the mother of the petitioner on the ground of delay, is not sustainable, as there is a limitation of three years prescribed under the relevant Rules for considering the appointment on compassionate grounds. He further submitted that the indigent circumstances had been duly certified by the Tahsildar, Chengam, in his Certificate, dated 12.6.2008, making it clear that except the family pension, there is no other source of income for the family, and therefore, the respondents'' presumption and assumption that the petitioner''s family was not in indigent circumstances, cannot be construed to be a ground for rejecting the claim of the petitioner/his mother and the impugned order passed by the Additional Director (Administration) of Medical and Rural Health Services, Chennai, dated 7.1.2008, is vitiated in law.
5. Learned counsel for the petitioner relied on the decisions of the Supreme Court reported in 2006 (9) SCC 195 (Syed Khadim Hussain Vs. State of Bihar) and
6. Per contra, Mr. M.L. Mahendran, learned Government Advocate appearing for the respondents vehemently contended that as per the Government''s scheme, the application for compassionate appointment has to be made within a period of three years from the date of the death of the deceased Government servant, and in the instant case, the application was made belatedly, and there are no indigent circumstances of the family as alleged by the petitioner and further that the family survived even after the death of the father of the petitioner for quite a number of years, which has been duly taken into account by the respondents while rejecting the claim of the petitioner/his mother, and therefore, there is no illegality or infirmity in the impugned order, and hence, it cannot be found fault with. In support of his submissions, learned Government Advocate relied on an unreported decision of this Court in W.P. No. 10299 of 2011, dated 13.6.2011 (Tmt.P. Vanitha Vs. The Secretary to Government, Agriculture Department, Secretariat, Chennai-600 009 and 2 others).
7. I have heard the learned counsel appearing for the parties and perused the records and the relevant Government Orders and the enclosures in the typed set of papers filed in support of the writ petition.
8. A circumspection of the facts reveals that the petitioner''s father was a Pharmacist working under the fourth respondent for the period from 29.11.1976 to 8.3.1998 and he died on 8.3.1998 in harness, leaving behind his wife, the petitioner (the first son), his mother and father and the Legal heirship Certificate showing the heirs of the deceased Government servant, had been issued by the authorities.
9. The petitioner''s mother Meenakshi made a representation on 21.2.2000 and requested the respondents to provide compassionate appointment to her son (the writ petitioner herein), as she was an illiterate, and if the appointment is provided to her son, it will mitigate the sufferings of the bereaved family, and that he would attain majority within a period of four years, and therefore, she requested fervently before the respondents to provide appointment to her son.
10. The said claim of the petitioner''s mother had been recommended by the Joint Director of Medical and Rural Health Services (Administration), Chennai, in his proceedings in K.Dis.No.18080/E5/4/2000, dated 7.3.2001, wherein, the said authority, while referring to the letter of the petitioner''s mother and the Government letters, recommended for considering the claim of the petitioner''s mother to provide compassionate appointment to her son on completion of the age of eligibility, and the said letter dated 7.3.2001, reads thus:
Sub: Establishment--Thiru.Sathishkumar, S/o (late) Thiru. R. Selvaraj, Pharmacist--requesting appointment on compassionate grounds--clarification.
Ref: 1. Representation from Tmt. Meenakshji, W/o the deceased Govt. Servant dt.21.2.2000.
2. Letter Ref.No.1219/E2/2000, dt. 29.4.2000, 16.2.2001 from the Joint Director of Health Services, Thiruvannamalai.
The attention of the Joint Director of Health Service is invited to the reference cited and he is informed that the legal heir of the deceased Govt. Servant i.e. Thiru. S. Sathishkumar who has passed X Std. is eligible for appointment as Junior Assistant.
He is further informed that the Govt. in letter No.66813/G1/91-5, Labour and Employment Department, dt.22.11.91 have clarified that there is no ban in appointing a candidate under compassionate grounds who has not completed 18 years on regular basis provided if he is otherwise fully qualified to hold the post and satisfy the other conditions prescribed for appointment under compassionate grounds.
The Joint Director of Health Services, Tiruvannamalai is further informed that since the individual is eligible for the post of Junior Assistant, he is requested to send fresh proposals for the appointment of Junior Assistant in complete shape.
The certificate received with the letter cited are returned and he is requested to acknowledge the receipt of the same.
Sd/- S. Sankaran,
Joint Director of Medical and Rural Health
Services (Administration)
11. After the said communication dated 7.3.2001, the petitioner made an application on 15.10.2007, requesting the Director of Medical and Rural Health Services, Chennai, however, the said application was rejected by the impugned proceedings in Na.Ka.No.13645/N.P.8/1/02, dated 7.1.2008 on the ground that by the time the petitioner attained majority, there was a delay in making the claim for compassionate appointment, and therefore, there was no indigent circumstance in the family after the death of the deceased Government servant, and the request of the petitioner was not found to be feasible, and that the family of the deceased Government servant could not be termed to be living in indigent circumstances and it defeats the very purpose of compassionate appointment scheme.
12. To examine the abovesaid impugned proceedings dated 7.1.2008 and its legality, it is to be seen that the petitioner''s father died on 8.3.1998 and the petitioner''s mother made a representation on 21.2.2000 and thereafter, the Joint Director of Medical and Rural Health Services (Administration), Chennai, in his proceedings dated 7.3.2001, while referring to the representation of the petitioner''s mother and the relevant Government letter, recommended for considering the claim of the mother of the petitioner to provide compassionate appointment to her son, the writ petitioner herein, on completion of the age of eligibility.
13. It appears that the petitioner attained majority during 2001 and the petitioner made his application seeking compassionate appointment on 15.10.2007. The reason assigned by the authority for rejecting the claim of the petitioner is that the application was not made within three years from the date of the death of the father of the petitioner, and the petitioner''s family was not in indigent circumstances as they were surviving even after the death of the deceased Government servant.
14. It is worthwhile to notice the decisions relied on by the learned counsel appearing for the parties:
Petitioner:
(a) 2006 (9) SCC 195 (Syed Khadim Hussain Vs. State of Bihar):
4. We have heard the appellant''s counsel and counsel for the respondent. Counsel for the appellant points out that after the death of the government servant his wife submitted an application and it was rejected without giving any reasons and the counsel for the State submits that the same must have been rejected as it was not in the prescribed format. If the applicant had not submitted the application in the prescribed format the State authorities should have asked the applicant to submit the application in the prescribed format giving out the details of the procedure. In the matters of compassionate appointments the authorities should extend the service in an effective manner so that the eligible candidate may avail the opportunity. Though the orders of rejection of the application of the appellant''s mother was not challenged the appellant pursued the matter and submitted the application later. The contention of the counsel for the State is that the application filed after 5 years after the date of death of the government employee will not be considered and he further submitted that the application filed on 7-9-1995 was rightly rejected by the authorities.
5. We are unable to accept the contention of the counsel for the State. In the instant case, the widow had applied for appointment within the prescribed period and without assigning any reasons the same was rejected. When the appellant submitted the application he was 13 years'' old and the application was rejected after a period of six years and that too without giving any reason and the reason given by the authorities was incorrect as at the time of rejection of the application he must have crossed 18 years and he could have been very well considered for appointment. Of course, in the rules framed by the State there is no specific provision as to what should be done in case the dependents are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application.
6. As the widow had submitted the application in time the authorities should have considered her application. As eleven years have passed she would not be in a position to join the government service. In our opinion, this is a fit case where the appellant should have been considered in her place for appointment. Counsel for the State could not point out any other circumstance for which the appellant would be disentitled to be considered for appointment. In the peculiar facts and circumstances of this case, we direct the respondent authorities to consider the application of the appellant and give him appropriate appointment within a reasonable time at least within a period of three months. The appeal is disposed of in the above terms. No costs.
(b
5. Learned counsel for the appellant submitted that both CAT and the High Court proceeded on a factually incorrect premise. CAT proceeded on the basis as if the father was rendered medically unfit because of paralytic attack in 1988 and was retired in 1988. Actually and indisputably, the father had retired in 1994. The application made by the appellant was rejected in 1999 and the appeal was dismissed by order dated 17-2-2000. Therefore, the question of 15 years'' delay did not arise. The High Court proceeded on the basis as if the appellant''s father had died in 1994 and the claim for compassionate appointment was raised for the first time after about ten years. In fact the father had not died and had retired and the application was not made after about ten years. In fact, immediately after passing the Senior Secondary Examination, the application was made for the post of clerk since the minimum qualification was passing of Senior Secondary Examination, which was held in the year 1997 and the result was declared in May 1998. The application was made immediately thereafter. In essence, it is submitted that the findings recorded by CAT and the High Court are unsustainable.
6. In response, the learned counsel for the respondent submitted that for compassionate appointment the consideration is the need to urgent financial needs. As the appellant was prosecuting studies after his father''s retirement, it has to be presumed that the family was not in indigent condition. It is to be noted that the appellant''s application was rejected on the ground that the family was not found to be in financially indigent condition.
7. There is no indication as to on the basis of which materials the conclusion was arrived at. It is also not clear as to what were the materials before the Circle Level Selection Committee to conclude that the family was not in financially indigent condition. To add to it, both CAT and the High Court proceeded on factually erroneous premises, as has been highlighted by the appellant and noted supra. Above being the position, the appeal deserves to be allowed, which we direct. The orders of the Central Administrative Tribunal and the High Court are set aside. The matter is remitted to the Central Administrative Tribunal, Chandigarh Bench for fresh hearing. Parties shall be permitted to place materials in support of their respective stand.
(c)
12. Here in this case, the petitioner''s mother applied for compassionate appointment within one year and she was not given appointment due to want of minimum qualification of 8th Standard and the petitioner being the only other legal heir, pursuing the matter and agitating her right for all these years. In the light of the present financial status of the petitioner, the decision reported in Syed Khadim Hussain Vs. State of Bihar, 2006 (9) SCC 195 (cited supra) applies to the facts of this case.
13. In view of the above findings, applying the above cited judgments to the facts of this case, the impugned order dated 07.11.2008 is set aside and the matter is remitted back to the second respondent to consider the claim of the petitioner in the light of the Income Certificate produced from the Tahsildar, Ambattur, dated 23.11.2010 and pass a revised orders within a period of four weeks from the date of receipt of copy of this order.
11. 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 in service. In the case of Syed Khadim Hussain v. State of Bihar and others (referred to supra), the Supreme Court has allowed the case of the petitioner for compassionate appointment. Further, in the case of
12. In view of the legal propositions laid down in the decisions referred to supra and considering the fact that the petitioner has preferred an Application for compassionate appointment well within the prescribed time, this Court is of the opinion that the petitioner''s claim for compassionate appointment cannot be denied and that the petitioner can be accommodated in any suitable post as per his qualification. Therefore, the impugned order dated 07.05.2001 passed by the first respondent is set aside and the respondents are directed to consider the claim of the petitioner for compassionate appointment in any suitable post and pass appropriate orders within a period of twelve (12) weeks from the date of receipt of a copy of this order.
Respondents:
An unreported decision of this Court in W.P.No.10299 of 2011, dated 13.6.2011 (Tmt. P. Vanitha Vs. The Secretary to Government, Agriculture Department, Secretariat, Chennai-600 009 and 2 others):
9. Be that as it may, the petitioner has not submitted any application and an application for compassionate appointment is stated to have submitted by her mother, on her behalf. Even, this application has been rejected in 2006, the present writ petition has been filed after a period of five years.
15. It is the case of the respondents that as per the Government Order in G.O.(Ms).No.16, Labour and Employment Department, dated 21.2.2006, the Government relaxed the ban on compassionate grounds appointment. In G.O.(Ms).No.61, Labour and Employment Department, dated 9.7.2006, the Government issued certain guidelines in regard to the appointment on compassionate grounds. The request of the petitioner was rejected based on the guidelines issued in the Government Orders cited above and on the guidelines issued in Government Letter (Ms).No.202, Labour and Employment Department, dated 8.10.2007. The claim of the petitioner was rejected by the respondents, as if the petitioner''s mother purposely waited for her son attaining majority and completing higher education, and therefore, the object of compassionate appointment in providing the job to tide over the sudden indigent circumstances unexpectedly created by the sudden demise of the Government servant, who died in harness, would be defeated.
16. The concept of providing compassionate appointment has been time and again underlined by the Supreme Court in a catena of decisions. The compassionate appointment has to be provided only to mitigate the sufferings of the bereaved family, and it cannot be delayed or denied. The vacancy cannot be kept unfilled till the claimant gets his eligibility. It is laid down by the Supreme Court in the decision reported in 2006 (9) SCC 195 (Syed Khadim Hussain Vs. State of Bihar) (cited supra) that in the matters of compassionate appointments, the authorities should extend the service in an effective manner, so that the eligible candidate may avail of the opportunity. Though the orders of rejection of the application of the appellant''s mother therein, was not challenged, the appellant therein pursued the matter and submitted the application later. The contention of the counsel for the State was that the application filed after five years after the date of death of the Government employee would not be considered. The Apex Court rejected the said contention of the State and considered that the widow applied for appointment within the prescribed period and without assigning any reasons, the same was rejected. When the appellant therein submitted the application, he was 13 years'' old and the application was rejected after a period of six years and that too, without giving any reason and the reason given by the authorities was incorrect, as at the time of rejection of the application, he must have crossed 18 years and he could have been very well considered for appointment. Of course, in the rules framed by the State, there is no specific provision as to what should be done in case the dependents are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting the application. Ultimately, the Supreme Court considered the claim of the appellant therein for compassionate appointment and directed the authorities to consider the application of the appellant and give him appropriate appointment within a reasonable time at least within a period of three months.
17. The Supreme Court, in the subsequent case reported in
18. In the instant case, even after the death of the Government servant, after ten years, the certificate was issued by the Tahsildar of the concerned jurisdiction, in his proceedings in Moo.Mu.C.3/6453/2008, dated 12.6.2008 stating that except the family pension, there is no other source of income for the family, and the family was in indigent circumstances, and the certificate of the Tahsildar concerned supports the indigent circumstances of the family of the petitioner. That being the position, it is not for the respondents to reject the claim of the petitioner based on surmises and conjectures, holding that there was no indigent circumstance prevailing in the family, so as to reject the claim of the petitioner.
19. The decision of the Supreme Court reported in 2006 (9) SCC 195 (cited supra), had been followed by this Court in the decision reported in
20. It is noteworthy to quote the factors to be decided while dealing with the compassionate appointment scheme, as laid down by the Supreme Court in the decision reported in
20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:
(i) Compassionate employment cannot be made in the absence of rules or regulation
s issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.
(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.
(iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/ incapacitated employee''s family at the time of his death or incapacity, as the case may be.
(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.
21. It is also significant to notice a recent decision of this Court reported in 2011 (4) MLJ 438 (A. Musthfa Iqbal Basha Vs. State of T.N), wherein, this Court, while exhaustively relying on various decisions of the Apex Court, laid down the ratio-decidendi as follows:
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 got over their indigent circumstances and an order rejecting such claim for compassionate appointment on ground of such lapse of time is unsustainable.
22. Looking at from any angle, the impugned order passed by the Additional Director (Administration) of Medical and Rural Health Services, Chennai, dated 7.1.2008, in rejecting the petitioner''s claim for compassionate appointment, on the ground of delay in making the application for compassionate appointment and also that there was no indigent circumstance in the family of the petitioner, cannot be sustained and therefore, it is liable to be interfered with, as it is legally infirmed.
23. For the foregoing reasons, I am of the considered view that the Writ Petition deserves merit consideration and the impugned order dated 7.1.2008 passed by the Additional Director (Administration) of Medical and Rural Health Services, Chennai, is set aside. The Writ Petition is allowed, with a direction to the respondents to consider the petitioner''s claim for compassionate appointment, taking into account the Certificate issued by the Tahsildar, Chengam, dated 12.6.2008 and pass appropriate orders, within a period of six weeks from the date of receipt of a copy of this order. No costs.
