IN THE HIGH COURT OF JUDICATURE AT MADRAS

ORDERS RESERVED ON :   22.08.2023

ORDERS PRONOUNCED ON : 19.09.2023

CORAM:

THE HONOURABLE Mr.JUSTICE BATTU DEVANAND

W.P.Nos.2621, 9953, 14002 and 15566 of 2020

W.P.No.2621 of 2020:

V.Nithya Vs. 1.Tamilnadu State Transport Corporation (Coimbatore) Ltd., Rep., by its Managing Director,    37, Mettupalayam Road,    Coimbatore-43. 2.The General Manager, Tamilnadu State Transport Corporation (Coimbatore) Ltd.,    37, Mettupalayam Road,    Coimbatore-43. 3.The Stat of Tamil Nadu, Rep., by its Chief Secretary to Government,	..  Petitioner
Secretariat, Chennai-600 009.	..  Respondents

[R3 – suo motu impleaded vide order dated

22.06.2023 made in W.P.No.2621 of 2020]

Prayer: Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of  Mandamus, directing the respondents to provide the petitioner appointment on compassionate ground in commensurate with her educational qualification and also to settle them all the death/terminal benefits, namely, a sum of Rs.1,50,000/- towards Family Benefit Fund, employee’s contribution of Provident Fund, Earned

Leave Salary for 38 days, the amount payable under the Social Security

Scheme, IRT contributions and the amounts payable under the

Contributory Pension Scheme and the salary for the month December 2017 and also for 7 days from 21.12.2017 to 27.12.2017, within a specified time, together with interest at the rate of 12% per annum and awards costs.

For Petitioner	:	Mr.R.Krishnaswamy
For RR1 & 2	:	Mr.A.Sundaravadanam Standing Counsel
For R3	:	Mr.T.Ravindran Additional Advocate General assisted by Ms.P.Vijayadevi Government Advocate

W.P.No.9953 of 2020:

V.Karthikeyan Vs. 1.The Manaing Director, Tamilnadu State Transport Corporation (Salem Division),    No.12, Ramakrishna Salai,    Salem District-636 007. 2.The Section In-Charge (Labour), Tamilnadu State Transport Corporation (Salem Division),    No.12, Ramakrishna Salai,	..  Petitioner
Salem District-636 007.	..  Respondents

Prayer: Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of  Mandamus, directing the respondents to allot job under the compassionate ground appointment by considering the petitioner’s representation dated 22.06.2020 within a stipulated time.

For Petitioner	:	Mr.N.Vijaya Baskar for Law Vision
For Respondents	:	Mr.T.Ravindran Additional Advocate General assisted by Mr.R.Babu Standing Counsel

W.P.No.14002 of 2020:

A.Ajith Kumar  ..  Petitioner

Vs.

The Secretary,

Department of Adi Dravidar and Tribal Welfare,

Secretariat, Chennai.            ..  Respondents

Prayer: Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of  Mandamus, directing the respondent to consider the petitioner’s representation dated 19.08.2019 and to pass appropriate orders on the petitioner’s application.

For Petitioner	:	Mr.B.M.Subash
For Respondents W.P.No.15566 of 2020:	:	Mr.T.Ravindran Additional Advocate General assisted by Ms.M.Jayanthy Additional Government Pleader
G.Anbarasan		..  Petitioner

Vs.

1.The Managing Director,

Tamil Nadu Water Supply and Drainage Board,

31, Kamarajar Salai,

Chepauk, Chennai-600 005.

2.The Executive Engineer,

Tamil Nadu Water Supply and Drainage Board,

Rural Water Supply Division,

NRT Nagar, Theni.                ..  Respondents

Prayer: Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of  Mandamus, directing the 1^st respondent to dispose of the petitioner’s representation dated 01.09.2020 and to appoint him as Junior Assistant in the existing back log vacancies for scheduled caste candidates on merits and in accordance with law within the time frame as may be fixed by this Court.

For Petitioner	:	Mr.G.P.Arivuchudar for Law Square
For R1	:	Mr.T.Ravindran Additional Advocate General assisted by Ms.Mekhala Standing Counsel
Respondent-2	:	Served

COMMON ORDER

In all these writ petitions, the relief sought by the petitioners is to issue a Writ of Mandamus against the inaction of the respondent authorities in considering their applications for appointment on compassionate grounds due to the sudden demise of their bread earners. As the issue involved is one and the same, with the consent of both sides, all these writ petitions are disposed of by a common order.

2.1. Facts of the case in W.P.No.2621 of 2020:

The petitioner’s husband Thiru K.Velusamy, who was working as Conductor in Tamil Nadu State Transport Corporation (Coimbatore) Ltd., i.e., the 1^st respondent herein died on 27.12.2017 in harness leaving behind the petitioner, three years old son, one year old daughter and his parents. At the time of his untimely death, he was having more than 17 years of remaining service. The sudden demise of the petitioner’s husband has put the family to face starvation and the entire family is in distress. The petitioner passed +2. The petitioner’s husband was covered by the New Contributory Pension Scheme, since he was appointed after 01.04.2003. Hence, after his death, the petitioner is entitled for the benefits payable under the said pension scheme. The petitioner is entitled for pension under New Contributory Pension Scheme, employee’s contribution of Provident Fund with interest, Family Benefits Scheme, Social Security Scheme, Encashment of Earned Leave of 38 days, Gratuity Amount, IRT Contribution, salary for 7 days from 21.12.2017 to 27.12.2017 and for compassionate appointment. As the terminal benefits are not settled by the respondents, the petitioner made representations on 01.04.2019 and 13.04.2019. As there is no reply from the respondents, the petitioner is constrained to file this writ petition against the inaction of the respondents.

2.2. Averments in the counter filed on behalf of Respondents No.1 and 2:

The husband of the petitioner joined as Conductor in the respondentCorporation on 07.08.2012. He expired on 27.12.2017. He registered his parents’ names as legal representatives in the Service Register at the time of joining duty. The petitioner’s name or her two children’s names are not updated. After the death of the employee, the petitioner had submitted the legal heir certificate along with other proper documents. After registering the legal heirs’ names, the terminal benefits have been paid to the petitioner. The respondent-Corporation has paid a sum of Rs.1,41,500/- towards Family Benefit Fund. An amount of Rs.57,115/- was paid towards Gratuity. The PF amount will be settled after getting specific direction from the Government. Due to financial crisis of the Corporation, payment of 38 days Earned Leave salary has not been effected to the employees including the petitioner. The petitioner is entitled for Rs.25,319/- towards Earned Leave surrender and it will be settled after receiving financial assistance from the Government. IRT deposit amount also will be refunded to the petitioner. With regard to the compassionate appointment, the petitioner’s name was registered and basing on the seniority, the Corporation will provide employment. It is stated that taking into account the death of the employee up to March, 2007 only, compassionate appointments have been provided to their legal heirs till April, 2023.

3.1. Facts of the case in W.P.No.9953 of 2020:

The petitioner’s father Thiru A.Velayutham, who worked as Conductor in Tamil Nadu State Transport Corporation (Salem Division) died on 16.05.2006 in harness leaving behind his wife, two sons and his mother as his legal heirs. The petitioner has submitted an application for

compassionate appointment to the respondents on 10.10.2009. The 1^st respondent called for interview on 13.10.2009 along with all original

certificates. Thereafter, there was no reply from their end. Again the 2^nd respondent sent a letter dated 07.12.2016 calling for personal interview on 15.12.2016 along with original certificates. The petitioner attended the interview with all documents as required by them. But no orders were passed for appointment. The petitioner possessed Diploma in Mechanical Engineering and having valid driving licence. The petitioner submitted all requisite documents. Though the petitioner repeatedly submitting representations to the respondents, there is no any response from the respondents. Against the inaction of the respondents in providing employment to the petitioner on compassionate grounds, the present writ petition is filed.

 

3.2. Averments in the counter affidavit filed by the respondents:

The petitioner’s name was registered for compassionate ground appointment. His seniority is 276. As and when his name comes for consideration as per seniority list, he will be considered as per rules in force. To provide employment to the 100 legal heirs of deceased employees, the subject was placed before the 227^th Board Meeting held on 17.08.2017, but the subject was deferred. The Corporation is ready to consider the petitioner for compassionate appointment as per the

seniority.

4.1. Facts of the case in W.P.No.14002 of 2020:

The petitioner’s father Thiru Annamalai, who was working as Cook at Adi Dravidar Hostel at Thottiyam Village, died on 29.12.2014 while in service leaving his wife and three sons as his legal heirs. The wife of the employee/mother of the petitioner made an application on 21.05.2015 requesting to provide compassionate ground appointment in favour of her elder son, i.e., the petitioner and the same was forwarded to the Commissioner, Adi Dravidar and Tribal Welfare Department on

28.09.2016. Till then there is no action. Aggrieved by the same, the present writ petition is filed.

4.2. Averments in the counter filed by the respondent:

The petitioner’s mother submitted application to provide compassionate appointment to the petitioner on 21.05.2015 and the same was forwarded to the Commissioner of Adi Dravidar and Tribal Welfare Department on 28.09.2016 and the petitioner’s application is kept in seniority list at the State Level Seniority List of compassionate ground appointment. His seniority number is 200. As such, it is not correct to state that no action was taken on the petition of the petitioner.

5.1. Facts of the case in W.P.No.15566 of 2020:

The father of the petitioner Late S.Govindaraj, who was working as Maintenance Assistant in the respondent-Board died on 15.09.2014 in harness. The mother of the petitioner submitted a representation on 30.09.2014 to the respondents to sanction family pension, death cum retirement gratuity and other terminal benefits. The said benefits are not yet settled. The mother of the petitioner submitted a separate application dated 30.09.2014 along with required documents to the respondents seeking appointment as Junior Assistant to the petitioner on compassionate grounds. The Secretary cum General Manager of the Board sent a letter seeking certain documents and as per his instructions, the petitioner submitted “No Objection Letter” to work anywhere in Tamil Nadu explaining the indigenous circumstances of his family to the respondents on 20.06.2015. After submitting all relevant documents, the petitioner did not receive any intimation from the respondents. The petitioner’s family has spent a sum of Rs.4,00,000/- for medical treatment of his father, which was obtained for interest and they have to pay to the lenders. By securing hand loans from near and dear, marriage of the sister of the petitioner was performed. Those loans are to be cleared. The petitioner and his mother have been working as coolie in paddy fields and as construction workers to feed their family. Aggrieved by the action of the respondents in not providing compassionate appointment, the

present writ petition is filed.

5.2. Averments in the counter affidavit:

The facts of the case are not disputed. It is stated that the application of the petitioner for compassionate appointment is under consideration and it will be processed as per the seniority based on the date of death of the employee. As on date, compassionate appointments have been made for the legal heirs of employees who died up to 31.12.2008 only. The petitioner’s name will be considered as per the seniority based on the date of death of his father. The claim of the petitioner to appoint him in back log vacancies cannot be considered, as compassionate grounds appointments are made following the prevailing Government Orders.

6. Heard Mr.R.Krishnaswamy, Mr.N.Vijaya Baskar, Mr.B.M.Subash and Mr.G.P.Arivuchudar, learned Counsel for the petitioners and Sri T.Ravindran, learned Additional Advocate General, assisted by learned Government Advocate, learned Additional Government Pleader and learned Standing Counsel for the respondents and perused the record.
7. Learned Additional Advocate General has placed severalGovernment Orders issued by the Government from time to time to provide compassionate appointments from the year 1972 to till date. He also placed reliance on the judgments of the Hon’ble Apex Court and High Courts in The State of West Bengal v. Debabrata Tiwari & Ors.

Etc. Etc.⁽ⁱ⁾, General Manager v. Anju Jain [Civil Appeal No.5224 of

2008, dated 25.08.2008], Central Bank of India v. Nitin [Civil Appeal

No.5111 of 2022, dated 03.08.2022] and Moti Ram v. Himachal

Pradesh Electricity Board Limited⁽ⁱⁱ⁾.

8. Learned counsel for the petitioners relied on the judgment of the

Hon’ble Apex Court in Director of Education (Secondary) & Anr. v.

Pushpendra Kumar & Ors⁽ⁱⁱⁱ⁾.

9. This court is fully agreeing with the proposition of law laid down in the reliances placed on either side.
10. The contention of the learned counsels appearing for the petitioners is that as there is no time limit prescribed to provide

• 2023 LiveLaw (SC) 175
• 2022 SCC OnLine HP 236
• (1998) AIR SC 2230

compassionate appointment to the dependants of the deceased Government servants from the date of introducing the compassionate appointment scheme in the year 1972 to till date, even in the comprehensive guidelines issued by the Government in the year 2020 and rules made in 2023, the cases of the petitioners are not being considered for several years under the pretext that their names are included in the seniority list and it will be considered as and when their turn comes. Due to this reason, the aim and object of the scheme is defeated and the family of the deceased Government servant has to suffer in indigent condition for several years.

11. The learned counsels further contend that the applications of the dependants of the deceased Government servants have to be considered within time frame considering the financial hardships being faced by them.
12. The learned Additional Advocate General would submit that it is settled principle of law that nobody can claim an appointment under compassionate grounds as a matter of right. However, as per the scheme introduced by the Government and guidelines issued from time to time to appoint eligible dependant family member of the deceased Government servant, the District Collectors are maintaining seniority list of the applications submitted by the legal heirs of the deceased Government servants and as and when vacancy is available, they are appointing the applicants as and when their turn comes.
13. After hearing the learned counsel on either side and on careful examination of the scheme of compassionate appointment and various Government Orders, the following facts emerge for consideration:
14. The Government vide G.O.Ms.No.225, Labour and Employment, dated 15.02.1972 had introduced the scheme of providing employment assistance to the dependants of Government servants, who died in harness leaving their families in indigent circumstances; ii. The State Government issued G.O.(Ms) No.18, Labour and Employment (Q1) Department, dated 23.01.2020 prescribing comprehensive guidelines for appointment on compassionate grounds in supersession of all the earlier orders issued from

G.O.Ms.No.225, Labour and Employment, dated 15.02.1972 to

G.O.Ms.No.78, Labour and Employment Department, dated 21.04.2017. The aim and object of the scheme of compassionate appointment is stated as extracted herein under:

“The scheme of compassionate ground appointment was introduced by the Government in the year 1972.

Following are the salient features of the scheme:

• Employment is to be provided by relaxing the normal procedure of recruitment through Employment Exchanges to the legal heirs of the Government servant, who dies in harness leaving his family in indigent circumstances.
• It is a welfare measure of the Government to help the legal heirs of the deceased Government servants appreciating their service rendered by them for the Government.
• Compassionate ground appointment cannot be claimed as a matter of right. It is a scheme devised by the Government to help the needy legal heirs whose lives are at distress after the Government servant dies in harness.”
  14. Based on the 110 Announcement of Hon’ble Chief Minister ofTamil Nadu on the floor of the Tamil Nadu Legislative Assembly on 07.09.2021, the State Government, after careful examination, decided to issue the rules to provide compassionate ground appointment to the legal heirs of the deceased/medically invalidated Government servants and accordingly, Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023 are notified vide G.O.(Ms) No.33, Labour Welfare and Skill Development (Q1) Department, dated 08.03.2023 in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India.
  15. The relevant rules required for the proper adjudication of the issue involved in this case are extracted herein under:

“Rule 5. Time limit to make application.— Every application for appointment under these rules shall be made within a period of three years from the date of death of the Government servant or from the date of retirement on medical invalidation or from the date of receipt of court order declaring the missing Government servant as dead, under sections 107 or 108 of the Indian Evidence Act, 1872 (Central Act I of 1872).

Rule 8. Application for appointment.— (1) The eligible member of the family of the deceased or medically invalidated Government servant may make an application for appointment under these rules in Form–I through online in the designated web portal or website of the department or in writing addressed to the Head of office in which the Government servant, was working at the time of his death or retired on medical invalidation, as the case may be.

Rule 13. Order of priority in appointment.— Appointment on compassionate grounds shall be made from among the eligible applicants, in the order of the date of death of the Government servant or the date of death as declared by the Court under sections 107 or 108 of the Indian Evidence Act, 1872 (Central Act I of 1872) or the date of retirement on medical invalidation, as the case may be.

Rule 14. Procedure for processing of applications.—

• The head of the office where the deceasedGovernment servant was working at the time of his death shall immediately report the death of a Government servant to the Head of the Department and shall furnish the required particulars to the Head of the Department within one month.
• As soon as may be, but in any case not later than thirty days from the date of death of the Government servant, the head of office shall inform the provision of the scheme for appointment on compassionate grounds to the family of the deceased Government servant in writing under proper acknowledgment.
• On receipt of application for appointment, if any, from any member of the family of the deceased or medically invalidated Government servant under subrule (1) of rule 8, the Head of Office shall examine as to whether the applicant fulfills all the requirements for appointment under these rules, and if so, forward the same to the Head of the Department along with his report, also indicating the vacancy position for such appointment within a period of one month from the date of receipt of the application.
• In case the applicant does not fulfil the requirements for appointment under these rules, the Head of Office shall pass an order of rejection within a period of one month from the date of receipt of the application and communicate the same to the applicant.
• The applicant, if aggrieved by the order of rejection under sub-rule (4), may prefer an appeal to the Head of the Department within a period of two months from the date of receipt of the order: Provided that in respect of an order of rejection passed by the Head of the Department, an appeal shall lie to the Secretary to Government of the Department concerned of the Secretariat.
• On receipt of the application from the Head of office under sub-rule (3), the Head of the Department shall ensure that the applicant fulfills all the requirements for appointment under these rules and issue an order of appointment, appointing him in any of the vacancy in the office in which the deceased or medically invalidated Government servant was working at the time of his death or in any other office under his administrative control, within fifteen days from the date of receipt of the report from the Head of Office:

Provided that, if no vacancy is available or vacancy is not likely to occur within a period of three months, the Head of Department shall forward the application along with the report of the Head of Office to the Collector of the district in which the deceased or medically invalidated Government servant last worked.

• In case the spouse of the deceased Government servant, who had applied for appointment under these rules, gets remarried, the appointing authority shall issue an order of appointment only after obtaining an undertaking from the spouse that he shall maintain the children and the parents of the deceased.
• The Collector of each district shall maintain a Register indicating the number of applications received and are pending under these rules in the order of seniority. The Collector shall send a Quarterly report in this regard to the Government in Labour Welfare and Skill Development Department before the 15th of the month following the end of the quarter.
• Only after obtaining a Certificate of nonavailability of candidate in the Register maintained by the District Collector concerned, the Head of Department shall provide vacancies in Group “C” or Group “D” posts, to be filled up by the Tamil Nadu

Public Service Commission or the Directorate of Employment and Training.

• The Departments of Government in the

Secretariat, the Heads of the Departments and the District Collectors shall maintain a separate online web page in their respective website, showing the details of the applications, separately for appointment to Group “C” and Group “D” posts, received under these rules, in the format prescribed in Form-III. The pendency details shall be updated on the first day of every month.

• Appointment under these rules shall not be granted to more than one member of the family.
• Appointment under these rules shall be made only against the actual vacancies and no

supernumerary posts shall be created therefor.”

16. On perusal of the above rules, it appears that the eligible member of the family of the deceased Government servant shall submit an application seeking for appointment under compassionate grounds within a period of three years from the date of death of the Government servant. On receipt of the application for appointment, the Head of Office, shall forward the same to the Head of the Department along with his report, if the applicant fulfills all the requirements and also indicating the vacancy position within a period of ONE MONTH from the date of receipt of the application.
17. In case, the applicant dose not fulfill the requirements for appointment under these rules, the Head of Office shall pass an order of rejection within a period of ONE MONTH from the date of receipt of the application and has to communicate the decision to the applicant. The applicant, if aggrieved by the rejection order, he may prefer an appeal to the Head of the Department within a period of two months from the date of receipt of the order. Against the order of rejection passed by the Head of the Department also, an appeal shall lie to the Secretary to the Government of the concerned Department.
18. On receipt of the application from the Head of Office, under sub-rule (3) of Rule 14, the Head of the Department shall issue an order of appointment, if the applicant fulfills all the requirement for appointment under these rules, appointing him in any of the vacancy in the office in which the deceased Government servant was working at the time of his death or in any other office under his administrative control WITHIN 15 DAYS from the date of receipt of the report from the Head of Office.
19. If no vacancy is available or vacancy is not likely to occur within a period of three months, the Head of the Department shall forward the application to the Collector of the District, in which the deceased Government servant last worked. The Collector of each District shall maintain a register indicating the number of applications received and or pending in the order of seniority.
20. On careful examination of the above rules, it is clear that the appointment order under compassionate grounds shall be issued by the Head of the Department within 15 days from the receipt of the application seeking compassionate appointments subject to fulfilment of all requisite eligibilities by the applicant and availability of vacancy. If there is no vacancy available or vacancy is not likely to occur within a period of three months, the application of the applicant is to be forwarded to the concerned District Collector in which the deceased Government servant last worked. In the rules, there is no time limit prescribed for providing employment to the applicants on compassionate grounds after their applications are being forwarded to the concerned District Collectors.
21. It is true that it is settled principle of law that compassionate appointment is not a matter of right to any person. But, in the considered opinion of this Court, when the State took a policy decision and introduced a scheme to provide compassionate appointment, the dependants of the members of the deceased employee are entitled for the same as per the terms and conditions of the scheme.
22. The view of this Court is fortified by the judgment of the Hon’ble Apex Court in State of Himachal Pradesh and another v.

Shashi Kumar^(iv). Speaking for the Bench, Dr.D.Y.Chandrachud, J., held

(iv) (2019) 3 SCC 653

as extracted herein under:

“18. While considering the rival submissions, it is necessary to bear in mind that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. Dependants of a deceased employee of the State are made eligible by virtue of the policy on compassionate appointment. The basis of the policy is that it recognises that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. It is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. Where the authority finds that the financial and other circumstances of the family are such that in the absence of immediate assistance, it would be reduced to being indigent, an application from a dependent member of the family could be considered. The terms on which such applications would be considered are subject to the policy which is framed by the State and must fulfil the terms of the policy. In that sense, it is a well-settled principle of law that there is no right to compassionate appointment. But, where there is a policy, a dependent member of the family of a deceased employee is entitled to apply for compassionate appointment and to seek consideration of the application in accordance with the terms and conditions which are prescribed by the State.”

23. In view of the above, as the State Government has introduced the scheme of compassionate appointment from the year 1972 onwards and in the light of the Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023, it is to be held that the petitioners are entitled to seek appointment under the scheme.
24. Now, the issue to be considered is whether the said benefit of providing appointment on compassionate grounds is not provided for several years from the date of death of the Government servants, the aim and object of the scheme would achieve or not ?
25. The aim and object of the compassionate appointment scheme is to consider the pathetic condition of the families of the Government servants, who died in harness to help those families with humanitarian approach. The primary object of such scheme is to provide succour to the bereaved family from sudden financial crisis occurred due to death of sole bread earner and to mitigate the hardship caused due to the sudden demise of the head of the family. To achieve the aim and object of compassionate appointment scheme, there should not be any delay in providing such assistance. Not considering the case of the dependants of the deceased Government servants for compassionate appointment for several years after the death of their head of the family would not be in furtherance of the aim and object of the scheme. In the considered opinion of this Court, there is no meaning or rationality in introducing “compassionate appointment scheme”, if the dependants of the deceased Government servants, whose families are in the lurch and in financial difficulties, are not provided the benefit for several years (i.e.,) more than

10 to 15 years.

26. In W.P.No.9953 of 2020, the petitioner’s father died in the year 2006 while in service. After expiry of 17 years, now the respondents are contending that the petitioner’s name is included in the seniority list at Serial No.276 and it will be considered as and when his turn comes.
27. In W.P.No.14002 of 2020, though the petitioner’s father expired nearly 10 years back, without providing compassionate appointment to the petitioner, the respondent is contending that the petitioner’s name is included in the seniority list at Serial No.200 and it will be considered as per seniority.
28. In W.P.No.15566 of 2020, though nearly 10 years have expired from the date of death of the father of the petitioner, now the respondents are contending that as on date, they have provided compassionate appointment to the legal heirs of employees, who died up to 2008 only and the petitioner’s name will be considered as per the seniority.
29. It is the contention of the respondents in W.P.No.2621 of 2020 that they have appointed the legal heirs of the deceased employees, who died up to March, 2007 and as per seniority, the petitioner’s name would be considered.
30. On careful consideration of the contentions of the respondents, it appears that the respondents are taking minimum 14-15 years to provide compassionate appointments to the dependants of the deceased employees.
31. In our view, unreasonable delay occurred from the date of death of the deceased employee in providing compassionate appointment definitely, it would lose its significance.

In the words of William Shakespeare:

“Better Three hours too soon than a minute too late!”

If, by any reason if the family of the deceased employee has overcome  the indigent condition and penury by way of alternative means for livelihood, it is different. But, if there is no any source for their livelihood, the said family has to strive for years together to tide over the sudden crisis. As such, it is the duty and responsibility of the respondents to formulate definite time frame to provide compassionate appointment to the dependants of the Government servants died in harness. Otherwise, definitely the aim and object of the scheme would be defeated. This Court expects that the State Government and its instrumentalities would take positive steps to achieve the aim and object of the scheme with humanitarian approach.

32. Underlying the concept of compassionate appointment, a Division Bench of this Court in Superintending Engineer v. V.Jaya^(v), observed at Paragraph No.7 as extracted herein under:

“7. However, in a case of request for appointment on compassionate ground, however, the Court, while exercising its jurisdiction under Article 226 of the Constitution of India, cannot ignore the very purpose of providing employment on compassionate ground to the dependant of an employee/government servant dying in harness in preference to anybody else as it is

• (2007) 6 MLJ 1011

done so in order to mitigate the hardship to the family of the employee on account of his unexpected death while still in service. The concept of compassionate employment is intended to alleviate the distress of the family and it is for such purpose appointments are permissible and provided even in the rules and regulations and any rigid approach or too technical objections may defeat the very object of the scheme. It is for that purpose while considering the request for compassionate appointment; the authorities are expected to act as a Good Samaritan overlooking the cobwebs of technicalities.”

33. It is very apt at this juncture to refer the following observations of the Hon’ble Apex Court in the case of Balbir Kaur v. Steel Authority of India Limited^(vi) as extracted herein under:

“In the case of appointment considering the social and economic justice as enshrined in the constitution, denials of deserving cases are liable to be set aside. Further, the purpose of providing compassionate ground to a son or daughter or a near relative of the deceased government servant is to render assistance to the family, which is found in indigenous

• (2000) 6 SCC 493

circumstances. Hence, in considering the case for compassionate appointment, the authorities are supposed to adopt a human outlook.”

34. In this regard, it is worthwhile to refer the case in Debabrata Tiwari (supra), wherein the Hon’ble Apex Court has emphasised the rationale for policy of compassionate appointment at Paragraph No.30 as extracted herein under:

“30. The majesty of death is that it is a great leveller for, it makes no distinction between the young and the old or the rich and the poor. Death being as a consequence of birth at some point of time is inevitable for every being. Thus, while death is certain, its timing is uncertain. Further, a deceased employee does not always leave behind valuable assets; he may at times leave behind poverty to be faced by the immediate members of his family. Therefore, what should be done to ensure that death of an individual does not mean economic death for his family? The State’s obligation in this regard, confined to its employees who die in harness, has given rise to schemes and rules providing for compassionate appointment of an eligible member of his family as an instance of providing immediate succour to such a family. Support for such a provision has been derived from the provisions of Part IV of the Constitution of India, i.e., Article 39 of the Directive Principles of State Policy.”

35. Dealing with the sense of immediacy in matters concerning compassionate appointment, the Hon’ble Apex Court, in the same judgment, held at Paragraph No.33 as extracted herein under:

“33. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis due to the 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 that unless some source of livelihood is provided, the family would not be in a position 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. Having regard to such an object, it would be of no avail to grant compassionate appointment to the dependants of the deceased employee, after the crisis which arose on account of death of a bread-winner, has been overcome. Thus, there is also a compelling need to act with a sense of immediacy in matters concerning compassionate appointment because on failure to do so, the object of the scheme of compassionate would be frustrated. Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and thus lose its significance and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out for

consideration.” (emphasis is ours)

36. In Sushma Gosain v. Union of India^(vii), the Hon’ble Apex Court observed that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. That the purpose of providing appointment on compassionate grounds is to mitigate the

• (1989) 4 SCC 468

hardship caused due to the death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress.

37. In Umesh Kumar Nagpal v. State of Haryana^(viii), the Hon’ble Apex Court observed that the object of granting compassionate employment is to enable the family of a deceased Government employee to tide over the sudden crisis by providing gainful employment to one of the dependants of the deceased who is eligible for such employment. That mere death of an employee in harness does not entitle his family to such source of livelihood; the Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied that, but for the provision of employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family, provided a scheme or rules provide for the same. The Hon’ble Apex Court further clarified in the said case that compassionate appointment is not a vested right which can be exercised at any time after the death of a government servant.

• (1994) 4 SCC 138

That the object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, compassionate employment cannot be claimed and offered after lapse of considerable amount of time and after the crisis is overcome. (emphasis is ours)

38. The Hon’ble Apex Court in Haryana State Electricity Board v. Hakim Singh^(ix), has considered the importance of immediacy in the manner in which claims for compassionate appointments are to be made observing that it should not be forgotten that the object of compassionate appointment is to give succour to the family to tide over the sudden financial that has befallen the dependants on account of the untimely demise of its sole earning member.
39. The Hon’ble Apex Court while dealing the similar issue in State of Jammu and Kashmir v. Sajad Ahmed Mir^(x), held that granting compassionate appointment after a lapse of a considerable amount of time after the death of the government employee, would not be in

• (1997) 8 SCC 85
• (2006) 5 SCC 766

furtherance of the object of a scheme for compassionate appointment.

40. It is worthwhile to refer the observation of the Hon’ble Apex Court in the judgment in Malaya Nanda Sethy v. State of Orissa^(xi), which emphasizes the sense of immediacy for appointment on

compassionate grounds as extracted herein under:

“9. Before parting with the present order, we are constrained to observe that considering the object and purpose of appointment on compassionate grounds, i.e., a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service and the basis or policy is immediacy in rendering of financial assistance to the family of the deceased consequent upon his untimely death, the authorities must consider and decide such applications for appointment on compassionate grounds as per the policy prevalent, at the earliest, but not beyond a period of six months from the date of submission of such completed applications. (emphasis supplied)

We are constrained to direct as above as we have found that in several cases, applications for

• AIR 2022 SC 2836

appointment on compassionate grounds are not attended in time and are kept pending for years together. As a result, the applicants in several cases have to approach the concerned High Courts seeking a writ of Mandamus for the consideration of their applications. Even after such a direction is issued, frivolous or vexatious reasons are given for rejecting the applications. Once again, the applicants have to challenge the order of rejection before the High Court which leads to pendency of litigation and passage of time, leaving the family of the employee who died in harness in the lurch and in financial difficulty. Further, for reasons best known to the authorities and on irrelevant considerations, applications made for compassionate appointment are rejected. After several years or are not considered at all as in the instant case.

If the object and purpose of appointment on compassionate grounds as envisaged under the relevant policies or the rules have to be achieved then it is just and necessary that such applications are considered well in time and not in a tardy way. We have come across cases where for nearly two decades the controversy regarding the application made for compassionate appointment is not resolved. This consequently leads to the frustration of the very policy of granting compassionate appointment on the death of the employee while in service. We have, therefore, directed that such applications must be considered at an earliest point of time. The consideration must be fair, reasonable and based on relevant consideration. The application cannot be rejected on the basis of frivolous and for reasons extraneous to the facts of the case. Then and then only the object and purpose of appointment on compassionate grounds can be achieved.”

In this judgment, the Hon’ble Apex Court directed to consider and decide applications for appointment on compassionate grounds within SIX MONTHS from the date of submission.

41. During the course of hearing, it came to the notice of this Court that the respondents are maintaining seniority lists of the claims of the dependants of the Government servants died in harness – District wise and Department wise. The Corporations of the State are maintaining separate seniority lists. As per the scheme, 5% of vacancies of Group ‘C’ and ‘D’ posts are earmarked for consideration of compassionate appointments.
42. It is an admitted fact that in some Departments of the Government or Corporations, the number of employees working in ‘C’ and ‘D’ groups may be high and in some Departments and Corporations, it may be low. Based on the strength of the Group ‘C’ and ‘D’ employees working there, the vacancies would occur on retirements or employees dying in harness. But there may be variation in mortality rate among different Departments and Corporations. It appears that due to that sole reason, even after receipt of the application of the dependants of the employee by the Head of the Department, they are not in a position to provide immediate employment to them due to non-availability of vacancies in their Departments or Corporations.
43. Under these circumstances, if 5% of vacancies of Group ‘C’ and ‘D’ posts arising in all Departments of the State Government and Corporations are pooled together at State level and seniority list is maintained accordingly, it can be useful to consider the claims of compassionate appointment within a reasonable time frame, instead of keeping them waiting due to long seniority list for several years. Likewise, in some Districts, number of vacancies may arise on higher side due to retirements and deaths in harness in Group ‘C’ and ‘D’ posts. But in other Districts, it may be lower comparatively. Similarly, the number of deaths in harness may differ from District to District. Such situation calls for the State maintaining a seniority list for the whole State, instead of separate list for each District. This allows for early accommodation of dependents of deceased employees into suitable post. Normally, those persons, who claim compassionate appointment can go anywhere to work to support their families and they can be

accommodated at an early date at any place.

44. In view of the above discussion, for the aforesaid reasons and in the light of the aforesaid authorities of Apex Court, it is held that nonconsideration of the petitioners’ claim for compassionate appointment for several years is unreasonable, irrational, unjust and against to the aim and object of the compassionate appointment scheme introduced by the State Government and as adopted by its instrumentalities.
45. Accordingly, present Writ Petitions are allowed with the following directions:
46. The Respondents are directed to consider and provide

compassionate appointment to the petitioners in any suitable post as per the scheme prevalent within a period of six weeks from today; ii. The Respondents in W.P.No.2621 of 2020 are directed to settle the amounts payable to the petitioner towards Provident Fund, encashment of Earned Leave surrender and IRT amount within a period of four weeks from today.

iii. The Respondent No.3 in W.P.No.2621 of 2020 is directed to constitute a Committee to look into the issue to make necessary recommendations to amend Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023 to fix time frame and to consider the suggestion for feasibility to maintain the State-wise seniority list of the dependants for compassionate appointment and take steps to obtain report from the Committee within two months; and iv. The action taken report be placed before this Court within three months for consideration.

46. There shall be no order as to costs.
47. Registry is directed to post these cases on 20^th December, 2023 for consideration of the report.

 

19.09.2023 Note: Issue order copy by 22.09.2023.

NCC : Yes/No

Index : Yes/No Internet : Yes abr

To

1.The Managing Director,

Tamilnadu State Transport Corporation (Coimbatore) Ltd.,    37, Mettupalayam Road,    Coimbatore-43.

2.The General Manager,

Tamilnadu State Transport Corporation (Coimbatore) Ltd.,    37, Mettupalayam Road,    Coimbatore-43.

3.The Chief Secretary to Government,    Stat of Tamil Nadu,    Secretariat, Chennai-600 009.

4.The Manaing Director,

Tamilnadu State Transport Corporation (Salem Division),    No.12, Ramakrishna Salai,    Salem District-636 007.

5.The Section In-Charge (Labour),

Tamilnadu State Transport Corporation (Salem Division),    No.12, Ramakrishna Salai,    Salem District-636 007.

6.The Secretary to Government,

State of Tamil Nadu,

Department of Adi Dravidar and Tribal Welfare,    Secretariat, Chennai.

7.The Managing Director,

Tamil Nadu Water Supply and Drainage Board,

31, Kamarajar Salai,    Chepauk, Chennai-600 005.

8.The Executive Engineer,

Tamil Nadu Water Supply and Drainage Board,

Rural Water Supply Division,    NRT Nagar, Theni.

BATTU DEVANAND, J.

abr

Pre-delivery Common Order made in

W.P.Nos.2621, 9953, 14002 and 15566 of 2020

Dated : 19.09.2023