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Judgment
K. Chandru, J.—The Petitioner who is the wife of late N. Radha, who was working as a Driver in the Respondent Tamil Nadu State
Transport Corporation at Virudhunagar, has filed the present writ petition seeking for a direction to consider her representation, dated 20.6.2009
and to pass an appropriate order.
When the matter came up on 31.7.2009, this Court directed the Standing Counsel for the Respondent Corporation to take notice. On taking
notice, the second Respondent has filed a counter affidavit, dated 23.11.2010.
Heard the arguments of Mr. V. Bharathidasan, learned Counsel appearing for the Petitioner and Mr. N. Asaithambi, learned Counsel for the
Respondents.
It is the case of the Petitioner that her husband was working in the Corporation as a driver from the year 1993. On 15.10.1999, his services
were terminated on the ground that he had color blindness. Though her husband made a representation for an alternate employment, the same was
not considered. He also sent a representation on 1.12.1999 to provide an employment. On 19.3.2001, the second Respondent sent a
communication asking the Petitioner''s husband to appear with a view to provide an alternate employment. Though he had appeared, there was no
response from the department. Since his representation was not considered, he filed a writ petition being W.P.(MD) No. 1363 of 2007 to dispose
of his representation, dated 23.9.2006. The said writ petition came to be disposed of on 21.2.2007 directing the Respondents to pass an
appropriate order on his representation. Even before his representation could be disposed of, the Petitioner''s husband died on 16.11.2009.
Therefore, the Petitioner sent a further representation, 3 stating that she had passed Plus 2 standard and has got a daughter aged 4 years old and a
son aged 9 years old. Therefore, she should be provided an employment on compassionate grounds by representation, dated 20.6.2009. It is this
representation, the Petitioner wanted the corporation to dispose of.
In the counter affidavit, it was stated that the Petitioner''s husband was discharged from service on 15.10.1999 on account of unfitness to work
as a driver and all his terminal benefits were also duly settled. When he sought for an alternate employment, he was asked to appear before the
Corporation vide its letter, dated 19.3.2001. In the meanwhile, the Government had banned the fresh recruitment in the Corporation. When the
Petitioner''s husband filed a writ petition to consider his representation, this Court directed the Corporation to consider his representation. The
Corporation held that his claim was belated and a communication to that effect was sent to him, which was returned by the postal authorities that
the Petitioner''s husband has expired. It was also claimed that the scheme for compassionate appointment is available only to the legal heirs of the
employee who dies in harness. But at the time of death of her husband, he was not in employment. Hence, the Petitioner''s claim cannot be
considered. The terminal benefits due to her husband were also settled by the Corporation. Since the Petitioner''s request was only her
representation to be considered and the Respondents also have come up with the counter denying her claim, it is not necessary to give a direction
as sought for.
The question to be considered in this writ petition is whether the Petitioner''s grievance can be entertained by the Corporation?
In paragraph 7 of the counter affidavit, it is stated that compassionate appointment shall be given only to the legal heirs of the employee, who
dies in service. But in the present case, the Petitioner''s husband was discharged on 4 15.10.1999 on ground that he had colour vision eye defect.
Such termination itself is questionable because u/s 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995, such a termination is prohibited. The Petitioner''s husband was entitled to be continued in service with alternate
employment.
In the present case, merely because he was settled with dues due to poverty or penury cannot disqualify him from claiming such benefit. In fact,
this Court in W.P.(MD) No. 1363 of 2007 by an order, dated 21.2.2007 directed the representation of the Petitioner''s husband to be
considered. Though it is claimed that the said representation was rejected, a copy of the rejection letter was not produced along with the counter
affidavit. In any event, it is open to the Petitioner now to challenge the rejection made by the Respondent Corporation in not granting an alternate
employment to her husband on account of Section 47 of the Disabilities Act. In the present case, if Section 47 of the Disabilities Act is applied,
then the termination of the Petitioner''s husband was invalid as there is statutory prohibition from doing so. Therefore, it can be safely held that the
Petitioner''s husband was deemed to be in service on the date of his death on account of the prohibition contained u/s 47 of the Disabilities Act.
Therefore, when he died on 16.11.2009, it should be deemed that he was in employment. Hence, there was no difficulty in considering the case of
the Petitioner for compassionate appointment as if the Petitioner''s husband was in service at the time of his death.
Even otherwise, the Supreme Court in V. Sivamurthy v. State of Andhra Pradesh (2008) 13 SCC 730 dealt with the scope of employment on
account of medical invalidation to be more necessity than the employment on account of dying in harness. The following passages found in 5
paragraphs 26 to 30 may be usefully reproduced below:
As an incidental reason for holding that compassionate appointments are not permissible in cases of medical invalidation, the High Court has
observed that death stands on a ""higher footing"" when compared to sickness. The inference is compassionate appointment in case of medical
invalidation cannot be equated with death-in-harness cases, as medical invalidation is not of the same degree of importance or gravity as that of
death; and that as medical invalidation is not as serious as death-in-harness, exception can be made only in cases of employees dying-in-harness.
But what is lost sight of is the fact that when an employee is totally incapacitated (as for example when he is permanently bedridden due to
paralysis or becoming a paraplegic due to an accident or becoming blind) and the services of such an employee is terminated on the ground of
medical invalidation, it is not a case of mere sickness. In such cases, the consequences for his family may be much more serious than the
consequences of an employee dying-in-harness.
When an employee dies in harness, his family is thrown into penury and sudden distress on account of stoppage of income. But where a person
is permanently incapacitated due to serious illness or accident, and his services are consequently terminated, the family is thrown into greater
financial hardship, because not only the income stops, but at the same time there is considerable additional expenditure by way of medical
treatment as also the need for an attendant to constantly look after him. Therefore, the consequences in case of an employee being medically
invalidated on account of a serious illness/accident, will be no less, in fact far more than the consequences of death-in-harness. Though generally
death stands on a higher footing than sickness, it cannot be gainsaid that the misery and hardship can be more in cases of medical invalidation
involving total blindness, paraplegia, serious incapacitating illness, etc.
Another observation made by the High Court in support of its conclusion is that ""while considering the cases of sick employees, the court
cannot lose sight of cases of sick unemployed"". What the High Court apparently means is that if an exception is made for compassionate
appointment in the case of an employee medically invalidated, it may account to hostile discrimination, as compassionate appointment is not
extended in case of others who are equally sick but are not employees of the Government. But the same logic is applicable to death-in-harness
cases also. It can equally be said that ""while considering the cases of death of employees in service, the court cannot lose sight of cases of death of
other unemployed poor"". Members of the family of a deceased are thrown into penury and hardship not only where the deceased is a government
servant, but also where they belong to 6 weaker or poorer sections of the society. In fact in the case of death of government servants, there is at
least family pension and terminal benefits. But in the case of death of anyone belonging to poorer and weaker sections, there is nothing at all to
support their families. Should compassionate appointments be therefore stopped even in death-in-harness cases also? The issue is complex.
Comparison with non-employed is neither logical nor sound.
When compassionate appointment of a dependant of a government servant who dies in harness is accepted to be an exception to the general
rule, there is no reason or justification to hold that an offer of compassionate appointment to the dependant of a government servant who is
medically invalidated, is not an exception to the general rule. In fact, refusing compassionate appointment in the case of medical invalidation while
granting compassionate appointment in the case of death-in-harness, may itself amount to hostile discrimination. While being conscious that too
many exceptions may dilute the efficacy of Article 16 and make it unworkable, we are of the considered view that the case of dependants of
medically invalidated employees stands on an equal footing to that of dependants of employees who die in harness for the purpose of making an
exception to the rule. For the very reasons for which compassionate appointments to a dependant of a government servant who dies in harness are
held to be valid and permissible, compassionate appointments to a dependant of a medically invalidated government servant have to be held to be
valid and permissible.
There are of course safeguards to be taken to ensure the scheme is not misused. One is to ensure that mere medical unfitness to continue in a
post is not treated as medical invalidation for the purposes of compassionate appointment. A government servant should totally cease to be
employable and become a burden on his family, to warrant compassionate appointment to a member of his family. Another is barring
compassionate appointments to dependants of an employee who seeks voluntary retirement on medical grounds on the verge of superannuation.
This Court observed in Ram Kesh Yadav8 as follows: (SCC p.535, para 9)
... But for such a condition, there will be a tendency on the part of employees nearing the age of superannuation to take advantage of the scheme
and seek voluntary retirement at the fag end of their service on medical grounds and thereby virtually creating employment by ''succession''. It is not
permissible for the court to relax the said condition relating to age of the employee. Whenever a cut-off date or age is prescribed, it is bound to
cause 7 hardship in marginal cases, but that is no ground to hold the provision as directory and not mandatory.
It is advisable for the Respondent Corporation to evolve a scheme for employment on compassionate grounds even in cases where persons
were medically incapacitated and becomes burden of the family as directed by the Supreme Curt. But merely because the scheme is not available
in the Respondent Corporation, that need not negative the claim of the Petitioner as this Court is of the opinion that the discharge of the Petitioner''s
husband was statutorily illegal. Therefore, by fiction, it can be deemed that he was in service at the time of death. There is no legal impediment in
considering the case of the Petitioner for employment on compassionate grounds.
This Court is constrained to modify the relief claimed by the Petitioner in the peculiar circumstances of the case. Hence the writ petition will
stand allowed. A direction will issue to the Respondent Corporation to consider the case of the Petitioner for employment on compassionate
grounds commensurate with her educational qualification on the premise that she is eligible for employment on compassionate ground. The order
shall be passed within twelve weeks from the date of receipt of copy of this order. The result shall be communicated to the Petitioner without fail.
However, there will be no order as to costs.