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Judgment
S. Manikumar, J.—The challenge in this Writ Petition is the rejection of petitioner''s request, seeking compassionate appointment in the Department of Health and Preventive Medicine, Chennai for the post of Junior Assistant and for further reliefs.
It is the case of the petitioner that his father was employed as Field Worker (Permanent Mazdoor) in Sub Unit, Kaveripakkam, National Filarial Control Unit, Vellore, North Arcot Ambedkar District. On 12.10.1992, he died in harness, leaving behind the petitioner and his three sisters, whose details are furnished hereunder:
Sl. No
Name of the persons
age
Relationship with deceased Thirumalai
Marital Status
Educational Qualifications
1
Theivayanai
38
Elder daughter
Widow
--
2
Lakshmi Narayanan-Petitioner
37
Elder son
Married
SSLC passed
3
Meenatchi
26
Daughter
Married
--
4
Veenda
22
Daughter
Unmarried
7th Std (6th Std passed)
The petitioner has further submitted that his mother, pre-deceased his father, due to an accident. Initially, his father, who was appointed as contingent staff, was regularised under the time scale of pay from 1975 onwards and moved on to selection Grade in the cadre of Mazdoor from 1985 onwards. It is the further case of the petitioner that after the death of his father, the respondents have not sanctioned any terminal benefits.
After the demise of petitioner''s father, the member of the family find it very difficult to eak out their livelihood. The petitioner who had completed SSLC in Public Examination was forced to look after his elder sister, with her five children and his two unmarried sisters. After obtaining "No Objection Certificate" from his sisters, the petitioner made representation to the second respondent on 05.03.1993, seeking compassionate appointment. The second respondent by letter dated 22.10.1993, sought particulars in respect of petitioner''s younger sister for compassionate appointment. But, by letter dated 15.04.1993, the request of the petitioner for compassionate appointment was rejected on the ground that the petitioner had crossed the age limit of 30 years, prescribed for compassionate appointment on the date of death of his father, i.e., on 12.10.1992. The petitioner has further submitted that he belonged to MBC community and that as per Rule 12(D) of the Tamil Nadu and State and Subordinate Service Rules, he is eligible to get age relaxation for appointment to Government service. He has further submitted that in so far as the compassionate appointment is concerned, fixing the age limit is highly irregular and opposed to the object of the Government to provide compassionate appointment to the kith and kin of the Government servants who died in harness.
The respondents have filed counter affidavit and submitted that Late G. Thirumalai, Mazdoor, working in the office of Filaria Officer, NFCU, Vellore, died on 12.10.1992 and the terminal benefits of the deceased, viz., Family Benefit Fund, Special Provident Fund, Encashment of Earned Leave at the credit of the deceased employee have already been sanctioned. They further submitted that one of the conditions prescribed by the Government for consideration for compassionate appointment is the upper age limit. The Government have issued orders in G.O.Ms.No. 1579, Labour and Employment dated 21.07.1981, which was later on amended in their letter No. 2563/N1/83-2, Labour and Employment Department, dated 11.03.1982 and in Letter No. 46571/N1/82-3 Labour and Employment dated 24.11.1982, the maximum age prescribed in respect of sons, unmarried daughters and husbands/widows, seeking compassionate appointment shall be 30/40 years on the date of death of Government servant. The petitioner had requested for appointment as Junior Assistant on compassionate grounds, consequent to the death of his father, who had worked as Mazdoor. On the date of death, the petitioner had completed 35 years, 11 months and 7 days. As he had crossed maximum age of 30 years prescribed under the above said Government Orders, the request for appointment of the petitioner on compassionate grounds could not be complied with and therefore, by letter dated 15.04.1993, the Director of Public Health and Preventive Medicine, Chennai-6, the respondent has turned down the petitioner''s request.
Placing reliance on the decision of the Division Bench in the Chief Engineer/Personnel, Tamilnadu Electricity Board, 800, Anna Salai, Chennai-2 and Anr. v. K. Lakshmi, reported in 2005 Writ.L.R. 256, Mr. K. Thennan, learned Counsel for the petitioner submitted that the employer should have taken a humanitarian and sympathetic consideration towards the case of the petitioner, otherwise the children of the deceased Government servant would become orphans. He further submitted that the petitioner is the only qualified person in the family of the deceased and eligible to the post of Junior Assistant. The counsel for the petitioner submitted that in the above reported judgment, the Division Bench considered the plight of the Widow with five children and directed the respondent therein to consider the application of the Writ Petitioner for compassionate appointment and if the same yardstick is applied to the facts of the case, the petitioner would be entitled to relaxation of age prescribed for the post of Junior Assistant.
Mrs. Lita Srinivasan, learned Government Advocate, appearing for the respondents submitted that on the date of death of petitioner''s father, the petitioner had already crossed the maximum age prescribed for the post of Junior Assistant and therefore, Compassionate Appointment cannot be claimed as a matter of right.
In Life Insurance Corporation of India Vs. Mrs. Asha Ramachandra Ambekar and another, , the Supreme Court in Paragraphs 11 to 13, held as follows:
At this juncture we may usefully refer to Martin Burn Ltd. v. Corporation of Calcutta. At page 535 of the Report the following observations are found:
A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not.
The Courts should endeavor to find out whether a particular case in which sympathetic considerations are to weighted falls within the scope of law. Disregardful of law, however, hard the case may be, it should never be done. In the very case itself, there are regulations and instructions which we have extracted above. The Court below has not even examined whether a case falls within the scope of these statutory provisions. Clause 2 of Sub-clause (iii) of Instructions makes it clear that relaxation could be given only when none of the members of the family is gainfully employed. Clause 4 of the circular dated January 20, 1987 interdicts such an appointment on compassionate grounds. The appellant Corporation being a statutory Corporation is bound by the Life Insurance Corporation Act as well as the Statutory Regulations and Instructions. They cannot be put aside and compassionate appointment be ordered.
Further it is well-settled in law that no mandamus will be issued directing to do a thing forbidden by law. In Brij Mohan Parihar v. M.P.S.R.T. Corporation it is stated as under:
The provisions of the Motor Vehicles Act and in particular Sections 42 and 59 clearly debar all holders of permits including the State Road Transport Corporation from indulging in unauthorised trafficking in unemployed graduate, with the State Road Transport Corporation to ply his bus as nominee of the Corporation on the route in respect of which the permit was issued in favour of the Corporation for a period of five years, was clearly contrary to the Act and cannot, therefore, be enforced. In the circumstances, the petitioner would not be entitled to the issue of a Writ in the nature of mandamus to the Corporation to allow him to operate his motor vehicle as a stage carriage under the permit obtained by the Corporation as its nominee.
It is true that there may be pitiable situations but on that score, the statutory provisions cannot be put aside.
In State of Rajasthan Vs . Chandra Narain Verma;, (1994) 2 SCC 752 , the Apex Court held that the Court cannot direct the Government to appoint a person on compassionate ground to a post, for which, he is ineligible under the rules. In the above case, son of the deceased Government servant sought appointment in Rajasthan Police service as Sub-Inspector on compassionate ground. The authorities could not accede to his request, as he had crossed the prescribed age limit (including relaxation) for the post of the Sub-Inspector of Police. The authorities, therefore, offered him the post of Lower Division Clerk, for which, upper age limit is 31. The respondent therein instead of accepting the same moved the High Court by way of a Writ Petition. The High Court allowed the Writ Petition and directed that he be given appointment as Sub-Inspector of Police ignoring the age limit prescribed under the Rajasthan Police Subordinate Service Rules, 1939. The Special appeal to the Division Bench was also dismissed and they preferred an appeal before the Supreme Court.
In Paragraph 3 of the above judgment, the Supreme Court held that,
It is one thing to say that a family member of the deceased is entitled to appointment on compassionate ground, it is altogether a different thing to say that his appointment should be made regardless of the rules. Since he had crossed the maximum age prescribed for the post of Sub- Inspector of Police, the authorities were fully justified in offering him the post of Lower Division Clerk, which he should have accepted.
The object underlying the provisions for grant of compassionate appointment is explained in the decision of the Supreme Court in Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others, . In paragraph 8 of the judgment, the Apex Court held as follows:
The object underlying a provision for grant of compassionate employment is to enable the family of deceased employee to tide over the sudden crisis resulting due to 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 unless some source of livelihood is provided, the family would not be able 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. Such a provision makes a departure from the general provisions of making appointment by following prescribed procedure. It is in the nature of an exception to the general provisions. An exception cannot subsume the main provision and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general for appointment to seek employment against the post which would have been compassionate grounds of the dependent of a deceased employee.
In State of U.P. and Others Vs. Paras Nath, , the Supreme Court held that the purpose of providing employment to the dependent of a Government servant dying in harness in preference to anybody else is to mitigate harship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided that there are rules providing for such appointments.
In the recent decision of the Supreme Court in State Bank of India and Another Vs. Somvir Singh, , in Paragraphs 7 and 10, It is held as follows:
Article 16(1) of the Constitution of India guarantees to al its citizens equality of opportunity in matters relating to employment or appointment to any office under the State. Article 16(2) Protects citizens against discrimination in respect of any employment or office under the State on grounds only of religion, race, caste, sex and descent. It is so well settled and needs no restatement at our end that appointment on compassionate grounds is an exception carved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. Such appointments are required to be made on the basis of open invitation of applications and merit. Dependents of employees died in harness do not have any special or additional claim to public services other than the one conferred, if any, by the employer.
There is no dispute whatsoever that the appellant bank is required to consider the request for compassionate appointment only in accordance with the scheme framed by it and no discretion as such is left with any of the authorities to make compassionate appointment dehors the scheme. In our considered opinion the claim for compassionate appointment and the right. If any, is traceable only to the scheme, executive instructions, rules, etc. framed by the employer in the matter of providing employment on compassionate grounds. There is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be.
The Supreme Court further held that it is well settled that the hardship of the dependent does not entitle one to compassionate appointment dehors the scheme or the statutory provisions as the case may be.
In the instant case, the petitioner has applied for compassionate appointment to the post of Junior Assistant. The maximum age prescribed for the post of Junior Assistant is 30 years and the petitioner had crossed the prescribed age on the date of death of his father. The question to be considered by this Court in matters relating to the compassionate appointment is whether the decision making process, rejecting the claim of the legal heir for compassionate appointment is vitiated or the order is in confirmity with the scheme or rules framed for providing compassionate appointment.
The Supreme Court has consistently held that the claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules, etc. framed by the employer in the matter of providing employment on compassionate grounds. Compassionate appointment cannot be claimed as a matter of right dehors the rules. The object of providing compassionate appointment to the legal heirs of the deceased Government servant, who died in harness, is to tide over the sudden crisis resulting due to death of the bread-earner and it is in the nature of exception of General provision. But such an exception of providing appointment on compassionate grounds should not be contrary to the main rule or scheme prescribing the eligibility condition to the post, for which, the legal heir of Government servant has applied.
The Division Bench judgment of this Court cited by the petitioner is with regard to the plight of a widow with five children. In that case, the Division Bench directed the authorities therein to relax the educational qualification. Applying the said yardstick to the facts of the present case, if there is any rule empowering the authorities to relax the age of the petitioner, for any inferior post other than Junior Assistant in the Department of Public Health and Preventive Medicine, it is open to the respondents to consider the case of the petitioner to such appointment, subject to the satisfaction of other eligibility conditions.
With the above direction, the Writ Petition is disposed of. No costs.