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Judgments of Supreme Court of India and High Courts

A.Dhanalakshmi vs State Of Tamil Nadu on 7 June, 2019

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 07.06.2019

CORAM

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

W.P[MD]No.3365 of 2011
and
M.P.[MD]No.1 of 2011

A.Dhanalakshmi : Petitioner
Vs.

1.State of Tamil Nadu,
Represented by its Secretary to Government,
Rural Development and Local Administration,
Fort Saint George, Chennai – 600 009.

2.The Director,
Directorate of Rural Development,
Panagal Building 4th Floor,
Saidapet, Chennai – 600 015.

3.The District Collector,
Theni District,
Theni.

4.The Commissioner,
Panchayat Union,
Chinnamanoor,
http://www.judis.nic.in Theni District. : Respondents
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PRAYER: Writ Petition filed under SectionArticle 226 of the Constitution

of India for issuance of a Writ of Certiorarified Mandamus, to call

for the records relating to the order passed by the fourth

respondent dated 20.02.2007 in his proceedings Na.Ka.No.

2057/06/A1 and quash the same and to direct the respondents to

pass an order of appointment for any suitable post on

compassionate ground.

For Petitioner : Mr.Y.Raghavendri

For Respondents 1 to 3 : Mr.M.Jeyakumar
Additional Government Pleader
For Respondent No.4 : Mr.J.Gunaseelan Muthiah
Standing Counsel

ORDER

The order of rejection dated 20.02.2007, rejecting the claim

of the writ petitioner for providing compassionate appointment is

under challenge in the present writ petition.

2.The petitioner is the daughter of late Mr.Iyyanar, who was

employed as Office Assistant in the office of the fourth respondent.

The father of the writ petitioner died on 26.06.2006, while he was

in service. On account of the said death of the father of the writ

petitioner, the family was in indigent circumstances. The learned

Counsel for the writ petitioner states that the petitioner was
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deserted by her husband during the relevant point of time and

divorce petition in H.M.O.P.No.31 of 2006, was pending before the

Sub-Court, Uthamapalayam, even after the death of the father of

the writ petitioner. The impugned order states that the decree of

divorce was granted on 27.09.2006, after the death of the deceased

employee and therefore, on the date of the death of the deceased,

the petitioner was a married daughter. As per the terms and

conditions, the writ petitioner as a married daughter was not

eligible during the relevant point of time for appointment on

compassionate grounds. Accordingly, the claim of the writ

petitioner was rejected in proceedings dated 20.02.2007.

3.This Court is of the opinion that consideration for

appointment on compassionate ground is to be construed as

violation of Articles 14 and 16 of the Constitution of India and is

only in the nature of concession and therefore, does not create a

vested right in favour of the claimant. A compassionate

appointment scheme is a non-statutory scheme and is in the form of

a concession and it cannot be claimed as a matter of right by the

claimant to be enforced through a Writ proceeding. A

compassionate appointment is justified, when it is granted to

provide immediate succour to the deceased employee. Mere death

of a Government employee in his harness, it does not entitle the

http://www.judis.nic.infamily to claim compassionate employment. The competent
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authority has to examine the financial condition of the family of the

deceased employee and only, if it is satisfied that without providing

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 of the

deceased employee.

4.The concept of compassionate appointment has been

recognized as an exception to the general rule, carved out in the

interest of justice, in certain exigencies, by way of a policy of an

employer, which partakes the character of service rules. That being

so, it needs little emphasis that the scheme or the policy, as the

case may be, is binding both on the employer and the employee.

Being an exception, the scheme has to be strictly construed and

confined only to the purpose it seeks to achieve.

5.The philosophy behind giving compassionate appointment

is just to help the family in harness to get over the immediate crisis

due to the loss of sole breadwinner. This category of appointment

cannot be claimed as a matter of right after certain period, when

the crisis is over. More so, the financial status of the family is also

to be looked into as per the scheme framed by the employer while

giving compassionate appointment and such appointment cannot

be conferred contrary to the parameters of the scheme.

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6.It is pertinent to note the fact that in a liberalized world as

of today, there are plenty of avenues of employment available to

the general public. Most of the people are not entirely dependent

on the income of a single member of the family. Keeping this new

social structure in mind, it would be seemingly right for the Courts

to ensure that there is no abuse of the scheme of compassionate

appointment either by the employer or by the applicant/claimant.

7.The million dollar question is ‘Whether offering

‘appointment’ on compassionate ground (i.e., sympathy) is the only

option /solution to mitigate ‘hardship and distress of the family of

an employee dying in-harness? The answer is an emphatic ‘No’.

Firstly, the Rules, as such, contain no provision to ensure that the

dependent who gets appointment shall continue to maintain other

dependents.

8.A ‘welfare state’ like ours is free to initiate effective welfare

scheme/s- and no one will be in a position to oppose. It is well

settled that sympathy cannot be allowed to override statutory or

Constitutional provisions, particularly when it is quality of the

question of Welfare of the entire society and / or question of

Governance. State like ours is free to wed the ‘solemn object’ to

http://www.judis.nic.inserve the society at large, purely according to the mandate under
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the Constitution of India. State cannot be allowed to look after

‘welfare’ of its own employees and their families alone.

9.In this view of the matter, this Court has to examine the

scope of the scheme. The scheme being an exception, the

authorities competent has to implement it in its strict terms. Equal

opportunity in a public employment is a Constitution mandate.

10.All the recruitment process under the rules are made by

the Competent Authorities by implementing the rules of reservation

under the Constitution of India. This apart the regular competitive

process has got a method of screening the candidates on merits

even for the reserved categories. These two aspects are vital in

regular recruitment process:

● First is adherence of the Rules of Reservation under the

Constitution of India;

● Second is the comparative merit amongst the

candidates who are participating in the regular open

competitive process.

11.In case of compassionate appointments, no such

constitutional mandated requirements have been followed. Thus,

very scheme itself is an exception and not in accordance with the

http://www.judis.nic.inconstitutional scheme. Compassionate appointment scheme as a
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special one necessarily to be restricted to the extent possible, so as

to provide appointment only to the genuine and warranting

families. This apart, the over all strength of the compassionate

appointees should not exceed more than the restricted level and if

such a kind of special appointments are increased in the public

posts, this Court is of the view that the efficiency level in the public

administration will certainly be affected.

12.In respect of the Rules of Reservation, the same has not

been followed in compassionate appointment. Thus, large number

of compassionate appointments will have certain implication on the

Rules of Reservation and the same will certainly have an impact on

the Constitution of India, more specifically, on the principles of

reservation. In respect of the merit aspect, no competitive

examination or interview are conducted for compassionate

appointees. Thus the very capability of the candidates in

performing the administrative duties itself will be in question.

Certain amount of merit assessment is certainly required for

appointing a candidate in any public posts.

13.Thus, the concept of compassionate appointment itself is

to be reconsidered by the Government and it should be restricted

so as to provide appointment only to the legal heirs of the deceased

http://www.judis.nic.inin genuine circumstances. Otherwise, the scheme of compassionate
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appointment will have a negative impacts on the good governance

and further, it will affect the chances of the meritorious candidates,

who can participate in the public administration in the better

manner.

14.Rules of Reservation being a constitutional mandate any

scheme violating the same has to be implemented cautiously and

restrictedly. Thus, genuineness of the claim made by the person on

compassionate grounds to be strictly in accordance with the terms

and conditions and further, the State cannot be going on extending

the scope of compassionate appointment so as to dilute the

principles of reservation under the Constitution.

15.Such being the scope of the scheme, Courts are also to be

cautious, while extending the benefit of compassionate

appointment in favour of the legal heirs of the deceased employee

and the legal presumption in this regard is that the indigent

circumstances certainly vanishes after a lapse of long years.

16.The learned counsel appearing for the writ petitioner in

this regard relied on the orders passed by the Hon’ble Division

Bench in Writ Appeal No.205 of 2017 on 15.09.2017. The Hon’ble

Division Bench in a case, where the deceased employee died on

http://www.judis.nic.in28.08.1986, held that the legal heirs who was aged about 10 years
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at the time of death of the employee, on attaining the majority,

submitted an application on 11.12.1995. The Hon’ble Division

Bench in the said case allowed the claim of the writ petitioner. It is

pertinent to note that the legal principles in relation to the scheme

of compassionate appointment settled by the Hon’ble Supreme

Court of India in various judgments have not been brought to the

notice of the Hon’ble Division Bench. Thus, the above said case the

Hon’ble Division Bench has dismissed the appeal filed by the

Chennai Metropolitan Water Supply and Sewerage Board on the

facts of the case. If the legal principles are not discussed or settled

in an order passed in appeal, the same need not be followed in a

routine manner.

17.The Judicial discipline require that all the Courts have to

follow the legal principles and the judgments delivered by the

higher forum. So also this Court has to follow the legal precedents

laid down both by the Hon’ble Division Bench, Full Bench and the

Hon’ble Supreme Court of India. However, a fine distinction is to

be drawn between the ”orders” and the ”judgments” passed by the

Constitutional Courts. If any order is passed based on certain

factual circumstances or by showing some leniency or sympathy,

such orders need not be followed. Contrarily, if the legal principles

and the law relating to the particular subject has been settled by

http://www.judis.nic.inthe Hon’ble Supreme Court, certainly this Court is bound to follow
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the legal principles formulated and settled by the Hon’ble Supreme

Court of India.

18.Further, the Advanced Law Lexicon provides the meaning

for Judgment and Order, “ An order is a decision made during the

progress of the cause, either prior or subsequent to final judgment,

settling some point of practice or some point collateral to the main

issue presented by the pleadings, and necessary to be disposed of

before such issue can be passed upon by the Court, or necessary to

be determined in carrying into execution of the final judgment.

19.An order is the mandate or determination of the Court

upon some subsidiary or collateral matter arising in an action, not

disposing of the merits, but adjudicating a preliminary point or

directing some step in the proceedings and it has not the qualities

or consequence of a judgment”.

20.“Judgment” is a decision which affects the merits of the

question between the parties by determining some right of liability,

and does not include a mere formal order, or an order regulating

the procedure in a suit.

21.Judgment is a faculty of deciding the matter with wisdom,

http://www.judis.nic.intruly, legally, skillfully, or accurately. Final judgments are such as
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one put an end to the action by determining the right and fixing the

amount in dispute.

22.In respect of judgment, discretion, prudence.

Judgment acts by a fixed rule; it admits of no question or

variation; discretion acts according to circumstances and is its own

rule. Judgment determines in the choice of what is good; discretion

sometimes only guards against error or direct mistakes; it chooses

what is nearest to the truth. Judgment requires knowledge and

actual experience; discretion requires reflection and consideration;

a general exercise is judgment in the disposition of his army, and in

the mode of attack; whilst it is following the rules of military or it

exercise its discretion in the choice of officers of different posts, in

the in the treatment of men, in its negotiation with its enemy and

various other measures which depend upon contingencies.”

23.The learned counsel appearing on behalf of the writ

petitioner repeatedly emphasized that the Hon’ble Division Bench

has allowed the writ appeal on 15.09.2017 in W.A.No.205 of 2017,

and therefore, this Court also should allow the claim of the writ

petitioner in this writ petition. However, this Court has to follow

the legal principles settled by the Hon’ble Supreme Court of India

in relation to the scheme of compassionate appointment.

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24.Yet another judgment also is brought to the knowledge of

this Court by the learned counsel appearing for the writ petitioner

passed in W.A.No.44 of 2016 on 20.10.2016. In this case also the

application was submitted on 29.04.2002 seeking compassionate

appointment of the deceased employee, who died on 02.01.1995.

However, the Hon’ble Division Bench has not discussed and

adjudicated the entire legal principles with regard to the scheme of

compassionate appointment, contrarily the order was passed based

on factual aspects.

25.The Hon’ble Supreme Court in the matter of

compassionate appointment has rendered a judgment setting out

the principles, the guidelines and the scope of providing

appointment on compassionate ground. Compassionate ground

being an exception to that of the general recruitment, the same

should be provided with all caution taking note of the fact that

compassionate appointment will certainly deprive the eligible

meritorious youths and citizens of the country to get public

employment. When the Courts are providing an exceptional scheme

of compassionate appointment to the individual, it is equally

relevant to keep in mind that such facilities provided should not

affect the rights of other citizens, who are otherwise qualified,

http://www.judis.nic.inmeritorious and aspiring to participate in the open competitive
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process. The granting of relief, if it affects the Constitutional rights

of other citizens, then the Courts must be slow in granting such

relief.

26.The consequences, impacts and the denial of rights to

other citizens are also to be considered while extending relief

under such an exceptional scheme of compassionate appointment.

It is not the case as if the Courts should stretch off the scope of

compassionate appointment based on an unwarranted sympathy or

leniency. No doubt, the Court of Justice has to consider the factual

circumstances and if necessary, certain relief can be provided.

However, any such sympathy or leniency shown to a particular

person should not have any adverse effect of affecting the rights of

other eligible citizens, who are waiting and longing for public

employment in this great Nation.

27.Thus, this Court is of the view that a striking balance

ought to have been adopted in such circumstances and Court in its

wisdom has to analyze the possible direct and indirect impacts in

this regard, in order to provide equal opportunity in public

employment to all the citizens. The Courts are bound to borne in

mind that equality clause also to be weighed before stretching the

scope of such an exceptional scheme of compassionate

http://www.judis.nic.inappointment. Thus, this Court cannot consider the orders produced
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by the learned counsel for the writ petitioner and this Court has to

follow legal principles and the precedents settled by another

Division Bench of this Court in the case of Inspector General of

Prisons Vs. Marimuthu (2016 5 CTC 125) and all other

judgments of the Hon’ble Supreme Court of India in this regard.

28.The learned counsel appearing on behalf of the writ

petitioner cited the Judgment of the Hon’ble Supreme Court of

India in the case of Vijaya Ukarda Athor (Athawale) Vs. State

of Maharashtra and Others reported in [(2015) 3 Supreme

Court Cases 399]. On a reading of the above judgment, the

order passed by the High Court in Review Application and in the

writ petition are set aside by the Hon’ble Supreme Court of India

and the matter was remitted back to the High Court for

consideration of the matter afresh. Thus, the Hon’ble Supreme

Court left open the issue in respect of the facts and circumstances

of the legal principles and directed the High Court to decide the

matter afresh. Such a judgment rendered by the Hon’ble Supreme

Court in respect of the particular facts and circumstances of that

case cannot be considered in respect of the facts of the present

writ petition on hand.

29.The Hon’ble Supreme Court time and again emphasized

http://www.judis.nic.inthat the facts and circumstances of each case has to be considered
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and the legal principles are to be considered only with relevant to

the facts of the particular case. The above case cited by the

learned counsel for the petitioner cannot have any relevance in

respect of the facts and circumstances of the present case, since in

the above case the Hon’ble Supreme Court remitted the matter

back for consideration. For all these reasons, no consideration is

required in this writ petition.

30.SectionIn Sanjay Kumar vs. State of Bihar and Others

{(2000) 7 SCC 192}, wherein the Hon’ble Supreme Court, in

paragraph-3 of its judgment, held as under:-

“3. We are unable to agree with the submissions
of the learned senior counsel for the petitioner. This
Court has held in a number of cases that
compassionate appointment is intended to enable the
family of the deceased employee to tide over sudden
crisis resulting due to death of the bread earner who
had left the family in penury and without any means of
livelihood. In fact such a view has been expressed in
the very decision cited by the petitioner in SectionDirector of
Education and another v. Pushpendra Kumar and
others (supra). It is also significant to notice that on
the date when the first application was made by the
petitioner on 2.6.1988, the petitioner was a minor and
was not eligible for appointment. This is conceded by
the petitioner. There cannot be reservation of a
vacancy till such time as the petitioner becomes a
http://www.judis.nic.in major after a number of years, unless there is some
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specific provisions. The very basis of compassionate
appointment is to see that the family gets immediate
relief.”

31.SectionIn Umesh Kumar Nagpal vs. State of Haryana and

Others {(1994) 4 SCC 138}, the Hon’ble Supreme Court, in

paragraph 6 of its judgment, held as under:-

“6. For these very reasons, the compassionate
employment cannot be granted after a lapse of a
reasonable period which must be specified in the
rules. The consideration for such employment is not a
vested right which can be exercised at any time in
future. 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 bread-winner, the compassionate
employment cannot be claimed and offered whatever
the lapse of time and after the crisis is over.”

32.SectionIn State of Manipur vs. Md. Rajaodin {(2003) 7 SCC

511}, wherein the Hon’ble Supreme Court, in paragraph 11 of its

judgment, held as under:-

“SectionIn Smt. Sushma Gosain and others vs. Union of
India and others (1989 (4) SCC 468) it was observed
that in all claims of appointments on compassionate
grounds, there should not be any delay in
appointment. The purpose of providing appointment
on compassionate ground is to mitigate the hardship
due to death of the bread-earner in the family. Such
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appointments should, therefore, be provided
immediately to redeem the family in distress. The fact
that the ward was a minor at the time of death of his
father is no ground, unless the scheme itself envisage
specifically otherwise, to state that as and when such
minor becomes a major he can be appointed without
any time consciousness or limit. The above view was
re-iterated in SectionPhoolwati (Smt.) vs. Union of India and
others (1991) Supp. (2) SCC 689) and SectionUnion of India
and others vs. Bhagwan Singh (1995 (6) SCC 476). SectionIn
Director of Education (Secondary) and Anr. vs.
Pushpendra Kumar and others (1998 (5) SCC 192) it
was observed that in matter of compassionate
appointment there cannot be insistence for a
particular post. Out of purely humanitarian
consideration and having regard to the fact that
unless some source of livelihood is provided the family
would not be able to make both ends, meet, provisions
are made for giving appointment to one of the
dependants of the deceased who may be eligible for
appointment. Care has, however, to be taken that
provision for ground of compassionate employment
which is in the nature of an exception to the general
provisions does not unduly interfere with the right of
those other persons who are eligible for appointment
to seek appointment against the post which would
have been available, but for the provision enabling
appointment being made on compassionate grounds of
the dependent of the deceased employee. As it is in
the nature of exception to the general provisions it
cannot substitute the provision to which it is an
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exception and there nullity the main provision by
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taking away completely the right conferred by the
main provision.”

33.SectionIn Steel Authority of India Limited vs. Madhusudan

Das and Others {(2008) 15 SCC 560}, wherein the Hon’ble

Supreme Court, in paragraph 15 of its judgment, held as under:-

“This Court in a large number of decisions has
held that the appointment on compassionate ground
cannot be claimed as a matter of right. It must be
provided for in the rules. The criteria laid down
therefor, viz., that the death of the sole bread earner
of the family, must be established. It is meant to
provide for a minimum relief. When such contentions
are raised, the constitutional philosophy of equality
behind making such a scheme be taken into
consideration. Articles 14 and 16 of the Constitution
of India mandate that all eligible candidates should be
considered for appointment in the posts which have
fallen vacant. Appointment on compassionate ground
offered to a dependant of a deceased employee is an
exception to the said rule. It is a concession, not a
right. [SectionSee General Manager, State Bank of India and
Others vs. Anju Jain (2008) 8 SCC 475, para 33]”

34.SectionIn MGB Gramin Bank vs. Chakrawarti Singh {(2014)

13 SCC 583}, the Hon’ble Supreme Court, in paragraphs 6, 7, 8,

9, 10, 11, 12, 13, 14 and 15 of its judgment, held as under:-

“6. Every appointment to public
office must be made by strictly adhering
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to the mandatory requirements of
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Articles 14 and 16 of the Constitution. An
exception by providing employment on
compassionate grounds has been carved
out in order to remove the financial
constraints on the bereaved family,
which has lost its bread-earner. Mere
death of a Government employee in
harness does not entitle the family to
claim compassionate employment. The
Competent Authority has to examine the
financial condition of the family of the
deceased employee and it is only if it is
satisfied that without providing
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. More so, the person claiming
such appointment must possess required
eligibility for the post. The consistent
view that has been taken by the Court is
that compassionate employment cannot
be claimed as a matter of right, as it is
not a vested right. The Court should not
stretch the provision by liberal
interpretation beyond permissible limits
on humanitarian grounds. Such
appointment should, therefore, be
provided immediately to redeem the
family in distress. It is improper to keep
such a case pending for years.

7. In Umesh Kumar Nagpal v State
http://www.judis.nic.in
of Haryana Ors., (1994) 4 SCC 138,
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this Court has considered the nature of
the right which a dependant can claim
while seeking employment on
compassionate ground. The Court
observed as under:–
“2. … The whole object of granting
compassionate employment is, thus, to
enable the family to tide over the sudden
crisis. The object is not to give a member
of such family a post much less a post for
post held by the deceased.…. The
exception to the rule made in favour of
the family of the deceased employee is in
consideration of the services rendered by
him and the legitimate expectations, and
the change in the status and affairs of
the family engendered by the erstwhile
employment which are suddenly
upturned.

4. … The only ground which can
justify compassionate employment is the
penurious condition of the deceased’s
family.

* * * *

6. … The consideration for such
employment is not a vested right. The
object being to enable the family to get
over the financial crisis…..” (Emphasis
added)

8. An ‘ameliorating relief’ should
not be taken as opening an alternative
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mode of recruitment to public
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employment. Furthermore, an
application made at a belated stage
cannot be entertained for the reason that
by lapse of time, the purpose of making
such appointment stands evaporated.

9. The Courts and the Tribunals
cannot confer benediction impelled by
sympathetic considerations to make
appointments on compassionate grounds
when the regulation framed in respect
thereof did not cover and contemplate
such appointments.

10. In A. Umarani v Registrar, Co-

operative Societies Ors., AIR 2004 SC
4504, while dealing with the issue, this
Court held that even the Supreme Court
should not exercise the extraordinary
jurisdiction under SectionArticle 142 issuing a
direction to give compassionate
appointment in contravention of the
provisions of the Scheme/Rules etc., as
the provisions have to be complied with
mandatorily and any appointment given
or ordered to be given in violation of the
scheme would be illegal.

11. The word ‘vested’ is defined in
Black’s Law Dictionary (6th Edition) at
page 1563, as:

“vested.—-fixed; accrued; settled;
absolute; complete. Having the character
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or given in the rights of absolute
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ownership; not contingent; not subject to
be defeated by a condition precedent.

Rights are ‘vested’ when right to
enjoyment, present or prospective, has
become property of some particular
person or persons as present interest;

mere expectancy of future benefits, or
contingent interest in property founded
on anticipated continuance of existing
laws, does not constitute “vested rights”.

12. In Webster’s Comprehensive
Dictionary (International Edition) at page
1397, ‘vested’ is defined as Law held by
a tenure subject to no contingency;

complete; established by law as a
permanent right; vested interest. (Vide:
Bibi Sayeeda v State of Bihar AIR 1996
SC 516; and J.S. Yadav v State of Uttar
Pradesh (2011) 6 SCC 570)

13. Thus, vested right is a right
independent of any contingency and it
cannot be taken away without consent of
the person concerned. Vested right can
arise from contract, statute or by
operation of law. Unless an accrued or
vested right has been derived by a party,
the policy decision/ scheme could be
changed. (Vide: Kuldip Singh v
Government, NCT Delhi AIR 2006 SC
2652).

14. A scheme containing an in pari
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materia clause, as is involved in this case
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was considered by this Court in SectionState
Bank of India Anr. vs. Raj Kumar
(2010) 11 SCC 661. Clause 14 of the said
Scheme is verbatim to clause 14 of the
scheme involved herein, which reads as
under:

“14. Date of effect of the
scheme and disposal of pending
applications.–The Scheme will
come into force with effect from
the date it is approved by the
Board of Directors. Applications
pending under the
Compassionate Appointment
Scheme as on the date on which
this new Scheme is approved by
the Board will be dealt with in
accordance with Scheme for
payment of ex-gratia lump sum
amount provided they fulfill all
the terms and conditions of this
scheme.”

15. The Court considered various
aspects of service jurisprudence and
came to the conclusion that as the
appointment on compassionate ground
may not be claimed as a matter of right
nor an applicant becomes entitled
automatically for appointment, rather it
depends on various other circumstances
i.e. eligibility and financial conditions of
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the family, etc., the application has to be
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considered in accordance with the
scheme. In case the Scheme does not
create any legal right, a candidate
cannot claim that his case is to be
considered as per the Scheme existing
on the date the cause of action had
arisen i.e. death of the incumbent on the
post. In State Bank of India Anr.

(supra), this Court held that in such a
situation, the case under the new
Scheme has to be considered.”

35.This Court in a judgment in W.P.No. 8773 of 2015

dated 27.07.2017 held as follows:-

“11. India being a socialistic republic, keeps
evolving various schemes to further the objectives
enshrined in Part IV of our Constitution. It is relevant
to take note of the fact that State is required to
endeavour for promoting the welfare of the people by
securing and protecting as effectively as it may, a
social order in which justice, social, economic and
political should prevail. The State is also required to
make effective provisions for securing the right to
work and to public assistance in case of
unemployment, old age, sickness, disablement and any
other causes of undeserved want. As a part of
promotion of the welfare of those recruited by the
State to various services established by it, the
necessity to provide for employment opportunities to
the members of the family of the deceased
Government servants has arisen.

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12. A Government servant is expected to give his
full time attention and energy and render his very best
of attention for securing faithful implementation of
various schemes and welfare measures brought in
place by the State Government, he is termed as a
round the clock servant of the State and he should
devote and dedicate himself for providing good quality
services to the citizens. Should, unfortunately, any
such employee die in harness, his family members
cannot be left behind in distressful conditions,
unattended to and uncared for. With the sudden
departure of a breadwinner, we should be alive to the
fact that most of the Indian families lose the very
source of their sustenance. It is not at all difficult for
us to imagine that inspite of rapid strides of progress,
the country has been making in all Sectors, still there
are several lakhs of families having a single
breadwinner and on an average 4 or 5 hungry persons
depend on him for their sustenance and survival. In
such a scenario, if that breadwinner vanishes
suddenly, it is not at all difficult for us to visualise the
harrowing plight to which the family would be reduced
to overnight. The savings made by the public servant
would be hardly enough to see them through the next
six months, at best. During the best days of a man, he
might have contributed meaningfully, given the fact
that whatever marginally that would make a
difference, to the States ‘Service and consequently the
State Government would have earned the goodwill
from its grateful citizens for the quality of services
rendered to them, by those servants including the
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deceased employee’.

26

13. Apart from the civil servant enjoying the
status as such, upon his death, if his family members
who are surviving are not to be taken care of by the
State, the prospects are such that a negative image
can be spread in the Society that the State never
bothers for the well being of the dependents of the
Government servants. It is to avoid any such negative
image gaining ground, the State Government as a
socio welfare measure, has put in place a mechanism
for providing employment to one of the eligible
dependents of the family of the deceased Government
servant. Several meaningful conditions are attached to
be complied with before hand for securing the benefit
of the said scheme. The reason being that
opportunities of public employment have to be thrown
open to competition for one and all. All members who
are eligible to be so recruited should be permitted to
compete and the best amongst them found suitable
can alone get employment. Therefore, an exception is
sought to be carved out from this constitutionally
assured mechanism of filling up public employment
while providing for making appointments on
compassionate grounds. Possibly, conditions can be
stipulated such as that at the time of death, the left
over service of the deceased employee before he
attains the age of superannuation should not be less
than a reasonable period, say three years or at best
five years. Similarly, a stipulation that appointment on
compassionate grounds should be claimed as quickly
as possible after the death of the civil servant, a
duration in this regard can be prescribed not to
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exceed by a reasonable length of time of say three
27

years or at best five years. If the surviving members of
the civil servant who died, can get along and carry on
their show for considerable length of time after the
departure of the breadwinner, by far, in a reasonable
manner, inference can be drawn from that the family
of the deceased civil servant is able to feed for itself,
notwithstanding the loss of the breadwinner. The
period of endurance of such a family holds out an
assurance that the family has got over the trauma
caused by the departure of the breadwinner, and it
has the necessary social resources to carry on with the
show in his absence as well.

14. In these set of circumstances, the State
Government is certainly justified in directing that no
claim for compassionate appointment should be
entertained beyond a reasonable period of say three
years or five years, as the case may be. If a family of
the deceased civil servant can survive for long periods
entirely on their own, it presupposes that the surviving
members have the necessary wherewithal to survive,
notwithstanding the departure of the breadwinner.

15. When we keep these factors in mind and also
in view of the fact that making appointments on
compassionate grounds is not one of the
identified/marked sources of recruitment to civil
service–rather it is an exception to the normal
constitutional norm of allowing all people to contest
and compete-appointments on compassionate grounds
cannot be made after long years gave gone by, from
the date of the death of the civil servant.

16. It may be a different matter if the employee
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concerned died in service while trying to protect the
28

property of the Court/State Government as the case
may be and while trying to save it from any accidental
hazards such as fire, flooding, etc., or while trying to
save the record or property of the Court/Government
from the hands of miscreants who are trying to
destroy the same, as those cases, require greater
amount of compassion to be shown as the individual
concerned has made the highest sacrifice of his own
life, for the cause of the State. In such cases, perhaps
a longer duration of even ten or fifteen years can be
considered as reasonable. Those, who lay down their
lives while trying to save/protect the interest of the
State Government/Court, stand on a lofty pedestal in
comparison to those who met with either natural or
self inflicted unnatural death. In no case, the time
limit prescribed for entertaining the claims for
compassionate appointment should be kept open like
in the instant case for more than two decades. Any
attempt to entertain any such claim, would convert the
scheme of making compassionate appointments into a
different form of hereditary employment. It would also
tend to convert the scheme of compassionate
appointments into a source of recruitment altogether
and both the aforementioned factors are not the
pursuits, which should be allowed to be undertaken or
encouraged by the State Government and its organs.”

36.This apart, the Hon’ble Division Bench of this Court in SectionThe

Inspector General of Prisons vs. P.Marimuthu {2016 (5) CTC

125}, in paragraphs 35 to 41, held as follows:
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29

“35. With due respect, decisions made in
V.Jaya’s case and J.Jeba Mary’s case, cannot be
considered to be precedents, on the specific issue, as
to whether, a minor is eligible to seek for employment
assistance on compassionate grounds, on attaining
majority, after a long number of years, after the death
of the Government servant, de hors the condition that
it has to be submitted within three years from the date
of death of the Government servant, and when the
scheme of employment assistance on compassionate
grounds, is to tide over the financial constraint of the
deceased family. The issue to be considered is when
the scheme provides for a limitation or a specific
period within which, an application for employment
assistance has to be made, and how the said period of
three years from the date of death of the Government
Servant has to be computed, whether a person, who is
otherwise not eligible to apply within the said period,
on account of age or not satisfying the required
qualifications for any post in the service, in which the
employee died, can make an application, on attaining
majority and whether such application has to be
considered irrespective of the period of limitation? On
this aspect, this Court deems fit to consider few
decisions of the Hon’ble Apex Court.

(i) In Union of India (UOI) and Others Vs.
Bhagwan Singh, reported in 1995(6) SCC 476, a
Senior Clerk in Railways died on September 12, 1972,
leaving behind his wife, two major sons and the
respondent (before the Hon’ble Supreme Court), who
was a minor, aged about 12 years. He passed Higher
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Secondary Examination in 1983. Stating that he had
30

attained majority only in 1980/1981, he sought
appointment on compassionate grounds. The same
was rejected. The authorities took the view that the
application was beyond the period of limitation (five
years) and that the case of the respondent was not
covered by the relevant rules, at the time of the
demise of Ram Singh. Besides, there were two other
major sons of the deceased, who did not seek for
employment and that the family was not in financial
distress. The Central Administrative Tribunal, held
that the order of rejection as unjustified and directed
Union of India to reconsider the case of the
respondent therein, if he was otherwise qualified.
Testing the correctness of the order of the Central
Administrative Tribunal and taking note of the object
behind the grant of special concession of employment
assistance on compassionate grounds to provide
immediate financial assistance to the family of a
Government Servant who dies in harness, the Hon’ble
Supreme Court, at paragraph No.8, held as follows:

“8. It is evident, that the facts in this case point
out, that the plea for compassionate employment is
not to enable the family to tide over the sudden crisis
or distress which resulted as early as September
1972. At the time Ram Singh died on September 12,
1972 there were two major sons and the mother of
the children who were apparently capable of meeting
the needs in the family and so they did not apply for
any job on compassionate grounds. For nearly 20
years, the family has pulled on, apparently without
any difficulty. In this background, we are of the view
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that the Central Administrative Tribunal acted
31

illegally and wholly without jurisdiction in directing
the Authorities to consider the case of the respondent
for appointment on compassionate grounds and to
provide him with an appointment, if he is found
suitable. We set aside the order of the Tribunal dated
February 22, 1993. The appeal is allowed.”

(ii) In Haryana State Electricity Board and
another Vs. Hakim Singh, reported in 1997 (8) SCC
85, Haryana Electricity Board challenged an order of
the High Court of Punjab and Haryana contending
inter-alia that the respondent therein was not entitled
to be considered for appointment in the Board on
compassionate grounds. In the reported case, father
of the respondent therein was a Lineman in
employment of the Board. He died on 24.8.1974 in
harness, leaving behind him, his widow and minor
children, including the respondent. About 14 years,
after the death of the said Lineman, widow applied for
appointment to her son in the Board, on
compassionate grounds, based on two circulars. As
per the said circulars, one member of the family of the
deceased employee could be considered for
employment in the service of the Board, as a goodwill
gesture, provided the request for such employment is
made within one year of the death of the employee.
The respondent filed a writ petition in the High Court
contending inter-alia that when his father died, he
was only four years old and therefore, his mother
could make an application in the prescribed form and
when he attained majority, he made a request. The
Board did not give any favourble response to the
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repeated representations made in the matter. The
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Board took a stand that as the application was not
made within the period specified in the circulars, the
Board was unable to entertain the request for
appointment on compassionate grounds. The High
Court ordered the Board to consider the case of the
respondent therein for compassionate appointment on
the ground that, even if the dependents happened to
be a minor child, at the time of death of the employee,
the policy mandates his case to be considered by an
extended period i.e., the time till the defendant
attained majority. The Board’s appeal was negatived
by the Hon’ble Division Bench, with a direction to
comply with the orders of the Single Judge, within a
time frame. When the correctness of the above said
orders was tested, at paragraph No.8 of the judgment,
the Hon’ble Supreme Court held as follows:

“8. The rule of appointment to public service is
that they should be on merits and through open
invitation. It is the normal route through which one
can get into a public employment. However, as every
rule can have exceptions there are a few exceptions to
the said rule also which have been evolved to meet
certain contingencies. As per one such exception relief
is provided to the bereaved family of a deceased
employee by accommodating one of his dependents in
a vacancy. The object is to give succour to the family
which has been suddenly plunged into penury due to
the untimely death of its sole bread-winner. This Court
has observed time and again that the object of
providing such ameliorating relief should not be taken
as opening an alternative mode of recruitment to
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public employment.”

33

As regards the extended period, on attaining majority,
the Hon’ble Supreme Court at paragraph Nos.14 and
15, held as follows:

“14. In that case widow of a deceased employee
made an application almost twelve years after the
death of her husband requesting for accommodating
her son in the employment of the Board, but it was
rejected by the Board. When she moved the High
Court the Board was directed to appoint him on
compassionate ground. This Court upset the said
directions of the High Court following two earlier
decisions rendered by this Court one in SectionUmesh Kumar
Nagpal v. State of Haryana and Ors. [1994 (3) SCR
893], the other in SectionJadgish Prasad v. State of Bihar and
Anr. 1996 (1) SCC 301 . In the former, a Bench of two
Judges has pointed out that “the whole object of
granting compassionate employment is to enable the
family to tide over the sudden crisis. The object is not
to give a member of such family a post much less a
post for the post held by the deceased”. In the latter
decision which also was rendered by a Bench of two
judges, it was observed that “the very object of
appointment of dependent of the deceased employees
who die in harness is to relieve unexpected immediate
hardship and distress caused to the family by sudden
demise of earning member of the family”. The learned
Judges pointed out that if the claim of the dependent
which was preferred long after the death of the
deceased employee is to be countenanced it would
amount to another mode of recruitment of the
dependent of the deceased government servant
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“which cannot be encouraged, dehors the recruitment
34

rules.”

15. It is clear that the High Court has gone
wrong in giving a direction to the Board to consider
the claim of the respondent as the request was made
far beyond the period indicated in the circular of the
Board dated 1.10.1986. Respondent, if he is interested
in getting employment in the Board has to pass
through the normal route now.”

Ultimately, the Hon’ble Supreme Court set aside the
impugned orders of the High Court.

(iii) In Sanjay Kumar Vs. The State of Bihar and
Others, reported in 2000 (7) SCC 192, the petitioner
was 10 years old, and his mother working as a Excise
Constable, died. He made an application on
02.06.1988, soon after the death of his mother,
seeking appointment on compassionate grounds. The
said application was rejected on 10.12.1996. Fresh
application subsequently made was also rejected on
21.04.1997. Being aggrieved by the same, he
preferred a writ petition before the High Court. A
learned Single Judge dismissed the writ petition and
that the same was also confirmed by the Hon’ble
Division Bench. On appeal, the Hon’ble Supreme
Court, at paragraph No.3, held as follows:

“3. We are unable to agree with the submissions
of the learned senior counsel for the petitioner. This
Court has held in a number of cases that
compassionate appointment is intended to enable the
family of the deceased employee to tide over sudden
crisis resulting due to death of the bread earner who
had left the family in penury and without any means of
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livelihood: In fact such a view has been expressed in
35

the very decision cited by the petitioner in SectionDirector of
Education and Anr. vs. Pushpendra Kumar and Ors.
(Supra). It is also significant to notice that on the date
when the first application was made by the petitioner
on 2.6.1988, the petitioner was a minor and was not
eligible for appointment. This is conceded by the
petitioner. There cannot be reservation of a vacancy
till such time as the petitioner becomes a major after
a number of years, unless there is some specific
provisions. The very basis of compassionate
appointment is to see that the family gets immediate
relief.”

(iv) SectionIn Sushma Gosain v. Union of India reported
in 1989 (4) SCC 468, it was observed that in all the
claims of appointment on compassionate grounds,
there should not be any delay in appointment. The
purpose of providing appointment on compassionate
ground is to mitigate the hardship due to death of the
breadwinner in the family. Such appointments should,
therefore, be provided immediately to redeem the
family in distress. The fact that the ward was a minor
at the time of death of his father is no ground, unless
the Scheme itself envisages specifically otherwise, to
state that as and when such minor becomes a major
he can be appointed without any time consciousness
or limit. The above view was reiterated in SectionPhoolwati v.
Union of India [1991 Supp (2) SCC 689] and SectionUnion of
India v. Bhagwan Singh [1995 (6) SCC 476].

(v) SectionIn Director of Education (Secondary) v.
Pushpendra Kumar reported in 1998 (5) SCC 192, it
was observed that in the matter of compassionate
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appointment, there cannot be insistence for a
36

particular post. Out of purely humanitarian
consideration, and having regard to the fact that
unless some source of livelihood is provided the family
would not be able to make both ends meet, provisions
are made for giving appointment to one of the
dependents of the deceased who may be eligible for
appointment. Care has, however, to be taken that
provision for grant of compassionate employment
which is in the nature of an exception to the general
provisions does not unduly interfere with the right of
those other persons who are eligible for appointment
to seek appointment against the post which would
have been available, but for the provision enabling
appointment being made on compassionate grounds of
the dependent of the deceased employee. As it is in
the nature of exception to the general provisions it
cannot substitute the provision to which it is an
exception and thereby nullify the main provision by
taking away completely the right conferred by the
main provision.

(vi) In Director, Defence Metal Research
Laboratory v. G. Murali, reported in 2003(9) SCC 247,
the applicant was aged about two years, at the time of
death of his father and that his application for
compassionate ground appointment made, on
attainment of majority was rejected, on the ground of
non-availability of posts. The Central Administrative
Tribunal, rejected the challenge. However, the High
Court directed appointment on compassionate
grounds, with a direction to the respondent’s therein
to create a post to accommodate him. The Civil appeal
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filed by the Director (Defense) and another, was
37

allowed and at paragraph No.4, the Hon’ble Supreme
Court opined as follows:

“4. We do not find any flimsy ground or
technicalities in the Tribunal’s order. In fact, we find
the High Court’s order to be unsustainable. There has
been a failure to appreciate what the Tribunal had
rightly taken into account, namely, that the writ
petitioner and his family had coped without the
compassionate appointment for about eighteen years.
There was no warrant in such circumstances for
directing the writ petitioner’s appointment on
compassionate grounds and that too with the direction
to the respondents to the writ petition to create a post
to accommodate him”

(vii) In National Hydroelectric Power
Corporation and Anr. Vs. Nanak Chand and Anr.,
reported in 2004 (12) SCC 487, father of the
respondent was working under Hydro Electric Project
of Government of India and died on 10.12.1976. The
project was handed over to the appellant Corporation
in 1978. The respondent, after attaining majority in
1986 applied for compassionate appointment which
was rejected on the ground that the application was
made after 10 years and that Corporation had surplus
staff. Placing reliance on the instructions issued by
the Government, contained in Swamy’s Complete
Manual and Establishment and Administration, the
High Court granted the relief in favour of the
respondent/dependent. Setting aside the said order,
the Hon’ble Supreme Court, after referring to a
catena of decisions held that the impugned judgment
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therein, as unsustainable. The Apex Court further held
38

that the fact that the ward was a minor at the time of
death of his father, was no ground to grant
compassionate ground appointment, unless the
Scheme itself envisages.

(viii) SectionIn State Bank of India v. Somvir Singh,
reported in 2007 (4) SCC 778, at Paragraphs 7 and
10, the Hon’ble Apex Court held as follows:

“7. SectionArticle 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. SectionArticle 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.

10. 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 de-hors the scheme. In our considered
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opinion the claim for compassionate appointment and
39

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 Hon’ble 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.

(ix) In S.Venkateswaran v. The Additional
Director, Land Survey and Records Department [W.P.
(MD)No.9086 of 2011, dated 14.09.2011], it is held as
follows:

“The principles enunciated in the above said
judgments would makes it clear that compassionate
appointment is not a vested right which can be
exercised at any time, in future. Compassionate
employment cannot be claimed after a lapse of time,
after the crisis is over. On the facts and circumstances
of the above case, the Apex Court proceeded to
observe that the employee died in harness in the year
1981 and after a long squabble by the dependents of
the deceased, they have arrived at a settlement that
the son-in-law (husband of the second daughter) who
was unemployed may request for appointment on
compassionate grounds. The request so made was
accepted by the Personal Manager of the Company
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subject to the approval of the Director of the
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Company. The Director (P) , who is the competent
authority for post facto approval, keeping in view the
object and purpose of providing compassionate
appointment has cancelled the provisional
appointment on the ground that nearly after 12 years
from the date of death of the employee such an
appointment could not have been offered to the so
called dependent of the deceased employee. The
Supreme Court held that the decision of the employer
was in consonance with Umesh Kumar Nagpal’s case
and the same should not have been interfered with by
the High Court.?”

(x) SectionIn Local Administration Department v.
M.Selvanayagam reported in 2011 AIR SCW 2198, an
application was made by the son of the deceased,
after 7½ years, from the date of death of his father,
who died as a Watchman in Karaikal Municipality on
22.11.1988, leaving behind, his wife and two sons,
including the respondent therein. At the time of his
death, the respondent therein was aged 11 years.
After about 5½ years from the date of his father’s
death, the respondent therein passed S.S.L.C.
examination in April, 1993. Thereafter, for the first
time on July, 29, 1993, the respondent’s mother
therein made an application for his appointment on
compassionate grounds. No action was taken on the
application, since the respondent therein was still a
minor. A learned Single Judge directed the authorities
to consider his claim for appointment on
compassionate grounds, afresh and to pass an order
on his application, within four months, from the date
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of passing of the order. As the same was not complied
41

with, a contempt proceeding was initiated. The
Municipality rejected the respondent’s claim therein,
for compassionate appointment. Once again, a writ
petition was filed and this time, a learned Single
Judge rejected the same. The Hon’ble Division Bench,
which considered the correctness of the said order,
allowed the writ appeal and that the same was
challenged before the Hon’ble Apex Court. After
considering the scheme of employment assistance on
compassionate grounds, at Paragraphs 7 to 9, the
Hon’ble Apex Court, held as follows:

“7. We think that the explanation given for the
wife of the deceased not asking for employment is an
after-thought and completely unacceptable. A person
suffering from anemia and low blood pressure will
always greatly prefer the security and certainty of a
regular job in the municipality which would be far
more lucrative and far less taxing than doing menial
work from house to house in an unorganized way. But,
apart from this, there is a far more basic flaw in the
view taken by the Division Bench in that it is
completely divorced from the object and purpose of
the scheme of compassionate appointments. It has
been said a number of times earlier but it needs to be
recalled here that under the scheme of compassionate
appointment, in case of an employee dying in harness
one of his eligible dependents is given a job with the
sole objective to provide immediate succor to the
family which may suddenly find itself in dire straits as
a result of the death of the bread winner. An
appointment made many years after the death of the
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employee or without due consideration of the financial
42

resources available to his/her dependents and the
financial deprivation caused to the dependents as a
result of his death, simply because the claimant
happened to be one of the dependants of the deceased
employee would be directly in conflict with Articles 14
16 of the Constitution and hence, quite bad and
illegal. In dealing with cases of compassionate
appointment, it is imperative to keep this vital aspect
in mind.

8. Ideally, the appointment on compassionate
basis should be made without any loss of time but
having regard to the delays in the administrative
process and several other relevant factors such as the
number of already pending claims under the scheme
and availability of vacancies etc. normally the
appointment may come after several months or even
after two to three years. It is not our intent, nor it is
possible to lay down a rigid time limit within which
appointment on compassionate grounds must be made
but what needs to be emphasized is that such an
appointment must have some bearing on the object of
the scheme.

9. In this case the Respondent was only 11 years
old at the time of the death of his father. The first
application for his appointment was made on July 2,
1993, even while he was a minor. Another application
was made on his behalf on attaining majority after 7
years and 6 months of his father’s death. In such a
case, the appointment cannot be said to sub-serve the
basic object and purpose of the scheme. It would
rather appear that on attaining majority he staked his
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claim on the basis that his father was an employee of
43

the Municipality and he had died while in service. In
the facts of the case, the municipal authorities were
clearly right in holding that with whatever difficulty,
the family of Meenakshisundaram had been able to
tide over the first impact of his death. That being the
position, the case of the Respondent did not come
under the scheme of compassionate appointments.”

36. SectionIn National Institute of Technology v. Niraj
Kumar Singh reported in 2007 (2) SCC 481, an
employee died, leaving behind his wife. She made an
application to the respondent therein, for appointment
of her grandson on compassionate grounds.
Thereafter, he was appointed on daily wages and his
services were extended from time to time. After a gap
of about 15 years, he made an application for his
appointment on compassionate grounds on regular
basis. Thereafter, wife of the deceased employee,
sought for appointment for her son and while claiming
so, she also requested cancellation of the respondent’s
appointment. As her request was rejected, she filed a
writ petition, which was dismissed. One of the reasons
assigned for dismissal of the writ petition filed by the
wife was that at the time of death of the deceased
employee, her son was aged one and half years old
and that the application was submitted only after
attaining majority i.e. after 18 years and therefore, no
appointment can be given to the employee’s son on
compassionate ground. Letters patent appeal was also
dismissed by the Hon’ble Division Bench. There were
other issues of making a false claim by the grandson.
Suo-motu contempt notice was issued. On the above
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facts and considering the policy of the Government, at
44

Paragraphs 21 and 22, the Hon’ble Supreme Court,
held as follows:

“21. The appointment on compassionate ground,
thus, could have been offered only to a person who
was the widow of the deceased or a dependent child.
Admittedly, the son of the deceased Ashutosh Kumar
was only one year old at the time of his father’s death.
He could not, thus, have been given any appointment
on compassionate ground. It may be true that Smt.
Vidhya Devi filed an application for grant of
appointment on compassionate ground in favour of
the respondent. But, it now stands admitted that he
was not the natural grandson of late Shri B.P. Sinha
but was a grandson of his cousin brother. Therefore,
he was not entitled for appointment in terms of the
scheme of the Institute. The Institute, therefore,
committed an illegality in granting him such an
appointment. Moreover the purported the
appointment on compassionate ground had been given
in 2001, i.e., after more than 15 years from the date of
death of the said Shri B.P. Sinha.

22. If the appointment of the respondent was
wholly illegal and without jurisdiction and such an
appointment had been obtained by practising fraud
upon the appellant, the same was a nullity. We are,
however, not oblivious of the fact that the same
attained finality in view of the fact that the writ
petition of the said Vidhya Devi was dismissed.
Despite the same, the principles of res judicata shall
not apply in a case of this nature. It is well- known
that where an order is passed by an authority which
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lacks inherent jurisdiction, the principles of res
45

judicata would not apply, the same being nullity. [SectionSee
Chief Justice of A.P., v. L.V.A.Dixitulu, 1979 (2) SCC
34 and SectionUnion of India v. Pramod Gupta (D) by LRs.
And Ors., (2005) 12 SCC 1]”

37. Though learned counsel for the writ
petitioner submitted that under the existing scheme,
and the Government orders issued from time to time,
on the aspect of considering the right of the minors, at
the time of death of breadwinner, in making an
application for employment assistance, on attaining
majority, there are no rules or guidelines restricting
the period, for consideration of such application and
further submitted that what is relevant to be
considered by the authorities, is whether the penury
of the family continued to exist, or not, even after a
long time and it should be the only objective factor, to
subserve proper implementation of the scheme and
further contended that when the scheme does not
contemplate that on the date of death of the employee,
the applicant should be an adult member irrespective
of the period prescribed for submission of the
application, this Court is not inclined to accept the
said submissions, for the reason that even if indigent
circumstances of the family continued to exist for a
long time, the scheme of employment assistance on
compassionate grounds and modified by various
Government orders issued from time to time, makes it
clear that though indigent circumstance is one of the
factors to be considered, while examining the
eligibility of an applicant to seek for employment
assistance, equally, the other requirement under the
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Government orders issued from time to time, that the
46

application should be submitted within three years
from the date of death, cannot be ignored. A member
of the family, otherwise eligible, on the date of death
of the employee, has to submit the application within
three years from the date of death or in a given case,
if he was a minor at the time of death aged between
15 to 18 years, he can also submit an application,
within three years from the date of death, on attaining
majority.

38. Needless to state that for entry into any
service in the State, the minimum age is 18 years, and
no minor can be appointed to any service. Therefore,
he cannot make any application for appointment to
any post in service and no post can be kept vacant for
him, till he attains majority. Posts which fall vacant
have to be filled up as per the recruitment rules.
Employment assistance on compassionate
appointment, is only a concession, extended to an
eligible member of the family, to apply for a suitable
post, in the service, in which, the
employee/Government servant died in harness and it
is not a right, which can be exercised by a minor on
attainment of majority.

39. Thus, for the reasons stated supra, we are of
the view that continuation of penury or indigent
circumstances of the family, alone is not the factor to
be considered by the department, while examining the
request of an applicant for appointment on
compassionate grounds. Reading of the Government
orders shows that scheme can be extended only to
eligible member of the family and not to an ineligible
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person. Scheme has not been framed to provide
47

employment assistance as and when the son or
daughter of the deceased employee attains majority.
Under the scheme, the department is not obligated to
keep any post vacant, till the applicant attains
majority or to consider his candidature on attaining
majority. Scheme only enables those who are eligible
and satisfy all the eligibility criteria including age,
within three years from the date of death.

40. In view of the above discussion, the request
of the petitioner for appointment on compassionate
grounds, ought not to have been entertained, as on the
date of application, he was minor, aged about 12
years. Reference can also be made to a decision made
in SectionSushma Gosain v. Union of India reported in 1989
(4) SCC 468.

41. In the result, the Writ Appeal is allowed. No
costs. Order made in W.P(MD)No.6538 of 2009 dated
22.04.2014 is set aside. Consequently, connected
Miscellaneous Petition is closed.”

37.In view of the discussions made above in relation to the

facts of the case as well as the legal precedents settled by the

Hon’ble Supreme Court of India and by the Hon’ble Division Bench,

this Court is of the opinion that the scope of compassionate

appointment is to be restricted to the terms and conditions of

scheme itself and the same cannot be stretched by the Courts, so

as to provide appointment on compassionate ground. This apart,
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48

the delay is also a vital factor. The scheme of compassionate

appointment cannot be granted after a reasonable period.

38.In view of the elaborate discussion made by this Court

with regard to the scheme of Compassionate Appointment, the

Government of Tamil Nadu is directed to review the entire

Government Orders in this subject and formulate a consolidated

policy. The consolidated instructions are to be issued in this regard,

taking note of the legal principles settled by the Honourable

Supreme Court and by this Court in this judgment and accordingly,

issue instructions to all the competent authorities within a period of

twelve weeks from the date of receipt of a copy of this order.

39.Even recently, the Hon’ble Apex Court in the case of

SectionState of Himachal Pradesh and another vs. Shashi Kumar

reported in (2019) 3 SCC 653 has held as follows:-

“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
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49

employee may be placed in a position of financial
hardship upon the unitimely 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.”

40.In the case of the Government of India Vs. P.Venkatesh

(Civil Appeal No.2425 of 2019), the Hon’ble Supreme Court of

India has held as follows:-

“The primary difficulty in accepting the
line of submissions, which weighed with the
High Court, and were reiterated on behalf of
the respondent in these proceedings, is simply
this: Compassionate appointment, it is well-

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50

settled, is intended to enable the family of a
deceased employee to tide over the crisis which
is caused as a result of the death of an
employee, while in harness. The essence of the
claim lies in the immediacy of the need. If the
facts of the present case are seen, it is evident
that even the first recourse to the Central
Administrative Tribunal was in 2007, nearly
eleven years after the death of the employee. In
the meantime, the first set of representations
had been rejected on 3 January 1997. The
Tribunal, unfortunately, passed a succession of
orders calling upon the appellants to consider
and then re-consider the representations for
compassionate appointment. After the Union
Ministry of Information and Broadcasting
rejected the representation on 13 November
2007, it was only in 2010 that the Tribunal was
moved again, with the same result. These
successive orders of Tribunal for re-

consideration of the representation cannot
obliterate the effect of the initial delay in
moving the Tribunal for compassionate
appointment over a decade after the death of
the deceased employee. This ‘dispose of the
representation’ mantra is increasingly
permeating the judicial process in the High
Courts and the Tribunals. Such orders may
make for a quick or easy disposal of cases in
overburdened adjudicatory institutions. But,
they do no service to the cause of justice. The
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litigant is back again before the Court, as this
51

case shows, having incurred attendant costs
and suffered delays of the legal process. This
would have been obviated by calling for a
counter in the first instance, thereby resulting
in finality to the dispute. By the time, the High
Court issued its direction on 9 August 2016,
nearly twenty one years had elapsed since the
date of the death of the employee.”

41.The fact remains that the father of the writ petitioner died

on 26.06.2006 and on the date of the death of the Government

employee, the writ petitioner who is the daughter was a married

daughter and even at the time of filing of the writ petition, the

petitioner was aged about 33 years and now she would be around

41 years and after this length of time, the scheme of compassionate

appointment cannot be extended, in view of the legal principles.

Thus, the writ petition is devoid of merits.

42.Accordingly, the Writ Petition stands dismissed. No costs.

Consequently, the connected miscellaneous petition is closed.

07.06.2019
Index : Yes/No
Internet : Yes/No
MR

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52

To
1.Secretary to Government,
State of Tamil Nadu,

Rural Development and Local Administration,
Fort Saint George, Chennai – 600 009.

2.The Director,
Directorate of Rural Development,
Panagal Building 4th Floor,
Saidapet, Chennai – 600 015.

3.The District Collector,
Theni District,
Theni.

4.The Commissioner,
Panchayat Union,
Chinnamanoor,
Theni District.

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53

S.M.SUBRAMANIAM,J.

MR

W.P[MD]No.3365 of 2011

07.06.2018

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