WRITTEN BRIEF COMPASSIONATE APPOINTMENT I. Introduction:- (A) Everyday – In the walk of an Indian Employee, Takes him forward Not Only – To an Inevitable Dead End, But also To a prepatory Rest in Peace, Nay, Piece, A decade After his fifty! Called Retirement! **** Before That He has to sink himself In the Bundle of Papers and Problems of Others or suffer from Factory Smoke And Greasy Noise Of the machines. **** His heart beats fast! And the lungs Breath the Dust! Unmindful of all – He has to walk Fast! And Fast- Undisturbed by Any Voice and Noise Haste and Taste Food and Faust He has to walk Fast and Fast! Unmindful of all To take His Kith and Kin Son or Sin settled in life- He has to walk fast and fast! Alas! A sand fort – Dreamt of By a Mucky Mortal Faces a Defeat By A sadistic sudden verdict of God! And now he is A body lying on the cot Waiting for the Hired fire To get turned to be an ash To get dissolved In holy water From where he comes To reach the heavenly abode! No doubt A Peaceful End For him! But, Really A Sorrowful Tomorrow For his heirs Placing them At the mercy and Compassion of others! If so, Why can’t it be At the mercy of his Employer Is the heavenly cause for the Compassionate ñ And the consequential cases Before this Hon’ble Court. Senior advt singaravelan full report

WRITTEN BRIEF
COMPASSIONATE APPOINTMENT
I. Introduction:-
(A) Everyday –
In the walk of an Indian Employee,
Takes him forward Not Only –
To an Inevitable Dead End,
But also
To a prepatory
Rest in Peace, Nay, Piece,
A decade
After his fifty!
Called Retirement!

****

Before That
He has to sink himself
In the Bundle of
Papers and Problems of
Others or suffer from
Factory Smoke
And Greasy Noise
Of the machines.

****

His heart beats fast!
And the lungs
Breath the Dust!
Unmindful of all –
He has to walk Fast!
And Fast-
Undisturbed by
Any Voice and Noise
Haste and Taste
Food and Faust
He has to walk
Fast and Fast!
Unmindful of all
To take His
Kith and Kin
Son or Sin settled in life-
He has to walk fast and fast!

Alas!
A sand fort –
Dreamt of
By a
Mucky Mortal
Faces a Defeat
By
A sadistic sudden verdict of God!

And now he is
A body lying on the cot
Waiting for the
Hired fire
To get turned to be an ash
To get dissolved
In holy water
From where he comes
To reach the heavenly abode!
No doubt
A Peaceful End
For him!
But, Really
A Sorrowful Tomorrow
For his heirs
Placing them
At the mercy and
Compassion of others!
If so,
Why can’t it be
At the mercy of his Employer
Is the heavenly cause for the
Compassionate ñ
And the consequential cases
Before this Hon’ble Court.

(B). Compassionate Appointment and Constitutional Background:-

The word compassion itself would clearly indicate the nature of appointment indicating that it is unavoidable and exceptional appointment of the legal heir of the deceased to save the family from the sudden financial crisis out of compassion and sympathy.
II. History:-

(A) Undoubtedly it is an exception to a regular recruitment as it is being made under exceptional circumstances unwanted and unpredicted by any beneficiary. In that sense it is an exception to Articles 14 and 16 of the Constitution of India and not in the sense it is inferior to the regular recruitment as it falls under reasonable classification. It is not only just and reasonable but also noble as it is intended to save a family of an employee from the sudden financial crisis and to save a family of the deceased employee who was in employment in compliance with Article 14 and 16 of the Constitution of India and who died all of a sudden unpredictably. As the legal heir steps into the shoes of a regular employee who was appointed in compliance with Arts.14 and 16 of the Constitution of India, the legal heirs appointed in his place cannot be interpreted to steal the opportunity of another waiting for appointment.
Infact it is intended to provide livelihood to the family of the deceased employee who all of a sudden faced death while in service. As the employee faced sudden death, it is the duty of the employer to provide livelihood to the family of the deceased to see that it leads life with human dignity under Article 21 of the Constitution of India. When an employee with the legitimate expectations that there would be no financial problem atleast 58 obtains loan and educates their children faces sudden demise in the middle would be a jolt throwing the family to the street.
As the compassionate appointment is intended to protect the fundamental i.e. livelihood and human dignity, rights guaranteed under Article 21 of the Constitution of India to the family of the deceased employee, the compassionate appointment is Constitutionally protected and it cannot be treated to a casual concession but an exceptional concession Constitutionally protected under the above Article.
That is the reason why in Bhavani PrasadSanhar V. Union of India reported in (2011) 4 SCC 209 at paragraph 15, it is observed as follows:-
“—–Nevertheless, the concept of compassionate appointment has been recognized as an exception to the general Rule, carved out in the interest of justice, in certain emergencies, by way of a policy of an employer which partakes the character of the service Rules…”
Again in Umesh KumarNagpal V. State of Haryana, reported in (1994) 4 SCC 138 at paragraph 140, the Hon’ble Apex Court has held as follows:-
“….What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the Public Authority concerned has to examine the financial condition of the family of the deceased, and it is only, if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the elite members of the family…..”
In a recent Judgement in Mukesh V. State of Bihar reported in (2017) 5 SCC 383, the Hon’ble Apex Court held that the compassionate appointment is meant to provide succor to the family of the deceased employee died in harness.

(B) Need for the Revisit:-
Inspite of the innumerable decisions on the compassionate appointment, there are inconsistencies on the following points:-
(i) Though there are so many judgments on the compassionate appointment, there are lot of inconsistent views for allowing or rejecting the same, on the following points, namely,
a. The delay on the part of the employer in the name of the waiting list.
b. The delay on the part of the employee to get qualified or attain majority beyond three years.

c. The non-availability of vacancy and the direction to create supernumery post.
d. Whether the terminal benefit is a bar or not for compassionate appointment.
e. Whether the claim has to be considered on the date of death of the employee or on the date of entertainment of claim.
But all the Courts uniformly hold that the compassionate appointment is intended to protect the family of the deceased from the sudden financial crisis and provide for livelihood and the family has to move on from the indigent circumstances.
That apart the recent Hon’ble Full Bench of Madras High Court has held that unless and otherwise scheme is challenged it binds all concerned and after holding that, the Hon’ble Full Bench directed the State Government to frame the policy in the light of what is stated in the Full Bench particularly the guidelines for deciding the issue on compassionate appointment but so far no order is forthcoming and lot of gaps remain unfilled and the questions are left open. Hence to take a consolidate view, the Hon’ble Bench appointed an Amicus Curiae to take a consistent but Constitutional view.

The words of the Hon’ble Apex Court in Asha Sharma –Vs- Chandigarh Administration reported in (2011) 10 SCC 86 , para 14 have to be recalled:-

“ The exercise of discretion ‘in line’ with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependent upon certainty in State action, that is, the claim of persons, subject to regulation by the rules concerned must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to situation , even if the determinate facts of the situations in question were identical. This uncertainty must be avoided.”

As the state Govt., is not determinative on compassionate appointment and failed to react to the Hon’ble Full Bench need for this Court to look into the matter in detail.

III. Object of the Compassionate Appointment :-
1. The words “Compassionate Appointment” themselves would clearly indicate and expect exceptionally a compassion from the Authorities concerned towards any claim made for the Compassionate Appointment. That is the reason as to why in Shreejith. L. -Vs- Deputy Director (Education), Kerala & others reported in (2012) 7 SCC 248, at Para-24 at Page 256, the Hon’ble Apex Court mandated that even though the application is not in the proper format it has to be considered on the basis of the substance in the following words:-

“At any rate, what was important was the substance of the time application and not the form. If the application in substance conveyed the request for a compassionate appointment and provided the information which the Manager required for considering the request, the very fact that the information was not in a given format would not have been a good reason to turn down the request. We need to remind ourselves that the scheme is meant to be a beneficial scheme aimed at helping those in need of assistance on account of an untimely demise in the family. Inasmuch as the Assistant Educational Officer and even the High Court found respondent No.4 to be eligible for appointment and directed the Manager to make such an appointment, they committed no error to warrant our interference under Article 136 of the Constitution. The Civil Appeal is, therefore, liable to be dismissed.”

2. It is better to refer to the judgment of the Hon’ble Apex Court in “Bhawani Prasad Sonkar -Vs- Union of India,” reported in (2011) 4 SCC 209 to find out the object of compassionate appointment:-

“15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee’s family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India, No other mode of appointment is permissible. Nevertheless, 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 the 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.”

3. Again in “Umesh Kumar Nagpal -Vs- State of Haryana”, reported in (1994) 4 SCC 138 at Para-2 at Page-140, the Hon’ble Apex Court explained the object of compassionate appointment in the following words:-

“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. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the elite members of the family. The posts in Classes III and IV are the lowest post in non manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family of the financial destitution and to help it get over the emergency. The provision of employment in such lowest post by making an exception to the rule in justifiable and valid since it is not discriminatory. The favourable treatment glue to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz, relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, not more destitute. 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 employments which are suddenly upturned.”

4. In yet another case namely, Govind Prakash Verma -Vs- Life Insurance Corporation of India & Others., reported in (2005) 10 SCC 289, the Hon’ble Apex Court held that the Compassionate Appointment cannot be refused on the ground of receipt of terminal benefits under the rules in the following words:-

“6. In our view, it was wholly irrelevant for the departmental authorities and learned Single Judge to take in to consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according to the appellant, has now been reduced to half and other amounts paid on account of terminal benefits under the Rules. The Scheme of Compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased employee as benefits of service which one gets on the death of the employee. Therefore, Compassionate appointment cannot be refused on the ground that any member of the family received the amount admissible under the Rules.”

5. The same view was expressed and followed in the subsequent decision of the Hon’ble Apex Court in Canara Bank & Another -Vs- M.Mahesh Kumar, reported in (2015) 7 SCC 412 that the grant of Family Pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance by quoting the observation of the Hon’ble Apex Court in yet another case namely, BalbirKaur& Another -Vs- Steel Authority of India Ltd. & Others reported in (2000) 6 SCC 493 at Para – 13, Page – 503.

6. As per the judgment of the Apex Court in Jagdish Prasad -Vs- State of Bihar reported in (1996) 1 SCC 301, the object of compassionate appointment is to provide for immediate rehabilitation of family in distress for relieving the dependant family members of the deceased employee from destitution and see that the family of the deceased employee tides over the sudden crisis due to the death of the bread earner.

7. As per the decision in Mukesh -Vs- State of Bihar reported in (2017) 5 SCC 383, the compassionate appointment is meant to prove succor to the family of the deceased employee who died in harness.

8. In yet another case, National Hydroelectric Power Corporation -Vs- Nanak Chand reported in (2004) 12 SCC 487, the Hon’ble Apex Court has held that the appointment is meant to mitigate financial hardship caused due to the death of the bread earner of the family and hence it should not be delayed. Direction was issued in that case to consider the case of the candidate sympathetically. On the ground of delay, the claim was rejected in the following cases:-
a) Dhalla Ram -Vs- Union of India (1997) 11 SCC 201
b) State of U.P -Vs- Parasnath (1998) 2 SCC 412
c) Sanjay Kumar -Vs- State of Bihar (2000) 7 SCC 192

IV.The Nature of Compassionate Appointment and the Delay:-
9. Though the compassionate appointment is provided to prove succor to the deceased employee, who died in harness it is held by the Hon’ble Apex Court consistently in the following cases that
a) There is no right to seek compassionate appointment since it is not a source of recruitment but an exception to the regular appointment, the consideration of which is guaranteed under Articles 14 &16 of the Constitution of India and nobody can claim appointment by way of inheritance as held so in the following cases:-
1. Union of India -Vs- Shawshank Goswami way of inheritance 2012(11) SCC 307:
In this case the receipt of terminal benefits is held to disentitle him for compassionate appointment.
2. Steel Authority of India –Vs- Madhusudan Das AIR (2009) SC 1153.
In this case it is held that the compassionate appointment is not a right but a concession.

b) In Mukesh -Vs- state of Bihar -2017 (5) SCC 383, it is held that there is no right to compassionate appointment since it is not a source of recruitment and there is no vested right for the same.

c) In 3 more cases mentioned below the Hon’ble Apex Court held that the Compassionate Appointment has its own limitations, as it is an exception to the mode of regular appointment and in the absence of any scheme providing for that, commensurate with the constitutional scheme of equality and there cannot be any right for compassionate appointment.
i) GM.UtharanchalJalSamsthan –Vs- Lakshmi Devi – AIR 2009 SC 3121(3127)
ii) National Institute of Technology –Vs- Niraj Kumar Singh – 2007 (2) SCC 481:
In this case the delay is cited to defeat the claim.
iii) MGB Gramin Bank –Vs- Chakravarthy Singh – AIR 2013 SC 3365 (3366,3367)
d) In State of Haryana -Vs- Rani Devi reported in 1996 (5) SCC 308 the Hon’ble Apex Court has held that the appointment on compassionate grounds cannot be made after the lapse of a period specified in the rules as it is not a vested right to exercise at any time in future.
e) In SBI –Vs- Rajkumar reported in (2010) 11 SCC 661 at paras 8 and 13 the Hon’ble Apex Court has held as follows:-
“8. ………………… An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made whenthe scheme was in force, will not by itself create a right in favour of the applicant.”

“ 13…………… As compassionate appointment is a concession and not a right, the employer may wind up the scheme at any time depending upon its policies, financial capacity and availability of posts.”

10. In Jagadish Prasad -Vs- State of Bihar reported in (1996) 1 SCC 301, the Hon’ble Apex Court has held that the very object of appointment of a dependent of the deceased employee who dies in harness is to relieve unexpected immediate hardships and distress caused to the family by the sudden demise of earning member of the family. Since the death occurred way back in 1971, in which year, the applicant was 4 years old, it cannot be said that he is entitled to be appointed after attaining majority long thereafter. In other words, if that contention is accepted it amounts to another mode of recruitment of the dependent of a deceased government servant which cannot be encouraged, dehors the recruitment rules.

11. In Steel Authority of India -Vs- Madhusudan Das reported in AIR 2009 SC 1153 and State of Chattisgarh -Vs- Dhirjokumar Sengar, AIR 2009 SC 2568 (2571) the Hon’ble Apex Court has held that appointment of compassionate ground which is an exception to the constitutional scheme of equality commensurate with Articles 14 & 16 of the Constitution of India and nobody can claim appointment by way of inheritance as held in Himachal Road Transport Corporation -Vs- Dinesh Kumar, (1996) 4 SCC 560 and APSRTC -Vs- Dannina Rajeswari (1999) L&S 1182. In APSRTC –Vs- Dannina Rajeswari (1999) L&S 1182 the Hon’ble Apex Court has held that the claim can be considered if there is a vacancy and if it is permissible under the breadwinner’s scheme.

12. In Dhalla Ram –Vs- Union of India reported in (1997) 11 SCC 201 the Hon’ble Apex Court has held that the delay of 5 years disentitles the claimant for compassionate appointment.

13. In Local Administrative Department –Vs- M. Selvanayagam reported in AIR 2011 SC 1880 it was held that the delay of 7 ½ years disentitles the claimant for compassionate appointment.

14. In State of Jammu and Kashmir -Vs- Sajad Ahmed Mir reported in (2006) 5 SCC 766 it was held that the delay of 15 years would disentitle the claimant.

15. In Haryana State Electricity Board -Vs- NareshTanwar reported in 1996 (8) SCC 23 claim made after 10 years by the applicant is held to be unsustainable.

16. The same view was taken to reject the claim for compassionate appointment filed by the son of the deceased employee after delay of 10 years in National Hydroelectric Power Corporation -Vs- Nanak Chand reported in 2004 (12) SCC 487.

17. In Eastern Coalfields Limited -Vs- Anil Badyakar reported in AIR 2009 SC 2534 the delay of 12 years is held to be fatal and consequently the cancellation of provisional appointment given to the claimant by the competent authority was held proper by the Apex Court.

IV (A) Vested Rights –Vs- Delay:-
In the cases mentioned below the Hon’ble Apex Court in crux has held that the compassionate appointment is not vested right which can be exercised at any time in future even after the crisis:-
(1) Union of India -Vs- Bhagavan Singh reported in (1995) 6 SCC 476
(2) Haryana State Electricity Board -Vs- Naresh Tanvar reported in (1996) 8 SCC 23
(3) State of Uttar Pradesh -Vs- Para Nath Reported in (1998)2 SCC 412
(4) Haryana State Electricity Board -Vs- Krishna Devi reported in (2002) 10 SCC 246
(5) Umesh Kumar Nagpal -Vs- State of Haryana in (1994) 4 SCC 138
(6) State of Himachal Pradesh and another –Vs- Shashi Kumar (2019) 3 SCC 653, dated 16.01.2019. It is the immediacy of the need which furnishes the basis for compassionate appointment and the terms of the scheme must be implemented. The receipt of family pension is therefore one of the considerations which is to be taken into account.

18. In Shreejith –Vs- Deputy Director (Education) Kerala reported in (2012) 7 SCC 248 the Hon’ble Apex Court upheld the rejection of the applicant’s claim for compassionate appointment on the ground of delay of 12 years and 14 years of attaining majority. The following observations of the Hon’ble Apex Court in that case are relevant to the issue of compassionate appointment and hence they are in crux given below:-

i) That there is no prescribed pro formal/ format for an application for compassionate appointment and what is important is the substance of the application and not the form.

ii) If the applicant in substance conveyed the request for a compassionate appointment and provided the information, which the employer required for considering the request, the very fact that than the said information was not given in a given format would not hence been a good reason to turn down the request.

iii) The scheme is meant to be a beneficial scheme helping those who are in need of assistance on account of an untimely demise in the family.

iv)An application for compassionate appointment must be filed within the period stipulated in the rules/scheme, and it is immaterial whether vacancy exists or not at that time.

19. In S. Mohan -Vs- Government of Tamil Nadu reported in (1998) 9 SCC 485 the Hon’ble Apex Court upheld the rejection of application filed after 10 years after the death of the mother on the ground that his two brothers were employed with an observation that the object being to enable the family to get over the financial crises which it faces at the time of the death of the sole breadwinner, the Compassionate appointment cannot be claimed and offered.

20. The representation of the applicant filed after 10 years of the death of the deceased was held proper in Haryana State Electricity Board -Vs- Naresh Tanwar reported in 1996 (8) SCC 23.

21. In State of Uttar Pradesh -Vs- Paras Nath reported in 1998 (2) SCC 412 the delay of 17 years was held to be fatal and in Union of India –Vs- Bhagwan Singh reported in (1995) 6 SCC 476 the reason for rejection on the ground of delay of 20 years was upheld with an observation that the family has pulled on for 20 years and hence the claim Compassionate appointment is not justifiable.

22. In Chief Commissioner, Central excise and customs &ors-Vs- Prabhat Singh reported in (2012) 13 SCC 412, the Hon’ble Apex Court cautioned that the court should not fall prey to any sympathy syndrome of issue direction for Compassionate appointment dehors prescribed norms.

IV (B) Grant of Relief by the Court in spite of the Delay- Inconstitency:-
A person gets accustomed to live in poverty, cannot be denied his legitimate right on the ground that the said person has learnt to live without any basic needs.

23. (i) Though the delay thus was held to be fatal by the Hon’ble Apex Court in the above cases, the Hon’ble Apex Court in Supriya Suresh Patil –Vs- State of Maharashtra &ors reported in (2018) 17 SCC 67 under Art.142 of the Constitution of India held that the rejection of claim made by the claimant that the family managed to survive for over 10 years and there was no immediate necessity cannot be a major reason for rejecting the claim as the widow had already been empanelled under compassionate appointment scheme. A direction was issued by the Hon’ble Apex Court to give appointment to the daughter as the claimant’s claim was rejected on the ground of age limit.

(ii) In APSRTC –Vs- Dannina Rajeswari (1999) L &S 1182, the Hon’ble Apex Court has held that the claim can be considered if there is a vacancy and if it is permissible under the breadwinner’s scheme.

(iii) In National Hydroelectric Power Corporation –Vs- Namakch and reported in (2004) 12 SCC 487 the Hon’ble Apex Court has directed for consideration for compassionate appointment on sympathetic grounds.

(iv) In Punjab State power Corporation Limited &Ors –Vs- Nirval Singh reported in (2019) 6 SCC 774, the Hon’ble Apex Court held that the applicant was entitled for a solatium of 5 lakhs in lieu of compassionate appointment in terms of providing for 3 lakhs or temporary post which was declined by the employer ——– as he insisted for compassionate appointment only. Though the Hon’ble Apex Court observed the very object of compassionate appointment got extinguished because of the delay of 7 years, directed to pay 5 lakhs to the applicant under the new policy.

(v) In Canara Bank and Anr –Vs- M.Mahesh Kumar &Ors reported in (2015) 7 SCC 412, the Hon’ble Apex Court entertained a case of death of the father in 1998 and held that it is the scheme which was available on the date of death of the deceased would prevail and the payment of terminal Benefits cannot be treated as a substitute for providing employment assistance irrespective of the decision in UOI &Anr –Vs- Shashank Goswami&Anr reported in (2012) 11 SCC 307 that the terminal benefits over and above a particular time limit would disentitle the claimant for compassionate appointment.

(i) In Selvi R.Anbarasi –Vs- The Chief Engineer (Personnel) , 2006 (2) MLJ 200 (Mad), the Madras High Court has chosen to quash the rejection order rejecting the claim made by the claimant for her daughter after the rejection of the claim of the original applicant on the ground of qualification.

(ii) In the case of T.Meera Ismail Ali –Vs- the Tamil Nadu Electricity Board through its Chairman, No.800, Anna salai, Chennai -2 and 2 Others, reported in 2004 (3) CTC 120, the Hon’ble High Court of Madras directed the authority concerned to consider the case of the claimant for compassionate appointment and the same was upheld by the Hon’ble Division Bench in W.A.No.4008/04 on 01.12.04. However there are two Division Bench Judgments directly conflicting with each other one is E.Ramasamy –Vs- TNEB, W.A.No.336/03 and a Batch of cases dated 18.09.2006 rejecting the petitioner’s claim on the ground of delay and A.Kamatchi, reported in (2013) 2 CWC 758 granting relief to the petitioner. All are referred to in the Hon’ble Full Bench Judgment decided on 11.03.2020 and the question is concerned with the delay which is dealt with in detail in the forthcoming paras.

30. When compassionate appointment is meant and intended for providing immediate appointment to save the family from the sudden crisis the scheme of an employer to keep the claimant in the waiting list for the vacancy indefinitely upset the very object of the compassionate appointment.

31. In a recent case the Hon’ble Apex Court under Art.142 of the Constitution of India in Supriya Suresh Patil-Vs-State of Maharashtra &Ors reported in (2018) 17 SCC 67 directed the authorities concerned to give appointment to the daughter of the widow as the widow was already empanelled for compassionate appointment under the scheme by setting aside the order which rejected her claim on the ground that there was a delay of 10 years and the widow crossed the age limit.

III Discrimination – When the Maintenance of Waiting List by the employer causing inordinate delay is permissible, it is discriminatory to expect the employee to rush irrespective of their financial position:-

32. When the maintenance of the waiting list is permissible then the reasonable delay on the part of the claimant also should be permitted to save the scheme from the vice of hostile discrimination between the employer and employee on the ground of delay and no application of the claimant should be rejected on the ground of delay alone if the delay is proved to be genuine and unavoidable. For example the application Free submitted by the applicant within 3 years from the date of attainment of majority or required qualification also should not be rejected when the scheme provides for the waiting list.

33. When the courts approve the maintenance of waiting list for providing for compassionate appointment, the applicant’s application within 3 years after the attainment of majority on acquisition of required qualifications also have to be recognized as there cannot be two different yardsticks in the matter of compassionate appointment one for the employer and another for the employee.

34. That is the reason as to why the Hon’ble Apex Court in a case called- Supriya Suresh Patil-Vs-State of Maharashtra &Ors reported in (2018) 17 SCC 67 exercising jurisdiction under Art.142 of the Constitution of India ignored the delay of more than 10 years and also over age on the part of the applicant as she was all along kept in the waiting list and directed the authorities concerned to provide appointment to her daughter with an observation at para 3 reproduced below:-
“We find from the judgment of the High Court that the main reason for rejecting the case of the appellant was that the family had managed to survive for over ten years and, therefore, there was no immediate necessity. We are afraid that this cannot be a major reason for rejection. Whether the family pulled on beginning or borrowing also should have been one consideration. We do not propose to deal with the matter further in the peculiar facts of the case.”

35. With a view to avoid the delay on the part of both, i.e., employer and employer, the only possible way is to direct the authorities concerned to create supernumerary post as done in the case of Sushma Gosign –Vs- Union of India reported in (1989) 4 SCC 468 = AIR 1989 SC 1976.

36. But the Hon’ble Apex Court in the subsequent cases in
1. Hindustan Achromatic Ltd., -Vs- Smt. Radhika tirunala reported in (1996) 6 SCC 394.
2. APSRTC-Vs- Dannina Rajeswari reported in 1999 SCC (L&S) 1182 and also in
3. Himachal Road Transport Corporation -Vs- Dinesh Kumar reported in 1996 (4) SCC 560 = AIR 1996 SC 2226 held that the provision for appointment on compassionate ground in the rules is subject to the existence of vacancy and there is no duty to appoint if no vacancy arises. After holding so, the Hon’ble Apex Court directed the authorities concerned to make compassionate appointment as and when a vacancy is available in accordance with the ranking of the applicant in waiting list.

37. The Hon’ble Courts thus held in both the ways that the object of compassionate appointment is to provide immediate relief to the family of the deceased to save the family from the sudden financial crisis due to the unexpected and unpredictable demise of the bread winner of the family and while holding so, the Hon’ble Apex Court and other Courts have permitted the maintenance of the waiting list by the employer and thus recognized the delay on the part of the employer.

38. For example the Hon’ble Apex Court in Hindustan Aeronautics Ltd. -Vs- A.Radhika Thirumalai reported in 1996 (6) SCC 394, held that the provision for compassionate appointment in the rules is subject to the existence of vacancy and a direction was given to make such appointment as and when a vacancy is available in accordance with the ranking of the applicant in waiting list.

39. That apart the Hon’ble Apex Court has held in both the ways, namely that the compassionate appointment is meant to provide immediate financial need and security to the family of the deceased and after holding so the Hon’ble Apex Court has permitted to approve the maintenance of the waiting list as dealt with in 1996 (6) SCC 394, referred to above.

40. When the maintenance of the waiting list is permissible then the reasonable delay on the part of the claimant also should be permitted to save the scheme from the vice of hostile discrimination between the employer and the employees and no application of the claimant should be rejected on the ground of delay alone if t he delay is proved to be genuine and reasonable. Like that the application submitted by the applicant within 3 years from the date of attainment of majority as permitted in Civil Law to question any act against their interest on required qualification also should not be rejected when the scheme provides for the waiting list if it is proved that their family still suffers from financial crisis and lives in indigent circumstances.

V: Judgments Of The Hon’ble Madras High Court And G.O.Ms.No.18 Dated 21.03.2020:-
1. In K. Sundaramahalingam –vs- Superintendent of Police (W.P. (MD) No. 13005/2006) the Learned single Judge of Madras High Court dismissed the claim made after 4 years by referring to G.O.Ms. No. 18 Dated 23.01.2020 and the Hon’ble Full bench Order in a batch of cases in W.P.(MD) Nos. 7016/2011 dated 11.03.2020.

2. In W.P.(MD).No. 11453/2019 – ArunPrasath –vs- Additional Commissioner and Director State Insurance Corporation dated 15.02.2021, the representation of son’s claim was rejected as he had applied for the compassionate appointment after the rejection of his mother’s representation on the ground of lack of qualification.

3. Again in W.P.(MD) No.2641 of 2021 in N. Sekar –vs- Revenue Department on 12.02.2021 the learned Single Judge dismissed the case of compassionate appointment by referring to G.O.MS.No.18 dated 23.01.2020 on the ground of delay.

4. In W.P.(MD). No. 15496/16 in the case of B.Nathiya the learned Single Judge rejected the claim of the candidate on 8.2.21 on the ground of receipt of monetary benefits above 5 lakhs.

5. In W.P.(MD) No.2005 of 2021 – S.VijayaRaghavan –vs- Highway department on 05.02.2021 the learned Single Judge had directed the department to re consider the claim of the petitioner in the light of the Government, order in G.O.MS.No.18, dated 23.1.2020 as the rejection order was passed prior to G.O.MS.No.18.

6. In W.P.(MD).No. 21968/2017 – G.GokulaKannan –vs- Director of Agriculture , dated 04.02/2021 the rejection of the claim made after 15 years was upheld.

7. In W.A.No.131 of 2021 – Kalyani – The Hon’ble Mr.SANJIB BANERJEE, THE CHIEF JUSTICE AND The Hon’ble Mr.JUSTICE SENTHILKUMAR RAMAMOORTHY – DATED: 29.01.2021 dismissed the Writ Appeal holding that there was no scheme of the employer providing any special consideration for members of the family of a deceased employee who died in harness and the learned Single Bench appropriately dealt with the matter, particularly since the petition had been filed several years after the death of the original employee.

8. In W.P.(MD) No.5915 of 2019 in the case called M.Meeran Mohaideen the Learned Single Judge on 29.01.2021 dismissed the Writ on the ground of Delay on the basis of G.O.Ms.No.18, dated 23.01.2020. While dismissing , it was observed that the application made after attaining majority could be entertained but subject to the condition that the original application ought to have been made, when the petitioner was minor, within a period of three years from the date of death of the employee. In that case, as the original application was made after the period of three years the case was dismissed.

9. In W.A.(MD)No.686 of 2012 , Seethalakshmi , the Hon’ble Division Bench on 27.1.21 held that the application was filed at the age of 30 belatedly and hence it could not be entertained. G.O.MS.No.165 relied upon by the candidate cannot be made applicable to her case as there cannot be any retrospective effect to the Government, order to reopen the old cases. Whereas, as seen earlier there was a direction to reconsider the claim of the applicant in the light of G.O.Ms.No.18 dated 23.01.2020, though the rejection order was passed before the Government Order.

10. In W.P. (MD)No.22915 of 2017 the claim made by M.Mohan Kumar was dismissed on the ground of delay on 27.1.21 with the following observation:-
“ A person in penury or distress will not take long time to survive the vagaries of penury……. If a dependent who sleeps over and does not make any effort by the reason of his own will definitely lead to dilute the immediacy of the requirement. The time spent to attain majority cannot be a ground for claiming compassionate appointment. Indigency is the need that needs to be established, even within the threshold limit of three years, as is also evident from G.O. (Ms.) No.18 to decide on providing compassionate appointment. Holistically considering, the period of three years for moving an application for compassionate appointment is provided, which means that if the dependent is only about 15 years of age, he/she can apply immediately after attaining the age of majority. However, the lower the age of the dependent would not be an attributing factor to extend the period, as such elasticity would have no ends to meet. Further, it should also not be out of context to state that the longer the period, the sustenance of the members of the family would by itself be an attributing factor to deny compassionate appointment. So the case is dismissed. “

11. In W.P.(MD)No.22412 of 2017 – Vinoliya @ TherasammalVinoliya on 27.01.2021 a direction was issued consider the application for compassionate appointment and pass appropriate orders on merits and in accordance with law, within a period of six weeks though it was represented that there was no scheme.

12. W.P.(MD)No.20479 of 2017 – A. Jasmine dated 25.01.2021
In the above case, the petitioner’s husband died in harness on 03.10.2012. Hence the petitioner applied for Compassionate Appointment within 3 years. Thereafter the petitioner got remarried on 24.02.2014 and her application for Compassionate Appointment was rejected by the respondent on the ground of remarriage. Challenging the said proceeding the petitioner had filed the Writ Petition. The argument on the part of petitioner was that though the petitioner made application for Compassionate Appointment in the year 2012 itself that is prior to her re-marriage, the impugned order was passed by the respondent rejecting her appointment on the ground that the petitioner had not applied before the date of re-marriage and the same is the result of total non application of mind. It was argued on behalf of the Government that as per G.O.(Ms).No. 18, the re-marriage wife of the deceased employee would disentitle the Compassionate Appointment. After referring to the Government Order and the Hon’ble Full Bench order and other cases the claim of the wife was rejected on the ground of delay and re-marriage as per G.O. Ms. No.18 dated 23.01.2020.

13. In W.P(MD)No.22292 of 2017, in the case of A.Mathavi it was contended by the court on 22.01.2021 that the petitioners father died on 20.01.2017 in harness and the petitioner’s brother had filed application for Compassionate Appointment on 18.04.2017 but his application was rejected on the ground that he crossed the upper age limit of 36 years. Later the petitioner submitted an application on 31.10.2017 and filed the writ petition challenging the Impugned Order submitting that the age limit has been enhanced to 40 as per G.O.MS.No.18. It was held by the Court that as per G.O.(Ms) No.18 the upper age limit has been increased and the petitioner’s case has to be reconsidered on merits as the petitioner made Application at the age of 35.

Apart from the above judgments the Hon’ble Full Bench of Madras High Court in W.P.(MD) Nos.7016 of 2011 and a batch of cases at paras 13,14 and 15 has held as follows:-
“…….The above mentioned board proceedings were further clarified and amended by (PER) FB TANGEDCO Proc. No. 9 dated 09.10.2015. The relevant portions read as under:-
“2. In Government letter Ms.No. 86/Q1/2010-2 dated 04.05.2010, as it was clarified that for appointment on Compassionate grounds, after 23.08.2005. the legal heirs who have completed 18 years alone eligible and that after 04.05.2010, the age and educational qualifications have to be satisfied on the date of application made by the applicant and due to that a difficulty arose in considering the applications made in between 23.08.2005 and 04.05.2010, Government have carefully considered and issued correction and clarification to the Government letter Ms.No.86/Q1/2010-2 dated 04.05.2010, in G.O.Ms.No. 155, Labour& Employment (Q1) Dept., dated 10.12.2014.

2. Based on the above and as per the meeting of the Tamil Nadu Generation and Distribution Corporation Limited Board fifth read above, it was decided to implement the same in the Tamil Nadu Generation and Distribution Corporation Limited and in the TNEB Limited. Accordingly, the following correction and clarification are issued to Permanent (FB) TANGEDCO Proc.No.17, Adm.Br., dated 01.11.2011.

Sl.No. As per present Permanent
(FB) TANGEDCO Proc.No.17,
Adm.Br., dated 01.11.2011
Correction (as per)
G.O.Ms.No.155, Labour&
Employment (Q1) Dept.,
dated 10.12.2014
1) Paragraph 2 (a)
As 18 years of age has been fixed for appointment on
compassionate grounds from
23.08.2005, after 23.08.2005, the legal heirs who has completed 18years of age alone is to be treated as eligible for appointment on
Compassionate grounds.
The fixation of 18 years age for appointment on compassionate grounds from 23.08.2005 be treated as deleted and, from
04.05.2010, those who have completed 18 years of age alone will be treated as eligible for appointment on Compassionate grounds.

2) Paragraph 2(d)
The clarification issued is
paragraph 2(d) will take effect from the issue of Government letter dated 04.05.2010
Deleted

4. After the issue of said correction, for the applicants who have not completed 18 years of age but made applications after 23.08.2005 but before 03.05.2010 for appointment on compassionate grounds and waiting, the following clarification is issued.
i) The applicants who sought compassionate appointments between 23.08.2005 and 03.05.2010, if they satisfy all other eligibilities except the minimum age fixed for appointment on compassionate grounds on the date of application and the age atone (18 years completion) on the date of appointment, have to be treated as sufficient.”

14. The Electricity Board also restricted the filing of the applications for appointment on compassionate basis by three years. Though in the Electricity Board there was a provision that the children of the deceased employee who had completed the age 15, could also seek an appointment on compassionate basis and their application was to be considered on their attaining majority provided they satisfy the other conditions, but this has been done away with and the scheme framed by the Electricity Board is now similar to the one framed by the Government.

15. As stated above, it is now settled that compassionate appointment is an exception to the general Rule of appointment to any post in the service of the State (has been made in accordance with Article 14 and 16 of the Constitution of India). The dependant of an employee who has died in harness are made eligible for appointment only because of a scheme which provides for appointment on compassionate basis. The schemes have been framed on the basis of a policy which recognizes that a family of the deceased employee may be placed in a position of financial hardship because of the untimely death of the employee while in service. It is the immediacy of the need which is the basis for the State to permit appointment on compassionate basis. The purpose of such appointment is to ensure that the family of the deceased employee is not driven to the streets…..”

In view of all the cases referred to above delivering inconsistent views on the question of compassionate appointment without dealing with other aspects of the cases, the following suggestions are given below to achieve uniformity and the real object of the compassionate appointment without any difficulty and save the scheme from the vice of discrimination, G.O.MS.No.18 has to be read down, this following the principles laid down in Rathnasamy –vs- State of Tamil Nadu reported in (2009) 5 SCC 625. The relevant paras of the said Judgment are reproduced below:-

“……However, we cannot find any rational basis for giving preference to the direct recruits over those promote Assistants who are graduates, since the very basis for the distinction sought to be drawn by the respondents is that the direct recruits are graduates and hence intellectually superior to non-graduates. Hence we have to read down the impugned rule in order to save it from becoming violative of Articles 14 and 16 of the Constitution.

It is well settled that to save a statutory provision from the vice of unconstitutionality sometimes a restricted or extended interpretation of the statute has to be given. This is because it is a well-settled principle of interpretation that the Court should make every effort to save a statute from becoming unconstitutional and on another interpretation it will be constitutional, then the Court should prefer the latter on the ground that the legislature is presumed not to have intended to have exceeded its jurisdiction.

Sometimes to uphold the Constitutional validity the statutory provision has to be read down. Thus, in UmayalAchi v. Lakshmi Achi, the Federal Court was considering the validity of the Hindu Women’s Right to Property Act, 1937. In order to uphold the constitutional validity of the Act, the Federal Court held the Act intra vires construing the word “property” as meaning “property other than agriculture land”. This restricted interpretation of the word “property” had to be given otherwise the Act would have become unconstitutional.

Similarly, in Kedar Nath Singh v. State of Bihar this Court had to construe Section 124-A of the Penal Code which relates to the offence of sedition which makes a person punishable who “by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law”. This Court gave a restricted interpretation to the aforesaid words so that they apply only to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence. This was done to avoid the provisions becoming violative of Article 19(1)(a) of the Constitution which provides for freedom of speech and expression.
[
Several other decision on the point have been in Justice G.P. Singh’s Principles of Statutory Interpretation (7thEdn., 1999, pp.414-17).”

VI. Delay – Rejection of Claim Irrespective of their Financial Status and Inconsistent Views of the Courts on Various Issues:-

41. As the delay in submitting the application for compassionate appointment often is the problematic issue before the courts it has led to conflicting judgments on various aspects as mentioned below:-

42. Applicability of the scheme:-
Whether the claim has to be decided as per the scheme in force as on the date of the death of the employee or on the date of claim or on the date of consideration of the claim:-

43. In a case Maharani Devi &Anr –Vs- UOI &Ors reported in (i) (2009) 7 SCC 295 the Hon’ble Apex Court has held that the rules and orders prevalent at the time of death of the employees or claim for compassionate appointment has to be applied.

(ii) In State Bank of India -Vs- Rajkumar reported in (2010) 11 SCC 661 the Hon’ble Apex Court has held at para13 as follows:
“Further, where the earlier scheme is abolished and the new scheme which replaces it specifically provides that all pending applications will be considered only in terms of the new scheme, then the new scheme alone will apply. As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts.”

(iii) In MGB Gramin Bank -Vs- Chakravarti Singh reported in (2014) 13 SCC 583 at para15 has held as follows:-
“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 the family, etc. the application has to be 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 SBI Vs Rajkumar, (2010)11SCC661,this Court held that in such a situation, the case under the new scheme has to be considered.”

(iv) In Canara Bank –Vs- M. MaheshKumar reported in (2015) 7 SCC 412 the Hon’ble Apex Court by referring to the above two cases has held otherwise that it is the scheme in force in 1993 on the date of death of the deceased is relevant and the claim of the complaint was directed to be considered as per the scheme of 1993.

(v) By citing the difference of opinion in the above cases in SBI -Vs- Sheo Shankar Tewari reported in (2019) 5 SCC 600 the Hon’ble Apex Court has referred the above issue to the Larger Bench for quietus.

(vi)But in a case reported in (2019) 6 SCC 774 the Hon’ble Apex Court held that the claimant is entitled to solatium under the new policy though the claim was rejected under the old policy on the ground of delay of 7 years.
(vii) However, again the Hon’ble Division Bench of Apex Court in Indian Bank –Vs- Promila reported in (2020) 2 SCC 729 without referring to any of the above developments has held by following the judgment in Canara Bank –Vs- Mageshkumar reported in (2015) 7 SCC 413 that the claim for compassionate appointment must be decided only on the basis of relevant scheme prevailing on the date of demise of the employer.

The same was followed in State of M.P. –Vs- AmitShrivas reported in (2020) 10 SCC 496 also.

44. While holding so, the Hon’ble Apex Court has held in the last line of para 20 of the judgment as follows:
“It is not for the courts to substitute a Scheme or add or subtract from the terms there of in judicial review, as has been recently emphasized by this Court in State of H.P. –Vs- Prakash Chand reported in (2019) 4 SCC 285.”
The Hon’ble Apex Court of 3 Judges in the State of M.P. –Vs- AmitShrivas reported in (2020) 10 SCC 496 held that unless the new scheme is made applicable with retrospective effect the scheme prevailed on the date of death alone is the criterion to consider the claim following the judgment in (2015) 7 SCC 413.

Thus the Hon’ble Apex Court is still on difference of opinion with regard to the applicability of the scheme as to whether it is traceable to the date of death of the deceased or the date of consideration of claim on claim.

(B) .Whether grant of terminal benefits is a bar for Compassionate
Appointment conflicting opinions:-
(i) In BalbirKaur –Vs- Steel Authority of India reported in (2000) 6 SCC 493 the Hon’ble Apex Court said that the availability of family benefit scheme is not a bar for compassionate appointment.

(ii) The same view was expressed in GovindPrakashVerma –Vs- Life Insurance Corporation of India reported in (2005) 10 SCC 289 in the following words:
“In our view, it was wholly irrelevant for the departmental authorities…… to take in to consideration the amount which was being paid as family pension to the widow of the deceased…. and other amounts of terminal benefits under the Rules.
…….Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amount admissible under the Rules ”

(iii) Whereas the Hon’ble Apex Court in Punjab National Bank –Vs- Ashwini Kumar Taneja reported in (2004) 7 SCC 265 has held that as follows:-
“….Where the scheme provides that in case the family of the deceased gets the retrial/terminal benefits exceeding a particular ceiling, the dependent of such deceased employee would not be eligible for compassionate appointment.””

(iv)Again in MumtazYunusMulani (Smt) –Vs- State of Maharashtra, (2008) 11 SCC 384

The Hon’ble Apex Court has held as follows;
“8.The fact that the appellant has been receiving family pension is not in dispute. It has furthermore been averred in the counter-affidavit that she has income from the immovable properties in regard whereto, there is no denial or dispute”

“9. Appointment on compassionate grounds can only be granted to tide over sudden crisis of the family of the deceased. The right to get appointment on compassionate grounds would depend upon the scheme operating in the field.[Umesh Kumar Nagpalvs State of Haryana and National Institute of Technology vs Niraj Kumar Singh]”

“11.However, it is now a well-settled principle of law that appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the state or the public sector undertaking is to see that dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis.[Karmik vs Prahalad Mani Tripathi (2007) 6 SCC 162]”

(v) Following the same view the Apex Court in yet another case, namely, Union of India –Vs- Shashank Goswami reported in (2012) 11 SCC 307 has held that in addition to the terminal benefits to the time of Rs. 4,40,908/- family pension Rs. 3,100/- per month has been authorized to Smt. Rashmi Gautam for a period of 7 years and thereafter Rs.1860/- per month plus admissible relief of pension and hence the Apex Court held that the claimant is not eligible to be considered for the Group “C” post. Appeal was allowed………..
(vi) In the case of Govind Prakash reported in (2005) 10 SCC 289, also the Hon’ble Apex Court held that the claimant is not eligible for compassionate appointment if the scheme lays down a criterion that the grant of a particular amount as retiral benefit/terminal benefits is a bar.

(vii) In State of H.P. –Vs- Sashi Kumar reported in (2019) 3 SCC 653, the Hon’ble Apex Court held that the direction issued to consider the case for compassionate appointment without taking note of terminal benefits is erroneous.
Thus there are conflicting views on the above point also.
(C). The conflicting judgments not only stopped with that but they continue to be so, even in respect of deciding the entitlement of the legal heirs of the deceased to the compassionate appointment.
45. (i) The Hon’ble Apex Court in Mohd Zamil Ahmed –Vs- State of Bihar reported in 2016 (12) SCC 342, set aside the termination of the services of the brother of the deceased who was appointed on compassionate grounds on his filing an affidavit enclosed by the widow of the deceased while submitting a petition to the State Police department that the brother of the deceased would undertake to protect the family of the deceased on the ground that the brother does not fall within the definition of the expression ” dependent of the deceased ” to claim for compassionate appointment.
(ii) Whereas in State of Haryana –Vs- Dhan Singh reported in 1996 (7) SCC 272 , the Hon’ble Apex Court has held that the brother is part of the family of government employee , only till the age of 18 years under the rules and the claim for compassionate appointment by such brother aged above 18 years is not maintainable.
(iii) In Chairman , Bihar Rajya Vidyut Board –Vs- Chhathu Ram reported in 1999 (5) SCC 673 , the Hon’ble Apex Court held that the adopted son based on adopted deed, neither signed nor registered is not entitled to compassionate appointment.
(iv) In State of Chattisgarh –Vs- Dhirijoh Kumar Sengar reported in AIR 2009 SC 2568 (2571), the Hon’ble Apex Court has refused compassionate appointment to the nephew of the deceased employee by referring to the scheme adopted by the government of M.P, that the widow of the Government servant or his legal children which includes the stepson/daughter also would alone be eligible for compassionate appointment and not any other member of the family or relative.
(v) In National Institute of Technology –Vs- Niraj Kumar Singh, reported in 2007 (2) SCC 481, held that the compassionate appointment given to the grandson of the cousin brother of the deceased was wholly illegal.
(D) Difference of Opinion on the vacancy for Compassionate Appointment:-
46. (i) The controversy continues even in respect of the vacancy, in Sushma Gosain –Vs- Union of India reported in 1989 (4) SCC 468, the Hon’ble Apex Court held that the appointment on compassionate grounds should not be delayed and if there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant.
(ii) Whereas, in the subsequent judgments in Himachal road transport corporation –Vs- Dinesh Kumar reported in 1996 (4) SCC 560, the Hon’ble Apex Court has held that there cannot be a direction to create a supernumerary post and then appoint a person to such a post on compassionate grounds .
(iii) The said view was followed in yet another judgment in APSRTC-Vs- Dannina Rajeshwari reported in 1999 SCC (L&S) 1182 .
(iv) However, the Hon’ble Apex Court in same APSRTC –Vs- Kaisar Begum reported in 1998 (9) SCC 398, the dependant is entitled to additional monetary benefits, as per the Scheme if it is not possible to provide compassionate appointment and in view of that the High Court cannot direct for compassionate appointment.
(E). Suggestion for Additional Monetary Benefits as in the place of
Compassionate Appointment depending upon the years left out on the date of death:-

49. Thus, there are conflicting views in respect of vacancy also and if really there is no vacancy for atleast the next succeeding three years, the family can very well be paid atleast additional monetary benefits as provided under the Scheme of APSRTC, instead of making the dependant to wait in the waiting list for appointment indefinitely.

VII. Suggestions to overcome the problem and remove the vice of Discrimination in the light of the Doctrine of Reading Down:-
(A) Need for preference to the Compassionate Appointment than that of
Direct Recruitment:-

50. The only way to overcome this is to read down the scheme to achieve its object and save it from the vice of discrimination and direct the employer to provide appointment to the candidate immediately to the lowest cadre in the employment echelons other than the cadre of basic servants if qualified to the lowest cadre of class C or D posts or to the cadre of basic servants if not qualified.

51. If the candidate is over qualified or qualified for the lowest post then instead of maintaining the waiting list the candidate can be straight away appointed to the post held by the deceased and in case the deceased was in the superior post next senior most candidate can be moved to the post held by the deceased and the claimant can be appointed in the lowest cadre or according to his qualifications. When the vacancy caused due to the death of the employee is immediately available then the in-service candidates in the lower level posts can be moved up in the ladder to the post held by the deceased and the claimant can very well be accommodated in the lowest level in which the vacancy is caused by the above method. By doing so, the stagnation for promotion also can be removed.

52. If the lowest cadre employee dies, then the claimant can very well be appointed to that post in the vacancy caused due to the death of their mother or father.

53. If on the date of death the spouse is not qualified but able to read and write Tamil then they could be appointed in the vacancy caused due to the death of the another to the level of record clerk in relaxation of qualification of SSLC even with a pre condition that they should pass the same within 3 years as the relaxation provision is very well available under the Tamil Nadu Government Servants Act 2016 analogous to Rule 4 of The Tamil Nadu and State and Subordinate service Rules.

54. Even that is not possible, additional monetary benefits equal to 80% of the monetary benefits which would have been enjoyed by the deceased till the retirement had they continued in service could be paid to the deceased employee immediately.

55. Infact some of the employees have the scheme of payment additional monetary benefits to the family of the deceased to overcome the compassionate employment problem and that is recognized by the Courts.

a) The additional monetary benefits question arise when both the spouses are not available and the children also have not attained the majority within the time limit of 3 years and the family is placed in indigent circumstance having no other financial support from any other relative of the family.

b) Such additional benefits as already stated should be equal to 50% to 80% of the left over benefits depending upon the post, inferior or superior which would have been enjoyed by the deceased employee had he continued in service.

c) If not 25% of the left over service benefits can very well be paid to the family immediately and wait for the legal heir to attain majority and offer employment to the one who attains majority first and recover the 25% benefits paid to them immediately on the date of death of the deceased after the legal heirs entering into service from their salary.

d) The provision for compassionate appointment and the grant of additional benefits would arise only in case of the family’s financial status and not on any other automatic and routine ground as compassionate appointment is not a regular or alternative ‘ source of recruitment’ as held by the Hon’ble Apex Court.

e) The provision for compassionate appointment and the immediate action on the above line is mandatory and unavoidable as after 31.3.2003 as far as Government, of Tamil Nadu is concerned and after 31.3.2004 as far as Central Government, is concerned as from their onwards the old pension scheme is not available and hence the death of a Government, servant would definitely be a jolt and bolt from the blue for the family of the deceased if the family has no other financial background and would definitely face financial crisis.

f) The maintenance of the waiting list question would definitely not arise if timely action in the above manner is resorted to by the employer immediately after the death of the Government servant and to fill the vacancy caused due to the death of the deceased by giving promotion to the feeder category employees in line and appointing the legal heirs of the deceased to the lowest post the vacancy of which would be caused by the promotion of senior most candidate in the feeder category.

g) If the deceased was from the lower post then the legal heir could be accommodated in that vacancy and if this is followed then there would not be any necessity to maintain the waiting list to offer compassionate appointment. Like that there is no necessity for the employer to create supernumerary post or maintain the waiting list which may later turn to be a big problem for all concerned.

h) Apart from following the above method of filling up the vacancy caused by the death of the deceased in the above method, there is another way also to offer the compassionate appointment immediately to the family of the deceased that is to fill the direct recruitment vacancies in the lowest cadre for every year with compassionate appointment candidates. The exercise to estimate the vacancies for direct recruitment promotion has to be mandatorily done for every year in every establishment as per their service and that apart rules, the Hon’ble Apex Court has also made it mandatory in the case reported in (2010) 4 SCC 290 to resort to recruitment for every year. As far as our State is concerned Rule 4 of the Tamil Nadu State and Subordinate service Rules which is replaced by Sec.7 of the Tamil Nadu Government, Servant’s Service Conditions Act 2016 lay down the procedure for the same and they are reproduced below:-

A) “Rule 4: Approved candidates – (a) All first appointments to a service or class of category or grade thereof State or Subordinate, whether by direct recruitment or by recruitment by transfer or by promotion, shall be made by the appointing authority from a list of approved candidates. *All appointments made by transfer, from one class to another class and from one category to another category, in the same service carrying identical scale of pay shall be made by the appointing authority from a list of approved candidates. Such list shall be prepared in the prescribed manner by the appointing authority or any other authority empowered in the Special rules in that behalf ** and shall be displayed in the Notice Board in the Office of the appointing authority.** The list shall also be communicated to all persons concerned by Registered post whose names are found in the list as well as to persons senior to the Junior most person included in the list whose names have not been included in the list. Where the candidates in such list are arranged in their order of preference appointments to the service shall be made in such order:
**(w.e.f. 25.7.2003 Vide G.O.Ms.No.130 P&AR(S) Dept. dt.29.4.2004 & G.O.Ms.No.99 P&AR(S) Dept. dt. 2.8.2005) *
[G.O.Ms.No.284, P & AR (S), dt.1-12-97 came into force on 1-12-97].
Provided that the list of approved candidates for appointment by promotion and by recruitment by transfer to all the categories of posts in the Tamil Nadu State and Subordinate Services shall be prepared annually against the estimated number of vacancies expected to arise during the course of a year. The estimate of vacancies shall be prepared taking into account the total number of permanent post in a category; the number of temporary posts in existence; the anticipated sanction of new posts in the next year; the recruitment post of leave reserves; the anticipated vacancies due to retirement and promotion, etc., in the course of the year and the number of candidates already in position in that category. The list of approved candidates, so prepared, shall be inforce for a period of one year only and shall lapse at the end of the year. The candidates whose names were included in the previous list, but were not appointed, shall be considered, if eligible for inclusion in the list of next year along with their seniors if any whose names were not included in the previous list either because they were found not suitable or because they were not technically qualified when the previous list was drawn up.
*** Provided further that for preparing such lists to fill up vacancies, the names of the qualified candidates in the seniority list in a class, category or service shall be considered in the following proportions (rounding off fractions to the next whole number):-
Number of vacancies Number of qualified candidates to be considered
1-20 200% of the actual number of estimated vacancies.
21-80 175% of the actual number of estimated vacancies,subject to a minimum of 40.
81 and above 150% of the actual number of estimated vacancies, subject to a minimum of 140.

Provided also that if the qualified candidates, after consideration of their claims, are found not suitable for the post, the names of the next qualified candidates, to the extent necessary, shall be considered:
Provided also that in respect of each reserved vacancy to be filled up by the candidate belonging to the Backward class, Backward Class Muslims or the Most Backward Class and Denotified Community or the Scheduled caste or the Scheduled Tribe, the names of the first two qualified candidates belonging to the backward Classes, Backward Class Muslims or most Backward Classes and Denotified Communities or the Scheduled Caste and Scheduled Tribes, as the case may be shall be considered, subject to their availability and if the first two qualified candidates belonging to the backward classes, Backward Class Muslims or Most Backward Classes and Denotified Communities or the Scheduled Caste and Scheduled Tribes, as the case may be are found not suitable for the post, the claims of the next two qualified candidates belonging to that reserved Category shall be considered. No reserved vacancy shall be left unfilled, except when no qualified candidates in the seniority list in a Class, Category or Service belonging to that reserved category are available for consideration. In respect of a vacancy to be filled up by General Turn, the names of the qualified candidates including these belonging to the Backward Classes, Backward Class Muslims, the Most Backward Classes and Denotified Communities, the Scheduled castes and the Scheduled Tribes in the seniority in a class, Category or Service shall also be considered:
Provided also that in respect of filling up vacancies in the post of Head of Department, the number of names of qualified candidates to be considered shall be fixed as twice the number of vacancies plus three in the seniority list in a Class.Category or Service.
***[Substituted Vide G.O.Ms.No.34, P&AR (S) Dept., dt.30-1-96 w.e.f 30-1-96]. #
(Explanation I – The period of one year validity for the list of approved candidates shall be reckoned from the date of approval of the panel by the competent authority;
Explanation II-In respect of appointment to the posts, which are under the purview of the Tamil Nadu Public Service Commission, temporary list may be drawn and published as aforesaid with reference to the qualification on the date fixed for the regular lists to meet out the exigencies of service and to avoid administrative delay. Once a qualified candidate is included in the temporary list with reference to the qualification on the crucial date fixed for regular list his rights for temporary appointment should be protected and he should not be overlooked in preference to a person, who was not included in the temporary list as he was not qualified on the crucial date but subsequently qualified. The temporary list shall be adopted for giving temporary appointments till the regular list is approved and regular appointments are made with reference to the regular list.
Explanation III – No temporary list shall be prepared in respect of the posts for which the consultation of the Tamil Nadu Public Service Commission is not required and the list of names prepared, if any, shall be a regular one.)
#Added in G.O.Ms.No.999, P&AR (Per.P), dt.22-10-1983
* [Provided further that a list of approved candidates (including a ‘Nil’ list) prepared even prior to the coming into effect of the preceding proviso shall not be invalid for the reason that it was prepared with reference to the estimated number of vacancies expected to arise during the course of the year:]
* Added in G.O.Ms.No.516, P & AR (Per.M), dated 3-6-1982
#Substituted in G.O.Ms.No.353, P&AR (Per.S) dt.20-6-89, w.e.f.4-5-88”

B) Tamil Nadu Government Servants (Conditions of Service) Act, 2016 – “Section 7: Approved Candidates – (1) All first appointments to any class or category or grade in any State Service or Subordinate Service, whether by direct recruitment or by recruitment by transfer or by promotion, shall be made by the appointing authority from a list of approved candidates. All appointments made by transfer, from one class to another class and from one category to another category, in the same service carrying identical scale of pay shall be made by the appointing authority from a list of approved candidates. Such list shall be prepared in the manner as specified in Schedule-XI by the appointing authority or any other authority empowered in the special rules in that behalf and shall be displayed in the notice board in the office of the appointing authority. The list shall also be communicated to all persons concerned by registered post whose names are found in the list as well as to persons senior to the junior most person included in the list whose names have not been included in the list. Where the candidates in such list are arranged in their order of preference, appointments to the service shall be made in such order:
Provided that the list of approved candidates for appointment by promotion and by recruitment by transfer to all the categories of posts in the State and Subordinate Services shall be prepared annually against the estimated number of vacancies expected to arise during the course of a year. The estimate of vacancies shall be prepared taking into account the total number of permanent post in a category; the number of temporary posts in existence; the anticipated sanction of new posts in the next year; the recruitment post of leave reserves; the anticipated vacancies due to retirement and promotion, etc., in the course of the year and the number of candidates already in position in that category. The list of approved candidates, so prepared, shall be in force for a period of one year only and shall lapse at the end of the year. The candidates whose names were included in the previous list, but were not appointed, shall be considered, if eligible for inclusion in the list of next year along with their seniors, if any, whose names were not included in the previous list either because they were found not suitable or because they were not technically qualified when the previous list was drawn up:
Provided further that, for preparing such lists to fill up vacancies, the names of the qualified candidates in the seniority list in a class, category or service shall be considered in the following proportions (rounding off fractions to the next whole number):—
Number of vacancies Number of qualified candidates to be considered
1-20 200% of the actual number of estimated vacancies.
21-80 175% of the actual number of estimated vacancies, subject to a minimum of 40.
81 and above 150% of the actual number of estimated vacancies, subject to a above minimum of 140.

Provided also that if the qualified candidates, after consideration of their claims, are found not suitable for the post, the names of the next qualified candidates, to the extent necessary, shall be considered:
Provided also that in respect of each reserved vacancy to be filled up by the candidate belonging to the Backward Class, Backward Class Muslims or the Most Backward Class and Denotified Community or the Scheduled Caste or the Scheduled Cadre.Approved candidates. 11 Tribe, the names of the first two qualified candidates belonging to the Backward Classes, Backward Class Muslims or Most Backward Classes and Denotified Communities or the Scheduled Castes and Scheduled Tribes, as the case may be, shall be considered, subject to their availability and if the first two qualified candidates belonging to the Backward Classes, Backward Class Muslims or Most Backward Classes and Denotified Communities or the Scheduled Castes and Scheduled Tribes, as the case may be, are found not suitable for the post, the claims of the next two qualified candidates belonging to that reserved category shall be considered. No reserved vacancy shall be left unfilled, except when no qualified candidates in the seniority list in a class, category or service belonging to that reserved category are available for consideration. In respect of a vacancy to be filled up by General Turn, the names of the qualified candidates including those belonging to the Backward Classes, Backward Class Muslims, the Most Backward Classes and DenotifiedCommunities, the Scheduled Castes and the Scheduled Tribes in the seniority in a class, category or service shall also be considered:
Provided also that in respect of filling up vacancies in the post of Head of Department, the number of names of qualified candidates to be considered shall be fixed as twice the number of vacancies plus three in the seniority list in a class, category or service.
Explanation I.—The period of one year validity for the list of approved candidates shall be reckoned from the date of approval of the panel by the competent authority.
Explanation II.—In respect of appointment to the posts, which are under the purview of the Commission, temporary list may be drawn and published as aforesaid with reference to the qualification on the date fixed for the regular lists to meet out the exigencies of service and to avoid administrative delay. Once a qualified candidate is included in the temporary list with reference to the qualification on the crucial date fixed for regular list, his rights for temporary appointment should be protected and he should not be overlooked in preference to a person, who was not included in the temporary list as he was not qualified on the crucial date, but subsequently qualified. The temporary list shall be adopted for giving temporary appointments till the regular list is approved and regular appointments are made with reference to the regular list.
Explanation III.—No temporary list shall be prepared in respect of the posts for which the consultation of the Commission is not required and the list of names prepared, if any, shall be a regular one:

56. A cursory glance at the above provisions of law makes it clear that the estimate of vacancies and the filling up of the same are to be done for every year and in those vacancies the compassionate appointment candidates can be accommodated first on the basis of the date of the death of the deceased and the financial status of the family pointing out indigent position of the family.

57. When all the above unquestionable methods are available easily to the employer it is not known as to why and how the employer is driven to maintain the waiting list and make the family to wait for the operation of the Waiting List indefinitely. Infact if the Compassionate Appointment could not be made to the vacancy caused by the death of the employee, by then they can very well be appointed in the vacancy in preference to the direct recruitment.

(B) Unfairness and unreasonableness of the Employer:-
58. If the above methods are followed then there would be no question of creation of supernumerary post or waiting for the vacancy to be arisen to provide Compassionate Appointment. So, it is crystal clear that the delay on the part of the employer and the operation of the waiting list are the ‘make belief’ strategies to satisfy the employees’ Union and use the vacancy of the deceased to satisfy their own needs.

59. If the employer adopts any of the above methods, particularly the method of filling up the vacancy caused by the death of the Government, Servant either by promoting the senior most candidate in the feeder category if the deceased is from the higher post or fill the vacancy of the deceased with the legal heirs of the deceased if the deceased served in the lowest post, most of the cases would have been avoided and the burden of courts would have become nil in the matter of compassionate appointment.

60. Another problem faced in the matter of compassionate appointment is the claim made by the legal heirs of two wives. In view of Sec.16 of the Hindu Succession Act, the legal heirs born out of the second marriage are also eligible to get compassionate appointment through the second wife is not eligible as per the Judgment of the Hon’ble Apex Court in many cases.

61. When such a type of conflict comes, then the employer has to analysis the eligibility of the legal heirs of both and give preference to the first wife and her legal heirs if they are fully qualified or give terminal benefits to the first wife and equally to the minor legal heirs of both the wives and then compassionate appointment to the legal heirs of the second wife if there is none for the first wife.

62. The financial condition of the family of the deceased is the only factor to decide the entitlement of the legal heirs to get compassionate appointment.

63. Infact in some of the cases the Hon’ble Madras High Court gave seniority to the candidates who secured compassionate appointment on par with direct recruitment candidates treating the compassionate appointment candidates as the candidates directly recruited and place them over and above promotes. In view of those decisions also the employer can easily and safely follow any of the above methods.

64. One constant and consistent factor which can even be said to be only one is the financial status of the family. It is that factor alone uniformly is being followed by the Courts. Hence if that alone is made as a criterion, the question of delay and the inconsistent views on other points would not arise at all in future and the scheme also would not be misused.
65. The Hon’ble Apex Court also would insist for the same as mentioned below:-

(C) It is not the delay but the financial status of the family must be the
deciding factor to achieve the object and uniformity:-

66. In some cases it was held that the financial position of the family has to be taken note of and in some cases it was presumed that the family definitely would be in sound position had it managed for many years without the compassionate appointment. Such a presumption on the ground of delay is dangerous and may lead to hostile discrimination as a family may still be in financial crisis even after several years and a family may financially be sound and get the benefit of benevolent scheme for compassionate appointment by making a claim in time.

67.Thus the rejection on the sole ground of delay may not only be discriminatory hit by Articles 14, 16, and 21 of the Constitution of India but also may lead to the entertainment of unjustifiable claim on the ground of timely application by a vigilant family of fine financial soundness and status.

68. Compassionate Appointment Scheme is a benevolent scheme as held by the Hon’ble Apex Court in Shreejith.L –Vs-.Deputy Director (Education), Kerala &Ors reported in (2012) 7 SCC 248 at para 24, page 256 and it is based on humanitarian grounds with the sole object to provide immediate relief to the employee’s family to tide over the sudden financial crisis as held in Bhavani Prasad Sankar –Vs- Union of India reported in (2011) 4 SCC 209.

69. Among all the decisions of the Hon’ble Apex Court, the decision in Umesh Kumar Nappal –Vs- State of Haryana reported in (1994) 4 SCC 138 is more appropriate to be referred to which clearly mandates the need and necessity for compassionate appointment. Though para 2 at page No.140 of that decision is reproduced even in the first 3 pages of the report, it is unavoidable to reproduce the following lines from what is already reproduced to insist that it is the financial condition which alone can be the deciding factor for compassionate appointment.

“………The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and only if it is satisfied, that but for the provision of employment, there family will not be able to meet the crises that a job is to be offered to the elite member of the family. The posts in class III and Class IV are the toughest post in non manual and manual categories and hence they alone can be offered on Compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency………….”

70. Thus from the above decisions it is clear that the financial status of the family alone has to be seen to offer compassionate appointment to any of the members of the family of the deceased employee to avoid any discrimination and overcome the question of delay as even after several years when the minor becomes major the family may still continue to suffer from the financial crisis and the legal heir applied for compassionate appointment in time may be financially sound and inspite of their financial soundness the legal heir may get compassionate appointment. In such cases the offer of compassionate appointment becomes another source of employment defeating the very object for which it is aimed at.

71. With a view to balance both, namely, the rejection of claim for compassionate appointment on the ground of delay inspite of the continuous indigent circumstance of the family by observing that the family of the deceased pulled on for so many years and hence it would get along further also and the entertainment of the claim made in time inspite of their sound financial position is to adopt the financial status of the family to balance both and get the object achieved.

72. The Certificate for the financial status should be allowed to be issued by the Lok Adalat on receipt of the application from the family of the deceased after enquiring the Village Administrative Officer and the Tahsildar of the concerned locality.

73. If it is found that the family irrespective of the delay still continues to be suffering from the financial crisis, the compassionate appointment can be directed to be provided to the legal heirs of the deceased employee and if not it can be ordered to be rejected.

74. While issuing the financial status certificate by the Lok Adalat, the receipt of terminal benefits by the family [(after 31.3.03, there is no question of any terminal benefits or pensionary benefits for the employee who join service after 31.3.03)] or the employment of the brother leading a separate family or the employment of the married daughter or any other member cannot be taken into consideration to deny compassionate appointment and the only condition is the possession of independent assets and the income derived from that by the family alone can be the grounds for the rejection of claim for compassionate appointment.

75. SUGGESTIONS IN BRIEF IN THE LIGHT OF THE ABOVE DISCUSSION:-

1) To sum up the compassionate appointment no doubt is held to be an exception to Articles 14, 16 and 21 of the Constitution of India but not in the sense that it is a back door appointment or undue advantage given in favor of a particular individual but it is an exception provided to achieve the Nobel object of saving a family of the deceased Government Servant who is presumed to have rendered a Honest, Sincere and Meritorious service for the public and faced unfortunate death in the mid way. Such a Nobel object can be achieved only by taking note of the financial status of the family suddenly faced and providing either employment or additional monetary benefits calculated in term of left over service of the deceased employee and not in any other manner.

2) As the Compassionate Appointment is not an alternative source of recruitment, it need not be provided to the family if the family is found to be financially sound and able to sustain. It is more or less a shelter provided to the family of the deceased under Article 21 of the Constitution of India for their livelihood and hence it does not automatically entitle the legal heir of the deceased to claim for the same and settle in life.

3) There cannot be any waiting list by the employer or postponement of compassionate appointment as the vacancy caused by the death has to be offered to the legal heir and if the post is superior then as suggested earlier the superior post can be filled up by promotion from the senior most feeder category candidate and the vacancy caused in the lowest post because of such promotion can be offered to the claimants.

4) If the above method is not willing to be followed, the direct recruitment vacancy for each year should be allotted to the compassionate appointment in preference to the direct recruitments.

5) It is the financial position of the family which alone is the only factor to be considered for compassionate appointment and not any other factor.

6) It is always advisable to provide the maximum time limit of 3 years from the date of death of the employee to apply for compassionate appointment subject to the condition that the family should live in indigent circumstance. In case of availability of minors/only,they can be given time to make an application within 3 years from the date of attainment of majority.

7) If no eligible legal heir is available 80% of the monetary benefits for the leftover service of the deceased Government servant can be paid to the family of the deceased, if the family is found to be in indigent circumstances and not able to tide over the sudden financial crisis.

8) If the employer is not willing to pay 50% to 80% of the monetary benefits without extraction of work, taking note of the left over service then 25% can be released immediately and thereafter appointment can be given to the minor legal heirs within 3 years from the date of attainment of majority in the light of the principles adopted behind Sec.3 of Hindu Minority and Guardianship Act 1956 protecting the right of the minor to restore their rights in the properties sold during their minority against their interest.

9) The Government of TamilNadu has passed a comprehensive order in G.O.(Ms).No.18, Labour and Employment ( Q1) Department dated 23.1.20 dealing with all the aspects and legal problems faced while dealing with the application for compassionate appointment. It is really a commendable job to deal with all the aspects of compassionate appointment and pass a comprehensive, order like G.O.(Ms).No.18 Labour and Employment ( Q1) Department dated 23.1.20. But at the same time , it is our duty to point out certain important gaps which remain unfilled by the Government of TamilNadu in G.O.(Ms).No.18, Labour and Employment (Q1) Department dated 23.01.2020 as detailed below one by one:-

Para 4 of the Government Order in G.O.(Ms).No.18, Labour and Employment (Q1) Department dated 23.01.2020 , speaks about the cause for passing the said order in the following words;-
“4. Almost similar instructions have been issued in respect of Compassionate Ground Appointment in the orders of Honourable High Court of Madras in W.P.No.26872 of 2018 and W.M.P.No.31213 of 2018 dated 09.04.2019 and W.P. Nos.31399 and 25806 of 2014 dated 16.04.2019 etc. Based on the above orders of the Honourable High Court the Government have examined the whole issue of compassionate ground appointment in detail and hereby issue the following comprehensive guidelines in supersession of all the earlier orders issued in the references 1 to 46 read above.”
Thus from para 4 quoted above , it is clear that nearly 46 government orders governing the compassionate appointment passed on various occasions by the Government of Tamil Nadu are declared to have been superseded by G.O.(Ms).No.18. None can contend that they would be affected by Para 4 of G.O.(Ms).No.18, as G.O.(Ms).No.18 is more beneficial to the claimants than all the earlier Government orders as it has almost filled all the gaps and provided relief to the claimants of the deceased family except the following gaps which are very important to be filled:- .

i) There is no provision providing the right of compassionate appointment to the minors after attaining majority though it was provided under the old scheme. Either atleast one year time if not 3 years from the date of attainment of majority of the minor should have been provided on satisfaction that the family of the deceased still is in indigent circumstances. It is to be noted that minor is given liberty to challenge any transfer of property within the period of 3 years from the date of attainment of majority under Article 60 Part (IV) of the Limitation Act. Hence , following the same atleast 3 years or 1 year time could have been given to them to claim for compassionate appointment , no doubt, subject to other general conditions, particularly , the financial status of the family on the date of such an application by a person after attaining the majority.

ii) Like that, sub clause (v)(a) heading called “Family to be in indigent circumstances to be eligible under compassionate ground appointment” has to be clarified inview of the provisions under the headline called “Undertaking” of G.O.(Ms).No.18, Labour and Employment ( Q1) Department dated 23.1.20. While , sub clause ( v)(a) prohibits the consideration of a claimant for compassionate appointment incase of employment of any person of the deceased Government servant is in regular employment in Government/ private enterprises it has to be provided further that such a person who is in employment as above said , supports the family of the deceased and subject to the said condition , sub clause (v)(a) could be put against the claimant inview of the sufficient safeguards provided under the headline called “Undertaking”. Otherwise , the very object of the compassionate appointment would be defeated.

iii) Further ,under the procedure for processing applications , a clause can be added that the vacancy caused by the deceased , if not of the vacancy under C and D groups as mentioned in G.O.(Ms).No.18 it can be filled by promotion or transfer of service of the senior most eligible candidate to arrive at a vacancy in C or D group to provide the same immediately to the claimant without drawing the waiting list or causing any delay. If this simple procedure is followed , then there may not be any need for the waiting list or seniority in the waiting list in the name of sub clause (iii) (iv) (ix) and(xii).

Further , it is to be added that the direct recruitment vacancies in class D posts have to be allotted to the compassionate appointees at first and the remaining vacancies would be thrown for direct recruitment.

iv) With a view to overcome the cases from the persons after attaining majority , the compassionate appointment could be immediately provided to the spouse irrespective of the educational qualification to any class D posts or any basic service posts even by relaxing the minimum educational qualification with or without an undertaking that they would acquire such a minimum educational qualification within 3-5 years. If the spouse is not available , then the question of waiting for the claim from a candidate on attainment of majority would arise and for that as already stated by following the provisions under Article 60 of Chapter IV of the Limitation Act, the time limit of atleast 1 year or 3 years can be provided.

v) When any right conferred on the individuals whose claim for compassionate appointment was pending on the date of Government order in G.O.(Ms).No.18 Labour and Employment ( Q1) Department dated 23.1.20, such a claim can be considered only on the date of the legal position in existence on the date of death of the deceased as it is trite that the legal right or concession cannot be taken away with retrospective effect of a subsequent amendment of law.

10) The re-marriage of the spouse as provided in G.O.(Ms).No.18 dated 23.01.2020 definitely can be a good ground for the rejection of the claim for compassionate appointment.

11) Even the legal heirs of the second wife are entitled to the compassionate appointment in view of Sec.16 of the Hindu Succession Act, 1956 and they can be considered for appointment if no legal heir is available out of the first marriage.

12) In case of any dispute between the first wife and second wife to share the terminal benefits including the compassionate appointment, the minors of both the wives and the first wife are legally entitled to share and the compassionate appointment should be offered to the eligible legal heir of the first wife taking note of the financial status and if not the legal heir of the 2nd wife.

13) The issuance of the certificate for the financial position of the family of the deceased may be entrusted to Lok Adalat and the application filed by any legal heirs can be dealt with by them on priority basis by enquiry the village Administrative Officer, Tahsildar and the family of the deceased. The entire process has to be completed within 6 months from the date of the application. The certificate issued by the Lok Adalat should be the fundamental factor to offer Compassionate Appointment and achieve the real object behind the compassionate appointment.

The above suggestions are given to achieve the real object of Compassionate Appointment on the basis of the judgments of the Hon’ble Apex court and the Hon’ble High Court of Madras. Those suggestions and directions are not given against the judgment of the Hon’ble Apex Court and the Hon’ble High courts, but given to reconcile the views expressed by the courts on various aspects in various cases and achieve the real object behind the Compassionate Appointment and uniformity.

CONCLUSION:-
It is the financial position of the family which alone can be a ground for offering compassionate appointment and it is not only a substantial ground to offer or deny compassionate appointment to the family of the deceased but also to achieve uniformity. When the family is still is indigent circumstances, it is not probable to reject the claim on the ground of delay alone which is to due to the need for attainment of majority age or acquiring qualification in case of want of educational qualification for the spouse of the deceased or as discussed in detail, the educational qualification can be relaxed and the employment can be offered to the lowest cadre of basic service or the family can be compensated with money on the basis of the left out service of the deceased. The competent authority shall take note of all the above inconsistencies and do the needful for achieving the object behind Compassionate Appointment on the basis of the financial status of the deceased family irrespective of the time lag.


IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)

Batch of Writ Petitions on
Compassionate Appointment

WRITTEN BRIEF BY THE
AMICUS CURIAE

R. Singaravelan
(Designated Senior Counsel)
Amicus Curiae

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