Child can apply for Compassionate Employment after becoming Adult/Major!

When a person cannot be employed in government services before the completion of 18 years, he could not make an application seeking appointment during his period of minority. Once a judgment had attained finality on a particular similar issue it could not be termed as wrong and its benefit ought to be extended to other similarly placed persons.

When a Government Order is issued the same ought to be followed by the Board and I t cannot pick and choose the circumstances as to when the Government Orders will be followed.

{A} The employee was employed with Tamil Nadu Electricity Board.

He died in harness (while in service) leaving behind his mother, wife, minor son, minor daughter. His wife applied for employment of compassionate basis that was rejected stating that she does not possess required qualification, without considering the indigent circumstances of the family. She submitted many applications that were rejected stating that she does not possess required qualification.

His son became of age 18 years and became major/attained adulthood.

The application for compassionate employment/appointment for son was also rejected stating that he was not major and did not apply within 3 years of death of employee (his father).

Madras High Court; Madurai Bench after examining the Rules/Scheme of Compassionate Appointment of establishment and plethora of judgments of including by Divisional bench of Madras High Court, Supreme Court of India ruled that:

'Widow of the deceased has submitted the application within time and the application seeking appointment for the petitioner (Son) was submitted within 3 years after attaining majority. Nothing is brought before this Court to show that the family is not in indigent, the widow of the deceased must have appointed on compassionate grounds in some job based on her qualification…..

When a person cannot be employed in government services before the completion of 18 years, he could not make an application seeking appointment during his period of minority. Therefore the period of three years for a minor son/daughter can commence only after he/she attains majority. Therefore, for all the reasons stated above, the application made on behalf of the son cannot be treated as time barred.

Establishment shall pass order appointing the petitioner in any suitable post within two weeks…”

When the widow applied for appointment on compassionate ground, within 3 years of death of her husband, and due to bar of age etc., when she could not be appointed and the request for appointment has been followed by her son/daughter, who have then not attained majority and subsequently, applied within three years of their attaining majority, the request could be considered as continuation of their mother's application and the application given by him/her during the minority also could be considered as continuation of such earlier application and it cannot be denied on the ground that the application has been presented beyond 3 years of death of the father.

The High Court made a scathing remark: we find that the respondent had failed to adopt Good Samaritan approach ignoring the fact that she was constantly making a request for appointment to the suitable post, even if it is the lowest in the cadre, as early as from 15.11.2000 i.e. within 13 months from the date of death of her husband, which has not been dealt with in proper perspective as observed above.

{B} Appointments on compassionate grounds relate to the appointments made of dependents of Employees who lose their lives in the course of duty or become so crippled that they cannot perform any job or die in harness while in service or develop serious medical ailments and are medically incapacitated or de-categorized.

The whole object of granting compassionate employment is thus considering the fact;

- That the employee dying in harness leaves his family in penury and without any means of livelihood.  And thus to;
- Enable the family to tide over the sudden crisis.

In such cases, out of pure humanitarian grounds considering the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the service rules to provide gainful employment to one of the dependants of the deceased.

The circumstances in which appointments on compassionate grounds can be made may vary from establishment to establishment per rules of establishment and usually are;

- Indigent circumstances of the family that deserves immediate assistance for relief from financial destitution.
- Applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules.

Some establishment may have provision in the applicable rules that the dependent child can apply after becoming major e.g. RBI had.

And other Rules describing e.g.

TO WHOM APPLICABLE, Dependent Family Member, AUTHORITY COMPETENT TO MAKE COMPASSIONATE APPOINTMENT, POSTS TO WHICH SUCH APPOINTMENTS CAN BE MADE, ELIGIBILITY, EXEMPTIONS, RELAXATIONS, DETERMINATION/AVAILABILITY OF VACANCIES, BELATED REQUESTS FOR COMPASSIONATE APPOINTMENT, WHERE THERE IS AN EARNING MEMBER, PROCEDURE, REQUEST FOR CHANGE IN POST/PERSON,

And even IMPORTANT COURT JUDGEMENTS that have been given effect and rules have been modified accordingly.

e.g. Scheme of Compassionate Appointment published by:

M/o Personnel, PG and Pensions, D/o Personnel & Training Establishment
Or TAMIL NADU GOVERNMENT SERVANTS (CONDITIONS OF SERVICE) ACT, 2016.

Since: When a Government Order is issued the same ought to be followed by the establishment and IT cannot pick and choose the circumstances as to when the Government Orders will be followed !

So the concerned official is under obligation to take care and must ensure that the court judgments are given effect in schemes and rules of the establishment and relevant order is issued and followed by the establishment.

{C} The learned Judge in Honorable high Court provided relief by the well illustrated judgment to the family of deceased employee:

6. In support of his contentions, the learned Counsel for the petitioner relied on the following decisions:

(i) Superintending Engineer, Madurai Electricity Distribution Circle v. V.Jaya reported in (2007) 6 MLJ 1011.
(ii) J.Jeba Mary v. The Chairman, Tamil Nadu Electricity Board reported in 2011 (3) LLN 405 (Mad.).
(iii) P.Sathiaraman v. Secretary to Government reported in (2013) 8 MLJ

190.

(i) Life Insurance Corporation of India v. Asha Ramachandra Ambedkar reported in AIR 1994 SC 2148;
(ii) The judgment of this Court in The Chairman v. Tmty.Arayee [W.A.No.773 of 2003, decided on 20.12.2007]; and
(iii) The order of this Court in S.Karthikeyan v. The Tamil Nadu Electricity Board [W.P.No.2625 of 2007, decided on 13.03.2013].

8. I have considered the rival submissions and perused the materials available on record.

10. In the judgment in Life Insurance Corporation of India v. Asha Ramachandra Ambedkar reported in AIR 1994 SC 2148, the Hon'ble Apex Court has set aside the order of the High Court on the ground that the Court cannot directly grant appointment to an applicant and compassionate appointments must be within the scope of law.

11. The Division Bench of this Court in The Chairman v. Tmty.Arayee [W.A.No.773 of 2003, decided on 20.12.2007] has considered the above judgment and rejected the application of the daughter of a deceased employee on the ground that two of her brothers were already employed with the Board.

12. The order of this Court in S.Karthikeyan v. The Tamil Nadu Electricity Board [W.P.No.2625 of 2007, decided on 13.03.2013], is on the ground that the application was not made in time.

13. Upon perusal, this Court is of the view that the above judgments cannot be made squarely applicable to the facts of the present case. Even in the judgment relied upon by the learned Counsel for the respondents in The Chairman v. Tmty.Arayee [W.A.No.773 of 2003, decided on 20.12.2007], the Hon'ble Division Bench in para 13 held as follows:

"13. The impugned order of the second appellant dated 22.12.2000 contains two grounds for the rejection of the claim of the respondent/writ petitioner seeking employment for her daughter Saraswathi on compassionate grounds. They are:

1) At the time of the death of the board employee P.Kandasamy, the family was not in indigent circumstances as the two sons of the deceased employee were employed in Tamil Nadu Electricity Board even on the date of death of the deceased board employee; and (2) The daughter of the respondent herein namely Saraswathi was not educationally qualified to be given employment in any category in the board as she had not even completed fifth standard.

Out of the two reasons, assigned by the second appellant/second respondent in his impugned order, the second ground is not a sound one.

The fact that the members of the family are illiterate will be one of the factors showing the indigent circumstances in which the family is placed.

But in para 5 of the G.O.Ms.No.155 Labour & Employment Department dated16.07.1993 which has been adopted by the board proceedings dated 02.11.93, it has been provided that if the widow of the employee is educationally not qualified or not eligible for appointment to a cadre post, she could be given a job like Sweeper. In the very same paragraph it has also been provided that married daughter who has been deserted by her husband and the widowed or divorced daughter living in the family of the deceased Board servant may also be considered if the widow of the deceased employee gives her consent in writing.

The ratio behind the order is squarely applicable to the facts of this case. Strangely, the respondent board has filed a counter affidavit to overcome the Government Orders granting relaxation by stating at paragraph 5, thus:

"(5) I submit that the contention that the Government order and subsequent clarification would be applicable to the petitioner cannot be accepted. As a matter of fact, the respondent Board being statutory corporate body, has framed rules and issued instructions with regard to compassionate appointment. Some of the orders of the Government have been followed and not all the orders passed by the Government were adopted but the respondent Board. In ther above circumstances the petitioner's contention that the orders of the Government and subsequent clarification letter should have been followed in his case is liable to be rejected as untenable."

When a Government Order is issued, the same ought to be followed by the respondent Board. It cannot pick and choose the circumstances as to when the Government Orders will be followed. Such an action would certainly hit by Articles 14 and 16 of the Constitution of India.

15. In yet another judgment relied upon by the learned Counsel for the petitioner in J.Jeba Mary v. The Chairman, Tamil Nadu Electricity Board reported in 2011 (3) LLN 405 (Mad.), wherein the facts are similar with this case, this Court has held as follows:

"12. (a) Similar issue as to whether an application seeking compassionate appointment can be rejected on the ground that the application was not submitted within three years from the date of death of the deceased employee and whether completion of 18 years within three years, is a mandatory requirement when earlier application submitted by other claimant is kept pending, was considered by this Court in the decision reported in T.Meer Ismail Ali v. The Tamil Nadu Electricity Board, 2004 (3) CTC 120 [F.M.Ibrahim Kalifullah,J (as he then was)].

This Court considering the technical plea raised by the respondent Board set aside the said order and remitted the matter to pass fresh orders without reference to the objections already raised by the Board. The said order of the learned single Judge was challenged by the TNEB in W.A.No.4008 of 2004 before the First Bench of this Court (consisting of the Hon'ble Mr.Justice Markandey Katju,C.J. (as he then was) and N.V.Balasubramanian,J.) dismissed the writ appeal on 1.12.2004. The respondents herein filed SLP No.6387 of 2005 against the said order which was also dismissed on 1.4.2005 by the Honourable Supreme Court and consequently the said writ petitioner was given compassionate appointment.

(c) In W.P.No.21512 of 2003 one Indiraniammal challenged the rejection of compassionate appointment on similar ground. The learned single Judge dismissed the writ petition by order dated 4.8.2003 against which the petitioner therein filed W.A.No.3050 of 2003 and the said writ appeal was allowed by the Division Bench (consisting of the Hon'ble Mr.Justice P.Sathasivam (as he then was) & S.K.Krishnan,J) by order dated 8.3.2005 following the earlier judgments as well as the Supreme Court Judgment reported in Balbir Kaur v. Steel Authority of India Ltd., (2000) 6 SCC 493. Against the said decision Civil Appeal No.2039 of 2006 was filed by the respondent Board herein which was dismissed by the Honourable Supreme Court on 30.3.2010.

(d) Dismissal of another W.P.No.775 of 2004 by order dated 29.1.2005 on the ground of delay was considered by the Division Bench (F.M.Ibrahim Kalifullah,J. (as he then was) & P.Murugesan,J) in W.A(MD).No.29 of 2006 and by order dated 27.6.2006 the Division Bench allowed the writ appeal and directed to give compassionate appointment to the younger son of the deceased Board employee, who died on 15.11.1996. The said order of the Division Bench was also challenged by the Board in SLP(C)No.15534 of 2007 which was also dismissed by the Apex Court on 8.4.2009.

(f) In W.P.No.18575 of 2006 I had an occasion to consider similar issue and allowed the writ petition on 20.6.2006 by following earlier orders. The said order was also challenged by the respondent in W.A.No.42 of 2007 and the Division Bench (D.Murugesan,J & K.Venkataraman,J) dismissed the writ appeal on 2.7.2009. The Board filed SLP(C)No.8305 of 2010 which was also dismissed by the Honourable Supreme Court on 6.7.2010. The said candidate viz., P.Venkatesan was given compassionate appointment by order dated 18.8.2010.

(g) Again similar matter was considered by me in W.P.No.29059 of 2003 and relief granted by order dated 7.7.2006, against which also the Board filed W.A.No.1652 of 2006. The said writ appeal was dismissed by Division Bench (D.Murugesan,J. & S.Nagamuthu,J.) on 30.3.2009.

(h) W.P(MD).No.1335 of 2006 was disposed of by me on 10.8.2006. The said order was also confirmed by the Division Bench (consisting of the Hon'ble Mr.Justice P.D.Dinakaran (as he then was) & P.R.Shivakumar,J.) in W.A.No.309 of 2007 on 8.8.2007 and the same is reported in Superintending Engineer, Madurai Electricity Distribution Circle v. V.Jaya, (2007) 6 MLJ 1011, and the said candidate viz., V.Jaya was given appointment order.

(i) Similar matter was again considered by me in W.P.No.4050 of 2006 and the said writ petition was allowed by order dated 29.6.2010 following the orders of the Division Bench and Supreme Court and the said judgment is reported in M.Uma v. Chief Engineer (Personnel), TNEB, Chennai, (2010) 7 MLJ 644. No appeal is filed against the said order.

The said Judgment of the Supreme Court was followed by the Division Bench of this Court (consisting of the Hon'ble Mr.Justice S.J.Mukhopadhaya & V.Dhanapalan,J.) in W.A.(MD)Nos.64 & 111 to 126 of 2007, Judgment dated 14.11.2008. In paragraphs 28 and 29 the Division Bench held thus: "28. In a recent decision of the Supreme Court in Maharaj Krishnan Bhatt v. State of Jammu and Kashmir, (2008) 9 SCC 24,, the issue regarding the extension of benefit to similarly situated persons was dealt with and thoughthe proposition of law was accepted that wrong decision in one case could not be extended to others, on facts, it was held that once a judgment had attained finality, it could not be termed as wrong and its benefit should be extended to other similarly situated persons.

From the analysis of the judgments cited above, it is beyond doubt and clear that once the point is decided in favour of a group of persons, there is no further point in waiting for each and every person to file petition and pray for the same relief. As held by the Honourable Supreme Court, the benefit of the judgment is equally applicable to similarly placed persons to do complete and substantial justice.

17. Applying the above referred judgments to the facts of this case the impugned order is set aside with direction to the respondents to consider the claim of the petitioner treating the application submitted by the petitioner on 11.4.2005 as a continuation of application submitted by the petitioner's mother on 31.7.1992 in the light of the income certificate issued by the Tahsildar, Vilavancodu, dated 15.3.2005 and pass fresh orders, within a period of four weeks from the date of receipt of copy of this order, without reference to the objections raised in the impugned order."

12. By relying upon various decisions of Division Bench and the Hon'ble Supreme Court, the very same issue has been dealt with elaborately by one of us (N.Paul Vasanthakumar, J.) in the following cases :

1. Mohanambal v. Director, Land and Survey Department (supra).
2. J.Jeba Mary v. The Chairman, Tamil Nadu Electricity Board, (supra)
3. G.Saravanakumar v. The Chairman, Tamil Nadu Electricity Board, Chennai, 2011 (2) CWC 83 : LNIND 2011 MAD 1961.
4. R.Prasath v. The Secretary, Labour And Employment Dept., Chennai, W.P.No.3078 of 2006, dated 17.06.2010.
5. M.Uma v. The Chief Engineer (Personnel) Chennai, W.P(MD)No.4050 of 2006, dated 29.06.2010.

After analyzing the above said case laws, it was held that within 3 years of death of her husband, when the widow applied for appointment on compassionate ground, and due to bar of age etc., when she could not be appointed and the request for appointment has been followed by her son/daughter, who have then not attained majority and subsequently, applied within three years of their attaining majority, the request could be considered as continuation of their mother's application and the application given by him/her during the minority also could be considered as continuation of such earlier application and it cannot be denied on the ground that the application has been presented beyond 3 years of death of the father. It is not the case of the respondents that the family of the appellant is not in indigent status as on today.

19. In the result, this writ petition is allowed and the impugned proceedings of the respondent dated 31.01.2011 is set aside. The petitioner is directed to produce a certificate from the competent authority to the effect that his family is in indigent circumstance as on today, within four weeks and submit the same before second respondent and on receipt of the same, the second respondent shall pass order appointing the petitioner in any suitable post within two weeks therefrom.

Madras High Court
S.Nagarajan vs. The Superintending Engineer

{D} The family of deceased employee, without any hesitation must as early as possible get in touch with competent and experienced well wishers, seasoned Employee's/Trade Union leaders, very able LOCAL senior counsels specializing in Labor/Service matters having successful track record in such matters and submit application for Compassionate Employment under proper acknowledgment to the concerned authority and escalate to higher and highest authority under proper acknowledgment.

The family of deceased employee must download the versions of applicable scheme/rules of Compassionate Employment, search for relevant GO and judgments and prepare their case well.

The family of deceased employee must not get carried away by comments and remarks of self styled, ill informed IT's and Entities that loiter at various online portals to extract FEE for online consultations and instead approach a competent and experienced well wishers, seasoned Employee's/Trade Union leaders, very able LOCAL senior counsels specializing in Labor/Service matters having successful track record in such matters.

It shall be waste to get carried away by online advice of ill informed entities and slip over the opportunity without even trying.

The able counsel can relate with Scheme, Rules, surrounding facts, precedence's, case laws and provide much  needed guidance on merits in the case and support to fetch relief from authorities and if required from Courts of Law.

The courts of law are concerned and well aware of very purpose of scheme of Compassionate Employment that is to provide immediate assistance for relief from financial destitution.

 

Kumar Doab 
on 24 October 2017
Published in Labour & Service Law
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