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Appointment under compassionate ground (Labour & Service Law)

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Author : sudhirghabasu

Posted On 05 February 2012 at 00:12

dear learned panel of experts, my heart felt wishes to you.
my query is:- My client's deceased father was working in TNEB, he was died while in service. i.e. on 1998, at that time my client was a minor, so my client's mother had made an application for appointment under compassionate grounds during the year 1999. Subsquently on 2007 she was also died. Now my client had made an application before the concerned authorities for employment on commpassionate grounds. he had also made a representation in this regard to the board i.e. TNEB. But the board had rejected his application that The application made by him is in delay and hence no opportunity can be given.
My question is though there is a delay in giving the application by my client, my client's mother had given the application within the time period i.e., 3 years. Please help me with some citations. with regards.




Expert : Advocate. Arunagiri

Posted On 05 February 2012 at 07:09

What is the age of the son at the time of making his own application for compassionate appointment.



Expert : V R SHROFF

Posted On 05 February 2012 at 07:38

Your client may claim that earlier he was minor, and after the death of his mother, same compassionate appointment. be replaced by your client. Your client may claim that Limitation start on his become major.



Expert : Sudhir Kumar

Posted On 05 February 2012 at 07:53

Such jobs are given only out of 5% of Class III&IV posts (in direct recruitment quota) and comparative merit of the applicants is assessed. Remember reservation beyond 50% is not allowed as per Supreme Court guidelines. The Govt sector jobs are already reserved to the extent of 50% (15 SC+ 27 OBC + 7 ST). Therefore even that 5% is to be taken from the proportionately by vertical reservation from the respective share of Sc/ST/OBC/gen category posts depending upon the category of the applicant. That being the case the share if gen candidate is 5% of 50% = 2.5% out of total Class III&IV posts (in direct recruitment quota) , and OBC it is 5% of 27% = 1.25% out of total Class III&IV posts (in direct recruitment quota) , for SC 5% of 15% = .75% out of total Class III&IV posts (in direct recruitment quota) , and for ST it will be 5% of 7.5% = 38% out of total Class III&IV posts. No job can be offered beyond that limit even if the applicants are large number. The slots reserved for Handicapped, ex-servicemen and sports persons are also allocated in the same manner to ensure that horizontal reservation does not exceed 50%. So comparative merit is drawn based on the indignant condition of each family.



Death took place in 1998 and wife applied for compassionate job in 1999. She did not get and did not agitate also. It is clear that she had no sustainable claim she may hve lost the claim in comparative merit. Now application after 13 years by your client that too when earlier application of mother has been rejected is a matter worth not even the cost of stationary to be spent.



Compassionate appointment is a concession not a right. It is a concession to avoid the recruitment procedure and competition in order to give immediate relief to the family. It is not a buried treasure. Delay in application is more cruel than law of limitation.





Expert : Isaac Gabriel

Posted On 05 February 2012 at 08:34

In this case the rules will not permit.Yet,you can file a writ petition explaining the circumstances of the Administrative delay and the indigent circumstances of the family of the deceased Government employee.The limitation of three years from the date of death stands extended since the application of wife had been kept undecided till her death.



Expert : arvind

Posted On 05 February 2012 at 08:35

Sir I don't know about the state law /rules prevailed in your state-

There are following judgment of Uttarakhand HC in such regard-

Delay in making application for compassionate appointment was the petitioner’s minority at the time of his father’s death- After attaining majority he applied for appointment- could not be said belated- Authorities directed to condone delay- UTT-UAD-2009(1)-578.

UP recruitment of dependants of Govt. servants dying in Harness Rules 1974, Rule 5- Application for compassionate appointment rejected on grounds of being delayed and was barred by limitation- petitioner being a minor at the time of his father’s death could not apply for compassionate appointment- State Govt. empowered to condone delay in such case, minority of petitioner sufficient reason to condone delay- Impugned order accordingly, set aside and the respondent directed to reconsider the matter in the light of observation of HC- UTT-UAD-2009(1)-614.



Expert : Advocate. Arunagiri

Posted On 05 February 2012 at 10:05

Mr.Arvind is very much right in his opinion.


That is why I asked the queriest to provide the age of the son at the time of making his own application.



Expert : prabhakar singh

Posted On 05 February 2012 at 11:44

Compassionate appointment is a concession not a right DEPENDING UPON THE RULES FRAMED .REPLY TO QUERY OF Advocate. Arunagiri .



Expert : Devajyoti Barman

Posted On 05 February 2012 at 12:07

The Compassionate ground depend on the liberty of the employer and not the right of the applicant.



Expert : Kirti Kar Tripathi

Posted On 05 February 2012 at 14:22

The fundamental principle for appointment under dying in Harness rules is just to cope with the sudden demise of bread earner of the family. This is special mode for appointment and nothing to with regular mode of appointment. If the the family service for a considerable period after the death of bread earner, the said family can not claim benefits of dying in Harness rules and the claim under such rule will be frustrated. The ground that the person claiming such appointment was minor at the time of death, has no relevance. Since the mother waited for a considerable period without raising her grievances in the appropriate forum she had forgiven her claim. Now the claimant can not fill that lacuna on the ground that at the time of death of his father he was minor and his mother, who claimed such benefit has died now.



Expert : ajay sethi

Posted On 05 February 2012 at 17:35

Court
HIGH COURT OF JUDICATURE AT ALLAHABAD




Brief
Appointment on compassionate grounds - cannot be claimed as a matter of right - can be claimed only in terms of the Rules or Regulations framed - should be immediately provided to a member of the family to redeem the sudden financial crisis in the family - it is not possible to accept the claim of the petitioner that he should be given appointment after a period of more than 10 years- no merit in this petition - accordingly, dismissed.




Citation
Civil Misc. Writ Petition No. 68169 of 2006, Allahaba HC, Dated:17-02-2009




Judgement
HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.27
Civil Misc. Writ Petition No. 68169 of 2006
Ram Chander alias Pappu
Vs.
State of U.P. & Ors.
*********
Hon. Dilip Gupta, J.
The petitioner and his younger brother Harish Chandra have both been claiming appointment on compassionate ground as their father died in harness on 19th December, 1998 while he was working as a Class IV employee in the Intermediate Education Board at Allahabad.
In the counter affidavit filed by the respondents it has been stated that since both the petitioner and his brother were claiming appointment their claim could not be considered. It is for this reason that the claim remained pending for all these 10 years even though they were asked to clarify. In the counter affidavit now filed by respondent No. 4 it has been stated that the brothers have compromised as a result of which compassionate appointment may be granted to the petitioner.
Learned Standing Counsel appearing for the respondents, however, contended that at this stage when more than 10 years have lapsed the claim for compassionate appointment cannot be considered as compassionate appointment is given to tide over the immediate difficulties which the family of the deceased may face.
I have carefully considered the submissions advanced by the learned counsel for the parties.
In order to appreciate the contentions advanced by the learned counsel for the parties it would first be appropriate to ascertain why compassionate appointment is provided to a member of the deceased employee.
The Supreme Court in Commissioner of Public Instructions & Ors. Vs. K.R. Vishwanath, 2005 AIR SCW 4102, dealt at length with the object regarding compassionate ground and observed:-
"As was observed in State of Haryana and Ors. v. Rani Devi & Anr. (AIR 1996 SC 2445), it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in-harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased-employee. In Rani Devi's case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of India v. Asha Ramachandra Ambekar (Mrs.) and Anr. (1994 (2) SCC 718), it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. (1994 (4) SCC 138), that as a rule in public service appointment should be made strictly on the basis of open invitation of application and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased."

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

In Umesh Kumar Nagpal Vs. State of Haryana & Ors. reported in (1994) 4 SCC 138 the Supreme Court observed:-

"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 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 eligible member of the family. The posts in Classes III and IV are the lowest posts 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 destination and to help it get over the emergency..................For these very reasons, the compassionate employment cannot be granted after a lapse of reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over." (emphasis supplied)

The aforesaid decisions of the Supreme Court leave no manner of doubt that though the claim for appointment on compassionate grounds cannot be upheld on the touchstone of Article 14 or 16 of the Constitution but such a claim can be considered to be reasonable and permissible on the basis of sudden crisis occurring in the family of the employee who dies while in service. The appointment on compassionate grounds, therefore, cannot be claimed as a matter of right but can be claimed only in terms of the Rules or Regulations framed in this regard and that the Courts cannot confer ''benediction impelled by sympathetic consideration' dehors the Rules. Such an appointment, therefore, should be immediately provided to a member of the family to redeem the sudden financial crisis in the family.
Thus, in view of the aforesaid, it is not possible to accept the claim of the petitioner that he should be given appointment after a period of more than 10 years.
There is, therefore, no merit in this petition. It is, accordingly, dismissed.
Date: 17.2.2009
NSC






Expert : Isaac Gabriel

Posted On 06 February 2012 at 11:23

See the link.You have bright chances to succeed if writ is filed.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:21.07.2010

CORAM

THE HONOURABLE MR. JUSTICE T.RAJA

W.P.No.42398 of 2006 (T)
O.A.No.7898 of 1999


P.Muthulingam ... Petitioner

Vs.

1.Chief Engineer,
Highway Rural Works,
Chepauk,
Chennai  600 002.

2.Superintendent Engineer,
Highway Rural Works,
T.V.S. Tolgate,
Trichy  620 020.

3.Divisional Engineer,
Highway Rural Works,
T.V.S. Tolgate,
Trichy  620 020.
... Respondents

PRAYER: Writ Petition came to be numbered by transfer of O.A.No.7898 of 1999 on the file of the Tamil Nadu Administrative Tribunal praying to quash the order in No.Ku.No.13346/96/A2, dated 25.08.99 passed by the 2nd respondent and to direct the respondents to consider the appointment under the compassionate ground in the post of Record Clerk suitable to his qualification.

For Petitioner :Mr.K.Sannjay
For Respondents :Mr.S.Gopinathan, AGP

ORDER
The petitioner has filed the original application seeking for appointment on compassionate ground, which was rejected on the ground that it was filed belatedly.

2. Admittedly, the petitioner's father died on 06.07.79, by that time, the petitioner, unfortunately, was only 3 years old. Therefore, naturally, the petitioner could not make his application, since he is entitled for appointment only on reaching the majority. However, immediately, on attaining the majority on 06.12.94, the petitioner submitted his application requesting to consider his appointment on compassionate ground, as his father died on 06.07.79. But, the respondents rejected the application made by the petitioner. Aggrieved by the said order, the petitioner has filed the present writ petition.

3. Learned counsel appearing for the petitioner submitted that the rejection of the petitioner on the ground that the application was filed belatedly, is totally unsustainable, in view of the fact that the respondents have considered several appointments of 29 person with huge delays, particularly, in some cases, the respondents have entertained the applications filed with delay of 17 years as well.

4. However, when the matter was argued, learned counsel appearing for the respondents brought to the notice of the Court, a communication written by the respondent in letter No.34, dated 16.04.2002. As per the above said letter, the respondent has taken a policy decision not to appoint any children born out of void marriage on compassionate ground. Since the petitioner, admittedly, a son of second wife of the deceased employee, learned counsel appearing for the petitioner also brought to the notice of this Court, a judgment of this Court reported in (2009) 1 MLJ 54, wherein it has been held as follows:-
"5. Law is well settled that even if the second marriage of the petitioner's father is void, as per the Hindu Marriages Act, the children born through such void marriage cannot be held to be illegitimate. In the factual situation here, the 1st respondent itself has admitted that in respect of the pension and DCRG, which are property rights, the petitioner is conferred such right by treating him as legal heir of the erstwhile employee of the 1st respondent. In such circumstances, the strange conclusion by the 1st respondent that the petitioner would not be entitled for compassionate appointment simply because his father has married the second wife which is a void marriage. Such reason is absolutely not sustainable."

Further, learned counsel appearing for the petitioner has brought to the notice of this Court, a judgment of Division Bench of this Court reported in (2008) 5 MLJ 795, wherein paragraph 27 made clear that the eligibility criteria prescribed to get employment assistance to families of the deceased Government Servants would make clear that the dependants of the deceased Government Servant include the son and it does not denote whether the son should be a legitimate or illegitimate son of the parents. The above said Division Bench judgment of this Court holds that the children born out of irregular marriage is also entitled to claim the benefit of their parents, which includes even the benefit of compassionate ground as well.

5. That apart, the respondents have considered 29 similarly placed persons with a delay of 12 years and in some cases 17 years of delay, while entertaining the application seeking appointment on compassionate ground.

Therefore, this Court, having seen the records produced by the petitioner from the office of the respondents as well as taking note of the judgments referred supra, directs the respondents to consider the case of the petitioner without reference to the delay as well as letter No.34, dated 16.04.2002 and such order should be passed by the 1st respondent within a period of 2 months from the date of receipt of a copy of this order.

With the above direction, the writ petition is disposed of. No Costs.









rkm

To


1.Chief Engineer,
Highway Rural Works,
Chepauk,
Chennai  600 002.

2.Superintendent Engineer,
Highway Rural Works,
T.V.S. Tolgate,
Trichy  620 020.

3.Divisional Engineer,
Highway Rural Works,
T.V.S. Tolgate,
Trichy 620 020


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