THE METAPHYSICS OF COMPASSIONATE APPOINTMENT : PART : XLIV

SOME REFLECTIONS IN INDUSTRIAL AND SERVICE JURISPRUDENCE : THE METAPHYSICS OF COMPASSIONATE APPOINTMENT : WHAT DID THE HON'BLE SUPREME COURT SAY ? : AN APEX JUDICIAL DICTUM : PART- XLIV 

AJAYA KUMAR SAMANTARAY,DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),DHANBAD : 826003

PRELUDE : In this case, an appeal by special leave was directed against the judgment passed by a Division Bench of the Madras High Court. By the judgment and order coming under appeal, the High Court directed the appellants to provide appointment to the respondent under the scheme of "compassionate appointments" for the death of his father while he was in service. The High Court further asked the appellants to comply with the direction within three months from the date of the order. Aggrieved by the judgment and order of then learned Division Bench, the Department moved the Hon'ble Supreme Court by filing a special leave petition. Let us see as to how the case was dealt with.

THE CASE-LAW :

LOCAL ADMINISTRATION DEPARTMENT vrs M. SELVANAYAGAM @ KUMARAVELU [2011 AIR SCW 2198 = (2011) 13 SCC 42]DoJ : 5 April, 2011

FACTS OF THE CASE :

       One, Shri M Selvanayagm's father Meenakshisundaram worked as a Watchman in Karaikal Municipality. He died on November 22, 1988, after putting in 4 years 3 months and 25 days of service. He left behind a widowed wife and two sons, including the respondent who was 11 years old at that time. The wife of the deceased, whose age at the time of the death of her husband was 39 years, did not make any request for her appointment on compassionate grounds.

 After about five and a half years of his father's death, the respondent passed the S.S.L.C. examination in April, 1993 and then, for the first time on July, 29, 1993, the respondent's mother made an application for his appointment on compassionate grounds. No action was possible on this application since the respondent was still a minor. Later on, another application was made for his appointment on compassionate grounds after 7 years and 6 months of the death of his father.

WRIT PETITION TO THE HIGH COURT :

      Failing to get a favourable response to his application, he filed a Writ Petition before the High Court seeking appropriate directions to the concerned authorities. That Writ Petition was disposed of by a single Judge of the High Court with a direction to the authorities to consider his claim for appointment on compassionate grounds afresh and pass an order on his application within four months from the date of receipt of that order.

This order (first in the series) passed by the High Court was followed by a contempt proceeding initiated against the authorities at the instance of the respondent but that is not relevant for the present.

SECOND WRIT PETITION TO THE HIGH COURT :

      Suffice to note that eventually, the Municipality rejected the respondent's claim for compassionate appointment vide order dated 19th April 2000. He once again approached the High Court. A single Judge of the High Court, this time, rejected the Writ Petition.

WRIT APPEAL TO THE HIGH COURT :

      Against the order passed by the single Judge, he filed an intra-court appeal which was allowed by judgment and order dated April 30, 2004, and the Municipality was given the direction to appoint the respondent within three months from the date of the order.

SPECIAL LEAVE PETITION TO THE SUPREME COURT :

      Having felt aggrieved by the judgment of the Division Bench, the Department filed a special leave petition in the Hon'ble Supreme Court which on grant of special leave, became civil appeal no.2206 o0fm 2006.

REFERENCE TO THE ORDER REJECTING THE CLAIM FOR COMPASSIOANTE APPOINTMENT :

       In the order dated April 19, 2000, two reasons were assigned for rejecting the respondent's claim for appointment on compassionate basis :

1.  On the death of Meenakshisundaram, his wife, the mother of the respondent did not make any request for appointment and this showed that the demise of the concerned employee had not caused a very serious financial crisis in the family. In this connection it was also stated that in case on the death of Meenakshisundaram, his wife had made a request for appointment on compassionate grounds, her application might have been considered giving her relaxation of age and academic qualification.

2.Following the death of Meenakshisundaram, the family was given Rs.26,674/- as terminal benefits besides family pension to the widow.

Thus, the dependents of the deceased employee were not left completely without any financial resources.

REJECTION OF THE SECOND REASON BY THE HIGH COURT :

       The second reason given for not accepting the respondent's claim was rejected outright by the Division Bench relying upon a decision of the Apex Court in Balbir Kaur and another vrs Steel Authority of India Ltd. and others, AIR 2000 SC 1596. On this score, the Hon'ble Apex Court stated, the decision of the High Court cannot be faulted. But the Division Bench also disapproved the first reason assigned for rejecting the respondent's claim. It accepted the respondent's explanation for her mother not applying for a job on the death of his father and held that could not be a ground for denying appointment to him on compassionate basis. In this connection, the Division bench said:

"So far as the first reasoning is concerned, at the time of death of father of the petitioner, the petitioner was just 11 years old. In the S.S.L.C., examination conducted in April, 1993, he came out successfully and made an application on 12-7-1993 for compassionate appointment. Thereafter, number of representations were sent to the Karaikal Municipality and this Court finds in one such representation dated 13-9-1996 (as found in the file produced by the Municipality), it has been stated as under, "My mother could not immediately seek for self-employment, as she was suffering from anaemia and hypo tension. Though my family was really in harness (sic distress), my mother managed to maintain the family with the help of her pension amount and that of her earnings from attending menial works from house to house."

This claim was made in fact three years prior to the filing of the first writ petition. In the affidavit filed in support of the present writ petition also in paragraph 2, a specific mention about this has been made. If that is so, obviously that was the reason as to why she did not apply for the job immediately after the death of her husband in the municipality, that is, due to bad health. In these circumstances, this Court does not find any substance in the first reasoning as well that the failure on the part of the mother of the appellant to apply immediately for appointment relaxing the relevant rules would show that the family was not in difficulties.

VIEWS OF THE SUPREME COURT ON WIFE'S NOT SEEKING COMPASSIONATE APPOINTMENT :

       The Hon'ble Supreme Court was of the view that the explanation given for the wife of the deceased not asking for employment was an after-thought and completely unacceptable. A person suffering from anaemia and low blood pressure will always greatly prefer the security and certainty of a regular job in the municipality which would be far more lucrative and far less taxing than doing menial work from house to house in an unorganised way. But, apart from this, there is a far more basic flaw in the view taken by the Division Bench in that it is completely divorced from the object and purpose of the scheme of compassionate appointments. It has been said a number of times earlier but it needs to be recalled here that under the scheme of compassionate appointment, in case of an employee dying in harness one of his eligible dependents is given a job with the sole objective to provide immediate succour to the family which may suddenly find itself in dire straits as a result of the death of the bread winner. An appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependents and the financial deprivation caused to the dependents as a result of his death, simply because the claimant happened to be one of the dependents of the deceased employee would be directly in conflict with Articles 14 and 16 of the Constitution and hence, quite bad and illegal. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind.

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

THE CONCLUSION :

       In this case the respondent was only 11 years old at the time of the death of his father. The first application for his appointment was made on July 2, 1993, even while he was a minor. Another application was made on his behalf on attaining majority after 7 years and 6 months of his father's death. In such a case, the appointment cannot be said to subserve the basic object and purpose of the scheme. It would rather appear that on attaining majority he staked his claim on the basis that his father was an employee of the Municipality and he had died while in service. In the facts of the case, the municipal authorities were clearly right in holding that with whatever difficulty, the family of Meenakshisundaram had been able to tide over the first impact of his death. That being the position, the case of the respondent did not come under the scheme of compassionate appointments.

THE VERDICT :

 In light of the discussions made above,

1.The appeal filed by the Department was allowed. .

2.The judgment of the Division Bench was set aside.

No order as to costs.