E VEERALAKSHMI Vs. DIRECTOR OF SCHOOL EDUCATION

JUDGEMENT

(1.) PRAYER in the writ petition is to call for the records relating to the order in Na. Ka. No. 68604/j1/2001, dated 7. 3. 2003 passed by the first respondent, quash the same and further direct the respondents to consider the petitioner's name for compassionate appointment for the post of Junior assistant.

(2.) THE brief facts as could be seen from the affidavit are as follows. (a) Petitioner is the youngest daughter of one V. Elumalai, who was working as Assistant Teacher in the Singavaram Primary School, keelpennathur Union, Tiruvannamalai District. THE said v. Elumalai died in harness on 21. 12. 1981, leaving behind his wife and five daughters and the petitioner is the fifth daughter. On the date of filing the original application before the Tribunal, the age of the petitioner was stated to be 23 years. (b) Petitioner made a representation before the third respondent for compassionate appointment in the prescribed form along with necessary certificates. THE third respondent, considering the family circumstances of the petitioner, wrote to his higher authority, the first respondent herein, seeking necessary instructions in petitioner's case. THE grievance of the petitioner is that the first respondent, without considering the plight of the petitioner and her mother, straight away passed an order stating that at the time of death of petitioner's father, there were eligible dependants in the family and that there is no rule to provide compassionate appointment to the youngest daughter of the deceased, the petitioner herein. (c) Against that order, petitioner approached the tribunal by filing O. A. No. 3706 of 2001 and the Tribunal, by order dated 16. 7. 2001, directed the respondents therein to consider the petitioner's request for compassionate appointment, in case she is found to be eligible and if her request comes within the rules of the scheme, within a period of six months from the date of receipt of that order. As no order was passed within the stipulated time, petitioner filed contempt application No. 345 of 2002 and in the course of hearing of the contempt application, the order impugned in this petition dated 7. 3. 2003 was produced, which states that the request for the compassionate appointment of the petitioner, 18 years after the death of her father, is unable to be accepted as it is not proved that the petitioner's family is in indigent circumstances, and that the rules for compassionate appointment are not satisfied

(3.) THE Honourable Supreme Court dealt with this issue in a number of decisions. (a) In (1994) 4 SCC 138 (Umesh Kumar Nagpal v. State of haryana), the Honourable Supreme Court held that, "the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. THE object is not to give a member of such family a post much less a post for the post held by the deceased. " (b) In (1996) 1 SCC 301 (Jagdish Prasad v. State of bihar), in paragraph 3, the Apex Court held thus, "it is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that, therefore, the court is required to examine whether the appointment should be made on compassionate grounds. We are afraid, we cannot accede to the contention. THE very object of appointment of a dependant of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependant of a deceased government servant which cannot be encouraged, de hors the recruitment rules. " (c) In a subsequent decision reported in (2003) 7 SCC 511 (State of Manipur v. Md. Rajaodin), while dealing with the effect of long delay in applying for compassionate appointment, the Apex Court in paragraphs 11 and 12 held as under, "11. . . . THE purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the breadwinner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. THE fact that the ward was a minor at the time of death of his father is no ground, unless the Scheme itself envisages specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. THE above view was reiterated in Phoolwati v. Union of India (1991 Supp (2) SCC 689 and union of India v. Bhagwan Singh ( (1995) 6 SCC 476 ). In Director of Education (Secondary) v. Pushpendra Kumar ( (1998)5 SCC 192) it was observed that in the 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. . . . 12. In State of U. P. v. Paras Nath ( (1998) 2 SCC 412) it was held that the purpose of providing employment to the dependant of a government servant dying in harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are rules providing for such appointments. None of these considerations can operate when the application is made after a long period of time. In that case also the delay was of 17 years. " (d) (2003) 9 SCC 247 (Director, Defence Metal Research laboratory v. G. Murali), was a case where the writ petitioner's request for compassionate appointment after eighteen years was negatived by the Central administrative Tribunal on the ground that the family of the writ petitioner has been managing somehow for the last 18 years and as such the case is not covered under the existing instructions issued by the Government. THE said order of the Tribunal was challenged before the High Court of Andhra Pradesh, which set aside the order of the Tribunal stating that the Tribunal has not appreciated the fact that the writ petitioner was aged two years at the time of the death of his father and that the application for compassionate appointment had been made upon the attainment of majority by the writ petitioner. High court further went on to state that any refusal, even on the ground of non-availability of posts, was not an excuse and a post had to be created, if not available. In such circumstances, the Apex Court at paragraph 4 observed as under, "we do not find any flimsy ground or technicalities in the Tribunal's order. In fact, we find the High Court's order to be unsustainable. THEre has been a failure to appreciate what the Tribunal had rightly taken into account, namely, that the writ petitioner and his family had coped without the compassionate appointment for about eighteen years. THEre was no warrant in such circumstances for directing the writ petitioner's appointment on compassionate grounds and that too with the direction to the respondents to the writ petition to create a post to accommodate him. "