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Article 226 in The Constitution Of India 1949

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Madras High Court
A.Anitha Viji vs The Secretary on 3 August, 2012

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 3.8.2012

CORAM

THE HONOURABLE MR.JUSTICE M.JAICHANDREN

W.P.No.29086 of 2011

A.Anitha Viji .. Petitioner

Versus

1. The Secretary

School Education Department

Fort St.George, Chennai - 9

2. The Director of School Education Directorate School Education

College Road, Chennai  600 006

3. District Education Officer

District Educational Office

Dindugal .. Respondents

PRAYER: Petition filed under Article 226 of the Constitution of India, praying for a Writ of Mandamus directing the respondents to consider the case of the petitioner for appointment on compassionate grounds in anyone of the vacancies in the respondents' department at the earliest in the light of G.O.Ms.No.165, dated 30.8.2010 and dispose of the petitioner's representation dated 12.7.2011. For Petitioner : Mr.P.Ravi

For Respondents : Mr.S.Navaneethan

Addl.Govt.Pleader

O R D E R

Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing on behalf of the respondents.

2. It has been stated that, late N.A.Anthony, the father of the petitioner, had been employed, as a Pre -Vocational Instructor (Weaving Teacher), at the Panchayat Union Middle School, Sitharevu. She had a blemishless record of service, for more than 30 years. He had died, on 9.5.1994, while in service.

3. It has been further stated that the petitioner is the only daughter in the family, as none of the family members were in employment. She had applied before the third respondent, on 28.5.1994, for appointment on compassionate ground. She had submitted all the relevant documents, along with her application. On 6.10.1994, the third respondent had placed the petitioner at No.12 in the seniority list. However, due to the order passed by the Government of Tamil Nadu banning fresh recruitment, for nearly 7 years, the petitioner could not be appointed on compassionate ground, as prayed for by her. Thereafter, the third respondent had been issuing several communications, periodically, asking the petitioner to furnish several documents issued by the Revenue and Educational Authorities concerned. In the meantime, the petitioner had got married to an agricultural labourer. As the petitioner is the only legal heir of her father, having the necessary educational qualifications, she had made a further request to the third respondent to appoint her on compassionate ground, even though she is married, as per the Government Order, in G.O.Ms.No.165, Labour and Employment Department, dated 30.8.2010. The said Government Order permits the appointment of a married person, on compassionate ground, after obtaining an undertaking that she would take care of the needs of the dependent members of the family of the deceased employee. However, there has been no proper response from the respondents. In such circumstances, the petitioner has filed the present writ petition, before this Court, under Article 226 of the Constitution of India.

4. The learned counsel appearing on behalf of the petitioner had submitted that the petitioner has been making several representations, from the time of the death of her father, on 9.5.1994. Even though the petitioner was fully qualified to be employed on compassionate ground, no such order had been passed, by the respondents. However, there was prolonged delay in considering the request of the petitioner, for appointment on compassionate ground, due to the ban order issued by the Government of Tamil Nadu, banning fresh recruitment in the Government Employment. However, after the lifting of the ban, the petitioner had made several representations to the authorities concerned, including the third respondent, for being considered for appointment on compassionate ground. However, no such order had been passed granting appointment to the petitioner, even though she was fully qualified for such appointment. While so, the petitioner had got married and she had intimated the same to the third respondent.

5. The learned counsel appearing on behalf of the petitioner had further submitted that the petitioner had made further representations to the authorities concerned to consider the request for appointment on compassionate ground, in view of the Government Order, in G.O.Ms.No.165, Labour and Employment Department, dated 30.8.2010. However, there has no positive response from the respondents, till date.

6. The learned counsel appearing for the petitioner had relied on the following decision of a Division Bench of this Court, in U.ARULMOZHI Vs. THE DIRECTOR OF SCHOOL EDUCATION & OTHERS (2006-2-L.W.324) and the order of this Court, dated 18.7.2008, made in W.P.No.16461 of 2008, in support of his contentions.

7. No counter affidavit has been filed on behalf of the respondents.

8. In view of the submissions made by the learned counsels appearing for the petitioner, as well as the respondents, and on a perusal of the records available, and in view of the decisions cited supra, this Court is of the considered view that the claim of the petitioner, for appointment on compassionate ground, after more than 18 years from the date of the death of her father, who had died in harness, on 9.5.1994, cannot be sustained.

9. It is a settled position in law that a request for appointment on compassionate ground ought to be considered immediately following death of the breadwinner of the family, who had died in harness. Such appointments are made to alleviate the sufferings of the family in distress. Further, a number of conditions ought to be satisfied, by the person requesting for such appointment, as per the established Rules and Regulations and the guidelines issued by the Government concerned.

10. In a number of decisions, the Supreme Court had made it clear that the appointment on compassionate ground, which is an exception to the General Rules of recruitment, cannot be purely based on the sympathy factor. Further, such appointments ought not to be made, after a considerable lapse of time, even if the delay in making such appointments is not due to the claimant.

11. The decisions cited supra, relied on by the learned counsel appearing for the petitioner, cannot be said to be applicable to the present case.

12. The decision of the Division Bench of this Court, in U.ARULMOZHI Vs. THE DIRECTOR OF SCHOOL EDUCATION & OTHERS (2006-2-L.W.324), relates to an appointment made on compassionate ground, which was sought to be cancelled, subsequently, due to the alleged non-disclosure, by the person so appointed, the fact that she had been married at the time of granting of such appointment.

13. The order passed by the Division Bench of this Court in U.ARULMOZHI Vs. THE DIRECTOR OF SCHOOL EDUCATION & OTHERS (2006-2-L.W.324), had been followed in the order, dated 18.7.2008, made in W.P.No.16461 of 2008. However, in the present case, there has been a prolonged delay of more than 18 years in considering the claim of the petitioner for appointment on compassionate ground. Even though the explanation had been given that a substantial part of the delay was due to the ban imposed, by the Government of Tamil Nadu, in respect of fresh recruitments in the Government services, no convincing reasons are shown on behalf of the petitioner for filing the present writ petition, only in the year, 2011, when the father of the petitioner had died in harness, in the year, 1994.

14. Further, no vested right would be available to the petitioner, to make a demand for her appointment on compassionate ground, after a delay of more than 18 years from the date of the death of her father. In such view of the matter, this court finds it appropriate to pass an order dismissing the writ petition. Hence, the writ petition stands dismissed. No costs. Connected M.P.No.1 of 2011 is closed. 3.8.2012

Index:Yes/No

Internet:Yes/No

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To:

1. The Secretary

School Education Department

Fort St.George, Chennai - 9

2. The Director of School Education Directorate School Education

College Road, Chennai  600 006

3. District Education Officer

District Educational Office

Dindugal

M.JAICHANDREN,J.

lan

W.P.No.29086 of 2011

3.8.2012