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2018 Supreme(Mad) 4385
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S. VAIDYANATHAN, J.
S. Gowtham Balu - Appellant
Versus
Managing Director - Respondent
W.P.(MD)Nos.4129, 7045, 16624 and 20786 of 2014 and M.P(MD)No.1 of 2014 and W.P. (MD)Nos. 19455 and 19530 of 2018
Decided On : 24-09-2018
For the Appellant :D. Srinivasa Ragavan, Advocate.
For the Respondent:G. Kasinadhadurai, Advocate
Headnote:
Welfare of Parents and Senior Citizens Act, 2007 - seeking for compassionate appointment - income tax payable by the employee - death or medical invalidation of the bread-winner while in service - argument that the compassionate appointment is a backdoor entry cannot be accepted, as the same is provided by guidelines and regulations. Of course, this is not a method of recruitment. In order to safeguard the family, which is in distress on account of demise of the employee/earning member of the family, the respondents Electricity Board is trying to protect the family that they do not suffer pecuniary loss and that the family is come out from indigenous circumstances – Held, in case compassionate appointment is considered other than the spouse, then 25% of the gross monthly income shall be directly paid to the spouse by way of NEFT or RTGS and the said gross income is subject to income tax deductions. The reason for not granting 25% of the amount from the Nett salary is that the employee may take loans and ensure that the take-home salary is very less and the 25% of the amount payable on the Nett after loan deduction would be very meagre and will not be sufficient to have a square meal for the day for the spouse at the old age. Many of the children, after getting employment, are driving the parents to old age home and in order to ensure that the spouses are protected and taken care of, 25% of the amount has got to be given to them. As per the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, it is the bounden duty of children to take care of them and their children should not be allowed to leave their parents in lurch, thereby letting them scot-free and the old aged people at the fag end of their life are rushing to Courts to get money from their children. In order to avoid such a haphazard situation, this Court wants to ensure that 25% of the gross shall be paid to the spouses, which would be subjected to income tax payable by the employee - Spouse, who is getting 25% of the amount as mentioned supra shall produce the life certificate once in a year preferably on the 1st March of every year - we suggest that the Government issues a Government Order to that effect, as the Court is burdened with not less than 5% of the service matters, seeking employment on compassionate ground from various departments, such as Electricity Board, etc and since there is no uniform guidelines for all the Government departments, there is always a confusion and chaos, thereby creating unnecessary litigations - compassionate appointment shall not be considered as a back door entry and it is based on rules, regulations, guidelines and Government Orders. However, it should be remembered that compassionate appointment is not an usual recruitment process and the candidates seeking such appointment will have to satisfy all the requirements contemplated under the Rules with regard to the age, qualification, etc, but however, it is subject to relaxation depending upon the circumstances of each case – Petition dismissed
ORDER :
S. Vaidyanathan, J.
1. The sum and substance of the issue on hand is that the petitioners are seeking for compassionate appointment on various grounds like petitioner was minor at the time of death; did not fulfil the required qualifications; application was not submitted within the stipulated period of three years from the date of demise of the employees etc.,
2. The sum and substance of the contention of respondents is that they are governed by Board Proceedings 46 and that the applications have got to be made within a period of three years and that they should fulfil the required qualifications. It is not in dispute that the candidates, who want to get compassionate appointment, have got to fulfil the qualification.
3. The argument that the compassionate appointment is a backdoor entry cannot be accepted, as the same is provided by guidelines and regulations. Of course, this is not a method of recruitment. In order to safeguard the family, which is in distress on account of demise of the employee/earning member of the family, the respondents Electricity Board is trying to protect the family that they do not suffer pecuniary loss and that the family is come out from indigenous circumstances.
4. The Board proceedings 46 even though has not been referred to in the unreported Judgment of this Court in S. Velraj v. The Superintending Engineer, Tamil Nadu Electricity Board, Tirunelveli made in Writ Appeal No.1400 of 2011, dated 16.12.2015, it has observed that the three years limitations cannot be applied in a straitjacket formula and that each case has got to be considered. The three years limitation mentioned therein is with reference to the period of application to be made within three years from the date of demise of employees / persons. Some persons may be minor and spouse may not be alive or would not have been qualified on that particular date. It is also no doubt true that the Apex Court has time and again held that a post cannot be kept vacant to be filled for the heirs of the deceased Government servant till they become major and thereafter to apply. In the Judgment of Hon'ble Supreme Court in Bhawani Prasad Sonkar v. Union of India and others reported (2011 (4) SCC 209), in paragraph 20, it has been held as follows:-
"20.Thus while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:
(i) Compassionate employment cannot be made in the absence of rules of regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment de-hors the scheme.
(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.
(iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the bread-winner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.
(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. Parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts."
5. The purpose of grant of compassionate appointment should be fulfilled and it should not be only on paper and to defeat the purpose of the scheme on compassionate appointment. As rightly held by the Division Bench of this Court, each case has got to be considered, when a person dies leaving behind the minor children. If any person, who is major or attains majority and is not going to apply within three years, certainly, no indulgence can be sh
