Challenging the proceedings dated 5.3.2012 of the third respondent in and by which the application of the petitioner seeking compassionate appointment was rejected, the present writ petition is filed to set aside the same and to appoint him on compassionate grounds.
2. Briefly stated, the facts of the present case are as under: It is the case of the petitioner that his father ? A.Ondimuthu was employed as a Male Nursing Assistant in Annai Gandhi Memorial Government Hospital from 1959 to 14.12.1994 and on the basis of the report of the Medical Board, he was relieved from service on 14.12.1994.
3. It is stated that the petitioner submitted an application on 26.7.1996 seeking compassionate appointment, which is well within the period of three years from the date of relieving of the service of his father. However, the said application was rejected on the ground that his father was relieved on medical grounds only at the age of 53 and not at the age of 50.
4. Assailing the rejection, the petitioner filed O.A.No.1466 of 1995, which was transferred to this Court and re-numbered as W.P.No.15325 of 2006. The said writ petition was disposed of by order dated 5.7.2007 directing the first respondent to consider the claim of the petitioner on merits and in accordance with law.
5. It is stated that thereafter the claim of the petitioner was rejected by the Director of Medical Education on 16.2.2012, even though the Principal of K.A.P.Viswanathan Government Medical College, Annai Gandhi Memorial Government Hospital, Trichy, had recommended the case of the petitioner for compassionate appointment, and the said order of rejection was communicated to the petitioner by an order dated 5.3.2012 of the third respondent. It is stated that the rejection of the claim was on the ground that there is no provision for compassionate appointment to the legal heirs of Male Nursing Attendant.
6. Calling into question the said proceedings dated 5.3.2012, the present writ petition is filed for the relief stated supra.
7. It is the contention of the learned counsel for the petitioner that even though the petitioner made an application seeking compassionate appointment within two years of the death of his father, the respondent authorities rejected the same initially on the ground that since the father of the petitioner was relieved from service at the age of 53 and not at the age of 50 and hence, he was not entitled to appointment on compassionate ground and subsequently, by the impugned proceedings, on a fresh ground that appointment on compassionate ground cannot be claimed by legal heirs of Male Nursing Attendant and, the delay of 15 years in considering the application of the petitioner, without any valid reason is arbitrary and unreasonable.
8. It is further submitted that the third respondent recommended for appointment of the petitioner on compassionate grounds, but the second respondent without paying heed to such recommendation, rejected the claim of the petitioner under spurious grounds, that too without communicating the same to the petitioner.
9. He further submitted that there cannot be any discrimination in public employment on the basis of sex, more so when a similarly placed person ? Arivuselvan was appointed on compassionate grounds in Salem District.
10. Per contra, it is the contention of the learned Government Advocate appearing on behalf of the respondents that the case of the petitioner was rightly rejected as the petitioner?s father was relieved after completion of 53 years of service and in this regard, he placed reliance a Government Order in G.O.No.168, Labour Welfare Department, dated 19.10.2000.
11. I heard Mr.D.Selvanayagam, learned counsel for the petitioner and Mr.K.Guru, learned Government Advocate appearing on behalf of the respondents and perused the documents available on record.
12. In the case on hand, it is beyond any cavil that the petitioner?s father was relieved from service after completion of 53 years of service. The petitioner made an application within two years from the date on which his father was relieved from service. The application of the petitioner was rejected on the ground that the petitioner?s father was relieved after completion of 53 years of service and, therefore, the claim of the petitioner is hit by G.O.No.168, Labour Welfare Department, dated 19.10.2000. Subsequently, the respondent authorities stated that the scheme of compassionate appointment cannot be extended to legal heirs of Male Nursing Attendant.
13. Before adverting to the merits of the claim made by the petitioner, it is to be noted that the very object of compassionate appointment is to relieve the members of the family of a Government servant, who either dies or retires prematurely on medical grounds leaving his family in penury, from financial distress. Therefore, such a claim for appointment on compassionate grounds should be considered taking into account the plight of the family left behind by the government servant.
14. However, the parameters which are required to be fulfilled by an applicant for appointment on compassionate ground are the immediate need for an appointment; identification as dependent and satisfaction in relation to dependency; and possessing required qualifications. In the instant case, the petitioner had made an application seeking compassionate appointment within a reasonable time expressing the desperate state in which the family of the petitioner is placed. It is not in dispute that the petitioner is dependent and is also possessing required qualifications. That apart, the records show that the petitioner is a differently abled person with 65% disability. It is nowhere the plea of the respondents in the counter affidavit or across the bar that the petitioner and his family members are in a sound financial position. Therefore, the petitioner is eligible for being considered for appointment on compassionate grounds.
15. At this juncture, it is apposite to refer to the decision of the Hon'ble Supreme Court in V.Sivamurthy vs. State of Andhra Pradesh and others (2008) 13 SCC 730, wherein it is held as follows:
"25. ?. The assumption by the High Court that this Court had held that compassionate appointments can be only in death-in-harness cases and not in retirement on medical invalidation cases, is not sound.
26. As an identical reason for holding that compassionate appointments are not permissible in cases of medical invalidation, the High Court has observed that death stands on a 'higher footing' when compared to sickness. The inference is compassionate appointment in case of medical invalidation is not of the same degree of importance or gravity as that of death, and that as medical invalidation is not as serious as death-in-harness, exception can be made only in cases of employees dying-in-harness. But what is lost sight of is the fact that when an employee is totally incapacitated (as for example when he is permanently bedridden due to paralysis or becoming a paraphegic due to an accident or becoming blind) and the services of such an employee is terminated on the ground of medical invalidation, it is not a case of mere sickness. In such cases, the consequences for his family may be much more serious than the consequences of an employee dying-in-harness.
27. When an employee dies in harness, his family is thrown into penury and sudden distress on account of stoppage of income. But where a person is permanently incapaciated due to serious illness or accident, and his services are consequently terminated, the family is thrown into greater financial hardship because not only the income stops but at the same time there is considerable additional expenditure by way of medical treatment as also the need for an attendant to constantly look after him. Therefore, the consequences in case of an employee being medically invalidated on account of a serious illness/accident, will be no loss, in fact far more than the consequences of death-in-harness. Though generally death stands on a higher footing than sickness, it cannot be gainsaid that the misery and hardship can be more in cases of medical invalidation involving total blindness, paraplegia, serious incapacitating illness etc.," (emphasis supplied)
16. That apart, in the case on hand, the petitioner made an application seeking compassionate appointment in the year 1996, much prior to the coming into force of Government Order in G.O.No.168, dated 19.10.2000. Had the application of the petitioner, who is a differently abled person, considered in the right perspective immediately on receipt of such application, considering the other parameters, he would have certainly been appointed.
17. Moreover, the plea of the respondent authorities that the scheme of compassionate appointment cannot be extended to legal heirs of Male Nursing Attendant certainly tantamounts to discrimination and no material has been placed by the respondent authorities to justify the said stand. Furthermore,the allegation of the petitioner that a similarly placed person, Arivuselvan, was provided with compassionate appointment, is not disputed by the respondent authorities till date either in the counter or across the bar. The non consideration of the case of the petitioner, who is similarly placed to that of Arivuselvan, certainly reeks of arbitrariness.
18. For the foregoing reasons, the following order is passed: i. The writ petition is allowed and the order of the third respondent in Oo.Mu.No.9700/Ne2/2010 dated 5.3.2012 is quashed; ii. The respondents are directed to appoint the petitioner as Male Nursing Assistant or Health Assistant;
iii. The said exercise shall be done within a period of four weeks from the date of receipt of a copy of this order;
iv. No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The Secretary to Government, State of Tamilnadu, Health Department, Fort St. George, Chennai ? 600 009.
2.The Director of Health and Rural Works, Teynampet, Chennai ? 600 006.
3.The Joint Director, Office of the Welfare Works, Trichy.
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