(Prayer: Writ Appeal filed under Clause 15 of Letters Patent Act, against the order of the learned Single Judge, dated 11.02.2014 made in W.P.(MD).No.3182 of 2009.)
S. Tamilvanan, J.
1. Challenging the order dated 11.02.2014, passed in W.P.(MD).No.3182 of 2009 and M.P.(MD).No.1 of 2009 by the learned Single Judge, the present writ appeal has been preferred by the appellant, who was the third respondent in the writ petition.
2. Heard Mr.R.Sivamanogaran, learned counsel appearing for the appellant and Mr.Isaac Mohanlal, learned counsel appearing for the first respondent / writ petitioner.
3. Mr.Isaac Mohanlal, learned counsel appearing for the first respondent / writ petitioner submits that the first respondent / writ petitioner is the daughter of one late Valliamma, who was working as 'Tapper' in Arasu Rubber Corporation Ltd., Keeriparai Division, Kanyakumari District, who died on 16.05.1997, leaving behind her husband, two married daughters and one unmarried daughter, who is the first respondent herein. The first respondent passed +2, Diploma in Computer Application and also the technical qualification required for the post of Typist. She made here written representation to the Appellant Corporation for compassionate appointment on 12.01.1998 and by communication, dated 19.05.1998, issued by the fourth respondent herein, she was called upon to submit all her supporting documents. Accordingly, she submitted her testimonials along with her letter, dated 16.06.1998. The same was forwarded to the Managing Director of the Appellant Corporation, by the fourth respondent herein. Subsequently, the first respondent / writ petitioner was called for personal interview on 15.09.1998 and she attended the interview. That was followed by an order, dated 29.12.1998 passed by the appellant / third respondent. As per the said order, the appellant herein directed the first respondent / writ petitioner to approach Arasu Rubber Corporation Ltd., after learning the work of tapping Rubber.
4. Thereafter, the first respondent / writ petitioner made several representations to the appellant / third respondent, requesting appointment on compassionate grounds. As there was no response, she filed writ petition in W.P.(MD).No.3182 of 2009, seeking an order in the nature of mandamus, directing the respondents therein, including the appellant herein to provide any suitable employment on compassionate ground, considering her qualification, in the appellant / third respondent Corporation. After considering the averments made in the writ petition, counter and the arguments advanced by both the learned counsel, the learned single Judge allowed the writ petition, whereby directed the appellant and the other respondents in the writ petition to give any suitable employment to the first respondent / writ petitioner, on compassionate ground, considering her qualification in the appellant / third respondent Corporation, within a period of four weeks from the date of receipt of a copy of the order. However, the appellant / third respondent has not provided any appointment to the first respondent / writ petitioner, pursuant to the order passed in the writ petition, but preferred this writ appeal.
5. Learned counsel appearing for the appellant / third respondent submitted that the first respondent / writ petitioner is not entitled to get any appointment in the clerical cadre and she is entitled to get only worker cadre employment under the appellant Corporation and to that effect, a Memo, dated 06.03.2015, signed by the Senior Industrial Relations Officer, Arasu Rubber Corporation Ltd., Nagercoil, counter-signed by the Standing Counsel appearing for the appellant Corporation was filed. In the Memo, the appellant has stated that (a) the first respondent / petitioner will be given compassionate appointment as 'Office Worker' in the worker category, as a permanent worker, to perform office related works involving maintenance of records and such other work as may be assigned by the superiors from time to time, in any Divisional Office premises of the appellant Corporation and (b) since the wages for permanent workers in the worker category are fixed on daily wages-basis in furtherance of the settlements periodically concluded with the Trade unions, the first respondent will be paid the same wages as payable to the other Field workers and she will be governed by the Standing Orders, settlements and other service conditions applicable to the worker category. In short, the learned counsel appearing for the appellant submits that the first respondent / writ petitioner is entitled to get job only in the worker category.
6. It is pertinent to note that earlier, it was the case of the appellant Corporation that the appellant Corporation wanted to provide employment to the first respondent / writ petitioner only as Rubber Tapping worker and after knowing that she did not know rubber tapping work, the appellant Corporation informed her to learn rubber tapping work and report. Hence, it is clear that the appellant has not disputed that the respondent / petitioner is entitled to compassionate appointment, however, the appellant had asked her to learn tapping work to get such appointment.
7. Learned counsel for the first respondent / writ petitioner drew the attention of the Court to the counter filed by the appellant / respondent No.3 before the learned Single Judge, which reads as follows :
"2) With regard to Para 2 of the affidavit, it is submitted that the petitioner herself admitted that her mother when alive worked as 'Rubber Tapper' on daily wages only. It is also true that the deceased Valliamma left her husband Thiru.Philiprose working as tapper when she died. Subsequently, he resigned his job on 11.7.2007. The petitioner is now a married daughter and as such she is not a member in the deceased family and not entitled for compassionate ground appointment."
In this regard, it is argued by Mr.Isaac Mohanlal, learned counsel appearing for the first respondent / writ petitioner that it is gender discrimination, contrary to Articles 14 and 15 of the Constitution of India and the same has been considered and discussed by the learned single Judge properly in the impugned order.
8. It is well settled that there should be no discrimination, in view of Articles 14, 15 and 16 of the Constitution of India. As contemplated under Article 15 (3), if there is any special provision made in favour of women by the State, that would not be against gender equality, as the same be considered towards achieving gender justice. As married son is entitled to get compassionate appointment, the same cannot be denied for a daughter, on the ground that she is a married woman, stating that she is not a member of the family of the deceased, as the same is against gender equality.
9. The memo filed by the appellant / third respondent would show that the first respondent / writ petitioner is entitled to get compassionate appointment only in the cadre of worker, on the basis of daily wages. The appellant / third respondent has not stated what is the pay scale for the said employment as worker. Per contra, the learned counsel appearing for the first respondent / writ petitioner submitted that the first respondent / writ petitioner is willing to accept any post in the cadre of Typist or even Office Assistant. It is well settled that one can get compassionate appointment to any regular post as Office Assistant, Typist or any other job, but not in the Managerial cadre. It cannot be contended that a worker's son or daughter should become only a worker and others would get better employment on compassionate ground, as the same would be a discrimination. As contended by the learned counsel appearing for the first respondent / writ petitioner, being a woman, she finds it difficult to learn tapping of rubber extract for getting appointment on compassionate ground. She has passed HSC and also a qualified typist, which is not in dispute and she has expressed her willingness, even to work as Office Assistant. However, she had been asked to learn tapping of rubber extract, which is unreasonable for considering her request for compassionate appointment.
10. Having gone through the impugned order passed by the learned single Judge, we are of the considered view that there is no illegality or infirmity in the impugned order, so as to warrant any interference, since the first respondent / writ petitioner is one of the dependants of the deceased Valliamma, is entitled to get appointment on compassionate ground, which is not in dispute. Being a married woman, the said right cannot be denied, as it would be gender discrimination, violative of Articles 14, 15(1) and 16 of the Constitution of India. It would not be fair on the part of the appellant / third respondent to take a view that a dependent of a worker should become only a worker, even if he / she is qualified to get any job, as that of other category of persons, seeking compassionate appointment. So far as the compassionate appointment is concerned, there should be uniformity in considering the request made by any dependant of the deceased employee. It is not in dispute that the first respondent / writ petitioner, having passed +2 has got Diploma in Computer Application and other technical qualifications required for the post of Typist, hence, she can be appointed to any regular clerical post, either as Typist or at least as Office Assistant. The appellant / third respondent cannot say that the first respondent / writ petitioner is not entitled to get such an appointment, available for other category of employees, even if she is educationally qualified.
11. In State of Haryana and another v. Ankur Gupta, [(2003) 7 SCC 704)], the Hon'ble Supreme Court has held as follows :
"6. As was observed in State of Haryana v. Rani Devi, it need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the premise that he was dependent on the deceased employee.
Strictly, this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die- in-Harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi case it was held that the scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Lic of India v. Asha Ramchhandra Ambekar, it was pointed out that the High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana that as a rule, in public service appointments should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased."
12. In I.G.(Kramik) & Ors. vs. Prahalad Mani Tripathi, [Appeal (civil) 2208 of 2007], relying on the decision in Food Corporation of India & Anr. v. Ram Kesh Yadav & another, [JT 2007 (4) SC 1], the Hon'ble Apex Court held that an employer could offer an appointment only to the post for which, the person seeking compassionate appointment is eligible. It has been further held as follows :
"A person cannot be appointed unless he fulfils the eligibility criteria. Physical fitness being an essential eligibility criteria, the Superintendent of Police could not have made any recommendation in violation of the rules. Nothing has been shown before us that even the petitioner came within the purview of any provisions containing grant of relaxation of such qualification. Whenever, a person invokes such a provision, it would be for him to show that the authority is vested with such a power."
13. In National Institute of Technology & Ors. v. Niraj Kumar Singh reported in [2007 (2) SCALE 525], the Hon'ble Apex Court has held that all public appointments must be in consonance with Article 16 of the Constitution of India. Exceptions carved out therefore are the cases where appointments are to be given to the widow or the dependent children of the employee who died in harness. Such an exception is carved out with a view to see that the family of the deceased employee who has died in harness does not become a destitute.
14. In State of U.P & Ors. v. Pankaj Kumar Vishnoi, [Civil Appeal Nos.2366-2367 of 2011], relying on the decision in Umesh Kumar Nagpal v. State of Haryana [(1994) 4 SCC 138], the Hon'ble Apex Court has held as follows :
"The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis then a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence, they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution."
15. It is well settled by the Hon'ble Apex Court that compassionate appointment is not a matter of right. Similarly a person seek appointment on compassionate ground cannot expect to get any post of managerial cadre, based on the qualification, as the general rule would be of undergoing proper selection process for getting any managerial cadre post. However, considering the fact that the bread-winner of the family died, leaving his family, facing destitution, the way is open to the family to seek compassionate appointment.
16. In this case, it is not in dispute that the appellant / third respondent considered the case of the first respondent / writ petitioner, to provide compassionate appointment, however, as per the earlier view taken by the appellant / third respondent, her request wa
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s rejected, since she was a married woman. The aforesaid view of the appellant, stating the first respondent as married woman, hence, could not get compassionate appointment is against gender equality, violating Article 14 of the Constitution of India. At present, the appellant is coming forward by providing a job to the first respondent, as "Rubber Tapper" on daily wages. In providing compassionate appointment, there should be no discrimination, though the first respondent / writ petitioner is entitled to seek only lower cadre post, that are available for any other person on compassionate appointment, based on her qualification for getting compassionate appointment. 17. It is not in dispute that the first respondent / writ petitioner has passed Plus Two, Diploma in Computer Application and also Technical qualification, required for the post of Typist. Having considered the same, any lower cadre post, which is available for any compassionate appointment, shall be given by the appellant to the first respondent / writ petitioner. On the facts and circumstances, we are of the considered view that there is no merit in the writ appeal preferred by the appellant / third respondent and the same is liable to be dismissed. 18. In the result, the writ appeal is dismissed, confirming the order of the learned single Judge and the appellant / third respondent is directed to provide job / employment, either as Typist or Office Assistant or any other regular post available for compassionate appointment, without causing further delay, within a period of three weeks from the date of receipt of a copy of this order. No order as to costs. Consequently, connected miscellaneous petition is also dismissed.