WP No.41967 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27-09-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.41967 of 2016
And
WMP Nos.35922 and 35923 of 2016
V.Vairamani .. Petitioner
vs.
1.The Director of Medical Education (FAC),
Kilpauk,
Chennai – 10.
2.The Dean,
Government Rajaji Hospital,
Madurai. .. Respondents
Writ Petition is filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorarified Mandamus, calling for
the records connected in Ref.No.49471/E2/4/2014, dated 04.02.2016 of the
first respondent and quash the same and direct the respondents to appoint
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WP No.41967 of 2016
the petitioner's son namely V.Kalainesan in any of the suitable post on
compassionate ground.
For Petitioner : Mr.A.R.Suresh for
Mr.K.Arumugam
For Respondents : Mr.A.Anandan,
Government Advocate.
ORDER
The order of rejection passed by the first respondent rejecting the claim of the writ petitioner for compassionate appointment in proceedings dated 04.02.2016, is under challenge in the present writ petition.
2. The writ petitioner states that her husband Mr.V.Veerasamy was employed as Driver in the Government Rajaji Hospital, Madurai and died on 05.02.2002. Before his death, the husband of the writ petitioner was ousted from service on 01.08.1996. The husband of the writ petitioner filed Original Application before the Tamil Nadu Administrative Tribunal and the said application was decided after the death of the employee. The Tamil Nadu Administrative Tribunal allowed the said application in favour of the 2/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016 deceased employee.
3. The learned counsel for the petitioner mainly contended that the petitioner submitted an application seeking appointment on compassionate ground within a period of three years as per the terms and conditions. However, the said application was not considered in view of the fact that the order of the Administrative Tribunal was not implemented and therefore, the status of the deceased employee was not finalised.
4. Since the service benefits of the deceased employee was not settled at the time of submission of the application for compassionate appointment by the petitioner, the said application was not considered by the respondents. Subsequently, the Government imposed ban for appointment from the years 2001 to 2006. There was a delay in implementing the orders of the Tribunal also. Thus the case of the writ petitioner was not considered for a prolonged period. Subsequently, the writ petitioner filed WP No.6172 of 2014 and this Court passed an order on 28.02.2014, directing the first respondent therein to consider the representations submitted by the writ 3/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016 petitioner on 03.01.2012 and 24.12.2012 and pass appropriate orders within a period of six weeks. Pursuant to the directions issued by this Court, the respondents issued impugned order dated 04.02.2016 stating that the application submitted by the son of the writ petitioner cannot be considered, as it was submitted beyond the period of three years. The petitioner was over aged and therefore, she is not eligible for appointment.
5. The learned counsel for the petitioner mainly contended that the delay occurred on account of the delay on the part of the respondents for implementing the orders passed by the Tribunal. If at all the order of the Tribunal was implemented during the relevant point of time, the case of the writ petitioner would have been considered for appointment on compassionate grounds. In view of the fault committed by the respondents, the petitioner cannot be denied appointment on compassionate grounds.
6. The learned Government Advocate appearing on behalf of the respondents objected the said contention by stating that the deceased employee late Mr.V.Veerasamy died on 05.02.2002 and the elder son of the 4/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016 deceased employee Mr.V.Kalainesan submitted an application on 03.01.2012 after a lapse of about 10 years from the date of the death of the deceased employee.
7. Therefore, the respondents referred Government letter (Ms) No.202, Labour and Employment Department, dated 08.10.2007, wherein in paragraph-3, it has been stated as under:-
"The very purpose of giving compassionate grounds appointment scheme is only to help the family of the deceased Government Servant to tide over the sudden indigent circumstances unexpectedly created by the sudden and untimely death of the Government Servant. So the appointment should, therefore be provided immediately to redeem the family in distress and the provision of compassionate appointment after a lapse of very long time defeats the very purpose of the compassionate grounds appointment scheme.
The Supreme Court has made critical observations with regard to this issue and that 5/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016 the critical issue is whether the family is in indigent circumstances. In the cases of application made after ten years, twenty years and thirty years from the date of death of the Government Servant, obviously the family cannot be considered in indigent circumstances.
Moreover, the Government have ordered there in this connection that based on the direction of the Supreme Court regarding indigent circumstances of the family and the decision taken by the Cabinet accepting the recommendations of the Staff Committee, the Government direct that the compassionate grounds appointment have to be made as per detailed guidelines issued in the Government Order (Ms.) No.42, Labour and Employment Department, dated 12.03.2007, wherein it has been clearly mentioned that the existing time limit of 3 years for filing applications from the date of death of Government Servant shall be continued. The crux of the matter is that the time limit shall be 3 years for filing of application from the date of death of Government Servant 6/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016 and is applicable to all cases, including where the Government Servant has died in service even prior to 26.06.1995 also."
8. The Government mainly rejected the case of the writ petitioner on the ground that the son of the writ petitioner submitted an application after a lapse of three years from the date of the death of the deceased employee, more-so, the application was submitted after a lapse of 10 years from the date of death of the deceased employee.
9. This Court is of the considered opinion that no doubt there was a delay on the part of the respondent-Department in finalising the service rights of the deceased employee. The deceased employee was removed from service and he filed an original application before the Tamil Nadu Administrative Tribunal and the Tribunal passed an order in favour of the employee. However, there was an enormous delay in implementing the orders by the respondent-Department, which resulted in denial of an opportunity to the writ petitioner for appointment on compassionate grounds.
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10. The learned counsel for the petitioner reiterated that the delay occurred at the instance of the respondent-Department cannot be a ground to deny the benefit of appointment on compassionate grounds. In this regard, it is to be considered that the Scheme of Compassionate Appointment is not an absolute right. It is only a concession extended by the Government.
11. There is a difference which is to be drawn in respect of the service rights, which is conferred on the employee and a concession extended to the employees. For example, Government quarters are allotted to the employees, who all are working in various Departments. Such quarters are allotted by way of concessions and subject to the availability of number of quarters. Thus the allotment of quarter is a concession extended to the Government Servants and the same cannot be claimed as an absolute right.
12. Therefore, non-allotment of quarters would not provide any right over the Government employee to seek a direction from the High Court 8/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016 to give allotment of Government quarters in his favour. Unless such an employee established that the allotment was made in an illegal manner and are in violation of the terms and conditions stipulated by the Government.
13. Similarly, compassionate appointment is also a concession and not a right of an employee. But such concessions are to be granted strictly in accordance with the terms and conditions, which cannot be relaxed at no circumstances. In the event of diluting the terms and conditions, the same would result in unconstitutionality. The Scheme being violative of Articles 14 and 16 of the Constitution of India, the Government has to restrict the Scheme as far as possible, so as to ensure that the families, who all are really in need of appointment, are provided with the benefit of appointment of compassionate grounds. Thus the scope of the Scheme cannot be expanded, so as to infringe the fundamental right of the citizen, who all are aspiring to secure public employment through Open Competitive Process.
14. Compassionate appointments are provided without any 9/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016 merit assessments. No rule of reservation is followed. No assessment of eligibility is made. Thus the Scheme being a concession to be granted only to mitigate the circumstances arising on account of the sudden death of an employee. The indigent circumstances with reference to the death of the deceased employee is to be ascertained. The indigency is to be ascertained by conducting Field Enquiry by the Competent Authorities. Mere certificate issued by the Tahsildar is insufficient and an enquiry is to be conducted to find out the indigent circumstances of the family of the deceased employee.
15. Therefore, even in cases where there was a delay on the part of the respondent-Department in finalising the departmental disciplinary proceedings or ascertaining the rights of the employees or pendency of cases, would not be a ground to claim compassionate appointment after a lapse of several years. Such concessional Schemes cannot be implemented after several years, as the very purpose of the Scheme would be defeated if the same is implemented.
16. Scheme of compassionate appointment has to be 10/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016 implemented strictly in accordance with the terms and conditions stipulated. Compassionate Appointment Scheme, being a concession, cannot be extended after a lapse of many years. The very purpose and object of the Scheme is to mitigate the circumstances arising claimed as an absolute right. Scheme being an exception, cannot be expanded for the purpose of providing appointment on compassionate grounds in a larger manner. Large scale compassionate appointment would result in infringement of the Fundamental Rights of the eligible citizen, who all are aspiring to secure public employment through open competitive process.
17. Scheme of compassionate appointment being a concession, to be implemented in a restricted manner, so as to provide appointment only to the families, who all are genuinely in penurious circumstances and in this regard, the authorities competent are bound to conduct field inspections and ascertain the imminent circumstances, warranting an appointment on compassionate grounds. It is not as if one appointment is to be granted to the family of the deceased employee and it is not as if every legal heir can submit the application and thereafter, the appointment is to be considered. 11/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016
18. Once an application is filed by any one of the legal heir of the deceased employee and the said legal heir became ineligible, it is not as if that other legal legal heir can submit an application irrespective of the length of time. In the event of entertaining such repeated applications for compassionate appointment, the very purpose and object of the scheme would be defeated.
19. The very purpose and object of the scheme of compassionate appointment is to mitigate the circumstances arising on account of the sudden death of an employee. Therefore, the scheme cannot be expanded nor any consideration is to be shown on misplaced sympathy, which would result in denial of Fundamental Right to all other eligible candidates, who all are longing to secure public employment. Thus, the Courts are not expected to grant compassionate appointment on misplaced sympathy. Such sympathy would result in unconstitutionality.
20. Scheme being violative of Articles 14 and 16 of the 12/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016 Constitution of India, since there is no merit assessment of the applicant and there is no application of rule of reservation, there is no other assessment is made for appointment on compassionate grounds. In the event of large scale compassionate appointment, the efficiency level in the public administration will also be in stake. The Rule of Reservation, merit assessment and no other assessment has been made and therefore, the large scale appointments causing inefficiency in public administration, which would result in violations of the Constitution provisions, since the Constitution mandates an efficient public administration.
21. Lapse of time would also provide a ground to draw a factual inference that the penurious circumstances aroused on account of the sudden death of an employee became vanished. Thus, Courts have repeatedly held that compassionate appointment cannot be granted after several years.
22. Even to ascertain the indigent circumstances, the pensionary benefits are also to be taken into consideration. The Supreme Court of India in the case of Union of India and others Vs. Amrita Sinha in 13/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016 C.A.No.7640 –7641 of 2021 dated 11.12.2021 [(2021) 15 Scale 174] held in Paragraph No.10 as follows :
“The monthly pension which was payable to the respondent was required to be taken into account in the award of merit points. The Tribunal, however, came to the conclusion that pension is paid for past service rendered by the employee and, hence, denial of compassionate appointment on that basis was not justifiable. This reasoning of the Tribunal is fallacious. Undoubtedly, pension is not an act of bounty, but is towards the service which has been rendered by an employee. However, in evaluating a claim for compassionate appointment, it is open to the authorities to evaluate the financial position of the family upon the death while in service. Compassionate appointment is not a vested right.
It is provided in order to enable a family to tide over a financial crisis caused by the death of its wage-earner while in service. If the scheme requires that the family pension must be taken into account in evaluating the merits an application, it has to be followed.” 14/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016
23. In this regard, the Hon'ble Supreme Court of India, recently on 05.09.2022, in the case of Ahmednagar Mahanagar Palika vs. Ahmednagar Mahanagar Palika Kamgar Union [2022 LiveLaw (SC) 739], wherein in paragraph-8 of its judgment, reiterated the principles to be adopted for providing appointment on compassionate grounds as under:-
“8. Even otherwise, such an appointment to the heirs of the employees on their retirement and/or superannuation shall be contrary to the object and purpose of appointment on compassionate grounds and is hit by Article 14 of the Constitution of India. As observed and held by this Court in a catena of decisions, compassionate appointment shall always be treated as an exception to the normal method of recruitment. The appointment on compassionate grounds is provided upon the death of an employee in harness without any kind of security whatsoever. The appointment on compassionate grounds is not automatic and shall be subject to the strict scrutiny of various parameters including the financial position of the family, the 15/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016 economic dependence of the family upon the deceased employee and the avocation of the other members of the family. No one can claim to have a vested right for appointment on compassionate grounds. Therefore, appointment on compassionate grounds cannot be extended to the heirs of the employees on their superannuation and/or retirement. If such an appointment is permitted, in that case, outsiders shall never get an appointment and only the heirs of the employees on their superannuation and/or retirement shall get an appointment and those who are the outsiders shall never get an opportunity to get an appointment though they may be more meritorious and/or well educated and/or more qualified.”
24. Even in yet another recent judgment of the Hon'ble Supreme Court in the case of CENTRAL BANK OF INDIA vs. NITIN [2022 LiveLaw (SC) 690], wherein in paragraphs 20 and 21, it has been held as under:-
“20. It is well settled that compassionate 16/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016 appointment is an exception to the rule of equality, which enables the dependent family members of a medically incapacitated employee who has no option, but to retire, or a deceased employee, to tide over the immediate crisis caused by the incapacitation or death of the breadwinner. Compassionate Appointment excludes equally or more meritorious candidates, much in need of a job, from the zone of consideration. Consideration for compassionate appointment must, therefore, be strictly in accordance with the prevalent rules for compassionate appointment applicable to the deceased/prematurely retired employee.
21. In this case, there is a financial criteria of eligibility for compassionate appointment under the Compassionate Appointment Scheme.
Rules which provide for a financial criteria for appointment on Compassionate ground are valid and lawful rules which have to be construed strictly, as otherwise the quota reserved for compassionate appointment would be filled up excluding others who might be in greater and/or 17/20 https://www.mhc.tn.gov.in/judis WP No.41967 of 2016 far more acute financial distress.”
25. This Court do not find any infirmity in respect of the reasons stated in the order impugned.
26. Thus, the writ petition is devoid of merits and stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are also dismissed.
27-09-2022 Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non-Speaking Order.
Svn To
1.The Director of Medical Education (FAC), Kilpauk, Chennai – 10.
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2.The Dean, Government Rajaji Hospital, Madurai.
S.M.SUBRAMANIAM, J.
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