Madras High Court

S.Sasikala vs Government Of Tamil Nadu on 16 August, 2022

                                                                                W.P.No.14368 of 2015

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 16.08.2022

                                                     CORAM :

                           THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                              W.P.No.14368 of 2015
                                                      and
                                             W.M.P.No.31812 of 2019

                    S.Sasikala                                                    ... Petitioner
                                                        Vs.
                    1.Government of Tamil Nadu
                      Represented by Secretary to Government
                      Labour and Employment Department
                      Secretariat,
                      Chennai – 600 009.

                    2.The Director of Employment and Training
                      Guindy
                      Chennai – 600 032.                                        ... Respondents


                    Prayer: Writ Petition filed under Article 226 of the Constitution of India
                    for issuance of a Writ of Certiorarified Mandamus, calling for the records of
                    the 2nd respondent relating to the order in Na.Ka.No.61323/Tho.Nu.
                    Pa.2/2005 dt 28.02.2014 to quash the same and to issue consequential
                    directions to the respondents to give appointment to the petitioner on
                    Compassionate Grounds in a suitable post commensurate with her
                    qualification, consequent on the death of her father, Thiru B.Sambasivam
                    on 21.06.2014, while serving as Advisor in Government Industrial Training
                    Institute, Mettur.

https://www.mhc.tn.gov.in/judis


                    Page 1 of 13
                                                                                   W.P.No.14368 of 2015

                                            For Petitioner      : Mr.J.Muthukumaran

                                            For Respondents     : Mr.A.M.Ayyadurai
                                                                  Government Advocate

                                                        ORDER

The order of rejection, rejecting the claim of the writ petitioner

for compassionate appointment is under challenge in the present writ

petition.

2. The father of the writ petitioner Late Thiru.B.Sambasivam was

serving as Advisor in the Government Industrial Training Centre died on

21.06.2004, while he was in service. The petitioner states that her younger

brother Mr.S.Prakash has completed B.E. Degree course and submitted an

application for compassionate appointment in a suitable post. The

Government imposed ban for appointments in between the years 2001 to

2006 and therefore, the application submitted by the brother of the writ

petitioner was taken up for consideration after lifting of the ban by the

Government.

3. The 1st respondent in G.O.Ms.No.42, Labour and Employment

Department dated 12.03.2007 has stated that the compassionate

appointment is permissible to Group 'C' and Group 'D' posts only. https://www.mhc.tn.gov.in/judis

W.P.No.14368 of 2015

Therefore, the claim of the brother of the writ petitioner for higher post

cannot be considered. Since the brother of the writ petitioner acquired B.E.

Degree, he submitted an application for higher post, which was not

considered.

4. Though the petitioner states that her brother submitted an

application for appointment within a period of 3 years, the order impugned

states that the petitioner has not submitted the application within a period of

3 years from the date of the death of the deceased employee.

5. This Court is of the considered opinion that the petitioner has

submitted an application seeking higher post on compassionate grounds. As

per the scheme of compassionate appointments, it is to be provided under

the Group 'C' and Group 'D' categories and in respect of the other posts

falling under the purview of the Tamil Nadu Public Service Commission or

Recruitment Board, the appointment on compassionate grounds cannot be

made.

6. The fact remains that the father of the writ petitioner died on

21.06.2004. Already 18 years lapsed from the date of the death of the

deceased employee. The brother of the writ petitioner even at the time of https://www.mhc.tn.gov.in/judis

W.P.No.14368 of 2015

submission of the application, completed B.E. Degree and the said

application was also rejected on 04.12.2007. Thus, the second application

submitted by the writ petitioner is not entertainable under the terms and

conditions of the scheme on compassionate appointment.

7. Under the scheme one application alone is to be filed by the

legal heirs and after rejection of the said application, there is no provision to

entertain second application from other legal heirs. This being the scope of

the scheme, the order of rejection is in consonance of the terms and

conditions of the scheme and thus, there is no infirmity as such.

8. Compassionate appointments can never be claimed as an

absolute right. Compassionate appointment is a concession and the scheme

formulated to mitigate the circumstances arises on account of the sudden

death of an employee. Scheme of compassionate appointment is violative

under the Articles 14 and 16 of the Constitution of India. Since there is no

equal opportunity under the scheme, no selection process is conducted,

merit assessment is not made and even the rules of reservations are not

followed. Thus, the scheme of compassionate appointment is a special

scheme, which is otherwise not in accordance with the Constitutional

scheme of appointments.

https://www.mhc.tn.gov.in/judis

W.P.No.14368 of 2015

9. All appointments should be made in accordance with the

Recruitment Rules in force. Equal opportunity in a public employment is a

Constitutional mandate. The appointments are to be made through open

competitive process by providing an opportunity to all the eligible

candidates, who all are aspiring to secure public employment in the manner

contemplated under the Service Rules. Thus, the scheme of compassionate

appointment is to be restricted and must be provided only in deserving

cases and strictly in accordance with the terms and conditions stipulated

under the scheme. Any deviation or violation would result in

unconstitutionality, as the Equality Clause enunciated is a Fundamental

Right ensured to all citizens. More numbers of compassionate appointments

would infringe the rights of the meritorious candidates, who all are longing

to secure public employments. Thus, the Courts have insisted that the

scheme of compassionate appointment is to be restricted with reference to

the terms and conditions and the genuinity of the indigent circumstances are

to be ascertained by conducting filed inspection. The pension benefits and

the sources of income and the condition of the family are to be verified

through field inspections before providing an opportunity on compassionate

ground. It is not as if that one employment is to be provided to the family of

the deceased employee. It is the penurious circumstances, which play a

https://www.mhc.tn.gov.in/judis

W.P.No.14368 of 2015

pivotal role in considering the cases for compassionate appointment.

10. Long delay is also a ground to reject the case for

compassionate appointment as efflux of time is also a ground to draw a

factual inference that the penurious circumstances aroused on account of

the sudden death of an employee became vanished. Thus, long delay is also

to be considered as a ground for rejection of appointments on

compassionate grounds.

11. Even recently, the Honourable Supreme Court of India in the

case of State of Uttar Pradesh and Others vs. Premlata reported in

[(2022) 1 SCC 30], has made observations in respect of implementation of

the scheme of compassionate appointment and the relevant portion of the

observations are extracted hereunder:

“8. While considering the issue involved in the present appeal, the law laid down by this Court on compassionate ground on the death of the deceased employee are required to be referred to and considered. In the recent decision, this Court in State of Karnataka vs. V.Somayashree [(2021) 12 SCC 20], had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the https://www.mhc.tn.gov.in/judis

W.P.No.14368 of 2015

decision of this Court in N.C.Santhosh vs. State of Karnataka [(2020) 7 SCC 617], this Court has summarized the principle governing the grant of appointment on compassionate ground as under:

10.1. That the compassionate appointment is an exception to the general rule;

10.2. That no aspirant has a right to compassionate appointment;

10.3. The appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;

10.4. Appointment on compassionate ground can be made only on fulfilling the norms laid down by the State’s policy and/or satisfaction of the eligibility criteria as per the policy;

10.5. The norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.

9. As per the law laid down by this Court in a catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession https://www.mhc.tn.gov.in/judis and not a right.

W.P.No.14368 of 2015

9.1. In the case of H.P. v. Shashi Kumar [(2019) 3 SCC 653], this Court in paras 21 and 26 had an occasion to consider the object and purpose of appointment on compassionate ground and considered decision of this Court in Govind Prakash Verma vs. LIC [(2005) 10 SCC 289], it is observed and held as under:

“21. The decision in Govind Prakash Verma, has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal v. State of Haryana [(1994) 4 SCC 138]. The principles which have been laid down in Umesh Kumar Nagpal have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract:

“2. … As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and https://www.mhc.tn.gov.in/judis to meet certain contingencies. One such exception is

W.P.No.14368 of 2015

in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. 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 that 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 https://www.mhc.tn.gov.in/judis valid since it is not discriminatory. The favourable

W.P.No.14368 of 2015

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. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.” “26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani vs. State of Maharashtra [Mumtaz Yunus Mulani v. State of Maharashtra, (2008) 11 SCC 384 : (2008) 2 SCC (L&S) 1077] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did https://www.mhc.tn.gov.in/judis not appear that the earlier binding precedents of this

W.P.No.14368 of 2015

Court have been taken note of in that case.”

12. In view of the fact that the father of the writ petitioner died in

the year 2004 and an application was submitted by the petitioner beyond the

period of 3 years and now after a lapse of 18 years from the date of the

death of the deceased employee, the benefit of compassionate appointment

cannot provided to the writ petitioner.

13. Accordingly, the Writ Petition stands dismissed. No costs.

Consequently, connected Miscellaneous Petition is closed.

16.08.2022

Jeni

Index : Yes Speaking order : Yes