Madras High Court

M.Mathiazhagan vs The Principal ... on 17 August, 2022

                                                                              W.P.No.1723 of 2015

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 17.08.2022

                                                    CORAM

                                  THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                              W.P.No.1723 of 2015

                     M.Mathiazhagan                                        ... Petitioner

                                                       Vs

                     1.The Principal Secretary-cum-Commissioner,
                       Backward Classes and Minorities Welfare
                       Department, Chepauk,
                       Chennai – 600 005.

                     2.The Director,
                       Backward Classes and Minorities Welfare,
                       Department, Chepauk,
                       Chennai – 600 005.

                     3.The District Welfare Officer,
                       Backward Classes and Minorities Department,
                       Ariyalur.

                     4.M.Manikandan                                        ... Respondents

                     PRAYER : Writ Petition filed Under Article 226 of the Constitution of
                     India, to issue a Writ of Certiorarified Mandamus, calling for the
                     proceedings of the first respondent in Letter No.,B1/3004/2013 dated
                     06.01.2015 quash the same and consequently direct the respondents 1 to 3
                     to appoint the petitioner on compassionate ground arising on account of

                     1/13
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                                                                                       W.P.No.1723 of 2015

                     death of late Muthusamy who was working as Cook in Backward Class
                     Students Hostel, Veradarajanpettai within the stipulated time.


                                        For Petitioner     : M/s.R.Divya Preethika
                                                             for Mr.R.Bharath Kumar

                                        For Respondents
                                              R1 to R3  : Mr.M.Bindran
                                                          Additional Government Pleader
                                              R4        : Mr.J.Sudhakaran


                                                            ORDER

The order of rejection rejecting the claim of the compassionate

appointment of the writ petitioner is under challenge in the present writ

petition.

2.The petitioner states that his father late Mr.N.Muthusamy was

working as Cook in Backward Class Students Hostel, Varadarajanpettai and

died on 31.10.2006 while he was in service.

3.The petitioner states that he is the son of the second wife of the

deceased employee late Mr.N.Muthusamy. The 4th respondent

Mr.Manikandan and one Miss.Sathya were born to the first wife of the

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deceased employee. Late Mrs.Sarasu, the first wife pre-deceased the father

of the writ petitioner. It is stated that the children of the first wife and the

second wife were the dependents of the deceased employee and the mother

of the writ petitioner was a daily wage labour. The petitioner states that he

submitted an application seeking appointment on compassionate ground.

On account of the family dispute between the children of the first wife and

the second wife and her children, the issues are not resolved and even the

terminal and pensionary benefits due to the deceased employee is yet to be

settled.

4.As far as the present writ petition is concerned, the order of rejection

was passed on the ground that the children of the first wife are elder than the

writ petitioner and therefore, they have to consider at the first instance for

providing employment on compassionate ground as per the terms and

conditions. It is an admitted fact that the son of the first wife is elder than

the writ petitioner and he has not furnished any no objection for providing

appointment to the writ petitioner. In the event of submitting an application

for providing appointment to any other legal heirs, then the remaining legal

heirs have to issue no objection for the purpose of providing appointment.

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In the present case, no such no objection was issued by the children of the

first wife and therefore the application submitted by the writ petitioner was

rejected.

5.Compassionate appointment is a concession and can never be

claimed as an absolute right. Scheme being violative of the Articles 14 and

16 of the Constitution of India, is to be implemented strictly in accordance

with the terms and conditions stipulated. 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.

6.Compassionate appointment is to be provided within a reasonable

period of time from the date of death of the deceased employee. 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. It is not as

if the scheme is contemplated to provide appointment to the family of the

deceased employee.

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7.Even recently, the Honourable Supreme Court, in the case of State

of Uttar Pradesh and Others vs. Premlata reported in (2022) 1 SCC 30,

made observations in respect of implementation of the scheme of

compassionate appointment and the relevant portion of the order is 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 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

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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 and not a right.

9.1. In the case of H.P. v. Shashi Kumar

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[(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

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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 to meet certain contingencies. One such exception is 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

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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 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. 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

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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 not appear that the earlier binding precedents of this Court have been taken note of in that case.”

8.In view of the fact that the petitioner admittedly is the son of the

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second wife of the deceased employee and the children of the first wife had

not given any no objection for providing appointment to the children of the

second wife, the order of rejection passed by the respondents is in

consonance with the terms and conditions of the scheme of compassionate

appointment. That apart, the deceased employee died in the year 2006 and

now 16 years lapsed. This being the factum, the petitioner is not entitled for

the relief as such sought for in the present writ petition.

9.Accordingly, the writ petition stands dismissed. However, there

shall be no order as to costs.

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