Madras High Court

D.Chinnaponnu vs The Commissioner on 17 August, 2022

                                                                                         WP No.31283 of 2015

                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED : 17-08-2022

                                                                CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                      WP No.31283 of 2015
                                                             And
                                                       MP No.1 of 2015

                     1.D.Chinnaponnu
                     2.D.Govindan                          ..                       Petitioners

                                                                 vs.

                     The Commissioner,
                     Corporation of Chennai,
                     Ripon Building,
                     Chennai.                              ..                       Respondent



                                  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 pertaining to the order passed by the respondent in his proceedings in
                     P.D.Na.Ka.No.E9/52244/08 dated 26.09.2008 quash the same and direct the
                     respondent to appoint the second petitioner in a suitable post in the
                     Corporation of Chennai on compassionate grounds.


                                  For Petitioners                 : Mr.S.Sathish Rajan


                     1/14


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                                                                                       WP No.31283 of 2015



                                  For Respondent                : Mr.S.Gopinathan,
                                                                   Standing Counsel for Chennai
                                                                   Corporation.

                                                           ORDER

The order of the respondent dated 26.09.2008 rejecting the claim

of the writ petitioner for appointment on compassionate ground after a lapse

of about 7 years from the date of passing the impugned order, is under

challenge in the present writ petition.

2. The husband of the first writ petitioner late Mr.G.Dhanapal

was working as Salai Paniyalar in the Corporation of Chennai and died on

27.01.2003, while he was in service. The first petitioner-mother initially

submitted an application, seeking appointment on compassionate ground on

12.11.2003 and the said application was not considered within a reasonable

period of time by the respondent.

3. It seems that the first petitioner-mother also had not pursued

the application thereafter and a second application seeking compassionate

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appointment was submitted by the first petitioner-mother on 13.02.2006 to

provide employment to her second petitioner-son, as she had crossed the age

of 40 years.

4. The second application submitted by the first petitioner to

provide employment to her second petitioner-son was rejected through an

impugned order in proceedings dated 26.09.2008 stating that the second

application filed seeking appointment to the another legal heir of the deceased

employee is not entertainable with reference to the terms and conditions of

the Scheme.

5. The learned counsel for the petitioners mainly contended that

the first application was not processed properly within a reasonable period of

time and on account of the delay in considering the application, the first

petitioner-mother became over aged. Therefore, she submitted an application

to provide employment to her second petitioner-son.

6. The fact remains that the second application submitted by the

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first petitioner-mother to provide employment to her second petitioner-son

was also rejected in proceedings dated 26.09.2008 and the said order

challenged in the present writ petitioner, after a lapse of about 7 years from

the date of passing of the impugned order. Thus, the writ petition is to be

rejected on the ground of laches.

7. The Scheme of Compassionate Appointment was introduced

to mitigate the circumstances arising on account of sudden demise of the

Government Employee. Compassionate appointment is not a regular

appointment, nor an appointment under the constitutional scheme. It is a

concession granted to the Government employees on certain exceptional

circumstances. Thus, the compassionate appointment can never be claimed as

a matter of right and only if a person is entitled under the terms and

conditions, then alone the scheme can be extended, but not otherwise. Equal

opportunity in public employment is a constitutional mandate. All

appointments are to be made in accordance with the rules and by providing

equal opportunity to participate in the process of selection.

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8. As far as the compassionate appointments are concerned, no

selection is conducted, no suitability or eligibility is tested, but persons are

appointed merely based on death of an employee. Therefore, compassionate

appointment is to be restricted in the interest of the efficient public

administration. No doubt, the Government has also restricted the

compassionate appointments and it is to be extended only to the deserving

family and more so, after a lapse of many years. Providing compassionate

appointment after a lapse of many years would not only defeat the purpose

and object of the scheme, but also the penurious circumstances arose on

account of the sudden death became vanished. Thus, the lapse of time is also

a ground to reject the claim for compassionate appointment. Number of

judgments are delivered by this Court and the Government has also issued

revised instructions for providing compassionate appointment in G.O.(Ms)

No.18, Labour and Employment (Q1) Department, dated 23.01.2020.

9. Even recently, the Honourable Supreme Court in the case of

State of Uttar Pradesh and Others vs. Premlata [(2022) 1 SCC 30], has

made observations in respect of implementation of the scheme of

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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 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

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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 [(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

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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

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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 deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet

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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 and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile

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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.”

10. In view of the fact that the second petitioner-son is now aged

about 34 years and further his application was rejected in the year 2008,

which was challenged in the year 2015, the claim of the first petitioner-

mother cannot be entertained at this length of time. That apart, about 20 years

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have elapsed from the date of death of the deceased employee and therefore,

the penurious circumstances aroused on account of the sudden death of an

employee, cannot be a factor for the purpose of providing public employment

on account of efflux of time.

11. Thus, the writ petition is devoid of merits and stands

dismissed both on the ground of laches and on merits. However, there shall

be no order as to costs. Consequently, the connected miscellaneous petition is