Madras High Court
R.Tamil Selvi vs The Commissioner Of Social ... on 7 February, 2022
W.P.(MD) No.2579 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.02.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.(MD) No.2579 of 2019
and
W.M.P(MD)Nos.1971 & 1972 of 2019
R.Tamil Selvi ... Petitioner
Vs.
1.The Commissioner of Social Welfare,
O/o.the Commissioner of Social Welfare Office,
Panagal Maligai 2nd Floor,
Saidapet,
Chennai – 15.
2.The District Project Officer,
ICDS Scheme,
Nanguneri,
Thirunelveli District.
3.The Child Development Project Officer,
O/o.the Child Development Project Office,
Nanguneri,
Thirunelveli District. ... Respondents
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W.P.(MD) No.2579 of 2019
Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus calling for the
records relating to the impugned order passed by the first respondent in his
proceedings in e.f.vz;.4366/ ePH 4(3) /2018 dated 25.07.2018 and quash the
same as illegal and consequentially to direct the respondents to appoint the
petitioner on compassionate ground commensurate with the qualification of
the petitioner within the period that may be stipulated by this Court.
For Petitioner :Mr.Mohammed Imran for
M/s.Ajmal Associates
For Respondents :Mr.AK.Manikkam,
Special Government Pleader
******
ORDER
The order impugned, dated 25.07.2018 passed by the first
respondent rejecting the claim of the writ petitioner for compassionate
appointment, is under challenge in the present writ petition.
2. The petitioner states that her father Mr.R.Renganathan was
working as Junior Assistant in the office of the third respondent and died on
20.04.2009 while he was in service. The petitioner states that her family
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W.P.(MD) No.2579 of 2019
was suffering on account of the sudden demise of her father. The mother of
the petitioner submitted an application on 15.03.2012 to provide
appointment on compassionate ground to the petitioner and the said
application was rejected by the first respondent, which is impugned in the
writ petition.
3. The learned counsel for the petitioner made a submission that
the application was rejected on the ground that the petitioner was a minor
for a period of three years from the date of death of the deceased employee
and she was not eligible for appointment.
4. The learned counsel for the respondents reiterated that there
were correspondence between the petitioner and the Department and the
delay caused by the Department cannot be attributed by the petitioner.
5. This Court is of the considered opinion that no doubt the delay
in considering the application cannot be at the fault of the petitioner,
equally, the delay in not providing the compassionate appointment cannot
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W.P.(MD) No.2579 of 2019
be faulted on the part of the Department as the compassionate appointment
is to be restricted to the extend permissible. In the event of providing
compassionate appointment alone based on the series of application
submitted then there cannot be any scope for public recruitment. The
scheme of compassionate appointment is an exceptional and undoubtedly it
is to be restricted without affecting the public appointments to be made
through the recruitment process. There is no recruitment process for the
compassionate appointment. No selection is conducted. Eligibility and
suitability are not tested. Therefore, the efficiency of compassionate
appointees itself is in question. However, such appointments are granted by
way of scheme to provide an appointment in an exceptional circumstances.
Therefore, compassionate appointment cannot be made as a recruitment
appointment and while restricting the appointment, if the delay occurred, the
petitioner cannot be faulted with the department, but the administrative
exigencies caused such delay and such a delay cannot be a ground to secure
appointments through Courts.
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6. 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.
7. As far as the compassionate appointments are concerned, no
selection is conducted, no suitability or eligibility are 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 also restricted the
compassionate appointment and it is to be extended only to the deserving
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W.P.(MD) No.2579 of 2019
family and more so, not 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 also issued revised instructions for providing compassionate
appointment in G.O.Ms.18, Labour and Employment, dated 23.01.2020.
8. Even recently, the Honourable Supreme Court 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
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W.P.(MD) No.2579 of 2019
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 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.
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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
Prakash Verma v. 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
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W.P.(MD) No.2579 of 2019
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 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
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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 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
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W.P.(MD) No.2579 of 2019
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 v. 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,
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W.P.(MD) No.2579 of 2019
(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.”
9. The father of the petitioner died on 20.04.2009 and now 13
years lapsed. Under these circumstances, this Court is not inclined to
consider the claim of the writ petitioner.
10. With these observations, the writ petition stands dismissed.
No order as to costs. Consequently, connected miscellaneous petitions are
closed.
07.02.2022
Index : Yes/No
Internet: Yes/No
am
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W.P.(MD) No.2579 of 2019
To
1.The Commissioner of Social Welfare,
Panagal Maligai 2nd Floor,
Saidapet,
Chennai – 15.
2.The District Project Officer,
ICDS Scheme,
Nanguneri,
Thirunelveli District.
3.The Child Development Project Officer,
Nanguneri,
Thirunelveli District.
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W.P.(MD) No.2579 of 2019
S.M.SUBRAMANIAM, J.
am
W.P.(MD) No. 2579 of 2019
07.02.2022
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