Madras High Court

S.Viveksharma vs The Chief Manager on 7 February, 2022

                                                            W.P.(MD) No.21265 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.21265 of 2019


            S.Viveksharma                                                  ... Petitioner
                                                   vs.


            1.The Chief Manager
              Personal Administration Department
              Indian Overseas Bank Central Office
              763, Anna Salai, Chennai

            2.The Regional Manager
              Indian Overseas Bank
              Regional Office
              2nd Floor, No.40, Eighty Feet Road
              Arignar Anna Nagar
              Madurai                                                      ... Respondents


            PRAYER: Writ Petition filed under Article 226 of the Constitution of India for

            issuance of writ of certiorarified mandamus calling for the records pertaining

            to the impugned order passed by the first respondent in his proceedings in

            Ref.No.HRMD/178/CL/11/2018-19, dated 26.06.2019 and quash the same

            as illegal, consequently directing the first respondent to consider the petitioner

            for appointment under compassionate ground.




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                                                          W.P.(MD) No.21265 of 2019


                   For Petitioner    : Mr.T.Lenin Kumar

                   For Respondents : Mr.N.Dilip Kumar


                                              ORDER

The order dated 26.06.2019, passed by the first respondent,

rejecting the application submitted by the petitioner for appointment on

compassionate grounds is under challenge in this writ petition.

2. The father of the petitioner Late.G.Shanmuganathan was

working as Cashier in the respondent – Bank and he died on 23.07.2003 while

he was in service. The mother of the petitioner submitted application to the

first respondent seeking appointment on compassionate grounds and the

respondent – Bank, considering the family circumstances, appointed the her

on daily wage basis as Messenger in the year 2004. Thereafter, she was

discharged from service on 11.11.2011 on the ground that the School Transfer

Certificate submitted by the petitioner's mother was found to be not genuine.

The scheme of compassionate appointment was introduced in the respondent

– Bank in the year 2015. Therefore, the petitioner submitted application in

the year 2015 and thereafter, in the year 2019. However, the request of the

petitioner was rejected on the ground of delay in submitting application.

Hence, this writ petition.

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3. 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.

4. 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 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

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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.

5. 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 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:

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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 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:

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“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 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

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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 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

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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, (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.”

6. Admittedly, the employee / father of the petitioner died in the

year 2003. His mother was engaged on daily wage basis during 2004 and she

was discharged from service during 2011 on account of the fact that she

submitted a bogus School Transfer Certificate. Thus, the respondent – Bank

found that the family of the petitioner is not entitled for any appointment on

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compassionate grounds. This apart, the petitioner made application after a

lapse of 12 years from the date of death of his father. In such circumstances,

this Court is of the view that the petitioner is not entitled for the relief as such

sought for in this writ petition and the writ petition is liable to be dismissed.

7. Accordingly, the writ petition stands dismissed. No costs.