Madras High Court

S.Selvi vs The Chief Divisional Engineer ... on 7 February, 2022

W.P. (MD) No. 7244 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. 7244 of 2019

S.Selvi ... Petitioner
Vs.

1. The Chief Divisional Engineer (Highways),
Construction and Maintenance Department,
Travellers Bungalow Complex,
Madurai - Manadpam Road,
Ramanathapuram,
Ramanathapuram District.

2. The Assistant Divisional Engineer (Highways),
Office of the Assistant Divisional Engineer (Highways),
Construction and Maintenance Department,
Muthukulathur,
Ramanathapuram District. ... Respondents

PRAYER: Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus calling for the
records pertaining to the impugned order in F/vz;:71/2017/m2/2017 dated
24.07.2017 on the file of the second respondent herein and to quash the
same as illegal and consequently directing the second respondent herein to

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appoint the petitioner's son namely S.Sambath based on the compassionate
grounds, by implementing the G.O.(Ms).No.216 of the Labour and
Employment (Q1) Department dated 15.11.2007.

For Petitioner : Mr.D.Balamurugapandi

For Respondents : Mr.S.Sadiq Raja
Additional Government Pleader

ORDER

The order impugned dated 24.07.2017 rejecting the claim of the

writ petitioner for compassionate appointment on the ground that the

petitioner has not submitted an application within a period of three years

from the date of the death of the deceased employee is under challenge in

the present Writ Petition.

2. The husband of the writ petitioner one Selvam was working as

Road Inspector Grade-II in the office of the second respondent and died on

09.11.2008, while he was in service. The children were minor at the time of

death of the father. The wife of the deceased employee / writ petitioner

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submitted an application seeking appointment on 03.11.2011, which is just

six days prior to the completion of three years of period. The said

application was returned on 29.11.2011 and subsequently, rejected in the

year 2017.

3. The order of rejection which is impugned herein states that the

petitioner, for whom the appointment is sought for, i.e., the son of the

petitioner, had not submitted any application within a period of three years

from the date of the death of the deceased employee. The petitioner filed an

application six days prior to the expiry of three years on 03.11.2011 seeking

appointment in favour of her son. During the relevant point of time, the son

of the petitioner was a minor and aged about 14 years. He attained the

majority only four years thereafter and therefore, the authorities arrived a

conclusion that the son of the petitioner at the time of the application was a

minor and he was not eligible for compassionate appointment. In respect of

the application submitted seeking appointment for ineligible persons, it

cannot be considered during relevant point of time. After completing the 18

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years of age, the period of three years lapsed as far as the son of the writ

petitioner is concerned and no application can be entertained.

4. 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.

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

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

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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 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.No.18, Labour and

Employment, dated 23.01.2020.

6. 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:

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“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 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;

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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:

“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

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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

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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

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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

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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, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the

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

7. In view of the facts and circumstances, this Court is of an

opinion that the petitioner has not established any acceptable ground for the

purpose of considering the relief as such sought for in this Writ Petition.

8. Accordingly, the Writ Petition stands dismissed. However, there

shall be no order as to costs.

07.02.2022

vji

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1. The Chief Divisional Engineer (Highways), Construction and Maintenance Department, Travellers Bungalow Complex, Madurai - Manadpam Road, Ramanathapuram, Ramanathapuram District.

2. The Assistant Divisional Engineer (Highways), Office of the Assistant Divisional Engineer (Highways), Construction and Maintenance Department, Muthukulathur, Ramanathapuram District.

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S.M.SUBRAMANIAM, J.

vji

W.P. (MD) No. 7244 of 2019

07.02.2022

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