Madras High Court
C.Jagadeesh vs The Commissioner on 23 February, 2022
W.P.(MD)No.13101 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.(MD)No.13101 of 2020
C.Jagadeesh ... Petitioner
-Vs-
The Commissioner,
Ottanchathiram Municipality,
Ottanchathiram, Dindigul District. ... Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
for issuance of Writ of Certiorarified Mandamus, to call for the records
pertaining to the impugned order in Na.Ka.No.773/2013/P.1, dated 02.12.2016
on the file of the respondent and quash the same as illegal and consequently,
to direct the respondent to provide compassionate ground appointment to the
petitioner within the time stipulated by this Court.
For Petitioner : Mr.S.Louis
For Respondent : Mr.J.Parekhkumar
1/12
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W.P.(MD)No.13101 of 2020
ORDER
The order impugned dated 02.12.2016, rejecting the claim of the
writ petitioner for compassionate appointment, is under challenge in the
present Writ Petition.
2.The father of the writ petitioner was working as Over Head Tank
Operator in the respondent Municipality and died in harness on 19.01.2011.
The petitioner during the relevant point of time was a minor and therefore, not
eligible to seek appointment on compassionate ground. The mother of the
petitioner submitted an application for appointment. However, the fact
remains that the mother is an illiterate woman and she has not pursued the
matter during the relevant time.
3.The authorities informed the petitioner that the petitioner may
submit an application, after attaining the age of majority. Accordingly, the
petitioner submitted application, on attaining the age of majority on
30.10.2016 and thereafter, the respondent passed the impugned order on
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02.12.2016, rejecting the application on the ground that at the time of the
death of the deceased employee, the petitioner was a minor. Thus, the fact
remains that the employee died on 19.01.2011 and the petitioner attained the
age of majority on 25.10.2015 and thus, the application was submitted beyond
the period of three years.
4.This Court is of the considered opinion that the very purpose and
object of the scheme of compassionate appointment is to mitigate the
circumstances, arising on account of sudden demise of the Government
Employee and therefore, the appointment on compassionate ground cannot be
granted after a lapse of many years. The scheme, being exception, is violative
of Articles 14 and 16 of Constitution of India. Thus, the scheme is to be
implemented in a restricted manner, so as to ensure that all appointments are
made under the Constitutional schemes and in accordance with the recruitment
rules in force.
5.Compassionate appointment is not a regular appointment, nor an
appointment under the constitutional scheme. It is a concession granted to the
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W.P.(MD)No.13101 of 2020
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.
6.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 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
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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.
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, 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
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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 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
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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 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,
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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 and the legitimate expectations, and the change
in the status and affairs, of the family engendered by
the erstwhile employment which are suddenly
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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.”
8.In the present case, the petitioner submitted the application, after
attaining the age of majority, by that time period of three years expired. This
being the factum, this Court is not inclined to provide appointment on
compassionate ground, after a lapse about 10 years from the date of death of
the deceased employee. There is no infirmity as such in respect of the order of
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W.P.(MD)No.13101 of 2020
rejection. Accordingly, this Writ Petition stands dismissed. No costs.
23.02.2022
Index : Yes / No
Internet : Yes / No
Myr
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W.P.(MD)No.13101 of 2020
S.M.SUBRAMANIAM,J.
Myr
W.P.(MD)No.13101 of 2020
23.02.2022
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