Madras High Court

Tamilarasan vs The Commissioner on 23 February, 2022

W.P. (MD) No. 5602 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. 5602 of 2020 and
W.M.P. (MD) Nos. 4909 of 2020
Tamilarasan ... Petitioner

Vs.

1. The Commissioner,
Hindu Religious Charitable and Endowments Department,
No.119 Uttamar Gandhi Salai,
Nungambakkam,
Chennai - 600 008.

2. The Assistant Commissioner / Executive Officer,
Arulmighu Thiruvarakkadu Karimariamman Kovil,
Thiruvakkadu,
Chennai. ... Respondents

PRAYER: Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus to call for the
impugned order passed by the first respondent by an order vide P.Mu.No.
23772/2019/U2 dated 30.09.2019 and quash the same and consequently
direct the respondents to provide compassionate appointment to the
petitioner.

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W.P. (MD) No. 5602 of 2020

For Petitioners : Mr.B.Arun

For Respondents : Mr.P.T.Thiraviam
Government Advocate

ORDER

The order of rejection dated 30.09.2019 rejecting the application

submitted by the writ petitioner for compassionate appointment is under

challenge in the present Writ Petition.

2. The father of the petitioner one Andi was working in the

second respondent Temple as Telephone Operator and died on 03.03.2005,

while he was in service. The criminal case was registered against the mother

of the writ petitioner and she was convicted. The petitioner submitted an

application for compassionate appointment on 15.03.2016. The said

application was rejected on the ground that the petitioner submitted an

application after a lapse of eleven years from the date of death of the

deceased employee. The scheme of compassionate appointment is to be

extended strictly in accordance with the terms and conditions.

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3. All appointments are to be made strictly in accordance with the

recruitment rules in force. Equal opportunity in public employment is the

constitutional mandate. Thus, the appointments are to be made through

open competitive process by providing opportunity to all eligible

candidates, who are all aspiring to secure public employment. Thus, the

Court cannot expand the scope of the scheme, as it would result in

infringement of the constitutional rights of all eligible candidates who are

all longing for public employment.

4. In the present case, admittedly, the employee died on

03.03.2005 and the petitioner submitted an application on 15.03.2016 and

the order of rejection was passed on 30.09.2019 and almost 17 years lapsed

from the date of death of the deceased employee.

5. This being the factum, the scheme cannot be extended in

favour of the petitioner. The principles regarding the compassionate

appointment has been elaborated by the Hon'ble Supreme Court of India in

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the case of State of Uttar Pradesh and Others vs. Premlata, reported in

(2022) 1 SCC 30 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 14 and 16 of the Constitution of India;

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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

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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 the crisis that a job is to be offered to the eligible member of the

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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

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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. In view of the facts and circumstances, the petitioner has not

accepted any acceptable legal ground and the reason stated in the impugned

order is in consonance with the scheme.

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7. Accordingly, this Writ Petition stands dismissed. However,

there shall be no order as to costs. Consequently, connected Miscellaneous

Petition is closed.

23.02.2022 Index : Yes Speaking Order : Yes

vji

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