Madras High Court

Selvam vs The Chief Engineer (Highway ... on 24 February, 2022

                                                                              W.P.(MD) No.3471 of 2022



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 24.02.2022

                                                      CORAM

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                             W.P.(MD) No.3471 of 2022

                     Selvam                                                       ... Petitioner

                                                          -vs-

                     1. The Chief Engineer (Highway Planning),
                        Highways Department,
                        Chennai.

                     2. The Superintending Engineer (Planning),
                        Highways Department,
                        Madurai.

                     3. The Divisional Manager (Planning),
                        Highways Department,
                        Tirunelveli.                       ... Respondents

                     Prayer:- Petition filed under Article 226 of the Constitution of India praying
                     for issuance of Writ of Mandamus directing the 1st respondent appoint the
                     petitioner in any one of the posts in the 1st respondent's department on
                     compassionate ground basis on his application dated 21.02.2007.




                     ___________
                     Page 1 of 12


https://www.mhc.tn.gov.in/judis
                                                                                     W.P.(MD) No.3471 of 2022




                                   For Petitioner       :          Mr.I.Velpradeep

                                   For Respondents      :          Mr.N.Satheesh Kumar
                                                                   Additional Government Pleader

                                                            *******

                                                            ORDER

The relief sought for in the present writ petition is to direct the 1st

respondent to appoint the petitioner in any one of the posts in the 1st

respondent-Department on compassionate grounds based on his application

dated 21.02.2007.

2.The father of the writ petitioner Mr.A.Chelladurai died on

12.05.2007 while he was in service as Junior Engineer. The petitioner states

that an application seeking appointment on compassionate ground was filed

on 21.02.2007 and the petitioner is waiting for an order of appointment all

along. However, the 1st respondent has not considered the application

submitted by the writ petitioner. Thus, the petitioner is constrained to move

the present writ petition.

___________

https://www.mhc.tn.gov.in/judis W.P.(MD) No.3471 of 2022

3.The learned Additional Government Pleader appearing on

behalf of the respondents opposed the said contention by stating that the

father of the petitioner was working as Junior Engineer and further, the

petitioner is now 38 years of age and probably he will be working in

somewhere, as he is a married person. This apart, the application was

submitted in the year 2007 and already 15 years lapsed.

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

___________

https://www.mhc.tn.gov.in/judis W.P.(MD) No.3471 of 2022

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

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

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.

___________

https://www.mhc.tn.gov.in/judis W.P.(MD) No.3471 of 2022

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:

“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;

___________

https://www.mhc.tn.gov.in/judis W.P.(MD) No.3471 of 2022

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:

“21. The decision in Govind Prakash Verma, has been considered subsequently in several decisions.

___________

https://www.mhc.tn.gov.in/judis W.P.(MD) No.3471 of 2022

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

___________

https://www.mhc.tn.gov.in/judis W.P.(MD) No.3471 of 2022

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 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

___________

https://www.mhc.tn.gov.in/judis W.P.(MD) No.3471 of 2022

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 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

___________

https://www.mhc.tn.gov.in/judis W.P.(MD) No.3471 of 2022

appear that the earlier binding precedents of this Court have been taken note of in that case.”

7.This Court is of the considered opinion that the petitioner has

chosen to file the present writ petition at the age of 38 years. Admittedly, he

is a married person and maintaining the family. The father of the writ

petitioner was working as Junior Engineer. Therefore, the pensionary

benefits and the family pension are being paid to the family of the writ

petitioner. For availing the benefit of compassionate appointment, the

indigent circumstances of the family is to be established. In this regard, the

income to the family, other sources of income are to be verified and only if

it is established that the case of the writ petitioner is a deserving one then