Madras High Court

D.Dynishmetha vs The Chief Educational Officer on 25 February, 2022

                                                                               W.P.(MD)No.18873 of 2020

                        BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 25.02.2022

                                                    CORAM:

                            THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                            W.P.(MD)No.18873 of 2020
                 D.DynishMetha                                               ... Petitioner
                                                       -Vs-
                 1.The Chief Educational Officer,
                    Ramanathapuram, Ramanathapuram District.


                 2.The District Educational Officer,
                    Ramanathapuram, Ramanathapuram District.


                 3.The Tahsildar,
                    Agastheeswaram, Nagercoil,
                    Kanyakumari District.                                    ... Respondents


                 PRAYER: Writ Petition filed under Article 226 of the Constitution of India
                 for issuance of Writ of Certiorarified Mandamus, calling for the records
                 relating to the impugned proceedings issued by the third respondent Tahsildar
                 vide impugned proceedings in Mu.Mu.No.A2/9745/2019, dated 06.12.2019,
                 quash the same and further direct the third respondent herein to issue
                 Composite Certificate in favour of the petitioner herein.

                 1/12

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                                                                                 W.P.(MD)No.18873 of 2020




                                    For Petitioner    : Mr.T.Cibi Chakraborthy
                                    For R1 and R2     : Mr.N.Ga.Nataraj,
                                                       Government Advocate
                                    For R3            : Mr.M.Ramesh,
                                                       Government Advocate.


                                                         ORDER

The order of rejection dated 06.12.2019 passed by the Tahsildar,

assessing the family income of the petitioner, is under challenge in the present

Writ Petition.

2.The petitioner has completed B.E. (Mechanical) degree and states

that his mother Delphin Rani died in harness on 13.08.2013, while she was

serving as Secondary Grade Teacher in Panchayat Union Primary School,

Thanichiam, Kadaladi Union, Ramanathapuram District. Therefore, the

petitioner has submitted an application before the Tahsildar for issuance of

Composite Certificate and the Tahsildar has conducted an enquiry and issued

the impugned order, rejecting the application of the writ petitioner. Hence, the

petitioner has filed this Writ Petition.

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3.The learned counsel appearing for the petitioner made a

submission that the Tahsildar has not considered the fact that the petitioner is

in indigence circumstances and the salary of his father may not be considered

for the purpose of assessing the indigence circumstances of the petitioner.

4.This Court is of the considered opinion that the petitioner is an

unmarried son and after the death of his mother, he is living with the maternal

grandmother. As per the scheme, if the unmarried son, who is not employed,

is the dependent of the family and the father is the head of the family, who is

working in Kanyakumari District Central Co-operative Bank and drawing

salary of more than Rs.72,000/- per month, he is not eligible to get indigence

certificate.

5.This Court is of the considered opinion that to assess the

indigence circumstances, the situation prevailing in the entire family income

and other sources of the income of the family members is to be considered. It

is not as if the scheme provides one appointment to the family of the deceased.

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The scheme contemplated certain terms and conditions for the purpose of

considering the cases.

6.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.

7.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

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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.18, Labour and Employment, dated

23.01.2020.

8.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

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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;

10.5. The norms prevailing on the date of the consideration of the application should be the basis

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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 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

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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 one of the dependants of the deceased who may be eligible for such employment.

The whole object of granting compassionate

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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

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

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9.In the present case, the petitioner is an unmarried son, completed

B.E. degree and his father is serving in the Kanyakumari District Central

Co-operative Bank and drawing salary of more than Rs.72,000/-. This being

the factum, the petitioner is not eligible to avail the scheme of compassionate

appointment and therefore, this Court do not find any infirmity in the order

impugned passed by the Tahsildar / third respondent with reference to the

enquiry effected and this Court is of the opinion that when the fact remains

that the father of the writ petitioner is gainfully employed in a permanent post

in the Central Co-operative Bank, the family cannot be declared as indigent.

Accordingly, this Writ Petition stands dismissed. No costs.

25.02.2022 Index : Yes / No Internet : Yes / No