Madras High Court
Prakash vs The Principal Secretary To ... on 1 March, 2022
W.P(MD).No.5197 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.(MD)No.5197 of 2021
Prakash ... Petitioner
Vs.
1.The Principal Secretary to Government of Tamil Nadu
Department of Revenue and Disaster Management,
Secretariat,
Chennai-600 002.
2.The Commissioner,
Commissionerate of Revenue Administration,
PWD Estate,
Chepauk,
Triplicane
Chennai.
3.The District Collector,
Thanjavur District.
4.The Assistant Director,
Department of Survey and Land Records,
Thanjavur. ... Respondents
PRAYER: Writ Petition under Article 226 of the Constitution of India, to
issue a Writ of Mandamus, thereby direct the respondents to provide
1
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W.P(MD).No.5197 of 2021
employment to the petitioners on compassionate grounds for the demise
of his father by considering the petitioner's representation dated
05.01.2021.
For Petitioner : Mr.P.Ganapathi Subramanian
For Respondents : Mr.A.K.Manickam
Special Government Pleader
ORDER
The writ petition is filed to direct the respondent to provide
employment to the petitioner on compassionate ground, based on his
representation dated 05.01.2021.
2.The father of the writ petitioner Devarajan, was employed as
Field Assistant and died on 14.02.2014, while he was in service. The wife
of the deceased employee had not submitted any application for
compassionate appointment. However, the elder brother of the writ
petitioner Mr.Vijayakumar submitted an application within a period of 3
years to the authority for providing appointment and he filed a writ
petition in W.P(MD)No.24746 of 2018 and the said writ petition was
disposed of. However, the elder brother of the petitioner has not pursued
the application submitted by him for appointment on compassionate
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W.P(MD).No.5197 of 2021
ground. The present writ petition has been filed by the petitioner to
pursue the matter, as the elder brother of the petitioner is over aged and
the relaxation of age sought for was not considered.
3.Under these circumstances, the petitioner has filed the present
writ petition for the relief of compassionate appointment. There is no
provision under the scheme of compassionate appointment to entertain
the application from the second legal heir of the deceased employee. In
the present case, the brother of the writ petitioner submitted an
application and filed a writ petition also.
4.The learned Special Government Pleader appearing for the
respondents made a submission that suppressing all those facts, the
present writ petition is filed.
5.This Court is of the considered opinion that the petitioner
submitted an application beyond the period of three years and the
application submitted by his elder brother was considered during the
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W.P(MD).No.5197 of 2021
relevant point of time and the second application for compassionate
appointment is impermissible as per the terms and conditions stipulated
in the scheme.
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.
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W.P(MD).No.5197 of 2021
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 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.
8.Even recently, the Honourable Supreme Court in the case of
State of Uttar Pradesh and Others vs. Premlata, reported in (2022) 1
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W.P(MD).No.5197 of 2021
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;
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
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W.P(MD).No.5197 of 2021
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
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W.P(MD).No.5197 of 2021
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 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
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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
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W.P(MD).No.5197 of 2021
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 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
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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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W.P(MD).No.5197 of 2021
9.This being the factum, the relief as such sought for deserve no
merits and hence, this Writ Petition is dismissed. No costs.
01.03.2022
Index:Yes/No
Internet:Yes/No
Ns
To
1.The Principal Secretary to Government of Tamil Nadu
Department of Revenue and Disaster Management,
Secretariat,
Chennai-600 002.
2.The Commissioner,
Commissionerate of Revenue Administration,
PWD Estate,
Chepauk,
Triplicane
Chennai.
3.The District Collector,
Thanjavur District.
4.The Assistant Director,
Department of Survey and Land Records,
Thanjavur.
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W.P(MD).No.5197 of 2021
S.M.SUBRAMANIAM,J.
Ns
ORDER MADE IN
W.P.(MD)No.5197 of 2021
01.03.2022
https://www.mhc.tn.gov.in/judis
