Madras High Court

M.Pon Abirami vs The Chairman on 7 March, 2022

                                                                              W.P.(MD) No.21484 of 2021



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 07.03.2022

                                                      CORAM

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                             W.P.(MD) No.21484 of 2021

                     M.Pon Abirami                                      ... Petitioner

                                                          -vs-

                     1.The Chairman,
                       Tamil Nadu Electricity Board,
                       No.800 Anna Salai, Chennai - 2.

                     2.The Chief Engineer,
                       The Tamil Nadu Electricity Board,
                       5-A Block, Electricity Avenue,
                       144, Anna Salai,
                       Chennai - 600 002.

                     3.The Superintending Engineer,
                       Tamil Nadu Generation and Distribution
                          Corporation Ltd.,
                       Virudhunagar Distribution Circle,
                       Virudhunagar.                                    ... Respondents

                     Prayer:- Petition filed under Article 226 of the Constitution of India praying
                     for issuance of Writ of Certiorarified Mandamus to call for the records
                     pertaining to the impugned Rejection letter Lr.No.9854/564/NA/NP/Asst.

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                                                                               W.P.(MD) No.21484 of 2021



                     1/Comp.appnmt/2021 dated 17.08.2021 passed by the 3rd Respondent and
                     quash the same and direct the respondents to provide compassionate
                     appointment to the petitioner.

                                  For Petitioner      :        Ms.Lakshmi Gopinathan,
                                                               for M/s.Polex Legal Solutions

                                  For Respondents     :        Mr.S.Arivalagan,
                                                               Standing Counsel

                                                          ******

                                                          ORDER

The order of rejection dated 17.08.2021 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 Late.V.Murugan was working as

Foreman Grade-I in the 3rd respondent – Corporation and died on

02.10.2016 while he was in service. The petitioner was a minor during the

relevant point of time. Thus, she was not eligible to get appointment on

compassionate grounds. The petitioner, on attaining the age of majority,

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submitted an application on 11.08.2021, after expiry of three years of period

from the date of death of the deceased employee. Thus, the 3 rd respondent

rejected the same.

3.The learned counsel for the petitioner made a submission that

the petitioner is a single child and lost her father. However, the petitioner is

now look after by her mother from and out of the family pension and other

benefits. The petitioner has completed her Diploma Course in Electrical

and Electronics Engineering and under these circumstances, the learned

counsel for the petitioner reiterated that benefit of compassionate

appointment is to be provided.

4.This Court is of the considered opinion that the arguments

articulated by the learned counsel for the petitioner certainly seem to be

attractive and sympathetical situation is also portrayed. However, Courts

are not expected to take decision on misplaced sympathy. When the rights

are dealt with equally, the infringement of rights of the citizen are also to be

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considered by the constitutional courts. In the event of expanding the scope

of compassionate appointment, the eligible candidates who all are longing

to secure public employment are deprived of their rights. All appointments

are to be made under constitutional schemes by providing equal opportunity

through open competitive process. In the event of exercising the power of

judicial review under Article 226 and providing appointment on certain

misplaced sympathy, it will result in unconstitutionality and deprive the

rights of all other eligible candidates who all are waiting to secure

employment through open competitive process. The consequences of

misplaced sympathy in such cases are disastrous. Contrarily, the petitioner,

just completed her Polytechnic Course, is getting an opportunity to

participate in the open competitive process. Always, the young candidates

of this great nation must aspire to get public employment in a meritorious

manner and by way of reservation provided. Contrarily, the scheme of

compassionate appointment and its scope if expanded, it will result in denial

of opportunity to other persons.

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5.Compassionate appointments are made without assessing the

relative merits between the candidates. There is no eligibility or suitability

which all are tested by the authorities. Thus, such appointments are to be

certainly restricted only by providing benefit to the most deserving families

and not in a routine manner. Thus, the scheme of compassionate

appointment is to be granted only in case where the mitigating

circumstances are established beyond any doubt, but not otherwise.

6..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],

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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 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

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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 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, that but for the provision of employment, the family will

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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 upturned.”

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“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.”

7.In the present case, the father of the writ petitioner died on

02.10.2016 and the petitioner on attaining the age of majority, submitted an

application on 11.08.2021 beyond the period of three years contemplated

under the scheme. However, certain factual mistakes found in the impugned

order will not provide a remedy to the writ petitioner which is otherwise not

in consonance with the scheme of compassionate appointment. In such

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view of the matter, the petitioner is not entitled for the relief as such sought

for in this writ petition and the writ petition is liable to be dismissed.

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

there shall be no order as to costs.