W.P.No.36262 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.11.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.36262 of 2016
S.Parthasarathi ...Petitioner
Vs.
1.The Chairman,
Chennai Port Trust,
Rajaji Salai,
Chennai – 600 001.
2.The Secretary,
Chennai Port Trust,
Rajaji Salai,
Chennai – 600 001.
3.The Government of India,
Rep.by its Secretary to the Government,
Ministry of Shipping, RT & H,
Department of Shipping (Port Wing)
Transport Bhavan,
No.1, Paliament Street,
New Street – 110 001. ..Respondents
Prayer : Writ Petition filed Under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus, calling for the records connected
with the Impugned Letter No.SCT5/6908/2014/GA dated --.12.2014 issued
by the 2nd respondent and quash the same and direct the 1 st respondent to
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appoint the petitioner in any job based upon his seniority number D.R.2361
in the respondent's Port Trust from 2005 duly permitting him to draw his
arrears of pay and allowances and other benefits in the respective scale of
pay retrospectively on par with his juniors A.Sumathi & Jayachitra.
For Petitioner : Mr.S.A.Shanmugam
For M/s.Law Square
For R1 & R2 : Mr.Krishnaravindran
Government Advocate
ORDER
The order dated December 2014 issued by the second
respondent/Chennai Port Trust, rejecting the claim of the writ petitioner for
compassionate appointment is under challenge in the present writ petition.
2. The petitioner states that his father Late M.Sundaram served in
Chennai Port Trust and died on 10.06.1998, while he was in service. The
petitioner submitted an application seeking appointment on compassionate
grounds on 07.08.1998 and the benefit of the scheme of compassionate
appointment was not extended to the petitioner by the respondents during
the relevant point of time.
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3. Pursuant to the Government of India directions issued in
G.O.No.14014/19/2022, Estt (D) dated 05.05.2003, the Chennai Port Trust
paid the compensation in lieu of compassionate appointment to the legal
heirs of the deceased employee, since the Port Trust was not in a position to
provide compassionate appointment to large number of applicants. Pursuant
to the scheme of ex-gratia payment in lieu of compassionate appointment,
the legal heirs of the deceased employee during the relevant point of time,
had received the compensation and consequently, the applications submitted
by them were closed by the respondent/Chennai Port Trust.
4. After a lapse of several years from the date of the death of the
deceased employee, the petitioner has again submitted an application to the
respondents to provide appointment on compassionate grounds. Such an
application submitted in the year 2014 by the petitioner was rejected by the
second respondent on the ground that the father of the writ petitioner died
on 10.06.1998, while in service at the age of 57 years, 11 months and 10
days and the application for compassionate appointment has been filed after
a lapse of about 16 years from the date of death of the deceased employee
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and after receiving the compensation amount from the first respondent.
Thus, the application itself was rejected.
5. The scheme of compassionate appointment is a concession and
cannot be claimed as an absolute right. Scheme is to be implemented
scrupulously in accordance with the terms and conditions. The purpose and
object of the scheme is to mitigate the circumstances arising on account of
the sudden death of an employee. Thus, it is not as if one appointment is to
be granted to the family of the deceased employee. In genuine
circumstances, the appointment is to be provided within a reasonable period
from the date of death of the deceased employee. Contrarily, compassionate
appointment cannot be provided after a lapse of many years and in such
circumstances, an inference to be drawn that the penurious circumstances
aroused on account of the sudden death of an employee became vanished.
Thus, the scheme of compassionate appointment cannot be extended after a
lapse of about several years.
6. In the present case, the father of the writ petitioner died in the year
1998 and the first application submitted was considered and as per the
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Government of India orders, compensation was paid to the family of the
deceased employee and thereafter, the petitioner submitted an application to
provide appointment on compassionate grounds after a lapse of about
several years, which was rejected.
7. The principles regarding compassionate appointment was
considered by the Apex Court in the following judgments:
(a) The Supreme Court of India in the case of Union of India and
others Vs. Amrita Sinha in C.A.No.7640 –7641 of 2021 dated 11.12.2021
(2021 15 Scale 174) held in Paragraph No.10 as follows :
“The monthly pension which was payable to the respondent was required to be taken into account in the award of merit points. The Tribunal, however, came to the conclusion that pension is paid for past service rendered by the employee and, hence, denial of compassionate appointment on that basis was not justifiable. This reasoning of the Tribunal is fallacious.
Undoubtedly, pension is not an act of bounty, but is towards the service which has been rendered by an employee. However, in evaluating a claim
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for compassionate appointment, it is open to the authorities to evaluate the financial position of the family upon the death while in service. Compassionate appointment is not a vested right. It is provided in order to enable a family to tide over a financial crisis caused by the death of its wage-earner while in service. If the scheme requires that the family pension must be taken into account in evaluating the merits an application, it has to be followed.”
(b) In this regard, the Hon'ble Supreme Court of India in the case of
Ahmednagar Mahanagar Palika vs. Ahmednagar Mahanagar Palika
Kamgar Union reported in [2022 LiveLaw (SC) 739], wherein in
paragraph-8 of its judgment, reiterated the principles to be adopted for
providing appointment on compassionate grounds as under:-
“8. Even otherwise, such an appointment to the heirs of the employees on their retirement and/or superannuation shall be contrary to the object and purpose of appointment on compassionate grounds and is hit by Article 14 of the Constitution of India. As observed and
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held by this Court in a catena of decisions, compassionate appointment shall always be treated as an exception to the normal method of recruitment. The appointment on compassionate grounds is provided upon the death of an employee in harness without any kind of security whatsoever. The appointment on compassionate grounds is not automatic and shall be subject to the strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family. No one can claim to have a vested right for appointment on compassionate grounds. Therefore, appointment on compassionate grounds cannot be extended to the heirs of the employees on their superannuation and/or retirement. If such an appointment is permitted, in that case, outsiders shall never get an appointment and only the heirs of the employees on their superannuation and/or retirement shall get an appointment and those who are the outsiders shall never get an opportunity to get an appointment though they
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may be more meritorious and/or well educated and/or more qualified.”
(c) Even in yet another recent judgment of the Hon'ble Supreme Court
in the case of CENTRAL BANK OF INDIA vs. NITIN reported in [2022
LiveLaw (SC) 690] , wherein in paragraphs 20 and 21, it has been held as
under:-
“20. It is well settled that compassionate appointment is an exception to the rule of equality, which enables the dependent family members of a medically incapacitated employee who has no option, but to retire, or a deceased employee, to tide over the immediate crisis caused by the incapacitation or death of the breadwinner. Compassionate Appointment excludes equally or more meritorious candidates, much in need of a job, from the zone of consideration. Consideration for compassionate appointment must, therefore, be strictly in accordance with the prevalent rules for compassionate appointment applicable to the
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deceased/prematurely retired employee.
21. In this case, there is a financial criteria of eligibility for compassionate appointment under the Compassionate Appointment Scheme.
Rules which provide for a financial criteria for appointment on Compassionate ground are valid and lawful rules which have to be construed strictly, as otherwise the quota reserved for compassionate appointment would be filled up excluding others who might be in greater and/or far more acute financial distress.”
(d) Even recently on 30.09.2022, the Hon'ble Supreme Court of India
in the case of The State of Maharashtra and another Vs. Ms.Madhuri
Maruti Vidhate (Since after marriage Smt.Madhuri Santhosh Koli),
reported in 2022 LiveLaw (SC) 820, laid down the principles as follows:
“5. 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 the case of Director of Treasuries in Karnataka and Anr. Vs. V. Somyashree, 2021 SCC Online SC 704, had occasion to consider the principle governing the grant of
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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 summarised the principle governing the grant of appointment on compassionate ground as under:-
(i) that the compassionate appointment is an exception to the general rule;
(ii) that no aspirant has a right to compassionate appointment;
(iii) 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;
(iv) 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;
(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.
6. As per the law laid down by this Court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be
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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.
6.1 . ........... Govind Prakash Verma Vs. LIC, reported in (2005) 10 SCC 289.......
“21. ............
“2. ..........As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit.
................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. ...............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
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destitute. ........
26. ......Mumtaz Yunus Mulani v. State of Maharashtra [(2008) 11 SCC 384] 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.....
7. Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and 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 such family a post much less a post held by the deceased.
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7.1. ........Even otherwise, she shall not be entitled to appointment on compassionate ground after a number of years from the death of the deceased employee.”
(e) Yet another judgment in the case of Fertilizers and Chemicals
Travancore Ltd & Ors. Vs. Anusree K.B. reported in 2022 LiveLaw (SC)
819, the Apex Court held as follows:
“9. ...........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 such family a post much less a post held by the deceased.
9.1. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the respondent shall not be entitled to the appointment on compassionate ground on the death of her father, who died in the year 1995. After a period of 24 years from the death of the deceased employee, the respondent shall not be entitled to
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the appointment on compassionate ground. If such an appointment is made now and/or after a period of 14/24 years, the same shall be against the object and purpose for which the appointment on compassionate ground is provided.”
8. In view of the fact that the father of the writ petitioner died in the
year 1998 and now 24 years lapsed, the scheme of compassionate
appointment cannot be extended.
9. Accordingly, the writ petition stands dismissed. No costs.
01.11.2022
Index : Yes Speaking order:Yes kak
To
1.The Chairman, Chennai Port Trust, Rajaji Salai, Chennai – 600 001.
2.The Secretary,
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Chennai Port Trust, Rajaji Salai, Chennai – 600 001.
3.The Secretary to the Government, The Government of India, Ministry of Shipping, RT & H, Department of Shipping (Port Wing) Transport Bhavan, No.1, Paliament Street, New Street – 110 001.
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S.M.SUBRAMANIAM, J.
kak
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