Madras High Court
S.Rani vs The Commissioner Of Municipal ... on 10 October, 2022
W.P.No.5689 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.10.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.5689 of 2017
S.Rani ...Petitioner
Vs.
1.The Commissioner of Municipal Administration,
Chepauk,
Chennai.
2.The Commissioner (in-charge)
Velparai Municipality,
Velparai,
Coimbatore District. ..Respondents
Prayer : Writ Petition filed Under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus, calling for the records
pertaining to the impugned proceedings in Na.Ka.No.180/2016/C-1 dated
19.01.2017 issued by 2nd respondent and quash the same as illegal and
consequently direct the respondents to appoint the petitioner on
compassionate grounds in any one of the vacancies on the basis of the
qualification of the petitioner.
1/16
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For Petitioner : Mr.T.Venugopal
For M/s.S.T.P.Kuilmozhi
For R1 : Mr.K.Surendran
Additional Government Pleader
For R2 : Mr.P.Srinivas
ORDER
The order of rejection, rejecting the claim of the writ petitioner for
compassionate appointment in proceedings dated 19.01.2017 is under
challenge in the present writ petition.
2. The petitioner states that her mother was employed in the 2nd
respondent Municipality and died on 10.08.2013. The petitioner states that
she was married to one Mr.M.Selvaraj during the year 2006. Out of the said
wedlock, four children were born to them and thereafter, her husband
deserted her. Therefore, she has to look after her children also. Under those
circumstances, she was depending on her mother and on account of the
sudden death of her mother, the family was in indigent circumstances.
3. Thus, the petitioner submitted an application on 25.08.2014,
seeking appointment on compassionate grounds. The said application was
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rejected on the ground that there is no provision under the scheme for
compassionate appointment to provide employment to the married
daughters.
4. The learned Additional Government Pleader appearing on behalf of
the 1st respondent and the learned counsel for the 2nd respondent made a
submission that as on the date of application, and as on the date of the
deceased employee, the married daughters are not eligible for appointment
on compassionate grounds and furthermore, the petitioner got married even
long before the death of the deceased employee and thus, her case was not
considered.
5. Scheme of compassionate appointment is a concession and cannot
be claimed as an absolute right. Scheme being an exception, cannot be
expanded for the purpose of providing appointment on compassionate
grounds in a larger manner. Large scale compassionate appointment would
result in infringement of the Fundamental Rights of the eligible citizen, who
all are aspiring to secure public employment through open competitive
process. Scheme of compassionate appointment being a concession, is to be
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W.P.No.5689 of 2017
implemented in a restricted manner, so as to provide appointment only to
the families, who all are genuinely in penurious circumstances and in this
regard, the authorities competent are bound to conduct field inspections and
ascertain the imminent circumstances, warranting an appointment on
compassionate grounds.
6. It is not as if one appointment is to be granted to the family of the
deceased employee and it is not as if every legal heir can submit the
application and thereafter, the appointment is to be considered. Once an
application is filed by any one of the legal heir of the deceased employee
and the said legal heir became ineligible, it is not as if that other legal legal
heir can submit an application irrespective of the length of time. In the event
of entertaining such repeated applications for compassionate appointment,
the very purpose and object of the scheme would be defeated.
7. The very purpose and object of the scheme of compassionate
appointment is to mitigate the circumstances arising on account of the
sudden death of an employee. Therefore, the scheme cannot be expanded
nor any consideration is to be shown on misplaced sympathy, which would
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result in denial of Fundamental Right to all other eligible candidates, who
all are longing to secure public employment. Thus, the Courts are not
expected to grant compassionate appointment on misplaced sympathy. Such
sympathy would result in unconstitutionality. Scheme being violative of
Articles 14 and 16 of the Constitution of India, since there is no merit
assessment of the applicant and there is no application of rule of
reservation, there is no other assessment is made for appointment on
compassionate grounds. In the event of large scale compassionate
appointment, the efficiency level in the public administration will also be in
stake. The Rule of Reservation, merit assessment and no other assessment
has been made and therefore, the large scale appointments causing
inefficiency in public administration, which would result in violations of the
Constitution provisions, since the Constitution mandates an efficient public
administration.
8. Lapse of time would also provide a ground to draw a factual
inference that the penurious circumstances aroused on account of the
sudden death of an employee became vanished. Thus, Courts have
repeatedly held that compassionate appointment cannot be granted after
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several years.
9. Even to ascertain the indigent circumstances, the pensionary
benefits are also to be taken into consideration. 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 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
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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.”
10. 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 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
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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
may be more meritorious and/or well educated
and/or more qualified.”
11. 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
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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
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
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far more acute financial distress.”
12(a). 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
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;
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(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
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
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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
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
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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.
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.”
12 (b). 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
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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 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.”
13. In view of the facts and circumstances, this Court do not find any
infirmity in respect of the reason stated for rejecting the application as the
scheme of compassionate appointment is to be implemented strictly in
accordance with its terms and conditions. Appointment on compassionate
ground is not a right and a concession. Thus, the scheme cannot be
expanded for the purpose of providing appointment to the legal heirs of the
deceased employee.
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W.P.No.5689 of 2017
14. Accordingly, the writ petition stands dismissed. No costs.
10.10.2022
Index : Yes
Speaking order:Yes
kak
To
1.The Commissioner of Municipal Administration,
Chepauk,
Chennai.
2.The Commissioner (in-charge)
Velparai Municipality,
Velparai,
Coimbatore District.
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W.P.No.5689 of 2017
S.M.SUBRAMANIAM, J.
kak
W.P.No.5689 of 2017
10.10.2022
https://www.mhc.tn.gov.in/judis
