Madras High Court
C.Jayakumar vs The Commissioner on 10 October, 2022
W.P.No.37540 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.10.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.37540 of 2016
C.Jayakumar ..Petitioner
Vs.
1.The Commissioner,
Administration of Municipality,
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Regional Director of Municipality
Administration,
Office of the Corporation of Salem,
Salem District.
3.The Commissioner,
Mettur Municipality
Mettur Dam – 636 401,
Salem District. ..Respondents
Prayer : Writ Petition filed Under Article 226 of the Constitution of India,
to issue a Writ of Mandamus, directing the respondents herein to appoint the
petitioner as compassionate ground for the suitable post in the third
respondent Municipality based on the representation given by him dated
26.09.2016 within stipulated time may be fixed by this Honourable Court.
1/17
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W.P.No.37540 of 2016
For Petitioner : Mr.M.Senthilkumar
For R1 & R2 : Mr.K.Surendran
Additional Government Pleader
For R3 : No appearance
ORDER
The relief sought for in the present writ petition is for a direction to
direct the respondents to appoint the petitioner on compassionate ground in
any suitable post in the third respondent Municipality based on the
representation given by the writ petitioner on 26.09.2016.
2. The petitioner states that his father Late Chinnusamy was working
as Farm worker in the 3rd respondent Mettur Municipality, Salem District
and died on 30.08.1998. The petitioner states that his father died, leaving
behind his mother Thavamani, his brother Vijayakumar and his sister
Smt.Sumathi as legal heirs. The petitioner was a minor at the time of the
death of his father and his sister was also a minor. The elder brother of the
petitioner submitted an application in the year 2012 and the said application
was not pursued subsequently and the brother of the petitioner also died.
Thus, the petitioner submitted an application on 26.09.2016, after a lapse of
about 22 years from the date of the death of the deceased employee. The
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W.P.No.37540 of 2016
said application was not considered by the respondents. Thus, the petitioner
has chosen to file the present writ petition.
3. The learned counsel for the writ petitioner mainly contended that
the petitioner was a minor at the time of the death of his father and his elder
brother, who submitted an application in the year 2012 also died. Thus, he
submitted an application in the year 2016.
4. However, the learned Additional Government Pleader appearing on
behalf of the respondents 1 and 2 raised an objection by stating that the
elder brother of the petitioner himself submitted an application belatedly
after a lapse of three years from the date of the death of the deceased
employee. The second application for compassionate appointment from
other legal heirs are impermissible with reference to the terms and conditions
stipulated and therefore, the petitioner is not entitled for the relief.
5. The facts undisputed are that the father of the writ petitioner died
on 30.08.1994 and the elder brother of the petitioner submitted an
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W.P.No.37540 of 2016
application in the year 2012, after a lapse of about 18 years from the date of
the death of the deceased employee. Since the elder brother also died, the
petitioner submitted an application on 26.09.2016, after a lapse of about 22
years from the date of the death of the deceased employee. The said
application was not considered and therefore, the present writ petition has
been filed.
6. 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
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.
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W.P.No.37540 of 2016
7. 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.
8. 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
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
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W.P.No.37540 of 2016
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.
9. 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 several years.
10. 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
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W.P.No.37540 of 2016
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
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.”
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11. 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
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
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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.”
12. 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
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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
far more acute financial distress.”
13(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.
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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;
(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
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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
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
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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
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
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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.”
13(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
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
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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.”
14. In view of the fact that the deceased employee died in the year
1994 and already 28 years lapsed, the petitioner is not entitled for
appointment on compassionate grounds.
15. Accordingly, the writ petition is devoid of merits and stands
dismissed. No costs.
10.10.2022
Index : Yes
Speaking order:Yes
kak
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W.P.No.37540 of 2016
To
1.The Commissioner,
Administration of Municipality,
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Regional Director of Municipality
Administration,
Office of the Corporation of Salem,
Salem District.
3.The Commissioner,
Mettur Municipality
Mettur Dam – 636 401,
Salem District.
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W.P.No.37540 of 2016
S.M.SUBRAMANIAM, J.
kak
W.P.No.37540 of 2016
10.10.2022
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