Madras High Court
P.Saravanan vs The Secretary To Government on 10 October, 2022
W.P.No.7812 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.7812 of 2017
and
W.M.P.No.8546 of 2017
P.Saravanan ... Petitioner
Vs.
1.The Secretary to Government
Health & Family Welfare Department
Fort St.George, Chennai – 9.
2.The Director of Medical Education,
Kilpauk, Chennai – 10.
3.The Dean
Government Stanley Hospital
Chennai – 3. ... Respondents
Prayer: Writ Petition filed Under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records
pertaining to the order dated 08.12.2016 made in Na.Ka.No.9354/Ni.2
(2)/09 on the file of the 3rd respondent, quash the same and consequently
direct the 3rd respondent to appoint the petitioner on compassionate ground
as Junior Assistant or any other suitable posts depending upon his
qualification and eligibility, by considering his applications dated
Page 1 of 17
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W.P.No.7812 of 2017
09.07.2009, 23.05.2011, 13.04.2012, 17.08.2012, 26.08.2013, 18.08.2014,
21.07.2015 and 19.10.2016 in lieu of death of his father Mr.V.Palani,
Waterman, who died in harness on 10.10.2008 and to extend all benefits
arising thereto.
For Petitioner : Mr.R.Baskaradoss
For Respondents : Mr.M.Rajendiran
Additional Government Pleader
ORDER
The order of rejection, rejecting the claim of the writ petitioner for
compassionate appointment in proceedings dated 08.12.2016 is under
challenge in the present writ petition.
2. The petitioner states that his father Late Mr.V.Palani was employed
in the office of 3rd respondent at Government Stanley Hospital and died on
10.10.2008, while he was in service. The petitioner submitted a
representation on 09.07.2009 to provide appointment on compassionate
ground. The said application was rejected by the respondents through the
impugned proceedings dated 08.12.2016.
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3. The learned counsel for the petitioner mainly contended that the
mother of the writ petitioner, who was working as Female Nursing Assistant
Grade-II was not looking after the petitioner and therefore, the petitioner is
eligible to avail the benefits of scheme of compassionate appointment. That
apart, the similarly placed persons were considered for providing
appointment on compassionate grounds. Thus, the case of the writ petitioner
is also to be considered.
4. The learned Additional Government Pleader appearing on behlaf of
the respondents objected the said contention by stating that the father of the
writ petitioner died on 10.10.2008 and at the time of the death of deceased
employee, the mother of the writ petitioner Smt.D.Saroja was employed as
Female Nursing Assistant Grade-II and therefore, the family of the deceased
employee is not eligible for appointment on compassionate grounds. If any
one of the legal heir of the deceased employee is employed in Government
Department or in Private Sector, then the scheme cannot be extended to
other legal heirs of the deceased employee. However, the application was
pursued by the petitioner after the retirement of his mother on 30.06.2009.
Therefore, this Court is of an opinion that the family was not in indigent
circumstances on account of the sudden death of the employee. At the time
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W.P.No.7812 of 2017
of the death of the employee, his wife was employed as Female Nursing
Assistant Grade-II and was receiving a decent salary. That apart, she was
receiving family pension and other pensionary benefits due to the deceased
employee.
5. Under those circumstances, the family cannot be said to be in
indigent circumstances for the purpose of providing appointment on
compassionate grounds. The Honourable Supreme Court of India held that
the terminal benefits and quantum of pension and other sources of income
are to be taken into consideration for the purpose of considering the
indigent circumstances of the family of the deceased employee.
6. The compassionate appointment is not a right and only a
concession. Thus, the scheme is to be implemented strictly in terms and
conditions stipulated. In the present case, the case of the writ petitioner was
not considered as the mother of the writ petitioner was working as Female
Nursing Assistant Grade-II at the time of the death of father of the writ
petitioner. That apart, the petitioner even at the time of filing of the present
writ petition was aged about 46 years and now he would be around 51 years.
That being the case, the scheme of compassionate appointment cannot be
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W.P.No.7812 of 2017
extended at this length of time.
7. Scheme of compassionate appointment has to be implemented
strictly in accordance with the terms and conditions stipulated.
Compassionate Appointment Scheme, being a concession, cannot be
extended after a lapse of many years. The very purpose and object of the
Scheme is to mitigate the circumstances arising 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.
8. Scheme of compassionate appointment being a concession, 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. 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
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W.P.No.7812 of 2017
submit the application and thereafter, the appointment is to be considered.
9. 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.
10. 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.
11. 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
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W.P.No.7812 of 2017
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.
12. 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.
13. Even to ascertain the indigent circumstances, the pensionary
benefits are also to be taken into consideration. The Honourable 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 :
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“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.”
14. In this regard, the Hon'ble Supreme Court of India, recently on
05.09.2022, in the case of Ahmednagar Mahanagar Palika vs.
Ahmednagar Mahanagar Palika Kamgar Union [2022 LiveLaw (SC)
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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 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
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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.”
15. Even in yet another recent judgment of the Hon'ble Supreme
Court in the case of CENTRAL BANK OF INDIA vs. NITIN [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
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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.”
16. 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) [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
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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
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
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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 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. ... .... ... ... .... .... .....
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Mumtaz Yunus Mulani vs. 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.
7.1. ... .... ... ... .... .... .....
Even otherwise, she shall not be entitled to appointment
on compassionate ground after a number of years from
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the death of the deceased employee.”
17. In the case of Fertilizers and Chemicals Travancore Ltd &
Ors. vs. Anusree K.B. [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 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
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the appointment on compassionate ground is
provided.”
18. Accordingly, the Writ Petition stands dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
10.10.2022
Jeni
Index : Yes
Speaking order
To
1.The Secretary to Government
Health & Family Welfare Department
Fort St.George, Chennai – 9.
2.The Director of Medical Education,
Kilpauk, Chennai – 10.
3.The Dean
Government Stanley Hospital
Chennai – 3.
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W.P.No.7812 of 2017
S.M.SUBRAMANIAM, J.
Jeni
W.P.No.7812 of 2017
10.10.2022
https://www.mhc.tn.gov.in/judis
