Madras High Court

K.Sripriya vs The Special Secretary To ... on 10 October, 2022

                                                                                    W.P.No.24081 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.24081 of 2017

                     K.Sripriya                                                  ... Petitioner

                                                              Vs.

                     1.The Special Secretary to Government,
                       Department of Revenue and Disaster Management,
                       Puducherry.

                     2.The Deputy Collector
                       (Revenue)- South,
                       Villianur,
                       Puducherry.                                               ... 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 of
                     the 1st respondent in Proceeding No.13275/Rev.Estt/A2/2016 dated
                     21.11.2016 to quash the same and further direct the respondent to appoint
                     the petitioner on Compassionate Appointment as per representation dated
                     23.02.2017.
                                      For Petitioner            : Ms.A.Anuradha
                                                                  For Mr.C.D.Vivekanandan

                                      For Respondents           : Mrs.V.Usha
                                                                  Additional Government Pleader
                                                                  [Puducherry]

                     Page 1 of 17

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                                                                                       W.P.No.24081 of 2017


                                                             ORDER

The order of rejection, rejecting the claim of the writ petitioner for

compassionate appointment in proceedings dated 21.11.2016 is under

challenge in the present writ petition.

2. The petitioner states that her mother, who was employed in the

Office of the 2nd respondent died on 26.05.2013, while she was in service.

The petitioner states that, she got married with one Mr.Kamalnath on

21.11.2007 even before the death of the deceased employee.

3. The learned counsel for the petitioner states that married daughter

is also eligible for appointment on compassionate ground. In this regard,

Courts also held that married daughters cannot be discriminated. No doubt,

the married daughters are also considered for appointment on

compassionate grounds, provided they are wholly dependent of the deceased

employee.

4. The object of the scheme is to ensure that the appointment is

provided to the dependent legal heirs of the deceased employee. Once the

married son or married daughter is found to be independent, then they are

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not eligible for appointment on compassionate grounds. It is not only the

eligibility for submitting an application, but the indigent circumstances and

dependency of the legal heirs, which are to be considered by conducting a

field enquiry by the competent authorities. There cannot be any

discrimination merely on the basis of marriage.

5. This Court also considered the said issue in respect of the married

daughters. Government also issued orders in the year 2017, extending the

benefit of scheme of compassionate appointment to the married daughters.

However, the indigent circumstances and dependency of the married

daughters are to be considered for the purpose of providing appointment. It

is not as if one appointment is to provide to the family of the deceased

employee. The very purpose and object is to mitigate the circumstances

arising on account of sudden death of the deceased employee. Thus, the

order of rejection is to be considered with reference to the facts and

circumstances of the each case.

6. 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

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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.

7. 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

submit the application and thereafter, the appointment is to be considered.

8. 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

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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.

9. 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.

10. 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

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causing inefficiency in public administration, which would result in

violations of the Constitution provisions, since the Constitution mandates an

efficient public administration.

11. 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.

12. 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 :

“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

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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.”

13. 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) 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

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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 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.”

14. 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 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.

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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.”

15. 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 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

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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 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.

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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. ... .... ... ... .... .... .....

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

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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 the death of the deceased employee.”

16. 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. ...          ....         ...         ...          ....          ....




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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 the appointment on compassionate ground is provided.”

17. In the present case, the mother of the writ petitioner, who was an

employee, died on 26.05.2013. Even during the life time of the deceased

employee, the petitioner got married to one Mr.Kamalnath on 21.11.2007

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and she was living separately. At the time of filing of the writ petition, the

petitioner was aged about 35 years and could not able to establish that she

was dependent on the deceased employee, at the time of death of the

deceased employee. In the absence of establishing the vital factors

regarding the dependency and indigent circumstances of the family, the

scheme of compassionate appointment cannot be extended in favour of the

legal heirs of the deceased employee. In the present case, the scheme was

not made available to the married daughters in the year 2013 and at time of