Madras High Court
P.Sharmila vs The Regional Joint-Registrar on 10 October, 2022
W.P.No.8593 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.8593 of 2017
and
W.M.P.No.9411 of 2017
P.Sharmila ... Petitioner
Vs.
1.The Regional Joint-Registrar
of Co-operative Societies
Perambalur.
2.The Sub Registrar
Co-operative Societies
Perambalur Circle
Perambalur.
3.The Chairman
Ty.Spl.62 Veppanthattai Primary
Agricultural Co-operative Loan Society
Veppanthattai
Veppanthattai Taluk
Perambalur District. ... Respondents
Prayer: Writ Petition filed Under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the
production of records relating to the proceedings dated 09.02.2015 made in
Na.Ka.No.1147/ 2014/Ka passed by the 2nd respondent herein, quash the
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W.P.No.8593 of 2017
same and direct the 2nd respondent and 3rd respondent to appoint the
petitioner in appropriate post corresponding to her educational qualification
on compassionate grounds under the third respondent.
For Petitioner : Mr.N.Vijayakumar
For Mr.S.Senthilnathan
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 09.02.2015 is under
challenge in the present writ petition.
2. The petitioner states that her father Late Mr.Ponnusamy was
employed as Salesman in the 3rd respondent / Co-operative Society, which is
registered under the provisions of the Tamil Nadu Co-operative Societies
Act, 1983. The father of the writ petitioner died on 16.11.2007, while he
was in service. Thus, the petitioner submitted an application seeking
appointment on compassionate grounds. The said application was rejected
on the ground that father of the writ petitioner was a temporary employee
and his services were not regularised in accordance with the Special Bye-
Laws of the Co-operative Society.
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3. The learned counsel for the petitioner made a submission that
Special Bye-Law was subsequently amended by the society and therefore,
the said benefits is to be extended to the family of the deceased employee.
4. The learned Additional Government Pleader appearing on behalf of
the respondents raised an objection by stating that the services of the
deceased employees were not regularised and in respect of the application
received from the petitioner, the authorities competent have considered the
same and arrived a decision that the family of the deceased employee is not
eligible to avail the benefits of compassionate appointment. The services of
the deceased employee were not regularised as per the Special Bye-Laws
and as per the rules in force.
5. The scheme of compassionate appointment is granted only to the
regular employees. The father of the writ petitioner was working as
temporary employee and his services were not regularised during the
relevant point of time. Thus, the authorities could not able to consider the
case of the writ petitioner for providing appointment on compassionate
grounds. Therefore, the reasons stated is not infirm and in consonance with
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W.P.No.8593 of 2017
the scheme of compassionate appointment. That apart, the employee died in
the year 2007 and almost 15 years lapsed and at this length of time, the
scheme cannot be extended in favour of the writ petitioner, since the
services of the deceased employee were not regularised and he was not a
permanent employee of the society.
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
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
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W.P.No.8593 of 2017
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
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
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W.P.No.8593 of 2017
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
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.
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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
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
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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
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
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W.P.No.8593 of 2017
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.”
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
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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
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
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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
made only on fulfilling the norms laid down by the
State’s policy and/or satisfaction of the eligibility
criteria as per the policy;
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W.P.No.8593 of 2017
(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 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
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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
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
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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. ... .... ... ... .... ....
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.
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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. Accordingly, the Writ Petition stands dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
10.10.2022
Jeni
Index : Yes
Speaking order
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W.P.No.8593 of 2017
To
1.The Regional Joint-Registrar
of Co-operative Societies
Perambalur.
2.The Sub Registrar
Co-operative Societies
Perambalur Circle
Perambalur.
3.The Chairman
Ty.Spl.62 Veppanthattai Primary
Agricultural Co-operative Loan Society
Veppanthattai
Veppanthattai Taluk
Perambalur District.
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W.P.No.8593 of 2017
S.M.SUBRAMANIAM, J.
Jeni
W.P.No.8593 of 2017
10.10.2022
https://www.mhc.tn.gov.in/judis
