Madras High Court
J.Azhumpil Vel vs The Director Of School Education on 11 October, 2022
W.P.No.36601 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.10.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.36601 of 2016
and
W.M.P.No.31473 of 2016
J.Azhumpil Vel ...Petitioner
Vs.
1.The Director of School Education,
College Road, Nungambakkam,
Chennai – 600 006.
2.The Chief Educational Officer,
Cuddalore, Cuddalore District.
3.The District Educational Officer,
Viruthachalam Education District,
Viruthachalam, Cuddalore District. ..Respondents
Prayer : Writ Petition filed Under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, calling for the entire Record
pertaining to the impugned order in proceeding Na.Ka.No.51289/ J1/ 2011
dated 08.12.2011 passed by the First Respondent herein and quash the same
and further direct the Respondents to provide any appointment on
compassionate ground suitable to the petitioners Educational Qualifications.
1/20
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W.P.No.36601 of 2016
For Petitioner : Mr.K.Thennan
For R1 to R3 : Mrs.S.Mythreye Chandru
Special Government Pleader
ORDER
The order of rejection, rejecting the claim of the writ petitioner to
provide appointment on compassionate ground is under challenge in the
present writ petition.
2. The petitioner states that his father was served as 'Tamil Pandit' in
Government High School and died on 22.03.2006, while he was in service.
On account of the death of the father of the writ petitioner, the family faced
indigent circumstances and therefore, the petitioner submitted an application
seeking appointment on compassionate grounds. The application submitted
by the petitioner was initially rejected by the respondents. The petitioner
submitted an application seeking appointment on compassionate ground to
the post of Junior Assistant on 07.12.2006 and subsequently submitted
another application on 29.04.2009 to appoint him as Physical Education
Teacher.
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3. The application was rejected and the petitioner filed W.P.No.10406
of 2011, challenging the order of rejection. This Court passed an order on
13.06.2011, setting aside the impugned orders and directed the respondents to
consider the claim of the petitioner in the light of the judgment referred by
this Court and pass appropriate orders on merits and in accordance with law.
4. Pursuant to the directions issued by this Court, the authorities
competent reconsidered the entire issue and passed the impugned order in
proceedings dated 08.12.2011, once again, rejecting the claim of the writ
petitioner for appointment on compassionate grounds. Thus, the petitioner is
constrained to move the present writ petition.
5. The learned counsel for the petitioner reiterated that the very same
reason cited in the first impugned order has been repeated in the present
impugned order. Thus, the authorities competent have not applied their mind
with reference to the observations made by this Court in the earlier judgment.
It is further contended that the other legal heirs are not supporting the family
of the deceased employee and thus, the appointment on compassionate
ground cannot be denied merely on the ground that the other legal heir of the
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W.P.No.36601 of 2016
deceased employee is employed gainfully in some organization. As far as the
petitioner is concerned, he is unemployed and the application submitted by
the petitioner is to be considered independently with reference to the
documents produced by him. The petitioner produced all the relevant
documents, which all are not considered by the respondents.
6. The learned counsel for the petitioner is of an opinion that once
again reiterating the status of other legal heirs in the impugned order is
untenable and thus, the writ petition is to be considered.
7. The learned Special Government Pleader appearing on behalf of the
respondents objected the said contention by stating that the indigent
circumstances was considered by the authorities competent at the first
instance. Even the authorities of the Education Department found that the
family was not in indigent circumstances. In this regard, the third
respondent/District Educational Officer, has conducted an oral enquiry, while
considering the application submitted by the petitioner. The village people has
stated that the second legal heir of the deceased employee / Thiru.Tamil
oliyan is working as Engineer in private company at Chennai. That apart, the
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W.P.No.36601 of 2016
authorities found that the Ration Card of the deceased family stated that the
elder brother of the writ petitioner is living with his mother and deceased
family till 05.07.2008.
8. The learned Special Government Pleader appearing on behalf of the
respondents further contended that the petitioner himself got married even
before the death of the deceased employee and for all these reasons, the
authorities had rejected the claim of the writ petitioner for compassionate
appointment.
9. When the petitioner states that his elder brother, who got married is
not looking after the family of the deceased employee, the same analogy is to
be adopted to the petitioner also, since he also got married even before the
death of the deceased employee. There cannot be any two different yardsticks
regarding the legal heirs of the deceased employee. That apart, the petitioner
even at the time of the death of the employee was a married person and was
living either with the deceased employee's family or separately. In any event,
the authorities found that the family was not in indigent circumstances and the
elder brother was also decently employed at Chennai in a private company.
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10. Beyond all this, the father of the writ petitioner died in the year
2006, almost 16 years lapsed. Even at the time of filing of the writ petition,
the petitioner was aged about 33 years and now, he would be around 39
years.
11. As far as the mother of the deceased employee is concerned, she is
receiving a decent family pension from the Government and therefore, this
Court cannot form an opinion that the family is in indigent circumstances.
Therefore, the reasons stated in the impugned order cannot be said to be
incorrect. The respondents have elaborately stated the status of the legal heir
of the deceased employee in paragraph 3 of the counter affidavit, which reads
as under:
Sl. Name Relationship Age Marital status Educational
No. with the qualification
deceased
Government
servant
1 Tmt.Lalitha Wife 46 Widow 5th
2 Thiru.Thamizh Son 30 Un Married B.E.(Computer
oliyan Science)
3 Thiru. Son 24 Married M.P.Ed.,
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Sl. Name Relationship Age Marital status Educational
No. with the qualification
deceased
Government
servant
Azhumbilvel
(Petitioner in W.P)
4 Thiru.Kattiravan Son 21 Un Married B.A.(Socialogy)
V.D./V.H.
5 Selvi.Anbarasi Daughter 19 Un Married B.Lit. (Studying)
The Government has introduced a scheme of providing
employment to the legal heir of the deceased Government Servant, in
order to save the family from indigent circumstances as per
G.O.(Ms).No.225, Labour Department, dated 15.02.1972. At the time
of death of the above said deceased Government Servant, the
petitioner was 24 years old and got married. The mother of the
petitioner, who was 46 years and had passed V Standard, did not
apply for appointment on Compassionate grounds. The petitioner had
stated that his elder brother was not willing to get Compassionate
appointment, since he was studying B.E.Degree Course.”
12. 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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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.
13. 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.
14. 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
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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.
15. 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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16. 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
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.”
17. 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
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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.”
18. 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
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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
far more acute financial distress.”
19(a). Even recently on 30.09.2022, the Hon'ble Supreme Court of
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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;
(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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(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 the deceased who
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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 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
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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.”
19 (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
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
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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.”
20. In view of the facts and circumstances, the petitioner has not
established any acceptable legal ground for the purpose of considering the
relief as such sought for in the present writ petition.
21. Accordingly, the writ petition stands dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
11.10.2022
Index : Yes
Speaking order:Yes
kak
To
1.The Director of School Education,
College Road, Nungambakkam,
Chennai – 600 006.
2.The Chief Educational Officer,
Cuddalore, Cuddalore District.
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W.P.No.36601 of 2016
3.The District Educational Officer,
Viruthachalam Education District,
Viruthachalam, Cuddalore District.
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W.P.No.36601 of 2016
S.M.SUBRAMANIAM, J.
kak
W.P.No.36601 of 2016
11.10.2022
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