Madras High Court
T.Usha vs Chennai Metro Water Supply on 11 October, 2022
W.P.No.16753 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.10.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.16753 of 2019
T.Usha ...Petitioner
Vs.
Chennai Metro Water Supply,
and Sewerage Board,
Rep. by its General Manager,
1, Pumping Station Road,
Chinthadripet, Chennai 600 002. ..Respondent
Prayer : Writ Petition filed Under Article 226 of the Constitution of India,
to issue a writ of Certiorarified Mandamus, calling for the records of the
respondent bearing Ref. Lr.No.Se/Ku/Va/ Pa.Ma.Ni /Ni. Ma4/ 8108/2017
dated 23/03/2017, quash the same and consequently direct the respondent to
grant the petitioner with compassionate appointment in any one of the post
as envisaged in the Scheme for Compassionate Appointments.
For Petitioner : Mr.Dakshayani Reddy
For Respondent : Mr.Krishna Ravindran
1/18
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W.P.No.16753 of 2019
ORDER
The order of rejection rejecting the claim of the writ petitioner for
compassionate appointment in the proceeding dated 23.03.2017, is under
challenge in the present writ petition.
2. The petitioner states that her father was working as Field Worker in
the respondent-Board and died on 28.08.2004, while he was in service. Due
to the sudden death of the father of the writ petitioner, the family was in
indigent circumstances and the mother of the writ petitioner submitted an
application within a period of three years to provide an appointment to her
son on compassionate grounds. The said application submitted by the
mother of the writ petitioner to provide an appointment to her son was
rejected by the respondent-Board immediately. The said rejection order
became final as it was not challenged by the applicants. However, the
mother of the writ petitioner once again filed an application to provide an
appointment to herself, and the said application was submitted on
02.03.2007 and the name of the writ petitioner was kept under the waiting
list and it was not considered within a reasonable period of time. During the
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year 2012, the mother of the writ petitioner passed away, and thereafter, the
petitioner approached the Authorities to provide an appointment on
compassionate grounds. The respondent-Board has rejected the same on the
ground that there is no provision to entertain the substituted application for
providing appointment on compassionate grounds.
3. The learned counsel for the petitioner mainly contended that the
first application submitted by the mother of the writ petitioner was rejected
on the ground that the son of the deceased employee was a minor. However,
the application submitted by the mother of the writ petitioner to provide
employment to herself was also not considered within a reasonable period
of time. In the meanwhile, the mother of the petitioner passed away, and
therefore, the petitioner submitted an application seeking an appointment on
compassionate grounds. On account of the undue delay at the instance of the
respondent-Board, the family of the petitioner is unable to secure
employment on compassionate grounds. Even as per the wait list due to the
family of the deceased employee fell in the year 2017, and therefore, the
case of the writ petitioner is to be considered at present for appointment.
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4. The learned counsel for the respondent-Board objected the said
contentions raised on behalf of the learned counsel for the writ petitioner by
stating that there is no provision to entertain application after application for
providing appointment on compassionate grounds. The first application
submitted by the wife of the deceased employee to provide appointment to
her son was rejected immediately. The said order of rejection became final
and therefore, the further application submitted by the mother of the writ
petitioner itself was not entertainable and accordingly, it was not
considered. Unfortunately, the spouse of the deceased employee also died in
the year 2012 and any subsequent application submitted by the other legal
heirs cannot be entertained and more so, after a lapse of many years. That
being the case, the petitioner is not entitled for an appointment on
compassionate grounds.
5. 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.
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W.P.No.16753 of 2019
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.
6. 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.
7. 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
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W.P.No.16753 of 2019
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.
9. 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.
10. 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.
11. 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
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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.”
12. 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:-
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“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
and/or retirement. If such an appointment is
permitted, in that case, outsiders shall never get
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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.”
13. 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
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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.”
14. 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
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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 may be eligible for such employment.
...............It must be remembered in this connection that
as against the destitute family of the deceased there are
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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.”
15. 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
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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.”
16. For all these reasons, this Court do not find any infirmity in
respect of the decision taken by the Authorities Competent. Moreover, the
deceased employee died in the year 2004 and now 18 years lapsed. The wife
of the deceased employee also died and therefore, it cannot be construed as
if the family of the deceased employee is still facing the indigency and thus,
the petitioner is not entitled for the relief as such sought for in the present
writ petition.
17. Accordingly, the writ petition stands dismissed. However, there
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shall be no order as to costs.
11.10.2022
Index : Yes
Speaking order
sha/Svn
To
The General Manager,
Chennai Metro Water Supply
and Sewerage Board,
1, Pumping Station Road,
Chinthadripet,
Chennai 600 002.
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W.P.No.16753 of 2019
S.M.SUBRAMANIAM, J.
sha/Svn
W.P.No.16753 of 2019
11.10.2022
https://www.mhc.tn.gov.in/judis
