Madras High Court
Gowthami vs The Chief Executive Engineer ... on 12 October, 2022
W.P.No.32993 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.10.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.32993 of 2017
Gowthami ... Petitioner
Vs.
The Chief Executive Engineer (Agricultural Department)
Agricultural Engineering Department
No.487, Anna salai, Nandanam,
Chennai – 600 035. ... Respondent
Prayer:- Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, to call for the records of the
respondent pertains to the impugned order bearing letter No.pension.2/37199/16
dated 06.11.2017 and quash the same as arbitrary, illegal and consequently direct
the respondent to provide suitable employment to the petitioner on
compassionate ground.
For Petitioner : M/s.P.R.Thiruneelakandan
ORDER
The order of rejection rejecting the claim of the writ petitioner for
compassionate appointment in proceedings dated 06.11.2017 is under challenge
in the present Writ Petition.
https://www.mhc.tn.gov.in/judis
W.P.No.32993 of 2017
2.The petitioner states that his father Mr.N.Karunakaran, served in the
Agriculture Engineering Department and was not well while in service. He
appeared before the Medical Board and the Board issued a certificate stating that
the petitioner was not fit to continue in Government services. Though, the
Disability Certificate was issued on 01.07.2014, the petitioner was allowed to
continue in service beyond the date of Certificate and the medical invalidation
was accepted by the authorities in proceedings dated 30.09.2015 and
accordingly, the petitioner was allowed to retire from service on the ground of
medical invalidation. Thereafter, the father of the writ petitioner submitted an
application seeking appointment to his daughter on compassionate ground. The
said application was rejected on the ground that the scheme of compassionate
appointment can be provided in respect of the employees who were medically
invalidated before completion of the age of 53 years. In the case of the father of
the writ petitioner, he was medically invalidated after the age of 53 years and at
the age of 54 years. The department has taken the date of retirement as the
criteria for the purpose of extending the benefit of the scheme of compassionate
appointment. Accordingly, the father of the writ petitioner was allowed to retire
from service on medical invalidation ground after completion of 53 years of age.
Thus, the scheme of compassionate appointment was not extended in favour of
https://www.mhc.tn.gov.in/judis
W.P.No.32993 of 2017
the Writ Petitioner.
3.The learned counsel for the petitioner mainly contended that the father of
the Writ Petitioner was medically invalidated in the year 2014, more specifically,
the Medical Board issued the Disability Certificate on 01.07.2014 and as on the
said date, the father of the Writ Petitioner had not completed 53 years of age and
therefore, the said date is to be taken into consideration for the purpose of
extending the scheme of compassionate appointment. In support of the said
contention the petitioner relied on the judgment of the Hon'ble Supreme Court in
the case of V.Sivamurthy & Others vs. State of Andhra Pradesh & Others
reported in CDJ 2008 SC 1397, wherein the Hon'ble Supreme Court has held as
follows:-
19.The 'five year left over period' is capable of being
commenced with reference to any one of the following dates: (i) the
date of application by the Government servant for medical
invalidation; (ii) the date of report of the Medical Board certifying
that the Government servant required to be medically invalidated;
(iii) the date of recommendation by the State/District Level
Committee in regard to medical invalidation; and (iv) the date of
issue of orders of retirement on medical invalidation.
https://www.mhc.tn.gov.in/judis
W.P.No.32993 of 2017
4.Relying on the said judgment, the learned counsel for the petitioner
reiterated that the five year left over period is capable of being commenced with
reference to the date of report of the Medical Board certifying that the
Government servant required to be medically invalidated. In the present case, the
medical invalidation certificate was issued by the competent Board on
01.07.2014 and as on the said date, the father of the Writ Petitioner had not
completed 53 years of age and therefore, the order impugned is liable to be set
aside.
5.The ground raised by the petitioner deserves deeper consideration. As
the scheme of compassionate appointment is a concession, appointment on
compassionate ground is not an absolute right and a distinction is to be drawn
between the right and concession extended to the Government servants. For
example, allotment of quarters is a concession, so also the compassionate
appointment. Right can be claimed by Government servant if it is infringed.
However, concession cannot be equated with the right and therefore, the
concessions are to be extended scrupulously in accordance with the terms and
conditions stipulated. The Courts have repeatedly held that scheme of
https://www.mhc.tn.gov.in/judis
W.P.No.32993 of 2017
compassionate appointment being violative of Article 14 and 16 of the
Constitution of India cannot be extended so as to provide compassionate
appointment to the family of the deceased employee or the medically invalidated
employee. Appointments are to be made only under the constitutional schemes
through open competitive process. Scheme of compassionate appointment is an
exception and implemented to tide over difficult circumstances arising on account
of the sudden death of a Government employee or on account of medical
invalidation. In fact, the medically invalidated employee is in a better position,
since the medically invalidated employee get terminal benefits and pension and
therefore, such employees cannot be equated with the employees who died while
in service. Beyond the above distinction, the scheme of compassionate
appointment and its scope cannot be extended by the Courts in exercise of power
of judicial review under Article 226 of the Constitution of India. The scheme
being the exception, the terms are to be interpreted in its spirit and thus, this
Court is of the opinion that the changes underwent and the scope of scheme is to
be considered in the context. The judgment of the Hon'ble Supreme Court of the
year 2008 with reference to the facts and circumstances of that case cannot be
directly applied in respect of the facts and circumstances of the present case. One
reason is that scheme of compassionate appointment varies from State to State,
https://www.mhc.tn.gov.in/judis
W.P.No.32993 of 2017
employer to employer and organisation to organisation. Thus, the scheme
applicable to the writ petitioner on hand is to be taken into consideration for the
purpose of considering the relief sought for. In the present case, the Government
of Tamil Nadu issued the scheme by stipulating that an employee who was
medically invalidated before completion of 53 years alone is eligible to avail the
benefit of compassionate appointment to the eligible members of his family. In
the present case, the learned counsel for the petitioner relied on the Certificate
issued by the Medical Board on 01.07.2014, to establish that on the said date the
father of the Writ Petitioner had not completed 53 years of age.
6.Question arises, whether the Certificate issued by the Board is to be
taken into consideration for the purpose of implementation of the scheme of
compassionate appointment. This Court is of the considered opinion that, as on
the date of issuance of Disability Certificate, the petitioner was in service and
even after the issuance of Disability Certificate, the father of the Writ Petitioner
was allowed to continue in service. Thus, the factual inference is to be
considered that the employee worked in the department and received salary for
the period during which he served even after the issuance of the Certificate by
the Medical Board on 01.07.2014. If the said date of 01.07.2014 is taken into
consideration, then very purpose and scheme of compassionate appointment will
https://www.mhc.tn.gov.in/judis
W.P.No.32993 of 2017
be defeated. As on 01.07.2014, the father of the Writ Petitioner was in service,
he was a Government employee and received salary and the scheme of
compassionate appointment is to be employed only in the event of a death of an
employee or an employee was medically invalidated.
7.Question arises, when a Government employee is medically invalidated,
it is not as if a Disability Certificate is to be taken into consideration in this
context. Though, the Medical Board declared an employee as not fit to continue
in service, it is the prerogative of the employer to take a decision in respect of
such invalidation. Even in recent days, even if the Government employees are
declared not fit to hold a particular post under the Disabilities Act, the employers
are providing alternate employment or light duty to mitigate the circumstances
arose to the employees. Therefore, various factors have involved in such
circumstances. In the present case, even after issuance of Medical Certificate the
father of the Writ Petitioner was allowed to continue in service and he had
received the salary of the said period. Finally, he was medically invalidated and
relieved from service only on 27.02.2015. Thus, the said date alone is to be taken
into consideration for the purpose of invalidation and employee concerned. The
acceptance of Medical Certificate by the employer is the point which is to be
taken into consideration for extending the benefit attached with the medical
https://www.mhc.tn.gov.in/judis
W.P.No.32993 of 2017
invalidation. In other words, the scheme of compassionate appointment is to be
considered based on the date of invalidation order issued by the competent
authority/employee. Therefore, the issuance of Medical Certificate is a ground to
invalidate an employee, but not to be considered as medical invalidation. The
date of acceptance of Medical Certificate by the employer is to be considered as
a date of invalidation for all purposes and more so, for the purpose of extending
the benefits under the medical invalidation. This being the scope of the medical
invalidation and the scheme of compassionate appointment, the father of the Writ
Petitioner was medically invalidated from service on 27.02.2015 and on the said
date he had completed 53 years of age and the scheme of compassionate
appointment cannot be extended to the family members if the employee was
invalidated beyond the age of 53 years. Thus, the scope of the scheme cannot be
extended by the Court as it is only a concession and not a right.
8.Accordingly, this writ petition stands dismissed. No Costs.
12.10.2022
Index : Yes
Internet : Yes
Speaking order : Yes
ep/ssr
https://www.mhc.tn.gov.in/judis
W.P.No.32993 of 2017
To
The Chief Executive Engineer (Agricultural Department)
Agricultural Engineering Department
No.487, Anna salai, Nandanam,
Chennai – 600 035.
https://www.mhc.tn.gov.in/judis
W.P.No.32993 of 2017
S.M. SUBRAMANIAM, J.
ssr
W.P.No.32993 of 2017
12.10.2022
https://www.mhc.tn.gov.in/judis
