Madras High Court

Miriam Sheeba vs Managing Director on 12 October, 2022

W.P.No. 18915 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. 18915 of 2017

Miriam Sheeba
... Petitioner
Vs.
1. Managing Director,
The New India Assurance Company Limited,
87, M G Road, Fort,
Mumbai 400 001.

2. The Chief Regional Manager,
New India Assurance Company Ltd.,
Madurai Regional Office,
70 feet Road, Ellis Nagar,
Madurai 625 016.

3. The Divisional Manager,
New India Assurance Company Limited,
Divisional Office II,
Trichy.
... Respondents

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
relating to the impugned order passed by the first respondent herein in his
proceedings number nil dated 22.06.2017 and the order passed by the
second respondent herein in his proceedings number nil dated 17.08.2016
and quash the same and consequently direct the respondents herein to
provide compassionate appointment to the petitioner within a time frame.

Page 1 of 18

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W.P.No. 18915 of 2017

For Petitioner : Mr. G. Bala
for M/s. Bala and Daisy
For Respondents : Mr. A. S. Gunasekaran
for R1 to R3
ORDER

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

compassionate appointment, is under challenge in the present writ petition.

2. The petitioner states that, her father late Valentine Devakumar,

served as Assistant Manager in the respondent Insurance Company and died

on 18.12.2015, while he was in service. The mother of the writ petitioner

submitted a representation to the second respondent, seeking appointment

on compassionate ground, to provide appointment to her daughter. The

Divisional Manager, Trichy, forwarded the representation submitted by the

mother of the writ petitioner for consideration. However, the said

application was rejected by the second respondent on 17.08.2016, on the

ground that the petitioner is not wholly a dependant daughter of the

deceased employee . The petitioner filed W.P.No. 4339 of 2017, directing

the first respondent to consider the application dated 10.12.2016 for

compassionate appointment. This Court, passed an order dated 22.02.2017,

directing the first respondent therein to consider the appeal/representation

dated 10.12.2016, on merits and in accordance with law.

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3. Pursuant to the direction issued by this Court, the first respondent

issued the order impugned dated 30.06.2017, rejecting the claim of the

petitioner for compassionate appointment.

4. The learned counsel for the petitioner, made a submission that the

petitioner has to take care of her differently abled sister and her aged

mother. Thus, the family is in indigent circumstance and there is no specific

impediment for considering the married daughter for providing

compassionate appointment. In the absence of express bar, the case of the

petitioner ought to have been considered by the respondent for appointment

on compassionate ground.

5. The learned counsel for the respondent, furnished a copy of the

Scheme for compassionate appointment in Public Sector General Insurance

Companie. The scheme was not in force from 2022-2014 and it was re-

implemented through another Scheme dated 12.11.2014. The father of the

writ petitioner, died in December, 2015 and therefore the scheme re-

introduced in the year 2014 would be applicable to the case of the writ

petitioner. As per the Scheme, the dependant family members are

enumerated as under:

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''2. Dependent Family Member 2.1 Spouse; or 2.2 Wholly dependent son (including legally adopted son); or 2.3. Wholly dependent daughter (including legally adopted daughter), or 2.4. Wholly dependent brother or sister in the case of unmarried employee''

6. Accordingly, wholly dependant daughter (including legally

adopted daughter), is eligible for appointment on compassionate ground.

Question arises whether the married daughter can be construed as wholly

dependant daughter of the deceased employee. The statute rules or scheme

or its terms and conditions cannot be interpreted otherwise and to be

interpreted in its own language. Wholly dependant daughter includes the

daughters who all are the dependants of the deceased employee. A married

daughter constitute a separate family and in the present case, the petitioner,

after her marriage living with her husband. Therefore, she cannot be

considered as wholly dependent daughter of the deceased employee. Even

the dependent married daughters cannot be considered as wholly dependent

daughters. Therefore, the term “wholly dependent daughter'' is to be

interpreted and to cover the daughters living along with the deceased

employee and the daughters who all are wholly dependent with deceased

employee.

7. In the present case, the petitioner cannot be said to be wholly

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dependent, as she got married and living along with her husband separately.

Thus, the petitioner is not eligible for appointment under the Scheme for

compassionate appointment in Public Sector General Insurance Companies.

The reasons stated in the impugned order is in consonance with the terms

and conditions stipulated in the scheme.

8. Compassionate appointment is a concession. Thus, cannot be

claimed as an absolute right. Scope of the scheme cannot be expanded by

the Court. Scheme of compassionate appointment being violative of

Article 14 and 16 of the Constitution of India, it is to be implemented

strictly and to provide appointment only to the deserving families and in

compliance with the terms and conditions stipulated. Thus, the scope of

scheme cannot be expanded as the compassionate appointment is not a

constitutional scheme of appointment. It is a concession expanded to tide

over the difficulties arise, on account of the sudden death of an employee.

9. 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

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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

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.

10. 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.

11. The very purpose and object of the scheme of compassionate

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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. 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.

12. Lapse of time would also provide a ground to draw a factual

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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.

13. 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

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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.”

14. 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

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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 may be more meritorious and/or well educated and/or more qualified.”

15. Even in yet another recent judgment of the Hon'ble Supreme

Court in the case of CENTRAL BANK OF INDIA vs. NITIN reported in

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[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. 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

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far more acute financial distress.”

16 (a). Even recently on 30.09.2022, 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), 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

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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.

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.

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

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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 (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. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering

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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. Thus, this Court is of an opinion that reasons stated in the order

impugned is in accordance with the terms and conditions stipulated in the

Scheme for compassionate appointment and there is no infirmity as such.

Accordingly, the writ petition stands dismissed. No costs.

12.10.2022

mrn Index : Yes / No Speaking order / Non-Speaking order

1. Managing Director, The New India Assurance Company Limited, 87, M G Road, Fort, Mumbai 400 001.

https://www.mhc.tn.gov.in/judis W.P.No. 18915 of 2017

2. The Chief Regional Manager, New India Assurance Company Ltd., Madurai Regional Office, 70 feet Road, Ellis Nagar, Madurai 625 016.

3. The Divisional Manager, New India Assurance Company Limited, Divisional Office II, Trichy.

S.M.SUBRAMANIAM, J.

mrn