Madras High Court

B. Sineesh vs The Government Of Tamil Nadu on 12 October, 2022

W.P.No.4075 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. 4075 of 2017
B. Sineesh
... Petitioner
Vs.

1. The Government of Tamil Nadu
Represented by the Secretary,
Home Department,
Fort St. George,
Chennai – 9.

2. The Assistant Commissioner,
Police Headquarters
Vepery, Chennai.
... 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 in
Na.Ka.Pa P3/Po/1264/18473/2015 on the file of the second respondent and
quash it as illegal, irregular and without jurisdiction and further direct the
respondents to compassionately appoint the petitioner to a post
commensurate to his qualification.

For Petitioner : Mr. V. Raghavachari
For Respondents : Mr. S. Rajesh
Government Advocate
for R1 and R2

Page 1 of 18

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W.P.No.4075 of 2017

ORDER

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

appointment on compassionate ground, due to medical invalidation of the

father of the writ petitioner, is under challenge in the present writ petition.

2. The petitioner states that his father late Mr. T. Babu, was working

as Sub Inspector of Police, on account of his continuous illness, the father of

the writ petitioner was declared medically unfit to perform his duties and

responsibilities as Sub Inspector of Police and pursuant to the

recommendations of the competent medical board, the father of the writ

petitioner was medically invalidated with effect from 22.06.2012. In this

regard, the competent authority passed an order in proceedings dated

28.08.2012, which reveals that the medical invalidation was effected from

22.06.2012, after medical invalidation, the father of the writ petitioner

received all the pensionery benefits and the pension for about three years and

died on 17.04.2015.

3. The petitioner submitted an application seeking appointment on

compassionate grounds on 20.07.2015, after the expiry period of three years

as contemplated under the Scheme of compassionate appointment. The said

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application was rejected by the respondents on the ground that the application

was submitted beyond the period of three years and therefore it is not

entertain able as per the Scheme of compassionate appointment.

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

delay is very meagre and thus the application ought to have been considered

by the respondents for the purpose of providing appointment on

compassionate ground.

5. The learned Government Advocate, appearing on behalf of the

respondents objected the said contention by stating that the Scheme is to be

implemented strictly in accordance with the terms and conditions stipulated.

When the application itself was submitted beyond the three years period from

the date of the medical invalidation of the father of the writ petitioner, the

authorities rejected the application as per the terms and conditions of the

Scheme and thus there is no infirmity as such.

6. Further, it is contended that the representation dated 20.07.2015

submitted by the one Shobana, mother of the petitioner, requesting for

appointment on compassionate grounds to her son, who is the petitioner

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herein was examined. As per G.O.(Ms). No. 168, Labour and Employment

(Q1) Department dated 19.10.2000, the age limit was enhanced in respect of

Government servants for medical invalidation from 50 years to 53 yes and the

legal heirs of the Government servants, who were medically invalidated on

medical certificate up to the age of 53 years, are eligible for seeking for

compassionate appointment.

7. In the case of T. Babu, Sub Inspector of Police, he was medically

invalidated on 22.06.2012, that is after completion of 53 years of age, his date

of birth is 29.03.1959. Therefore, the father of the writ petitioner completed

53 years, six months and seven days. Thus, the petitioner is not eligible for

compassionate appointment as per the Rule. The Government also ordered

representation for relaxation for relevant rule cannot be entertained. Thus,

the application submitted by the mother of the writ petitioner was rejected.

8. 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

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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.

9. 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.

10. 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.

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

inference that the penurious circumstances aroused on account of the sudden

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death of an employee became vanished. Thus, Courts have repeatedly held

that compassionate appointment cannot be granted after several years.

12. 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.

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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.”

13. 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.

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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.”

14. 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

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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 far more acute financial distress.”

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15. (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 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

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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.

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

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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 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

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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.”

15 (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 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

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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. This Court is of the considered opinion that appointment on

compassionate ground cannot be claimed as an absolute right. Claim of

compassionate appointment is a concession and thus cannot be claimed as a

right by the legal heirs of the deceased employee. The Scheme is to be

implemented strictly in accordance with the terms and conditions stipulated.

The application seeking appointment itself was submitted beyond the period

of three years and therefore it was rightly rejected by the respondents as it is

not entertainable. Beyond that, the father of the writ petitioner, at the time of

medical invalidation crossed the age of 53 years and as per the orders, the

legal heirs are not eligible for compassionate appointment. Beyond that,

efflux of time is also a ground to draw the factual inference that the penurious

circumstance arose, due to the death of the deceased employee became