Madras High Court
B.S.Balasubramanian vs The Executive Director/General ... on 14 October, 2022
WP No.14992 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14-10-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.14992 of 2017
B.S.Balasubramanian .. Petitioner
vs.
1.The Executive Director/General Manager,
Zonal Office,
Food Corporation of India,
No.3, Haddows Road,
Greamas Road,
Opp: Shastri Bhavan,
Chennai – 600 006.
2.The Area Manager,
Food Corporation of India,
District Office,
Tuticorin – 628 001. .. Respondents
Writ Petition is filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Mandamus, directing the first respondent
1/18
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to dispose of the representation of the petitioner dated 11.02.2009,
15.04.2009 and 10.02.2017, submitted to the first respondent.
For Petitioner : Mr.S.Balasubramanian
For Respondents : Mr.M.Imthias
ORDER
The relief sought for in the present writ petition is to direct the
first respondent to dispose of the representation submitted by the writ
petitioner on 11.02.2009 and on subsequent dates.
2. The petitioner states that his father late Mr.B.Shanthanaraj
was working as AG-I (General) in Food Corporation of India and died on
07.11.2008, while he was in service.
3. The petitioner is the eldest son of the deceased employee and
completed Diploma in Civil Engineering. He had submitted an application on
11.02.2009 seeking appoint on compassionate ground. The petitioner is all
along waiting to secure employment on compassionate ground. However, the
respondents have not considered the application and thus the petitioner is
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constrained to move the present writ petition.
4. The learned counsel for the petitioner made a submission that
the family of the petitioner is in indigent circumstances and the petitioner is
not in a permanent job and therefore, his case is to be considered for
appointment on compassionate ground.
5. The learned counsel, appearing on behalf of the respondent-
Food Corporation of India, made a submission that the scheme of
compassionate appointment is implemented by following the seniority
amongst the eligible candidates and the turn of the petitioner has not reached
and more-so, many number of such eligible candidates are waiting for
compassionate appointment.
6. The appointments on compassionate ground are to be given
only in a limited manner and therefore, the Food Corporation of India cannot
provide appointment to all the eligible candidates immediately as limited
number of posts are earmarked for compassionate appointment.
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WP No.14992 of 2017
7. Compassionate appointment is a concession and cannot be
claimed as an absolute right. The petitioner, even at the time of filing of the
present writ petition, was aged about 37 years and now he would be around
42 years. The age limit for compassionate appointment is 40 years and as of
now the petitioner is overaged.
8. That apart, the petitioner has got married and living
independently with his family. Under these circumstances, the petitioner
cannot be construed as a dependant of the deceased family at this length of
time.
9. 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. When the employee died in the year 2008 and the
petitioner got married long back and living separately along with his wife and
children, he cannot be considered as a dependant of the deceased employee
and on account of efflux of time, the scheme of compassionate appointment
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WP No.14992 of 2017
cannot be extended in favour of the petitioner.
10. 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.
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.
11. 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
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WP No.14992 of 2017
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.
12. 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.
13. 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
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would result in unconstitutionality.
14. 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
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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.”
17. 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:-
“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.”
18. Even in yet another recent judgment of the Hon'ble Supreme
Court in the case of CENTRAL BANK OF INDIA vs. NITIN [2022
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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
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compassionate appointment would be filled up
excluding others who might be in greater and/or
far more acute financial distress.”
19. 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
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
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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 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.
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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
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
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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
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
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the death of the deceased employee.”
20. 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
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
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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.”
21. In view of the fact that the deceased employee died in the
year 2008 and 14 years lapsed. Further, the petitioner has crossed the age
limit, the scheme of compassionate appointment cannot be extended in favour
of the writ petitioner.
22. Accordingly, the writ petition stands dismissed. However,
there shall be no order as to costs.
14-10-2022
Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non-Speaking Order.
Svn
S.M.SUBRAMANIAM, J.
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WP No.14992 of 2017
Svn
To
1.The Executive Director/General Manager,
Zonal Office,
Food Corporation of India,
No.3, Haddows Road,
Greamas Road,
Opp: Shastri Bhavan,
Chennai – 600 006.
2.The Area Manager,
Food Corporation of India,
District Office,
Tuticorin – 628 001.
WP 14992 of 2017
14-10-2022
https://www.mhc.tn.gov.in/judis
