Madras High Court

R.Vignesh vs The Director Of Municipal ... on 19 October, 2022

                                                                                   W.P.No.15450 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 19.10.2022

                                                       CORAM

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                W.P.No.15450 of 2018

                     R.Vignesh                                                         ...Petitioner

                                                           Vs.

                     1.The Director of Municipal Administration,
                       Chepauk, Chennai.

                     2.The Commissioner,
                       Chengalpet Municipality,
                       Chengalpet, Kancheepuram District.                            ..Respondents

                     Prayer : Writ Petition filed Under Article 226 of the Constitution of India,
                     to issue a Writ of Certiorarified Mandamus, to call for the records relating to
                     the order dated 23.3.2018 in Na.Ka.No.1749/2018/C1 of the 2nd respondent
                     and the letter dated 30.10.2017 in ref No.Na.Ka.No.24728/2017/H2 of the
                     1st respondent therein and quash the same and direct the respondents to
                     appoint the petitioner for any suitable post on compassionate grounds in
                     view of the untimely death of his father on 27.8.2013.




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                                                                                        W.P.No.15450 of 2018

                                     For Petitioner        : Ms.M.Meena Rukumani
                                                             For M/s.AL.Ganthimathi

                                     For R1                : Mr.K.Surendran
                                                             Additional Government Pleader

                                     For R2                : Mr.P.Srinivas


                                                             ORDER

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

provide appointment on compassionate ground is under challenge in the

present writ petition.

2. The father of the writ petitioner Late Mr.Ramachandran was

working as a Scavenger in Chengalpet Municipality and died on 27.08.2013,

while he was in service.

3. The petitioner states that he was aged about 14 years at the time of

the death of his father. Thus, he could not able to submit an application for

appointment on compassionate grounds as he had not completed 18 years of

age. However, the petitioner submitted an application in the year 2016,

which was rejected by the authorities in proceedings dated 30.10.2017,

stating that the petitioner had not completed 18 years of age on the date of

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submission of application and therefore, the application cannot be

considered as per the terms and conditions stipulated in the Government

order.

4. The learned counsel for the petitioner states that on attaining the

age of 18 years, the petitioner submitted an application seeking

appointment, which was not considered by the competent authorities and it

was rejected in proceedings dated 23.03.2018. The respondents have

rejected the application on the ground that eligible legal heir of the deceased

employee has to submit an application seeking appointment on

compassionate ground within a period of 3 years from the date of death of

the deceased employee. The petitioner had not attained the age of majority

within a period of three years and therefore, the application submitted by

him on attaining the age of majority was rejected.

5. 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.

6. 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.

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7. 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. 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.

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8. 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.

9. 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

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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.”

10. 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

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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 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.”

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

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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

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

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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.”

12(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

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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.

6.1 . ........... Govind Prakash Verma Vs. LIC, reported in

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(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 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

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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 the death of the deceased employee.”

12 (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

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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 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.”

13. In the present case, the learned counsel for the petitioner states

that the other two daughters were illiterate and the wife of the deceased

employee is also illiterate. Therefore, they have not submitted any

application seeking appointment on compassionate grounds.

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14. The said factual position would not be a ground to consider the

case for compassionate appointment in respect of the application submitted

beyond the period of three years.

15. The scheme of compassionate appointment is to be implemented

strictly in accordance with the terms and conditions stipulated. The

conditions stipulated cannot be relaxed or weighed and in the present case,

the petitioner became eligible for appointment after expiry of the period of