Madras High Court

P.M.Manjusha vs The Chief Commissioner Of Central ... on 23 September, 2022

                                                                                         W.P.No.28905 of 2017

                                       IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED : 23.09.2022

                                                               CORAM

                                  THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
                                                         W.P.No.28905 of 2017

                    P.M.Manjusha                                                    ... Petitioner

                                                      Vs.
                    The Chief Commissioner of Central Excise,
                    Chennai.                                                      ... Respondent

                    Prayer: Writ Petition filed Under Article 226 of the Constitution of India, for
                    issuance of a Writ of Mandamus, to direct the respondent to consider the
                    petitioner representation made on 22.02.2016.


                                        For Petitioner      : Mrs. M.Prithi
                                                              For Mr. C.Deivasigamani

                                        For Respondent      : Mr. K.Umesh Rao
                                                              Senior Standing Counsel for Central Excise


                                                             ORDER

The writ of Mandamus has been filed to consider the representation

submitted by the writ petitioner dated 22.02.2016.

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2. The petitioner states that her father Mr.P.D.Mohanan, served as

Driver and died on 22.02.1994, while he was in service. The mother of the

writ petitioner was appointed on compassionate grounds on 24.06.2010. The

mother was working in the respondent / Department and she also died on

23.09.2013. Again the petitioner submitted an application to provide

appointment on compassionate ground on 03.01.2014. The said application

submitted by the writ petitioner was withdrawn on 08.12.2014 and again it

was re-submitted on 22.02.2016. Thereafter, the petitioner filed the present

writ petition to consider the said application dated 22.02.2016.

3. It is brought to the notice of this Court that the respondent

considered the application submitted by the writ petitioner on 22.02.2016 and

rejected the said application in proceedings dated 08.11.2019, stating that due

to veracity of vacancies request for compassionate appointment could not be

acceded.

4. The order of rejection had not been challenged in the present writ

petition. However, the brother of the writ petitioner further submitted an

application seeking appointment on compassionate ground on 23.11.2021. In

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respect of the application submitted by the brother of the writ petitioner, she

had filed an affidavit of no objection to provide employment to her brother,

more so, such an affidavit was given after rejecting the application submitted

by the writ petitioner seeking compassionate appointment on 22.02.2016.

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 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, 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. 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

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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. 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

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administration, which would result in violations of the Constitution

provisions, since the Constitution mandates an efficient public administration.

6. 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.

7. 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.

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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 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.”

8. 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 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

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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. 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.”

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9. 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

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

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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.”

10. The fact remains that the employee died in the year 1994 and the

wife of the employee was provided with an appointment on compassionate

ground. She served and subsequently, she also died. Thereafter, the writ

petitioner submitted an application and withdrew the same and re-submitted

after a lapse of about two years. Thereafter, the brother of the writ petitioner

also submitted an application seeking compassionate appointment after

rejection of the application submitted by the petitioner.

11. Pertinently, the brother of the writ petitioner originally submitted

no objection to provide appointment to the writ petitioner. Subsequently, the

petitioner filed an affidavit of no objection to provide employment to his

brother. All contradictory facts and circumstances reveals that the petitioner is

not eligible for the compassionate appointment, more over, several years

lapsed from the date of death of the deceased employee and at this length of

time seeking compassionate appointment cannot be extended to the writ

petitioner.

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12. Accordingly, the Writ Petition stands dismissed. No costs.

23.09.2022 (2/2)

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