Madras High Court

K.Vijaya vs The General Manager (Admin) on 27 September, 2022

                                                                                   W.P.No.38481 of 2016

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED : 27.09.2022

                                                            CORAM

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                   W.P.No.38481 of 2016

                     K.Vijaya                                                   ... Petitioner
                                                              Vs.

                     1.The General Manager (Admin)
                       Tamil Nadu Civil Supplies Corporation,
                       Headquarters,
                       Kilpauk, Chennai – 10.

                     2.The Regional Manager,
                       Tamil Nadu Civil Supply Corporation,
                       Villupuram Division,
                       Villupuram – 605 602.                                    ... Respondents


                     Prayer: Writ Petition filed Under Article 226 of the Constitution of India
                     for issuance of a Writ of Certiorarified Mandamus, calling for the records of
                     the 2nd respondent in relation to the order in Na.Ka.No.E4/4849/2015 dated
                     08.08.2016 and quash the same and consequently, directing the respondents
                     to appoint the petitioner in any suitable post on compassionate grounds.


                                      For Petitioner            : Mr.S.N.Ravichandram

                                      For Respondents           : Mr.L.P.Shanmugasundaram




                     Page 1 of 14

https://www.mhc.tn.gov.in/judis
                                                                                       W.P.No.38481 of 2016

                                                            ORDER

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

compassionate appointment on the ground that the petitioner was a married

daughter even before the death of the deceased employee and was aged

about 36 years is under challenge in the present writ petition.

2. The petitioner states that her father was employed as a Watchman

in the Tamil Nadu Civil Supplies Corporation and died on 19.10.2011,

while he was in service. The petitioner states that her father was survived by

her mother namely Mannammal, her elder brother Mr.Murugan and younger

brother Mr.Viramani. The petitioner states that her father was the sole

earning member of the family and therefore, the family was in indigent

circumstances.

3. The petitioner states that herself and her brothers got married

during the life time of her father and therefore, the petitioner submitted an

application on 05.03.2012, seeking appointment on compassionate grounds.

The respondents rejected the said application on the ground that her elder

brother has crossed the prescribed age limit of 35 years at the time of death

of her father. The mother of the writ petitioner submitted an application on

https://www.mhc.tn.gov.in/judis W.P.No.38481 of 2016

19.12.2012 and the said application was also rejected by the 2 nd respondent

in proceedings dated 31.12.2013, stating that the petitioner being the

married daughter, is not eligible for compassionate appointment under the

scheme applicable under the Tamil Nadu Civil Supplies Corporation. Thus,

the present writ petition is filed.

4. The learned counsel for the petitioner mainly contented that the

married daughter is also eligible for appointment on compassionate

grounds. The petitioner belongs to Scheduled Caste community and

therefore, the authorities ought to have been considered the family

circumstances of the writ petitioner. The petitioner furnished all the relevant

documents along with the application and the said application was not

considered without any valid reason.

5. The learned counsel for the petitioner relied on the judgments of

the Hon'ble Division Bench of this Court in W.A.(MD).No.751 of 2015

dated 14.07.2015 and the Division Bench judgment in the case of

C.Jayapal Vs. The Director of Medical Education, Chennai reported in

[2005 (5) CTC 655].

https://www.mhc.tn.gov.in/judis W.P.No.38481 of 2016

6. That apart, the learned counsel for the petitioner relied on the

orders passed in writ petitions to establish that married daughters are also

eligible for appointment on compassionate ground. Further, the petitioner

established her indigent circumstances by submitting necessary certificate

from the Tahsildar and therefore, the case of the writ petitioner ought to

have been considered by the respondents for providing appointment on

compassionate grounds.

7. The learned counsel for the respondents objected the said

contention by stating that the petitioner was a married daughter even before

the death of the deceased employee and further, her elder brother had

crossed the age limit and under those circumstances, the respondents had

granted liberty to submit an application for the younger brother of the writ

petitioner Mr.Viramani. In the event of submitting any such application, the

same will be considered by the competent authorities. In spite of the

communication in this regard by the respondents, the petitioner has not

responded. Therefore, the very contentions raised by the petitioner are

incorrect and the family cannot be considered as in indigent circumstances.

https://www.mhc.tn.gov.in/judis W.P.No.38481 of 2016

8. It is brought to the notice of this Court that during the relevant

point of time, the father of the writ petitioner died. As per the scheme,

married daughters are not eligible for appointment on compassionate

grounds. Further, the elder brother of the writ petitioner has crossed the age

of 35 years as prescribed for appointment on compassionate grounds and

therefore, the very application submitted by the petitioner is untenable.

9. As far as the earlier judgments of the Hon'ble Division Bench and

the Learned Single Judges are concerned, those judgments are delivered

based on the factual circumstances. The principles regarding appointment

on compassionate ground underwent many developments pursuant to the

judgments of the Hon'ble Supreme Court of India and the Government also

subsequently issued the scheme of compassionate appointment with more

clarity. Therefore, those judgments are to be confined only with reference to

the facts and circumstances of those cases and the same cannot be followed

in perpetuity for the purpose of extending the scope of compassionate

appointment. In the event of expanding the scope of compassionate

appointment, the same would result in unconstitutionality and in violation

of Articles 14 and 16 of the Constitution of India.

https://www.mhc.tn.gov.in/judis W.P.No.38481 of 2016

10. 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 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

https://www.mhc.tn.gov.in/judis W.P.No.38481 of 2016

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 death of an employee became vanished. Thus, Courts have

https://www.mhc.tn.gov.in/judis W.P.No.38481 of 2016

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.

https://www.mhc.tn.gov.in/judis W.P.No.38481 of 2016

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, 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 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

https://www.mhc.tn.gov.in/judis W.P.No.38481 of 2016

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.”

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

https://www.mhc.tn.gov.in/judis W.P.No.38481 of 2016

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 far more acute financial distress.”

https://www.mhc.tn.gov.in/judis W.P.No.38481 of 2016

15. In the present case, even at the time of death of the deceased

employee, the elder brother of the writ petitioner crossed the age limit and

the writ petitioner was a married daughter at the time of death of her father,

more over, the younger son also got married.

16. At the outset, two sons and one daughter of the deceased

employee got married even before his death. The respondents have given an

opportunity to submit an application for the younger brother of the writ

petitioner, who in turn, had not submitted any application during the

relevant point of time. The petitioner event at the time of filing the writ

petition was aged about 36 years and now, she would be around 42 years.

The elder brother had crossed the age limit even at the time of filing of the

application.

17. For all these reasons and circumstances, this Court cannot form an

opinion that the family was in indigent circumstances during the relevant

point of time, when the deceased employee died. Therefore, the reasons

stated in the impugned order cannot be said to be perverse.