Madras High Court

S.Dhanalakshmi vs The Principal Director on 27 September, 2022

                                                                                        WP No. 38606 of 2016

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 27-09-2022

                                                              CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                 WP No.38606 of 2016
                                                        And
                                                 WMP No.33068 of 2016



                     S.Dhanalakshmi                      ..                Petitioner

                                                               vs.


                     1.The Principal Director,
                       Highways Department,
                       Chepakkam,
                       Chennai – 600 005.

                     2.The Superintending Engineer,
                       National Highways,
                       Salem.

                     3.The Zonal Engineer,
                       National Highways,
                       Dharmapuri.

                     4.The Zonal Engineer,
                       National Highways,
                       Salem.                    ..                        Respondents


                     1/12


https://www.mhc.tn.gov.in/judis
                                                                                        WP No. 38606 of 2016




                                  Writ Petition is filed under Article 226 of the Constitution of India,
                     praying for the issuance of a Writ of Certiorarified Mandamus, calling for
                     the records from the file of the first respondent in proceedings in Memo
                     No.16606/Nir.1(2)2014 dated 08.01.2015 and quash the same and
                     consequently direct the respondents to consider and appoint the petitioner
                     on compassionate ground to anyone of the suitable post on considering the
                     petitioner educational qualification.


                                  For Petitioner                 : Mr.T.Gobinath

                                  For Respondents             : Mr.S.Balamurugan,
                                                                Government Advocate.
                                                            ORDER

The order of rejection rejecting the claim of the writ petitioner

for appointment on compassionate ground, is under challenge in the present

writ petition.

2. The petitioner states that her father late Mr.S.Seenivasan was

working as Junior Draftsman in the office of the third respondent and died

in a road accident on 24.01.1996. The petitioner was a minor at the time of

the death of her father and therefore, she was not eligible for appointment

https://www.mhc.tn.gov.in/judis WP No. 38606 of 2016

on compassionate grounds. However, the petitioner submitted an

application on 17.12.2011 after a lapse of about 15 years from the date of

the death of the deceased employee. Thus the application itself was rejected

by the respondents.

3. The mother of the writ petitioner submitted an application

within the period of three years. However, her case was not considered as

she was found not eligible for appointment. Thus, the petitioner submitted

an application on attaining the age of majority, more-so, after a lapse of

about 15 years from the date of death of the deceased employee.

4. 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

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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.

5. 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.

6. 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

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would be defeated.

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.

8. 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

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causing inefficiency in public administration, which would result in

violations of the Constitution provisions, since the Constitution mandates an

efficient public administration.

9. 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.

10. 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

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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 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.”

11. 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

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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. 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

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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.”

12. Even in yet another recent judgment of the Hon'ble

Supreme Court in the case of CENTRAL BANK OF INDIA vs. NITIN

[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

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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.”