Madras High Court
The District Collector vs A.Karthikeyan on 16 November, 2023
W.A.(MD) No.1280 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.11.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.A.(MD) No.1280 of 2019
and C.M.P.(MD) Nos.7589 of 2019 and 9881 of 2021
1.The District Collector,
Madurai District,
Madurai – 20.
2.The Assistant Director of Town Panchayats,
Madurai Zone,
Madurai – 20.
3.The Executive Officer,
Peraiyur Town Panchayat,
Madurai.
4.The Director of Town Panchayat,
Kuralagam,
Chennai – 600 108.
5.The Secretary,
Tamil Nadu Public Service Commission,
Chennai.
6.The Secretary,
Tamil Nadu Municipal Administration
and Water Supply Department,
Fort St.George,
Chennai – 9. ... Appellants/Respondents
1/10
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.1280 of 2019
-Vs.-
A.Karthikeyan ... Respondent/Writ Petitioner
PRAYER:- Writ Appeal filed under Clause 15 of Letters Patent Act, to
set aside the order dated 13.12.2018 made in W.P.(MD)No.4655 of 2013
on the file of this Court.
For Appellants : Mr.Veera Kathiravan,
Additional Advocate General
Assisted by Mr.S.P.Maharajan
Special Government Pleader
for Appellants 1 to 4 & 6
Mr.J.Anandkumar
Standing Counsel for 5th
Appellant
For Respondent : Mr.M.V.Venkataseshan
****
JUDGMENT
(Judgment of the Court was delivered by S.M.SUBRAMANIAM, J.)
The Writ Appeal on hand has been instituted against the order
dated 12.12.2018, passed in W.P.(MD) No.4655 of 2013.
2. The order of rejection rejecting the claim of the respondent
to appoint him to the post of Junior Assistant on compassionate ground
was under challenge in the writ proceedings. Since the rejection order
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W.A.(MD) No.1280 of 2019
was quashed by the learned Single Judge, the State has chosen to file the
present Writ Appeal.
3. Learned Additional Advocate General appearing on behalf
of the appellants mainly contended that the respondent was appointed on
compassionate ground on 21.08.2007 in the post of Record Clerk and he
joined the said post. His probation was declared and after the lapse of
five years he has filed another application to seek appointment to the post
of Junior Assistant on compassionate grounds. The said claim was
rejected by the authorities and the said order was under challenge in the
writ proceedings. Learned Single Judge without considering the fact that
the respondent was already appointed on compassionate grounds in the
post of Record Clerk, granted the relief in favour of the respondent by
relying upon the Government Order issued in G.O.Ms.No.1499, Labour
and Employment (Q1) Department, dated 03.08.1989. In the said order
the Government has issued certain guidelines stating that when the post
of Junior Assistant is available and the applicant seeking appointment on
compassionate ground is eligible for appointment to the post of Junior
Assistant, then he need not be appointed to a lower post. Relying on the
said Government Order the relief was granted.
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W.A.(MD) No.1280 of 2019
4. Learned Additional Advocate General relied on two
judgments of the Division Bench of this Court. One dated 10.06.2019
made in W.A. No.1767 of 2019, in the matter of Bharathiraja v. The
Government of Tamil Nadu, represented by its Secretary to
Government, wherein the following observations are made:-
“5. There is absolutely no basis in the claim made by
the appellant. There is no vested right to the appellant to claim
employment in a post of his choice. The Scheme framed by the
Government indicates the posts reserved for compassionate
appointment. The Government has been making appointments
only to the lower level posts. The fact that the appellant is over
qualified would not give him a right to claim a superior post.
The compassionate appointment given to the appellant itself
was a concession. The learned single Judge considered all
these vital aspects and the writ petition was rightly dismissed.”
5. In another judgment dated 01.03.2019, made in W.A.No.658
of 2019, in the matter of M.Prathap v. The Principal Secretary,
Revenue Administrative Commissioner, the Court considered the
principles as follows:-
“6. ... On a conspectus of the dictum laid down in the
binding decisions extracted supra, it would necessarily follow
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W.A.(MD) No.1280 of 2019
that the Appellant, who had already been appointed as Officer
Assistant on compassionate grounds cannot make another
claim to be posted as Junior Assistant or Record Clerk. We are
in agreement with the reasons assigned by the Learned Judge
in the order under appeal explaining that the claim made by the
Appellant, which runs contrary to the object of appointment on
compassionate grounds, cannot be granted and we confirm the
same.
7. It is a settled legal proposition that Article 14 of
the Constitution cannot be meant to perpetuate illegality as it
does not envisage negative equality. Thus, if some benefit has
been granted inadvertently by mistake to a person, such order
does not confer any legal right on similarly placed persons to
be extended the same benefit. Restating the applicability of that
legal principle to appointments made on compassionate
grounds, the Hon'ble Supreme Court of India in Union Bank
of India -vs- M.T. Latheesh [(2006) 7 SCC 350] has cautioned
that indiscriminate grant of appointments on compassionate
grounds would shut the door for employment to the ever-
growing population of unemployed youth.”
6. Learned counsel appearing on behalf of the respondent
mainly contended that the Government guidelines issued is binding on
the authorities. The petitioner was initially appointed as Record Clerk on
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W.A.(MD) No.1280 of 2019
compassionate ground mistakenly and therefore, he is entitled to be
appointed as Junior Assistant and the said claim was rejected. Learned
Single Judge rightly considered the claim of the respondent based on the
Government guidelines issued and therefore, the Writ Appeal is to be
rejected.
7. In support of the said contentions, the learned counsel for
the respondent relied on the order of the learned Single Judge dated
15.06.2011, passed in W.P.No.19932 of 2008, in the matter of
P.G.Ramesh v. The Government of Tamil Nadu Rep. by its Secretary to
Government, Municipal Administration & Water Supply, Department,
Chenni and others wherein the relief of appointment to the post of
Junior Assistant was granted. The said order was confirmed by the
Division Bench and the Special Leave Petition filed by the State also was
rejected.
8. We have considered the rival submissions made on behalf of
the parties to the lis on hand.
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W.A.(MD) No.1280 of 2019
9. The Scheme of compassionate appointment is a concession
and not an absolute right. Scheme is not a method of appointment. All the
appointments are to be made under the constitutional Scheme and equal
opportunity in public appointment is the constitutional mandate. Under
the Scheme of compassionate appointment, there is no merit assessment
and the eligibility and suitability are not considered by the authorities.
Mere death of an employee was taken into consideration for extending
the benefit of the Scheme of appointment with an object to mitigate the
circumstances arising on account of sudden death of an employee, who
may be the breadwinner of the family. That being the object, the
penurious circumstances prevailing on account of the death of the
employee is to be considered by the authorities and other conditions
stipulated are also to be complied with.
10. Scheme being a special one, to be implemented
scrupulously following the terms and conditions. Large scale
compassionate appointments, if made would cause infringement of the
rights of lakhs of youths, who all are longing to secure public
employment through open competitive process. Therefore, the
Government earmarked limited number of posts for providing
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W.A.(MD) No.1280 of 2019
compassionate appointment. List of seniority is maintained for the
purpose of providing appointment on compassionate grounds. Scope of
judicial review to grant the relief of compassionate appointment is
limited and that being principles we are of the considered opinion that
the first respondent is not entitled to seek second appointment on
compassionate ground. He was already appointed on compassionate
ground to the post of the Record Clerk based on his application and he
has accepted the said post and is serving for more than 15 years.
Therefore, the second application submitted by the respondent seeking
appointment to the post of Junior Assistant on compassionate ground is
not maintainable under the Scheme and therefore, the learned Single
Judge has erred in granting the relief.
11. Consequently, the order impugned dated 12.12.2018,
passed in W.P.(MD) No.4655 of 2013 is set aside and the Writ Appeal
stands allowed. No costs. Consequently, connected Civil Miscellaneous
Petitions are closed.
[S.M.S.J.,] & [V.L.N.J.,]
NCC :Yes/No 16.11.2023
Index :Yes/No
SJ
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.1280 of 2019
To
1.The District Collector,
Madurai District,
Madurai – 20.
2.The Assistant Director of Town Panchayats,
Madurai Zone,
Madurai – 20.
3.The Executive Officer,
Peraiyur Town Panchayat,
Madurai.
4.The Director of Town Panchayat,
Kuralagam,
Chennai – 600 108.
5.The Secretary,
Tamil Nadu Public Service Commission,
Chennai.
6.The Secretary,
Tamil Nadu Municipal Administration
and Water Supply Department,
Fort St.George,
Chennai – 9.
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.1280 of 2019
S.M.SUBRAMANIAM, J.
AND
V. LAKSHMINARAYANAN, J.
SJ
W.A.(MD) No.1280 of 2019
16.11.2023
https://www.mhc.tn.gov.in/judis
