Telangana High Court
T.Macender Died Per Lr vs Union Of India Through Its Secretary, on 25 January, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 29160 OF 2010
ORDER:
Petitioner, a retired employee is stated to have
served 32 years in the Civil Engineering Department of the 2nd
respondent college, now rechristened as National Institution of
Technology, Warangal. Citing health issues, petitioner sought
voluntary retirement on medical invalidation five years before
superannuation and the Medical Board certified his complete and
permanent incapacitation on 06.09.1996 which resulted in his
retirement as per G.O.Ms.No. 504, dated 30.07.1980 and
G.O.Ms.No. 309, dated 04.07.1985. Consequently, petitioner
sought appointment to his son viz. T. Rajender, on compassionate
grounds as per G.O.Ms.No. 309, dated 04.07.1985, but the same
was not considered.
It is stated that in terms of G.O.Ms.No. 214, dated
09.06.1998, the request of the employee, who retired on medical
invalidation between 01.08.1996 and 09.06.1998 were to be
processed and disposed of as per the conditions laid down therein.
Pursuant to the said G.O., a Committee was constituted to
examine the medical invalidation cases, including that of
petitioner resulting in a recommendation for his medical
invalidation and the employment of his son in accordance with
G.O.Ms.No. 177, dated 12.04.2001, however, despite repeated
representations, the matter remained unresolved.
Petitioner therefore, is stated to have filed Writ Petition
No. 19870 of 2005 seeking implementation of compassionate
appointment scheme in respect of his son. The said Writ Petition
was allowed on 02.04.2009 directing the respondents to consider
appointment within two months. It is his case that Board of
Governors also resolved on 17.07.2004 to consider possibility of
appointing spouse / children of the four employees including
petitioner who retired on medical invalidation. On 25.05.2009,
petitioner gave a letter enclosing copy of the order dated
02.04.2009 in Writ Petition No. 19870 of 2005 requesting
appointment of his son, but in vain. Then, petitioner is stated to
have filed C.C.No. 1142 of 2009, during the pendency of which,
the impugned proceedings dated 18.02.2010 were issued rejecting
his case. Hence, the Writ Petition.
2. During pendency of Writ Petition, petitioner died
and his son Sri T . Rajedner was brought on record as his legal
representation vide order dated 23.03.2023 in I.A.No. 1 of 2022.
3. In the counter-affidavit filed on behalf of the 2nd
respondent, it is stated that petitioner initially was appointed as a
Cleaner in NIT, Warangal on 10.09.1964, progressed through
various roles and ultimately, served as a Grade 'D' Mechanic from
27.09.1995. Based on his date of birth, he was slated for
superannuation on 31.03.2002, however, on medical grounds,
though Application dated 01.07.1996, he sought retirement and
requested for appointment for his son. The Superintendent of
MGM Hospital, Warangal communicated the findings of Medical
Board through letter dated 06.09.1996 determining petitioner to
be completely and permanently incapacitated leading to his
sanctioned retirement from 06.09.1996.
It is stated that the 2nd respondent college was
rechristened as National Institute of Technology, Warangal which
is an autonomous grant-in-aid institution. It adopts new rules
and procedures, aligning them with those of the Central
Government. The Ministry of Human Resource Development
communicated these changes. Petitioner retired well before the
conversion, hence, the rules of State Government cannot be
followed by a central government institution. This respondent
underscores that Writ Petition was filed on 16.11.2010 i.e. more
than 14 years after the petitioner's medical invalidation.
Tis respondent laid emphasis that subsequent to
petitioner filing Writ Petition and Contempt Case, a comprehensive
review took place. The examination revealed that petitioner's
request could not be accommodated due to appointment of 55
non-teaching employees on compassionate grounds, surpassing
5% vacancy limit in a year. Additionally, the institution's staff
count exceeded the sanctioned strength with 355 non-teaching
staff against 284 sanctioned posts. The Board of Governors
resolved to consider compassionate appointments, but due to
absence of vacancies, resolution could not be implemented.
According to this respondent, compassionate appointments are
not obligatory and highlights engagement of petitioner's son on
outsourcing basis.
It is the case of this respondent that compassionate
appointments, while deviating from standard appointment rules,
serve the commendable purpose of aiding the deceased employee's
family during crisis. The Hon'ble Supreme Court in Umesh
Kumar Nagpal v. State of Haryana 1, emphasized the objective
of providing immediate relief to families facing the abrupt loss of
the sole bread-winner. It highlights that the mere death of an
employee does not automatically entitle the family to such
livelihood support. Additionally, it underscores that
compassionate employment cannot be granted after an
unreasonable period, as it is not a vested right exercisable at any
(1994) 4 SCC 138
future time. Referring to the judgments in Ravi Koch v. State of
Meghalaya 2 and Ravi Shanker Kumar v. Union of India 3, the
respondent emphasizes dismissal of similar petitions due to
extended survival periods of the families and significant delays in
filing. The Court ruled that claims for compassionate
appointments lose significance when families have sustained
themselves for an extended period or when petitions are heavily
barred by laches. Hence, the 2nd respondent seeks dismissal of
the Writ Petition.
4. Petitioner also filed the reply-affidavit stating that
the Board of Governors being the supreme body of NIT having
considered the possibility of his appointment as one time measure,
the question of relying on rules framed by the Central Government
or State Government does not arise. He states that widow pension
has nothing to do with the compassionate appointment and
respondents engaged him on outsourcing basis because of his
competency, which, as a matter of fact, ought to have been by way
of permanent appointment. Appointing persons on outsource basis
itself shows the necessity for recruitment in the institution. It is
stated that there are no laches on his part and he has been
pursuing remedies continuously with the respondent as well as
2019 SCC Online 4
2019 SCC Onlilne 255
the legal remedies available by approaching this Court. According
to petitioner, upper age limit could be relaxed and the age
eligibility shall be determined from the date of application and not
the age of appointment. He relies on the judgment of the Hon'ble
Apex Court in Punjab State Power Corporation Limited v.
Nirval Singh 4 in that regard. Finally, it is the request of petitioner
that if respondents cannot give appointment, this Court may direct
them to award solatium of Rs.20 lacs for depriving him
appointment in spite of Resolution of Board of Governor. To
justify his claim, reliance is placed on the judgment of the Apex
Court in Chief General Manager, Telecommunication, BSNL v.
Vidya Prasad 5, MGB Gramin Bank v. Chakrawarti Singh 6
and Central Coalfields Limited through its Chairman and
Managing Director v. Smt. Parden Oraon 7.
5. Heard Sri Bankatlal Mandhani, learned counsel for
petitioner as well as Sri T. Mahener Rao, learned Standing
Counsel for the 2nd respondent. Learned counsel for petitioner in
support of his contentions, relies on the judgment of the
6. The facts are not in dispute. Learned counsel draws
attention of this Court to the letter addressed by the Registrar to
(2019) 6 SCC 774
(2021) 13 Supreme Court Cases 212
2013 Law Suit (SC) 706
AIR 2021 Supreme Court 1876
the Advocate on 20.10.2004, wherein it is stated that the Board of
Governors at its meeting held on 17.07.2004 considered the
possibility of appointment of spouse / children of the four
employees who retired on medical invalidation prior to becoming
NIT as one time measure. This fact was also admitted by the 2nd
respondent, but however, their case is that the same could not be
considered as no vacancies were available then and the number of
non-teaching employees were in excess of sanctioned strength.
Though this Court in Writ Petition No. 19870 of 2005 vide order
dated 02.04.2009 directed the respondents to consider request of
petitioner for appointment of his son on compassionate grounds as
proposed vide letter dated 20.11.2004 and take appropriate
decision in accordance with law, preferably within a period of eight
weeks from the date of receipt of the said order, the respondents
passed the impugned order dated 18.02.2010 wherein it is
observed that: ' .... The matter was once again considered carefully
and the case of the petitioner for appointment on compassionate
grounds was considered and rejected as per the Scheme since 55
non-teaching employees were appointed on compassionate grounds
on medical invalidation ground which is more than 5% prescribed
under the Scheme. As per the MHRD instructions, the ratio of 1:1:1
should be maintained between teaching and non-teaching staff are
working in the Institute which itself is more than the sanctioned
posts. However, the case of the individual will be considered as
and when any suitable vacancy arises against the sanctioned posts
in future." Further, the respondents draws attention of this Court
to the notification dated 19/22-2-2013 issued by the NIT inviting
applications from eligible in service Group-C employees of the
institute who are drawing grade pay of Rs.1800/- or above for
filling the earmarked vacancies of Junior Assistants as per the
DoPT Model Recruitment Rules. It is stated that recruitment
process initiated against the said notification has already been
completed and all seven vacancies were filled up from among the
serving. Here it is to be noted that in the Scheme for
compassionate appointment, Clause 4 : Posts to which such
appointments can be made shows the Group 'C' posts against the
direct recruitment quota. Against clause 7 : Determination /
availability of vacancies (g) says that Liberalized method of
calculation of vacancies for small ministries / departments - The
small Ministries / Departments may apply a more liberalized
method of calculation of vacancies under 5% quota for
compassionate appointment. The small Ministries / Departments,
for the purpose of these instructions, are defined as organizations
where no vacancy for compassionate appointment could be located
under 5% quota for the last three years. Such small Ministries /
Departments may add up to the total of DR vacancies in Group 'C'
and erstwhile Group 'D' posts (excluding technical posts) arising in
each year for three or more preceding years and calculate 5% of
vacancies with reference to the grand total of vacancies of such
years, for locating one vacancy for compassionate appointment.
This is subject to the condition that no compassionate
appointment was / has been made by the Ministries /
Departments during 3 years or number of years taken over and
above 3 years for locating one vacancy under 5% quota. Clause 9 :
Belated requests for compassionate appointment: (a) Ministries /
Departments can consider requests for compassionate
appointment even where the death or retirement on medical
grounds of a government servant took place long back, say five
years or so. While considering such belated requests it should,
however, be kept in view that the concept of compassionate
appointment is largely related to the need for immediate
assistance to the family of the government servant in order to
relieve it from economic distress. The very fact that the family has
been able to manage somehow all these years should normally be
taken as adequate proof that the family had some dependable
means of subsistence. Therefore, examination of such cases would
all for a great deal of circumspection. The decision to make
appointment on compassionate grounds in such cases may,
therefore, be taken only at the level of the Secretary of the
Department / Ministry concerned. In the light of the same, the
argument of petitioner that the Institute had avoided appointment
to his son is incorrect.
6. Another contention of the respondents that the Writ
Petition filed after more than 14 years of medical invalidation of
petitioner is liable to be dismissed, merits consideration. They
underlined the concept of compassionate appointments which is
provided to assist the family of the government servant to relieve
the family from economic distress. Even though the respondent
institution is not under obligation to provide compassionate
appointment, petitioner's son was engaged on outsourcing basis.
The very fact that petitioner and his family, apart from pension /
family pension sanctioned by the respondent, has been able to
manage all these years should normally be taken as adequate
proof that petitioner has dependable means of subsistence.
Consequent on the death of the employee, his wife is getting family
pension and dearness allowance i.e. Rs.20,179/- and medical
allowance of Rs.600/- as on date besides entitlement for medial
reimbursement. The contention of the respondents is fortified by
the judgment of the Hon'ble Apex Court in Umesh Kumar
Nagpal's case, wherein it is held that the whole object of granting
compassionate appointment is to enable the family to tide over the
sudden crisis and to relieve the family of the deceased from
financial destitution and to help it get over the emergency. Offering
compassionate appointment as a matter of course irrespective of the
financial condition of the family of the deceased or medically retired
government servant is legally impermissible (emphasis supplied).
Dealing with similar circumstances in Ravi Koch's case (supra),
the Hon'ble High Court of Meghalaya held that when a family has
survived for 18 years, claim for benefit of compassionate
appointment loses significance and therefore, dismissed the Writ
Petition. In another judgment in Ravi Shanker Kumar's case
(supra), the High Court of Patna observed that the Writ Petition
has been filed after an inordinate delay of almost ten years and the
explanation sought to be given for the delay does not appear to be
convincing and dismissed the Writ Petition as heavily barred by
laches. In this regard, petitioner justifies his case contending that
widow pension has nothing to do with the compassionate
appointment and the respondents engaged him on out-sourcing
basis which is not a permanent appointment. Further, he has
produced the information under Right to Information Act showing
the vacancy position i.e. Junior Assistant - 3, Senior Assistant - 3,
Assistant (SG-II) 2.
Be that as it may, in the impugned order itself, since it is
stated that case of the individual would be considered as and
when suitable vacancy arises against the sanctioned posts in
future, it is not appropriate for this Court to interfere with the said
proceedings. Further, the question of awarding solatium /
compensation, as claimed by petitioner, also does not arise.
7. The Writ Petition is therefore, disposed of directing
the 2nd respondent to consider the candidature of petitioner
whenever vacancy arises against the sanctioned posts in future.
8. Consequently, the miscellaneous Applications, if
any shall stand closed.
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NAGESH BHEEMAPAKA, J
25th January 2024
ksld
