P. Vignesh v. The Registrar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.11.2022 CORAM :
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No.1158 of 2018 and W.M.P.No.1441 of 2018 P.Vignesh ..
Petitioner Vs.
1. The Registrar Tamil Nadu Veterinary and Animal Sciences University Madhavaram Milk Diary Farm Complex, Chennai- 51.
2. The Extension Educational Director Tamil Nadu Veterinary and Animal Sciences University Madhavaram Milk Diary Farm Complex Chennai- 51.
..
Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus calling for the records of the first respondent in relation to his proceeding issued in letter No.9899/R.2/2007 dated 8.11.2016 and quash the same and issue a consequential direction to the respondents to provide an appointment to the petitioner on compassionate grounds in suitable post as per the petitioner's educational qualification.
For the Petitioner : Mr.R.Sasetharan For the Respondents : Mr.J.Melwin Jabaz for Mr.S.Vijayakumar for respondents 1 & 2
ORDER
The order of rejection, rejecting the claim of the writ petitioner for compassionate appointment is under challenge in the present writ petition.
2. The petitioner states that his father late Thiru.S.Palaniyappan was an employee as Technician in the respondent Veterinary and Animal Sciences University and died on 24.09.2006 while he was in service.
3. At the time of the death of his father, the petitioner was a minor and was aged about twelve years. However, the mother of the writ petitioner, Tmt.P.Santhi submitted an application on 05.04.2007 to the respondents to provide appointment on compassionate grounds. As on the date of the
application, the mother of the petitioner was not eligible, since her name was not entered as a nominee in the Service Register of the deceased employee. More so, the petitioner himself states that his mother is a second wife of the deceased employee Mr. S.Palaniyappan. Thus, the application submitted by the mother of the writ petitioner Tmt.P.Santhi on 05.04.2007 is not entertainable.
4. The second wife, who is not legally wedded is not eligible to avail the service benefits of the Government Servant. Since the mother of the petitioner was a second wife and she could not establish that she was the legally wedded wife of the deceased employee, the application itself was untenable. Since the petitioner was a minor during the relevant point of time, he is not eligible to seek appointment on compassionate ground. The petitioner attained maturity only after the expiry of the period of three years from the date of the death of the deceased employee and therefore, he is not eligible to submit an application for appointment on compassionate grounds.
5. That apart, the learned counsel for the respondents states that the name of the petitioner was not entered as son in the Service Register of the deceased employee and therefore, he is not eligible for appointment on compassionate grounds.
6. The scheme of compassionate ground is a concession, that could not be claimed as an absolute right. Thus, the scheme is to be implemented scrupulously with regard to the terms and conditions stipulated. The object of the scheme of compassionate appointment is to mitigate the circumstances arising on account of sudden death of the deceased employee and it is not for the purpose of providing one job for the family of the deceased employee.
7. 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 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.
8. 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.
9. 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.
10. 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 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 Honourable 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. 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 [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 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 [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 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."
15. The Hon'ble Supreme Court of India in the case of The State of Maharashtra and another vs. Ms.Madhuri Maruti Vidhate (Since after marriage Smt.Madhuri Santhosh Koli) [2022 LiveLaw (SC) 820], laid
down the principles as follows:
"5. While considering the issue involved in the present appeal, the law laid down by this Court on compassionate ground on the death of the deceased employee are required to be referred to and considered. In the recent decision, this Court in the case of Director of Treasuries in Karnataka and Anr. vs. V. Somyashree, 2021 SCC Online SC 704, had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this Court in N.C. Santhosh vs. State of Karnataka, (2020) 7 SCC 617, this Court has summarised the principle governing the grant of appointment on compassionate ground as under:- (i) that the compassionate appointment is an exception to the general rule;
(ii) that no aspirant has a right to compassionate appointment;
(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;
(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy;
(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.
6. As per the law laid down by this Court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right.
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As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. ................In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. ...............It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. ........
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Mumtaz Yunus Mulani vs. State of Maharashtra [(2008) 11 SCC 384] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis.....
7. Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is
an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased.
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Even otherwise, she shall not be entitled to appointment on compassionate ground after a number of years from the death of the deceased employee."
16. In the case of Fertilizers and Chemicals Travancore Ltd & Ors. vs. Anusree K.B. [2022 LiveLaw (SC) 819], the Apex Court held as follows:
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The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased.
17. In the present case, the petitioner states that he is the son of the second wife of the deceased employee. The name of the petitioner as well as his mother's name was not entered as nominees in the Service Register of the deceased employee and for all these reasons, this Court is of the opinion that
the benefit of the scheme of compassionate appointment could not be extended to the writ petitioner. More so, the employee died in the year 2006 and almost sixteen years lapsed. Thus, the petitioner is not entitled for the relief as such sought for in the present writ petition. Accordingly, the writ petition stands dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
16.11.2022 Index : Yes/No drm To
1. The Registrar Tamil Nadu Veterinary and Animal Sciences University Madhavaram Milk Diary Farm Complex Chennai- 51.
2. The Extension Educational Director Tamil Nadu Veterinary and Animal Sciences University Madhavaram Milk Diary Farm Complex Chennai- 51.
S.M.SUBRAMANIAM,J.
(drm) W.P.No.1158 of 2018 and W.M.P.No.1441 of 2018 16.11.2022