A.Latha, v. The State Of Tamil Nadu,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 11.10.2022

CORAM

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM A.Latha

...Petitioner

Vs.

1.The State of Tamilnadu, Represented by its Principal Secretary, Department of Revenue, Chief Secretariat, Chennai - 600 009.

2.The District Collector, District Collectorate, Perundurai Road, Erode - 638 011.

..Respondents Prayer : Writ Petition filed Under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the respondents to appoint the petitioner in a suitable post on compassionate grounds based on the filed enquiry report of the Revenue Inspector, Modakurichi, dated 09.02.2007. 1/17

For Petitioner : Mr.M.R.Thangavel For R1 and R2 : Mr.D.Gopal Government Advocate

ORDER

The relief sought for in the present writ petition is for a direction to direct the respondents to appoint the petitioner in a suitable post on compassionate grounds based on the filed enquiry report of the Revenue Inspector, Modakurichi, dated 09.02.2007.

2. The petitioner states that her father was employed as Village Assistant in Nanjai Uthukuli village, Modakurichi Taluk, Erode District and died on 08.09.2004, while he was in service. The mother of the writ petitioner submitted an application on 25.11.2006 to provide appointment to her daughter/Smt.A.Latha (writ petitioner herein) on compassionate grounds. When the application was pending, the petitioner got married to a person of his own choice and thereafter, the mother of the writ petitioner changed the nomination and made a request to the authorities to provide appointment to her third daughter/Smt.Gomathi.

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3. The request of the mother of the writ petitioner was rejected by the 2nd respondent in proceedings dated 29.10.2009 itself. The said order of rejection was not challenged by the mother of the writ petitioner and accordingly, the application submitted by the spouse of the deceased employee was closed and thereafter, no action was taken.

4. Once an application is made to provide appointment on compassionate ground by the legal heir of the deceased employee and the said application was rejected by the competent authority, the same became final and thereafter, any other application by other legal heirs are not entertainable with reference to the terms and conditions of the scheme for compassionate appointment. In other words, the second application under the scheme of compassionate appointment is not maintainable.

5. Even the order of rejection was passed regarding the change of nomination, the claim itself became lapsed on account of the fact that the spouse of the deceased employee changed the nomination and the said nomination was rejected and as far as the first daughter, who is the writ petitioner is concerned, she got married and separated from the family. When 3/17

the petitioner got married and living separately along with her husband, then she cannot be said to be a dependent of the deceased employee's family and therefore, this Court do not find any infirmity regarding the order of rejection passed by the respondents in the year 2009. However, the said order of rejection was not challenged by the spouse of the deceased employee and became final.

6. 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, is 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.

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7. 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.

8. 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. Scheme being violative of Articles 14 and 16 of the Constitution of India, since there is no merit assessment of the 5/17

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.

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 :

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"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."

11. In this regard, the Hon'ble Supreme Court of India in the case of Ahmednagar Mahanagar Palika vs. Ahmednagar Mahanagar Palika Kamgar Union reported in [2022 LiveLaw (SC) 739], wherein in paragraph7/17

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.

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 reported in [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.

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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."

13(a). Even recently on 30.09.2022, 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), reported in 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 10/17

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 11/17

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. 6.1 . ........... Govind Prakash Verma Vs. LIC, reported in (2005) 10 SCC 289.......

"21. ............

"2. ..........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. ........

26. ......Mumtaz Yunus Mulani v. State of Maharashtra 12/17

[(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.

7.1. ........Even otherwise, she shall not be entitled to appointment on compassionate ground after a number of years from the death of the deceased employee."

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13 (b). Yet another judgment in the case of Fertilizers and Chemicals Travancore Ltd & Ors. Vs. Anusree K.B. reported in 2022 LiveLaw (SC) 819, the Apex Court held as follows:

"9. ...........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.

9.1. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the respondent shall not be entitled to the appointment on compassionate ground on the death of her father, who died in the year 1995. After a period of 24 years from the death of the deceased employee, the respondent shall not be entitled to the appointment on compassionate ground. If such an appointment is made now and/or after a period of 14/24 years, the same shall be against the object and purpose for which the appointment on compassionate ground is provided."

14. In the present writ petition, the case of the writ petitioner was not considered independently as the original application submitted by the mother 14/17

of the writ petitioner was withdrawn, since the mother of the writ petitioner changed the nomination and the said application was rejected. Therefore, the case of the writ petitioner at this length of time cannot be considered by the competent authorities. More so, already 18 years lapsed from the date of death of the deceased employee and the petitioner got married and living separately with her husband. Thus, this Court cannot grant the relief as such sought for in the present writ petition, in view of the principles laid down by the Apex Court of India.

15. Accordingly, the writ petition stands dismissed. No costs. 11.10.2022 Index : Yes Speaking order:Yes kak To 1.The Principal Secretary, State of Tamilnadu, Department of Revenue, Chief Secretariat, 15/17

Chennai - 600 009.

2.The District Collector, District Collectorate, Perundurai Road, Erode - 638 011.

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S.M.SUBRAMANIAM, J.

kak 11.10.2022 17/17