Varalakshmi, v. The District Collector Of

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 10.10.2022

CORAM

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM 1.Varalakshmi W/o.Late Bakthavatsalu S.

2.B.Madhavan

...Petitioners

S/o.Late Bakthavatsalu S.

Vs.

1.The District Collector of Kancheepuram, Kancheepuram Post and District.

2.The Thasildhar, Thirukkazhukundram, Kancheepuram District.

..Respondents Prayer : Writ Petition filed Under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the order of the 2nd respondent bearing Na.Ka.No.4929/ 2013 A3 dated 23.12.2016 to quash the same and to direct the respondents to provide a suitable job on compassionate ground to the 2nd respondent within a reasonable time that may be stipulated by this Honourable Court. 1/18

For Petitioners : Mr.V.Raghupathi For R1 and R2 : Mr.D.Gopal Government Advocate

ORDER

The order of rejection, rejecting the claim of the writ petitioner for compassionate appointment in proceedings dated 23.12.2016 is under challenge in the present writ petition.

2. The first petitioner is the wife of the deceased employee and the second petitioner is the son of the deceased employee.

3. The 2nd petitioner states that his father Late S.Bakthavatsalu was employed as Village Administrative Officer and died on 06.12.2003, while he was in service. The 2nd petitioner was a minor at the time of the death of his father. The 1st petitioner submitted an application on 01.03.2004 to provide appointment to her elder daughter of the deceased employee Smt.B.Gajalakshmi. The said application was rejected and thereafter, the 1st petitioner submitted an application in the year 2007 to provide appointment to her son on compassionate ground, since he attained the age of majority 2/18

and the said application was also rejected. Thus, the petitioner is constrained to move the present writ petition.

4. The learned counsel appearing on behalf of the writ petitioner reiterated that the first application was submitted by the mother of the petitioner to provide appointment to the sister of the 2nd petitioner. However, the said application was not considered and therefore, the petitioner submitted an application to provide appointment to her son on compassionate grounds. The family was in indigent circumstances on account of the sudden death of the deceased employee and therefore, the family of the writ petitioners is eligible for appointment on compassionate grounds. Thus, the order of rejection is liable to be set aside.

5. The learned Government Advocate appearing on behalf of the respondents made a submission that the first respondent rejected the application submitted by the mother of the writ petitioner to provide appointment to the daughter of the deceased employee Smt.B.Gajalakshmi in proceedings dated 20.08.2006. The first respondent rejected the application on 23.07.2006 on the ground that the daughter of the deceased 3/18

employee Smt.B.Gajalakshmi got married during the year 2005 and therefore, she is not entitled for appointment on compassionate grounds. The second application was filed by the 1st petitioner on 09.02.2007, seeking appointment to her son. As on the date of application, the son of the deceased employee was a minor and not completed the age of 18 years. Thus, the said application was not considered. There was a ban for appointment from the year 2001 to 2006 and subsequently, the order of rejection was passed by the respondents.

6. The petitioner earlier filed W.P.No.18663 of 2014 to direct the respondents to consider the representation submitted by the writ petitioner on 20.01.2014 and 16.06.2014. The petitioner's application dated 20.01.2014 was disposed of by the District Collector in proceedings dated 15.04.2014 and the said order of rejection was communicated to the writ petitioner.

7. Admittedly, the deceased employee died on 06.12.2003. The first application submitted to provide appointment to the daughter of the deceased employee Smt.B.Gajalakshmi was rejected by the competent 4/18

authorities. Thus, there is no provision to entertain the second application from the next legal heir of the deceased employee for the purpose of providing appointment on compassionate ground. Once an application submitted was rejected, there is no scope for entertaining further application for providing appointment to another legal heir under the scheme of compassionate appointment. That apart, the 2nd petitioner was a minor during the relevant point of time and even at the time of submission of application, he has not completed the age of 18 years. However, the authorities competent subsequently issued an order of rejection, which was communicated to the writ petitioner.

8. 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 5/18

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.

9. 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.

10. 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 6/18

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 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.

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12. 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 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 8/18

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 in the case of Ahmednagar Mahanagar Palika vs. Ahmednagar Mahanagar Palika Kamgar Union reported in [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 9/18

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 reported in [2022 LiveLaw (SC) 690] , wherein in paragraphs 20 and 21, it has been held as under:- 10/18

"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."

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15(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 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 12/18

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. 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 13/18

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 [(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 14/18

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." 15 (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. 15/18

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."

16. The fact remains that the application itself was submitted beyond the period of three years from the date of death of the deceased employee and that apart, the petitioner's application was a second application, which is not entertainable under the terms and conditions of the scheme of compassionate appointment. Beyond all these reasons, near about 19 years lapsed from the date of the death of the deceased employee. Long delay is also a ground to reject the claim for compassionate appointment. 16/18

17. Thus, this Court do not find any infirmity in respect of the order impugned in the present writ petition. Accordingly, the writ petition stands dismissed. No costs.

10.10.2022 Index : Yes Speaking order:Yes kak To 1.The District Collector of Kancheepuram, Kancheepuram Post and District.

2.The Thasildhar, Thirukkazhukundram, Kancheepuram District.

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S.M.SUBRAMANIAM, J.

kak 10.10.2022 18/18