Madras High Court
R.Ashok Kumar vs The Chairman And Managing Director on 28 September, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P.No.19058 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.09.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.19058 of 2016
and
W.M.P.No.16610 of 2016
R.Ashok Kumar ... Petitioner
Vs.
1.The Chairman and Managing Director,
Chennai Metrowater and Drainage Board,
No.1, Pumping station road, Chindaripet,
Chennai – 600 002.
2.The General Manager,
Chennai Metrowater and Drainage Board,
No.1, Pumping station road, Chindaripet,
Chennai – 600 002. ... Respondents
Prayer: Writ Petition filed Under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, calling for the records relating
to the 2nd respondent's proceedings in letter
No.SeKuVa/Pamani/Ni.Ma.4/4055/2016 dated 15.03.2016 and quash the
same and direct the respondents to provide any suitable employment to the
petitioner on compassionate ground within the time prescribed by this Court.
For Petitioner : Mr.M.Muthappan
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W.P.No.19058 of 2016
For Respondents : Mr.N.Ramesh
ORDER
The rejection order dated 15.03.2016 is self evident that the petitioner submitted an application seeking appointment on compassionate ground on 23.02.2016 after a lapse of about 19 years from the date of the death of the deceased employee.
2. The learned counsel for the petitioner made a submission that the mother of the writ petitioner submitted an application in the year 2003, which was not considered by the competent authority. Even the said application of the year 2003 was submitted after a lapse of about 6 years from the date of the death of the deceased employee.
3. The learned counsel for the respondent made a submission that no such application was submitted in the year 2003 seeking appointment on compassionate grounds and the respondents had not received any application.
4. In any event, the fact remains that the deceased employee died on 17.10.1997, now 25 years lapsed. Efflux of time is also a ground to reject Page 2 of 11 https://www.mhc.tn.gov.in/judis W.P.No.19058 of 2016 the claim for compassionate ground as penurious circumstances arose on account of the sudden death became vanished. Factual inference is to be drawn, it is not as if one appointment to be provided to the family of the deceased employee. The scheme is to be implemented within a reasonable period of time only to the deserving families and regarding the indigent circumstances, field enquiry is eminent.
5. 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, 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 Page 3 of 11 https://www.mhc.tn.gov.in/judis W.P.No.19058 of 2016 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. 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 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 Page 4 of 11 https://www.mhc.tn.gov.in/judis W.P.No.19058 of 2016 causing inefficiency in public administration, which would result in violations of the Constitution provisions, since the Constitution mandates an efficient public administration.
6. 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.
7. 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 Page 5 of 11 https://www.mhc.tn.gov.in/judis W.P.No.19058 of 2016 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.”
8. 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 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 Page 6 of 11 https://www.mhc.tn.gov.in/judis W.P.No.19058 of 2016 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 Page 7 of 11 https://www.mhc.tn.gov.in/judis W.P.No.19058 of 2016 appointment though they may be more meritorious and/or well educated and/or more qualified.”
9. 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. 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 Page 8 of 11 https://www.mhc.tn.gov.in/judis W.P.No.19058 of 2016 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.”
10. In view of the fact that the employee died 25 years back and the application was submitted beyond the period of three years which is in violation of the terms and conditions of the scheme of appointment, this Court is not inclined to grant the relief as such sought for in the writ petition.
28.09.2022 mrn Index : Yes / No Speaking order / Non-Speaking order To
1.The Chairman and Managing Director, Chennai Metrowater and Drainage Board, No.1, Pumping station road, Chindaripet, Chennai – 600 002.Page 9 of 11
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2.The General Manager, Chennai Metrowater and Drainage Board, No.1, Pumping station road, Chindaripet, Chennai – 600 002.
Page 10 of 11 https://www.mhc.tn.gov.in/judis W.P.No.19058 of 2016 S.M.SUBRAMANIAM, J.
mrn W.P.No.19058 of 2016 and W.M.P.No.16610 of 2016 28.09.2022 Page 11 of 11 https://www.mhc.tn.gov.in/judis