Madras High Court
S. Ganesh vs The Chief Security Commissioner on 11 February, 2015
Author: V.M. Velumani
Bench: V. Dhanapalan, V.M. Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.02.2015
CORAM
THE HONOURABLE MR.JUSTICE V. DHANAPALAN
AND
THE HONOURABLE Ms.JUSTICE V.M. VELUMANI
W.A.(MD)No.1144 OF 2012
S. Ganesh .. Appellant
Vs.
1. The Chief Security Commissioner,
Railway Protection Force,
6th Floor, Moor Market Complex,
Southern Railway,
Chennai
2. The Personnel Officer,
GM Building, Park Town,
Southern Railway, Chennai
3. The Divisional Personnel Officer,
Southern Railway,
Madurai Division, Madurai
4. The Divisional Security Commissioner,
Railway Protection Force,
Southern Railway,
Madurai Division,
Madurai. .. Respondents
Writ Appeal is filed praying to set aside the order passed in
W.P.(MD).NO.2226 of 2011 dated 21.11.2011 and direct the respondents to
provide a job to the petitioner on compassionate ground in any suitable post
commensurate with the petitioner's educational qualification.
!For Appellant : Mr.D.Ganesh Moorthy
^For Respondents : Mr. S.Manohar
Date of reserving the Judgment : 22.12.2014
Date of pronouncing the Judgment : 11 .02.2015
:JUDGMENT
V.M. VELUMANI, J.
The Writ Petitioner in W.P.(MD).No.2226 of 2011 has come up with this appeal challenging the order dated 21.11.2011 dismissing the said Writ Petition.
2. Facts of the case are as follows:-
(i) The appellant's father K.Sankarasekaran was working as Head Constable in Railway Protection Force Department at Tuticorin Harbour (TNHP) outpost. He was suffering from chronic kidney disease and in the end stage of renal failure. He was taking treatment in private hospitals and Railway Hospital at Tuticorin. His two kidneys were not functioning and he is taking treatment at Kovai Medical Centre at Coimbatore. He has to go to Coimbatore for dialysis at least three times in a week.
(ii) Due to his ill-health, the appellant's father gave a representation on 03.01.2010 to the Chief Medical Director, Chennai and the Chief Medical Superintendent, Madurai to declare him as unfit to do the job, so as to enable him to retire on medical incapacity. Since no order was passed on the said representation, he filed W.P.No.858 of 2010 before this Court for a direction to the respondents to consider his representation dated
03.01.2010 and this Court by an order dated 28.01.2010 directed the Chief Medical Director, Chennai to consider and pass orders on his representation dated 03.01.2010.
(iii) The Chief Medical Director, Chennai directed the appellant's father to appear before the Medical Board, Chennai. After medical check up, the Medical Board recommended the 4th respondent to declare the appellant's father unfit for all classes of job. The 4th respondent by Certificate No. UF 03/2010-11 dated 12.04.2010, declared the appellant's father as unfit in all classes of jobs in Railway and terminated his service with effect from 12.04.2010.
(iv) The appellant, by a representation dated 21.04.2010 sought job for him on compassionate ground. The appellant completed the course of B.L. Degree at that time. The respondents informed the appellant that his representation would be considered only on seniority basis. The appellant, therefore, filed W.P.(MD).No.8584 of 2010 and this Court by an order dated 07.07.2010, directed the 4th respondent to consider his representation dated 21.04.2010 on merits within a period of 12 weeks from the date of receipt of a copy of the order. Since no order was passed within the time granted by this Court, the appellant filed a contempt petition in Cont.P.No.644 of 2010. This Court dismissed the same, based on the order dated 22.10.2010 produced by the respondents stating that appointment on compassionate ground is under process.
(v) As instructed by the respondents, the appellant submitted an application for appointment on compassionate ground and the respondents, though enquired and verified his community certificate, by an order dated 27.01.2011, rejected his application on flimsy grounds. The appellant filed W.P.(MD).No.2226 of 2011 to quash the said order and for a direction to the respondents to provide him job on compassionate ground. This Court after hearing the learned counsel for the appellant/writ petitioner and the learned counsel for the respondents and after considering the materials available on record, dismissed the said the Writ Petition in W.P.(MD).No.2226 of 2011 by an order dated 21.11.2011.
Challenging the said order of dismissal, the appellant has preferred the present Writ Appeal.
3. Learned counsel for the appellant contended that the learned single Judge failed to consider that,
(a) only after appellant's father was declared medically unfit by Medical Board for all kind of work and his services were terminated, the appellant had given representation for a job on compassionate grounds.
(b) The appellant is not having any source of income for the day-to-day medical expenses of his father and the appellant and his father are living separately from other sons and daughters and that the appellant is only looking after his father without any valuable source of income.
(c) The appellant has completed his B.L., Degree course in the year 2011 and his earning is very meagre. Mere possession of Law Degree by the appellant is not a bar to get an appointment on compassionate ground.
(d) The appellant's father is taking treatment in Kovai Medical Centre at Coimbatore and has spent more money than his income. The appellant has sold the properties belonging to his mother to meet the medical expenses.
(e) The other two sons and daughters are married and they are living separately and they are not providing any monetary support to appellant's father as they have their own families to take care. The respondents have admitted that two sons and two daughters are living separately.
(f) Appellant's father is residing in a Government Natham land and no patta has been issued to him. Therefore, the report regarding his father's property is false. The appellant living in his own house will not disentitle the appellant in getting a job on compassionate ground.
(g) There is no adequate equipments available with the respondents' hospital to treat the disease of the appellant's father and that is why the appellant's father did not opt for Railway employees liberalized health scheme.
(h) One Murugan, similarly placed, was given employment while appellant's request was rejected and discriminated.
(i) The appellant has produced number of documents to substantiate his claim for compassionate appointment, but the same were not considered by the respondents and the learned single Judge.
(j) The Judgments reported in 2011(4) SCC 209 (Bhawani Prasad Sonkar Vs. Union of India and others) referred by the learned judge is not applicable to the facts of the appellant's case, as the appellant's family is living in indigent circumstances and the appellant and his father are not misusing any of the provisions, Rules and Regulations.
4. Per contra, the counsel for the respondents contended that:
(a) the order of the learned judge is valid and legal and there is no necessity to interfere with the same.
(b) The Appellant's family is not in indigent circumstances. They own valuable properties worth about several Lakhs. That is why the appellant's father did not opt for Railway employees liberalised health scheme.
(c) Appellant is qualified with M.A., B.L. Degree and he is practicing law under a senior advocate.
(d) Appellant's two brothers are employed and are well settled. Two sisters of appellant are married and are also well settled.
(e) As per Railway Board's Circulars, the appellant is not entitled to compassionate appointment.
(f) Railways can provide good and sufficient medical treatment to all its employees. Even, if any facility is not available in the Railway Hospital, employees will be referred to Government hospitals or private hospitals and will be given treatment at free of cost.
(g) The appellant cannot demand appointment on compassionate ground, as a matter of right. Compassionate appointment could be given only if a person fulfills the guidelines, Rules and Regulations.
5. In support of his stand, learned counsel appearing for the respondents relied on the following Judgments:
(a) In the case of Union of India and another Vs. Shashank Goswami and another reported in AIR 2012 SC 2294, the Supreme Court has held in Para 9, which reads as follows:
?9. There can be no quarrel to the settled legal proposition that the claim for appointment on compassionate ground is based on the premises that the applicant was dependent on the deceased employee. Strictly, such a claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service.
Appointment on compassionate ground cannot be claimed as a matter of right. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. Thus, applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.?
(b) In the case of Food Corporation of India and antoher Vs. V. Ramkesh Yadav and another reported in AIR 2007 SC 1421, the Supreme Court has held in Para 8, which reads as follows:
?8. As rightly contended by FCI, the issue of voluntary retirement of an employee on medical grounds and the issue of compassionate appointment to a dependent of such retired employee are independent and distinct issues. An application for voluntary retirement has to be made first. Only when it is accepted and the employee is retired, an application for appointment of a dependant on compassionate grounds can be made. Compassionate appointment of a dependant is not an automatic consequence of acceptance of voluntary retirement. Firstly, all the conditions prescribed in the Scheme dated 3.7.1996 should be fulfilled. Even if all conditions as per guidelines are fulfilled, there is no 'right' to appointment. It is still a matter of discretion of the competent authority, who may reject the request if there is no vacancy or if the circumstances and conditions of the family of the medically retired worker do not warrant grant of compassionate appointment to a dependant. Therefore, the observation of the High Court in Nizamuddin (supra) that allowing the request of the employee for voluntary retirement on medical grounds and rejecting the application of the dependant for compassionate appointment on the ground of non-fulfilment of conditions of scheme would amount to taking inconsistent stands, is clearly erroneous. ?
(c) In the case of Mantidevei (dead) through Lrs V. State of Bihar and others reported in 2014(1) SCC 514, the Supreme Court has held in para 8, which reads as follows:
?4. Before us, the learned counsel for the petitioner was candid in his submission that the petitioner, elder son of deceased employee, wanted relief by way of compassionate appointment which was the main purpose of present SLP. However, such a relief cannot be granted to a person whose father did not die in harness and as his death occurred after his compulsory retirement. Even otherwise, on our pertinent query, we were informed that the elder son is about 35 years of age. By no stretch of imagination such a direction can be given to appoint him on compassionate basis.?
(d) In the case of State of Gujarat and others Vs. Arvindkumar T. Tiwari and another reported in 2012(9) SCC 545, the Supreme Court has held in Para 8, which reads as follows:
?8. It is a settled legal proposition that compassionate appointment cannot be claimed as a matter of right. It is not simply another method of recruitment. A claim to be appointed on such a ground, has to be considered in accordance with the rules, regulations or administrative instructions governing the subject, taking into consideration the financial condition of the family of the deceased. Such a category of employment itself, is an exception to the constitutional provisions contained in Articles 14 and 16, which provide that there can be no discrimination in public employment. The object of compassionate employment is to enable the family of the deceased to overcome the sudden financial crisis it finds itself facing, and not to confer any status upon it. (Vide: Union of India & Ors. v. Shashank Goswami & Anr., AIR 2012 SC 2294). ?
(e) In the case of MGB Gramin Bank V. Chakrawarti reported in AIR 2013 SCC 3365, the Supreme Court has held in Para 5, which reads as follows :
?5. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its bread-earner. Mere death of a Government employee in harness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right.?
(f) In the case of Bhawani Prasad Sonkar Vs. Union of India and others reported in 2011(4) SCC 209, the Supreme Court has held in Paras 19,20, which reads as follows:-
?19. In V. Sivamurthy V. State of A.P this Court while observing that although appointment in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution, yet appointments on compassionate grounds are well-recognized exception to the general rule, carved out in the interest of justice to meet certain contingencies, highlighted the following two well-recognized contingencies as exceptions to the general rule :(SCC P.741 , para 18)
(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service.
(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner.
20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:
(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the same.
(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.
(iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased / incapacitated employee's family at the time of his death or incapacity, as the case may be.
(iv) Compassionate employment is permissible only to one of the dependents of the deceased / incapacitated employee viz., parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts?.
6. We have carefully considered all the materials available on record as also the impugned order and rival contentions of the learned counsel for the appellant and the respondents.
7. From the records, it is seen that the appellant's father was suffering from chronic kidney failure and the Competent Medical Board has declared him medically unfit for all kinds of work. In view of this fact, the conclusion of the learned Judge that the appellant's father forced the respondents to medically invalidate him in order to get an appointment to the appellant on compassionate ground is without any basis. Even the respondents did not plead that the appellant and his father misused the provisions to get compassionate appointment to the appellant. Therefore, the judgment reported in 2011(4) SCC 209 (Bhawani Prasad Sonkar Vs. Union of India and others) referred to by learned Judge is not applicable to the facts of this case. The judgments relied on by the learned counsel for the respondents in this appeal are also not applicable to the facts of the present case.
8. The appellant is not seeking compassionate appointment as a matter of right. But the appellant is entitled to seek compassionate appointment alleging indigent circumstances. It is for the respondents to consider the said request on merits and either give an appointment or reject the same.
9. In the present case, the appellant has sought appointment on compassionate grounds alleging indigent circumstances. The respondents rejected the contentions of the appellant on the ground that the appellant's mother has got immovable properties and the appellant's father is living in his own house. The appellant produced documents to show that he has sold his mother's properties as a power agent. It is the contention of the learned counsel for the appellant that the sale consideration was used for medical expenses. The appellant also produced documents to show that the land in which the house stands is Government Natham Poramboke Land and no patta has been issued to the appellant's father.
10. The appellant has also produced the certificates issued by the Revenue Officials to the effect that the appellant's family is in indigent circumstances. The respondents sought verification of the said certificates and the Revenue officials again enquired and confirmed that the appellant's family is in indigent condition.
11. The respondents rejected the application of the appellant on the additional ground that the appellant is a law graduate and is practising law under the guidance of a Senior Advocate. The respondents have not denied that the appellant completed law degree only in 2011. It will not be possible for a Law graduate who started practicing law from 2011 to earn and meet the medical expenses of his father for dialysis three times a week in a private clinic. Further as per Rules of the respondents with regard to compassionate appointment, a person can be considered for higher post if he possesses better qualification. Therefore, there will not be any impediment for the respondents to consider the appellant for any suitable post in consonance with his qualification. By considering all the materials and rival contentions, we hold that the appellant has proved his indigent circumstances and he is entitled to compassionate appointment.
12. In the result, the Writ Appeal is allowed. The order passed by the first respondent in the proceeding No. X/P.269/8584/2010 dated 27.01.2011 is quashed and the impugned order dated 21.11.2011 made in W.P.(MD).No.2226 of 2011 is set aside. The respondents are directed to implement this order by providing a suitable job to the appellant on compassionate grounds within a period of eight weeks from the date of receipt of a copy of this order. No costs.
(V.D.P.,J.) (V.M.V.,J.)
11.02.2015
Index : Yes
Internet : Yes
trp/abe
To :
1. The Chief Security Commissioner,
Railway Protection Force,
6th Floor, Moor Market Complex,
Southern Railway,
Chennai
2. The Personnel Officer,
GM Building, Park Town,
Southern Railway, Chennai
3. The Divisional Personnel Officer,
Southern Railway,
Madurai Division, Madurai
4. The Divisional Security Commissioner,
Railway Protection Force,
Southern Railway,
Madurai Division,
Madurai.
V.DHANAPALAN, J.
AND
V.M.VELUMANI, J.
Pre-Delivery Judgment in
W.A.(MD)No.1144 OF 2012
Dated: 11.02.2015