N.Raja v. Military Engineering Service & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20-01-2010CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.12209 of 2006N.Raja.. Petitioner.Versus1.Chief Engineer,Head Quarters, Military Engineering Service,Chennai Zone, Island Grounds,Chennai-600 009.2.Commander works Engineer,Pallavan Salai, Chennai-600 002... Respondents.Prayer:Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of CertiorarifiedMandamus, to call for the records relating to the order of thefirst respondent, made in No.10246/GEN/5252/E1A, dated 13.3.2006,and quash the said order, dated 13.3.2006, and direct therespondents to provide employment to the petitioner, oncompassionate ground. For petitioner : Mr.S.AyyathuraiFor Respondents : Mr.J.Ravindran (ASG)O R D E RHeard the learned counsel appearing for the petitioner and thelearned counsel appearing for the respondents.2. The petitioner has stated that his father, S.Nagan, who wasworking as a Mazdoor, under the Garrison Engineer, Fort St. George,Chennai, had died, on 19.12.2001, while in service. After the deathof his father, the petitioner had approached the Garrison Engineerfor appointment on compassionate ground. However, the request ofthe petitioner had been turned down on the ground that he had notcompleted 18 years of age. Thereafter, on his completion of 18years of age, the petitioner had renewed his request forappointment on compassionate ground. The petitioner had received a https://hcservices.ecourts.gov.in/hcservices/ letter from the Garrison Engineer, dated 8.3.2004, stating that hisname has been registered and that he would be considered forappointment as and when vacancies arose. However, a letter, dated31.12.2004, had been received by the petitioner, rejecting hisrequest.3. It has been further stated that the petitioner had, onceagain, approached the Garrison Engineer, along with his mother, torequest him to give appointment. However, the request of thepetitioner had been rejected by the impugned order, dated13.3.2006. In such circumstances, the petitioner has filed thepresent writ petition before this Court, under Article 226 of theConstitution of India.4. The learned counsel appearing on behalf of the petitionerhad submitted that the impugned order of the first respondent,dated 13.3.2006, is vitiated due to the failure of the saidrespondent to take into account the fact that the petitioner wasfully qualified to be appointed on compassionate ground. Thepetitioner belongs to a scheduled tribe and he has been living inindigent circumstances. He has no landed property and none of hisfamily members is in employment. He had also submitted that thefirst respondent had passed the impugned order, without theapplication of mind and without showing proper reasons to rejectthe request of the petitioner. 5. The learned counsel appearing for the petitioner had reliedon the following decisions in support of his contentions: 5.1.In Umesh Kumar Nagpal V. State of Haryana (1994-II L.L.N.420), it has been held as follows:"The whole object of granting compassionateemployment is to enable the family of deceasedGovernment servant to tide over the suddencrisis. The object is not to give a member ofsuch family a post much less a post for postheld by the deceased. What is further, meredeath of an employee in harness does not entitlehis family to such source of livelihood. TheGovernment or the public authority concerned hasto examine the financial condition of the familyof the deceased, and it is only if it issatisfied, that but for the provision ofemployment, the family will not be able to meetthe crisis that a job is to be offered to theeligible member of the family.xxxxxx5. It is obvious from the aboveobservations that the High Court endorses the https://hcservices.ecourts.gov.in/hcservices/ policy of the State Government to makecompassionate appointment in posts equivalent tothe posts held by the deceased-employees andabove Classes III and IV. It is unnecessary toreiterate that these observations are contraryto law. If the dependant of the deceasedemployee finds it below his dignity to acceptthe post offered, he is free not to do so. Thepost is not offered to cater to his status butto see the family through the economic calamity.6. For these very reasons, thecompassionate employment cannot be granted aftera lapse of a reasonable period which must bespecified in the rules. The consideration forsuch employment is not a vested right which canbe exercised at any time in future. The objectbeing to enable the family to get over thefinancial crisis which it faces at the time ofthe death of the sole breadwinner, thecompassionate employment cannot be claimed andoffered whatever the lapse of time and after thecrisis is over."5.2. In Balbir Kaur V. Steel Authority of India Ltd. (2000(3)L.L.N.55), it has been held that the benefit of compassionateappointment cannot be denied because of the introduction of thefamily benefit scheme, which was meant to provide an assuredregular income per month to the disabled employee.6. In the counter affidavit filed on behalf of therespondents, it has been stated that the writ petition is notmaintainable, either on law, or on facts. The petitioner ought tohave approached the Central Administrative Tribunal instead ofapproaching this Court, under Article 226 of the Constitution ofIndia. Further, the petitioner cannot claim any right ofappointment on compassionate ground. The respondents are bound tofollow the guidelines issued by the Government of India in makingsuch appointments. The appointments are made based on the merit ofthe candidates, as stipulated in the Ministry of Defence letterNo.19(4)/824-99/1998-D (Lab), dated 9.3.2001, taking intoconsideration the size of the family, the age of the children, theamount of terminal benefits received, the amount of family pensionbeing paid, liability in terms of unmarried daughters, minorchildren, movable and immovable properties left behind by thedeceased person, the financial status of the family and other suchfactors. Since, there were more deserving candidates the petitionercould not be given the appointment on compassionate ground. 7. It has been further stated that the mother of the https://hcservices.ecourts.gov.in/hcservices/ petitioner is receiving a monthly pension of Rs.1585/-. Theproperty of the petitioner is worth about Rs.50,000/-. Thepetitioner and his elder sister are possessing sufficienteducational qualifications for getting employment, elsewhere.Further, the policy of reservation is not followed in compassionateappointments. In such circumstances, the request of the petitionerfor appointment on compassionate ground had to be rejected. 8. In view of the submissions made on behalf of thepetitioner, as well as the respondents and on a perusal of therecords, this Court is of the considered view that the petitionerhas not shown sufficient cause or reason to set aside the impugnedorder of the first respondent, dated 13.3.2006. Since, thepetitioner cannot claim any right of appointment on compassionateground, it is or the authorities concerned to consider the variousfactors necessary for such appointment, as per the guidelinesprovided by the various orders issued by the State and CentralGovernments and the decisions of the Courts of law. 9. Since it has been stated that there were other candidates,who were more qualified for being appointed on compassionateground, the petitioner’s request could not be considered. Further,the petitioner’s mother has been receiving a family pension ofRs.1585/- per month and the petitioner had properties worthRs.50,000/-. It is also clear that appointment on compassionateground can only be made if the family of the deceased is inindigent circumstances, at the time of the death of the saidemployee. 10. In view of the various decisions of the Courts of law, itis clear an appointment on compassionate ground cannot be claimed,as a matter of right and that it is an exception to the regularrules of recruitment. The views expressed by the Courts of lawcould be of relevance in deciding the present case. The followingare some of the recent decisions relating to appointment oncompassionate ground:10.1. In State Bank of India andanother Vs. Somvir Singh (2007 (4) SCC 778),the Supreme Court had held thatappointment on compassionate grounds is anexception carved out to the general rulethat recruitment to public services is to bemade in a transparent and accountable manner,providing opportunity to all eligible persons tocompete and participate in the selectionprocess. Such appointments are required to bemade on the basis of open invitation ofapplications and merit. Dependants of employeeswho had died in harness do not have any special https://hcservices.ecourts.gov.in/hcservices/ or additional claim to public services otherthan the one conferred, if any, by the employer.The claim for compassionate appointment and theright, if any, is traceable only to the scheme,executive instructions, rules, etc. framed bythe employer in the matter of providingemployment on compassionate grounds. There is noright of whatsoever nature to claimcompassionate appointment on any ground otherthan the one, if any, conferred by the employerby way of a scheme or instructions, as the casemay be.10.2. In I.G.(Karmik) and others Vs.Prahalad Mani Tripathi (2007(6) SCC 162), theSupreme Court had held that compassionateappointment must be in consonance with theConstitutional scheme of equality enshrined inArticles 14 and 16 of the Constitution of India.10.3. In Union Bank of India and others Vs.M.T.Latheesh (2006(7) SCC 350), the SupremeCourt had held that grant of employment oncompassionate grounds in all cases, would shutthe door for employment to the increasing numberof unemployed youth. 10.4. In Mohan Mahto Vs. Central Coal FieldLtd., and others (2007(8) SCC 549), the SupremeCourt had recognised the fact that appointmenton compassionate grounds are an exception toArticle 16(1) of the Constitution of India. 10.5. In State Bank of India and others Vs.Jaspal Kaur (2007(9) SCC 571), the Supreme Courthad held that a major criterion while appointinga person on compassionate grounds should be thefinancial condition of the family of thedeceased person. The appointment under thescheme of compassionate appointment is at thediscretion of the authority concerned. Thediscretion is to be exercised keeping in viewthe scheme and the object and the rationalebehind it. However, it cannot be claimed as amatter of right. 10.6. In Andhra Pradesh State RoadTransport Corporation, Musheerabad and others https://hcservices.ecourts.gov.in/hcservices/ Vs. Sarvarunnisa Begum (2008 (3) SCC 402) theSupreme Court, quoting with approval thedecision made in Umesh Kumar Nagpal V. State ofHaryana (1994 (4) SCC 138), had held that it hasbeen time and again held that compassionateappointments would be given to the dependants ofthe deceased who had died in harness, to getover the difficulties on the death of the breadearner and that it cannot be claimed as a matterof right.10.7. "In H.Anwar Basha Vs. The RegistrarGeneral, Madras High Court (2008 (3) CTC 785), aDivision Bench of this Court had held that theobject of compassionate appointment is tomitigate the sufferings of the bereaved familyof the Government servant who had died inharness leaving his family in indigentcircumstances. 11. From the above decisions, it is clear that compassionateappointments are made in order to help the family in distress, dueto the sudden death of its bread winner. However, such appointmentsare not to be made, as a matter of course, without verification ofthe relevant circumstances existing in the family of the deceasedemployee. Nor can it be made, without following the rules andregulations applicable to such employment. Further, employment onthe compassionate ground cannot be claimed, as a matter of right,since such appointments are an exception to the usual proceduresfollowed in making regular appointments. Accordingly, the presentwrit petition is liable to be dismissed. Hence, it is dismissed. Nocosts. Sd/Asst.Registrar/true copy/Sub Asst.Registrarcsh https://hcservices.ecourts.gov.in/hcservices/ To:1.Chief Engineer,Head Quarters, Military Engineering Service,Chennai Zone, Island Grounds,Chennai-600 009.2.Commander works Engineer,Pallavan Salai, Chennai-600 002.+1cc to Mr.J.Ravidran, Advocate Sr 3634+1cc to Mr.S.Ayyathurai, Advocate Sr 3193SAI(CO)km/5.2.W.P.No.12209 of 2006