R. Bharathiammal & Ors. v. Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 29..01..2008CoramThe Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW.P. No. 21240 of 20011.R. Bharathiammal2.B. Vijayakumar... Petitioners-vs-1.Union of India Rep. by the Additional Commissioner of Central Excise (P&V)121 M.G. RoadNungambakkam, Chennai – 342.The RegistrarCentral Administrative TribunalMadras Bench... RespondentsPetition under Article 226 of the Constitution of India prayingto issue a writ of Certiorarified Mandamus calling for the records ofthe 2nd respondent relating to O.A. No. 983 of 2000 dated 04.7.2001and quash the same and consequently allow the O.A. Directing therespondent to consider granting the second petitioner appointment toany suitable post in its services on compassionate ground. For Petitioners : Mr. PL. NarayananFor Respondent 1: Mr. P. Wilson, ASGORDER(Order of the Court was made by K.CHANDRU, J.)Heard the arguments of Mr. PL. Narayanan, learned counselappearing for the petitioner and Mr. P. Wilson, learned AssistantSolicitor General representing the first respondent and have perusedthe records.2.The petitioners had filed the above O.A. seeking forcompassionate appointment, which was denied by the first respondentby an order dated 08.5.2000. The first petitioner's husband N.Baskaran was working as Inspector in Customs and Central Excise https://hcservices.ecourts.gov.in/hcservices/ Department at Kovilpatti and he died in harness on 12.11.1997. Thefirst petitioner made an application to the Collector requesting forcompassionate appointment to her son, who is the second petitioner.The request made by her was considered and also was rejected by theAdditional Commissioner vide order dated 08.5.2000. In that, itwas stated that the second petitioner cannot be granted appointmenton compassionate ground as the family of the petitioners is gettingtwo pensions and it also felt that the financial position does notwarrant compassionate appointment. It was also stated that thereis no vacancies available for considering compassionate appointment.3.The first respondent has filed counter affidavit statingthat the late Baskaran had two sons and one daughter and the firstpetitioner Bharathiammal is his wife. There was no request made tothe appointment to the elder son, who was aged 26 years and who wassupposed to be dabbling in politics. But it was held that thefamily pension given to the family is substantial and the family alsohad rental income. 4.The Tribunal, after accepting the stand of the respondents,found that the first petitioner herself was a Village Health Nurseand after retirement, she was also drawing pension and, therefore,the family is not in indigenous circumstances and the respondentshave correctly rejected the request of the petitioner.5.However, Mr. PL. Narayanan, learned counsel appearing forthe petitioner brought to the notice of this Court the decision ofthe Supreme Court reported in 1998 (9) SCC 398 [A.P.S.R.T.C. andothers v. Kaiser Begum] and submitted that even if there is novacancy, the post should be created to give employment to the secondpetitioner. 6.The Supreme Court has held that the scheme of compassionateappointment is an exception to Articles 14 and 16 of the Constitutionof India and, therefore, no party can, as a matter of right, claimunless their claim is based upon the scheme evolved by the Department.7.In State of Haryana and others v. Rani Devi and another[AIR 1996 SC 2445 : 1996 (5) SCC 308], the Supreme Court whileexamining the object of compassionate appointment pointed out thatthe claim of the person concerned for appointment on compassionateground is based on the premise that he was a dependant of thedeceased employee. Strictly this claim cannot be upheld on thetouchstone of Articles 14 or 16 of the Constitution of India.However, such claim is considered as reasonable and permissible onthe basis of sudden crisis occurring in the family of such employeewho has served the State and dies while in service. That is why it isnecessary for the authorities to frame rules, regulations or to issuesuch administrative orders which can stand the test of Articles 14and 16. Appointment on compassionate ground cannot be claimed as a https://hcservices.ecourts.gov.in/hcservices/ matter of right. In the aforesaid case, it was held that if thescheme regarding appointment on compassionate ground is extended toall types of casual or ad hoc employees including those who worked asapprentices, then such scheme cannot be justified on constitutionalgrounds.8.In the decision reported in 1994 (2) SCC 718 : 1994 – II-LLJ – 173 [Life Insurance Corporation of India v. Asha RamachandraAmbedkar (Mrs.) and another], it was pointed out that the High Courtsand the Administrative Tribunals cannot confer benediction impelledby sympathetic considerations to make appointment on compassionategrounds when the regulations framed in respect thereof do not coverand contemplates such appointment.9.In Umesh Kumar Nagpal v. State of Haryana and others [1994(4) SCC 138 : 1995–I–LLJ 798], it was noted that as a rule in publicservice, appointment should be made strictly on the basis of openinvitation of application and merit. The appointment on compassionateground is not another source of recruitment but merely an exceptionto the aforesaid requirement taking into consideration the fact ofthe death of the employee while in service leaving his family withoutany means livelihood. In such cases, the object is to enable thefamily to get over sudden financial crisis. But such appointments oncompassionate ground have to be made in accordance with the rules,regulations or administrative instructions taking into considerationthe financial condition of the family of the deceased.10.In Smt. Sushma Gosain and others v. Union of India andothers [AIR 1989 SC 1976 : 1989 (4) SCC 468 : 1990 – I – LLJ –169], it was observed that in all claims of appointment oncompassionate grounds, there should not be any delay in appointment.The purpose of providing appointment on compassionate ground is tomitigate the hardship due to death of the bread-earner in the family.Such appointments should, therefore, be provided immediately toredeem the family in distress. The fact that the ward was a minorat the time of death of his father is no ground, unless the schemeitself envisages specifically otherwise, to state that as and whensuch minor becomes a major he can be appointed without any timeconsciousness or limit.11.In State of U.P. and others v. Paras Nath [AIR 1998 SC2612 : 1998 (2) SCC 412 : 1992 – II – LLJ 454, it was held thatthe purpose of providing employment to the dependant of a Governmentservant dying in harness in preference to anybody else, is tomitigate the hardship caused to the family of the employee on accountof his unexpected death while in service. To alleviate the distressof the family, such appointments are permissible on compassionategrounds provided there are Rules providing for such appointments. https://hcservices.ecourts.gov.in/hcservices/

12.In Punjab National Bank v. Ashwini Kumar Taneja, [(2004) 7SCC 265], the Supreme Court observed that appointment oncompassionate ground is not a source of recruitment but merely anexception to the requirement of making appointments on openinvitation of application on merits. The basic intention is that onthe death of the employee concerned his family is not deprived of themeans of livelihood. The object is to enable the family to get oversudden financial crisis. 13.In State of Haryana and others v. Rani Devi and another(cited supra), the Supreme Court observed as follows:“It was also impressed that appointments oncompassionate ground cannot be made after lapse ofreasonable period which must be specified in the rulesbecause the right to such employment is not a vestedright which can be exercised at any time in future.”[Emphasis supplied] 14.It is, thus, clear that the Courts cannot directappointments on compassionate grounds de hors the provisions of theScheme in force governed by rules / regulations / instructions. If ina given case, the department of the Government concerned declines, asa matter of policy, not to deviate from the mandate of the provisionsunderlying the Scheme and refuses to relax the stipulation in respectof ceiling fixed therein, the Courts cannot compel the authorities toexercise its jurisdiction in a particular way and that too, byrelaxing the essential conditions, when no grievance of violation ofsubstantial rights of parties could be held to have been providedotherwise. The purpose of providing employment to a dependant of aGovernment servant dying in harness in preference to anybody else isto mitigate the hardship caused to the family of the employee onaccount of his unexpected death while in service. To alleviate thedistress of the family, such appointments are permissible oncompassionate grounds provided there are Rules providing for suchappointments. None of these considerations can operate when theapplication is made after the death of the employee. The reason formaking compassionate appointment, which is exceptional, is to provideimmediate financial assistance to the family of a Government servantwho dies in harness when there is no other earning member in thefamily.15.A Division Bench of this Court in the decision reported in2006 (4) M.L.J. 1080 [E.Ramasamy v. Tamil Nadu Electricity Board]after reviewing all the above cases observed as follows: https://hcservices.ecourts.gov.in/hcservices/ In Sanjay Kumar v. State of Bihar and others [(2000) 7SCC 192], the Supreme Court has expressly held thatthere cannot be reservation of a vacancy till such timeas the applicant becomes a major after a number ofyears, unless there are some specific provisions. Thevery basis of compassionate appointment is to see thatthe family gets immediate relief. An application madeafter the period stipulated under the scheme is notmaintainable, and it is not permissible to hold thatsuch application could be made after attainingmajority. 16.In the light of the above binding precedentsof the Supreme Court and a Division Bench of thisCourt, the request of the petitioner cannot beconsidered. There is no illegality or infirmity inthe order passed by the Tribunal. Hence, the writpetition will stand dismissed. No costs. sd/-Asst.Registrar/true copy/Sub Asst.RegistrargriTo1.The Additional Commissioner of Central Excise (P&V)121 M.G. RoadNungambakkam, Chennai – 342.The RegistrarCentral Administrative TribunalMadras Bench+1 cc To Mr.P.L.Narayanan, Advocate, SR.4028+1 cc To Mr.P.Wilson, Advocate, SR.3855W.P. No. 21240 of 2001 ka [co]gkg/17.3