Compassionate Appointments not a right, only a concession: Madras HC

The Madras High Court has reiterated that compassionate appointments provided to family members of deceased public servants cannot be claimed as a matter of right. Further, it has been emphasized that such appointments can only be allowed in indigent circumstances, as a matter of concession..Justice SM Subramaniam, who rendered the judgment, has also ordered the Tamil Nadu government frame a consolidated instructional scheme for compassionate appointments, in light of the legal principles laid down by the judiciary in various cases..The judgment arose from a writ petition preferred by the daughter of a deceased public servant, who sought employment on compassionate grounds twenty three years after the demise of her father..Advocate SN Ravichandran represented the petitioner, whereas Advocate PR Dhilip Kumar represented the respondents..Factual Background.The petitioner’s father worked as wire man in the office of a junior engineer (O&M) in Vaniyampadi. After his death, his wife had applied for employment on compassionate grounds. Her application was however rejected at the time, as she did not possess the minimum educational qualification for appointment..In 2005, on attaining majority and satisfying the educational criteria, the petitioner submitted another application for compassionate appointment to the government, to no avail. The petitioner then approached the High Court in 2014, praying that the authorities be directed to provide her suitable employment on compassionate grounds..The Court made reference to two orders passed in 2012 and 2013 by the authorities in response to the petitioner’s representation in 2005. It was found that the petitioner’s application had been rejected as it was not made within three years from the death of the employee..Justice Subramaniam thus focused his attention on the following question:.“…after a lapse of 23 years, whether the benefit of compassionate appointment scheme is to be extended to the writ petitioner or not?”.Compassionate appointments as concession in exigent circumstances.At the outset, the Court laid down that consideration for a compassionate appointment is to be construed as a violation of Articles 14 and 16 of the Constitution, in the sense that it is in the nature of a concession. It does not create a vested right capable of being enforced by the claimant through a writ proceeding..It is justified only as a form of immediate succor when an employee dies in service, after due examination of the financial status of the employee’s family in need of it. Being an exception to the general rule, it cannot be claimed as matter of right after the period of crisis is over..Moreover, the legal presumption is that the indigent circumstances of the legal heirs of deceased employees certainly vanish after a lapse of long years. The Court made this observation as it examined the various reasons calling for a strict interpretation of compassionate appointment schemes..Strict construction of non-statutory, exceptional schemes imperative.The Court noted,.“Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.”.Given the era of liberalization, the Court also observed that most people are not entirely dependent on a single family member. Therefore, it held,.“…it would be seemingly right for the Courts to ensure that there is no abuse of the scheme of compassionate appointment either by the employer or by the applicant/claimant.”.Compassionate Appointment Scheme cannot unnecessarily override Constitutional Mandate.The need to ensure that the non-statutory scheme of compassionate appointment is strictly construed, gains more significance in light of the Constitutional mandate of equal opportunity in public employment, the Court held..“It is well settled that sympathy cannot be allowed to override statutory or Constitutional provisions, particularly when it is quality of the question of Welfare of the entire society and /or question of Governance...State cannot be allowed to look after ‘welfare’ of its own employees and their families alone.”.Subramaniam J goes on to emphasize,.“When the Courts are providing an exceptional scheme of compassionate appointment to the individual, it is equally relevant to keep in mind that such facilities provided should not affect the rights of other citizens, who are otherwise qualified, meritorious and aspiring to participate in the open competitive process. The granting of relief, if it affects the Constitutional rights of other citizens, then the Courts must be slow in granting such relief.”.Referring to the constitutional scheme of reservation, the court also noted,.“The Rules of Reservation being a constitutional mandate any scheme violating the same has to be implemented cautiously and restrictedly…the State cannot be going on extending the scope of compassionate appointment so as to dilute the principles of reservation under the Constitution.”.The Court observed there are criteria in place to screen candidates on merits, even for the reserved categories i.e..Adherence of the Rules of Reservation under the Constitution of India;Comparative merit amongst the candidates who are participating in the regular open competitive process..However, it was noted, no such constitutionally mandated rules are followed when it comes to compassionate appointments..Undue relaxation may affect efficiency of public administration.The Court also indicated that undue relaxation of compassionate appointment schemes may affect the efficiency of public administration as well..“…the overall strength of the compassionate appointees should not exceed more than the restricted level and if such a kind of special appointments are increased in the public posts, this Court is of the view that the efficiency level in the public administration will certainly be affected.”.The court relied on a catena of supporting precedents including to conclude,.“…the scope of compassionate appointment is to be restricted to the terms and conditions of scheme itself and the same cannot be stretched by the Courts, so as to provide appointment on compassionate ground. This apart, the delay is also a vital factor. The scheme of compassionate appointment cannot be granted after a reasonable period.”.Government directed to frame Consolidated Policy on Compassionate Appointments.In light of the elaborate discussion made on the subject, the Court has also indicated that the Government should consider revising the scheme of compassionate appointments..“Thus, the concept of compassionate appointment itself is to be reconsidered by the Government and it should be restricted so as to provide appointment only to the legal heirs of the deceased in genuine circumstances. Otherwise, the scheme of compassionate appointment will have a negative impacts on the good governance and further, it will affect the chances of the meritorious candidates, who can participate in the public administration in the better manner.”.The judge therefore directed the state government to frame a consolidated policy on compassionate appointments. The same is to be made with due regard to the legal principles laid down by various cases on the subject. The instructions are to be thereafter sent to all competent authorities within a period of twelve weeks from the date of receipt of an order copy..Read copy of order below..Click here to download the Bar & Bench Android App