The 1st respondent herein invoked the jurisdiction of the Tribunal to declare the action of the petitioners herein, in not considering her case for appointment as an NMR (Last Grade Service employee) on compassionate grounds in the place of her husband who died while working as NMR (Last Grade Service employee) in the office of the 1st petitioner, as arbitrary and illegal. The reason why the 1st respondent was denied such a benefit was that the scheme of compassionate appointment was not available to persons who died in harness while working as an NMR. = Courts and Tribunals should not fall prey to the sympathy syndrome, and issue directions for compassionate appointments, without reference to the prescribed norms. Every such act of undue sympathy and compassion, whereby directions are issued for appointment on compassionate grounds dehors the prescribed procedure, could deprive a needy family, requiring financial support, of the opportunity of seeking employment, and thereby pushing into penury a truly indigent, destitute and impoverished family. Discretion is, therefore, ruled out. So are misplaced sympathy and compassion. (Prabhat Singh15). In the absence of any scheme, providing for compassionate appointment for dependants of deceased NMR employees, the Tribunal has erred in directing the petitioners herein to consider the case of the 1st respondent on compassionate grounds. The order of the Tribunal must therefore be and is, accordingly, set aside. The Writ Petition is allowed. Miscellaneous Petitions pending, if any, shall stand disposed of. However, in the circumstances, without costs.

THE HONBLE SRI JUSTICE RAMESH RANGANATHAN AND THE HONBLE SRI JUSTICE  M.SATYANARAYANA MURTHY                

WRIT PETITION NO.13371 OF 2013    

01-04-2015

The Vice Chairman, Vijayawada, Guntur, Tenali, Mangalagiri Urban Development
Authority, Vijayawada, Krishna District and another..Petitioners      

V.Padma, W/o Late V. Srinivas and others. .Respondents  

Counsel for the petitioners: Ms. K. Mani Deepika, G.P. for
                              Municipal Administration & Urban Development.

Counsel for respondents: Sri S. Satyanarayana Rao

<GIST:

>HEAD NOTE:  

? Citations:

1)      AIR 1998 SC 2230
2)      (2008) 15 SCC 560
3)      (2007) 8 SCC 549
4)      (2007) 6 SCC 162
5)      (1994) 4 SCC 138
6)      (2004) 7 SCC 271
7)      (2004) 7 SCC 265
8)      (2007) 2 SCC 481
9)      (2008) 8 SCC 475
10)     (2012) 11 SCC 307
11)     (2013) 11 SCC 178
12)     (2012) 9 SCC 545
13)     (2011) 4 SCC 209
14)     (2010) 11 SCC 661
15)     (2012) 13 SCC 412
16)     (2008) 13 SCC 730
17)     (2007) 4 SCC 778
18)     judgment in W.A. No.1119 of 2010 dated 07.12.2011
19)     (2001) 10 SCC 560
20)     1993 Supp (1) SCC 714
21)     (2008) 7 SCC 153
22) (1998) 6 SCC 165


THE HONBLE SRI JUSTICE RAMESH RANGANATHAN            
AND
THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY            

WRIT PETITION NO.13371 OF 2013    

ORDER: (per Honble Sri Justice Ramesh Ranganathan)    

      This Writ Petition is filed by the Vijayawada, Guntur, Tenali,
Mangalagiri Urban Development Authority, aggrieved by the order
passed by the A.P. Administrative Tribunal in O.A. No.3167 of
2012 dated 28.05.2012 (Tribunal for short).  The 1st respondent
herein invoked the jurisdiction of the Tribunal to declare the action
of the petitioners herein, in not considering her case for
appointment as an NMR (Last Grade Service employee) on   
compassionate grounds in the place of her husband who died while
working as NMR (Last Grade Service employee) in the office of the
1st petitioner, as arbitrary and illegal.  The reason why the 1st
respondent was denied such a benefit was that the scheme of 
compassionate appointment was not available to persons who died 
in harness while working as an NMR. 

      By the order under challenge in this Writ Petition, the
Tribunal observed that, following the judgment of the Supreme
Court in Director of Education v. S. Pushpender Kumar , a
Division bench of the High Court, in W.A. No.1119 of 2010 dated
07.12.2011, had confirmed the order of the single judge; and, in
the light of the judgment of the Supreme Court in S. Pushpender
Kumar1, the 1st respondent was entitled to be appointed as NMR
(LGS) on compassionate grounds.  The O.A. was disposed of
directing the petitioners herein to consider the case of the 1st
respondent for appointment as NMR (LGS employee) on  
compassionate grounds taking into consideration the judgment in
W.A. No.1119 of 2010 dated 07.12.2011.

      Mrs. K. Mani Deepika, Learned Standing Counsel appearing
on behalf of the petitioners, would submit that the 1st respondent
has already been provided employment on a petty contract basis;
she was not eligible for being extended the benefit of time scale of
pay; her husband was not a regular employee, and was only
extended the benefit of time scale of pay; he was engaged as NMR
on 01.02.1990; he did not complete the required five years of
service, for regularisation in terms of G.O.Ms. No.212 dated
22.04.1994, by the cut off date of 25.11.1993; he was, therefore,
not entitled for regularisation; the scheme of compassionate
appointment is applicable only to regular employees, and not to
NMR employees; merely because time scale of pay was granted, did
not make an NMR employee a regular employee; his dependents  
are not entitled to be appointed on compassionate grounds; and
the Tribunal had erred in directing that the case of the 1st
respondent be considered for compassionate appointment.

      On the other hand Sri S. Satyanarayana Rao, Learned
Counsel for the 1st respondent, would submit that the 1st
respondent is the sole bread winner of her family; she had
submitted a representation on 24.11.2009 to the 1st petitioner
requesting that she be provided a job on compassionate grounds;
the 1st petitioner, by proceedings dated 09.12.2009, had sought
permission of the Government to appoint her as an LGS employee
on compassionate grounds; the Government had, vide letter dated
23.02.2010, rejected her request on the ground that her husband
had not completed five years of service as on 25.11.1993 which is
the minimum period stipulated for regularisation of service in
terms of G.O.Ms. No.212; the Tribunal had merely directed that
her case be considered for compassionate appointment as an NMR  
employee, and not as a regular employee; even though her
husband worked as an NMR employee, he was extended the benefit  
of time scale of pay including increments; similarly situated
persons, who were also appointed on NMR basis along with her
husband, were also extended the benefit of time scale of pay in the
last grade service with effect from 12.06.2003; and she was,
therefore, entitled to be appointed as an NMR employee in the
place of her husband.

      Before examining the rival contentions, urged by Learned
Counsel on either side, it is useful to briefly refer to the principles
governing compassionate appointment.  Recruitment of employees,
for posts under the State, is governed by rules framed under a
statute or the proviso to Article 309 of the Constitution of India. In
matters of appointment, the State is obligated to give effect to the
constitutional scheme of equality under Articles 14 and 16 of the
Constitution of India. All appointments must, therefore, conform to
these constitutional requirements. (SAIL v. Madhusudan Das ;
Mohan Mahto v. Central Coal Field Ltd. ; IG (Karmik) v.
Prahalad Mani Tripathi ). As a general rule, appointments in
public services should be made strictly on the basis of open
invitation of applications, and on merit. Neither is any other mode
of appointment, nor any other consideration, permissible. However
to this general rule, which is to be followed strictly in every case,
there are some exceptions carved out in the interests of justice and
to meet certain contingencies. One such exception is in favour of
dependants of an employee dying in harness. In such cases, on
pure humanitarian considerations, a provision is often made in the
rules to provide gainful employment to one of the dependants of
the deceased who may be eligible for such employment. The whole
object of granting compassionate employment is to enable the
family to tide over the sudden crisis. The object is not to give a
member of such family a post, much less the post held by the
deceased. (Umesh Kumar Nagpal v. State of Haryana ; SAIL2;
GM, (D&PB) v. Kunti Tiwary ; Punjab National Bank v. Ashwini
Kumar Taneja ). No appointment can, therefore, be made on
compassionate grounds to a person other than those for whose
benefit the exception has been carved out. (SAIL2; Mohan Mahto3;
National Institute of Technology v. Niraj Kumar Singh ).

      Appointment on compassionate grounds, offered to a
dependant of a deceased employee, is an exception to the mandate
of Articles 14 and 16 of the Constitution of India that all eligible
candidates should be considered for appointment to the posts
which have fallen vacant. It is a concession, and cannot be claimed
as a matter of right. It must be provided for in the rules. (SBI v.
Anju Jain ; SAIL2; Union of India v. Shashank Goswami ; State
of U.P. v. Pankaj Kumar Vishnoi ).  As it is not simply another
method of recruitment, compassionate appointment cannot be
claimed as a matter of right. Such a category of employment is,
itself, an exception to the constitutional provisions, contained in
Articles 14 and 16, which prohibit discrimination in public
employment. 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. (Shashank
Goswami10; State of Gujarat v. Arvindkumar T. Tiwari ).

      A provision for compassionate appointment, which enables
appointment being made otherwise than by the prescribed method
of appointment to public services, is in the nature of an exception,
and can neither subsume the main provision to which it is an
exception, nor can it nullify the main provision by completely
taking away the right conferred by the main provision. Care has,
therefore, to be taken that a provision, for grant of compassionate
employment, does not unduly interfere with the right of others,
who are eligible for appointment, to seek employment against the
post which would have been available to them, but for the
provision enabling appointment being made on compassionate
grounds. (Pushpendra Kumar1). The concept of compassionate  
appointment is an exception carved out in the interest of justice,
by way of a policy of the employer which partakes the character of
service rules. That being so, the scheme or the policy, as the case
may be, is binding both on the employer and the employee. Being
an exception, the scheme has to be strictly construed and confined
only to the purpose it seeks to achieve. (Bhawani Prasad Sonkar
v. Union of India ).

      The claim for compassionate appointment is traceable only
to the scheme framed by the employer for such employment and
there is no right outside such scheme. (Pankaj Kumar Vishnoi11;
SBI v. Raj Kumar ).  Norms, laid down for compassionate
appointments, should be strictly followed. (CCE & Customs v.
Prabhat Singh ). Compassionate appointment can neither be
claimed, nor be granted, unless the rules governing the service
permit such appointments. Such appointment should be made  
strictly in accordance with the scheme governing such
appointment, and against existing vacancies. (V. Sivamurthy v.
State of A.P ). The employer is required to consider the request
for compassionate appointment only in accordance with the
scheme framed by it.  No discretion is conferred on any of the
authorities to make compassionate appointment dehors the
scheme.  The claim for compassionate appointment and the right,
if any, is traceable only to  the scheme, executive instructions,
rules, etc. framed by the employer in providing employment on
compassionate grounds. There is no right to claim compassionate
appointment on any ground other than the one, if any, conferred
by the employer by way of a scheme or instructions. (SAIL2;
Mohan Mahto3; SBI v. Somvir Singh ).

      While considering a claim, for employment on compassionate
grounds, the following factors should be borne in mind (i)
Compassionate employment cannot be made in the absence of  
rules or regulations issued, or a scheme framed, 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 scheme; (ii) An application
for compassionate employment must be preferred without undue
delay, and has to be considered within a reasonable period of time;
(iii) appointment on compassionate grounds is to meet the sudden
crisis occurring in the family on account of the death of the
breadwinner while in service. Therefore, compassionate
employment cannot be granted as a matter of course, or as a
largesse, irrespective of the financial condition of the deceased
employees family at the time of his death; (iv) Compassionate
employment is permissible only to one of the dependants 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.
(Bhawani Prasad Sonkar13).

        In Sports Authority of Andhra Pradesh v. Sri Yala
Asirayya @ Asiri Appalaraju , reliance on which was placed by
the Tribunal, the father of the 1st respondent therein had worked
as a temporary watchman; on his death, his son sought
compassionate appointment; and, pursuant to an interim order
passed in W.P. No.24322 of 2009 directing that the case of the 1st
respondent be considered for compassionate appointment, the
appellant had rejected the claim of the 1st respondent on the
ground that the scheme of compassionate appointment, issued in
G.O.Ms. No.6877 dated 03.10.1973, was applicable only to
Government employees, it could not be extended to employees of
the Sports Authority, and, as the father of the 1st respondent was
appointed only as a temporary watchman, he was not entitled to
claim appointment on compassionate grounds.  On the Writ
Petition being allowed, the matter was carried in appeal.  In its
order dated 07.12.2011, the Division bench noted that the Learned
Single judge had followed the law declared by the Supreme Court
in S. Pushpendra Kumar1 wherein it was held that the scheme of
compassionate appointment was an exception, made with the  
object of enabling the family of the deceased to tide over the
sudden crisis resulting due to the death of the bread winner.  The
appellants were directed to consider the case of the 1st respondent
for appointment as a temporary watchman so that the family could
tide over the crisis resulting from the death of his father.  The
aforesaid order of the Division Bench, passed on humanitarian
considerations, cannot be a precedent in other cases, (Food
Corpn. of India v. FCI Paribahan Thikadhari Karmachari
Samity ), more so in the absence of any scheme providing for
appointment on compassionate grounds for such categories of
employees.

      It is not in dispute that there is no scheme in existence
which provides for compassionate appointment of dependants of
deceased NMR employees whose services have not been  
regularised.  Yet the jurisdiction of the Tribunal was invoked
claiming compassionate appointment.  No person can approach
the court seeking a relief when he does not have a right which can
be enforced through the Court. (Prit Singh v. S.K. Mangal ;
Pramod Kumar v. U.P. Secondary Education Services  
Commission ; and Arvindkumar T. Tiwari12).  It may be that a
provision for compassionate appointment is made as a measure of
social benefit, but it does not mean that the court should pass an
order for compassionate appointment despite the fact that the
conditions precedent therefor have not been satisfied. (SAIL2).
Courts and Tribunals cannot ignore the mandatory provisions of
the Rules, and direct compassionate appointment, on sympathetic
considerations. (State of M.P. v. Dharam Bir ; Arvindkumar T.
Tiwari12). They do not have the power to issue direction to make
appointment granting relaxation of the eligibility criteria or in
contravention thereof. (Arvindkumar T. Tiwari12).

      Courts and Tribunals should not fall prey to the sympathy
syndrome, and issue directions for compassionate appointments, 
without reference to the prescribed norms.  Every such act of
undue sympathy and compassion, whereby directions are issued   
for appointment on compassionate grounds dehors the prescribed 
procedure, could deprive a needy family, requiring financial
support, of the opportunity of seeking employment, and thereby
pushing into penury a truly indigent, destitute and impoverished
family. Discretion is, therefore, ruled out. So are misplaced
sympathy and compassion. (Prabhat Singh15).   In the absence of 
any scheme, providing for compassionate appointment for
dependants of deceased NMR employees, the Tribunal has erred in  
directing the petitioners herein to consider the case of the 1st
respondent on compassionate grounds.  

      The order of the Tribunal must therefore be and is,
accordingly, set aside.  The Writ Petition is allowed. Miscellaneous
Petitions pending, if any, shall stand disposed of. However, in the
circumstances, without costs.

RAMESH RANGANATHAN, J      

-------------------
M.SATYANARAYANA MURTHY,J        
dt:01-04-2015

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