Compassionate Employments Open Only To Kith & Kin Of 'Govt Servants': Kerala High Court Cancels Appointment Of Late MLA's Son In PWD

The Kerala High Court recently cancelled the compassionate appointment of R. Prasanth, son of late CPI(M) MLA K.K. Ramachandran Nair in the Public Works Department, ruling that such appointments are only open to kith and kin of government servants, and not MLAs.Prasanth was appointed as the Assistant Engineer (Electric) in the Public Works Department after his father Nair, a first-time legislator, passed away in 2018 following health issues.In a judgment that runs over 130 pages, the Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P.Chaly observed:"A supernumerary post created and appointment given to a dependent of an MLA, if permitted to continue, would give a free hand to the Government, to make similar appointments to the children of persons holding various posts, right from the President of a Panchayat upto the top level posts, and if it happens, it would be nothing, but absolutely crippling equality and equal protection of laws, making the qualified candidates waiting outside to get a berth in Government service."The petitioner Ashok Kumar moved the Court seeking a writ of quo warranto arguing that such appointment to a gazetted post made on compassionate grounds was illegal. According to him, by any stretch of imagination, a Member of Legislative Assembly can never be part of Government service since they have an elected term of only five years. Therefore, it was contended that Prasanth was a usurper to the services of the State and required to be removed. Prasanth's Counsel had submitted that to decide the issue, the Court may engage its heart rather than the head to render justice to the family of the deceased MLA.To this the Court responded:"...for considering the issue, we may have to use our heart and head, since a Constitutional court, while discharging the functions under Article 226 of the Constitution of India, has necessarily to take care of the mandates contained under Articles 14 and 16 apart from Article 309 dealing with the intricacies of public employment."The State argued that a decision should be made considering the plight of the family left without adequate economic and financial situations. It was alleged that it was in such circumstances that the Government decided to create a supernumerary post and appoint Prasanth therein.Further, it was pointed out that when a power is conferred on the State Government under Rule 39 of Part II Kerala State & Subordinate Service Rules (KS & SSR), to make an appointment, the petitioner is not entitled to challenge the same because the Government has exercised its absolute administrative power provided under Rule 39. KEY FINDINGSMaintainabilityThe Division Bench primarily established that the petition was maintainable by countering the respondents' argument that the petitioner had no locus standi to file this petition, with the fact that the petition was filed as a Public Interest Litigation and not as a person aggrieved.Moreover, it was observed that although Public Interest Litigation in service matters is not maintainable, it is well settled that there is an exception to this, i.e., writ of quo warranto. "...we are of the opinion that since the appointment of the 7th respondent (Prasanth) is made creating a supernumerary post, there is no other option to the petitioner than to approach this Court by filing a writ petition seeking for a writ of quo warranto, which in our view, is in the public interest and is maintainable in law."Compassionate AppointmentsThe Court initially considered a few decisions of the Supreme Court as to why the scheme of compassionate appointment was evolved and concluded that compassionate appointment is an exception to the general provision and, being an exception, it should not interfere unduly with the rights of the other persons.It was also ruled that once there is a State policy providing employment assistance on compassionate grounds and the State has prescribed guidelines to ameliorate the financial hardship of the kith and kin of Government servants or employees who died in harness, and set apart a percentage of the vacancies in the departments, it is not open to the Government to extend the same to the kith and kin of MLAs or any other person of their choice, relaxing the rigour of Rule 39 of the Kerala State & Subordinate Service Rules, 1958. Compassionate employment is given to the persons satisfying the requirements only if there are vacancies and not otherwise. Direction to create supernumerary posts to accommodate an outsider to the scheme is not permissible. "State Government can only make supernumerary posts to tide over the situation of providing promotion or appointment to an employee, who is due for such appointment in the Government service and it can never be created for making a compassionate appointment in service."It added,"Once there is a policy of the Government, providing employment assistance on compassionate grounds and thus, the State have prescribed guidelines to ...

Compassionate Employments Open Only To Kith & Kin Of 'Govt Servants': Kerala High Court Cancels Appointment Of Late MLA's Son In PWD

Hannah M Varghese

It is not open to Government to extend the same to kith and kin of MLAs or any other person of their choice, the Court said.

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