Delving into the ways in which stretching the scope of compassionate employment on basis of unwarranted sympathy can affect efficient administration in a welfare state, the Madras High Court has held that compassionate appointment scheme is a non-statutory scheme in the form of a concession and cannot be claimed as a matter of right on mere death of a government employee in harness.
Ruling out undue sympathy for granting compassionate employment to focus on the Constitutional mandate of "equal opportunity in public employment", Justice S M Subramaniam said, "The million-dollar question is 'Whether offering 'appointment' on compassionate ground (i.e., sympathy) is the only option /solution to mitigate 'hardship and distress of the +family of an employee dying in- harness?"
"The answer is an emphatic 'No'. Firstly, the Rules, as such, contain no provision to ensure that the dependent who gets appointment shall continue to maintain other dependents.
"A 'welfare state' like ours is free to initiate effective welfare scheme/s- and no one will be in a position to oppose. 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 like ours is free to wed the 'solemn object' to serve the society at large, purely according to the mandate under the Constitution of India. State cannot be allowed to look after 'welfare' of its own employees and their families alone," observed the Court.
"The consequences, impacts and the denial of rights to other citizens are also to be considered while extending relief under such an exceptional scheme of compassionate appointment. It is not the case as if the Courts should stretch off the scope of compassionate appointment based on an unwarranted sympathy or leniency. No doubt, the Court of Justice has to consider the factual circumstances and if necessary, certain relief can be provided. However, any such sympathy or leniency shown to a particular person should not have any adverse effect of affecting the rights of other eligible citizens, who are waiting and longing for public employment in this great Nation," said Justice Subramaniam.
The court said so as it dismissed a writ petition moved by a man seeking direction to the Commissioner of Srivilliputhur municipality to appoint him to the post of Junior Assistant on compassionate grounds.
The petitioner had told the court that his father was working as Gang Mazdoor in Srivilliputhur Municipality and died on 04.03.2004, while in service. At that point in time, petitioner's mother was working as Sweeper in the Srivilliputhur Municipality and since the family was in indigent circumstances, he made an application for appointment on compassionate ground.
The state opposed his plea on the ground that even at the time of death of the employee, his wife viz., mother of the writ petitioner was an employee of the Srivilliputhur Municipality and this apart, the writ petitioner has got married and living separately.
The State further submitted that under such circumstances, the scheme of compassionate appointment cannot be granted in favour of the writ petitioner.
The court agreed as it held, "This court is of the considered opinion that the family of the writ petitioner cannot be construed as one in indigent circumstances and therefore, not considering the name of the writ petitioner for appointment on compassionate ground, is in accordance with the terms and conditions and there is no infirmity".
"A compassionate appointment scheme is a non-statutory scheme and is in the form of a concession and it cannot be claimed as a matter of right by the claimant to be enforced through a writ proceeding. A compassionate appointment is justified when it is granted to provide immediate succour to the deceased employee. Mere death of a Government employee in his harness, it does not entitle the family to claim compassionate employment. The competent authority has to examine the financial condition of the family of the deceased employee and only if it is satisfied that without providing employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family of the deceased employee," said Justice Subramaniam.
The court was also alive to the fact that in today's liberalized world, there were plenty of avenues of employment available to the general public and most people were not entirely dependent on the income of a single member of the family.
Rules of Reservation and Compassionate appointment
The court also considered the effect of compassionate appointment on rules of reservation in government service and said, "the State cannot be going on extending the scope of compassionate appointment so as to dilute the principles of reservation under the Constitution".
"In respect of the Rules of Reservation, the same has not been followed in compassionate appointment. Thus large number of compassionate appointments will have certain implication on the Rules of Reservation and the same will certainly have an impact on the Constitution of India, more specifically, on the principles of reservation. In respect of the merit aspect, no competitive examination or interview are conducted for compassionate appointees. Thus the very capability of the candidates in performing the administrative duties itself will be in question. Certain amount of merit assessment is certainly required for appointing a candidate in any public posts.
"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.
"Rules of Reservation being a constitutional mandate any scheme violating the same has to be implemented cautiously and restrictedly," said Justice Subramaniam.
Click here to download the Order