High Court of KeralaSingle Judge2013-05-22Writ petition allowed

Jayaprabha v. The New India Assurance Co. Ltd. & Ors.

Case / Petition Number:WP(C).No. 4514 of 2012 (L)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. M. Shaffique
Judgment Date: 2013-05-22
Court Decision / Holding: Writ petition allowed; the respondent is directed to consider the petitioner's application for compassionate appointment during the ongoing recruitment process for the post of Assistant and to extend the benefit in terms of Exts. P1 and P5, evaluating eligibility as on the date of application.
Final Disposition: Writ petition allowed

Parties to the Case

Appellants / Petitioners

Jayaprabha, daughter of Late M.K. Prabhakaran, Archana, Santhipuram P.O., Nadungadappally, Kottayam

Respondents

The New India Assurance Co. Ltd.
The Chairman, The New India Assurance Co. Ltd.
The General Manager, New India Assurance Co. Ltd., P.B. No.1049 Ernakulam 682011
The Deputy Manager, New India Assurance Co. Ltd., Regional Office, 36/77 Kandamkulathi Towers, P.B. No.1049, MG Road Ernakulam 682011
Divisional Manager, New India Assurance Co. Ltd., Divisional Office I Kottayam 686001
The Senior Branch Manager, New India Assurance Co. Ltd., Branch Office Changanassery 686101

Legal Representation & Advocates

Counsels for Petitioners

• Sri Subhash Chand
• Sri Shindo Varghese

Counsels for Respondents

• Sri Saji Varghese
• Sri A. A. Ziyad Rahman

Case Synopsis & Summary

This writ petition challenges the denial of compassionate appointment to Jayaprabha, daughter of late M.K. Prabhakaran, under the New India Assurance Company's scheme. The application, filed on 10 August 2001 after her father's death on 28 March 2001, was rejected on the ground that her mother already drew pension benefits from KSEB. The petitioner challenged this denial in O.P. No. 8278/2002; Ext. P1 is the judgment wherein the Court held that the rejection was not supported by legal materials and that the beneficial scheme for dependants should be applied, quashing Exts. P6 and P9 and keeping Ext. P2 alive for consideration in the next recruitment. The matter moved to appeal; Ext. P5 (appellate judgment) confirmed the single-judge’s position but clarified that the directive would apply only when a vacancy for compassionate appointment existed or during general recruitment. The petitioner argues that Exts. P1 and P5 judgments crystallize a right to compassionate appointment and should be implemented in the ongoing recruitment process, regardless of delays. Respondents contend there has been no recruitment since the judgments, there is no current compassionate-appointment scheme, and the petitioner would fail eligibility under Rule 27 due to age and marriage. The court ultimately allows the writ petition, directing the company to consider the petitioner’s compassionate appointment during the ongoing recruitment for the post of Assistant, applying Exts. P1 and P5 and evaluating eligibility as of the date of application.

Provisions of Law Cited

Rule 27 of the Recruitment RulesScheme for compassionate appointment

Legal Doctrines & Maxims

Compassionate appointment is to meet sudden crisis on account of death or invalidation of the bread winner
Beneficial schemes are to be implemented as per norms existing on the date of the application

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext. P1 judgment recognized the compassionate-appointment scheme as a beneficial provision for dependants and that Ext. P5 confirms its applicability in vacancies earmarked for compassionate appointment or during general recruitment. She argues that her rights crystallized under Ext. P1 and should be implemented in the ongoing recruitment cycle, subject to eligibility as of the date of application, despite the long lapse. She claims that the recruitment process and the remedy must not be defeated by technical delays or the petitioner's age/marital status if the scheme on the date of application supported such an appointment. She seeks a direction to extend the benefits of Exts. P1 and P5 and to consider her claim in the current process for appointment as an Assistant; her representation under the scheme should be alive during recruitment.

Contentions of Respondents

The respondents submit that there has been no recruitment after the judgments and there is no operative compassionate-appointment scheme at present. They contend that eligibility under Rule 27 must be satisfied and that the petitioner, being older and married, cannot be accommodated. They argue that the Bharat Sanchar Nigam case requires benefiting schemes to be implemented according to norms existing on the date of the application, and that ongoing recruitment does not create an automatic right to appointment outside the process. They maintain that there is no current vacancy earmarked for compassionate appointment and that Exts. P1/P5 cannot be retroactively applied to override recruitment discipline.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Bharat Sanchar Nogam Ltd. v. Titin	2011(4) KLT 401	Positive	The judgment supports applying beneficial schemes per norms existing on the date of the application; the present case uses this principle to justify implementing Ext P1 in the ongoing recruitment.
Krishnakumari v. State of Haryana	2012 (4) KLT SN 6	Positive	Full Bench held that compassionate appointments should be considered within a reasonable period; used to justify timely consideration of the petitioner’s claim in the ongoing recruitment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 22ND DAY OF MAY 2013/1ST JYAISHTA 1935** ## **WP(C).No. 4514 of 2012 (L)** ## **---------------------------** ## **PETITIONER:** ## **-----------** **JAYAPRABHA, D/O. LATE M.K. PRABHAKARAN, ARCHANA, SANTHIPURAM P.O. NADUNGADAPPALLY, KOTTAYAM.** **BY ADVS.SRI.S.SUBHASH CHAND** **SRI.SHINDO VARGHESE** ## **RESPONDENTS:** - **------------** ## **1. THE NEW INDIA ASSURANCE CO. LTD.** - **REGISTERED AND HEAD OFFICE-NEW INDIA ASSURANCE BUILDING 87, MAHATMA GANDHI ROAD, FORT MUMBAI 400001 REPRESENTED BY ITS CHAIRMAN.** ## **2. THE CHAIRMAN,** - **THE NEW INDIA ASSURANCE CO. LTD. REGISTERED AND HEAD OFFICE- NEW INDIA ASSURANCE BUILDING 87, MAHATMA GANDHI ROAD, FORT MUMBAI 400001.** ## **3. THE GENERAL MANAGER,** - **NEW INDIA ASSURANCE CO. LTD., P.B. NO.1049 ERNAKULAM 682011.** ## **4. THE DEPUTY MANAGER,** - **NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, 36/77 KANDAMKULATHI TOWERS, P.B. NO.1049, MG ROAD ERNAKULAM 682011.** **5. DIVISIONAL MANAGER,** - **NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE I KOTTAYAM 686001.** ## **6. THE SENIOR BRANCH MANAGER,** - **NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE CHANGANASSERY 686101.** **R3-R4 BY ADV. SRI.SAJI VARGHESE BY SRI.A.A.ZIYAD RAHMAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **vk** ## **WP(C).No. 4514 of 2012 (L)** ## **---------------------------** **APPENDIX** **----------** **PETITIONER(S) EXHIBITS** **-----------------------** **EXHIBIT P1: TRUE COPY OF THE JUDGMENT DATED 11/12/2002 PASSED BY THIS HON'BLE COURT IN OP NO. 8278/2002 (I).** **EXHIBIT P2: TRUE COPY OF THE JUDGMENT DATED 14/2/2006 PASSED BY THIS HON'BLE COURT IN CONTEMPT CASE © NO.1000/2005 (S).** **EXHIBIT P3: TRUE COPY OF THE JUDGMENT DATED 21/12/2006 PASSED BY THIS HON'BLE COURT IN CON. APP. © NO.3/2006 (S).** **EXHIBIT P4: TRUE COPY OF THE ORDER DATED 28/7/2008 PASSED BY THIS HON'BLE COURT IN RP NO. 878/07.** **EXHIBIT P5: TRUE COPY OF THE JUDGMENT DATED 18/11/2008 PASSED BY THIS HON'BLE COURT IN WA NO. 2222/2008.** **EXHIBIT P6: TRUE COPY OF THE NOTIFICATION PUBLISHED FOR THE SAME INDICATING THENUMBER OF VACANCIES AVAILABLE FOR GENERALISTS FOR THE POST OF ADMINISRATIVE OFFICER.** **EXHIBIT P6(a): TRUE COPY OF THE LIST OF SHORT LISTED CANDIDATES FOR MEDICAL EXAMINATION.** **EXHIBIT P7: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO. 2 ON 7/2/2012.** **EXHIBIT P8: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.3 ON 9/2/2012.** **RESPONDENTS' EXHIBITS : NIL** **---------------------** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** A.M.SHAFFIQUE, J. ---------------------------------------------------W.P.(C) No. 4514 of 2012 --------------------------------------------------Dated this the 22[nd] May, 2013 **J U D G M E N T** The petitioner claimed appointment on compassionate basis as per the Scheme for compassionate appointment of the 1[st] respondent, on account of the death of her father on 28.3.2001. The application submitted on 10.8.2001 was rejected on the ground that her mother was employed in KSEB and pensionery benefits are already paid to the dependents. This was challenged by the petitioner by filing O.P.No.8278/2002 and Ext.P1 is the judgment, wherein this Court held as under: “Having considered the facts and circumstances of the case, this Court finds that the rejection of the application by Exts.P6 and P9 are not supported by any legal materials. It is relevant to note that the Recruitment Rules itself contains a W.P.(C) No. 4514 of 2012 2 beneficial scheme for dependents like the petitioner. Hence, the petitioner is entitled for a treatment as envisaged under Rule 27 of the Recruitment Rules and this shall be done in the next coming recruitment process. Exts.P6 and P9 are hereby quashed. It is also made clear that Ext.P2 application shall be kept alive, if it is not otherwise found invalid, till it is to be considered in the next coming recruitment process”. 2. The matter was taken in appeal and Ext.P5 is the appellate judgment. In Ext.P5, this Court confirmed the judgment of the learned single Judge. It was reiterated that the direction made by the learned single Judge will be applicable only when recruitment is made in the vacancy earmarked for compassionate appointment or during general recruitment. 3. According to the petitioner, despite the fact that the judgment of the learned single Judge was rendered as early as on 11.12.2002 which was confirmed by the W.P.(C) No. 4514 of 2012 3 Division Bench on 18.11.2008, so far the respondents has not offered any employment to the petitioner on compassionate ground. Hence the petitioner seeks for a direction to the respondent to provide her an employment in terms with Exts.P1 and P5 judgments. 4. Counter affidavit is filed by the respondent inter alia contending that after the judgment, so far there has been no recruitment of subordinate staff. Presently, there is no scheme to make any appointment on compassionate grounds. Even otherwise the applicant under the compassionate ground has to comply with the qualification and the eligibility criteria in terms of Rule 27. As matters stand now, the petitioner is over-aged and married and therefore she cannot be given the benefit of compassionate appointment. That apart, after the judgment of the learned single Judge there had been no recruitment to any of the categories of staff for which compassionate appointment was possible and no person W.P.(C) No. 4514 of 2012 4 had been appointed in the organization on compassionate ground. 5. It is not in dispute that the respondent company had made any recruitment of any staff nor any appointments were made on compassionate ground. No such material has been produced by the petitioner as well. But it is submitted by the learned counsel for the respondent that the General Insurance Company (GIC) has now called for application for appointment of Assistants in all the four Insurance Companies which includes the respondent company and that is the first recruitment process that is to take place after the judgment of the learned single Judge at Ext.P1. 6. If that be the factual situation, I am of the view that petitioner's application for compassionate appointment has to be considered when the recruitment process in terms of what is stated above is in progress, as the petitioner will be entitled to get the benefit of Exts.P1 and P5 W.P.(C) No. 4514 of 2012 5 ## judgments. 7. A contention has been raised by the learned counsel for the respondent stating that the petitioner is not eligible in terms of Rule 27 as matters stand now, as the learned single Judge had only directed consideration of the claim under Rule 27. A Division Bench of this Court in **Bharat Sanchar Nogam Ltd.** v. **Tittin** [2011(4) KLT 401] had formed an opinion that the beneficial schemes are to be implemented as per the norms existing as on the date of the application. It cannot be disputed that as on the date when the petitioner applied, the scheme was in force and she was entitled for an appointment as an Assistant. But the appointment was not made on other grounds which was found to be incorrect by this Court as per Ext.P1 judgment. 8. In **Krishnakumari** v. **State of Haryana** (2012 (4) KLT SN 6), the Full Bench of Punjab and Haryana Court held that when the application for compassionate W.P.(C) No. 4514 of 2012 6 employment has to be preferred without undue delay the same has to be considered within a reasonable period of time as compassionate appointment is to meet sudden crisis on account of death or invalidation of the bread winner of the family. 9. This is not a case where there was no consideration of the application of the petitioner. It was considered and rejected originally. But by virtue of the judgment of this Court right of the petitioner had been crystalised. When Ext.P1 judgment was passed, the petitioner was qualified and eligible to be appointed to the post available for compassionate appointment. 10. Having regard to the aforesaid factual and legal aspects involved in the matter, I am of the view that the benefit of Ext.P1 judgment was not extended to the petitioner at the relevant point of time only on account of the fact that the respondent company had not made any recruitment to the post available for compassionate W.P.(C) No. 4514 of 2012 7 appointment and only now certain posts of Assistant had been invited and during the interregnum period, the petitioner had become ineligible as per Rule 27 on account of the lapse of time. Apparently, the petitioner had crossed her age limit and had married due to long lapse of time. But the fact that she crossed the age limit and the fact that she had married should not deprive her of her rights to get the benefit under Ext.P1 judgment. This is a matter which requires to be borne in mind by the respondent while considering the application of the petitioner on compassionate ground. 11. In the result, the writ petition is allowed as follows: The respondent is directed to consider the application of the petitioner for compassionate appointment during the recruitment process now undertaken to the post of Assistant and extend her the benefit in terms of Exts.P1 and P5 judgments and taking W.P.(C) No. 4514 of 2012 **==> picture [7 x 9] intentionally omitted <==** into consideration her eligibility as on the date of application. Sd/- A.M.SHAFFIQUE, JUDGE. rka /true copy/