Krishnaprasad K. v. State of Kerala and Director, Directorate of Medical Education, Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA,** ## **1945** ## **OP(KAT) NO. 365 OF 2023** ## **PETITIONER/APPLICANT IN OA:** KRISHNAPRASAD K., AGED 33 YEARS SANTHI BHAVAN, KULAMANKODE, PARAPPARA P.O, THIRUVANANTHAPURAM, PIN - 695541 BY ADV N.KRISHNA PRASAD (PALKULANGARA) ## **RESPONDENTS/RESPONDENTS IN OA:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETERIAT TRIVANDRUM -695001, KERALA AG OFFICE ERNAKULAM, PIN-682031 2 DIRECTOR, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE PO, TRIVANDRUM -695011,KERALA AG OFFICE , ERNAKULAM, PIN – 682031 SRI.SAIGI JACOB PALATTY, SENIOR GP THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 17.10.2023, THE COURT ON 08.11.2023 DELIVERED THE FOLLOWING: OP(KAT) NO. 365 OF 2023 **==> picture [31 x 7] intentionally omitted <==** ## **JUDGMENT** ## SHOBA ANNAMMA EAPEN, J. The petitioner, who was the applicant before the Kerala Administrative Tribunal (for short, “the Tribunal”), is aggrieved by the order of the Tribunal dated 08.06.2023 in OA No.538 of 2022. 2. The petitioner's father, late Sri.Krishnankutty Nair, while working as Night Watchman on daily wages in a ladies' hostel of Priyadarsini Institute of Para Medical Science under the Government Medical College, Thiruvananthapuram, committed suicide on 29.09.2007. On the basis of an application submitted by the petitioner for compassionate appointment, the Government issued Annex.A1 order on 21.03.2013, according sanction to the second respondent to appoint the petitioner in a suitable post commensurate with his education, OP(KAT) NO. 365 OF 2023 **==> picture [31 x 7] intentionally omitted <==** treating as a special case. However, thereafter, Annex.A3 order dated 04.05.2013 was issued by the Government cancelling Annex.A1 order, stating that it is found necessary to issue a more detailed order with clarity. Since there was no response from the Government, the applicant approached the Tribunal by filing OA No.867 of 2016, complaining of denial of posting as well as non issuance of the detailed order. Thereafter, the Tribunal, as per Annex.A6 order dated 22.01.2018, directed the Government to issue the more detailed and clear order in pursuance of Annex.A3 order. Subsequently, the Government issued Annex.A8 order dated 24.04.2018, revoking Annex.A1 order and rejecting the request of the petitioner for compassionate appointment. Aggrieved by this, the petitioner again approached the Tribunal by filing OA No.1839 of 2018, challenging Annex.A8 order, and the OP(KAT) NO. 365 OF 2023 **==> picture [31 x 7] intentionally omitted <==** Tribunal, as per Annex.A9 order, set aside Annex.A8 order and directed the Government to reconsider the matter. However, the Government thereafter passed Annex.A10 order, rejecting the application of the petitioner. It is challenging this, the petitioner filed the original application before the Tribunal. After elaborate consideration of the contentions, the Tribunal dismissed the original application as per Ext.P3 order, holding that Annex.A10 order passed by the Government cannot be said to be incorrect. Hence, this original petition. 3. Heard the learned counsel for the petitioner as well as the learned Senior Government Pleader. 4. The short question that arises for consideration in this original petition is whether the petitioner is entitled for compassionate appointment consequent to the death OP(KAT) NO. 365 OF 2023 **==> picture [31 x 7] intentionally omitted <==** of his father, who was engaged on daily wages. The scheme for compassionate employment to the dependents of government servants, who die in harness, is as per GO(P) No.12/99/P&ARD dated 24.05.1999. As per the scheme, the eligibility conditions for compassionate appointment are as follows; “4. Applications from dependents of Government Servants who die in harness will be considered for employment assistance under the scheme. 'Government Servants' shall include contingent and work establishment personnel, parttime employees, N.M.R. Workers, Seasonal employees under various Government Departments, Permanent Labourers of the Agriculture Department and panchayat employees. 5. Dependents of the employees of the Municipalities and Corporations who die in harness will also be eligible for employment assistance on the pattern of this scheme. However, their appointment shall be confined to the Municipalities and Corporations only. 6. Dependents of Government Servants missing while in service, if it is not proved otherwise as laid down in section 108 of the Indian Evidence Act, will be eligible for employment assistance under the scheme treating that the incumbent had died while in service. 7. Dependents of Government Servants who die in harness irrespective of the circumstances of the death (including suicide) will be eligible for employment assistance under the scheme. OP(KAT) NO. 365 OF 2023 ..6.. 8. Dependents of Government Servants who have availed themselves of invalid pension and in whose case death takes place before the normal date of superannuation shall also be eligible for employment assistance under the scheme. 9. The scheme is not applicable to the employees of private colleges. 10. (a) Employment assistance under the scheme shall not be available to the dependents of Government servants who are allowed to continue in service beyond superannuation either by extension of service or by reemployment and in whose case the death takes place after the normal date of retirement or superannuation. (b) The dependents of the teaching staff of all educational institutions (including Principals of Colleges) who on completion of the age of 55 years during the course of an academic year continue in service, under Rule 60(c) Kerala Service Rules, Pat I, till the last day of the month in which the academic year ends and who die during the period of such continuance will be eligible for the employment assistance under the scheme. 11. Dependents of Government Servants who have retired voluntarily and in whose case death takes place before the normal date of superannuation shall not be eligible for the employment assistance under this scheme.” 5. It is an admitted fact that the father of the petitioner was engaged on daily wages in a ladies' hostel of Priyadarsini Institute of Para Medical Science under the Government Medical OP(KAT) NO. 365 OF 2023 **==> picture [31 x 7] intentionally omitted <==** College, Thiruvananthapuram. Considering the application of the petitioner for compassionate appointment, treating as a special case, the Government initially issued Annex.A1 order, according sanction for compassionate appointment to the petitioner, which was later cancelled as per Annex.A3 order, stating that it is necessary to issue a more detailed order with clarity. Finally, Annex.A10 order was issued by the Government, rejecting the application of the petitioner, stating that compassionate appointment is not a right in view of various decisions of the apex court. It is further stated that compassionate appointment can be granted only to those dependents, who are eligible in accordance with the scheme for compassionate employment. 6. On a perusal of the scheme for compassionate employment of the dependents of OP(KAT) NO. 365 OF 2023 **==> picture [31 x 7] intentionally omitted <==** government servants, it is seen that only the dependents of contingent and work establishment personnel, part-time employees, N.M.R. Workers, Seasonal employees under various Government Departments, permanent labourers of the Agriculture Department, Panchayat employees and the employees of the Municipalities and Corporations are included as eligible under the scheme. The dependents of those who are working on daily wages, are not included under the scheme. 7. The learned counsel for the petitioner submits that it was after taking note of the fact that the father of the petitioner was working on daily wages, the Government initially considered the matter and decided to give compassionate appointment to the petitioner. 8. It is true that the Government had initially passed Annex.A1 order according OP(KAT) NO. 365 OF 2023 **==> picture [31 x 7] intentionally omitted <==** sanction for compassionate appointment to the petitioner, however, subsequently, the said order was cancelled as per Annex.A3 order. It is settled law that compassionate appointment is not a right. The Government is obliged to strictly follow the scheme implemented for the purpose of compassionate employment. As discernible from paragraph 4 of the Annex.A2, daily waged employees cannot be treated as “government servants” and therefore, the dependents of daily waged employees are not eligible for compassionate appointment. 9. In **Bhawani Prasad Sonkar** v. **Union of** **India** [(2011) 4 SCC 209], referred to by the Tribunal, it was held that the concept of compassionate appointment is an exception to the general rule and being an exception, the scheme has to be strictly construed. Similarly, in **State of Gujarat** v. **Arvindkumar T. Tiwari** [(2012) 9 SCC OP(KAT) NO. 365 OF 2023 **==> picture [37 x 7] intentionally omitted <==** ## 545], it is held as follows; “It is a settled legal proposition that compassionate appointment cannot be claimed as a matter of right. It is not simply another method of recruitment. 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, taking into consideration the financial condition of the family of the deceased. Such a category of employment itself, is an exception to the constitutional provisions contained in Articles 14 and 16, which provide that there can be no discrimination in public employment.” ## 10. In **Bank of Baroda & Others** v. **Baljit** **Singh [2023 KHC OnLine 6661]** , the apex court has held that appointment on compassionate basis is an exception to the general rule for appointment by an open invitation and the exception has to be resorted to only when the candidate as well as his family is in penury so as to provide immediate succor on the death of the employee in harness. It is further held that the said appointment of a candidate on compassionate basis does not create any vested right and that it is only when a candidate is covered under all OP(KAT) NO. 365 OF 2023 **==> picture [37 x 7] intentionally omitted <==** clauses of the Scheme applicable at the relevant point of time that he/she could be considered for compassionate appointment. 11. Therefore, it is for the Government to decide whom all should be included in the scheme for compassionate appointment. As long as the scheme includes the definition of “government servants” for the purpose of including in the scheme, it will not be appropriate for us to decide whether the dependents of daily waged employees shall be granted employment under the compassionate employment scheme. The petitioner, however, has not raised any challenge against the scheme framed by the Government for compassionate appointment to the dependents of government servants. As far as Annex.A2 scheme is concerned, it is an admitted fact that the said scheme is not applicable in the instant case since the dependents of daily waged employees are not OP(KAT) NO. 365 OF 2023 **==> picture [37 x 7] intentionally omitted <==** included therein for compassionate appointment. Therefore, we find that the reasoning in Annex.A10 order of the Government, as affirmed by the Tribunal by the impugned order, is well founded. In the result, the challenge against the impugned order fails and the original petition stands dismissed. ## **Sd/-** ## **A. MUHAMED MUSTAQUE** **JUDGE** **Sd/-** **SHOBA ANNAMMA EAPEN** **JUDGE** bka/- OP(KAT) NO. 365 OF 2023 ..13.. ## **APPENDIX OF OP(KAT) 365/2023** PETITIONER ANNEXURES EXHIBIT P1-TRUE COPY OF OA NO 538/2022 OF KAT ANNEXURE A1(OA)TRUE COPY OFGO(MS) NO 93/2013/H&FW DATED 21-03-2013 ANNEXURE A2(OA)- COPY OF GO(P) NO 12/99/P&ARD DATED 24-5-1999 ANNEXUREA3(OA) COPY OF GO(MS)NO160/2013/H&FW DATED 04-05-2013 ANNEXUREA4-(OA) COPY OF LETTERNOE5/905/2012/DME DATED 05-06-2013 FROM DME TO PRINCIPAL SECRETARY,H&FW DEPT ANNEXURE A5(OA) COPY OF LETTER NO.E5/905/2012/DME DATED 30-07-2013 FROM DME TO THE PL. SECRETARY , HEALTH& FAMILY WELFARE DEPT ANNEXUREA6(OA)- COPY OF ORDER DATED 22-01 -2018 IN OA NO 867/2016 ANNEXUREA7(OA)- COPY OF ORDER DATED 10-04-2018 IN OA NO 867/2016 ANNEXUREA8(OA)- COPY OF GO(MS) NO 63/2018/H&FWD DATED 24-04-2018 ANNEXURE A9(OA)- COPY OF ORDER DATED 22-10-2020 IN OA NO 1839/2018 ANNEXUREA10(OA) COPY OF GO(MS)NO528/2021/H&FW DATED 20-02-2021 ANNEXURE A11(OA) COPY OF ORDER DATED 12-09 -2021 IN CP NO 100/2021 IN OA NO 1839/2018 OP(KAT) NO. 365 OF 2023 ..14.. ANNEXURE A12- COPY OF CIRCULAR NO56/18/FIN DATED 2006-2018 EXHIBIT P2- COPY - WRITTEN STATEMENT OF RESPONDENT IN OA NO 538/2022 EXHIBIT P3 COPY OF THE ORDER OF KAT IN OA NO 538/2022DATED 08-06-2023