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2013 Supreme(Ker) 962

IN THE HIGH COURT OF KERALA
C.T. RAVIKUMAR, J.
Mary Joseph - Petitioner
Versus
The Principal Controller of Defence Accounts - Respondent
W.P.(C) No. 26142 of 2013
Decided On : 21-11-2013

Advocates Appeared:
For the Petitioner: R. Pushpangathan Pillai
For the Respondent: T. Sanjay (CGC)

Headnote:Constitution of India, 1950, Articles 226 and 16 - Compassionate appointment can claim only if death caused after the voluntary retirement is the crucial point decided in this case -Petitioner is receiving the family pension after the death of her husband - A dependant family member is not entitled to get compassionate appointment if there lack of any provision for compassionate appointment not entitled to claim owing to the death of such a retiree-- Writ of Mandamus can seek if the aggrieved has a equivalent legal right for its execution- Hence there is no writ of mandamus will lie to compel performance of an act contrary to law.

JUDGMENT :

C.T. Ravikumar, J.

The petitioner is the widow of one S.D. Narasimhan who voluntarily retired from the service of the respondent on 31.10.2012 and breathed his last on 22.2.2013. This writ petition has been filed only with the following prayer:-

"To issue a writ of mandamus, any other appropriate writ, order or direction directing the respondents to consider Exhibit P-5 representation dated 20.8.2013 addressed to the 1st respondent with copy to the 2nd respondent and take a decision thereon within a time frame that may be fixed by this Honourable Court."

Ext.P5 representation carries the request for her appointment, either temporarily or permanently, in any one of the Central Government Offices in Kochi, on compassionate grounds.

2. Indisputably, the death of the petitioner's husband was after his voluntarily retirement from the service of the respondents. In Ext.P5 representation the petitioner virtually admitted the aforesaid relevant aspect. In such circumstances the question is whether the petitioner could seek for issuance of a writ of mandamus of the aforesaid nature? In that context it is relevant to refer to the statement filed by the respondent. In the said statement it is specifically stated that the husband of the petitioner retired voluntarily from the department on 31.10.2012 and all the retiral benefits payable to him were already paid. Ext.P5 application was received by the respondents on 29.10.2013. It is further stated in paragraph 6 of the said statement that according to the extant orders, compassionate appointment scheme is applicable only to dependent family member of Government servants who die-in-harness and it is not at all applicable to persons like the petitioner and as such the petitioner is not eligible for consideration for compassionate appointment. A reply affidavit has been filed on behalf of the petitioner. The petitioner has produced an earlier representation submitted by her on 30.04.2013 viz., Ext.P7 along with the reply affidavit, essentially, to refute the contention of the respondents in the statement that prior to Ext.P5 they had not received any request from the petitioner for compassionate appointment. Whatever that be, the question posed for consideration is whether the petitioner can legally claim for compassionate appointment on account of the death of her husband that occurred after his voluntarily retirement from service. Compassionate appointment is not a method of appointment and therefore, any claim for such appointment can only be entertained subject to the provision of the scheme for such appointment. Going by the decision of the Hon'ble Apex Court in Umeshkumar Nagpal v. State of Haryana reported in (1994) 4 SCC 138 an appointment on compassionate ground has to be made strictly in accordance with the relevant rules and guidelines that have been framed by the Government or the concerned public authority. In view of the decision of the Hon'ble Supreme Court in State of Haryana v. Naresh Kumar Bali reported in (1994) 4 SCC 448 no person could claim appointment on compassionate grounds or directed to be given compassionate appointment in total disregard to such rule or such guideline framed for providing compassionate appointment. The petitioner did not have a case that the compassionate appointment scheme covers the claims of dependents of a retiree from the service of the respondents upon the death of the retiree concerned. In fact, there is no case for the petitioner that any such scheme is in force. Admittedly, the petitioner is getting the family pension at the admissible rate consequent to the death of her husband. In the absence of any provision for compassionate appointment, going by the extant rules, a dependent family member of person who died after retirement, voluntarily/compulsorily or on attaining the age of superannuation from service is not entitled to claim and consequently to get compassionate appointment owing to the death of such a retiree. Compassionat


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