Supreme Court Refuses To Interfere In Kerala HC Order Invalidating 'Compassionate Appointment' To Late MLA's Son

The Supreme Court on Monday (December 2) refused to interfere in the order of the Kerala High Court which had set aside the appointment of late MLA Ramachandran Nair's son in the State's Public Works Department under 'compassionate employment'.

The bench of CJI Sanjiv Khanna and Justice Sanjay Kumar was hearing the challenge against the Kerala High Court order which 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.

The bench refusing to interfere in the order, dismissed the same while allowing the petitioner to retain the salary he has drawn from the employment so far.

"We do not think that we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India," the Court said. When Senior Advocate Jaideep Gupta, for the State, submitted that the State has also filed a SLP challenging the judgment, CJI Khanna said, "You should not have."

Senior Advocate V Giri, for the petitioner, submitted that a writ of quo warranto has been issued by the Court and this might imply that all actions done by the petitioner would be void abinitio. The bench then added in the order that the payments made to the petitioner for services rendered would not be recovered. 

Decision Of The High Court 

The Court 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.

Rule 39 reads :  Notwithstanding, anything contained in these rules or in the Special Rules or in any other Rules or Government Orders the Government shall have power to deal with the case of any person or persons serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service in such manner as may appear to the Government to be just and equitable:

Provided that where such rules or orders are applicable to the case of any person or persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by those rules or orders. 

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.

The High Court also noted that the second limb of Rule 39 makes it clear that the appointments to service made by the State have to be just and equitable.

Placing reliance on several cases including Aboobacker v. Emilia Morris [2020 (1) KLT Online 1092], the Court held that exercise of power under Rule 39 is qualified by the words 'just and equitable', which definitely indicates that the Government shall exercise the power only in such a manner as may appear to be just and equitable and the justness of an order is liable to be tested on the touchstone of fairness.

The Court further noted the fact that any person who has to secure employment under the Government, will have to make earnest efforts of preparation, participate in a written test and interview or such other procedures, so as to ensure that he gets an appointment.

The test of 'just and equitable' imposes a duty and obligation on the Government to ensure that the interest of the public is not, in any manner, violated, which aspect is an antithesis to the basic structure theory of fairness in action.

It was also observed that the power so vested cannot be exercised to protect the personal interest of any individual or a family, and the qualifying words "just and equitable", have to be understood, construed and applied in that sense, which thus means, the extraordinary power cannot be exercised by the Government at its whims and fancies.

But when Rule 39 of Part II KS & SSR is invoked by the Government in the present case, all these aspects are given a go-bye and Prasanth was appointed to the service of the State on the sole consideration that he is the son of an MLA and his family requires employment on compassionate grounds.

The Court took the view that while making an appointment invoking Rule 39, the Government has to bear in mind the Constitutional guarantees contained under Part III of the Constitution of India, more importantly, Articles 14 and 16.

It is an admitted fact that a supernumerary post was created by the State Government to appoint Prasanth in the electronics wing of PWD.

According to the Kerala Financial Code, a supernumerary post is created to accommodate the lien of an Officer who is entitled to hold a lien against a regular permanent post in the opinion of the competent authority, but who, due to non-availability of a regular permanent post, cannot have his lien against such a post.

It further says that it is normally a shadow post, i.e., no duties are attached to the post and the officer generally performs duties in some other vacant temporary/permanent post. Such a post should not be created in circumstances which, at the time of the creation of the post or thereafter, would lead to an excess of the working strength.

Clause (iv) of paragraph 69 of the Code further specifies that it is always a permanent post. However, since it is a post created for accommodating a permanent officer, till he is absorbed in a regular permanent post, it should not be created for an indefinite period as other permanent posts are, but should normally be created, for a definite and fixed period sufficient for the purpose in view.

Therefore, it was deduced that to create a supernumerary post, there are clear provisions made under the Kerala Financial Code, and therefore, the State Government cannot flout the rules and create a supernumerary post by invoking the powers under Rule 39 of Part II KS & SSR.

Case Details : R. PRASHANTH vs. ASHOK KUMAR M.| SLP(C) No. 020871 - / 2021