Compassionate Employments Open Only To Kith & Kin Of 'Govt Servants': Kerala High Court Cancels Appointment Of Late MLA's Son In PWD

The Kerala High Court recently 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.

In a judgment that runs over 130 pages, the Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P.Chaly observed:

"A supernumerary post created and appointment given to a dependent of an MLA, if permitted to continue, would give a free hand to the Government, to make similar appointments to the children of persons holding various posts, right from the President of a Panchayat upto the top level posts, and if it happens, it would be nothing, but absolutely crippling equality and equal protection of laws, making the qualified candidates waiting outside to get a berth in Government service."

The petitioner Ashok Kumar moved the Court seeking a writ of quo warranto arguing that such appointment to a gazetted post made on compassionate grounds was illegal. 

According to him, by any stretch of imagination, a Member of Legislative Assembly can never be part of Government service since they have an elected term of only five years. Therefore, it was contended that Prasanth was a usurper to the services of the State and required to be removed. 

Prasanth's Counsel had submitted that to decide the issue, the Court may engage its heart rather than the head to render justice to the family of the deceased MLA.

To this the Court responded:

"...for considering the issue, we may have to use our heart and head, since a Constitutional court, while discharging the functions under Article 226 of the Constitution of India, has necessarily to take care of the mandates contained under Articles 14 and 16 apart from Article 309 dealing with the intricacies of public employment."

The State argued that a decision should be made considering the plight of the family left without adequate economic and financial situations. It was alleged that it was in such circumstances that the Government decided to create a supernumerary post and appoint Prasanth therein.

Further, it was pointed out that when a power is conferred on the State Government under Rule 39 of Part II Kerala State & Subordinate Service Rules (KS & SSR), to make an appointment, the petitioner is not entitled to challenge the same because the Government has exercised its absolute administrative power provided under Rule 39. 

KEY FINDINGS

• Maintainability

The Division Bench primarily established that the petition was maintainable by countering the respondents' argument that the petitioner had no locus standi to file this petition, with the fact that the petition was filed as a Public Interest Litigation and not as a person aggrieved.

Moreover, it was observed that although Public Interest Litigation in service matters is not maintainable, it is well settled that there is an exception to this, i.e., writ of quo warranto. 

"...we are of the opinion that since the appointment of the 7th respondent (Prasanth) is made creating a supernumerary post, there is no other option to the petitioner than to approach this Court by filing a writ petition seeking for a writ of quo warranto, which in our view, is in the public interest and is maintainable in law."

• Compassionate Appointments

The Court initially considered a few decisions of the Supreme Court as to why the scheme of compassionate appointment was evolved and concluded that compassionate appointment is an exception to the general provision and, being an exception, it should not interfere unduly with the rights of the other persons.

It was also 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. 

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.  

"State Government can only make supernumerary posts to tide over the situation of providing promotion or appointment to an employee, who is due for such appointment in the Government service and it can never be created for making a compassionate appointment in service."

It added,

"Once there is a policy of the Government, providing employment assistance on compassionate grounds and thus, the State have prescribed guidelines to ameliorate the financial hardship of the kith and kin of the 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."

• Just and Equitable

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.

"Thus, the 7th respondent (Prasanth) is individually put on a higher pedestal, violating all the cannons of law and overlooking and flouting the rules made for that purpose, and therefore, there is no public element involved in it, or to put it otherwise, it is only a consideration of the individual concerned. That is why clear conditions are mandated under the second limb of Rule 39 of Part II KS & SSR, that such appointments made shall be just and equitable."

• Constitutional Framework

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.

Article 14 clearly specifies that the State shall not deny to any person equality before the law or equal protection of the laws, within the territory of India, whereas, Article 16 makes it imperative that there should be equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State. 

"In our considered opinion, while taking a policy decision by the Government, even in an individual case, State is duty-bound to bear in mind the Constitutional framework contained under Articles 14 and 16 of the Constitution of India. This we say so because, Rule 39 of Part II KS & SSR only permits the Government to overlook the rules specified thereto, but the Government is enjoined with a duty to see that the provisions of the Constitution are not violated."

• Supernumerary Posts Created Flouting Applicable Rules
  

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.  

"Moreover, the Code makes it clear as to when the prerogative power of the Government can be exercised, in order to meet special circumstances, and in the case on hand, there is no such eventuality and, therefore, there cannot be a special concession to the 7th respondent."

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. 

• Kith And Kin Policy 

In Himachal Road Transport Corporation v. Dinesh Kumar & Anr [(1996) SCC 4 560], the directions of the Administrative Tribunal to create a supernumerary post was held as illegal, even in the case of claims under the kith and kin policy. While that be the case, the government of Kerala, cannot create a supernumerary post solely for providing appointments to for the late MLA's son, the Court opined. 

The petitioner was represented by Advocates S. Sabarinadh and Indulekha Joseph. Additional Advocate General Asok M. Cherian appeared for State and Senior Counsel Jaju Babu represented Prasanth in the matter.

Case Title: Ashok Kumar v. State of Kerala & Ors.

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