P. Krishna Moorthy, J.
1. In this writ petition, the petitioner prays for quashing annexure 'A' order dated March 11, 1994, wherein the third respondent rejected the claim of the petitioner for an appointment on compassionate grounds and for a direction to the respondent to appoint the petitioner to a suitable post.
2. Sri J. Siddappa, father of the petitioner, was working as a mechanic, Grade-11 in the respondent-board for more than 20 years. He died in harness on April 24, 1979, leaving behind him his wife, six daughters and three sons. The eldest brother of the petitioner, Sri Nagaraj, is married and living separately, settled at Shimoga. Another brother, Sri Rajachari, is married and living separately at Jog. Four sisters of the petitioner are also married and living separately with their families. The petitioner is staying with his mother and unmarried sisters who are unemployed. The petitioner has completed VIII Std. and is unemployed. The petitioner submitted an application on March 11, 1993, to appoint him in the respondent-board on compassionate grounds on his attaining majority.
3. The superintending engineer by his reply dated March 11, 1994, informed the petitioner, that he is not entitled to an appointment on compassionate grounds as two brothers of the petitioner, Sri Nagaraj and Sri Rajachari, are already in the service of the respondent-board. The above order is produced as annexure 'A'. The petitioner has challenged the above order in this writ petition on the ground that the fact that the two brothers of the petitioner are already employed by themselves is not a ground for refusing the claim of the petitioner. It is further contended by the petitioner that the brothers were employed even during the life time of the father and that they are not supporting the family as they are living separately with their families. The petitioner has submitted the application as soon as he attained majority and he should have been provided with an employment on compassionate grounds in accordance with the scheme framed by the respondent-board.
4. The respondents have filed statement of objections in which it is submitted that the petitioner is not entitled to compassionate appointment for the reason that his two brothers are already in the employment of the board and are earning members of the family. The scheme for compassionate appointment is intended to give relief to the family of a deceased employee to tide over the difficulty caused by the sudden death of the earning member. The board circular dated August 4, 1978, read with the guidelines as per circular dated June 25, 1990, clearly provides that the proposal for compassionate appointment shall be considered only if there are no other earning members in the family. The board has also passed a resolution dated October 8, 1990, to reject such applications where anyone or more members of the family are in the employment of the board/government/semi-government organisations, whether employed before or after the death of the head of the family. In this case, the petitioner's brothers are already in the employment and the rejection of the petitioner's application was proper.
5. In the light of the above, the question to be decided is as to whether the petitioner is entitled to an appointment on compassionate grounds. The father of the petitioner died in 1979 and the petitioner filed the application in 1993. At the time of application, two of the brothers of the petitioner are already in employment and four sisters are also married.
6. An appointment on compassionate grounds is an exception to the normal rule of selection by considering the case of all eligible persons. Unless the petitioner conclusively proves that circumstances exist to depart from the normal rule, the petitioner will not be entitled to relief The application of the petitioner is rejected on the ground that two of his brothers are already gainfully employed in the respondent-board itself and so the petitioner is not entitled to any compassion. Learned counsel for the petitioner relied on a Division Bench decision of this court in K. Raja v. Karnataka Electricity Board, (1992-I-LLJ-129) for the position that employment of another son of the deceased by itself is not a ground for rejecting an appointment on compassionate grounds. But it is to be noted that thereafter, the Supreme Court has considered the circumstances in which compassionate appointments can be made in the decisions reported in Auditor-General of India v. G, Ananta Rajeswara Rao, (1994-II-LLJ-812); LIC of India v. Asha Ramchhandra Ambekar (Mrs.), (1994-II-LLJ-173); and Umesh Kumar Nagpal v. State of Haryana, (1995-I-LLJ-798). These decisions were considered by a Division Bench of this Court in Contempt of Court Case No. 263 of 1994 (unreported) and it was held that the law laid down by this Court in K. Raja's case, (supra), is no longer good law.
7. The respondent has issued a circular dated June 25, 1990, in regard to compassionate ap-pointments. The circular provides that the recommendations for compassionate appointments shall be made if only there is no other wage-earner in the family. The resolution of the Board dated October 8, 1990, is also to that effect. The respondent-Board is bound to follow the circular and the resolutions passed on the subject.
8. In LIC of India v. Asha Ramchhandra Ambekar (Mrs.) (supra), at Page 175, the Supreme Court observed as follows:
'The Courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however hard the case may be, it should never be done. In the very case itself, there are regulations and instructions which we have extracted above. The court below has not even examined whether a case falls within the scope of these statutory provisions. Clause 2 of Sub-clause (iii) of Instructions makes it clear that relaxation could be given only when none of the members of the family is gainfully employed. Clause 4 of the circular dated January 20, 1987, interdicts such an appointment on compassionate grounds, The appellant-Corporation being a statutory Corporation is bound by the Life Insurance Corporation Act as well as the Statutory Regulations and Instructions. They cannot be put aside and compassionate appointment be ordered'
9. In the light of the circular dated June 25, 1990, and the resolution of the respondent-board dated October 8, 1990 which the Board is bound to follow, the petitioner is not entitled to an appointment on compassionate grounds as two members of his family are already in employment in the respondent-board itself.
10. The purpose of compassionate appointment is to assist the family at the time of crisis due to the death of the bread- winner. Unless it is done immediately, it does not serve the purpose. It is not also proper to give such appointments after decades when the family has got over the crisis, overlooking the normal rules of selection. The same view was expressed by their Lordships of the Supreme Court in Umesh Kumar Nagpal v. State of Haryana, (supra), which reads at page 800.
'For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole bread- winner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.'
11. The father of the petitioner died in 1979 and the petitioner made the application in 1993 nearly one and a half decades thereafter. By the time two of his brothers are already employed and four of his sisters are married. The financial position of the family is completely changed. No doubt, the scheme provides that any member of the family can apply for compassionate appointment within three years of attaining majority. But it is well-settled that, the extraordinary method of making compassionate appointments is to help the family in penury and without any means of livelihood. If such appointments are made even if the family is not destitute that will be in violation of the constitutional guarantee under article 16 of the Constitution of India. It cannot be claimed as a hereditary right.
In Umesh Kumar's case (supra) the Supreme Court had said at Page 799
'The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for the post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family.'
It was further observed at page 799
'It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more, destitute.'
In the light of the above proposition laid down by the Supreme Court, the circumstances as it existed in 1993 have to be taken note of. At that time, from the materials available in the case, it is clear that the position of the family has changed and that the two brothers of the petitioner are already in employment and that the sisters of the petitioner are married. The provision in the scheme for making an application after three years of attaining majority does not stand the test of equality guaranteed under article 16 of the Constitution of India. By 1993, the position of the family has entirely changed as it existed in 1979 when the father of the petitioner died and that the petitioner is not entitled to any compassionate appointment.
Learned counsel for the petitioner relied on a decision of this Court in Susheela B. Bhakta v. Karnataka State Road Transport Corporation, 1995 (87) FJR 465, wherein a learned single Judge of this Court, after considering all the decisions of the Supreme Court on the points, has said to the following effect at Page 471.
'For appropriately dealing with an application for grant of appointment on compassionate ground it is incumbent upon the authorities to ascertain by holding an appropriate enquiry as to whether the family comprising the dependents of the deceased employee had any income from any source to sustain their livelihood, and if it is found that but for a job being offered to one of the eligible dependents their family cannot tide over the crisis, compassionate employment should be given to the eligible dependent. Mere employment of one of the sons of the deceased cannot clinch the issue of granting compassionate appointment, if on facts it is found that he had separated from the family of the deceased even during his lifetime, because in such a situation it cannot be said that he was still a helping hand to the family.'
12. The dictum laid down in the above decision can have no application to the facts of the case for, in this case, the circular dated June 25, 1990, and the resolution of the respondent-board dated October 8, 1990 clearly prohibits the appointment on compassionate grounds if any other member of the family is employed. Such a provision was absent in that case. Moreover, in that case, the application for appointment was made immediately after the death, whereas, in this case, it is made nearly 14 years after the death of the father. That apart, I have my own reservations regarding the statement made by the learned single judge that at Page 471 of 87 FJR (supra)
'Mere employment of one of the sons of the deceased cannot clinch the issue of granting compassionate appointment, if on facts it is found that he had separated from the family of the deceased even during his lifetime, because in such a situation it cannot be said that he was still a helping hand to the family.'
13. Even under the scheme for compassionate appointments, only one member of the family will be entitled to such appointment. He may be married or unmarried at the time of employment. If unmarried may get married later. He may be appointed or transferred to any place other than where the family is residing. In that contingency, he will have to necessarily set up his family at the place of employment. These privileges cannot be denied to him by the other members by the mere fact that he got an appointment on compassionate grounds. It is also pertinent to pose a question as to what is the character or incidence of the salary which such person receives on employment. Is it family property or personal property? Is he a trustee for all the members of the family? Is he bound to account for the same to the other members of the family as he obtained the employment on behalf of the family owing to the sudden death of the head of the family? If he neglects to look after the family, are the other members entitled to proceed against the salary? Even if one member gets an employment on compassionate grounds and if he neglects to look after the family, are the other members entitled to have another compassionate appointment on the ground that the member who got the appointment is not extending any help to the family. These are some of the problems which have baffled me for which I am not able to get a satisfactory answer. It is evident that compassionate appointment is given to one of the members of the deceased family to tide over the sudden economic crisis facing the family on the sudden demise of the bread-winner in the belief that he would look after the family which was being done by the deceased and not as a hereditary right. If one or more numbers of the family are already employed, if cannot be said that the family is penurious. In that view of the matter, the fact that the two brothers of the petitioner got employment during the lifetime of the deceased father and that they are residing separately makes no difference and disentitles the petitioner from claiming appointment on compassionate grounds. Anyhow, I am not expressing any final opinion in this regard as this writ petition can be disposed of on two grounds, viz., the provision under circular and the resolution and the lapse of nearly 14 years from the date of the death of the deceased. I leave the matter there.
In view of what is stated above, I do not find any merit in this writ petition and it is accordingly dismissed.