Judgment:
ORDER
A.N. Venugopala Gowda, J.
1. The father of the petitioner, Sri Mari @ Mariappa, was working as a Mechanic Grade-II, in the formerly known, the Karnataka Power Transmission Corporation Limited, which was subsequently divided into different companies and the service of the said person was allotted to the newly established Chamundeshwari Electricity Supply Company Limited. While In service, he died on 19.11.1999 leaving behind him, his wife, 4 sons and 2 daughters. The petitioner is the 4th son of the deceased who at the time of his father's death, was aged about 20 years and had passed PUC and also completed in course. The petitioner submitted a representation to the respondents to consider his case for appointment on compassionate grounds, considering which, he was informed to furnish the Information in respect of the matters relating to the family composition, assets and Income of the family of the deceased and other related matters. The petitioner furnished the Information and the respondents conducted Investigation to find out the status of the family of the petitioner and their Vigilance Officer submitted a report. The respondents Issued an endorsement dated 12.4.2002 (Annexure-E), declining to extend appointment on compassionate grounds to the petitioner on the ground that, two of his elder brothers are in the employment under the State and In such circumstances, there Is no provision to provide employment on compassionate ground. According to the petitioner, the said endorsement Is Irrational, arbitrary, capricious, discriminatory and also contrary to the provisions of the Rules governing the appointment on compassionate grounds by the respondents. Annexure-F is the notification dated 17.4.1997 Issued in exercise of powers conferred under Section 79 r/w Section 59 of Electricity (Supply) Act, 1948, whereby, the Karnataka Electricity Board ('Board' for short) has made the Regulations called, Karnataka Electricity Board Employees' Recruitment (Appointment on Compassionate) Regulations, 1997 ('Regulations' for short). According to the petitioner, Clause (4) of the said Regulations, does not prohibit the Board from appointing a son or daughter of the deceased employee of the Board, If any other sons or daughters of the deceased employee are employed elsewhere and rejection on that ground, Is illegal. Petitioner has further stated that, after the receipt of the endorsement dated 12.4.2002, his mother submitted a representation dated 18.2.2002 for re-consideration and since the matter was not reconsidered and an appropriate order was not passed, this writ petition was filed.
2. Notice of the writ petition was ordered to the respondents, who have entered appearance through counsel.
3. I have heard Sri M. Subramanaya Bhat, learned Counsel for the petitioner and Sri Aravind Kumar, learned Counsel for the respondents and perused the record.
4. Sri M. Subramanaya Bhat, contended that, the endorsement issued by the respondents to the petitioner declining to grant appointment on compassionate grounds, despite the recommendation/report of the Vigilance Officer, solely on the ground that, the two elder brothers of the petitioner are in government employment and therefore Regulations do not provide for an appointment on compassionate grounds, Is unjustified, arbitrary and illegal. He contended that, a perusal of the Regulations makes it manifestly clear that, there is no bar or restriction as such placed in the Regulations to deny appointment on the grounds stated in the Impugned endorsement and hence, the action of the respondents is arbitrary and illegal. He contended that, providing an appointment on compassionate grounds to a dependent of the deceased employee, is to give some sort of security to the family of the deceased, to overcome the hardship caused to the family and the respondents by the Impugned action, have defeated the very purpose and the scheme of appointment on compassionate grounds. He contended that, the petitioner and his mother are residing separately, they are not getting any financial help or assistance from the elder brothers of the petitioner and their separate residence can also be seen from the ration card produced at Annexure-H and hence there was no bar for the respondents to have considered the case of the petitioner. Learned Counsel contended that, the Impugned action of the respondents is violative of Articles 14, 16, 19 and 21 of the Constitution of India and also the Regulations. Relying on a decision of this Court in case of K. Raja v. Karnataka Electricity Board reported In : ILR1990KAR1368 it was vehemently contended that, the impugned endorsement is liable to be quashed and the respondents appropriately directed in the matter, to grant appointment to the petitioner.
5. Per contra, Sri. Aravind Kumar, contended that, the appointment on compassionate grounds cannot be claimed as a matter of right and shall not be given as a matter of course and is required to be considered subject to the fulfillment of conditions stipulated under the Regulations. He contended that, the report of a processing authority is not binding on the competent authority and the case of petitioner for appointment on compassionate grounds has been considered by the respondents In terms of the Regulations and since it found that, his 2 elder brothers are already in Government service, earning more than the prescribed amount and the family has income beyond the stipulated limit, the claim was found to be not permissible as per the Clause 4(1)(a) of the Regulations and consequently the impugned endorsement was issued. He placed reliance on the order dated 1.9.1999 passed in W.P. 31522/1999 which was affirmed in the judgment passed on 19.7.2000 In WA7074/1999 in case of Sri. Ravinder Vasanth v. The Karnataka Electricity Board. He pointed out that, an identical situation had arisen for consideration in the said case and this Court taking into consideration the income of the family members, declined to extend the relief. He pointed out that, the family has survived for more than 9 years and hence also, appointment on compassionate grounds cannot be extended to the petitioner. He further pointed out that, the petitioner's mother received service benefits and is in receipt of family pension and the family of the petitioner is not in penury and the claim made being contrary to the Regulations and the law, well settled by the pronouncements of the Apex Court and this Court, no case is made out to hold that, the Impugned endorsement is either arbitrary or Illegal, calling for Interference.
6. Considering the rival contentions, the short question that arises for my consideration is:
Whether the Regulations permit for an appointment on the death of an employee, to one of the dependents of the deceased employee, if some other member of the deceased family, is already in Government service or has income beyond the prescribed limit
7. Indisputably, the deceased has left behind him, his widow, 4 sons and 2 daughters. It is also not in dispute that, 2 elder brothers of the petitioner are in Government service, out of whom, one is employed in the establishment of respondents and the other in the Railways. The 3rd brother is also employed in a private establishment. The petitioner is the last son of the deceased. Widow of the deceased is in receipt of the family pension and she has also received the terminal benefits. The death of the petitioner's father has taken place on 19.11.1999, i.e., more than 9 years ago.
8. The object of providing employment on compassionate grounds on the death of an employee while in service is to enable the family to get over the financial crisis, which It faces at the time of death of the sole bread winner. The compassionate employment cannot be claimed nor offered as a matter of right and course, whatever be the circumstances In the family. Regulations clearly state that, appointment on compassionate grounds shall not be claimed as a matter of right and shall not be given as a matte of course and the appointment under the Regulations is restricted to the dependent of the deceased In the order of preference indicated in Regulation 3(2)(a) to (c). Regulation 4 stipulates the conditions of appointment, which states that, appointment on compassionate grounds shall be subject to the following conditions, namely;
(1) The family of the deceased Board employee should be in a immediate financial crisis, destitution on account of the death of the employee.
Explanation:
(a) Family of a deceased board employee shall be considered to be in financial crisis destitution if the recurring monthly income of the family from all sources of all persons whether living separately or jointly including earnings of other family members shall be less than the Income prescribed by the board from time to time for calculating such monthly Income the Income from family pension, Interest earned on pensionary benefits shall be excluded.
9. There is no dispute that, the respondents are required to consider the request for appointment on compassionate grounds only In accordance with the Regulations and that, no discretion as such, is left with the respondents to make compassionate appointment, dehors the Regulations. The claim for compassionate appointment and the right, is traceable only to the Regulations which has been framed by the respondents In the matter of providing employment on compassionate grounds. There is no right of whatsoever nature to claim the compassionate appointment on any other ground other than the one, conferred by the respondents by way of the Regulations. The Regulation for appointment of dependents of the deceased employee on compassionate grounds framed by the respondents inter alia provides that, in making assessment of the financial condition of the family, it is an important criterion for determining the eligibility for compassionate appointment. It is also stipulated that, the family of the deceased employee should be in Immediate financial crisis or destitution, on account of the death of the employee and in considering whether the family of the deceased is in financial crisis, Income from all sources of all persons, whether living separately or jointly, Including earnings of other family members, shall be less than the Income prescribed by the Board and in case any member of the family of the deceased Board employee is employed in a State or Central Government service or a public or private sector undertaking or a private establishment, on the basis of certificate issued by the employer and in case such member is self-employed on the basis of the certificate issued by the revenue officer not below the rank of the Tahslldar, should be taken into consideration. Thus the emphasis of the Regulations is the Immediate financial crisis faced by the family of the deceased employee and whether the family has the prescribed minimum Income.
10. Respondents while considering the application of the petitioner have taken Into consideration the fact that, 2 of the elder brothers of the petitioner are In employment under the State and the Central Government and have found that, the dependents of the employee who died In harness are not in penury and without any means of livelihood. The endorsement at Annexure-E has been issued by the respondents after examining the claim for compassionate appointment in terms of the Regulations. The Regulations mandate that, the competent authority to take the income of all the family members whether living separately or jointly, to decide the financial crisis in the family. In the Instant case, such a course of action has been followed before the Impugned endorsement at Annexure-E was Issued. Hence, the respondents have not committed any error.
11. In the case of Ravi Vasanth (supra), which was filed against the respondents herein, learned Single Judge has held that, compassionate appointment is an exception to the general rule and cannot be granted unless family faces a financial crisis on account of the death of the bread winner. Taking Into consideration the facts of the case therein, It was held that, the family of the deceased consisted of himself, his wife and 2 sons and the deceased was an employee of the Board and Ms wife was employed in the Railways and on of his sons Is employed ft Defence and considering the fact that mother of the petitioner was earning, salary and the scheme provided that the Income from all sources should ha taken into account for the purpose of ascertaining whether the family Income la Rs. 6,000/- p.m. and having found that the Income of the firmly has more than the said stipulated amount, it has held that, the petitioner is not entitled to seek appointment on compassionate grounds. Said decision was upheld by the Division Bench by holding that, the appointment on compassionate grounds has to be given to a family to over come the immediate need, where the family is not adequately provided for. Noticing the fact that, the family of the appellant was adequately provided for, since his mother was employed and was getting salary of Rs. 6,000/-p.m., it was held that, appellant was not entitled to the appointment on compassionate grounds, thereby bypassing the procedure for getting employment through competition. Thus, it is dear that, the income of the family as stipulated in Regulation 4(1)(a), is the main criteria, should be taken into consideration in considering the claim for appointment on compassionate grounds. Said course of action, has been followed by the respondents while examining the claim of the petitioner and in Issuing the impugned endorsement.
12. In the case of State Bank of India and Anr. v. Somvir Singh reported In : (2007)IILLJ230SC . It has been held as follows:
It is well settled that the hardship of the dependant does not entitle one to compassionate appointment dehors the scheme or the statutory provisions as the case may be. The income of the family from all sources is required to be taken into consideration according to the scheme which the High Court altogether ignored while remitting the matter for fresh consideration by the appellant Bank. It is not a case where the dependants of the deceased employee are left 'without any means of livelihood' and unable to make both ends meet The High Court ought not to have disturbed the finding and the conclusion arrived at by the appellant Bank that the respondent was not living hand-to-mouth. As observed by this Court In G.M. (D&P;B) v. Kuntt Tiwary : (2004)IIILLJ1136SC the High Court cannot dilute the criterion of penury to one of 'cannot very well-to-do'. The view taken by the Division Bench of the High Court may amount to varying the existing scheme framed by the appellant Bank. Such a course is impermissible in law.
13. In the case of State Bank of India and Ors. v. Jaspal Kaur reported in (2007) 2 SCC (L&S;) 578, it has been held as follows:
23. Hence a major criterion while appointing a person on compassionate grounds should be the financial condition of the family the deceased person left behind. Unless the financial condition is entirely penurious, such appointments cannot be made.
14. In the case of State of H.P. and Anr. v. Jafli Devi (SMT) reported In : (1997)5SCC301 , the fads were that, a writ petition had been filed by the widow contending that, her husband had died in harness and that she had applied for appointment to her son on compassionate grounds, which was rejected on the ground that, one of the sons of the deceased employee was already in Government service and another son could not be given appointment on compassionate grounds. Writ petition was allowed by the High Court and when the order was questioned in the Hon'ble Supreme Court by contending that, appointment cannot be given in view of the fact that, another son of the deceased was already In Government service and that the High Court has erred In allowing the writ petition, Hon'ble Supreme Court after noticing the decision in the case of LIC v. Asha Ramchhandra Ambekar : (1994)IILLJ173SC , has held that, the High Court appears to have been Influenced by sympathetic consideration and hardship of the respondents to make a departure from the policy laid down by the Government and under the policy, the second son of the respondent could not be given appointment on compassionate grounds since another son of the deceased employee was already in Government service. It was held that, having regard to the said policy of the Government, the application for appointment on compassionate grounds was rightly rejected by the employer and that the High Court has erred In setting aside the order passed by the employer and directing consideration of the case for appointment on compassionate grounds.
15. In the case of Sail and Anr. v. Awadhesh Singh and Anr. reported in : (2001)ILLJ163SC , the contention of the employer was that, circular providing for compassionate appointment explicitly makes It dear that, the question of compassionate appointment would not arise if one of the dependents of the deceased is already In service. It was contended to the contrary by the dependents of the deceased employee. Considering the submissions of both sides and the question which arose for consideration viz., whether the memorandum of agreement, is it permissible for the dependant of the deceased to claim an appointment on compassionate grounds, even when some other dependent of the deceased is already in service, it has been held as follows:
The memorandum of agreement for appointment on compassionate ground had been evolved by the employer so that on the sudden death of an employee his dependants would not be on the road as destitutes and can maintain themselves if an appointment is given to any one of the dependants of the deceased. Such a Scheme cannot at all be conceived if some other dependants of the deceased is already In service, The very purpose for which such Scheme had been evolved would get frustrated if a claim on priority basis is made by the tact that the other dependant of the deceased is already in service. In this view of the matter we are unable to sustain the decision of the Patna High Court in the impugned judgments. It may be stated that a Bench of this Court has already taken a similar view In the case of S. Mohan v. Govt. of T.N. : (1999)ILLJ539SC with which we have our respectful concurrence.
(Emphasis supplied by me)
16. As already noticed, the father of the petitioner has died on 19.11.1999; that his 3 elder brothers are in employment; his mother has received service benefits and is in receipt of the family pension. More than 9 years has elapsed from the date of death and the family has over come the crisis if any for all these years. Taking into consideration the intervening period, whether It is permissible to direct the appointment on compassionate grounds is another question which requires to be answered?
17. Considering the stipulation made In Regulation 5 to the effect that, application for appointment shall be made within one year and the competent authority shall as for as possible issue appointment within three months indicates the reason that, the family being in dire financial crisis, it should be enabled to survive. In the instant case, considering the fact that, 9 years have already elapsed and the income of the family of all the members, whether living separately or jointly, that should be reckoned, the petitioner is not entitled for consideration of his claim for appointment on compassionate grounds at this length of time.
18. It is appropriate to notice the decision in the case of S. Mohan v. Government of T.N. and Anr. reported in (1998) 9 SCC 485, wherein It has been held as follows:
The question, however, is whether in the facts and circumstances set out, could the appointment of the appellant have been made on compassionate grounds after a lapse of 10 years from the date of the death of his mother. Secondly, whether the circumstances justify the appointment of the appellant on compassionate grounds. On the first question, this Court, in the case of Umesh Kumar Nagpal v. State of Haryana : [1994]3SCR893 has observed that 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 breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. In the present case, at the time of the death of the mother, she was not the sole breadwinner of the family. Two sons were already employed and the father was receiving a small pension. The appellant sought employment on compassionate grounds after a lapse of 10 years. It was, therefore, obvious that there was no immediate financial crisis in the family which would warrant any out of turn appointment of the appellant on compassionate grounds. The financial crisis, if any, caused by the death of the mother was 10 years prior to the application of the appellant. At the time of the death of his mother, the appellant was around 12 or 13 years of age and his two brothers were employed. Looking to ail the circumstances, the Government had rightly refused to give him appointment.
19. In the case of Sanjay Kumar v. State of Bihar and Ors. reported in : AIR2000SC2782 , the facts were that, the petitioner was 10 years old when his mother died, while she was working as the Excise Constable; the petitioner made an application soon after the death of his mother seeking appointment on compassionate grounds and it was rejected as time barred and a fresh application was filed which was also rejected with the same reason, questioning which, writ petition was filed in the High Court, where relief was not granted and the matter when carried to the Hon'ble Supreme Court, it has been held as follows:
3. We are unable to agree with the submissions of the learned Senior Counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education v. Pushpendra Kumar : [1998]3SCR432 . It is also significant to notice that on the date when the first application was made by the petitioner on 2-6-1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief.
20. The decision In the case of K. Raja (supra), on which strong reliance was placed by the learned Counsel for the petitioner, is not of assistance to the petitioner. The decision rendered therein was based on consideration of O.M. No. KEB/B5/721/80-81 dated 16.4.1986. Considering the said O.M. which governed the claim for appointment on compassionate grounds where the dependents of the employee who died during the tenure of his employment, it was held that, in terms of the said O.M., an appointment on compassionate grounds can take place not withstanding the former employment of the son of the deceased employee of the Board. There is no similarity between O.M. dated 16.4.1986 considered In the case of K. Raja (supra) and the Regulations at Annexure-F herein. In the Regulations It has been made dear that, the income of the family from all sources of all persons, whether living separately or jointly, is the criteria, which was not the criteria in O.M. dated 16.4.1986, which was the basis for consideration of the prayer in the case of K. Raja. The said O.M. was not in force on the date the petitioner's father died. In view of the fact that, the claim made herein is not based on the O.M. dated 16.4.1986, but was on the basis of the Regulations (Annexure-F), the said decision has no application, for consideration of claim of the petitioner for appointment on compassionate grounds. Hence, based on the decision in the case of K. Raja the claim of the petitioner was not required to be considered by the respondents and hence cannot also be considered by me.
21. Since the application for appointment on compassionate grounds was required to be considered by the respondents in terms of Regulations notified on 17.4.1997 and the case of the petitioner has been considered accordingly and the respondents having found that, 2 of the petitioners elder brothers are in Government employment and the total income of the family being above the prescribed limit, the petitioner has been informed that, he is not entitled for appointment on compassionate grounds. The consideration by the respondents being in accordance with the Regulations and the law declared by the Hon'ble Supreme Court, the impugned endorsement Is flawless.
22. For the foregoing discussions and reasons, the writ petition is devoid of merit and is dismissed accordingly. No costs.