Judgment:
Hima Kohli, J.
1. The present writ petition has been filed by the petitioner praying inter alias for a writ, order or direction to be issued to the respondent No. 2 Corporation to grant compassionate appointment to her son on a suitable post on account of the death of her husband, who was an employee of the respondent No. 2 Corporation.
2. Facts leading up to the present petition briefly stated, are as follows. The petitioner is the widow of late Shri. Ram Singh, who joined service with M/s. Bharat Petroleum Corporation Ltd., respondent No. 2 (hereinafter referred to as 'the respondent Corporation') in October 1981 and was confirmed in service in October, 1982. The husband of the petitioner met with an accident on 29th September, 1992. At the relevant time, all her four children were minor, the eldest son being 12 years of age. On 28th July, 1998, after attaining majority, Sh. Anil Kumar, eldest son of the petitioner applied for appointment on compassionate ground, and accordingly he was asked to appear for the written test/interview, which he failed to clear on various occasions. Hence he was not considered for compassionate appointment and in accordance with circular dated 8th October, 2001, a lump sum compensation of Rs. 50,000/- was offered by the respondent Corporation to the petitioner on compassionate grounds. It is this decision of the respondent Corporation to grant lump sum compensation to the petitioner instead of compassionate appointment to her son, that the petitioner seeks to challenge by way of the present petition.
3. Learned Counsel for the petitioner stated at the very outset that the petitioner herself being illiterate and having the responsibility of raising four minor children, could not apply for compassionate appointment, immediately after the death of her husband and it was only in July, 1998 that her eldest son could apply for compassionate appointment. It was stated that on being called for the written test, the son of the petitioner appeared for said test on 4th January, 2001 and even cleared the same. It was pointed out that the respondent Corporation had failed to produce the result of petitioner's son in the said test and thereforee an adverse inference ought to be drawn against the respondent Corporation on the said ground.
4. It was further submitted that the petitioner had refused to accept the amount of Rs.50,000/- as lump sum compensation offered to her family by virtue of the scheme floated by the respondent Corporation on 25th June, 2001, of which she was informed by way of circular dated 8th October, 2001, and thereforee her son cannot be precluded from being considered for compassionate appointment. Placing reliance on annexure B to the counter affidavit filed by the respondent Corporation, it was further urged by the learned Counsel for the petitioner that when the respondent Corporation had given compassionate appointment to the legal heirs of four out of a total of forty deceased employees since 8th March, 1994, the son of the petitioner should also have been considered for compassionate appointment by the respondent Corporation.
5. Contrary to the arguments of the petitioner, learned Counsel for the respondents stated that there is neither any scheme nor any instructions with regard to compassionate appointment in respondent Corporation and in absence of any such scheme, there is no right that vests in the legal heirs of a deceased employee to claim employment on compassionate grounds. Reliance in this respect was placed on the judgment of the Supreme Court in the case of S.B.I. versus Somvir Singh reported as : (2007)IILLJ230SC .
6. It was stated that the request made by the son of the petitioner for compassionate appointment vide his application dated 28th July, 1998 was considered purely on humanitarian grounds and he was asked to report for written test and interview for the post of Operator-V (F) on 23rd February, 1999 and accordingly he appeared for the written test and interview on 24th February, 1999, but after evaluating his performance in the said test, he was found unsuitable for the said post. It was stated that thereafter, pursuant to request letters of the petitioner's son dated 22nd February, 2000 and 7th September 2000, he was again given opportunities to appear in the tests on 25th February, 2000 and 9th October, 2000 respectively, which also he failed to pass.
7. To bring home the fact that the petitioner's son was well aware that he had failed in the previous exam, learned Counsel for the respondent Corporation placed reliance on a letter dated 22nd February, 2000 addressed by the son of the petitioner to the respondent Corporation wherein he stated that he was aware of the fact that he had failed in the interview held on 24th February, 2000 and requested for another opportunity to reappear in the written test/interview. Reliance was also placed on another letter dated 7th September, 2000 issued by the petitioner's son in which he had stated that he was willing to appear in the written test again on 9th October, 2000.
8. Counsel for the respondents also appraised the court of the fact that a Superannuation Scheme (Contributory Scheme) was introduced by the respondent Corporation in the year 1987, which was in existence at the time of death of the petitioner's husband, but for which he did not apply. However the petitioner became a member of another scheme, namely, the Death in Service Scheme, under which she is getting a monthly benefit of Rs. 1,376/- (50% of the last drawn salary of the deceased) which is to be paid to her till the notional date of retirement of her late husband, i.e., till 30th September, 2017. Also, a third scheme was introduced on 25th June, 2001 by which lump sum compensation of Rs. 5,00,000/- was offered to the dependents of those employees who died in harness due to reasons other than accidents and Rs. 50,000/- to the dependents of those employees who died in accidents and had got Accident Compensation and who could not be offered compassionate appointment, and vide circular dated 8th October, 2001 all such persons who had applied for such compassionate appointments were intimated of the said scheme. It was submitted that such a scheme was floated as the requirement for manpower had immensely reduced in the respondent Corporation in view of its restructuring, technological upgradation, SAP implementation and no new locations being covered.
9. It was further submitted that since the respondent Corporation never had any scheme for compassionate appointment, thereforee the petitioner cannot claim any right for compassionate appointment. It was only on humanitarian grounds that an opportunity was given to the petitioner's son to appear for the written tests/interview and he having failed to clear the same, could not be considered for appointment. It was also stated that from March 1994 to September 2003, only 4 legal heirs of deceased employees, out of 40, were given appointments on compassionate grounds, which shows that no injustice had been done to the petitioner or her son.
10. It was further urged by the Counsel for the respondent Corporation that the very purpose of granting compassionate appointment is to tide over the immediate financial crunch that the family has to face on the death of its earning member. However, in the present case, the first request for appointment on compassionate grounds was made only after six years of the death of the deceased employee and that ex facie, the application suffers on account of delay and laches. Reliance in this regard was placed on various judgments of the Supreme Court and this Court including the following:
(i) Umesh Kumar Nagpal v. State of Haryana and Ors. : [1994]3SCR893
(ii) Haryana State Electricity Board v. Krishna Devi : (2002)IILLJ773SC
(iii) Punjab National Bank v. Ashwani Kumar Taneja : (2004)IIILLJ536SC
(iv) National Hydroelectric Power Corporation and Anr. v. Nanak Chand and Anr. : (2005)ILLJ240SC
(v) Municipal Corporation of Delhi v. Vir Mohd. : 94(2001)DLT746
11. It was also contended that the petition itself suffers on delay and laches as the same was filed after two years of having received the letter dated 8th October, 2001 issued by the respondent Corporation by which the petitioner was informed that instead of compassionate appointment for her son, she could avail of the lump sum compensation of Rs. 50,000/-. It was also submitted by the Counsel for the respondent that the petitioner has already received gratuity and other retiral benefits of the deceased employee along with the Accident Compensation and is also in receipt of Rs.1,376/- on a monthly basis under the Death in Service Scheme, which is to show that the petitioner could not be in such an extreme financial crisis, so as to necessitate appointment of her son on compassionate grounds in the respondent Corporation.
12. Rebutting the aforestated contention of the respondent learned Counsel for the petitioner submitted that it was only upon receipt of the letter dated 4th July, 2002 issued by the respondent Corporation stating inter alias that she could receive lump sum compensation instead of compassionate appointment for her son, that a cause of action accrued and she came to this Court, and thereforee the petition is not bad for delay. It was urged that the application for compassionate appointment did not suffer on the grounds of delay and laches because the petitioner could not apply being illiterate and her son had applied immediately on attaining majority. It was also stated that the petitioner's son was refused to be appointed on compassionate grounds, not because he did not pass the said exams, but because the scheme had been changed and a new scheme for lump sum compensation had been introduced.
13. I have heard the Counsels for the parties and have carefully perused the pleadings and other documents, including the records of the case of the petitioner produced by the respondent Corporation. I have also given my thoughtful consideration to the rival contentions of both the parties.
14. Before weighing the merits of the arguments advanced by the parties, it is appropriate to note certain basic parameters as laid down by the Apex Court, that are to be kept in mind while dealing with the cases of compassionate appointment. While considering the case of compassionate employment, it is to be kept in mind that it is not unduly unfair to the rights of those other persons who are eligible to seek appointment against a post which would have been available but for the provision enabling appointment being made on compassionate grounds to the dependents of the deceased employee. Reliance in this regard can be placed on the judgment rendered by the Supreme Court in the case of State of Manipur v. Md. Rajaodin reported as : AIR2003SC3794 . Appointment on compassionate ground cannot be claimed as matter of right and such appointment cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. A claim for appointment on compassionate basis has been considered as reasonable and permissible keeping in view the sudden crisis occurring in the family of an employee who has served the state and died while in service. However the rules, regulations, administrative instructions and orders in this behalf must stand the test on the touchstone of Articles 14 and 16 of the Constitution of India. Appointment on compassionate basis is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the effect of the death of the employee while in service leaving his family without any means of livelihood. In such cases, the object is to enable the family to get over the sudden financial crisis. But again such appointments on compassionate ground have to be made only in accordance with the rules, regulations or administrative instructions and taking into consideration the family condition of the family of the deceased. Support is drawn from the following judgments:
(i) Umesh Kumar Nagpal v. State of Haryana : [1994]3SCR893
(ii) State of Haryana v. Rani Devi : AIR1996SC2445
(iii) State of Haryana v. Ankur Gupta : AIR2003SC3797
15. It is evident from the records and the submissions of the respondent Corporation that there never existed in the respondent Corporation, any scheme for granting compassionate appointment to the family members of its deceased employees. It was purely on humanitarian grounds, that such compassionate appointments were made in certain cases. Even the case of the petitioner's son was considered at the first instance, on humanitarian grounds only. thereforee in absence on any scheme or rules framed in this respect, there is no right vested in the petitioner or her son to claim any compassionate appointment. Reliance in this regard can be placed on the recent judgment of the Supreme Court in the case of S.B.I (supra), relevant extract of which is reproduced as under:
Para 10: There is no dispute whatsoever that the appellant-Bank is required to consider the request for compassionate appointment only in accordance with the scheme framed by it and no discretion as such is left with any of the authorities to make compassionate appointment de hors the scheme. In our considered opinion the claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules etc. framed by the employer in the matter of providing employment on compassionate grounds. There is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be.
16. It has been rightly argued by the Counsel for the respondent Corporation that the application preferred by the petitioner's son for compassionate appointment badly suffers on the ground of delay and laches. It is now a settled position of law that the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment. To be considered for such employment is not a vested right which can be exercised at any time in future. The object of compassionate appointment being to enable the family to get over the financial crisis which it faces at the time of death of the sole breadwinner, compassionate employment cannot be claimed and offered after a long lapse of time and after the crisis is over. This view has been taken by the Supreme Court in the case of Umesh Kumar Nagpal (supra) and has been reiterated time and again in various cases.
17. In several cases the courts have had an occasion to examine cases where at the time of the death of the employee, the children of such deceased employees were minors, and even though compassionate appointment was offered to the widow of the deceased, but the option of appointment is sought to be availed by such minor children on attaining the age of majority. In these circumstances, it has been observed that such applications were made not with the object of enabling the family to tide over the sudden crisis, but the purpose was to obtain employment out of turn, on compassionate basis for the applicant, which would ensure to him benefit for the whole of his life. It has been held that this is beyond the scope of Article 16 of the Constitution and cannot constitute a reasonable and intelligible differentia. Following judgments may be referred to in this regard:
(i) Rajender Poddar v. State of Bihar and Anr. 1991 Lan Cas 959
(ii) MCD v. Veer Mohd. 54 (2001) DLT 746
18. It is apparent that when an application is belated or delayed, the penury on account of the sudden demise of an employee dissipates and there would be no warrant or justification for violating the equalities guaranteed under Articles 14 and 16 of the Constitution. In Jagdish Prasad versus State of Bihar and Anr. reported as : (1996)ILLJ1105SC , compassionate appointment was sought by the son of a deceased employee who had died in harness and at the time of the death of the employee, the applicant was a minor of only about four years. It was held by the Apex Court that the applicant was not entitled to be appointed after he attained majority long thereafter and that if such a contention was to be accepted, it would amount to another mode of recruitment of the dependent of a deceased government servant which cannot be encouraged, dehors the recruitment rules. In Sushma Gosain v. Union of India reported as : (1990)ILLJ169SC it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the breadwinner in the family. Such appointments should, thereforee, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the Scheme itself envisages specifically otherwise, to state that as and when such minor becomes a major, he can be appointed without any time consciousness or limit.
19. The view taken in Sushma Gosain (supra) was reiterated in Sanjay Kumar versus State of Bihar reported as : AIR2000SC2782 , wherein the petitioner's mother died in harness when the petitioner was a minor, and it was held that the application of the petitioner for compassionate appointment eight years after the death of his mother, i.e., on attaining majority, was barred for being time barred. This position of law was again reiterated in the case of Md. Rajaodin (supra).
20. In the present case also, the son of the petitioner applied for compassionate appointment in July 1998 after attaining majority, i.e., after six years of his father's death. The Explanationn offered by the petitioner to the effect that she being illiterate and having the responsibility to raise four minor children, is not sufficient to explain the said gross delay in applying for compassionate appointment. Government jobs are not hereditary in nature and the purpose of compassionate employment is only to help the family of the deceased employee get over the sudden financial crisis and not to provide employment. The application of the petitioner's son for grant of compassionate employment is thereforee hopelessly barred by delay and to entertain such an application would amount to flouting the very object of giving compassionate appointments.
21. Reliance placed by the Counsel for the petitioner on the case of Balbir Kaur (supra) is misconceived. In that case, while interpreting the Family Benefit Scheme as introduced by the respondent Corporation therein in a Tripartite Agreement and the consequences thereof on the existing welfare measures as contained in an earlier Agreement and Circular pertaining to appointments on compassionate basis, the Supreme Court held that the family benefit scheme assuring monthly payment to the family of the deceased employee was not a substitute for compassionate appointment and, thereforee, compassionate appointment could not be denied on the ground that the family benefit scheme was available and that non-payment of gratuity and provident fund to the family at the time of death of the employee runs counter to the object of the beneficial legislation contained in the Payment of Gratuity Act and the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and that lump sum payment of provident fund is an insulating factor for the family to cope with the situation arising out of death of the employee. In the present case, there is no scheme existing in the respondent Corporation for compassionate appointment. Hence the question of the same being preserved in the face of the subsequent beneficial schemes floated by the respondent Corporation does not arise. Also, on facts, it may be noted that unlike the present case, in the said case, an application for compassionate appointment was made to the management within a period of one and a half months from date of the death of the deceased employee. The above judgment, thereforee, is distinguishable from the present case on facts as well as on law.
22. So far the argument of the petitioner to the effect that since the petitioner's son was called for interview pursuant to his application for compassionate appointment, the respondent Corporation cannot take the plea of delay at this stage is concerned, the same does not hold any water because fact remains that despite the same, perusal of the records produced by the respondent Corporation makes it manifest that the son of the petitioner was permitted to take the exams on three occasions and on all the three occasions, he failed to pass. The claim of the petitioner that her son appeared for the exams on 4th January, 2001, and passed is not borne out from the records. Relevant records produced by the respondent Corporation show that the petitioner had appeared for the written test/interview thrice, i.e., on 24th February, 1999, 25th February, 2000 and 9th October, 2000 when a last an final opportunity was given to him, but failed on all the three occasions. A bald averment of the petitioner to the effect that he had appeared for said test again on 4th January, 2001 and even got through the same, does not take his case any further, especially in view of the fact that nothing has been put on record to prove the said averment. Having failed in all the three tests, the petitioner's son has rightly been found to be unfit for the said appointment.
23. There is force in the contention of the respondent Corporation that the petitioner having already received all the amount due to her on account of Gratuity, leave encashment, EPF, GSLI, Accident Compensation and Ex-gratia/PIS along with the assured monthly sum to which she is entitled under the 'Death in Service' Scheme, there is no such financial crisis or extreme financial difficulty, to tide over on the basis of which the claim of her son for being appointed with the respondent Corporation on compassionate grounds can be sustained. In the case of Ashwani Kumar Taneja (supra), the Supreme Court has held that compassionate appointment should not be given where there is no financial hardship as the purpose and object behind the said appointment is to tide over sudden financial crisis. While determining and deciding this aspect, the Supreme Court held that retrial benefits have to be taken into consideration and cannot be ignored.
24. In view of the facts and circumstances of the case, and in light of the position of law as discussed hereinabove, there is no force in the present petition and the same is dismissed being devoid of merits. However, liberty is given to the petitioner to apply to the respondent Corporation for grant of lump sum compensation of Rs. 50,000/- offered to her under the 'Lump sum Payment in Case of Death While in Service' Scheme dated 25th June, 2001. In case the petitioner applies under the said Scheme, the respondent Corporation is directed to consider her application and process the same in accordance with law as expeditiously as possible. There shall be no order as to costs.