1. As can be derived from the Original Application, late Shri Rajendra Singh was appointed as Helper in Doordarshan Maintenance Centre (DMC) Radhika Vihar, Krishna Nagar, Mathura w.e.f. 27.01.1992. While still in service, he expired on 17.10.2002 leaving behind applicants and other family members. In view of sudden death of applicant in harness, respondent No.4, i.e. Station Engineer (Kendra Abhiyanta) Prasar Bharati enabled applicant No.2 to put forth the claim of dependent of late Shri
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Rajendra Singh for employment on compassionate ground. Applicant No.2 processed and espoused the candidature of applicant for such appointment on the post of Helper or any other post in Group D category in Broadcasting Corporation of India (DMC). Vide his letter No. DMC/MTR/14(4)/2003-S/229 dated 23.04.2003, respondent No. 4 forwarded such claim of applicant to respondent No. 2 for suitable action. With reference to DG, DD, ND OM No.3/27/2004-SII (A)/501 dated 11.04.2005, the DMC, Mathura obtained status report in respect of applicant and forwarded the same to DG, Doordarshan, Copernicus Marg, New Delhi. Such details placed on record as Annexure 4 to Original Application read as under:-
vi) Medical factors like any handicap .. Nil etc of the dependants.
vii) Other family circumstances. No a) Jitendra Kumar 21 yrs son of daughters/Sons, whether minor b) Mahesh Kumar 17 or major, marriageable daughters
c) Ravindra Kumar 11 etc.
d) Km. Manisha 10 daughter
e) Hubb Lal dependent father of late Sh. Rajendra Singh Age about 78 yrs.viii) Total terminal benefits separately for each item such as Family Pension .. 1585/- P.M. D.C.R.G. .. 56816/-
G.P.F. .. 34715/- CGEIS .. 16830/- Leave encashment .. 16654/-
ix) Any other sources of income of the dependent .. NIL
x) Whether any dependent is working .. No anywhere
xi) Whether any immovable or movable only two rooms in 70 Sq with has been acquired by the family and let bath is available for residence any annual income earned there from purpose and except this no agri- by family culture land or any other source income is available.
xii) Total assets of the family as a whole, at the No income earned except monthly pension.
Having received no response from respondents regarding their claim for employment of applicant No. 1 on compassionate ground, applicants made representation dated 19.01.2006 to Station Engineer (Kendriya Abiyanta), Broadcasting Corporation of India, Doodarshan Maintenance Centre,
OA 4340/2011 Radhika Vihar Krishna Nagar, Mathura for giving him compassionate appointment on a suitable post. Having received no response to said representation, applicant filed OA No. 1166/2006 before the Allahabad Bench of this Tribunal. In compliance of the order passed by Honble Chairman in Petition for Transfer under Section 25 of Administrative Tribunals Act, 1985, said OA was transferred to Principal Bench and was registered as OA No. 4340/2011. Learned counsel appeared in support of Original Application read out the OA and annexures. The salient grounds raised by applicant in the Original Application are:-
(i). Sudden demise of late, Shri Rajendra Singh, employed as Helper in Maintenance Centre of Broadcasting Corporation of India generated a cause of action in favour of applicant to claim employment on compassionate ground as Helper in said Centre. At the time of death of late Shri Rajendra Singh, applicant no.1 was major and other wards of late Shri Rajendra Singh were minor, thus applicant no.2 espoused candidature of applicant No.1 for compassionate appointment.
(ii).Various representations made by applicant No.2 for compassionate appointment of applicant No1 received no response from respondents. Letter dated 30.12.2002 sent by respondent No. 4 to applicant No.2 asking her to submit duly filled up proforma regarding the employment of dependent of late Shri Rajendra Singh, on compassionate ground generated a right in favour of applicant No.1.
(iii).From letter No. DMC/MTR/14 (4)03-S/167 dated 18.3.05 authored by Assistant Engineer (Incharge), DMC Mathura addressed to Director General, it is apparent that the claim of applicant for
OA 4340/2011 compassionate appointment is genuine and warranting.
(iv). Applicant No. 1 is suitable and entitled to be appointed as Helper or to any post in Group D category in Prasar Bharati (Broadcasting Corporation of India), Doordarshan Maintenance Centre, or in some other department of said Corporation.
2. In opposition of the Original Application filed by applicant, respondents have filed a detailed counter reply, pleading therein:
(i) In terms of G.I.,Dept. of Per.and Trg., OM No.14014/6/94-Estt.(D), dated the 9th October, 1998, while considering the request for appointment on compassionate grounds, a balanced and objective assessment of the financial condition of the family has to be made by taking into account its assets and liabilities, including the benefits received under the various welfare schemes and all other relevant factors such as the presence of an earning member, size of the family, age of the children and the essential needs of the family of deceased Government servant.
(ii) The offer of compassionate appointment is to be made only to member of such bereaved family which is in destitution and to assess the destitution, the Planning Commission figures of poverty line that is income below Rs.1767.20 for a family has to be used as a yardstick.
(iii) In terms of G.I., Dept. of Per. and Trg. OM No. 14014/18/2000-Estt. (D), dated the 22nd June, 2001, the Committee constituted for grant of compassionate appointment should limit its recommendation to really deserving cases and restrict such recommendations only to the number of vacancies available during the particular year in the concerned Ministry.
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(iv)As per G.I.Dept. of Per. and Trg., O.M.No. 14014/19/2002-Estt (D), dated the 5th May, 2003, the maximum times a person can be considered for compassionate appointment is three.
(v) Appointment on compassionate ground has to be limited to 5% of vacancies against direct recruitment quota in Group C and D categories.
(vi)In terms of the law declared by Hon’ble Supreme Court in the case of U.K. Nagpal Vs. State of Harynana and Others (JT 1994)(3)SC 525), appointment in public service should be made strictly on the basis of open invitation of application and merit while the appointment on compassionate ground is an exception to the Rule and the same should be made to the minimum of extent, say one or two percent or maximum five percent.
(vii)Compassionate appointment cannot be granted after a lapse of reasonable time and is not vested right which can be exercised at any time in future.
(viii) In terms of the law declared by Hon’ble Supreme Court in the case of Himachal Road Transport Corporation Vs. Dinesh Kumar (JT1996 (5) SC 319) and Hindustan Aeronautics Limited Vs. Smt. Radhika Thirumalai ( JT 1994 (9) SC 197), appointment on compassionate ground can be made only if a vacancy is available for the purpose.
(ix) In view of the law declared by Hon’ble Supreme Court in the case of LIC Vs Mrs. Asha Ram Chandra Ambekar and Ors (JT 1994 (2) SC 183), High Court and Administrative Tribunals cannot give direction for appointment of a person on compassionate ground but can direct for consideration of claim for such an appointment. OA 4340/2011
(x) Also in terms of OM No.14014/23/99-Estt (D) dated 03.12.1999, the Committee considering a request for appointment on compassionate ground should take into account the position regarding availability of vacancy for such incumbent in a really deserving case and only if a vacancy meant for appointment on compassionate ground is available within ceiling of 5 % then such appointment should be approved.
(xi) Applicant could not be offered appointment on compassionate ground as no vacancy within five percent quota within three years of the death of concerned Government employee was available, as a result the name of applicant has been deleted from the wait list of members of bereaved families waiting for compassionate appointment.
(xii) The bereaved family of deceased employee (applicants) received Rs.56816 as DCRG, Rs. 34715 as GPF, Rs. 16830 as DCE insurance and Rs. 14454 as encashment of leave, rest apart the family pension of Rs.1585/-plus DAR P.M. which is sufficient for survival of applicant
(xiii) The bereaved family is living in their own house.
(xiv) Compassionate appointment cannot be claimed as a matter of right.
(xv) The concerned Committee in its meeting dated 25.08.2005 recommended for closing the case of applicant along with other similarly placed person and the decision of the Committee was communicated to Doordarsan, Maintenance Centre, Mathura vide DGDO O.M.No. 3(34)/2004 S-II (A) dated 19.09.2005.
(xvi) Applicant was engaged to work as casual worker on contract basis and not on temporary basis.
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3. From the pleadings and material available on record, the following propositions arise to be determined by this Tribunal.
Whether applicants have any legal right for compassionate appointment of applicant of applicant No.1 in Broadcasting Corporation of India.
Whether in terms of OM dated 5.5.2003, the claim of applicants/dependent members of bereaved family was to be considered for compassionate appointment thrice or during three years after the date of death of deceased employee before being closed.
Whether in case of non-availability of vacancies within five percent quota within three years or during three considerations after the date of death of deceased employee, the claim of his dependent for compassionate appointment should be closed.
Whether the family circumstances of the applicant warranted consideration for appointment on compassionate ground.
4. In order to determine the first proposition it may be pertinent to refer to Article 309 of the Constitution subject to which Acts of the appropriate Legislature may regulate the recruitment and conditions of services of persons appointed to public services and posts in connection with the affairs of the Union or any State. In terms of proviso to said Article, it is competent for the President or such person, as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor of a State of such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment and the conditions of service of person appointed to such services and posts until the provision in that behalf is made by or under an act of appropriate Legislature under said Article. As is ruled by
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Hon’ble Supreme Court in Comptroller and Auditor General of India and Others Vs. Mohan Lal Mehrotra and Others (1992) 1 SCC 20), the administrative order cannot be issued in contravention of the statutory rules but it could be issued to supplement the statutory rules. Paras 12 and 13 of said judgment read as under:
“12. The High Court is not right in stating that there cannot be an administrative order directing reservation for Scheduled Castes and Scheduled Tribes as it would alter the statutory rules in force. The rules do not provide for any reservation. In fact, it is silent on the subject of reservation. The Government could direct the reservation by executive orders. The administrative orders cannot be issued in contravention of the statutory rules but it could be issued to supplement the statutory rules. (See: the observations in Santram Sharma v. State of Rajasthan, (1968) 1 SCR 111 : (AIR 1967 SC 1910). In fact similar circulars were issued by the Railway Board introducing reservations for Scheduled Castes and Scheduled Tribes in the Railway services both for selection and non selection categories of posts. They were issued to implement the policy of the Central Government and they have been upheld by this Court in Akhil Bhartiya Soshit Karamchari Sangh (Railways) v., Union of India, (1981) 1 SCC 246 : (AIR 1981 SC 21,18).
13. The High Court has also touched upon the validity of the impugned circular and stated that they were not issued by the President after consultation with the Comptroller and Auditor General. In the present case, the President has not issued the circular, but Comptroller and Auditor General has issued it. There was however, proper consultation between the Government and the Comptroller and Auditor General for issuing the circular. The infirmity pointed out that it was not issued in the name of the President, therefore, relates only about the form and not with regard to the substance. The circular of course, ought to have been issued in the name of the President as required under Article 148(5) of the Constitution, as it affects the service conditions of persons in the Audit and Accounts Department. But since the Government has approved the circular and the circular was in accordance with the declared Policy of reservation, we do not want to restrain the Comptroller and Auditor General from enforcing it.
It has been held in N.T.Devin Katti Vs Karnataka Public Service Commission ( AIR 1990 SC 1233) by making an application for a post pursuant to an advertisement, a person does not acquire any vested right to be appointed to that post and he acquires only a right to be considered for selection in accordance with the advertisement. The eligibility of a
OA 4340/2011 candidate for selection for a post depends upon his fulfilling the eligibility stipulated in the Recruitment Rules existed on the date of advertisement for recruitment. Having guaranteed equality of opportunity in matter relating to employment and prohibition against discrimination under Article 16(1) and (2) respectively, in respect of other matters relating to conditions of service directly under the Union and the State the Constitution contained specific provision relating to their tenure and conditions of service. In respect of other authorities other than the services under the Union and the State, the matter is left to be regulated either by statutes or statutory rules or regulations required to be framed by the Government or any other authority on whom the power is conferred by the concerned statutes. Part XIV of the Constitution (Article 309 to 314) contains general provisions relating to regulation of recruitment and conditions of service including tenure of service relating to the services under the Union and States. The word State in part XIV has a different connotation than the word State; used in Part III. The definition of the word State in Article 12 is an enlarged definition within which all local or other authorities within the territory of India as well as the authorities under the control of Government of India stands included. But the word State in part XIV only means the States specified in first scheduled of the Constitution.
5. Besides the general provisions contained in Article 309, 310, 311 and 313 for regulating recruitment and conditions of service and conditions relating to tenure of office respectively special provisions have been incorporated in the Constitution in respect of recruitment and conditions of certain services having regard to the importance of those services in Article 98 (3), 146 (2), 148 (5), 187(3), 229 (2), 233, 234, 235, 312 and 318 (b),
OA 4340/2011 thus the recruitment to a particular service is to be regulated in terms of the statutes or statutory rule or regulations required to be framed by Government or any other authority on whom the power is conferred by the concerned statutes. Even such persons who satisfy the eligibility condition mentioned in such rules or regulation do not acquire any vested right to be appointed to a post, recruitment to which is regulated in terms of said Rule and he acquires only a right to be considered for selection, according to the laid down procedure. In the circumstances a member of bereaved family of a deceased Government servant who is not covered by the method of recruitment for a particular post and does not satisfy the eligibility condition for the same as mentioned in Recruitment Rules cannot be said to have acquired any legal right for appointment to such post. The equality of opportunity in the matter relating to employment under the State guaranteed under Article 16 (1) and the prohibition against discrimination on the ground mentioned in clause (2) of Article 16 covers the entire field relating to appointment under the State. Clause (4) of said article makes an exception and enables the State to make special provision for reservation of appointment or posts in favour of backward classes of citizen who in the opinion of the State are not adequately represented in the services under the State. The expression backward class in clause (4) of Article 16 includes scheduled castes and scheduled tribes declared as such under Articles 341 and 342 of the Constitution as also other educationally and socially backward classes. When such exception is made in favour of backward classes, the same is not made in favour of dependent of such Government servant who expires while in service. Besides poverty is not the sole test of backwardness nor merely educational social backwardness makes a class of citizens backward. The class identified as a class, namely homogeneous section of the people grouped together because of certain likeness or
OA 4340/2011 common traits and who are identifiable by some common attributes such as status, rank occupation, residence in a locality, race, religion and the like, must be both educationally and socially backward class. Invariably the Recruitment Rules (RRs) for any post in any category do not include compassionate appointment as mode or method of recruitment. Nor any quota is ever suggested in any set of Rules for compassionate appointment. It is so because the claim for compassionate appointment is an unforeseen situation and the civil rules normally do not envisage uncertainty. May be with so much emphasis on exceptional provision of Constitution i.e. Article 16 (4) which enables the State to make special provision for the reservation of appointment or posts in favour of any backward classes of citizen not adequately represented in the services under the State, appointment of an individual or individual from a class or category has taken shape of Welfare Scheme or policy. However, if the real and true object of public/Government service is to be achieved, the rule of recruitment and condition of such service should not be framed and adopted like Scheme of Welfare for those who are to be inducted in such services. Those who join public/Government service under the Union or State in any capacity in any department are expected to serve the public and nation. The Welfare of nation/public in general/population of the country depends upon the merit and efficiency of public servant who have important role to play in making policies for their Welfare and implementation of the same. Thus, in the matter of recruitment to public/Government service of Union or State, efforts should be made to select and appoint efficient, meritorious, competent and honest person than to burden such services by appointing inefficient person in the name of reservation and compassion. Such persons who need or expect reservation and compassion for their own social economical and educational
OA 4340/2011 advancement may least contribute to such advancement of nation and the country. When the welfare steps are essential for advancement of certain socially economically and educationally backward individual and classes, it can be done by giving them other kind of aids like opportunity of counselling and better education by making appropriate Scheme. Even when their welfare is to be taken care of by giving them job, due care need to be taken to ensure that the such reservation does not adversely affect efficiency of concerned service.
6. In terms of general instructions issued vide G.I.Deptt. of Per. and Trg., O.M. No. 14014/6/94-Estt.(D), dated the 9th October, 1998 amended from time to time, a comprehensive Scheme has been issued by Government of India with the object to grant appointment on compassionate ground to a dependent family member of a Government servant dying in harness or retired on medical grounds, thereby leaving behind his family in penury and without any means of livelihood to relieve the family of the Government servant concerned from financial destitution and to help it to get over the emergency. In terms of the said Scheme, Joint Secretary in-charge of Administration in the Ministry/Department concerned, Head of the Department under the Supplementary Rule 2 (10) in the case of attached and subordinate offices and the Secretary in the Ministry/Department concerned in special type of cases are competent to make compassionate appointment. Appointment on compassionate ground can be made in Group “C” or “D” posts against the vacancies in direct recruitment quota. Only such person who is member of indigent bereaved family deserving immediate assistance for relief from financial destitution and suitable for a post in all respects under the provision of relevant RRs is eligible for appointment on compassionate ground. However, compassionate
OA 4340/2011 appointments are exempted from observance of the following requirements:-
(a) Recruitment procedure, i.e. without the agency of the Staff Selection Commission or the Employment Exchange.
(b) Clearance from the Surplus Cell of the Department of Personnel and Training/Directorate General of Employment and Training.
(c) The ban orders on filling up of posts issued by the Ministry of Finance (Department of Expenditure)
7. Besides aforementioned in appointment on compassionate ground upper age-limit is relaxable wherever necessary, but the lower age-limit for a particular post cannot be relaxed below 18 years. Secretary in the Ministry/Department concerned is competent to relax temporarily educational qualifications as prescribed in the relevant recruitment rules in the case of appointment at the lowest level, for example, Group D or Lower Division Clerk in exceptional circumstances where the condition of the family is very hard, provided there is no vacancy meant for compassionate appointment in a post for which the dependent family member in question is educationally qualified. Where a widow is appointed on compassionate ground to a Group D post she is exempted from the requirement of possessing the educational qualifications prescribed in relevant rules, provided the duties of the post can be satisfactorily performed by her without possessing such educational qualifications. For easy reference para 6 ( B) of G.I.Deptt. of Per. and Trg., O.M. No. 14014/6/94-Estt.(D), dated the 9th October, 1998, O.M. No. 14014/6/94-Estt.(D), dated the 14th June, 2006 and 19th January, 2007 is extracted hereinbelow:-
6 (B) Relaxation
(a) Upper age-limit could be relaxed wherever found to be necessary. The lower age-limits should, however, in no case be relaxed below 18 years of age.
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Note 1- Age eligibility shall be determined with reference to the date of application and not the date of appointment;
Note-II- Authority competent to take a final decision for making compassionate appointment in a case shall be competent to grant relaxation of upper age-limit also for making such appointment.
(b) Secretary in the Ministry/Department concerned is competent to relax temporarily educational qualifications as prescribed in the relevant Recruitment Rules in the case of appointment at the lowest level, e.g., Group D or Lower Division Clerk post, in exceptional circumstances where the condition of the family is very hard, provided there is no vacancy meant for compassionate appointment in a post for which the dependent family member in question is educationally qualified. Such relaxation will be permitted up to a period of two years beyond which no relaxation of educational qualifications will be admissible and the services of the person concerned, if still unqualified are liable to be terminated.
Note- In the case of an Attached/Subordinate Office, the Secretary in the concerned Administrative Ministry/Department shall be the competent authority for this purpose.
(c) In the matter of exemption from the requirement of passing the Typing Test those appointed on compassionate grounds to the post of Lower Division Clerk will be governed by the general orders issued in this regard:-
by the CS Division of the Department of Personnel and Training, if the post is included in the Central Secretariat Clerical Service; or
by the Establishment Division of the Department of Personnel and Training, if the post is not included in the Central Secretariat Clerical Service.
(d) Where a widow is appointed on compassionate ground to a Group D post, she will be exempted from the requirement of possessing the educational qualifications prescribed in the relevant rules, provided the duties of the post can be satisfactorily performed by her without possessing such educational qualifications.
8. As is provided in Para 7 of aforementioned Scheme compassionate appointment can be made to the extent of 5% vacancies against direct recruitment quota in Group C and D categories including technical post arisen in the year. Para 7 of said Scheme reads as under:
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7. Determination/Availability of Vacancies Appointment on compassionate grounds should be made only on regular basis and that too only, if regular vacancies meant for that purpose are available.
Compassionate appointments can be made up to 5% of vacancies calculated on the basis of direct recruitment vacancies for Groups C and D posts including technical posts that have arisen in the year. The Appointing Authority may hold back up to 5% of vacancies in the aforesaid categories to be filled by direct recruitment through Staff Selection Commission or otherwise, so as to fill such vacancies by appointment on compassionate grounds should be adjusted in the recruitment roster against the appropriate category, viz., SC/ST/OBC/General depending upon the category to which he belongs. For example, if he belongs to SC category, he will be adjusted against the SC reservation point, if he is ST/OBC he will be adjusted against ST/OBC point and, if he belongs to General category he will be adjusted against the vacancy point meant for General category.
While the ceiling of 5% for making compassionate appointment against regular vacancies should not be circumvented by making appointment of dependent family member of Government servant on casual/daily wage/ad hoc/contract basis against regular vacancies, there is no bar to considering him for such appointment, if he is eligible as per normal rules/orders governing such appointments.
The ceiling of 5% of direct recruitment vacancies for making compassionate appointment should not be exceeded by utilizing any other vacancy, e.g., sports quota vacancy.
The aforementioned Scheme for compassionate appointment also provide for:
(i) Entertaining belated request of compassionate appointment;
(ii) continuous of a widow in service even after her re-marriage;
Appointment to a member of bereaved dependent family having an earning member, compassionate appointment to dependent of a missing Government servant.
Paras 8 to 11 of said Scheme containing said provisions read as under:-
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8. Belated requests for compassionate appointment
Ministries/Departments can consider requests for compassionate appointment even where the death or retirement on medical grounds of a Government servant took place long back, say five years or so. While considering such belated requests it should, however, be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the Government servant in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. Therefore, examination of such cases would call for a great deal of circumspection. The decision to make appointment on compassionate grounds in such cases may, therefore, be taken only at the level of the Secretary of the Department/Ministry concerned.
Whether a request for compassionate appointment is belated or not may be decided with reference to the date of death or retirement on medical ground of a Government servant and not the age of the applicant at the time of consideration.
9. Widow appointed on compassionate grounds getting remarried
A widow appointed on compassionate grounds will be allowed to continue in service even after remarriage.
10. Where there is an earning member
(a) In deserving cases even where there is already an earning member in the family, a dependent family member may be considered for compassionate appointment with prior approval of the Secretary of the Department/Ministry concerned, who, before approving such appointment, will satisfy himself that grant of compassionate appointment is justified having regard to number of dependants, assets and liabilities left by the Government servant, income of the earning number s also his liabilities including the fact that the earning member is residing with the family of the Government servant and whether he should not be a source of support to other members of the family.
(b) In cases where any member of the family of the deceased or medically retired Government servant is already in employment and is not supporting the other members of the family of the Government servant, extreme caution has to be observed in ascertaining the economic distress of the members of the family of the Government servant, so that the facility of appointment on compassionate ground is not circumvented and misused by putting forward the ground that the member of the family already employed is not supporting the family.
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11. Missing Government servant Cases of missing Government servants are also covered under the scheme for compassionate appointment, subject to the following conditions:-
A request to grant the benefit of compassionate appointment can be considered only after a lapse of at least 2 years from the date from which the Government servant has been missing, provided that:
(i) An FIR to this effect has been lodged with the Police,
(ii) The missing person is not traceable, and
(iii) The competent authority feels that the case is genuine;
(b) This benefit will not be applicable to the case of a Government servant:-
Who had less than two years to retire on the date from which he has been missing; or
Who is suspected to have committed fraud, or suspected to have joined any terrorist organization or suspected to have gone abroad.
(c) Compassionate appointment in the case of a missing Government servant also would not be matter or right as in the case of others and it will be, subject to fulfillment of all the conditions, including the availability of vacancy, laid down for such appointment under the scheme,
(d) While considering such a request, the results of the Police investigation should also be taken into account; and
(e) A decision on any such request for compassionate appointment should be taken only at the level of the Secretary of the Ministry/Department concerned.
9. The Scheme for compassionate appointment was conceived as far back as in the year 1958. Since then a number of welfare measures have been introduced by the Government which have made a significant difference in the financial position of the families of the Government servants dying in harness/retired on medical grounds. As is provided in Para 16 (C) of the Scheme for appointment on compassionate ground, an
OA 4340/2011 application for compassionate appointment should not be rejected merely on the ground that the family of the Government servant has received the benefits under the various welfare schemes. While considering a request for appointment on compassionate ground, a balanced and objective assessment of the financial condition of the family need to be made by taking into account its assets and liabilities ( including the benefits received under the various welfare schemes mentioned above) and all other relevant factors, such as, the presence of an earning member, size of the family, ages of the children and the essential needs of the family, etc. In terms of G.I.Dept. of Per.and Trg. O.M No. 14014/23/99-Estt.(D) dated the 3rd December, 1999 and OM No. 14014/18/2000-Estt. (D), dated the 22nd June, 2001, the Committee prescribed in para 12 of the aforementioned Scheme dated 9.10.1998 for considering a request for appointment on compassionate ground should take into account the position regarding availability of vacancy for such appointment and to recommend appointment on compassionate grounds only in a really deserving case and only if vacancy meant for appointment on compassionate ground will be available within a year, that too within the ceiling of 5 % mentioned in Para 7 of OM dated 9.10.1998 as amended from time to time. Said OM read as under:-
“Compassionate appointment, only in a really deserving case and only if vacancy meant for it will be available within a year. The question of prescribing a time-limit for making appointment on compassionate grounds has received due consideration taking into account the ceiling of 5 % of vacancies falling under direct recruitment quota in any group “C or “D” post prescribed in this regard in Paragraph 7 (b) ibid and the ruling of the Supreme Court that appointment on compassionate grounds can be made only if vacancies are available for the purpose mentioned in Para 17 (d) ibid.
Accordingly, it has been decided that the Committee prescribed in Para.12 ibid for considering a request for appointment on compassionate grounds should take into account the position regarding availability of vacancy for such appointment and it
OA 4340/2011 should recommend appointment on compassionate grounds only in a really deserving case and only if vacancy meant for appointment on compassionate grounds will be available within a year, that too within the ceiling of 5% mentioned above. This would ensure grant of compassionate appointment within a year.
The instructions contained in the OM, dated 9.10.1998 [Order (2) above] stand modified to the extent mentioned above.
10. The aforementioned G.I.Dept. of Per.and Trg. O.M No. 14014/23/99-Estt.(D) dated the 3rd December, 1999 was reconsidered and the question of prescribing a time limit for making appointment on compassionate ground was also reexamined. Thus in terms of G.I.Dept. of Per.and Trg. O.M No. 14014/19/2002-Estt.(D) dated the 5th May, 2003 it was provided that if compassionate appointment in genuine and deserving cases is not possible in the first year, due to non availability of regular vacancy, the prescribed Committee may review such cases to evaluate the financial conditions of the family to arrive at a decision as to whether a particular case warrants extension by one more year, for consideration for Compassionate appointment by the Committee, subject to availability of clear vacancy within the prescribed 5% quota. The maximum time a persons name can be kept under consideration for offering Compassionate Appointment is three years, subject to the condition that the prescribed Committee has reviewed and certified the penurious condition of applicant at the end of the first and second year. If after the three years the Compassionate Appointment is not possible to be offered to a person, his case is liable to be finally closed and is to be considered again. G.I.Dept. of Per.and Trg. O.M No. 14014/19/2002-Estt.(D) dated the 5th May, 2003 reads as under:-
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“(4) Time-limit for Compassionate Appointment:- The undersigned is directed to refer to Department of Personnel and Training OM No.14014/6/94-Estt. (D), dated 9-10-1998 and O.M.No. 14014/23/99-Estt (D), dated 3/12/1999 (Orders (2) and (3) above respectively) on the above subject and to say that the question of prescribing a time-limit for making appointment on compassionate grounds has been examined in the light of representations received, stating that the one-year limit prescribed for grant of Compassionate Appointment is often resulting in depriving genuine cases seeking compassionate appointments, on account of regular vacancies not being available, within the prescribed period of one year and within the prescribed ceiling of 5% Direct Recruitment Quota.
2. It has, therefore, been decided that if Compassionate Appointment to genuine and deserving cases, as per the guidelines contained in the above OMs is not possible in the first year, due to non-availability of regular vacancy, the prescribed Committee may review such cases to evaluate the financial conditions of the family to arrive at a decision as to whether a particular case warrants extension by one more year, for consideration for compassionate appointment by the Committee, subject to availability of a clear vacancy within the prescribed 5% quota. If on scrutiny by the Committee, a case is considered to be deserving, the name of such a person can be continued for consideration for one more year.
3. The maximum time a persons name can be kept under consideration for offering Compassionate Appointment will be three years, subject to the condition that the prescribed Committee has reviewed and certified the penurious condition of the applicant at the end of the first and the second year. After three years, if Compassionate Appointment is not possible to be offered to the Applicant, his case will be finally closed, and will not be considered again.
4. The instructions contained in the above-mentioned OMs stand modified to the extent mentioned above.
5. The above decision may be brought to the notice of all concerned for information, guidance and necessary action.
As is provided G.I.Dept. of Per.and Trg. O.M No. 14014/3/2005-Estt.(D) dated the 9th October, 2006 read with O.M. dated the 19th January, 2007, the small Ministries/Departments need to apply a more liberalized method of calculation of vacancies within the ceiling of 5% quota for compassionate appointment by adding up the total of DR vacancies in Group C and D posts (including technical posts) arising in each year for 3 or more preceding years and calculate 5% of vacancies with reference to the
OA4340/2011 grand total of vacancies of such years for locating one vacancy for compassionate appointment, subject to the condition that no compassionate appointment had been made by the Ministries/Departments during 3 years or number of years taken over and above 3 years for locating one vacancy under 5% quota. Said OM read as under:- “(9) Liberalized method of calculation of vacancies.- It has been decided that the small Ministries/Departments may apply a more liberalized method of calculation of vacancies under 5 % quota for compassionate appointment. The small Ministries/Departments, for the purpose of these instructions, are defined as organizations where no vacancy for compassionate appointment could be located under 5% quota for the last 3 years. Such small Ministries/Departments may add up the total of DR vacancies in Group C and D posts (including technical posts) arising in each year for 3 or more preceding years and calculate 5% of vacancies with reference to the grand total of vacancies of such years, for locating one vacancy for compassionate appointment. This is subject to the condition that no compassionate appointment was/has been made by the Ministries/Departments during 3 years or number of years taken over and above 3 years for locating one vacancy under 5% quota.
In G.I. Dept.of Per and Trg.F.No. 14014/2/2009-Estt. (D), dated the 11th December, 2009 it was again emphasized that in exceptional circumstances, Government may consider recruiting persons not immediately meeting the minimum educational standards. Said OM read as under:
“(10) Compassionate Appointment of persons not meeting the minimum educational standards.- In partial modification of the Scheme for Compassionate Appointment issued by this Department vide O.M.No. 14014/6/94-Estt (D), dated the 9th October, 1998, as amended from time to time, it has been decided in consultation with the Department of Expenditure that for appointment on compassionate grounds, in exceptional circumstances, Government may consider recruiting persons not immediately meeting the minimum educational standards. Government may engage them as trainees who will be given the regular pay bands and grade pay only on acquiring the minimum qualification prescribed under the Recruitment Rules. The emoluments of these trainees, during the period of their training and before they are absorbed in the Government
OA 4340/2011 employees, will be governed by the by the minimum of the is pay band of Rs.4,440-7,440 without any grade pay. In addition, they will be granted all applicable allowances, like Dearness Allowances, House Rent Allowance and Transport Allowance at the admissible rate. The same shall be calculated on the minimum of IS pay band without any grade pay. The period spent in the IS pay band by the future recruits will not be counted as service for any purpose as their regular service will start only after they are placed in the pay band PH-1 of Rs.5,200-20,200 along with grade pay of Rs.1,800.
In Haryana State Electricity Board and Anr. Vs. Hakim Singh (AISLG 1999 (1)114), Honble Supreme Court ruled that if the family members of the deceased employee could manage for fourteen years after his death one of his legal heirs cannot put forward a claim as it is a line of succession by virtue of a right of inheritance as the object of provision for compassionate appointment should not be forgotten that it is to give succour to the family to tide over the sudden financial crisis befallen the dependents on account of the untimely demise of its sole earning member. In the said case, Honble Supreme Court further ruled that compassionate appointment is not another mode of recruitment of the dependent of the deceased Government servant dehors the recruitment rules. Paras 11,12 and 13 of said judgment read as under:-
11. We are of the view that the High Court has erred in over stretching the scope of the compassionate relief provided by the Board in the circulars as above. It appears that High Court would have treated the provision as a lien created by the Board for a dependent of the deceased employee. If the family members of the deceased employee can manage for fourteen years after his death one of his legal heirs cannot put forward a claim as though it is a line of succession by virtue of a right of inheritance. The object of the provisions should not be forgotten that it is to give succour to the family to tide over the sudden financial crisis befallen the dependents on account of the untimely demise of its sole earning member.
12. This Court has considered the scope of the aforesaid circulars in Haryana State Electricity Board v. Naresh Tanwar and Anr. Etc.etc., 1996 (2) JT 542.
13. In that case widow of a deceased employee made an application almost twelve years after the death of her husband
OA 4340/2011 requesting for accommodating her son in the employment of the Board, but it was rejected by the Board. When she moved the High Court the Board was directed to appoint him on compassionate grounds. This Court upset the said directions of the High Court following two earlier decisions rendered by this Court, one in Umesh Kumar Nagpal v. State of Haryana and Ors, 1994 (4) SCC 138, the other in Jagdish Prasad v. State of Bihar and Anr., (1996 (1) SCC 301. In the former, a Bench of two Judges has pointed out that the whole object of granting compassionate employment is 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. In the latter decision, which also was rendered by a Bench of two Judges, it was observed that the very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. The learned Judges pointed out that if the claim of the dependent which was preferred long after the death of the deceased employee is to be countenanced it would amount to another mode of recruitment of the dependent of the deceased Government servant which cannot be encouraged, dehors the recruitment rules.
In State of Haryana and Ors Vs. Rani Devi and Anr ( 1996 (2) SCSLJ 119), it was ruled by Honble Supreme Court that the Scheme for appointment on compassionate ground cannot be extended to all sorts of casual, adhoc employee including those who are working as Apprentics as such scheme cannot be justified on constitutional grounds. Paras 5 to 8 of said judgment read as under:-
“5. The question of appointment of one of the dependents of an employee of the State or Central Government who dies while in service has of late assumed importance and subject matter of controversy before different Courts. This Court in the case of Smt. Sudhama Gosain v. Union of India, AIR 1989 SC 1976 : (1989) 4 SCC 468, after referring to the Government Memorandum under which the appointment on compassionate ground was being claimed observed that the purpose of providing appointment on compassionate ground is to mitigate the hardship due to the death of the bread-earner in the family. It cannot be disputed that appointment on compassionate ground is an exception to the equality clause under Article 14 and can be upheld if such appointees can be held to form a class by themselves, otherwise any such appointment merely on the ground that the person concerned happens to be a dependent of an ex-employee of the State Government or the Central Government shall be violative of Articles 14 and 16 of the Constitution. But this Court has held that if an employee dies while in service then according to rule framed by the Central Government or the State Government to appoint one of the
OA 4340/2011 appoint one of the dependents shall not be violative of Articles 14 and 16 of the Constitution because it is to mitigate the hardship due to the death of the bread earner of the family and sudden misery faced by the members of the family of such employee who had served the Central Government or the State Government. It appears that the benefit has also been extended to the employees of the authorities which can be held to be a State within the meaning of Article 12 of the Constitution. But while framing any rule in respect of appointment on compassionate ground the authorities have to be conscious of the fact that this right which is being extended to a dependent of the deceased employee is an exception to the right granted to the citizen under Articles 14 and 16 of the Constitution. As such there should be a proper check and balance. Of late, it appears the right to be appointed on compassionate ground is being claimed as a right of inheritance irrespective of the nature of service rendered by the deceased employee. In many cases, application for appointments on compassionate grounds are being made even after 10-15 years because on the date of the employee the applicant was a minor and could not have been appointed. In the case of Life Insurance Corporation of India v. Asha Ramchandra Ambekar, (1994) 2 SCC 718 : (1994 AIR SCW 1947), this Court pointed out that the High Courts and the Administrative Tribunals cannot issue directions on sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. Any such right for appointment of compassionate grounds flows on basis of rules, regulations or some administrative order issued in the form of resolution of office memorandum. In the case of Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : (1994 AIR SCW 2305), it was impressed that as a rule, appointments in public services should be made strictly on basis of open invitation of application and merit. The appointment on compassionate ground was an exception to the aforesaid rule taking into consideration the fact of the death of the employee while in service and leaving his family without any means of livelihood. In such cases, the object is to enable the family to tide over sudden crisis. However, such appointments on compassionate grounds have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. In the case of State of Haryana v. Naresh Kumar Bali (1994) 4 SCC 448 : (1994 AIR SCW 2359) on an appeal filed by State of Haryana, a 3 - Judge Bench of this Court deprecated the direction given by the High Court to appoint the respondent of the said case against a post of an Inspector and it was observed that the High Court should have merely directed consideration of the claim of the said respondent in accordance with rules.
6. It need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the ground that he was a dependent on the deceased employee. Strictly this claim cannot be upheld on the OA 4340/2011 touchstone of Articles 14 or 16 of the Constitution. But this Court has upheld that claim as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16.
7. So far as the facts of the present case are concerned, we fail to appreciate as to how the High Court directed that the respondents aforesaid be appointed on compassionate ground when admittedly the respective husbands of the respondents were working as Apprentice Canal Patwaris for the periods mentioned above. If the scheme regarding appointment on compassionate ground is extended to all sorts of casual, ad hoc employees including those who are working as Apprentices, then such scheme cannot be justified on constitutional grounds. It need not be pointed out that appointments on compassionate grounds, are made as a matter, of course, without even requiring the person concerned to face any Selection Committee. In the case of Umesh Kumar Nagpal v. State of Haryana (1994 AIR SCW 2305 at p. 2309) (supra), it was said :
"It is obvious from the above observations that the High Court endorses the policy of the State Government to make compassionate appointment in posts equivalent to the posts held by the deceased employees and above Class III and IV. It is unnecessary to reiterate that these observations are contrary to law. If the dependent of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity".
It was also impressed that appointments on compassionate ground cannot be made after lapse of reasonable period which must be specified in the rules because the right to such employment is not a vested right which can be exercised at any time in future.
8. According to us, when the aforesaid Government Order dated 31-10-1985 extends the benefit of appointment to one of the dependents of the 'deceased employee' the expression 'employee' does not conceive casual or purely ad hoc employee or those who are working as apprentices. Accordingly, the appeals are allowed and the impugned orders on the two writ petitions, filed on behalf of the respondents are set aside. In the facts and circumstances of the case, there shall be no order as to costs.
OA 4340/2011 In Life Insurance Corporation of India Vs. Mrs. Asha Ramchhandra Ambekar and Anr. ( JT 1994 (2) SC 183), it was held by Hon’ble Supreme Court that whatever it may be the Court should not direct the appointment on compassionate grounds and it can only direct consideration of such claim. In the said case, Honble Supreme Court also ruled that direction as to appointment on compassionate ground issued by High Court were contrary to statutory rules. Para 19 of said judgment reads as under:-
“19. Thus, apart from the directions as to appointment on compassionate grounds being against statutory provisions, such decision does not take note of this fact. Whatever it may be, the Court should not have directed the appointment on compassionate grounds. The jurisdiction under mandamus cannot be exercised in that fashion. It should have merely directed consideration of the claim of the 2nd respondent. To straightway direct the appointment would only put the appellant Corporation in piquant situation. The disobedience of this direction will entail contempt notwithstanding the fact that the appointment may not be warranted. This is yet another ground which renders the impugned judgment dated 19.10.1993 unsupportable. For these reasons, the civil appeal will stand allowed. There shall be no order as to costs.
In Jagdish Prasad V. The State of Bihar and Anr (JT 1995 (9) SC 131), also it was ruled that the very object of appointment of a dependent of deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such appointment cannot be given in such cases where the death occurred way back even if the claimant of such benefit was minor at the time of death of deceased Government servant. Said brief judgment reads as under:-
1. Leave granted.
2. The High court had dismissed the writ petition seeking appointment of the appellant on compassionate grounds. The admitted fact is that he was four years' old at the time when his father died in harness in the year 1971. He filed the writ petition after attaining majority in 1994 for a direction to
OA 4340/2011 appoint him on compassionate grounds which was negatived.
3. It is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that, therefore, the court is required to examine whether the appointment should be made on compassionate grounds. We are afraid, we cannot accede to the contention. The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased government servant which cannot be encouraged, de hors the recruitment rules.
4. The appeal is accordingly dismissed.
In State of Manipur and others Vs. A.Ongbi Memcha Devi (Smt) and Another ( 1995 (4) SCC 210), it was held that the brother is not a dependent of the deceased employee who died in harness, thus is not entitled to compassionate appointment, more so, when the widow has already been appointed and is continuing in service. Para 3 of said judgment reads as under-
3. The brother is not a dependant of the deceased employee who died in harness. Since on compassionate grounds, the widow has already been appointed and she has been continuing in service they cannot claim further employment on the basis of the death of the employee in harness. The High Court was, therefore, not correct.
In Union of India Vs. Joginder Sharma ( JT 2002(7) SC 425), Honble Supreme Court viewed that the method of appointment on compassionate ground is in deviation of normal recruitment process and where people are waiting in queue indefinitely, the policy laid down by the government regarding such appointment should not be departed by Courts/Tribunals OA 4340/2011 by issuing relaxation merely on account of sympathy consideration or hardships of the person concerned. In the said case, their lordships also viewed that compassionate appointment is not even in the realm of any statute or statutory rules but is purely discretion of authority conferred upon it by administrative policy and there is no question of relaxation in such discretion of the authority. Paras 4, 5 and 6 of said judgment read as under:-
4. Heard the learned counsel for the appellant and the learned counsel for the respondent. The compassionate appointment is intended to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the sole breadwinner, who died leaving the family in penury and without sufficient means of livelihood. If under the scheme in force any such claim for compassionate appointment can be countenanced only as against a specified number of vacancies arising, in this case 5 per cent, which ceiling it is claimed came to be imposed in view of certain observations emanating from this Court in an earlier decision, the tribunal or the High Court cannot compel the department concerned to relax the ceiling and appoint a person. Since, this method of appointment is in deviation of the normal recruitment process under the rules, where people are waiting in queue indefinitely, the policy laid down by the government regarding such appointment should not be departed from by the courts/ tribunals by issuing directions for relaxations, merely on account of sympathetic considerations or hardships of the person concerned. This Court as early as in the decision reported in Life Insurance Corporation of India v. Asha Ramchandra Ambekar (Mrs.) and Anr., JT 1994 (2) SC 183 ; (1994) 2 SCC 718 held that the courts cannot direct appointments on compassionate grounds dehors the provisions of the scheme in force governed by rules/regulations/instructions. If in a given case, the department of the government concerned declines, as a matter of policy, not to deviate from the mandate of the provisions underlying the scheme and refuses to relax the stipulation in respect of ceiling fixed therein, the courts cannot compel the authorities to exercise its jurisdiction in a particular way and that too by relaxing the essential conditions, when no grievance of violation of substantial rights of parties could be held to have been proved, otherwise.
5. So far as the case on hand is concerned, both the tribunals as well as the High Court seem to have fallen into great and same error. A mere recommendation or expression of view by an authority at the lower level that if relaxation is accorded, there is scope for appointment does not obligate the competent
OA 4340/2011 authority to necessarily grant relaxation or that the courts/tribunals can compel the competent authority to grant relaxation. The reasons assigned by the High Court to reject the challenge made by the appellant, seem to be no reasons in the eye of law apart from they being totally oblivious to the very stipulations in the scheme and the very object underlying the scheme of making appointments on compassionate grounds. Where the question of relaxation is in the discretion of an authority in the government and not even in the realm of any statute or statutory rules but purely administrative and that authority as a matter of policy declines to accord relaxation, there is hardly any scope for the tribunal/court to compel the exercise to grant relaxation. The two factual instances, sought to be relied upon. on behalf of the respondent, have been properly explained by the appellant to be not really and in substance a deviation from the general policy not to relax so as to alter the ceiling and create more than the stipulated number of vacancies, to appoint persons on compassionate grounds.
6. For all the reasons stated above, the order of the tribunal, as affirmed by the High Court in this case, cannot be sustained. The appeal is allowed and the orders of the High Court, affirming the directions issued by the tribunal, are set aside. No costs.
In Surya Kant Kadam V. State of Karnataka and Ors (JT 2001 (3) SC 485), it was again countenanced that appointment on compassionate ground is not governed by any statutory rules but set of administrative instruction and as such is not a right enforceable in the Court of law. Para 2 of said judgment reads as under:-
2. The learned counsel for the appellant contended that even though the respondents 3 and 4's appointment could not be assailed on the ground of belated approach by the appellant but the prayer with regard to consideration of the appellant for the post of Sub-Inspector of Excise could not have been rejected by the Tribunal. The learned counsel appearing for the State Government on the other hand, contended that against the earlier order when the Tribunal denied the relief of considering the case of the appellant for the post of Sub-Inspector of Excise, the appellant having not moved this Court, the same has become final and therefore should not be interfered with by this Court. There is some force in the aforesaid contention of the learned counsel for the State. But having considered the facts and circumstances of the present case and admittedly the respondents 3 and 4, who were similarly situated like the appellant and who were given compassionate appointment later than the appellant, having been appointed as Sub-Inspector of Excise, the appellant has a justifiable grievance.
OA 4340/2011 It is true that the appointment on compassionate ground in the State of Karnataka is not governed by any statutory rules but by set of administrative instruction and as such is not enforceable in a Court of Law. But the grounds on which the appellant makes out the case for consideration of his case, is the violation of Article 14 and discriminatory treatment meted out to the appellant. It is undisputed that the date on which the appellant was given a compassionate appointment as the Second Division Assistant /Clerk he had the necessary qualification for being appointed as Sub-Inspector of Excise. It is also undisputed that the respondents 3 and 4 were given appointment initially as Second Division Assistant/Clerk but later than the appellant. When the State therefore thought it fit to change the post of respondents 3 and 4 and appointed them to the post of Sub-Inspector of Excise, unless there is any justifiable reason exist, there is no reason as to why the appellant should be treated with a hostile discrimination. In the aforesaid circumstances, we set aside the impugned order of the Tribunal rejecting the prayer of the appellant for being considered for the post of Sub-Inspector of Excise and we direct that the State Government may consider the case of appointment of the appellant as Sub-Inspector of Excise. Be it stated, in the event he is appointed it would be prospective and he will not be entitled to any retrospective benefit. The appeals are allowed accordingly.
In Chairman, Bihar Rajya Vidyut Board Vs. Chhathu Ram and Others (1999 (5) SCC 673), Honble Supreme Court ruled that in view of withdrawal of standing order dated 21.4.1993 by appellant, adopted son was not entitled to compassionate appointment. In West Bengal State Electricity Board and Ors Vs. Samir K.Sarkar (1999) 7 SCC 672), it was held that the provision made by Electricity Board for consideration for employment of dependant of deceased employee on compassionate ground could not be interfered as discriminatory. Paras 3 and 4 of said judgment read as under:-
3. Mr. V. R. Reddy, learned senior counsel appearing for the appellants contended that the concept of compassionate appointment is itself a discretionary one. There is no statutory rule governing such appointments, conferring an enforceable right on the LRs of the deceased employee. The idea to give such compassionate appointment is that the children of the employee who dies in harness may not be destitute on the road and can have a decent living. To achieve that objective, several guidelines/criteria are fixed. The reason why the embargo in question does not apply to clauses (i) and (ii) but
OA 4340/2011 apply to clauses (iii), (iv) and (v) is for an avowed purpose inasmuch as in clauses (i) and (ii), the death having occurred due to accident arising out of and in course of employment and total disablement due to accident in course of employment whereas under clauses (iii), (iv) and (v), the death is not in any way connected with the employment and, therefore, there is a reasonable basis for the classification in question and the High Court was not justified in coming to the conclusion that such classification is discriminatory. In order to appreciate the contention raised by Mr. V. R. Reddy, learned senior counsel for the appellants, the relevant office order is quoted herein below in extenso:
"The Board is pleased to make provision for consideration for employment of a dependent of deceased employee in the following circumstances and subject to condition as mentioned hereunder :-
i) In case of death of an employee due to accident arising out of and in course of employment;
ii) Employees rendered totally disabled due to an accident arising out of and in course of employment;
iii) Employees dying in harness;
iv) Employees reported missing subject to observance of formalities as prescribed by the Board;
v) Employees declared lunatic by appropriate authority.
No employment would however, be considered in the following circumstances :
a) Where the death under (iii) above or the incident under (iv) or the declaration under (v) above takes place in the preceding two years from the scheduled date of retirement on superannuation of the concerned employees.
b) Where a dependent of the deceased, affected employee is already in employment of the Board irrespective of the date of securing such employment."
4. An analysis of the different clauses providing for compassionate appointment in case of death of the employee would indicate that clauses (i), (ii) with death arising out of and in course of employment or total disablement arising out of and in course of employment whereas clauses (iii) and (iv) have no relationship with the employment in question. In that view of the matter, we find sufficient force in contention of Mr. V.R. Reddy, learned senior counsel appearing for the appellants that there is a reasonable classification and
OA 4340/2011 consequently the embargo that no employment would be considered when criteria under clauses (iii), (iv) and (v) are satisfied, if such criteria happens to be within two years from the scheduled date of retirement on superannuation cannot be held to be discriminatory. The High Court, therefore, was totally in error to hold that the embargo is violative of Article 14 of the Constitution. We, accordingly, set aside the said conclusion of the High Court and hold that the embargo contained in clause (a) is valid. On the admitted position that the death of the father of the respondent occurred on 29th November 1996 which is within two years preceding to the date of superannuation, the respondent will not be entitled to an compassionate appointment under the office order dated 15th March 1993 which deals with the criteria for such appointment. We, therefore, set aside the impugned judgment of the Calcutta High Court and allow this appeal. But as there is no appearance on behalf of the respondent, there will be no order as to costs.
In Director of Education (Secondary) and another Vs. Pushpendra Kumar and others (1998 (2) SCCLG 250), Honble Supreme Court ruled that an exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision and care has therefore to be taken that a provision for grant of compassionate appointment which is in the nature of an exception to the general provisions does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee. Paras 8 to 10 of said judgment read as under:-
8. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a
OA 4340/2011 particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee. In Umesh Kumar Nagpal v. State of Haryana, 1994 (4) SCC 138 : (1994 AIR SCW 2305) this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that 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. In that case the Court was considering the question whether appointment on compassionate grounds could be made against posts higher than posts in Classes III and IV. It was held that such appointment could only be made against the lowest posts in non-manual and manual categories. It was observed at page 2308 of AIR SCW :-
"The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. 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. The exception the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."(p. 140)
9. In the said case, this Court has considered the earlier judgment in Smt. Sushma Gosain v. Union of India, 1989 (4) SCC 468 : (AIR 1989 SC 1976). It has been observed that said judgment has been misinterpreted to the point of distortion and that it does not justify compassionate employment as a matter of course.
OA 4340/2011
10. The construction placed by the High Court on the Regulations governing appointment of dependents of teaching/non-teaching staff in non-Government recognized aided institutions dying in harness would result in all the vacancies in Class III posts in non-Government recognized aided institutions which are required to be filled by direct recruitment being made available to the dependents of persons employed on the teaching/non-teaching staff of such institutions who die in harness and the right of other persons who are eligible for appointment to seek employment on those posts by direct recruitment would be completely excluded. On such a construction the said provision in the Regulations would be open to challenge on the ground of being violative of the right to equality in the matter of employment inasmuch as other persons who are eligible for appointment and who may be more meritorious than the dependents of deceased employees would be deprived of their right of being considered for such appointment under the rules. A construction which leads to such a result has to be avoided. Having regard to the fact that there are large number of posts falling in Class IV and appointment on these posts is made by direct recruitment the object underlying the provision for giving employment to a dependent of a person employed on teaching/non-teaching staff who dies in harness would be achieved if the said provision in the Regulations is construed to mean that in the matter of appointment of a dependent of a teaching/non-teaching staff in a non- Government recognized aided institution dying in harness if a post in Class III is not available in the institution in which the deceased employee was employed or in any other institution in the district, the dependent would be appointed on a Class IV post in the institution in which the deceased employee was employed and for that purpose a supernumerary post in Class IV may be created. If the Regulations are thus construed the respondents-applicants could only be appointed on a Class IV post and they could not seek a direction for being appointed on a Class III post and for creation of supernumerary post in Class III for that purpose. We are, therefore, unable to uphold the direction given by the High Court in the impugned judgments whereby the respondents have been directed to be appointed on a Class III post if they possess the requisite qualifications for such a post and in case no Class III post is available then a supernumerary Class III post be created for the purpose of such appointment.
In State of U.P. and others Vs. Parasnath ( AIR 1998 SC 362), Hon’ble Supreme Court viewed that the purpose of providing employment to a dependant of a Government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the
OA 4340/2011 employee on account of his unexpected death while still in service and to alleviate the distress of the family, such appointment on compassionate ground is permissible provided there are rules providing for such appointment. In the said case, Hon’ble Supreme Court further ruled that the reason for making compassionate appointment which is exceptional is to provide immediate financial assistance to the family of a Government servant who dies in harness, when there is no earning member in the family and no such consideration would normally operate seventeen years after the death of the Government servant. Paras 5 to 7 of said judgment read as under:-
“5. The purpose of providing employment to a dependant of a Government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased Government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case.
6. We may, in this connection, refer to only one judgment of this Court in the case of Union of India v. Bhagwan Singh, reported in (1995) 6 SCC 476. In this case, the application for appointment on similar compassionate grounds was made twenty years after the railway servant's death. This Court observed.
"The reason for making compassionate appointment, which is exceptional, is to provide immediate financial assistance to the family of a Government servant who dies in harness, when there is no other earning member in the family."
7. No such considerations would normally operate seventeen years after the death of the Government servant. The High Court was, therefore, not right in gran