J.N. Patel, C.J.

This appeal has been preferred by an ex-employee of Eastern Coalfields Limited and his son dissatisfied with the judgment and order dated 14.8.2009 passed by the learned Single Judge of this Court in W.P. No.239 (W) of 2002. The appellant/petitioner no.1 was an employee of Eastern Coalfields Limited and was posted at Barachawk Seam Incline under Sitarampur area as an Engineer having E2 Grade and uninterrupted service record.

It was the case of the appellant/petitioner that due to the long service the petitioner no.1 suffered from various ailments including serious heart disease and his health condition started deteriorating from the year 1987. The appellant/petitioner was referred to the Apex Medical Board by the management of the respondent no.2 company and he was declared medically unfit for service and physically disabled person on 20.l0.1989 by the Apex Medical Board.

It is the case of the petitioner that as per the service condition, the petitioner was entitled for premature retirement and/or discontinuation of service if he was declared medically unfit and/or physically disabled person to perform any duty and due to such premature retirement on the ground of disablement and/or medical unfitness one dependant of the petitioner was entitled for employment in the respondent no.2’s company.

On 13th March, 1981 Coal India Ltd., respondent no.1 and its subsidiary i.e. respondent no.2 issued an office memorandum providing guidelines to be followed for giving employment to the persons on compassionate grounds i.e. in the matter of giving employment to dependants of the executive dying in harness and/or permanently disabled.

Therefore, it is the case of the petitioner that as per the provisions of Clause (ii) of the said Office Memorandum dated 13th March, 1981 issued by the respondent no.1, the case of the executives who are totally disabled due to accident or otherwise while in service should also be treated as compassionate cases for the purpose of giving employment to the dependant of the person concerned. The appellant/petitioner no.1 was declared medically unfit for his job by the Apex Medical Board so he applied for premature retirement from his service and prayed for employment of his son, the petitioner no.2 hereof under ‘compassionate ground’ provisions as per the guidelines of the office memorandum dated 13th March, 1981. However, the petitioner no.1 was neither given a premature retirement nor the employment of his son under compassionate ground was considered by the respondent authorities and, therefore, he was required to approach this Court by filing a writ petition being C.R. No.9780 (W) of 1990. The respondent authorities filed their affidavit-in-opposition and took a stand that options were given to the appellant/petitioner no.1 for giving lighter job or for seeking voluntary retirement and that the respondent authority has decided that no employment can be given to the dependant of petitioner no.1 as according to the respondents the employee being medically unfit was not similar and/or same as being physically permanently disabled. As the petitioner no.1 was not declared physically permanently disabled by the Apex Medical Board, so the petitioner no.2 was not entitled to get any employment on compassionate ground as provided by the Office Memorandum dated 13^th March, 1981.

It is the case of the petitioners that the petitioner no.1 was never given any option for performing lighter job or for seeking voluntary retirement. The aforesaid writ petition being C.R. No.9708 (W) of 1990 was taken up for hearing and disposed of by learned Single Judge of this Court on 18.4.2001 by observing that there was no basic difference between the person “totally disabled” and “not fit for the present job” and as such it is clear that the logic forwarded by the respondents that “the employment of the dependant of the petitioner who was declared medically unfit could not be considered as he was not physically permanently disabled” was totally rejected by this Hon’ble Court.

According to the petitioner, the aforesaid writ petition was disposed of with a direction upon the concerned authority to consider the grievance of the petitioner in respect of the appropriate declaration as per Memorandum dated 13th March, 1981 in the light of the judgment passed by the Hon’ble Court so that the petitioner can get benefit in the nature of getting a service on compassionate ground to any of the dependant, within a period of three months from the date of communication of the order by giving fullest opportunity of hearing to the petitioner and by passing a reasoned order thereon.

The said order dated 18.4.2001 passed by the Court in C.R. No.9708 (W) of 1990 was duly communicated to the respondent authorities by the advocate of the petitioner, pursuant to which the date of hearing of the petitioner was fixed on 8.10.2001 and on the selfsame day the petitioner appeared before the respondent no.4 and reiterated his prayer for employment of his son on compassionate ground pointing out that the Hon’ble High Court has held that being ‘Medically unfit’ was same as and similar to being ‘Physically Permanently Disabled’. It was also specially pointed out to the respondent no.4 that the petitioner no.1 was never given any option for lighter job or voluntary retirement.

The respondent no.4 i.e. Director (Personnel) held that the prayer for employment of the son of the petitioner no.1 is not sustainable and his case came to be rejected by order dated 8.10.2001. Therefore, according to the petitioner the finding of the respondent authority in the order dated 8.10.2001 is quite contrary to the judgment and observations of this Hon'ble Court passed in L.R. No.9807 (W) of 2001 and the respondent authorities have deliberately or otherwise failed to apply the principle and/or ratio of the judgment of this Hon’ble Court in the order impugned dated 8.10.2001 and that the respondent authorities have all along adopted a biased and partisan attitude towards the petitioner and failed to apply the correct and proper test to be adopted in the matter of giving employment to a dependant of a medically unfit/physically disabled person.

Therefore, the writ petition came to be filed seeking a writ in the nature of Mandamus do issue commanding the respondents, each one of them to consider and give employment to the petitioner no.2 on compassionate ground being the dependant of the petitioner no.1 who has become medically unfit by giving effect to provisions of clause (ii) of the office memorandum dated 13th March, 1981 issued by Coal India Ltd. along with other ancillary reliefs.

The petition was contested by the respondents by filing their affidavit-in-opposition. It is the case of the respondent that the petitioner did not suffer from various ailments due to the environmental and other allied affairs as claimed and that the number of officers attached similar to the post in the coalfields area are maintaining good health and that the respondents are taking every possible medical care to ensure their good and healthy condition for work. It is submitted that from the very inception the health condition of the petitioner does not appear to be sound as per his own contention and that the heart trouble and diabetes cannot be the cause of disease from working in the coalfield areas as these are general diseases.

It is the case of the respondent that the petitioner was never advised by the Medical Board not to do any work and totally disabled to perform his duties and that necessary care was being taken and due to the ailment of the petitioner his duty was changed as at the relevant time he was performing underground duties.

It has been also stated that the petitioner received his full salary from 1986 barring the six months i.e. January 1990-June 1990. The petitioner has also set up a story that he is a disabled person highly motivated by claiming that he is not getting salary since 1986. The respondents have denied the case of the petitioner that he is entitled to premature retirement on medical ground or that the Medical Board is bound to accede to the request of the petitioner to discharge him as medically unfit and/or to treat him as disabled person.

It is submitted that the petitioner’s sole motive and design is to employ his son if the Medical Board found him disabled person besides that the petitioner has no other object to come to this Hon’ble Court. On the other hand, on the representation of the petitioner the authority decided to absolve him of his normal duties i.e. underground duties and offered him to do the office job which is lighter job and is suitable for his health, the petitioner ignoring such offer has come to this Hon’ble Court for unjust demand. That the petitioner has rendered full service and enjoyed full retirement benefits on attaining the age of superannuation i.e. on 31.8.1990.

It is contended by the respondents that the Memorandum dated 13th March, 1981 clearly stipulates that one of the dependants of the executive will be entitled to employment only when death will occur or the employee was totally disabled due to accident or otherwise. Furthermore, the Medical Board on careful scrutiny and examination found that the petitioner was not disabled person as contemplated in the said circular as such premature retirement on the ground of disablement does not and/or cannot arise to the petitioner and as the petitioner is not entitled to premature retirement on the ground of disablement as the Medical Board having declared him only “not fit for his job”, and never said that the petitioner was a disabled person. Therefore, according to the respondent, the Director (Personnel) has no authority to recommend the petitioner to retire on health ground as claimed and, therefore, the authorities have acted in accordance with law and as per guidelines issued in the Memorandum/circular dated 13th March, 1981, and that the petitioner’s only object is to employ his dependant though he is not found to be disabled by the Medical Board.

According to the respondents, the decision of the Medical Board and that of the functional Director was communicated to the petitioner and no further action is required to be taken in this regard. The petitioner has been paid his just dues up to the date including the gratuity and furthermore, was offered light job which the petitioner did not accept till his retirement on attaining the age of superannuation i.e. 31.8.1990.

The matter was heard by the Court and by judgment and order dated 14.8.2009 the learned Single Judge of this Court held as under:

“According to the rules brought to my notice compassionate appointment can be given to the ward of an employee who has become totally disabled. It is not the case of the writ petitioner that he was totally disabled. His prayer for compassionate appointment was accordingly turned down.

There is however some controversy as to whether considering the ailment of the writ petitioner, any lighter job was offered to him but the controversy has now become useless because the writ petitioner has already reached the age of superannuation. In so far as the prayer for compassionate appointment is concerned, I think, the same was turned down for adequate reasons. There is as such nothing that the Court can do. This writ petition is, as such, dismissed”.

This is the subject matter of this appeal.

It is contended by the learned counsel appearing on behalf of the appellant/petitioners that in the earlier writ petition being C.R. No.9807 (W) of 1990 which was taken up for hearing by the Court on 8.4.2001 no affidavit-in-opposition was filed though the copy which was served on the advocate appearing for the appellant/petitioner was handed over to the Hon’ble Court and the Court was pleased to observe that there was no basic difference between the person “totally disabled” and “not fit for the present job”. As such it is clear that the logic forwarded by the appellant to the respondents that the dependant of the appellant/petitioner was declared medically unfit could not be considered as he was not physically permanently disabled was totally rejected by the Court and that as the earlier writ petition was disposed of by the direction upon the concerned authority to consider the grievance of the petitioner in respect of the appropriate decision as per Memorandum dated 13th March, 1981 in the light of the judgment passed by the Court so that the petitioner can get an appropriate benefit in the nature of getting a service on compassionate ground to any of the dependants within a period of three months from the date of communication of the order by giving fullest opportunity of hearing to the petitioner and by passing a reasoned order thereon.

Observations and findings of the respondent authorities annexed to the order dated 8.10.2001 are assailed to be in absolute contradiction to the judgment and observations of the Hon’ble Court passed in C.R. No.9708 (W) of 2002 and that the respondents having not preferred any appeal against the said judgment and having allowed the order to attain its finality the respondent authorities cannot be allowed to take a contrary stand to the direction and observation of the Hon’ble High Court.

Learned counsel appearing on behalf of appellant/petitioner submitted that the order dated 8.10.2001 passed by the Director (Personnel) of Eastern Coalfields Limited came to be challenged in the writ petition being W.P. No. 239 (W) of 2002 which was contested by the respondents by filing an affidavit-in-opposition reiterating the same two points that alternative job was offered which was not accepted by the appellant/petitioner no.1 and that being medically unfit for his job does not mean that the appellant/petitioner no.1 was totally physically disabled and does not come within the purview of office Memorandum dated March 13, 1981.

It is submitted that the appellants have filed their affidavit-in-reply and have categorically submitted that the respondents have no right, authority and jurisdiction to reopen the said case which has already been settled by the learned Single Judge of the High Court and against which no appeal has been preferred and from the supplementary affidavit filed on behalf of the respondents annexing certain communications between officers of the respondent company it appears that the appellant no.1 was never offered any alternative job. Therefore, it is clear that the appellant/petitioner having been declared medically unfit was not in a position to do any job. Therefore, prayer for employment of his dependant son was justified.

It is therefore contended that by the impugned order the Court held that there was adequate reason for turning down the prayer for compassionate appointment without specifying what the reasons were. The learned Single Judge failed to appreciate that it was the specific case of the writ petitioner that he was medically unfit for the job he was performing and a coordinate bench of the same Court had already decided that there was no difference between the term medically unfit for his job and being physically disabled. The Court ought not to have dismissed the petition.

It is further submitted that the learned Single Judge also failed to appreciate that when the writ petition was filed the appellant no.1 was very much in service and whether alternative job was offered or not was a basic question which should have been declared by the learned Single Judge and has placed reliance on the following decisions :

a. (1998) SCC 9 139 : Authorised Officers Land Reforms vs. M.M. Krishnamurti Chetty for the proposition that order of remand passed by the High Court not challenged will prevail.

b. AIR 1978 SC 803 : Madan Mohan Pathak vs. Union of India to substantiate that a writ of mandamus is binding and effectiveness of its order derived its force from Article 226 of the Constitution itself.

c. AIR 1988 SC 2181 : Bharat Singh and ors. vs. State of Haryana and ors. as regards distinction in pleadings in civil suit and writ petition.

d. AIR 1966 SC 1061 : State of West Bengal vs. Hemant Kumar Bhattacharjee that a wrong decision of a Court having jurisdiction is as much binding on a party as a right one.

It is therefore contended that it is a settled law that even a wrong decision of the Court is binding upon the parties unless set aside by an appellate Court and hence the learned Single Judge had committed an error of law in expressing a different view to the earlier judgment sitting in a coordinate jurisdiction. The mandamus issued by the Hon’ble Court in the earlier writ petition is binding on the parties and the respondents were under compulsion to provide the appellant’s son with a service on compassionate ground as directed by the learned Single Judge in C.R. 9708 (W) of 1990.

It is contended by the learned counsel appearing for the appellant that the Apex Medical Board while examining the appellant no.1 on being referred by the respondent authority found him to be suffering from ischemic Heart Disease with angina diabetes and was also found to be suffering from acute Hernia and the disease of the appellant no.1 cannot be termed to a be a pretext for securing employment for his son. The appellant was never offered any alternative job as claimed by the respondents and the appellant no.1 was declared medically unfit for his job on 20.10.1989. He applied for premature retirement and a job on compassionate ground for his son on 14.4.1990 which clearly goes to show that the appellant applied for premature retirement and compassionate appointment when he was in service and, therefore, as per the provision of the office memorandum dated 13th March, 1981 the executives who are totally disabled due to accident or otherwise while in service should also be treated as compassionate cases and there is no other condition or stipulation in that respect. The appellant having been declared medically unfit for his job was not in a position to continue in service and hence the only option left to the respondent was to allow him to retire from service and provide his son with a compassionate appointment in terms of the office memorandum dated 13th March, 1981 and, therefore, the impugned judgment and order deserves to be quashed and/or set aside.

Learned Counsel appearing for the respondents submitted that the petitioner was an employee of the respondent, who retired on 31st August, 1990. The petitioner no.2 is the son of the petitioner no.1. Admittedly the petitioner no.1 was declared medically unfit for his job by the Apex Medical Board on 20th October, 1989 after the petitioner no.1 was thoroughly examined.

It is submitted that the petitioner however has wrongly sought to construe that he was totally disabled and accordingly his son, petitioner no.2 is entitled to employment on compassionate ground. It is contended by the learned counsel appearing for respondent that as per guideline framed by the respondent for appointment on compassionate ground to the dependants of the executive dying-in-harness and/or totally disabled does not entitle the petitioner no.1’s son to be appointed on compassionate ground for the reasoning that petitioner no.1 was not totally disabled and hence the said representation came to be rejected by the authority concerned by order dated 8th October, 2001.

It is contended that the petitioner no.1 was declared medically unfit for his job on 20^th October, 1989 i.e. just 10 months before his superannuation. Immediately prior to attaining the age of superannuation, the petitioner no.1 had filed another writ petition, which is C.R. 9788 (W) of 1990 which was with the objecting of getting his son appointed in the respondent no.2’Section company.

It is submitted that the petitioner do not have any legal right or cause of action against the respondent as on the date prior to filing of the writ petition on 9th January, 2002, there is no relationship of whatsoever nature between the respondents and the petitioner no.2 and petitioner no.2 also does not have any locus standi to file the writ petition against the respondents. The claim of the writ petitioner was turned down by the concerned authority on 8.10.2001 whereas the present writ petition was filed on 9th January, 2002 in which no relief has been sought for quashing the said order dated 8.10.2001.

According to the respondent, the petitioner having enjoyed the full length of his service till the date of his age of superannuation and having received his salary and gratuity giving appointment on compassionate ground to one of his dependants cannot be considered and that the petitioner was constantly making representations before the authority and such representations were considered and rejected as no employment could be given to his dependant.

The case of the petitioner was referred for giving alternative job and that the petitioner had option for seeking voluntary retirement which he did not avail of.

It is the contended that all the decisions were communicated to the petitioner no.1 and by his letter dated 14.4.1990 the petitioner has requested to review the case so that his son can be given employment. This fact has been suppressed by the petitioner. Further, the petitioner has made false assertion of non-payment of salary only to seek appointment for his son at the fag end of his career on the plea of “total disablement”, which was factually not so and in view of the fact that the impugned judgment does not suffer from any illegality or infirmity the writ petition deserves to be dismissed.

The only point for our determination is whether the petitioner no.1’s son was eligible for being considered for appointment on compassionate ground due to the petitioner no. 1 being certified by the Medical Board as unfit for his job.

The respondent no.2, Coal India Ltd. issued office Memo being No.C-5(b)/50800/381 dated 13th March, 1981 by which it has been decided that from now onwards in Coal India Ltd. and its Subsidiary Companies appointment on compassionate ground of dependants of executives dying in harness will be considered as per guidelines. The Office Memorandum is reproduced below:

“The matter regarding appointment of dependants of the executives dying in harness has been under consideration of the management for some time and considering all aspects of the matter, principles and practice followed by the Government of India and other Public Sector Undertakings, it has been decided that from now onwards in Coal India Ltd. and its Subsidiary Companies appointment on compassionate ground of dependants of executives dying in harness will be considered and the following guidelines will be followed in this regard.

i) Death of the executive concurred should be while in service, covering incidence of leave, suspension, training deputation, etc. The criterion is that the officer should be on the roll of the company;

ii) The case of the executives who are totally disabled due to accident or otherwise while in service should also be treated as compassionate cases for this purpose;

iii) Employment of dependants should only be in non-executive posts, according to job requirement of the post and qualification of the dependant. The suitability of the will be considered by a Selection Committed constituted for this purpose;

iv) The candidate to be considered should have the minimum qualification including educational qualification and age requirement for the job for which he is considered. Limited of age requirement may be relaxed in deserving cases, but minimum qualification required will not be relaxed;

v) Dependant for this purpose will mean dependant wife or husband as the case may be, son, unmarried daughter and widowed daughter;

vi) Only one job for each compassionate case will be considered; and

vii) If a dependant is already in service, employment of additional dependant will not be considered”.

2) The company should maintain a Register of the dependants seeking employment on compassionate ground and found suitable by the Selection Committee and offer of appointment subject to vacancies strictly according to the position in the Register.

3) For the purpose of compassionate appointment requirement of registration in Employment Exchanges will not be insisted upon.

Sd/-

Chief (EE and A)

The scheme adopted by the Coal India Ltd. and its subsidiaries provide for appointment on compassionate ground of dependants i.e. in the case of executives who are “totally disabled” while in service. Clause (ii) of Office Memorandum provides as under :

ii) The case of the executives who are totally disabled due to accident or otherwise while in service should also be treated as compassionate cases for this purpose;

Therefore, the requirement is that the executive should be totally disabled due to accident or otherwise while in service.

In the present case, the appellant/petitioner no.1 was referred for medical examination and appeared before the Medical Board of Eastern Coalfields Limited and the Board after conducting the medical examination found him “unfit for his job”. Having found his case to be of hypertension with ischemic Heart Disease with angina and etc.

While disposing of the first petition the learned Single Judge of this Court observed as follows :

“The Learned Counsel appearing on behalf of the petitioner assisted the court by producing a copy of the affidavit-in-opposition and has drawn attention to the court about their defence. I find in paragraph 9 of the same that an averment is made by saying that the petitioner has misinterpreted the stipulation of the circular being Annexure ‘A’ to the petition from which the right of the petitioner accrues. According to them, that fit for the present job cannot said that the person is totally disabled. I fail to understand the nature of the defence taken by the respondents. The petitioner is an Engineer and if it is declared that ‘not fit for the present job’ then he can be transferred to any administrative or Accounts Department which sought to be done by the concerned respondent. Therefore, logically it cannot be said that there is no basic difference between the persons ‘totally disabled’ ‘not fit for the present job’.

Therefore, I dispose of the writ petition with a direction upon the concerned authority to consider the grievance of the petitioner in respect of appropriate declaration as per memo dated 13th March, 1981 which is Annexure ‘A’ to the writ petition, in the light and judgment passed by this Court so that the petitioner cannot an appropriate benefit to the nature of getting his service on compassionate ground or to any of the dependants etc. within a period of three months from the date of communication of this order by giving fullest opportunity of hearing to the petitioner any by passing a reasoned order thereon. The time limit as fixed is peremptory”.

In terms of the order passed by the Court the respondent no.2 took up the matter for consideration and on 8.10.2001 rejected the case of the petitioners by observing that :

“In the instant case, the writ petitioner Sri Gobardhan Chatterjee was declared unfit for his job by the Medical Board. The Medical Board on careful scrutiny and examination found that the petitioner was not disabled person as contemplated in the said circular and as such premature retirement on the ground of disablement did not arise to the petitioner. The Medical Board only declared him not fit for the present job‘ and never declared that the petitioner was disabled person and for that the petitioner was offered light job. There is a marked difference between unfit and disabled totally’. One person can be found unfit for particular job but he can be fitted for other job and accordingly, in view of the declaration of the Medical Board he was offered the light job to which he had not joined and retired on attaining the age of superannuation on 31.8.90 and all retirement/terminal benefit was paid to him.

In view of the above position, the petitioner’s prayer for employment of his son is not sustainable and is liable to be rejected”.

In State Bank of India and anr. vs. Somvir Singh reported in (2007) 4 SCC 778, the Supreme Court observed that High Court in exercise of its power under Article 226 of the Constitution of India can only find whether the decisionmaking process rejecting the application of the dependant of the deceased employee for compassionate appointment was vitiated and whether the order of the competent authority rejecting the dependant’s application was not in conformity with the scheme framed by the employer. The Court held as under :

“7. Article 16(1) of the Constitution of India guarantees to all its citizens equality of opportunity in matters relating to employment or appointment to any office under the State. Article 16(2) protects citizens against discrimination in respect of any employment or office under the State on grounds only of religion, race, caste, sex and descent. It is so well settled and needs no restatement at our end that appointment on compassionate grounds is an exception carved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. Such appointments are required to be made on the basis of open invitation of applications and merit. Dependants of employees died in harness do not have any special or additional claim to public services other than the one conferred, if any, by the employer.

8. In Umesh Kumar Nagpal v. State of Haryana this Court held: (SCC pp. 139-40, para 2)

“As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration 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 in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased.”

(emphasis added)

9. In Union Bank of India v. M.T. Latheesh this Court while dealing with the similar question observed that indiscriminate grant of employment on compassionate grounds would shut the door for employment to the ever-growing population of unemployed youth.

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 dehors 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.

In V. Sivamurthy vs. State of Andhra Pradesh and ors. reported in (2008) 13 SCC 730 the Supreme Court summarized the principles relating to compassionate appointment and also sounded a note of caution about the tendency on the part of the employees nearing the age of superannuation to take advantage of the scheme. It observed as under:

“18. The principles relating to compassionate appointments may be summarised thus :

(a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India.

Though no other mode of appointment is permissible, appointments on compassionate grounds are a well-recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies.

(b) Two well-recognised contingencies which are carved out as exceptions to the general rule are :

(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service.

(ii) Appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner.

Another contingency, though less recognised, is where landholders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project-affected persons. (Particularly where the law under which the acquisition is made does not provide for market value and solatium, as compensation).

(c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies.

(d) Compassionate appointments are permissible only in the case of a dependant member of the family of the employee concerned, that is, spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, Classes II and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts”.

30. There are of course safeguards to be taken to ensure the scheme is not misused. One is to ensure that mere medical unfitness to continue in a post is not treated as medical invalidation for the purposes of compassionate appointment. A government servant should totally cease to be employable and become a burden on his family, to warrant compassionate appointment to a member of his family. Another is barring compassionate appointments to dependants of an employee who seeks voluntary retirement on medical grounds on the verge of superannuation. This Court observed in Ram Kesh Yadav as follows: (SCC p. 535, para 9)

“9. … But for such a condition, there will be a tendency on the part of employees nearing the age of superannuation to take advantage of the scheme and seek voluntary retirement at the fag end of their service on medical grounds and thereby virtually creating employment by ‘succession’.It is not permissible for the court to relax the said condition relating to age of the employee. Whenever a cut-off date or age is prescribed, it is bound to cause hardship in marginal cases, but that is no ground to hold the provision as directory and not mandatory.”

We find that in this case stringent safeguards were in fact built into the scheme on both counts by GMs dated 4-7-1985 and 9-6-1998.”

The aforesaid decisions of the Supreme Court indicate the need for strict compliance with the terms of the scheme as compassionate appointment is not a source of recruitment. It is an exception to the general rule, that recruitment to public services should be on the basis of merit, by open invitation providing for equal opportunity to all individuals to participate in the selection process.

It was also contended that the learned Single Judge overlooked the fact that the competent authority could not have made a distinction that “the Medical Board only declared him ‘not fit for the present job’ and never declared that the petitioner was disabled person and for that the petitioner was offered light job.

There is a marked difference between unfit and disabled totally” as the said controversy was already considered and settled in the judgment dated 18.4.2001 passed by the learned Single Judge in C.R. No.9708 (W) of 1990.

In the first place, we find that the learned counsel appearing on the behalf of the petitioners has misread and misconstrued the observations of the learned Single Judge made in the judgment [C.R. 9708 (w) of 1990] dated 18.4.2001. The observations of the learned Single Judge in the context of the defence taken by the respondents was “I failed to understand the nature of the defence taken by the respondents. The petitioner is an Engineer and even declared ‘not fit for present job’ then he can be transferred to any administrative and accounts department which sought to be done by the concerned respondents. Therefore, logically it cannot be said that there is no basic difference between the persons “totally disabled” “not fit for the present job” and not as tried to be canvassed before us”.

Clause (ii) of the Office Memorandum dated 13th March, 1981 which governs the case of the petitioners for compassionate appointment provides for case of executives who are “totally disabled” due to accident or otherwise while in service should also be treated as compassionate cases for this purpose. The guidelines provided under the scheme for appointment on compassionate ground of dependants of executives dying in harness which contemplated contingency like death of the executives having occurred while in service as well as cases of executives who were “totally disabled” due to accident or otherwise while in service were brought on par with executives dying in harness. It is the case of the petitioner that he has been medically found to be unfit for his job and therefore physically disabled.

It is an accepted position that at the time the appellant/petitioner No.1 got himself medically examined he was an engineer working underground in the mines with the respondent company and, therefore, the Medical Board found him unfit for his job i.e. the job which was at the relevant time assigned to him. The most important question which is required to be considered is whether the nature of illness due to which the petitioner No.1 was found unfit for his job was such that he became “totally disabled” which is essential to enable an employee to seek premature retirement on the ground of total disablement and claim employment on compassionate ground for one of his dependants. In the judgment relied upon by the petitioners the learned Single Judge never came to the conclusion that unfit for his job was synonymous with “total disablement”. On the other hand, it was observed that therefore, logically it could not be said that there was no basic difference between the person “totally disabled” and “not fit for the present job. Otherwise also if one examines the literal meanings of “totally disabled” and “unfit for the present job” they have separate and distinct meanings. “Total disability” contemplates (a worker’s) inability to perform employment-related duties because of a physical or mental impairment as defined in Black’s Law Dictionary whereas “unfit for his job” clearly indicates unsuitability i.e. not adapted or qualified for a particular work or service. In other words unsuitable or inadequate for something but otherwise capable.

In our view if the appellant/petitioner No.1 wanted to claim as of right employment for his dependant i.e. petitioner No.2 on compassionate ground of being ‘totally disabled’ nothing prevented him from seeking a review before the Medical Board for such a declaration. If one considers the opinion of the Medical Board the petitioner’s case was of hypertension with ischemic Heart Disease recurring Angina and the Medical Board did not certify him to be “totally disabled” to perform any duty with his employer. On the other hand, there is a specific stand taken by the petitioners’ employer that he was offered a light job in office which he did not accept this clearly goes to show that the petitioner was not keen to continue with his employment but was insisting on being given premature retirement and compassionate appointment for his son i.e. petitioner No.2. The petitioner No.1 has tried to agitate the issue by contending that he was never given the lighter job which the learned Single Judge has taken into consideration and the same is reflected in the impugned judgment and order as observed “ there is however controversy as to whether considering the ailments of the writ petitioner, and the lighter job was offered to him but the controversy has now become useless because the writ petitioner has already reached the age of superannuation”.

Taking into consideration the medical certificate issued by the Medical Board declaring the petitioner as ‘unfit for his job’ and the fact that there is no material on record to show that due to the nature of his medical illness the petitioner had become “totally disabled” coupled with the fact that only 10 months were left for the petitioner to retire on attaining the age of superannuation then it clearly go to show that the petitioner while nearing the age of superannuation was trying to take advantage of the scheme and seek premature retirement at the fag end of his service on medical ground so that his son could get employment and even remained absent from duty without any justification like making an application for leave supported by medical certificate that he was unable to attend duty and was advised complete rest.

We, therefore, find that the learned Single Judge has not committed any error or illegality in dismissing his petition and the impugned order does not call for any interference.

The appeal is therefore dismissed.

There will be no order as to costs.