High Court · 2007
Case Details
WA 36/2009 B E F O R E HON’BLE MR. JUSTICE A.K.GOEL,THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE A. K. GOSWAMI (A.K.Goel, CJ)
Legal Reasoning
This appeal has been preferred against order of learned Single Judge dismissing the writ petition of the appellant claiming direction to give compassionate appo intment. Father of the appellant was employed in the Flood Control Department of the Stat e of Assam and died in harness on 29.08.2000. The appellant’s mother gave repres entation dated 27.09.2000 seeking appointment of the appellant. The application was considered on 06.08.2007 by the District Level Committee headed by the Deput y Commissioner, Karimganj. However, the prayer was not granted having regard to the financial position, size of the family and availability of the posts. On suc h consideration, nine other persons were given appointment. Aggrieved thereby the appellant approached this Court. The claim was opposed by the respondents. Learned Single Judge upheld the stand of the respondents as fol lows :- (cid:28)The facts in affidavit filed by the respondents would indicate that the paramet ers/yardstick applied by the District Level Committee i.e. the financial conditi on of the family of the deceased was the correct parameter to be applied as alre ady held by this Court in WP(C) No.3875 of 2005 and other connected cases. There is no indication in the minutes of the meeting of the District Level Committee dated 6th August 2007 which has been annexed to the affidavit of the respondents that while determining the financial status of the family of the deceased i.e. the family of the petitioner in the present case, the terminal benefits paid to the said family were taken into account by the District Level Committee. The recommendation of the District Level Committee having been made on applicati on of correct parameters for determining the eligibility for compassionate appoi ntment, this court will have no occasion to cause any interference with the said decision. (cid:29) We have heard learned counsel for the parties. Learned counsel for the appellant submitted that the appellant had no source of income beyond the terminal benefits received on account of death of his father w hich could not have been taken into account in view of law laid down by the Hon’ ble Supreme Court in Govind Prakash VErma vs. Life Insurance Corporation of Indi a and others, (2005) 10 SCC 289 and Balbir Kaur and another vs. Steel Authority of India Ltd. and others, (2000) 6 SCC 493. It was also submitted that compassi onate appointment should have been considered expeditiously as laid down in Sush ma Gosain and others vs. Union of India and others, AIR 1989 SC 1976. Learned counsel for the State opposed the above submission and submitted that it was not a case where compassionate appointment has been denied only on consider ation of terminal benefits. Since there were large number of applications and li mited number of vacancies available for the applicants seeking compassionate app ointment, all eligible candidates were considered as per available guidelines an d more needy candidates were given appointment out of 21 candidates. On perusal of the minutes of the meeting presided over by the Deputy Commissione r, Karimganj, we find that the Committee has considered 21 applications and give n appointment to nine persons. The claims of dependants of employees who died in harness against whom compassionate appointment were sought over a period of 10 years from 1996 to 2006 were considered simultaneously. The impugned order does not contain all the details. It would have been better if the basis of compariso n was clear from the order and matter was promptly dealt with. If no vacancy was available within reasonable time, the application should have been dealt with a ccordingly. There was no justification for keeping such claims pending for ten y ears. Be that as it may, there is no material to show that any vacancy was available w ithin reasonable time against which the petitioner could be given compassionate appointment. The appellant did not come to the Court promptly with his grievance . There is nothing to show that those given compassionate appointment were less needy. They have not been impleaded as parties. Compassionate appointment is exc eption to the normal rule of public employment being given by open competition a mong all eligible candidates. Door of compassionate appointment is open to meet immediate hardship on account of sudden death. Eligible applicant has to promptl y approach the Court if needy person is denied appointment inspite of availabili ty of vacancy and inspite of eligibility. In the present case, for seven years t he petitioner did not approach this Court by showing pressing need and moved thi s Court only after the claim was taken up after seven years. This view is supported by law laid down by the Hon’ble Supreme Court. In Umesh Kumar Nagpal v. State of Haryana, (1994)4 SCC 138 it was observed : (cid:28)2. The question relates to the considerations which should guide while giving a ppointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the pu blic services should be made strictly on the basis of open invitation of applica tions and merit. No other mode of appointment nor any other consideration is per missible. Neither the Governments nor the public authorities are at liberty to f ollow 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 eve ry 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 o f 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 takin g 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 wh o may be eligible for such employment. The whole object of granting compassionat e employment is thus to enable the family to tide over the sudden crisis. The ob ject is not to give a member of such family a post much less a post for post hel d by the deceased. What is further, mere death of an employee in harness does no t entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of emplo yment, the family will not be able to meet the crisis that a job is to be offere d to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be off ered on compassionate grounds, the object being to relieve the family, of the fi nancial destitution and to help it get over the emergency. The provision of empl oyment in such lowest posts by making an exception to the rule is justifiable an d valid since it is not discriminatory. The favourable treatment given to such d ependant of the deceased employee in such posts has a rational nexus with the ob ject 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 th e deceased there are millions of other families which are equally, if not more d estitute. The exception to 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 the status and affairs, of the family engendere d by the erstwhile employment which are suddenly upturned. 6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The conside ration for such employment is not a vested right which can be exercised at any t ime in future. The object being to enable the family to get over the financial c risis which it faces at the time of the death of the sole breadwinner, the comp assionate employment cannot be claimed and offered whatever the lapse of time an d after the crisis is over. (cid:29) In State of J&K v. Sajad Ahmed Mir, (2006) 5 SCC 766 it was observed : (cid:28)11. We may also observe that when the Division Bench of the High Court was cons idering the case of the applicant holding that he had sought (cid:28)compassion (cid:29), the B ench ought to have considered the larger issue as well and it is that such an ap pointment is an exception to the general rule. Normally, an employment in the Go vernment or other public sectors should be open to all eligible candidates who c an come forward to apply and compete with each other. It is in consonance with A rticle 14 of the Constitution. On the basis of competitive merits, an appointmen t should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadw inner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and su bstantial period is over, there is no necessity to say (cid:28)goodbye (cid:29) to the normal r ule of appointment and to show favour to one at the cost of the interests of sev eral others ignoring the mandate of Article 14 of the Constitution. 12. In State of Haryana v. Rani Devi (1996) 5 SCC 308, it was held that the clai m of the applicant for appointment on compassionate ground is based on the premi se that he was dependent on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution. However, such claim is considered reasonable as also allowable on the basis of sudden crisis occurring in the family of the employee who had served the State and died while in service. That is why it is necessary for the authorities to frame rules, regu lations or to issue such administrative instructions which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. 13. In LIC of India v. Asha Ramchhandra Ambekar, (1994) 2 SCC 718, it was indica ted that the High Courts and the Administrative Tribunals cannot confer benedict ion impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemp late such appointments. 14. In Umesh Kumar Nagpal v. State of Haryana (1994) 4 SCC 138, it was ruled tha t public service appointment should be made strictly on the basis of open invita tion of applications and on merits. The appointment on compassionate ground cann ot be a source of recruitment. It is merely an exception to the requirement of l aw keeping in view the fact of the death of the employee while in service leavin g his family without any means of livelihood. In such cases, the object is to en able the family to get over sudden financial crisis. Such appointments on compas sionate ground, therefore, have to be made in accordance with the rules, regulat ions or administrative instructions taking into consideration the financial cond ition of the family of the deceased. This favourable treatment to the dependant of the deceased employee must have clear nexus with the object sought to be achi eved thereby i.e. relief against destitution. At the same time, however, it shou ld not be forgotten that as against the destitute family of the deceased, there are millions and millions of other families which are equally, if not more, dest itute. The exception to the rule made in favour of the family of the deceased em ployee is in consideration of the services rendered by him and the legitimate ex pectation, and the change in the status and affairs of the family engendered by the erstwhile employment, which are suddenly upturned. 15. In Sushma Gosain v. Union of India, (1989) 4 SCC 468, it was observed that i n the claims of appointment on compassionate grounds, there should be no delay i n appointment. The purpose of providing appointment on compassionate ground is t o mitigate the hardship due to the death of the breadwinner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. 16. Recently, in Commr. of Public Instructions v. K.R. Vishwanath, (2005) 7 SCC 206, one of us (Pasayat, J.) had an occasion to consider the above decisions and the principles laid down therein have been reiterated. 17. In the case on hand, the father of the applicant died in March 1987. The app lication was made by the applicant after four-and-a-half years in September 1991 which was rejected in March 1996. The writ petition was filed in June 1999 whic h was dismissed by the learned Single Judge in July 2000. When the Division Benc h decided the matter, more than fifteen years had passed from the date of the de ath of the father of the applicant. The said fact was indeed a relevant and mate rial fact which went to show that the family survived in spite of the death of t he employee. Moreover, in our opinion, the learned Single Judge was also right i n holding that though the order was passed in 1996, it was not challenged by the applicant immediately. He took chance of challenging the order in 1999 when the re was inter-departmental communication in 1999. The Division Bench, in our view , hence ought not to have allowed the appeal. (cid:29) Again, in Eastern Coalfields Limited v. Anil Badyakar, (2009)13 SCC 112, it was observed : (cid:28)12. In Sanjay Kumar v. State of Bihar, (2000) 7 SCC 192, the Court has stated t hat: (SCC p. 194, para 3) (cid:28)3. & This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden cris is resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. (cid:29) 13. In Punjab National Bank v. Ashwini Kumar Taneja, (2004) 7 SCC 265, it was ob served by the Court that: (SCC p. 268, para 4) (cid:28)4. & It is to be seen that the appointment on compassionate ground is not a sou rce of recruitment but merely an exception to the requirement regarding appointm ents being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the me ans of livelihood. The object is to enable the family to get over sudden financi al crisis. (cid:29) 14. Insofar as delay in approaching the authorities for such appointment is cons idered by this Court in Union of India v. Bhagwan Singh, (1995) 6 SCC 476, it wa s held as follows: (SCC p. 480, para 8) (cid:28)8. It is evident, that the facts in this case point out, that the plea for comp assionate employment is not to enable the family to tide over the sudden crisis or distress which resulted as early as September 1972. At the time Ram Singh die d on 12-9-1972 there were two major sons and the mother of the children who were apparently capable of meeting the needs in the family and so they did not apply for any job on compassionate grounds. For nearly 20 years, the family has pulle d on, apparently without any difficulty. In this background, we are of the view that the Central Administrative Tribunal acted illegally and wholly without juri sdiction in directing the authorities to consider the case of the respondent for appointment on compassionate grounds and to provide him with an appointment, if he is found suitable. (cid:29) 15. In Haryana SEB v. Naresh Tanwar, (1995) 6 SCC 476, it was stated that: (SCC p. 26, para 9) (cid:28)9. It has been indicated in the decision of Umesh Kumar Nagpal (1994) 4 SCC 138 , that compassionate appointment cannot be granted after a long lapse of reasona ble period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financi al problem being suffered by the members of the family of the deceased employee. In the other decision of this Court in Jagdish Prasad case (1996) 1 SCC 301, it has been also indicated that the very object of appointment of dependant of dec eased employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and s uch consideration cannot be kept binding for years. (cid:29) (emphasis in original) 16. In State of U.P. v. Paras Nath, (1998) 2 SCC 412, the Court has held that: ( SCC p. 414, para 5) (cid:28)5. The purpose of providing employment to a dependant of a government servant d ying in harness in preference to anybody else, is to mitigate the hardship cause d to the family of the employee on account of his unexpected death while still i n service. To alleviate the distress of the family, such appointments are permis sible on compassionate grounds provided there are rules providing for such appoi ntment. The purpose is to provide immediate financial assistance to the family o f a deceased government servant. None of these considerations can operate when t he application is made after a long period of time such as seventeen years in th e present case. (cid:29) 17. In Haryana SEB v. Krishna Devi, (2002) 10 SCC 246, the Court has observed th at: (SCC p. 247, para 7) (cid:28)7. As the application for employment of her son on compassionate ground was mad e by the respondent after eight years of death of her husband, we are of the opi nion that it was not to meet the immediate financial need of the family. The Hig h Court did not consider the position of law and allowed the writ petition relyi ng on an earlier decision of the High Court. (cid:29) 18. In National Hydroelectric Power Corpn. v. Nanak Chand, (2004) 12 SCC 487, th e Court has stated that: (SCC p. 490, para 5) (cid:28)5. It is to be seen that the appointment on compassionate ground is not a sourc e of recruitment but merely an exception to the requirement regarding appointmen ts being made on open invitation of application on merits. Basic intention is th at on the death of the employee concerned his family is not deprived of the mean s of livelihood. The object is to enable the family to get over sudden financial crises. (cid:29) 19. In State of J&K v. Sajad Ahmed Mir, (2006) 5 SCC 766, the Court has held tha t: (SCC pp. 770-71, para 11) (cid:28)11. & Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete wit h each other. It is in consonance with Article 14 of the Constitution. On the ba sis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances d emand, such as, death of the sole breadwinner and likelihood of the family suffe ring because of the setback. Once it is proved that in spite of the death of th e breadwinner, the family survived and substantial period is over, there is no n ecessity to say ’goodbye’ to the normal rule of appointment and to show favour t o one at the cost of the interests of several others ignoring the mandate of Art icle 14 of the Constitution. (cid:29)
Decision
In view of above, no ground has been made out for interference, at this stage. The appeal is dismissed.