Power Corporation & Anr Vs. Nanak Chand & Anr  Insc 646 (15 October 2004)
Arijit Pasayat & C.K. Thakker Arijit Pasayat, J.
Challenge in this appeal is to the legality of judgment rendered by a
Division Bench of the Himachal Pradesh High Court directing that Nanak Chand
(respondent herein) be given compassionate appointment by the Union of India
through the Secretary, Power, Government of India, either by directing National
Hydroelectric Power Corporation (hereinafter referred to as the 'Corporation'
appellant no.1 herein) or in any of its projects/establishments, Corporations
appropriately. It was further directed that in case the present appellant shows
reluctance in spite of being asked by the Union of India to give appointment,
then the Union of India would be duty bound to engage him and if that
contingency arises the respondent herein would be entitled to back wages from
February 1, 1993 i.e.
the date of filing of the writ petition provided he was not gainfully
Factual background which is almost undisputed is as follows:
Father of respondent one Shri Shakti Prasad was working under Baira Siul
Hydroelectric Project of the Government of India. While so working he died on
10.12.1976. The said Shakti Prasad was survived by his widow and three
children. In full and final settlement of her claim the widow received Rs.19,200/-
as per the existing rules. On 20.1.1978 the said Baira Siul Hydroelectric
Project was handed over to the appellant-Corporation by Government of India by
virtue of a deed of transfer. After attaining majority in 1986 the respondent
filed an application for appointment on compassionate ground. The application
was rejected on the ground that application has been made after 10 years of the
death of his father and also that the Corporation had already surplus staff. On
9.5.1989 the Chairman- cum-Managing Director of the Corporation laid down
guidelines to the effect that request for compassionate appointment has to be
made within six months of the occurrence of death. Respondent was informed by
the authorities of the Corporation about the rejection of his application. On
30.6.1992 the respondent approached the Deputy Commissioner, Chamba for
compassionate appointment in the aforesaid Baira Siul Project. By letter dated
30.6.1992 the Deputy Commissioner informed the respondent that since his claim
for appointment had already been rejected, there was no scope for any further
consideration. Sometimes in the year 1993 i.e. after about 7 years of initial
rejection of the request, respondent filed a writ petition CWP No.
161 of 1993 before the Himachal Pradesh High Court. The writ petition was
contested on several grounds by the present appellants. It was the primary
stand that it was a highly belated approach for compassionate appointment and
in any event the Corporation was not required to deal with the matter.
The respondent's father was not an employee of the Corporation and when he
died he was employed by the Central Government. The High Court referred to instructions
issued by Government of India as contained in Swamy's Complete Manual and
Establishment and Administration, 5th Edition, Chapter XXIX and held that
respondent was entitled to the directions.
Learned counsel for the Corporation submitted that the directions given for
appointment on compassionate grounds were clearly erroneous. The instructions
of the Government as contained in Swamy's Manuals are not applicable to the
Corporation which had its own administrative instructions.
The highly belated application should have been thrown out at the threshold
by the High Court. The purpose of compassionate appointment is to meet
unforeseen financial constraints and therefore no direction should have been
given for appointment as done by the High Court.
In response, learned counsel for the respondent no. 1 submitted that keeping
in view the ground realities the High Court has given the direction and this is
not a fit case where any interference should be done by this Court.
It is to be seen that the appointment on compassionate ground is not a
source of recruitment but merely an exception to the requirement regarding
appointments 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 means of livelihood. The object is to enable the family to get
over sudden financial crises.
As was observed in State of Haryana and Ors. v. Rani Devi & Anr. (JT
1996 (6) SCC 646), it need not be pointed out that the claim of person
concerned for appointment on compassionate ground is based on the premises that
he was dependant on the deceased employee. Strictly this claim cannot be upheld
on the touchstone of Articles 14 or 16 of the Constitution of India. However,
such claim is considered 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. Appointment on compassionate ground cannot be
claimed as a matter of right. Die-in-harness scheme cannot be made applicable
to all types of posts irrespective of the nature of service rendered by the
deceased employee. In Rani Devi's case (supra) it was held that scheme
regarding appointment on compassionate ground if extended to all types of
casual or ad hoc employees including those who worked as apprentices cannot be
justified on constitutional grounds. In Life Insurance Corporation of India v.
Asha Ramchhandra Ambekar (Mrs.) and Anr. (1994 (2) SCC 718) it was pointed out
that High Courts and Administrative Tribunals cannot confer benediction
impelled by sympathetic considerations to make appointments on compassionate
grounds when the regulations framed in respect thereof do not cover and
contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana
and Ors. (1994 (4) SCC 138) that as a rule in public service appointment should
be made strictly on the basis of open invitation of applications and merit.
The appointment on compassionate ground is not another source of recruitment
but merely an exception to the aforesaid requirement taking into consideration
the fact of the death of employee while in service leaving his family without
any means of livelihood. In such cases the object is to enable the family to
get over sudden financial crisis. But such appointments on compassionate ground
have to be made in accordance with the rules, regulations or administrative
instructions taking into consideration the financial condition of the family of
In Smt. Sushma Gosain and Ors. v. Union of India and Ors. (1989 (4) SCC 468)
it was observed that in all claims of appointment on compassionate grounds,
there should not be any delay in appointment. The purpose of providing
appointment on compassionate ground is to mitigate the hardship due to death of
the bread-earner in the family. Such appointments should, therefore, be
provided immediately to redeem the family in distress. The fact that the ward
was a minor at the time of death of his father is no ground, unless the scheme
itself envisage specifically otherwise, to state that as and when such minor
becomes a major he can be appointed without any time consciousness or limit.
The above view was re-iterated in Phoolwati (Smt.) v. Union of India and Ors. (1991
Supp. (2) SCC 689) and Union of India and Ors. v. Bhagwan Singh (1995 (6) SCC
476). In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and
Ors. (1998 (5) SCC 192); it was observed that in matter of compassionate
appointment there cannot be insistence for a particular post. Out of purely
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, provisions are made for giving appointment to one of the dependants of
the deceased who may be eligible for appointment. Care has, however, to be
taken that provision for ground of compassionate employment which is in the
nature of an exception to the general provisions does not unduly interfere with
the right of those other persons who are eligible for appointment to seek
appointment against the post which would have been available, but for the
provision enabling appointment being made on compassionate grounds of the
dependant of the deceased employee. As it is in the nature of exception to the
general provisions it cannot substitute the provision to which it is an
exception and thereby nullify the main provision by taking away completely the
right conferred by the main provision.
In State of U.P. and Ors. v. Paras Nath (1998(2) SCC 412) it was held that
the purpose of providing employment to the dependant of a government servant
dying-in harness in preference to anybody else is to mitigate hardship caused
to the family of the deceased on account of his unexpected death while in
service. To alleviate the distress of the family, such appointments are
permissible on compassionate grounds provided there are Rules providing for
such appointments. None of these considerations can operate when the
application is made after a long period of time. In that case also the delay
was 17 years.
These aspects were highlighted in State of Manipur v. Md. Rajaodin (2003 (7)
SCC 511), State of Haryana & Anr. v. Ankur Gupta (2003 (7) SCC 704), Haryana
State Electricity Board v. Naresh Tanwar (1996 (8) SCC 23) and Haryana State
Electricity Board v. Hakim Singh (1997 (8) SCC 85) and Punjab National Bank and
Ors. v. Ashwini Kumar Taneja (Civil Appeal No.
5256 of 2004 decided on 16.8.2004) Above being the position, we find the
judgment of the High Court to be unsustainable. The same is, therefore, set
Our judgment, however, will not stand in the way of the respondent's case
being considered sympathetically under any scheme or by any administrative
decision in accordance with law.
The appeal is allowed with no orders as to costs.