Union of India & ANR
Vs. B. Kishore
J U D G M E N T
Aftab Alam, J.
appeal by special leave is directed against the judgment of the Division Bench of
the Madras High Court. By the judgment and order coming under appeal, the High Court
directed the appellants to include the name of the respondent in the list of candidates
waiting for appointment under the scheme of "compassionate
wife of the respondent K. Janaki died on September 1, 1993, while giving birth to
their second child. At that time she was working as a Senior Accountant in the Office
of the Directorate of Postal Accounts, Madras. On September 21, 1993, the respondent
made an application for payment of her death-cum-terminal dues. A rival claim was
raised by the mother of the deceased but the respondent was able to obtain the succession
certificate and on that basis he got payment of a sum of Rs.71,000/- as
death-cum-retirement gratuity of his deceased wife, in addition to a sum of Rs.2,998/-
per month as family pension.
January 11, 1994, the respondent made the request for compassionate appointment
but he was informed by the concerned departmental authorities that his claim for
compassionate appointment would be considered only after the settlement of the rival
claims for payment of the death-cum-terminal dues of K. Janaki. After payment of
the monetary dues to the respondent, his claim for appointment on compassionate
basis was taken up and he was 3asked to submit proof of passing the S.S.L.C. examination.
On July 9, 1996, the respondent made another representation for appointment on compassionate
grounds. His case was finally considered by the Circle Selection Committee and
he was informed by letter dated February 26, 1998, that he was not found entitled
to appointment on compassionate grounds because he was not considered to be
"in indigent circumstances".
respondent challenged the decision of the Circle Selection Committee before the
Central Administrative Tribunal, Madras Bench in O.A. No.610/1998. The Tribunal
dismissed the O.A. by order dated July 16, 1998. Against the order passed by the
Tribunal, the respondent went to the Madras High Court in Writ Petition No.12225/1998.
A Division Bench of the High Court allowed the Writ Petition with the direction
to the appellants to include his name in the list of candidates waiting for appointment
on compassionate basis. The High 4Court in the judgment coming under appeal observed
as follows:- "In deserving cases even when there is an earning member in the
family, compassionate appointment may be offered, if the family is found to be in
distress, with the prior approval of the Secretary of the Department
concerned."It went on to say: "The Scheme, therefore, does not lay emphasise
on the indigency as a criterion for withholding or offering compassionate appointment.
Compassionate appointment is to be made as a result of the death of the deceased
official and when his/her family is in immediate need of assistance." (emphasis
added)It further said: "Admittedly, there is a young son has to be looked after
and brought up. It cannot, therefore, be said that the family is not in need of
income. The fact that the family receives pension also no ground to decline appointment
nowhere provides that in case where the family is paid pension."
going through the judgment passed by the High Court, it is evident that it is based
on a complete misconception about the scheme of 5compassionate appointments. Contrary
to the High Court's observation, indigence of the dependents of the deceased
employee is the first pre-condition to bring the case under the scheme of "compassionate
appointment". The very purpose and object of the scheme is to provide immediate
succour to the family of an employee that, on his death, may suddenly find itself
in a state of destitution. If the element of indigence and the need to provide immediate
assistance for relief from financial deprivation is taken out from the scheme of
compassionate appointments, it would turn out to be a reservation in favour of the
dependents of an employee who died while in service which would be directly in conflict
with the ideal of equality guaranteed under Articles 14 and 16 of the Constitution.
State Bank of India v. Raj Kumar, (2010) 11 SCC 661, elucidating the nature of the
scheme of compassionate appointments this Court observed: "It is now well settled
that appointment on compassionate grounds is not a source of recruitment. On
the other hand it is an exception to the general rule that recruitment to public
services should be on the basis of merit, by an open invitation providing equal
opportunity to all eligible persons to participate in the selection process. The
dependants of employees, who die in harness, do not have any special claim or right
to employment, except by way of the concession that may be extended by the employer
under the rules or by a separate scheme, to enable the family of the deceased to
get over the sudden financial crisis. The claim for compassionate appointment is
therefore traceable only to the scheme framed by the employer for such employment
and there is no right whatsoever outside such scheme. An appointment under the scheme
can be made only if the scheme is in force and not after it is abolished/withdrawn.
It follows therefore that when a scheme is abolished, any pending application seeking
appointment under the scheme will also cease to exist, unless saved. The mere fact
that an application was made when the scheme was in force, will not by itself create
a right in favour of the applicant."
Central Government issued revised and consolidated instructions in connection with
the scheme of compassionate appointments under the 7Central Government vide Office
Memorandum dated October 9, 1998. Clause 1 of the Office Memorandum describes
the object of the Scheme as under:- "The object of the Scheme is to grant appointment
on compassionate grounds to a dependent family member of a Government servant
dying in harness or who is retired on medical grounds, thereby leaving 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 get over the
emergency." (emphasis added) Clause 5 lays down the eligibility criterion and
provides as follows:- "(a) The family is indigent and deserves immediate assistance
for relief from financial destitution; and (b) Applicant for compassionate appointment
shall be eligible and suitable for the post in all respects under the provisions
of the relevant Recruitment Rules." (emphasis added) Clause 7 deals with availability
of vacancies and sub-clause (b) provides as follows:- "(b) Compassionate appointments
can be made upto a maximum of 5% of vacancies falling under direct recruitment quota
in any Group `C' or `D' post. The appointing authority may hold back 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."
the writ petition filed by the respondent before the High Court it was stated that
he was unemployed. It was further stated that in August, 1988, one of his friends
took him to Singapore in search of employment. But there too the respondent was
unable to find a "lucrative job". He came back to India after staying
there for about four years in 1992. From the writ petition it appears that though
the respondent might have been struggling for financial upliftment, he certainly
cannot be described as an indigent or destitute.
case of the respondent clearly did not come under the revised and consolidated scheme
formulated by Office Memorandum dated October 9, 1998, that had come into force
when his case came up for consideration before the High Court. Even otherwise and
without any reference to the Office Memorandum dated October 9, 1998, the case of
the respondent does not meet or satisfy the basic object and purpose of appointment
on compassionate grounds.
High Court was, therefore, in error in passing the impugned order.
further appears that an important and relevant fact was completely missed out in
considering the respondent's claim for appointment on compassionate basis. From
the records it appears that in the verification appended to his OA before the Tribunal
he gave his age as 58 years in June, 1998. Unless his age is wrongly stated in the
verification to the OA, he would be 54 years of age when he made the application
for compassionate appointment and 61 years old when the High Court allowed his
Writ Petition. In other words, he was already beyond the age of superannuation and
there was no question of his appointment on compassionate ground or on any
light of the discussions made above, the order coming under appeal is wholly unsustainable.
It is set aside. The appeal is allowed but with no order as to costs.