Bhawani Prasad Sonkar
Vs Union of India & Ors.
J U D G M E N T
D.K. JAIN, J.:
appeal, by grant of special leave, is directed against the judgment dated 1st September,
2003 delivered by the High Court of Judicature at Allahabad at Lucknow, whereby
the writ petition filed by the appellant herein, seeking compassionate appointment,
has been dismissed on the ground that he did not fulfil the conditions envisaged
in the Railway Board Circular dated 29th November, 2001.
father, Mr. Prahladji Sonkar, was posted as a Guard Mail/Express, North Eastern
Railway at the Lucknow Junction. Respondent No. 2 viz. the Senior Divisional Karmik
Adhikari, North Eastern Railway (N.E.R.), Lucknow directed the appellant's father
to appear before the Medical Board for a medical examination. Accordingly, appellant's
father appeared before the Medical Board and was declared medically unfit in A2,
A3, B1 and B2 categories vide certificate dated 6th March, 1998. However, he
was found fit in C1 and C2 categories and was directed to appear for another medical
examination after six months.
appellant's father again appeared for a medical examination and vide
certificate dated 13th July, 1999, he was declared medically unfit as
de-categorized employee. Nevertheless, he was found fit in category B1 and below.
Thereafter, on 9th August, 1999, appellant's father appeared before the Standing
Committee which decided to retire him without offering him any alternate employment,
as stipulated in the service rules. Ultimately, appellant's father was retired
from service vide retirement order dated 30th August, 1999 issued by respondent
No. 3 viz. Divisional Railways Manager (Karmik), Lucknow, which stated that: "Shri
Prahlad Ji Sonkar, Guard Mail/Express in the pay scale of (5500-9000) at
Lucknow Junction who having been declared as decategorised employee has been
recommended by the standing committee for retirement, is retired with immediate
this juncture, it would be relevant to note that an appointment on compassionate
ground in the Railways was governed by Railway Board Circular dated 22nd
September, 1995 which provided that:
a. "In terms of the
instructions contained in para I(iv) of Board's letter No. E(NG)III/78/RC-1/1 dated
07.04.1983 and 03.09.1983, appointment on compassionate grounds is permissible where
a Railway employee becomes medically decategorised for the job he is holding and
no alternative job with the same employee is but it is not accepted by the employee
and he chooses to retire from service.
b. The question whether appointment
on compassionate ground can be considered in the case of a medically decategorised
employee who does not wait for the Administration to identify an alternative job
for him but chooses to retire under consideration of the Board.
c. After careful consideration
of the matter, Board have decided that in partial modification of Board's letter
No. E (NG)III/78/RC-1/1 dated 03.09.1983, in the case of medically decategorised
employee, compassionate appointment of an eligible ward may be considered also in
cases where the employee concerned does not wait for the administration to identify
an alternative job for him but chooses to retire and makes a request for (sic)
is also pertinent to mention here that on 29th April, 1999, the Railway Board
issued a circular stating, inter alia, that in light of the mandate of the Persons
with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995, employees who become incapacitated from holding the
post they were currently holding, but found eligible for retention in service in
posts corresponding to lower medical category, shall be offered alternative
employment in the posts for which they are found suitable.
father moved an application dated 1st September, 1999, before respondent No. 2
requesting that his son be given compassionate appointment as a Class IV
employee. Since there was no response to the said request, the father of the
appellant moved another application, dated 30th December, 1999, before
respondent No. 3. On 18th January, 2000, the Railway Board issued a letter stating
that when an employee is declared as medically unfit to perform the work which
he was performing but is found to be fit to perform work in a lower category,
any request for giving compassionate employment to such employee's ward would not
be considered if the employee opts for voluntary retirement after being de-categorized.
on 29th November, 2001, the General Manager (Personnel), Gorakhpur issued a
letter stating that in case of employees who opted for voluntary retirement after
29th April, 1999, the cases of wards of only totally incapacitated employees
would be considered for appointment on compassionate grounds. In pursuance of the
same, respondent No. 3 issued a letter dated 15th February, 2002 to appellant's
father stating that the application for appointment of his son on compassionate
ground was not found fit for consideration by the competent authority.
aggrieved, the appellant preferred an Original Application before the Central
Administrative Tribunal, Lucknow (for short "the Tribunal").
order dated 31st December, 2002, the Tribunal dismissed the Original
Application, observing thus: "I have considered the facts of the case and
submissions made on behalf of the parties, and I am of the view that the O.A. deserves
to be dismissed on the basis of the circular letter dated 29.11.2001 which had the
effect of superseding the earlier instructions on the subject. Since, the
applicant's father was not totally incapacitated and retired on 30.8.99, the claim
of the applicant for compassionate appointment has to be considered in the
light of the instructions of the Railway Board letter dated 29.11.2001 according
to which he is not eligible for compassionate appointment."
being aggrieved, the appellant filed a writ petition before the High Court. As afore-mentioned,
the High Court has, vide the impugned judgment, dismissed the petition, stating
that: "The Tribunal has recorded clear-cut finding to the effect that the petitioner
was not eligible for any compassionate appointment which (sic) could be offered
as envisaged in the policy decision of the Railway Board as indicated in the Circular
dated 29.11.2001, were not satisfied. .............................................................................
Taking into consideration the facts and circumstances of the case as brought on
record in their totality no justifiable ground 5 for any interference by this Court
can be said to have been made out while exercising the extraordinary
jurisdiction under Article 226 of the Constitution."
the appellant also preferred a review application before the Tribunal for
reviewing its earlier order dated 31st December, 2002. Vide order dated 5th March,
2004, the said application was dismissed by the Tribunal on the ground that the
same was barred by limitation.
the present appeal.
D.P. Chaturvedi, learned counsel appearing on behalf of the appellant, while
assailing the impugned judgment, strenuously urged that having retired appellant's
father without offering him a suitable alternative job, despite the fact that he
was found medically fit in category B1, the respondents were obliged to appoint
the appellant in terms of instructions dated 7th April, 1983 and 3rd September,
1983, which were reiterated in Circular dated 22nd September, 1995.
contra, Mr. Ashok Bhan, learned counsel appearing on behalf of the respondents,
contended that appellant's father, having opted for voluntary retirement in terms
of the Railway Board's letter dated 18th January, 2000, could not seek
appointment of his son on compassionate ground. Learned counsel urged that the
appellant has not brought any material on record to substantiate his plea that
his father was forced to retire.
it is well settled that compassionate employment is given solely on humanitarian
grounds with the sole object to provide immediate relief to the employee's
family to tide over the sudden financial crisis and cannot be claimed as a
matter of right. Appointment based solely on descent is inimical to our
Constitutional scheme, and ordinarily public employment must be strictly on the
basis of open invitation of applications and comparative merit, in consonance with
Articles 14 and 16 of the Constitution of India. No other mode of appointment is
permissible. Nevertheless, the concept of compassionate appointment has been recognized
as an exception to the general rule, carved out in the interest of justice, in certain
exigencies, by way of a policy of an employer, which partakes the character of
the service rules. That being so, it needs little emphasis that the scheme or the
policy, as the case may be, is binding both on the employer and the employee. Being
an exception, the scheme has to be strictly construed and confined only to the
purpose it seeks to achieve. We do not propose to burden this judgment with reference
to a long line of decisions of this Court on the point. However, in order to recapitulate
the factors to be taken into consideration while examining the claim for
appointment on compassionate ground, we may refer to a few decisions.
Umesh Kumar Nagpal Vs. State of Haryana & Ors.1, while emphasising that a
compassionate appointment cannot be claimed as a matter of course or in posts above
Class III and IV, this Court had observed that: "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. What is further, mere death of an employee in harness
does not 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
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. The posts in Classes III and IV
are the lowest posts in non-manual and manual categories and hence they alone
can be offered on compassionate grounds, the object being to relieve the
family, of the financial destitution and to help it get over the emergency. 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 dependant 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 to the rule made in favour of the family of
the deceased employee is in consideration of the services rendered by him and the
1 (1994) 4 SCC 138 legitimate expectations, and the change in the status and
affairs, of the family engendered by the erstwhile employment which are suddenly
in Steel Authority of India Limited Vs. Madhusudan Das & Ors.2, this Court
has observed that: "This Court in a large number of decisions has held that
the appointment on compassionate ground cannot be claimed as a matter of right.
It must be provided for in the rules. The criteria laid down therefor viz. that
the death of the sole bread earner of the family, must be established. It is meant
to provide for a minimum relief. When such contentions are raised, the constitutional
philosophy of equality behind making such a scheme is taken into consideration.
Articles 14 and 16 of the Constitution of India mandate that all eligible
candidates should be considered for appointment in the posts which have fallen vacant.
Appointment on compassionate ground offered to a dependant of a deceased
employee is an exception to the said rule. It is a concession, not a right."
(See also: General Manager, State Bank of India & Ors. Vs. Anju Jain3.)
V. Sivamurthy Vs. State of Andhra Pradesh & Ors.4, this Court while observing
that although appointment 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, yet appointments on compassionate
grounds are well recognized exception to the general rule, carved out in the interest
of justice to meet certain 2 (2008) 15 SCC 5603 (2008) 8 SCC 4754 (2008) 13 SCC
730 contingencies, highlighted the following two well-re cognised contingencies
as exceptions to the general rule : "(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."
while considering a claim for employment on compassionate ground, the following
factors have to be borne in mind:
employment cannot be made in the absence of rules or regulations issued by the Government
or a public authority. The request is to be considered strictly in accordance with
the governing scheme, and no discretion as such is left with any authority to
make compassionate appointment dehors the scheme.
application for compassionate employment must be preferred without undue delay and
has to be considered within a reasonable period of time.
appointment on compassionate ground is to meet the sudden crisis occurring in
the family on account of the death or medical invalidation of the bread winner while
in service. Therefore, compassionate employment cannot be granted as a matter of
course by way of largesse irrespective of the financial condition of the deceased/incapacitated
employee's family at the time of his death or incapacity, as the case may be.
employment is permissible only to one of the dependants of the deceased/incapacitated
employee, viz. parents, spouse, son or daughter and not to all relatives, and
such appointments should be only to the lowest category that is Class III and IV
on the touchstone of these broad guidelines governing appointment on compassionate
ground, we are of the opinion that the appellant has made out a case for such
appointment. It is manifest that in terms of circular dated 29th November, 2001
only those employees, who have been totally incapacitated from performing any service
after 29th April, 1999 were entitled to seek compassionate employment for their
wards. In the instant case, appellant's father retired on 30th August, 1999 i.e.
after 29th April, 1999, but was not offered alternative employment in terms of
the Circular dated 29th April, 1999.
circular/letter dated 29th November, 2001, on which reliance was placed while rejecting
appellant's claim has to be understood in its correct perspective. Evidently, it
seeks to limit the benefit of compassionate employment to only those incapacitated
employees who had been retired after 29th April, 1999, as in case of employees
who were found fit for performing services in a lower category, Circular dated
29th April, 1999 would be applicable, and the Railways was bound to offer alternative
employment to such employees. It flows there from that after 29th April 1999, those
employees who did not accept the alternative employment, and opted for
voluntary retirement could not be given the benefit of compassionate employment
for their wards.
the instant case, the respondents have not placed any material on record to
establish that the appellant's father was offered any alternative employment in
terms of Circular dated 29th April, 1999. On the contrary, it appears that the Standing
Committee recommended his retirement. Having denied appellant's father the
benefit of Circular dated 29th April 1999, the respondents cannot claim that Circular
dated 29th November, 2001 was applicable to appellant's father, disentitling
him from seeking employment on compassionate ground for his son as he was not
totally incapacitated and had sought voluntary retirement. It is clear from the
retirement order dated 30th August, 1999 that the appellant's father was retired
from service pursuant to the recommendation of the Standing Committee.
light of the fact that Circular dated 29th November, 2001 was not applicable in
the case of appellant's father, inasmuch as the benefit of the 29th April, 1999
Circular was not extended to him, and he was made to retire from service, we
are of the opinion that the earlier circular dated 22nd September, 1995 is
applicable in the instant case. Consequently, the appellant would be entitled
to employment on compassionate ground as the said Circular contemplates
compassionate employment for the wards of those employees who have been medically
de-categorized, and have retired, without being offered an alternative suitable
job. We are unable to accept the plea of the respondents that on being de-categorized,
appellant's father had opted for voluntary retirement.
light of the foregoing discussion, the appeal is allowed; the impugned judgment
is set aside and it is directed that the appellant shall be granted employment
on compassionate ground within three months of the receipt of copy of this
judgment, subject to his complying with other eligibility conditions, as
applicable on 1st September, 1999. However, for all intents and purposes, he
shall be deemed to be in service from the date of actual joining.
the facts and circumstances of the case, there shall be no order as to costs.
J. (H.L. DATTU)