Umesh
Kumar Nagpal Vs. State of Haryana [1994] INSC 288 (4 May 1994)
Sawant,
P.B. Sawant, P.B. Singh N.P. (J)
CITATION:
1994 SCC (4) 138 JT 1994 (3) 525 1994 SCALE (5)834
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by SAWANT, J.- These two petitions are
directed against the decision dated 18-12-1992 of the Division Bench of the
Punjab & Haryana High Court in Letters Patent Appeal No. 734 of 1992 and
CWP No. 6357 of 1992. Since they raise a point of considerable importance, it
has become necessary to deliver a short judgment while dismissing them at the
admission stage.
2.The
question relates to the considerations which should guide while giving
appointment 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 public services should be made strictly on the basis of open invitation of
applications and met-it. No other mode of appointment nor any other
consideration is Neither the Governments nor the 140 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. 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
dependent 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
legitimate expectations, and the Change in the status and affairs, of the
family engendered by the erstwhile employment which are suddenly upturned.
3.Unmindful
of this legal position, some Governments and public authorities have been
offering compassionate employment sometimes as a matter of course irrespective
of the financial condition of the family of the deceased and sometimes even in
posts above Classes III and IV. That is legally impermissible.
4.It
is for these reasons that we have not been in a position to appreciate
judgments of some of the High Courts which have justified and even directed
compassionate employment either as a matter of course or in posts above Classes
III and TV. We are also dismayed to find that the decision of 141 this Court in
Sushma Gosain v. Union of India' has been misinterpreted to the point of
distortion. The decision does not justify compassionate employment either as a
matter of course or in employment in posts above Classes III and IV. In the
present case, the High Court has rightly pointed out that the State
Government's instructions in question did not justify compassionate employment
in Class 11 posts.
However,
it appears from the judgment that the State Government had made at least one
exception and provided compassionate employment in Class II post on the
specious ground that the person concerned had technical qualifications such as
M.B.B.S., B.E., B.Tech. etc. Such exception, as pointed out above, is illegal,
since it is contrary to the object of making exception to the general rule. The
only ground which can justify compassionate employment is the penurious
condition of the deceased's family. Neither the qualifications of his dependent
nor the post which he held is relevant. It is for this reason that we are
unable to understand the following observations of the High Court in the
impugned judgment:
"We
are of the view that the extraordinary situations require extraordinary
remedies and it is open to the Government in real hard cases to deviate from
the letter and spirit of the instructions and to provide relief in cases where
it is so warranted. To hold as a matter of law that the Government cannot
deviate even minutely from the policy of providing appointment only against
Class III and Class IV posts, would be to ignore the reality of life these
days. It would be ridiculous to expect that a dependant of a deceased Class I Officer,
should be offered appointment against a Class III or IV post.
While
we leave it to the Government to exercise its discretion judiciously in making
appointments to Class I or 11 posts on compassionate grounds, yet a word of
caution needs to be struck. It is to be noted that such appointments should be
ordered in the rarest of rare cases, and in very exceptional circumstances. As
a matter of fact, we would recommend that the Government should frame a policy
even for such appointments."
5. It
is obvious from the above observations that the High Court endorses the policy
of the State Government to make compassionate appointment in posts equivalent
to the posts held by the deceased employees and above Classes III and IV.
It is
unnecessary to reiterate that these observations are contrary to law. If the
dependant of the deceased employee finds it below his dignity to accept the
post offered, he is free not to do so. The post is not offered to cater to his
status but to see the family through the economic calamity.
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 consideration for
such employment is not a vested right which can be exercised at any time in
future. The object being to enable the family to get over the financial crisis
which it faces at the time of the death of the sole 1
(1989)4SCC468:1989SCC(L&S)662:(1989)11ATC878:(1989)4SLR327 142 breadwinner,
the compassionate employment cannot be claimed and offered whatever the lapse
of time and after the crisis is over.
7.It
is needless to emphasise that the provisions for compassionate employment have
necessarily to be made by the rules or by the executive instructions issued by
the Government or the public authority concerned. The employment cannot be
offered by an individual functionary on an ad hoc basis.
8. For
the reasons given above, we dismiss the special leave petitions.
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