State Of Himachal Pradesh vs Shashi Kumar

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.988 OF 2019 (Arising out of SLP(C) No.7079 of 2016)

STATE OF HIMACHAL PRADESH & ANR. APPELLANT(s)

VERSUS

SHASHI KUMAR RESPONDENT(s)

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J.

Leave granted.

The present appeal arises from a judgment of a

Division Bench of the High Court of Himachal Pradesh in a

batch of cases which dealt with the issue of

compassionate appointment.

The facts, insofar as they are material to this

appeal, are thus:

The father of the respondent, who was working as HFO

in the Horticulture Department at Kullu, died on 29 March

2005 while he was in service. On 8 May 2007, the

respondent submitted an application for compassionate

appointment. The application was forwarded by the Deputy Signature Not Verified Director, Horticulture at Kullu to the competent Digitally signed by SANJAY KUMAR Date: 2019.01.25 14:26:33 IST Reason: authorities on 14 September 2007. On 15 January 2008,

the Additional Secretary (Horticulture) to the Government

of Himachal Pradesh addressed a communication to the 2

Director of Horticulture stating that the income

certificate which had been forwarded together with the

application did not include the pension which the family

was receiving from the Government. Accordingly, the

Additional Secretary required that a certificate of

income, including pension, should be obtained from the

concerned SDM by the applicant.

The Writ Petition before the High Court was

instituted on 11 May 2015, well over seven years

thereafter. The respondent has averred that he had made

representations, but to no avail, as a result of which he

was eventually compelled to initiate proceedings under

Article 226 of the Constitution of India before the High

Court. The High Court consolidated a batch of cases,

both Letters Patent Appeals and Writ Petitions for

hearing. They emanated from a Policy dated 18 January

1990 framed by the State Government for providing

employment assistance on compassionate grounds to

dependants of government servants who have died in

harness, leaving a family in need of assistance. The

High Court, during the course of the judgment, framed as

many as nine issues which were in the following terms:

“(i) Whether the amount of family pension and other retiral benefits, received by the family of the deceased-employee, can be included in the family income for denying the compassionate appointment?

3 (ii) Which date would be relevant for applicability of the Policy - whether the date of death of the employee or the date when the application was presented, for the first time, for seeking em-

ployment on compassionate ground or the date on which the application came up for consideration before the Authorities, and whether a claim for compassionate appointment can be decided on the basis of subsequent amendment, when the applica- tion was presented prior to such amendment?

(iii) If an applicant was in lis and his case was directed to be reconsidered, whether the claim of such applicant is to be determined as per the policy which was existing at the time of passing the order or as per the policy which was in place at the time of staking claim for the first time or as per the policy existing at the time of con- sideration?

(iv) Whether the applicant can claim appointment on compassionate ground against a higher cadre, once he had been appointed in the lower cadre?

(v) In case a person is appointed on contract ba- sis, whether he is within his rights to seek ap- pointment on regular basis?

(vi) In a given set of cases, in one case the ap- pointment on compassionate ground has been of- fered against a Class-III post and in other case, the appointment has been offered to a Class-IV post, whether it amounts to discrimination?

(vii) Whether a person can claim compassionate ap- pointment after a considerable delay?

(viii) Whether requisite qualification or age can be relaxed?

4

(ix) In case one or more dependants of a deceased- employee is/are in service, though living sepa- rately, whether that can be made a ground to deny compassionate appointment to the other dependant of the deceased-employee?”

Insofar as the present appeal is concerned, the State

of Himachal Pradesh has contested the decision of the

High Court on issues (i) and (vii). Hence, for the

purposes of this appeal, the present judgment governs

only the above aspects of the case.

In order to appreciate the nature of the controversy,

it would be necessary to advert to the genesis of the

policy of the State Government.

On 18 January 1990, the Government of Himachal

Pradesh framed a policy for making compassionate

appointments. The policy indicates that it applies to

requests for the appointment of sons, daughters and near

relatives of government servants who die in harness,

leaving the family in immediate need of assistance.

Insofar as it is material, the Policy provides thus:

“Subject;- Appointment of sons/daughters/near re- lations of a government servant who died in har- ness, leaving his family in immediate need of as- sistance.

...

1) Policy:- The employment on compassionate grounds to the dependents of Govt. servants who die while in service is not to be provided 5

as a matter of right. It should be given only in deserving cases where the family of de-

ceased Govt. servant is left in indigent cir- cumstances requiring immediate means of sub- sistence. The concerned Administrative Depart- ments would satisfy themselves about the indi- gent circumstances of the family before ap- pointment on compassionate grounds is made.”

Paragraph 2 of the policy provides for its

applicability, in order of priority only to a widow, son

or an unmarried daughter and in the case of an unmarried

government servant to the father, mother, brother or

unmarried sister. Paragraph 2(a) reads as follows:

“2) To whom the policy is applicable:- The employ- ment assistance on compassionate grounds will be allowed in order of priority only to widow or a son or an unmarried daughter (in case of unmarried Govt. servant to father, mother brother and unmarried sister) of:

(a) a Govt. servant who dies while in service (including by suicide) leaving his family in immediate need of assistance.”

Paragraph 4 of the policy stipulates that an

appointment on compassionate grounds can be made only to

the lowest rung of Class-III and Class-IV posts carrying

a prescribed pay scale. Paragraph 8 of the Policy

stipulates that requests for the grant of employment

assistance should be received within three years of the 6

death of the government servant. However, where none of

the children of the deceased government servant had

attained majority at the time of death, the time limit

for receipt of a request for appointment will be

postponed to the attainment of the age of twenty one

years by the eldest son or unmarried daughter. Paragraph

8 is in the following terms:

“8) Belated requests for compassionate appoint- ments: Requests for grant of employment assis- tance should be received in the Deptt. con- cerned within three years of the death of the Government servant. In case where none of the sons/daughters of the deceased Government ser- vant attain majority (age of 18 years) at the time of the death of the Government ser- vant, the time limit for receipt of request for employment assistance in department concerned will be attainment of age of 21 years by the eldest son/un-married daughter. No relaxation will be allowed in entertaining requests beyond the above age except in the case of sons/un- married daughter/widow of deceased Govt. ser- vants belonging to the difficult areas as laid down in the Transfer Policy.

Paragraph 10 of the policy stipulates that the

government has introduced a number of welfare measures,

which have made a significant difference to the financial

position of families of government servants who die in

harness. Hence, the policy stipulates that benefits

received by the family on account of those welfare 7

measures “may be kept in view” while considering cases of

employment assistance on compassionate grounds. The

policy proceeds to enumerate the welfare measures which,

on the date of its formulation, were available to

families of deceased employees. Paragraph 10(c) of the

Policy, which has a bearing in this case, is in the

following terms:

“(c) The provision of employment assistance was introduced in 1958 and since then a number of welfare measures have been introduced by the Govt. which made significant difference in the financial position of the families of the Govt. servants dying in harness. The benefit received by the family on account of these measures may be kept in view while consider- ing cases of employment assistance on compas- sionate grounds. Such measures, in brief, which are at present available to the fami- lies of the deceased employees are as under:

(i) Ad-hoc ex-gratia grant @ 10 times the emoluments which the Government servant was receiving before death, subject to a minimum of Rs. 10,000/- and maximum of Rs.

30,000/-.

(ii) Grant of improved family pension.

(iii) Grant of death Gratuity as under:-

Length of Rate of gratuity service

a) Less than 2 times of emoluments. one year

b) One year 6 times of emoluments. or more but 8

less than 5 years

c) 5 years or 12 times of emoluments more but less than 20 years

d) 20 years Half of emoluments for or more every completed six monthly period of quali- fying service subject to a maximum of 33 times emoluments provided that the amount of Death Gra- tuity shall in no case, exceed one lakh rupees.

(iv) Employees Group Insurance Scheme:- Fi- nancial assistance to the family of the deceased Government servant as under:

(i) Class-IV employees- Rs. 10,000/-

(ii) Class-III employees- Rs. 20,000/-

(iii) Class-II employees- Rs. 40,000/-

(iv) Class-I employees- Rs. 80,000/-

(v) In addition nearly 2/3rd of the amount con-

tributed by the Government servant to the fund is also payable alongwith the above amounts.

(vi) Encashment of the leave at the credit of the deceased Govt. servant subject to the maximum of 240 days.

(vii) Entitlement of additional amount equal to the average balance in the GPF of the de- ceased Govt. servant during the three years immediately preceding the death of the sub- scriber subject to certain condition under the Deposit Linked Insurance Scheme.” 9

The Policy has undergone amendment from time to time.

On 24 August 2002, a clarification was issued in

regard to the expression “indigent circumstances” used in

the Policy. The clarification provided thus:

“……in this connection, references have been re- ceived from certain departments enquiring as to what constitutes “Indigent circumstances” and also requesting that some uniform guidelines on the sub- ject may be issued.

The matter has been considered carefully and it is noticed that specific guidelines with respect to what would amount to “indigent circumstances” will not be possible or practicable. “Indigent circum- stances” of a family are to be seen with specific reference to the assets i.e. immoveable and move- able property left behind by the deceased income from various sources i.e. assets, house(s), pen- sion, savings resulting to income employment status and number of employees within the extended family etc. as also liabilities i.e. number of dependents specially unmarried daughters aged parents etc. left behind by the deceased, some consideration to- wards the particular standard of life that the fam- ily of the deceased might be used to during the life time of the government employee etc. These are vital parameters that have to be kept in mind be- fore any decision is arrived at regarding admissi- bility of employment to the ward/dependent of the deceased employee. As the above would show the question of “indigent circumstances”, therefore has to be decided in each individual case after obtain- ing detailed information about all the relevant as- pects mentioned, so that employment on compassion-

10 ate grounds is not given as matter of routine. While every effort should be made to provide suit- able employment in all deserving cases. It should always be kept in mind that employment on compas- sionate ground can not be claimed as a matter of right. Also the competent authority should take full precautions to exclude the element of “pick and choose” while considering such cases.”

Subsequently, an office memorandum dated 4 April 2008

clarified that while considering whether the family of a

deceased employee is in indigent circumstances, no

certificate of any kind is required. The clarification,

inter alia, provided that:

“3. No indigent certificate of any kind is re- quired as per instructions. Only indigent cir- cumstances of the family are required to be looked into. This purpose can be achieved by examining the income of the family. There is no such certificate prescribed by the Govern- ment nor should indigent certificate be de- manded from the affected families.”

Another aspect of the Policy which requires mention

is the fixation of income slabs. On 1 November 2008, as

noticed by the High Court, the Secretary, Public Works

Department, addressed a communication to the Engineer-in-

Chief adverting to a letter dated 29 September 2008 of

the Finance Department, bearing No. PBW-A-B(2)-34/2006.

The income criteria which was prescribed by the Finance

Department was in the following terms:

11 “The Income Criteria fixed by the Finance Department takes into consideration maximum family income ceiling fixed by the finance Deptt. for a family for 4 members as Rs. 1.00 lac and for smaller families, the internal criteria is Rs. 25,000/- per person, per annum. Thus, if there is only one dependent, the overall income limit to be considered is Rs. 25,000/- per annum. In case, there are two dependents of the deceased, the income of the applicant should not exceed Rs. 50,000/- per annum. In case of three dependents, the overall income should not exceed Rs. 75,000/- per annum. The overall income limit is Rs. 1.00 lac per annum, even if family size is more than four. Gratuity, leave encashment, commutation amount are excluded for purpose of calculating family income but monthly pension/family pension, Dearness Relief, Interim Relief is included for calculation of yearly family income.”

The High Court has adverted to the fact that the

income limit of Rs.1,00,000/- was subsequently revised to

Rs.1,50,000/-. We have been informed during the course

of the hearing by Mr. P.S. Patwalia, learned senior

counsel appearing on behalf of the State, that this

revision took place on 20 April 2011.

The High Court while dealing with the first issue

which it framed for decision, held that the State is not

entitled to take into account family pension and other

terminal benefits in determining whether compassionate

appointment should be granted to the dependant of a

deceased employee.

In coming to this conclusion, the High Court has

relied upon a decision of this Court in Govind Prakash 12

Verma Vs. Life Insurance Corporation of India1 and on two

subsequent decisions in APSRTC,

Musheerabad Vs. Sarvarunnisa Begum2 and in Canara

Bank Vs. M. Mahesh Kumar3. Having held that the State is

not entitled to consider the family pension and other

terminal benefits received by the dependants of the

deceased employee, the High Court has held that the

income slab which was prescribed by the Finance

Department did not constitute an amendment of the Policy

and that, consequently, it must be disregarded in

deciding upon cases of compassionate appointment.

Assailing the view which has been taken by the High

Court, Mr. P.S. Patwalia, learned senior counsel urged

that the terms of the Policy dated 18 January 1990

envisage the grant of employment assistance to dependants

of government servants, where an employee of the State

has died while in service, leaving the family in indigent

circumstances. The submission is that the genesis of

compassionate appointment is that assistance should be

rendered to the family of an employee who dies in harness

in a case where the family is in immediate need of

subsistence and is otherwise left in indigent

circumstances. Learned senior counsel submitted that a

consistent line of authority of this Court establishes

the principle that there is no right to compassionate

1 (2005) 10 SCC289 2 AIR 2008 SCW 198 3 (2015) 7 SCC 412 13

appointment, but only an entitlement to be considered in

accordance with the prevailing scheme or the rules framed

by the employer, where such a scheme exists. In the

present case, it was urged that the Policy, as

subsequently amended, categorically requires that whether

the family is in indigent circumstances has to be

determined by taking into account the assets left behind

by the deceased, the income from various sources

including pension and the nature of the liabilities

including the number of dependants. Hence, when terms of

the Policy require that pensionary benefits should be

accounted for, it was urged that the High Court was not

justified in issuing a direction to ignore the Policy.

At the same time, it has been submitted that the State

does not take into account gratuity, leave encashment and

commutation. However, monthly pension, family pension,

dearness relief and interim relief are taken into

consideration. The rationale for excluding one time

payments is that, in the considered view of the State,

these do not enure to the benefit of the family over a

period of time. Be that as it may, it has also been

urged that the decision of the Finance Department to

prescribe an income ceiling or slab cannot be faulted.

Learned senior counsel submitted that the prescription of

an income slab subserves a fair assessment of individual

applications. It reduces the element of discretion and

and obviates a case by case analysis of what should or 14

should not be an income criterion for deciding the

indigent circumstances of a family. Finally, it was

urged, on the facts of the present case, that the

application which was submitted by the respondent in 2007

was dealt with by requiring the inclusion of the pension

which the family was receiving in the statement of

income. Upon the letter dated 15 January 2008 of the

Additional Secretary, the Writ Petition was filed on 11

May 2015, well over seven years thereafter and nearly ten

years after the death of the deceased employee. Hence,

it was submitted that the ultimate direction issued by

the High Court for consideration of the application is

manifestly misconceived. The purpose of compassionate

appointment is to enable the family of a deceased

employee to tide over an immediate crisis caused by the

death of the employee. Hence, delay of this nature, in

any event, should result in the rejection of the

application as well as the Writ Petition.

On the other hand, it has been submitted on behalf of

the respondent that the issue of delay ought not to come

in the way of the application for compassionate

appointment being considered, having regard to the fact

that Paragraph 8 of the Policy contemplates that where

none of the children of the deceased employee had

attained the age of majority, the time limit for the

submission of an application is extended till the

attainment of the age of twenty one years by the eldest 15

child. Though the respondent was not a minor on the date

of the death of the deceased employee, it was urged, by

analogy of reasoning, that delay, by itself, ought not to

result in the rejection of the application, particularly

since the upper age of recruitment in the State has been

extended to forty five years. On the aspect of the

inclusion of family pension, reliance was placed on the

decision of the High Court, which in turn is based on

certain judgments of this Court. Finally, on the income

slab, it has been submitted that apart from the

considerations which have weighed with the High Court, it

was not open to the Finance Department to amend the

Policy. Moreover, there is no basis for the income limit

of Rs.1,00,000/-, which was prescribed by the Finance

Department on 29 September 2008 as enhanced to

Rs.1,50,000/-. It was urged that as a result of the

prescription of an unduly low income limit, the benefit

of compassionate appointment will be denied to families

which are indigent and are in need of employment.

While considering the rival submissions, it is

necessary to bear in mind that compassionate appointment

is an exception to the general rule that appointment to

any public post in the service of the State has to be

made on the basis of principles which accord with

Articles 14 and 16 of the Constitution. Dependants of a

deceased employee of the State are made eligible by

virtue of the Pplicy on compassionate appointment. The 16

basis of the policy is that it recognizes that a family

of a deceased employee may be placed in a position of

financial hardship upon the untimely death of the

employee while in service. It is the immediacy of the

need which furnishes the basis for the State to allow the

benefit of compassionate appointment. Where the

authority finds that the financial and other

circumstances of the family are such that in the absence

of immediate assistance, it would be reduced to being

indigent, an application from a dependant member of the

family could be considered. The terms on which such

applications would be considered are subject to the

policy which is framed by the State and must fulfill the

terms of the Policy. In that sense, it is a well-settled

principle of law that there is no right to compassionate

appointment. But, where there is a policy, a dependant

member of the family of a deceased employee is entitled

to apply for compassionate appointment and to seek

consideration of the application in accordance with the

terms and conditions which are prescribed by the State.

The policy in the present case which was formulated

on 18 January 1990 categorically speaks of providing

employment assistance to dependants of government

servants who have died while in service, “leaving their

families in indigent circumstances”. The Policy, in

other words, is designed to meet the needs of those

families where the death of a government servant has left 17

them in indigent circumstances, requiring immediate means

of subsistence. The policy recognizes in Paragraph 10

that the benefits which are received by a family on

account of welfare measures are required to be

considered. Among them, the policy stipulates that

family pension and death gratuity are required to be

taken into account in assessing the financial

circumstances of the family. The Policy does not

preclude the dependants of a deceased employee from being

considered for compassionate appointment merely because

they are in receipt of family pension. What the Policy

mandates is that the receipt of family pension should be

taken into account in considering whether the family has

been left in indigent circumstances requiring immediate

means of subsistence. The receipt of family pension is,

therefore, one of the considerations which is to be taken

into account. Paragraph 10(c) of the Policy sets out the

measures provided by the State which have a bearing on

the financial need of the family.

In view of the clear terms of the Policy, we are of

the view that the High Court was in error in issuing a

mandamus to the Government to disregard its Policy. Such

direction could not have been issued by the High Court.

The High Court has drawn sustenance in issuing mandamus

in the above terms on a decision of this Court in Govind

Prakash Verma (supra). That was a case of compassionate

appointment where in the course of the proceedings before 18

the High Court, a learned Single Judge had directed the

Life Insurance Corporation, which was the employer of the

deceased employee, to make an enquiry and submit a report

on whether the members of the family engaged in gainful

employment were also supporting the family of the

deceased employee. This Court, in an appeal against the

judgment of the High Court rejecting the petition for

compassionate appointment, observed that the officer who

had enquired into the matter in pursuance of the order of

the learned Single Judge completely omitted to furnish

any report on the points which were required by the High

Court to be investigated. The High Court rejected the

petition on the ground that the family was in receipt of

family pension and other amounts towards terminal

benefits. Reversing the view of the High Court, a two-

Judge Bench of this Court held thus:

“6. In our view, it was wholly irrelevant for the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according to the appellant, has now been reduced to half) and other amounts paid on account of terminal benefits under the Rules...”

The decision in Govind Prakash Verma (supra) has been

considered subsequently in several decisions. But,

before we advert to those decisions, it is necessary to

note that the nature of compassionate appointment had

been considered by this Court in Umesh Kumar Nagpal Vs. 19

State of Haryana4. The principles which have been laid

down in Umesh Kumar Nagpal (supra) have been subsequently

followed in a consistent line of precedents in this

Court. These principles are encapsulated in the

following extract:

“2. ...As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the 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

4 (1994) 4 SCC 138 20

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 legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.”

Specifically in the context of considering the

financial circumstances of the family of the deceased

employee, several judgments of this Court have elaborated

on the principles to be followed.

The decision in General Manager (D&PB) Vs. Kunti

Tiwary5 involved an interpretation of an office

memorandum dated 7 August 1996 circulated to all banks in

the light of the decision in Umesh Kumar Nagpal (supra).

The Indian Banks Association adopted the directions of

this Court in the Scheme which was proposed for the

appointment of heirs of deceased employees. The Scheme

contemplated that in order to determine the financial

condition of the family, the following amounts would have

5 (2004) 7 SCC 271 21

to be taken into account:

“7...(a) Family pension.

(b) Gratuity amount received.

(c) Employee's/employer's contribution to provident fund.

(d) Any compensation paid by the Bank or its Welfare Fund.

(e) Proceeds of LIC policy and other investments of the deceased employee.

(f) Income of family from other sources.

(g) Employment of other family members.

(h) Size of the family and liabilities, if any, etc.”

Eventually, this recommendation was accepted in the

Scheme. In the light of these recommendations and the

Scheme, this Court observed that where the family of a

deceased employee was not left without means of

livelihood, the claim for compassionate appointment could

not be sustained. It may be noted that in that case it

was on a review of the overall financial position of the

family, including amounts received towards terminal

benefits that the decision was taken.

The decision of this Court in Punjab National

Bank Vs. Ashwani Kumar Taneja6 followed the same

principle. While reiterating the view which was taken in

Kunti Tiwary (supra), this Court held that the Scheme

specified the amounts which were required to be taken

into consideration.

The decision in State Bank of India Vs. Somvir Singh7

has noticed the scheme for appointment of dependants of

6 (2004) 7 SCC 265 7 (2007) 4 SCC 778 22

deceased employees on compassionate grounds framed by the

State Bank of India. The Court expressly held that the

authorities were not in error in taking account of the

terminal benefits, investments and the monthly family

income including the family pension paid by the Bank.

The view of this Court finds expression in the following

extract:

“12. The competent authority while considering the application had taken into consideration each one of those factors and accordingly found that the dependants of the employee who died in harness are not in penury and without any means of livelihood. The authority did not commit any error in taking the terminal benefits and the investments and the monthly family income including the family pension paid by the Bank into consideration for the purposes of deciding as to whether the family of late Zile Singh had been left in penury or without any means of livelihood. The scheme framed by the appellant Bank in fact mandates the authority to take those factors into consideration. The authority also did not commit any error in taking into consideration the income of the family from other sources viz. the agricultural land.” (emphasis supplied)

In the view of this Court, the only issue to be

considered was whether the claim for compassionate

appointment had been considered in accordance with the

Scheme. The income of the family from all sources was

required to be taken into consideration according to the

Scheme. This having been ignored by the High Court, the

appeal filed by the Bank was allowed.

23

The judgment of a Bench of two-Judges in Mumtaz Yunus

Mulani Vs. State of Maharashtra8 has adopted the principle

that appointment on compassionate grounds is not a source

of recruitment, but a means to enable the family of the

deceased to get over a sudden financial crisis. The

financial position of the family would need to be

evaluated on the basis of the provisions contained in the

Scheme. The decision in Govind Prakash Verma (supra) has

been duly considered, but the Court observed that it did

not appear that the earlier binding precedents of this

Court have been taken note of in that case.

In Union of India Vs. Shashank Goswami9, this Court

considered a circular issued by the Office of the

Comptroller and Auditor General of India in terms of

which the total income of the family from all sources,

including terminal benefits received, was required to be

taken into account. Income limits were specified in the

circular for Group ‘B’, Group ‘C’ and Group ‘D’ posts.

Taking note of the fact that a family pension has been

authorized to the widow of the deceased employee, this

Court held that the case of the dependant did not fall

within the income limits meant for Group ‘C’ posts.

The same principle has been reiterated in another

decision of a Bench of two-Judges of this Court in

State Bank of India Vs. Surya Narain Tripathi10. 8 (2008) 11 SCC 384 9 (2012) 11 SCC 307 10 (2014) 15 SCC 739 24

While adverting to a submission of learned counsel based

on the decision in Govind Prakash Verma (supra), this

Court noted thus:

“8. He relied upon the judgment of this Court in Govind Prakash Verma v. LIC[Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] where a view has been taken that the compassionate appointment cannot be refused on the ground that another member of the family had received appropriate employment and the service benefits were adequate. We may humbly state that this view runs counter to the view which was taken earlier in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] which was not cited before the Court in Govind Prakash [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] . The subsequent two judgments which were referred above also take the same view as in Umesh Kumar Nagpal[Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 :

1994 SCC (L&S) 930 : (1994) 27 ATC 537] . Mr Vikas Singh has drawn our attention to the judgment in SBIv. Somvir Singh [SBI v. Somvir Singh, (2007) 4 SCC 778 : (2007) 2 SCC (L&S) 92] where the 1998 Scheme has been considered.

9. In all the matters of compassionate appointment it must be noticed that it is basically a way out for the family which is financially in difficulties on account of the death of the breadearner. It is not an avenue for a regular employment as such. This is in fact an exception to the provisions under Article 16 of the Constitution. That being so, if an employer points out that the financial arrangement made for the family subsequent to the death of the employee is adequate, the members of the family cannot insist that one of them ought to be provided a comparable appointment. This being the principle which has been adopted all throughout, it is difficult for us to accept the submission made on behalf of the respondent.”

Now, it is in this background that it would be

necessary to advert to the decision in Canara Bank 25

(supra). A Scheme for compassionate appointment of 8 May

1993 was prevalent in Canara Bank when the employee died

on duty in October 1998. Faced with the rejection of an

application for compassionate appointment, the High Court

was moved in a Writ Petition in which a learned Single

Judge issued a direction for reconsideration of the claim

for appointment. During the pendency of the appeal

before the Division Bench, the Scheme for compassionate

appointment was replaced by a new Scheme providing for ex

gratia in lieu of appointment. The main issue which fell

for consideration before this Court was whether the

subsequent Scheme which was formulated in 2005 providing

for ex gratia payment would govern or whether the

application would have to be disposed of on the basis of

the earlier Scheme of 1993. It may be noted that the

application for compassionate appointment in that case

had been rejected on the ground that the family of the

respondent was not in indigent circumstances, as required

by the Scheme for compassionate appointment of 1993.

Dealing with the applicability of the subsequent

Scheme, a Bench of two-Judges of this Court held,

following the earlier decision in State Bank of India Vs.

Jaspal Kaur11, that the cause of action to be considered

for compassionate appointment arose when the earlier

Scheme was in force. Hence, the claim could not be

decided on the basis of the subsequent Scheme which

11 (2007) 9 SCC 571 26

provided only for the payment of ex gratia. Moreover, as

a matter of fact, the subsequent scheme was superseded in

2014 by reviving the Scheme for the provision of

compassionate appointment.

Hence, the issue which has been dealt with in Canara

Bank (supra) is whether the application for grant of

compassionate appointment could have been rejected on the

basis of a scheme which had come into force after the

date of submission of the application. That, as this

Court observed, was the main question which fell for

consideration. The Bench of two-Judges, however, also

noted that it was urged on behalf of the appellant – Bank

that the family of the respondent was in receipt of

family pension. This, the Court held, was of no

consequence in considering the application for

compassionate appointment.

Learned senior counsel appearing on behalf of the

appellants has sought to distinguish the above

observations, in the judgment in Canara Bank (supra), by

submitting that it is not the case of the State of

Himachal Pradesh that mere receipt of family pension

would disable an applicant from submitting an application

for compassionate appointment or preclude consideration

of the claim. On the contrary, the submission which is

urged is that the Scheme requires consideration of all

relevant sources of income and hence, receipt of family

pension would be one of the criteria which would be taken 27

into consideration in determining as to whether the

family of the deceased employee is in indigent

circumstances.

We find merit in this submission, for the simple

reason, that it is in accord with the express terms of

the Scheme of 18 January 1990, as modified by the State.

The Scheme contemplates that payments which have been

received on account of welfare measures provided by the

State including family pension are to be taken into

account. Plainly, the terms of the Scheme must be

implemented.

For these reasons, we have come to the conclusion

that the High Court was not justified, based on the

decision in Govind Prakash Verma (supra) in issuing a

direction to the State to act in a manner contrary to the

express terms of the Scheme which require that the family

pension received by the dependants of the deceased

employee be taken into account.

That leads the Court to the next aspect of the matter

relating to the fixation of an income slab. In our view,

the fixation of an income slab is, in fact, a measure

which dilutes the element of arbitrariness. While,

undoubtedly, the facts of each individual case have to be

borne in mind in taking a decision, the fixation of an

income slab subserves the purpose of bringing objectivity

and uniformity in the process of decision making. The

High Court was of the view that it was not open to the 28

Finance Department to amend the Scheme. The circulars

which are issued by the Finance Department cannot be

construed to be an amendment of the policy. They are

really clarificatory of the intent and purpose of the

Scheme. The circulars are explanatory, since they are

intended to guide the decision maker on the concept of

indigency which is incorporated in the Scheme. In fact,

as we have noted earlier, in the decision of this court

in Shashank Goswami(supra), the Court was specifically

dealing with a circular of the Comptroller and Auditor

General of India which had imposed income limits

respectively for Group ‘B’, ‘C’ and ‘D’ posts for the

purpose of guiding the decision in the case of

compassionate appointment. The fixation of income

limits was not construed to be and is not an arbitrary

exercise of power. However, what we find from the record

of this case is that the income limit was fixed (as the

High Court observed) on 29 September 2008 by the letter

of the Finance Department. The income limit of

Rs.1,00,000/- for a family of four persons has since been

revised to Rs.1,50,000/- on 20 April 2011. Mr. P.S.

Patwalia has, on instructions, stated before this Court

that this ceiling has been reiterated on 27 July 2017.

What should be the appropriate income criterion is

undoubtedly a matter of policy for the State Government

to determine. However, we would impress upon the State

Government the need to periodically revise the income 29

limits preferably at intervals of three years. Inflation

and the increase in the cost of living have an important

bearing on financial exigencies faced by families of

serving as well as deceased employees. In fixing the

income criteria for considering cases of compassionate

appointment, it would be appropriate if the State

revisits the income limit at periodic intervals, as we

have indicated above. We clarify that it would be open

to the State to revise the income limits at a frequency

of less than three years, if the State is so advised.

Insofar as the individual facts pertaining to the

respondent are concerned, it has emerged from the record

that the Writ Petition before the High Court was

instituted on 11 May 2015. The application for

compassionate appointment was submitted on 8 May 2007.

On 15 January 2008 the Additional Secretary had required

that the amount realized by way of pension be included in

the income statement of the family. The respondent

waited thereafter for a period in excess of seven years

to move a petition under Article 226 of the Constitution.

In Umesh Kumar Nagpal (supra), this Court has emphasized

that the basis of a scheme of compassionate appointment

lies in the need of providing immediate assistance to the

family of the deceased employee. This sense of immediacy

is evidently lost by the delay on the part of the

dependant in seeking compassionate appointment. 30

We are not impressed with the submission that delay

should not be taken into account since Paragraph 8 of the

Scheme contemplates that in a situation where all the

dependant children of the deceased employee have yet to

attain the age of majority, the time limit for submission

of an application is extended until the first of the

children attains the age of twenty one years. A case

where each of the children is a minor falls in a

different class altogether. This cannot be equated with

a situation where a dependant of a deceased employee who

was a major on the date of death fails to submit an

application within a reasonable period of time from the

death of the employee. This aspect of delay has been

dealt with in other decisions of this Court, including

State of J&K Vs. Sajad Ahmed Mir12 and Local

Administration Department Vs. M. Selvanayagam13.

We see no reason or purpose in now directing the

State to reconsider its decision in the case of the

respondent which would only result in another round of

fruitless litigation. In our view, the respondent is

debarred from seeking compassionate appointment by the

delay as well as by the lapse of time which has taken

place.

In the circumstances, we allow the appeal in the

following terms:

12 (2006) 5 SCC 766, para 11 13 (2011) 13 SCC 42, para 11, 12 and 13 31

(i) The Writ Petition (CWP No.3652 of 2015) filed by

the respondent before the High Court shall stand

dismissed and the direction of the High Court for

reconsideration of the application for compassionate

appointment shall stand set aside;

(ii) The direction issued by the High Court to the

appellants to desist from taking into account the family

pension and other terminal benefits is unsustainable in

law and is accordingly set aside;

(iii) While we confirm the decision of the State

Government to fix income limits in order to satisfy the

terms of eligibility for compassionate appointment, we

expect that the State Government shall, in compliance

with the Policy, revisit the income limits at intervals

of three years or earlier and consider whether a revision

is warranted having regard to the cost of living,

inflation and other relevant facts and circumstances.

The appeal is disposed of in the above terms. No

costs.

.............................J. (DR. DHANANJAYA Y. CHANDRACHUD)

.............................J. (HEMANT GUPTA)

NEW DELHI JANUARY 16, 2019