Union Of India & Anr vs B. Kishore

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 appointments".

2. The wife of the respondent K. Janaki died on

September 1, 1993, while giving birth to their

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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.

3. On 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

3

asked 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".

4. The 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

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Court 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."

5. On going through the judgment passed by the

High Court, it is evident that it is based on a

complete misconception about the scheme of

5

compassionate 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.

6. In State Bank of India v. Raj Kumar, (2010) 11

SCC 661, elucidating the nature of the scheme of

compassionate appointments this Court observed:

6 "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."

7. The Central Government issued revised and

consolidated instructions in connection with the

scheme of compassionate appointments under the

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Central 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:-

8 "(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."

8. In 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.

9. The 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

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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.

10. The High Court was, therefore, in error in

passing the impugned order.

11. It 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

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was no question of his appointment on compassionate

ground or on any other grounds.

12. In 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.

......................................................J.

(Aftab Alam)

......................................................J.

(R.M. Lodha)

New Delhi;

April 6, 2011.