final thesis of sudhir kumar.pdf
TRANSCRIPT
A STUDY OF LEGAL PROVISIONS AND CASES PERTAINING TO DYING IN HARNESS RULE
(COMPASSIONATE APPOINTMENT) (A Special Reference To Public Sector Employment
In The State Of Uttar Pradesh)
THESIS SUBMITTED TO THE
UNIVERSITY OF LUCKNOW
FOR THE AWARD OF DEGREE OF
DOCTORATE OF PHILOSOPHY
Supervisor : Dr. Rakesh Kumar Singh Associate Professor Faculty of Law, University of Lucknow, Lucknow
By : Sudhir Kumar Research Scholar
Faculty of Law, University of Lucknow,
Lucknow
FACULTY OF LAW UNIVERSITY OF LUCKNOW,
LUCKNOW, U.P. (INDIA)
2014
Certificate This is to certify that Mr. Sudhir Kumar, Researcher Scholar,
Faculty of Law, University of Lucknow, Lucknow has completed his
thesis, titled "A Study of Legal Provision and Cases Pertaining to Dying in Harness Rule, (Compassionate Appointment), (A Special Reference to Public Sector Employment in the State of Uttar Pradesh)" under my supervision, for the award of degree of Ph.D. of
University of Lucknow, Lucknow. He is completed all formalities as
required under the ordinance and the thesis is forwarded for evaluation.
(Dr. Rakesh Kr. Singh) Associate Professor
Faculty of Law, University of Lucknow,
Lucknow
CONTENTS PRELIMINARY
(i) Supervisor Certificate (ii) Contents i-iv (iii) Acknowledgment v-vi (iv) Abbreviations vii-viii (v) List of Cases ix-xv
CHAPTER I Introduction 1-14
CHAPTER II Historical Background 15-33 Various Legislations to Safeguard the Interest of Workman
Employee: Death-cum-Retirement Benefit Workmen Compensation Act, 1923 Workman Compensation Laws in Various Countries
Australia Canada Germany Mexico India
The Employees State Insurance Act, 1948 Pension Scheme in India During British Period Development of Dying in Harness after Independence
CHAPTER III Object of Compassionate Appointment 34-55 under Dying in Harness Rule
CHAPTER IV Dying in Harness Rule and Constitution 56-90 of India
Constitutionality of Dying in Harness Rule
CHAPTER V Eligibilities of Person and Post/Job 91-130 in Compassionate Appointment under Dying
in Harness Rules A. Eligibilities of Person
The Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 Wife or Husband Sons Unmarried and widowed daughters
ii
Near relatives of deceased employee also eligible for Compassionate Appointment
Adopted Son is entitled for Compassionate Appointment Muslim Adoption permitted? Married daughter eligible for Compassionate Appointment Widow is entitled for Compassionate Appointment Compassionate Appointment for son of incapacitated father Major brother’s claim for appointment Child Born from the Illegitimate Marriage Wards of Missing Government Servant
B. Post/Job Under Compassionate Appointment
CHAPTER VI Categories of Employment Covered Under 131-164 Dying in Harness Rule
A. Compassionate Appointments In Banking Sector Government Guideline in banking Sector regarding
Compassionate Appointments Implementation of model scheme by banks Justifications for Compassionate Appointments in Banks Some important cases relating to Compassionate Appointment in
banking sector B. Compassionate Appointment In Life Insurance Corporation Of
India (LIC) C. Compassionate Appointment in Railways
Circumstances in which Compassionate Appointment may be made
Persons eligible to be appointed on compassionate grounds Near relative Adopted sons and adopted daughters Time limit for making Compassionate Appointments Qualification and conditions to be fulfilled Grades in which appointments can be made on Compassionate
grounds D. Compassionate Appointment In Central Government Services
To Whom Applicable E. Compassionate Appointment In Universities And Other
Governmental Institutions
CHAPTER VII Judicial Review of Dying in Harness Cases 165-217 Judicial Control and Restraint on Compassionate Appointment
No Delay Compassionate Appointment is not a vested right
iii
Compassionate Appointment cannot be claimed as matter of Right
Compassionate Appointment should be provided if there is a Scheme regarding it
Basis of Compassionate Appointment The Compassionate employment has to be granted in very rare
necessities circumstances. No Benefit to dependants of Persons retiring on the ground of
medical unfitness Seeking appointment on Compassionate after attaining majority No Right to be appointed on a post of choice Whether death of Government Servant must occur while
discharging duties in the course of employment No Direction for appointment even on compassionate ground
can be granted on Promotional Post Second Compassionate Appointment is permissible on the death
of the Compassionate appointee The object of Compassionate Appointment not to provide
employment. Mere death of an employee not sufficient to Compassionate
Appointment. Compassionate Appointment to be in consonance with rules Compassionate Appointment in Class III or Class IV posts-only. Compassionate Appointment based on descent- not permissible. Circumstances which negative necessity of Compassionate
Appointment. Marital status of girl no bar for Compassionate Appointment Appointment of Women Permissible Compassionate
Appointment Widow allowed and prayer of brother not to be allowed. Compassionate Appointment to the dependant of casual or ad
hoc employee or apprentice Dependant of Work Charged employee under Die-in-Harness
Scheme of Manipur No time-limit for making the claim-if belated petition
entertainable. High Court or Tribunal cannot direct the authority to create
supernumerary post to make appointment on Compassionate ground.
Policy decision of the Government can be challenged
iv
Scope of High Courts, and Tribunals' power to order Compassionate Appointment.
Dependents of 'employees' dying in harness Compassionate employment not to breach minimum
qualification Death of Employee Does Not Entitle Family for Job No sympathetic considerations to make appointments on
compassionate ground Denial on ground of non-existence of vacancy Compassionate Appointment only on eligible post Past conduct of deceased employee is a relevant consideration No insistence for any particular post Application for Compassionate Appointment need not be in
prescribed form
Job on compassionate grounds not a right
Dependents of medically invalidated Government Servants Delay in appointment Post may create if there exists no post If the claimant is minor - No endless wait No Compassionate Appointment if spouse already working
Belated appointments
CHAPTER VIII Conclusion and Suggestions 218-234
Select Bibliography 235-237
Annexure 238-310
Acknowledgment
Pursuing a thesis on such a rare topic is a both difficult as well as
pleasing experience. First of all, I pray to almighty God who provided me
the opportunity to work under my respected teacher who made my intricate
and time consuming thesis so easy.
Overwhelmed by this development I started scribbling on the topic
“A Study of Legal Provisions and Cases Pertaining to Dying in
Harness Rule (Compassionate Appointment), (A Special Reference
to Public Sector Employment in the State of Uttar Pradesh).”
This basically a case law study and writ-ups mentioned in those
cases have been of immense help in understanding the factors behind the
shaping of law in the present form. It will be no exaggeration to admit that
the role of judiciary has been laudable as it has struck a fine balance
between the competing interests and defined their parameters and fields,
very vividly. Hence, the valuable honorable judges of High Courts and
Supreme Court of India cannot be lost sight off.
While an attempt has been made to include all recent case law till
the manuscript was given for typing, still many cases could not get their
full share of comment because of paucity of space and time.
The responsibility for mistakes, if any, is exclusively mine, but I
must express my respectful gratitude to Dr. Rakesh Kumar Singh, my
teacher, whose motivation, encouragement and inspite of his busy
commitments, he gave me his valuable time when approached in
connection with the present work. My interest in present study could not
have been sustained without the opportunity to work with him and active
help led me to complete this task.
vi
I am also greatly indebted to Prof. R. R. Lyall, Head/ Dean and
Prof. O.N.Mishra, Ex-Head /Dean Faculty of Law, University of Lucknow
for their valuable instructions, suggestions and adequate help during the
course of this work.
It is with supreme sincerity, sense of gratitude and heartfelt
appreciation, I sincerely thank my senior colleagues for their guidance and
valuable experience, and continuous help provided dung the preparation of
this study.
I from the core of my heart express my greetings and gratitude to
my parents who are Second to God for me and who have done so much for
me despite all odds and obstacles and inspired me not look behind.
I would like to special thanks to the dearest friend Mr.
Vishwajeet Mishra who has always been inspiring and a pain- party of
mine ever all instructions. They are rally complete combination of
spirituality, devotion and help. I also express my gratitude to my brother
and my sister.
Further I also express my thanks to the Library Staff’s R.U. Singh
Library and Tagore Library of Lucknow University, Baba Saheb Bhim Rao
Ambedkar University, Lucknow, Banaras Hindu University, Varanasi, Dr.
Ram Manohar Lohia National Law University, Lucknow and National Law
Institute, New Delhi and other for their full cooperation in order to
completion of this task.
Date : Place : Sudhir Kumar
vii
ABBREVIATION
A.I.R. = All India Reporter
A.L.R. = Allahabad Law Review
A.P. = Andhra Pradesh
A.W.C. = Allahabad Weekly Cases
All. = Allahabad
Cal. = Calcutta
D.B. = Division Bench
D.L.T. = Delhi Law Times
e.g. = For Example
E.S.C. = Education & Service Cases
F.B. = Full Bench
F.L.R. = Factories and Labour Reports (Indian)
H.C. = High Court
i.e. = That is
Ibid = Ibidem i.e. at the same place
Infra = Below
J.T. = Judgment Today
L&S = Labour and Service .
L.L.J. = Labour Law Journal
Lab. A.C. = Labour Appeal Cases
viii
S.C.C = Supreme Court Cases
S.C.C.(L & S) = Supreme Court Cases (Labour & Service)
S.C.R. = Supreme Court Review
S.C.T. = Service Cases Today
S.C.W. = Supreme Court Weekly
Supp. = Supplementary
Supra. = Above
U.P.L.B.E.C. = Uttar Pradesh Local Bodies & Educational Cases
U/s = Under Section
Viz. = (Vidilicat) namely
w.e.f. = With Effect From
List of Cases A.P.S.R.T.C., Musheerabad and Ors. v. Sarvarunnisa Begum, (2008) 3 SCC 402. 47 Abhishek Kumar v. State of Haryana and other, (2007) 2 SCC (L&S) 308 204 Administrator, Municipal Corporation, Bilaspur v. Dattatraya Dahankar and Anr., AIR 1992 SC 1846. 89 Anand Bihari v. Rajasthan S.R.T.C., (1991) 1 SCC 731 110 Andhra Pradesh, General Administration v. D. Gopaiah, (2001) 6 ALT 553 (FB). 74 Anju Misra v.General Manager, Kanpur Jal Sansthan, (2004) 1 UPLBEC 201 194 Aprna Narendr Zambre and others v. Collector, Sangli and others, (2012) 4 LLJ 274 105 Ashok Kumar Maiti v. State of W.B. , 1995 Lab IC 2175 121 Auditor General of India v. G. Ananta Rajeswara Rao, AIR 1994 SC 1521 97, 126 Babi Sayeeda v. State of Bihar, AIR 1996 SC 1936. 88 Bagwanji Monabhani Khatana v. State of Gujarat, 1995 (5) SLR 34. 127 Balbir Kaur and Ors. v. Steel Authority of India. AIR 2000 SC 1906. 120, 122, 137, 140 Balishwar Dass v. State of U.P., AIR 1981 SC 41. 60
Basvarajappa v. Gurubasamma and others, (2005) 12 SCC 290 99
Bhawani Prasad Sonkar v. Union of India, (2011) 4 SCC 209 87 Biswajit Sarkr v. State of W.B., 1995 Lab IC 2158 91 Budhi Sagar Dubey v . Dt. Inspector of Schools, (1993) I LLJ 798 (All). 130 Buttu Prasad v. Steel Autholrity of India Ltd., 1995 (2) SLR 451 (SC) 128
x
Calcutta Port Trust v. Deba Prasad Bag, 1995 Supp (1) SCC 454 127
Chairman, Bihar Rajya Vidyut Board v. Chhathu Ram and others, (2005) 12 SCC 290 102
Cochin Dock Yard Board v. Leenamma, (1999) 9 SCC 87 212
Colour-Chem. Ltd. v. A.L. Alaspurkar, (1998) 3 SCC 192. 89
Commissioner of Public Instructions and Ors. v. K.R. Vishwanath, (2005) 7 SCC 206. 47
Dhalla Ram v. Union of India, 1999 (2) SCT 301 at 301. 53, 216
Dinesh Rai v. District Inspector of Schools, (1992) 1 LLJ 123 217
Director of Education (Sec.) v. Pushpendra Kumar, (1982) 2 SCC 192. 12, 39, 121, 122, 167, 208
Elliot v. Lord Joicy 1935 AC 209; Wingfield (1903) 2 Ch. 11 95
Food Corporation of India v. Nizamuddin, AIR 2010 SC 1320. 214
G.M. (D& PB) v. Kunti Tiwary, (2004) 7 SCC 271. 204
G.S. Suresh Kumar v. State of Kerala , 1992 Lab IC 2349 128
Gazula Dasaratha Rama Rao vs The State Of Andhra Pradesh, 1961 (2) SCR 931 66 General Manager, State Bank of India and Others v. Anju Jain, (2008) 2 SCC (L&S) 724. 81, 206
Gurushran Singh v. NDMC, (1996) 2 SCC 459. 169
H.P.R.T.C. v. Dinesh Kumar, AIR 1996 SC 2226. 170, 189
Haarendra Pandey v. State of Bihar, 1995 Lab IC 985 (Pat.). 92
Harbans Sahai Srivastava v. State of U.P. and Ors. (1991) 11 LLJ 287. 38
xi
Harpal Kaur Chahal v. Director Punjab Instruction, 1995) 4 SCC 706 169
Haryana SEB v. Naresh Tanwar, (1996) 8 SCC 23 40, 187, 121
Haryana State Electricity Board v. Krishna Devi, (2002) 2 LLJ 773. 42, 46
Haryana State Electricity Board vs Hakim Singh, 1997 (8) SCC 85 45, 69
Hindustan Aeronautics Limited v. Smt A Radhika Thirumalai, JT 1996 (9) SC 197. 139, 188 I.G. (Karmik) v. Prahalad Mani Tripathi (2007) 6 SCC 162 29, 54 Illa Sarkar v. State of W.B. (199) II LLJ 1122 125
Indian Drugs & Pharmaceuticals Ltd. v. Devki Devi & Others, (2006) 1 SCC (L&S) 1169. 201
J&K v. Sajad Ahmed Mir, (2006) 5 SCC 766. 43, 84, 166, 216 Jagdish Prasad v. State of Bihar (1996) 1 SCC 301 : JT 1995 (9) SC 31 53, 171, 125
Jethi Devi v. Bhakr Beas Management Board , (1995) 6 SCC 61 108, 116
Kamal Rajan v. State of Bihar, 1995 Lab IC 2562 91
Kamala Gaind (Smt.) v. State of Punjab, 990 Supp SCC 800 : 1991 SCC (L&S) 637 112
Km Rita Roy v. State of U.P., (1998) 2 SCC 864 43
Lal Chand v. State of Haryana (1999) 6 SCC 760 128
LIC of India v. Asha Ramchandra Ambedkar & another, (1994) 2 SCC 718. 128
M/s Eastern Coalfields Ltd. v. Anil Badyakar & Ors. (2009) 6 SCC 624. 44, 216 Maharani Devi and Anr V. Union of India (UOI) and Ors., (2009) 7 SCC 295. 50
xii
Mathew v. Talrak Land Board 1979 KLT 601 (SC) 95
MMTC Ltd. v. Pramoda Dei, (1997)11 SCC 390. 51
Mohan Mahato v. Central Coal Field Ltd., AIR 2008 SC 39. 215
Motia Devi v. Life Insurance Corporation of India, 1993 (3) SLR 68 (DB). 216
Municipal Corporation Of Delhi vs Shri Vir Mohd., 94 (2001) DLT 746; 2002 (63) DRJ 136 85
Municipal Corporation, Jabalpur v. Om Prakash Dubey, (2006) 13 Scale 266; 75
National Fertilizers Ltd. and Ors. v. Somvir Singh (2006) 6 SCALE 101. 75, 205
National Hydroelectric Power Corporation v. Nanak Chand, (2005) 11 LLJ 240. 49
National Institute of Technology & others v. Niraj Kr. Singh, (2007) 2 SCALE 525. 72, 104
P. Murugesan v. State of T.N., (1993) 2 SCC 340. 60
P.C. John v. Managing Director , KSRTC , 1992 Lab IC 2594 (Ker.). 125
P.S. Geeta v. Central Bank of India, Bombay, 1978 Lab IC 1271 112
Pakam Srinvasulu v. Registrar (Vigilance) High Court of A.P., 2002 (7) SLR 607 (FB-AP) 129
Pawan Kumar Yadav v. State of U.P., (2011) 99 AIC 4 (Sum.) (Alld-F.B.) 194
Pepsu Road Transport Corporation v. Satinder Kumar, (1995) Suppl. (4) SCC 597 193
Phoolwati v. Union of India, (1991) Supp (2) SCC 689 12, 167, 215
Prakash Chand Jain v. State of Rajasthan 1992 (5) SLR 680. 116
Priyesh Vasudevan v. Shameena, (2005) 4 KLT 1003 94
xiii
Punjab National Bank v. Ashwani Kumar Taneja, AIR 2000 SC 4155. 212
Punjab Water Supply and Sewerage Board v. Ranjodh Singh, (2006) 13 SCALE 426. 72
Puspa Rani v. State of Punjab, 1992 (6 ) SLR 90 127
Rajesh Kumar v. State of U.P. & Others, (2007) UPLBEC (Sum) 16. 172
Rakhi Singh v. State of U.P. and others. 2006 (24) LCD 182 99
Ramesh Chand v. Executive Engineer and others, 2012 (90) ALR 322. 96, 113
Rekha v. M.D. , A.P. Schedule Castes Co-operative Finance Corporation, 1992 (1) SLR 560. 92
S. Mohan v.Government of T.N. and Anr., (1998) 9 SCC 485 45, 52, 125
Sail and Anr. vs Awadhesh Singh And Ors, (2001) 10 SCC 621. 145 SAIL v. Madhusudan Das, 2000 (6) SCC 566 83 Sanjay Kr. Panda v. State of W.B., 1993 (2) SLR 604 (Cal.) 116
Sanjay Kumar v. State of Bihar, AIR 2000 SC 2782. 51, 217
Santosh Kumar Misra v. State of U.P., (2001) 4 ESC (Alld) 1615 194, 197
Secy., State of Karnataka v. Umadevi, (2006) 11 LLJ 722 SC 75, 78
Shankar Singh v. The Principal Secretary & others, (2007) UPLBEC 256. 166
Shrijith L. v. Deputy Director (Education), AIR 2012 SC 2665 (Para 27, 28) 209
Sinhasan Gupta v. State of U.P. and another, (1998) UPLBEC 41. 99
Smt. Pushpa Lata Dixit v. Madhyamik Shiksha Parishad,, (1991) 18 ALR 591 194, 197
xiv
Smt. Sushma Gosain And Ors. vs Union Of India, AIR 1989 SC 1976: (1984) 4 SCC 468 37, 64, 77, 127, 165, 182, 183, 214 Srikanth v. Chief Engineer, Karnataka Electricity Board, 1996 (1) SLR 18. 121
St. Ignatius H.S. v. State of Kerala, (2013) SCC 132 107
State Bank of India & others v. Jaspal Kaur, (2007) 2 SCC (L&S) 78. 168
State of Bihar v. Samsuz Joha, AIR 1996 SC 1961 : (1996) 4 SCC 546 190
State of Gujarat v. Arvind Kumar, AIR 2012 SC 338. 212
State of Haryana & others. v. Suraj Bhan, (1996 ) 8 SCC (L& S) 71. 170
State of Haryana and Ors. v. Rani Devi & Anr., (1996) 6 SCC 2445 10, 64, 70, 139, 185, 201, 202 State of Haryana v. Ankur Gupta, (2003) 7 SCC 704. 41, 70
State of Haryana v. Chandra Narain Verma, (1994) 2 SCC 752 176
State of Haryana v. Dhan Singh, (1996) 7 SCC 62. 104, 111
State of Haryana v. Hawa Singh, (1995) Supp (2) SCC 258. 110
State of Haryana v. Kamlesh, AIR 2010 SC 1876; 212
State of Haryana v. Narensh Kr. Bali, (1994) 4 SCC 448 129
State of Haryana v. Piara Singh, (1993) 11 LLJ 937. 51, 79
State of Haryana v. Rani Devi, (1996) 5 SCC 308. 41, 201
State of Haryana v. Surjeet Singh, (1995) 5 SCC 478 110, 127
State of J & K v. Sajad Ahmed Mir, AIR 2006 SC 2743 166
xv
State of Jharkhand v. Shiv Karampal Sahu, (2009) 11 SCC 453 83
State of M.P. v. Ramesh Kr. Sharma, (1995) 4 SCC (L&S) 19 171
State of Manipur v. A. Ongbi Memcha Devi, (1995) 4 SCC 210. 185
State of Manipur v. Thingujam, AIR 1996 SC 2124 187 State of Rajasthan v. Umrao Singh (1994) 6 SCC 560. 121
State of U.P. and Ors. v. Paras Nath, (1999) 11 LLJ 454. 12, 52, 51, 217
Steel Authority of India Limited v. Madhusudan Das & Ors., (2008) 15 SCC 560. 80
Suman Kumari v. State of U.P. & Others, (1994) 6 SCC 140. 173 Sunil Saxena v. State of U.P., 1994 FLR 283. 99 Surendra Singh Gaur v. State of U.P. , 1992 Lab IC 1474. 92
Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 11, 36, 45, 63, 68, 29, 132
Union Bank of India and Ors .v. M.T. Latheesh, (2006) 7 SCC 350 86, 169, 203 Union of India and others vs Bhagwan Singh, (1995) 6 SCC 476. 12, 40, 49, 215, 180
Union of India v. Jogender Sharma, (2002) 8 SCC 65. 212
Union of India v. Shashank Goswami, AIR 2012 SC 2294. 212
Uttaranchal Jal Sansthan v. Laxmi Devi and Others, (2009) 2 SCC (L&S) 304 196
V. Shiv Murthy v. State of Andhra Pradesh, AIR 2008 SC 483. 81, 86, 214
Yogender Pal Singh & Others v. Union Of India & Ors, AIR 1987 SC 1015. 67
Chapter – I
Introduction
The Preamble of the Constitution of India resolves to secure social
political and economic justice, various liberties, equality of status and of
opportunity assuring the dignity of individual and the unity and integrity of
nation. The Directive Principles of State Policy and various Fundamental
Rights try to implement all such resolves contained in the Preamble.
The provisions contained in the Part IV of the Constitution protect
and promote social welfare. The responsibility has been cast on state, its
agencies and instrumentalities to secure inter alia, education, right to work
and adequate means of livelihood. State has to ensure that health and
strength of workers, children and weaker sections are not abused and they
are not forced by economic necessity to work that is unsuited to their age
and strength. Another provision assures public assistance in case of
unemployment, old age, sleekness, disablement, while yet another Article
assures decent standard of life, full employment of leisure etc.
Whereas Directive Principles enjoins the state to achieve social
welfare, the provisions contain in the Fundamental Right Chapter
guarantees certain enforceable rights to citizens and among them the most
important is the equality before law and equal protection of laws
throughout the territory of India. The right to equality is contained in
Articles 14-18 and prohibits inter alia discrimination on grounds of
religion, race, caste, sex or place of birth. A peculiar feature of Indian
Constitution is Article 16, which ensures equality of opportunity in matters
of public employment and bars discrimination on the ground only of
religion, race, caste, sex, place of birth and descent.
2
It has been held time and again that appointment to any public post
must be absolutely transparent and fair and must be in accordance with the
prescribed procedure. Even ad-hoc appointment should not be encouraged
as far as possible and should be adhered only when public exigencies
require and appointment in accordance with the prescribed procedure
would take a fairly long time and non-filling up of the post would be
against the public interest.
It is the apparent that the whole object of the Constitution is to
achieve the lofty ideals enshrined in the Preamble, to provide social
welfare and make an egalitarian society so that citizenry of India may
fulfill its duty to develop the scientific temper, humanism and the spirit of
enquiry and reform. They are further duty bound to strive towards
excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavor and achievement.
The World Development Report of 1997, states that social security
is essential ingredient in protection, development and full utilization of
human resources. Hence it is investment in development.
“Social Security is essential both for development of human
resources and for human development.”
The world human Development report says “Millions of people in
developing countries on the edge of disaster, and even in industrial
countries people are at sick from crime, violence or unemployment.
Joblessness is a major source of insecurity undermining people’s
entitlement to income and other benefits. Human development insists that
everyone should enjoy a minimum level of security.
Some countries have a programme called social assistance scheme
3
of the Government instead of raising it from the workers and employees.
Scandinavian countries, Australia, New Zealand etc have such a scheme as
a part of social security programmes. In this scheme of the government,
social security help is being rendered to workers and common people from
the tax revenue of the Government. But the benefits of the scheme extend
only to those living below a particular income limit. In Australia only high
income group of people were excluded from the benefits of the scheme on
the basis of income limit. In many other countries for those who do not
come under the social insurance scheme for some reason or the other,
social assistance scheme has been implemented at the initiative of the
Government.
In Philippines even home workers are covered by social security
benefits. Social security benefits are given not only to workers and
common citizens but to immigrants who are not citizens of that country as
well. The scheme covers right from maternity care before birth up to
funeral expenses after death of a person.
Family allowance scheme was first introduced in the year 1920 in
Belgium and Germany by the employers. Subsequently the countries which
have implemented this scheme have utilised revenue funds of the
Government to distribute the benefits. But in countries like France, South
Korea etc., it is still within the liability of the employers. In many
European countries where birth rate is alarmingly decreasing, family
allowance scheme is used to encourage childbirth. The Rate of allowance
increases with the increase in number of children and age. Children’s
allowance will be given only to mother and not to father. In France almost
all the families are getting the benefit of family allowance. In that country
every town has family allowance offices. In Italy this benefit extends not
4
only to children but also to brothers and sisters and their children as well.
Family allowance benefits cover only those who are below a particular
income ceiling. Even though United States did not have this scheme,
recently they have enacted a legislation that provides allowance to
dependent parents.
Workmen’s compensation had been implemented compulsorily in
most of the countries of the world. Majority of the countries of the world
have pension schemes, disablement pension and dependent benefits. But
measures like sickness benefit, maternity benefit etc have not been
implemented in many countries. Majority of countries like India have not
started family allowance scheme widely. Loss of employment allowance is
available only for a limited period even in industrialized countries. In the
case of preventive measures on occupational accidents and diseases, trade
unions in many countries have demanded powers to be given to Trade
Union workers to inspect preventive measures in work place as in
Indonesia.
Nordic countries like Sweden, Finland etc are the most advanced
countries in the world as far as social security is concerned. But the only
thing is that a sizeable portion of the salary of employees has to be
contributed to the social security funds.
The concept of a welfare state, signifying a regime which seeks to
ensure the maximum happiness of maximum number of people living
within its territory, is by no means new. Several Kings and Emperors in the
course of history have given the highest priority to the people happiness
and welfare, even as there have been numerous rulers in all ages who
proved to be tyrants and concentrated all their efforts and most of the State
revenues on their personal comforts and luxury. The State of Mauryas and
5
Emperor Vikramaditya for instance, were largely a Welfare State. The
golden era of Emperor Ashoka in the ancient days and emperor Akbar
during the Mughai period are two outstanding instances of rulers
establishing a truly Welfare State in their lifetime.
A Welfare State also implies an efficient administration, speedy
justice for the people, a regime totally free from graft, corruption,
inefficiency, sloth and the frustrating complexities of red tape etc. in
modern times a Welfare State means all this and much more. Among the
measures which the people of such a State expect are social Welfare
legislation, adequate health and medical facilities especially for the poor,
the weak, the old and the disabled—in other words, the admittedly weaker
sections of society.
This concept is further strengthened by the Directive Principles of
State Policy which set out the economic, social and political goals of the
Indian Constitutional system. These directives confer certain non-
justifiable rights on the people in the form of directions to the State to
achieve and maximize social welfare and basic social values like education,
employment, health etc. In the directive principles the philosophy of
welfare is very much pronounced and well developed. To take only one
example, Art, 39 a Directive Principle, lays down that the State shall strive
to secure a social order in which social, economic and political justice
"shall inform all the institutions of nations of national life". In consonance
with the modern beliefs of man, the Indian Constitution takes due care to
set up a machinery so as to enable the state to march forward towards the
goal of an economic democracy along with political democracy for the
latter would be meaningless without the former in a poor country like
India; it lays special emphasis on land and places the government under an
6
obligation to take necessary steps to that end.
Although the words "Welfare State" are not specifically mentioned
into the Constitution, the aims and objectives clearly point to such an
entity. Moreover, what is not specifically stated in the Preamble is
mentioned in the Directive Principles of State Policy. Article 38 of the
Chapter defining these Directives runs as follows:
"The State shall strive to promote the welfare of the people
by securing arid protecting, as affectively as it may, a social
order in which justice, social economic and political, shall
inform all the institutions of national life."
Article 39 of the Directive Principles lays down aims and objects
which unmistakably indicate the broad policy the Government of India
(and the State Government) are expected to follow and all these are
designed to lay the right foundation for a Welfare State. The Article says:
The State shall in particular, direct its policy towards securing.
(a) that the citizens, men and women equally, have the right to an
adequate means of livelihood;
(b) that the ownership and control of the material resources of the
Community are so distributed as best to sub serve the common
good; (c) that the operation of the economic system does not result
in the concentration of wealth and means of production to the
common detriment;
(c) that there is equal pay for equal work for both men and women;
(d) that the health and strength of workers, men and women, and the
tender age of children are not abused and the citizens are not forced
by economic necessity to enter avocations unsuited to their age or
7
strength;
(e) that childhood and youth are protected against exploitation and
against moral and material abandonment.
The Directive Principles of State Policy in the Constitution of India
are perhaps the most exhaustive in the Constitution of any democratic
country outside the communist bloc. Every possible effort has been made
to include all available means to ensure social and economic justice which
broadly speaking, long the basic foundations of a Welfare State.
Pandit Jawaharlal Nehru had distinct concept of a Welfare State and
gave some vital clarifications in this regard, Apart from the generally
accepted stipulations, he said in Parliament, once on February 2, 1953, and
again on February 17, the same year that "a Welfare State has no meaning
unless every individual is property employed end takes part in-nation-
building activities. When there is unemployment, he felt, there could be no
Welfare State. In any case the unemployed people—and their number run
into millions-are not parties to the Welfare State but "outside its pale". He
also affirmed that "to realize the ideal of a Welfare Stale requires hard
work, tremendous effort and co-operation". According to his concept India
may not become a Welfare State for many decades yet because the
unemployment problem was unlikely to be solved for many years to come.
The people's happiness —the ultimate aim of a Welfare State— can
be assured only when everyone has enough to eat, some shelter in the form
of a house, or at least a modest roof over his head, some work to do so as to
able to earn a living und some opportunities to contribute to nation-
building, which implies constructive activity. Besides, everyone must also
have the means to satisfy his basic needs, consumer goods etc. Everything,
as Pandit Nehru said, has ultimately to be judged in terms of human
8
welfare, and the only worthwhile yard stick we can employ is the happi-
ness of our people.
There are some general objections negative as well as positive to the
concept of the welfare state. The negative objections are made with regard
to Germany, Belgium, Japan and the United States of America which does
riot believe in the concept of welfare state. But these nations have
surpassed the welfare states like India and England in so far as welfare
activity is concerned. It is argued that the welfare state England would not
have accomplished that it has actually achieved in the field of welfare
activity without generous economic assistance from the USA. The positive
objections travelled against the welfare state are that the state help kills
self-help. The state help is a deterrent to initiative, drive and intelligence,
which individuals cannot develop as the state, takes upon itself the
responsibility for their welfare.
In a welfare state like ours it is obligatory on the part of the
Government to provide the social security net to the employees and
appointments on compassionate ground are one such measure. It gives a
sense of being part and parcel of the organisation amongst its employees
who feel that in case of falling victim at the hands of cruel destiny the
organisation would take care of their families. The umbrella of protection
certainly boosts the moral of not only the employees but also their families.
That is why the policy of compassionate appointments has evolved in
government, its PSUs, organisations, trusts etc. as a measure of social
security net.
Compassionate Appointment is one of the very important concepts
of service jurisprudence. Although there is no legislation enacted by the
Parliament or state legislatures as yet but nevertheless it has acquired an all
9
accepted legal device within the domain of service jurisprudence. The
concept of compassionate appointment was introduced in the year 1958
and is being followed since then by central/state governments, railways,
postal department and various public sector undertakings including banks.
These unfortunate families hither to found solace in obtaining
compassionate appointments in their respective establishments and also
private sector. Even in these days private sector is much responsive to the
unfortunates in helping them out from otherwise bleak future.
As the mortality rate has gone down considerably with health
schemes in vogue and with elevated laving standards Indians have become
health conscience ever before.
But wiggeries of life are such that with advent of fast life,
urbanization, new technology in manufacture and services, the unfortunate
lot among the workers/employees is there, may be in fraction.
Now wage being highest security for family besides the other
schemes as they come in frillwork, it matters most for the family to have a
bread winner for them to provide shelter and maintain standard in their
lives.
The coverage provided by insurance, pension etc. have yet been
inadequate and do not compensate fully. Hence compassionate
appointment asserts a prominent position in the package.
The object underlying a provision for grant of compassionate
appointment is to enable the family of the deceased employee to tide over
the sudden crises resulting due to death of the bread-earner which has left
the family in penury and without any means of livelihood. Out of pure
humanitarian consideration and having regard to the fact that unless some
10
source of livelihood is provided, the family would not be able to make both
ends meet, a provision is made for giving gainful appointment to one of the
dependants of the deceased who may be eligible for such appointment.
Such a provision makes a departure from the general provisions providing
for appointment on the post by following a particular procedure. Since such
a provision enables appointment being made without following the said
procedure, it is in the nature of an exception to the general provisions. An
exception can not subsumes the main provision to which it is an exception
and there by nullify the main provision by taking away completely the right
conferred by the main provision. Care has therefore, to be taken that a
provision for grant of compassionate appointment, which is in the nature of
an exception to the general provisions, does not unduly interfere with the
right of other persons who are eligible for appointment to see employment
against the post which would had been available to them.
As was observed in State of Haryana and others v. Rani Devi and
another,1 it need not be pointed out that the claim of person concerned for
appointment on compassionate ground is based on the premises that he was
dependant on the deceased employee. Strictly this claim cannot be upheld
on the touchstone of Articles 14 or 16 of the Constitution of India.
However, such claim is considered as reasonable and permissible on the
basis of sudden crisis occurring in the family of such employee who has
served the State and dies while in service. That is why it is necessary for
the authorities to frame rules, regulations or to issue such administrative
orders which can stand the test of Articles 14 and 16. Appointment on
compassionate ground cannot be claimed as a matter of right. Die-in-
harness scheme cannot be made applicable to all types of posts irrespective
1 JT 1996 (6) SCC 646.
11
of the nature of service rendered by the deceased employee. In Rani Devi's
case2 it was held that scheme regarding appointment on compassionate
ground if extended to all types of casual or ad hoc employees including
those who worked as apprentices cannot be justified on Constitutional
grounds. In Life Insurance Corporation of India v. Asha Ram-chandra
Ambekar (Mrs.) and another,3 it was pointed out that High Courts and
Administrative Tribunals cannot confer benediction impelled by
sympathetic considerations to make appointments on compassionate
grounds when the regulations framed in respect thereof do not cover and
contemplates such appointments. It was noted in Umesh Kumar Nagpal v.
State of Haryana and others,4 that as a rule in public service appointment
should be made strictly on the basis of open invitation of applications and
merit. The appointment on compassionate ground is not another source of
recruitment but merely an exception to the aforesaid requirement taking
into consideration the fact of the death of employee while in service
leaving his family without any means of livelihood. In such cases the
object is to enable the family to get over sudden financial crisis. But such
appointments on compassionate ground have to be made in accordance
with the rules, regulations or administrative instructions taking into
consideration the financial condition of the family of the deceased.
In Smt. Sushma Gosain and others v. Union of India and others,5 it
was observed that in all claims of appointment on compassionate grounds,
there should not be any delay in appointment. The purpose of providing
appointment on compassionate ground is to mitigate the hardship due to
death of the bread-earner in the family. Such appointments should, 2 Ibid. 3 (1994) 2 SCC 718. 4 (1994) 4 SCC 138. 5 (1989) 4 SCC 468.
12
therefore, be provided immediately to redeem the family in distress. The
fact that the ward was a minor at the time of death of his father is no
ground, unless the scheme itself envisage specifically otherwise, to state
that as and when such minor becomes a major he can be appointed without
any time consciousness or limit. The above view was reiterated in
Phoolwati (Smt). v. Union of India and others6 and Union of India and
others vs Bhagwan Singh.7 In Director of Education (Secondary) and
another v. Pushpendra Kumar and others,8 it was observed that in matter
of compassionate appointment there cannot be insistence for a particular
post. Out of purely humanitarian consideration and having regard to the
fact that unless some source of livelihood is provided the family would not
be able to make both ends meet, provisions are made for giving
appointment to one of the dependants of the deceased who may be eligible
for appointment. Care has, however, to be taken that provision for ground
of compassionate employment which is in the nature of an exception to the
general provisions does not unduly interfere with the right of those other
persons who are eligible for appointment to seek appointment against the
post which would have been available, but for the provision enabling
appointment being made on compassionate grounds of the dependant of the
deceased employee. As it is in the nature of exception to the general
provisions it cannot substitute the provision to which it is an exception and
thereby nullify the main provision by taking away completely the right
conferred by the main provision.
In State of U.P. and others v. Paras Nath,9 it was held that the
purpose of providing employment to the dependant of a Government 6 (1991 Supp (2) SCC 689. 7 (1995) 6 SCC 476. 8 (1998) 5 SCC 192. 9 (1998) 2 SCC 412.
13
servant dying-in-harness in preference to anybody else is to mitigate
hardship caused to the family of the deceased on account of his unexpected
death while in service. To alleviate the distress of the family, such
appointments are permissible on compassionate grounds provided there are
Rules providing for such appointments. None of these considerations can
operate when the application is made after a long period of time.
One other thing which needs to be considered is whether the retiral
benefits are to be taken into consideration while dealing with prayer for
compassionate appointment. Earlier some banks/PSUs were refusing the
appointment if the dependant of the deceased employee was given a
reasonable amount in the form of gratuity, PF and pension. There remained
some uncertainty for some time. But now the apex court has held that if the
rules so permit, appointment can be denied on this ground.
These appointments are given to class III and IV posts. A survey of
the reported cases reveals that hundreds of cases have reached high courts
and Supreme Court. This shows the clamor, anxiety and concern for the
status in the society no matter it is in the lower rank of civil service. Every
case has one or other peculiar feature and the higher judiciary has taken
notice of them.
There have been some objections against the scheme apart from the
Constitutional prohibitions of allowing appointment on the ground of
‘descent’. It has been said that compassionate appointments lead to surplus
staff, only the least employable in the family apply for such appointment
and earmarking large portion of the recruitment in clerical and sub-staff
cadres for compassionate appointment adversely affects the quality of man
power. It has been suggested that instead of giving appointment, financial
assistance for next five to ten years should be extended to the unfortunate
14
family.
The present work is a doctrinal research and cases decided by
Supreme Court and High Courts form the bedrock of this assignment. The
suggestions/ recommendations by employees associations and
Parliamentary Committees have also been taken into account. The
Government Services (Regulation of Compassionate Appointment) Bill,
2011 is in the pipeline. In the following pages an endeavor has been made
to study the concept of compassionate appointment from Constitutional,
jurisprudential and service law perspectives.
15
Chapter – II
Historical Background
"Law is not an abstract thing, it is a living organism since it
is applied on living human beings".
Kautilya’s Asthasasthra spelt rules and regulations on labour, like
guild co-operative undertaking. Kautilya spoke about privileges of
workmen, high wages, sick leave, old age pension and dispute settlement
methods. Vedic period advocated happiness and good mutual relations
between the employer and employees. As the years rolled the following
important events took place. Sequence of Events:
The history of labour legislation in India is naturally interwoven
with the history of British colonialism. Considerations of British political
economy were naturally paramount in shaping some of these early laws. In
the beginning it was difficult to get enough regular Indian workers to run
British establishments and hence laws for indenturing workers became
necessary. This was obviously labour legislation in order to protect the
interests of British employers.
Various Legislations to Safeguard the Interest of Workman/
Employees: Death cum Retirement Benefit in British Period in
India
Workers' compensation laws in the United States developed during
the early 1900s as a result of the industrial age and growing numbers of
industrial injuries. Before these laws were developed, workers injured on
the job often found themselves without remedy against their employer or
their fellow workers.
16
At the end of the nineteenth century, state lawmakers recognized the
problem and began studying the compensation system developed in
Germany in 1884. Rooted largely in its socialistic tradition, Germany's
compensation system mandated that employers and employees share in the
cost of paying benefits to workers disabled by sickness, accident, or old
age. Britain followed suit in 1897 with the British Compensation Act,
which later became the model for many state workers' compensation laws
in the United States.
In 1910, representatives of various state commissions met at a
conference in Chicago and drafted the Uniform Workmen's Compensation
Law. Although not overwhelmingly adopted, this uniform law became the
blueprint for state workers' compensation statutes. All but eight states had
adopted a workers' compensation law by 1920, and, in 1963, Hawaii
became the last state to do so.
Workmen Compensation Act, 1923
The Workman’s Compensation Act 1923 is one of the
earliest pieces of labour legislation. It covers all cases of ‘accident arising
out of and in the course of employment’ and the rate of compensation to be
paid in a lump sum, is determined by a schedule proportionate to the extent
of injury and the loss of earning capacity. The younger the worker and
higher the wage, the greater is the compensation subject to a limit. The
injured person, or in case of death. The dependent, can claim the
compensation. This law applies to the unorganised sectors and to those in
the organised sectors who are not covered by the Employees State
Insurance Scheme, which was conceptually considered to be superior to the
Workman’s Compensation Act.
Workers' compensation provides two general categories of benefits
17
to injured workers: indemnity benefits and medical benefits. Indemnity
benefits compensate for the worker's loss of income or earning capacity
resulting from the work-related injury. Depending on the employee's
medical status and ability to work following the injury, she may be entitled
to different types of indemnity benefits. A worker whose injury is only
temporary and does not preclude his ability to work his normal job duties
and hours typically will not receive indemnity benefits because his injury
has no effect on his ability to earn a living. A worker whose injury
temporarily causes him to miss time from work will be entitled to payment
of all or a portion of his lost wages, known as temporary partial disability
benefits. A worker whose injury temporarily renders him unable to work at
all may receive temporary total disability, which is usually a portion of the
worker's average wage. A worker who is able to work at least part time but
who has a work-related permanent disability may be entitled to permanent
partial disability benefits. The formula for permanent partial disability
benefits varies from jurisdiction to jurisdiction but usually considers the
employee's average weekly wage combined with the degree of permanent
disability. Finally, a worker who is permanently disabled from working at
all may be entitled to permanent total disability benefits.
A frequently disputed issue between an employer and an injured
employee is the degree that the employee's injury restricts her from
returning to suitable employment, mitigating the need for indemnity
benefits. Some state statutes permit or require the employer to provide an
injured employee with vocational rehabilitation, job search assistance, or
job retraining if the injury would otherwise prevent the employee from
returning to gainful work.
In the case of a compensable work-related death, the decedent's
18
spouse, dependent children, or both spouse and children may be entitled to
dependency benefits. Most jurisdictions pay death benefits to a spouse until
the spouse dies or remarries and to children until they reach age 18. Other
jurisdictions place limits on benefit amount or duration.
Employees injured on the job also may receive reasonable and
necessary medical benefits that are related to the work injury. Such benefits
are compensable if they serve to cure the injury, or, if the injury is
incurable, relieve its effects. These benefits may include medical
treatments such as sutures, casts, or surgery; psychiatric or psychological
treatments; hospital, nursing, and physical therapy treatments; chiropractic
or podiatric treatments; prescription medications; supplies such as
wheelchairs or wrist braces; orthopedic mattresses; or attendant care
services. Most workers' compensation statutes also provide for the
reimbursement of the employee's travel expenses incurred in obtaining
medical services.
Workman Compensation Laws in various Countries
Workers' Compensation is a system that requires employers to
provide workers who suffer job related injuries (and fatalities) with
medical treatment and monetary compensation to replace lost income.
Compensation laws were first adopted in Western Europe in the late 1800s.
The first workers' compensation laws to pass legal muster in the United
States were enacted in 1911, and by 1920 all but five states had adopted
them.
Australia
As Australia experienced a relatively influential labour movement in
the late 19th and early 20th century, statutory compensation was
19
implemented very early in Australia. Each territory has its own legislation
and its own governing body.
A typical example is Work Safe Victoria, which manages Victoria's
workplace safety system. Its responsibilities include helping employees
avoid workplace injuries occurring, enforcement of Victoria's occupational
health and safety laws, provision of reasonably priced workplace injury
insurance for employers, assisting injured workers back into the workforce,
and managing the workers' compensation scheme by ensuring the prompt
delivery of appropriate services and adopting prudent financial practices.1
Canada
Workers' compensation was Canada's first social program to be
introduced as it was favoured by both workers' groups and employers
hoping to avoid lawsuits. The system arose after an inquiry by Ontario
Chief Justice William Meredith who outlined a system in which workers
were to be compensated for workplace injuries, but must give up their right
to sue their employers. It was introduced in the various provinces at
different dates. Ontario was first in 1915, Manitoba in 1916, British
Columbia in 1917. It remains a provincial responsibility and thus the exact
rules vary from province to province. In some provinces, such as
Ontario's Workplace Safety and Insurance Board, the programme also had
a preventative role ensuring workplace safety. In British Columbia, the
occupational health and safety mandate (including the powers to make
1 About Work SafeVictoria – WorkSafe Victoria is the manager of Victoria's
workplace safety system. Broadly, the responsibilities of WorkSafe are the following: * help avoid workplace injuries occurring * enforce Victoria's occupational health and safety laws * provide reasonably priced workplace injury insurance for employers * help injured workers back into the workforce * manage the workers' compensation scheme by ensuring the prompt delivery of appropriate services and adopting prudent financial practices.
20
regulation, inspect and assess administrative penalties) is legislatively
assigned to the Workers' Compensation Board of British
Columbia WorkSafeBC. In most provinces the workers' compensation
board or commission remains concerned solely with insurance. The
workers' compensation insurance system in every province is funded by
employers based on their payroll, industry sector and history of injuries (or
lack thereof) in their workplace (usually referred to as "experience rating").
Germany
The German worker's compensation law of 6 July 1884,2 initiated
by Prince Otto von Bismarck,3 was passed only after three attempts and
was the first of its kind in the world.4 Similar laws passed in Austria in
1887, Norway in 1894, and Finland in 1895.5
The law paid indemnity to all private wage earners and apprentices,
including those who work in the agricultural and horticultural sectors and
marine industries, family helpers and students with work-related injuries,
for up to 13 weeks. Workers who are totally disabled get continued
benefits at 67% after 13 weeks, paid by the accident funds, financed
entirely by employers.
The German compensation system has been taken as a model for
many nations.
2 An Act for Insurance Against Accidents, 6 July 1884, translated and reprinted in
F.W. Taussig, Workmen's Insurance in Germany, 2 Q. J. ECON. 111 p. at 121–28 (1887).
3 US Dept. of Labor, The Job Safety Law of 1970: Its Passage Was Perilous. Holborn, Hajo: A History of Modern Germany – 1840–1945: Princeton University Press; 1969; p. 291–93.
4 Munich Re – History of workers' compensation insurance in Germany, 1884. 5 washburnlaw.edu, Compensation for Personal Injuries in a Comparative
Perspective.
21
Mexico
The Mexican Constitution of 1917 defined the obligation of
employers to pay for illnesses or accidents related to the workplace. It also
defined social security as the institution to administer the right of workers,
but only until 1943 was the Mexican Social Security Institute created
(IMSS). Since then, IMSS manages the Work Risks Insurance in a
vertically integrated fashion: registration of workers and firms, collection,
classification of risks and events, and medical and rehabilitation services.
A reform in 1997 defined that contributions are related to the experience of
each employer. Public sector workers are covered by social security
agencies with corporate and operative structures similar to those of IMSS.
United Kingdom
There is no comparable workers compensation scheme in the UK.
An employee can pay for permanent health insurance or private medical
plans but the UK government does not recognise the need for a rigid
insurance scheme of the sort prevalent across the USA and a number of
other countries. Work related safety issues in the UK are controlled by the
Health & Safety Executive (HSE) who provide the framework by which
employers and employees are able to comply with statutory rules and
regulations.6
In 1855, Georgia and Alabama passed Employer Liability Acts; 26
other states passed similar acts between 1855 and 1907. These acts simply
permitted injured employees to sue the employer and then prove a
negligent act or omission..7 (A similar scheme was set forth in Britain's
6 HSE: Information about health and safety at work. 7 loislaw.com re: THE EMPLOYERS' LIABILITY CASES, 207 U.S. 463 (1908)
22
1880 Act.). 8
After Germany's 1884 Act, workers' compensation laws began to be
reformed to reduce the need for litigation, and to mitigate the requirement
that injured workers prove their injuries were their employer's "fault". For
example, The 1897 British Act replaced the 1880 Act.
In the United States, the first state such worker's compensation law
was passed in Maryland in 1902, and the first law covering federal
employees was passed in 1906.9 (See: FELA, 1908; FECA, 1916; Kern,
1918.) By 1949, all states had enacted some kind of workers' compensation
regime.10 Such schemes were originally known as "workman's
compensation."
India
The Employees State Insurance Act, 1948
The Employees State Insurance Act, 1948 is one of the another
important Act which protect the interest of the worker
This Act provides a scheme under which the employer and the
employee must contribute a certain percentage of the monthly wage to the
Insurance Corporation that runs dispensaries and hospitals in working class
localities. It facilitates both outpatient and in-patient care and freely
dispenses medicines and covers hospitalisation needs and costs. Leave
certificates for health reasons are forwarded to the employer who is obliged
to honour them. Employment injury, including occupational disease is
8 lawphil.net "The Employers' Liability Act of Alabama, first enacted in 1855 (Civil
Code 1907, Ch. 80, sec. 3910), is a substantial, if not an exact copy, of the English Act of 1880."
9 The Federal Employers Liability Law of 1906.The 1906 law was declared unconstitutional by the Supreme Court; re-worked by Congress in 1908
10 eh.net Fishback Includes extended data tables.
23
compensated according to a schedule of rates proportionate to the extent of
injury and loss of earning capacity. Payment, unlike in the Workmen’s
Compensation Act, is monthly. Despite the existence of tripartite bodies to
supervise the running of the scheme, the entire project has fallen into
disrepute due to corruption and inefficiency. Workers in need of genuine
medical attention rarely approach this facility though they use it quite
liberally to obtain medical leave. There are interesting cases where workers
have gone to court seeking exemption from the scheme in order to avail of
better facilities available through collective bargaining.
During British Period in India the practices of providing
compassionate appointment were initiated by the Big Industrial Houses of
India much prior to the Country achieved independence. During those days
Big Business Houses & Industries were controlled & owned by couple of
Capitalists & Industrialists like Tata, Birla's, Sahu, Jain, Singhania's etc. In
these business houses hundreds of thousands of workers used to work in
their factories in those days, the industry owner's while concentrating into
growth of profit & economy & productions also had & sense of social
responsibility.
The factory owner's with a view to encourage & appease their
worker and to give gift's & extra financial benefits on the event of festivals
like Holi, Christmas, Diwali, Eid etc. and they were also interested in doing
some philanthropic service among its workers with a view to win their
sympathy & loyalty. Such Industrialists also help their labours & workers
when they work in trouble & distressed. Out of philanthropic service they
helped employee's daughters. They also used to provide financial
assistance to son's that were prosecuting studies.
Although during British regime, and even in the absence of labour
24
Legislations like Industrial Disputes Act, 1947. Factories Act, 1948 etc.
when the cruel Practice of Hire and Fire was prevalent, the big business
houses have started few welfare measures on their own like distribution of
incentives to its workmen on the eve of festival's & one such provision for
the welfare of workers was to provide compassionate appointment to the
son/ dependant of retiring workman or on the death of it's workmen.
Pension Scheme in India during British Period
Pension scheme in India was introduced by the British Government
after the India independence struggle in 1857. This is a reflection service in
Indian was planned to enable the "native employee" of the British
Government to meet their normal substance, leaving very negligible
margin for them to make provision for their post- retirement life. The
service conditions did not allow the Govt. employee to earn any extra
income by doing business or by carrying any other profession. So the
provision, of Pension system providing some sure income for the
employees after their retirement was aimed at, to discourage them from
resorting to malpractices for creating money cover for their post retirement
life. The Pension System thus started in India was finalized by the Indian
Pension Act of 1871.
It appears that the British Government had the conception of
providing its pensioners increase in their pensions to neutralize the effect of
inflation. Accordingly the British Govt. granted temporary increases in
pension in 1921 to compensate the rise in prices after the First World War.
Similarly increases were also given in 1943, 1944, and 1945 after Second
World War.
Thereafter for a long time no rise in pensions was sanctioned even
though the prices were rising. But serving employees were given some
25
dearness allowance from time to time and part of that was treated as pay
for calculation of pension. No real benefit could be got by pensioners up to
1945. The First Pay Commission was appointed in 1946. The P&T
Pensioners Association tried its best to bring the problem of pensioners
into the orbit of the pay commission but in vain. The Commission clarified
that the pensioner's problems could not be examined as the same were not
'referred to'.
Even though the retirement benefits were being given by the Govt.
from time to time, they were not incorporated in Fundamental Rules made
effective from 1-1-1992. It was later decided by the govt. to make revised
pension rule governing the cases of post-1938 entrants. These rules were
actually out only in 1945 giving rise to many problems.
Development of Dying in Harness after Independence
The Constitution of India echoes the basis of government. It is the
document prepared by “We the people of India” the form is republican and
the object is to achieve social, economic and political for a Socialistic
society. We have resolved to give various freedoms and most important
among them is equality to “States and of opportunity”. The socialistic
pattern of society as envisaged in the Constitution has to attributed is full
meaning and for the achievement of the lofty ideals, we have Directive
Principles of State Policy and Fundamental Rights Chapter in the
Constitution which of the one hand guarantees certain inalienable rights to
citizens and on the other hand direct the State to work in such a way that
these fundamental rights become real and meaningful.
Article 38 of the Constitution a mandates that the state shall strive to
promote the welfare of people by serving and protecting as effectively as it
may a social order in which justice, social, economic and political, shall
26
inform all the institution of the national life.
It further lays down that State, in particular strive to minimum the
inequalities in income, and Endeavour to climate in equalities in States
facilities and opportunities, not only amongst individuals but also amongst
groups of people residing in different areas or engaged in different
vocations.
Article 41 is more explicit when it says that the State which the
limits of its economic capacity and development, make effective provision
for securing the right to work, to education and public assistance in case of
unemployment, old age, sickness and disablement and in other case of
undeserved want.
Thus the directive principles of state policy envisage the right to
work and public assistance in case of unemployment and in other case of
undeserved want. However, these directions cannot be applied in isolation.
There are fundamental rights enshrined in the Constitution and the first and
foremost among them is equality before law and equal protection of laws
throughout the territory of India. The equality doctrine is further enforced
by prohibiting discrimination on ground of religion, race, caste, sex or
place of birth or any of them11 and providing equality of opportunity in
matters of public employment.12.
Thus issue of compassionate appointment derives its origin from
Article 16(2) of Indian Constitution, which is kind of Exception to rule of
‘non discrimination in appointment in public services on the ground of
‘DESCENT’, and is explained below:
11 Article 15 of the Constitution of India. 12 Article 16 of the Constitution of India.
27
Article 16 in the Constitution of India
16. Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State
(2) No citizen shall, on grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect or, any employment or office under
the State Territory prior to such employment or appointment
(3) Nothing in the article shall prevent Parliament from making any law
prescribing, in regard to a class or classes of employment or
appointment to an office under the Government of, or any local or
other authority within, a State or union territory, any requirement as
to residence within that State or Union
(4) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favor any
backward class of citizen which, in opinion of the State, is not
adequately represented in the service under the State
(5) Nothing in this article shall effect the operation of any law which
provides that the incumbent of an office in connection with the
affairs of any religious or denominational institution or any member
of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.
Descent
1. An act providing appointment to an office under the State (viz., that
village munsif) has been set aside as being discriminatory on the
28
ground of ‘descent’ only inasmuch as it directed that the person
considered best qualified from “among the family of holder of the
office” should be selected thereby debarring citizen from the
opportunity of being appointed to the office.
In short, whatever might have been the validity of the custom
of hereditary succession to a public office, say, for the
administration of village, such custom has become void after the
Constitution owing to contravention of Article 16(2).
2. Any appointment on the ground of descent only is barred by clause
(2). Exception to this is provided clause (3) (legislation by
Parliament on the ground of residence) and clause (5) (hereditary
religious office).Any further exception must be justified by
particular grounds which are Constitutionally valid.
Compassionate appointment (exception to above)
Hence any reservation or relaxation of qualification for children of
employees; who are in office, is invalid, but it would be valid if it is made
in favour of son, daughter or widow of an employee who dies in harness,
because reservation would be not on the ground of descent only, but on the
compassionate ground to relive the family from sudden economic distress.
At the same time the provision would be invalid if the provision is made
for ‘a near relative’ which is vague as to be open to abuse. In short
compassionate appointment is valid, limited to dependants, in special
circumstances, it would not be extended to those who claim on the on the
ground of descent.
An employee of state enjoys a status. Recruitment of the State is
governed by the rules framed under the statute or the provision appended to
29
Article 309 of the Constitution of India. In the matter of appointment, the
State is obligated to give effect to the Constitutional scheme of equality as
adumbrated under Article 14 and 16 of the Constitution of India. All
appointments, therefore, meet conform to the said Constitutional Scheme,
The Supreme Court of India, however, laying emphasis on the said
proportion carved out an exception in favour of the children or other
relative of the employee who dies or who seems incapacitated which
rendering service in government department.13
Public employment is considered to be a wealth. It in terms of
Constitutional scheme cannot be given in descent. However, an exception
has been carved out by the Supreme Court of India in favour of
compassionate appointment. Such appointments are given only for meeting
the immediate hardship which is faced by the family by the reason of the
death of the bread earner. When an appointment is made on compassionate
ground, it should be kept confined only to the purpose it seeks to achieve,
the idea being not provide for endless compassion.14.
This aspect of the matter was considered by the Supreme Court of
India in the celebrated case of Umesh Kumar Nagpal v.State of Hryana15 in
the following terms:-
“As a rule, appointment in the public services should
be made strictly on the basis of open invitation of
applications and merit. No other mode of appointment or
other consideration is permissible. Neither the Government
13 I.G (Karmik) v. Prahlad Mani Tripath, (2007) 6 SCC 303. 14 Dharwad Dist PWD Litrate Daily Wage Employees Association v. State of
Karnataka , AIR 1990 SC 883; Randhir Singh v. Union of India AIR 1987 SC 2342, Surinder Singh v. Engineer-in- chief, AIR 1986 SCC 584
15 (1994) 4 SCC 138
30
nor the public authorities are at liberty to follow any other
procedure or relax the qualification laid down by the rules for
the posts. 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 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 sources 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 or post held
by the deceased.”
When the employer is an agency/ instrumentality of State which the
meaning of Article 12 they have an obligation to act in terms of the avowed
objective of Social and economic justice as enshrined in the Constitution.
The authority is supposed to act with a model and ideal employer in such
circumstances. The socialistic pattern of society as Contemplated in the
Constitution has to be attributed its full meaning. It is in his context
Supreme Court’s observation in Dharwad Distt. PWD Literate Daily
Wages Employees Association v. State of Karnataka161 seems to be rather
16 AIR 1990 SC 883
31
opposite:
“We would like to point out that the philosophy of this
Court as evolved in the cases we have referred to above is not
that of the court but is ingrained in the Constitution as one of
the basic aspects and if there was any doubt on this there is
no room for that after the Preamble has been amended has
been forty-second Amendment has declared the Republic to
be a socialistic one. The judgment, therefore, does nothing
more than highlight one aspect of the Constitutional
philosophy and make an attempt to give the philosophy a
reality of flesh and blood.”
The law relating to compassionate appointment has evolved through
judicial decisions. Article 309 of the Constitution of India permits making
law by union as well as State government, but till so far no codified law is
available on this vexed question. The Central government had issued office
memorandum in 1979. It has been amended from time to time and the
latest OM is available on the website of Ministry of Personnel, Public
Grievance and Pension Government of India.17 The scheme for
compassionate appointment provides the (i) objections (ii) to whom
applicable (iii) Authority competent to make compassionate appointment
(iv) posts to which such appointment can made (v) Eligibility (vi)
Exemption and relaxation (vii) Determination and availability of vacancies
17 The appointment on compassionate grounds against a pots in Central Government
are regulated in terms of the provision of “Scheme for Compassionate Appointment under Central Government” issued under Department of Personnel & Training OM is 14014/6/1994-Estt.(D) dated 09-10-1998 as amended from time to time. All the instructions on compassionate appointment have been consolidated vide OM 14014/02/2012-Estt. (D) Dated 16-01-2013 and are available on the Department website www.permin.nic.in (OM & order establishment) 9A) Administration (iii) concession in appointment (a) compassionate appointment
32
(viii) Time limit of considering application for compassionate appointment
(ix) Belated requests (x) Widow appointed getting remarried (xi) Where
there is an earning member in the family (xii) Missing Government servant
(xiii) Undertaking for maintenance of the family of the deceased employee
(xiv) Procedure for appointment (xv) Seniority (xvi) Termination and
other miscellaneous matter (xvii) Request for change in post. Identical
rules have been framed by Railway, Postal Department, Banks and several
state governments. One remarkable feature of these rule is that they have
framed in consonance of various verdicts of Sureme Court. Not only the
rules, the office memorandum has mentioned important rulings of the apex
court. So as to make the objective/ norms / procedure very clear judiciaries.
It is a unique feature of service jurisprudence prevalent in India which has
no parallel in other country. It is purely on indigence concept.
Lately a Bill18 to provide for regulation of appointment on
compassionate ground in office under Central government has been
introduced in Parliament. The statement of object and reasons of this bill
are as follows:-
“When government servant dies in service uncased
for. With the meager pension benefits, the family will not be
able to sustain in the present day when cost of living is going
up consistently. Of course there is a provision for providing
employment to eligible dependant member of the immediate
family of the government servant on compassionate ground.
But it has been observed that the employment is refused on
flimsy ground or family is made to sum from pillar to post
18 The Government services (Regulations of Compassionate Appointment) Bill 2011Bill
No.55OF 2011.
33
get employment. Sometimes, employment is also refused on
the ground that quota fixed for such appointment is already
over or name of the family members found eligible for
appointment in government only in few cases, compassionate
appointment employment is provided to immediate family
members of the government servant."
In order to mitigate the suffering of the family members of the
government servant, the Bill seeks to provide for compulsory employment
the dependant family members of the government servant on
compassionate ground within a given time frame.
The Bill go a long way is mitigating sufferings of the family
members of the government servant. More over the Supreme Court has, in
a judgment ordered that compassionate appointment can be mandatory but
can only be given in certain circumstances. As a result, many of the
families are suffering. The Bill such to achieve the above objects.”
After whole discussion we may say that history of dying in harness
rules (compassionate appointment) though has started from earlier in
various country of the world including India but there is no specific
legislation in India till date.
Chapter – III
Object of Compassionate Appointment under
Dying in Harness Rule
The whole object of compassionate appointment is tied over sudden
financial crisis on the death of the sole bread earner of the family. The
object is not to give preference over another but to alleviate the distress of
the family.
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.
In every state, there is a compassionate dying in harness scheme for
one of the legal heirs of those workers/helpers who died while in service.
The legal heirs of the deceased are eligible for employment based on their
educational qualification as Worker/Helper.
Dying-in-Harness Rules are special set of Rules which have been
made for providing a source of livelihood and to give some respite to the
members of the deceased Government servant's family at a time when the
family is suddenly struck of with a calamity where the sole bread-earner
dies. In such a situation, it becomes difficult for the family to survive and
to meet even the basic necessities of life. The family finds itself in extreme
economic hardship and needs some help to make both ends meet in these
hard economic days. The Rules have been enacted to mitigate the hardship
35
to some extent so that the family may survive. The Rules, no doubt, are a
social pieces of legislation giving protection to the family of the deceased
whose children may be small or may be unemployed and the widow may
also not be working and thus the entire family may not be having any other
source of livelihood. The State being the protector and guardian of its
citizens and being under a mandate under Article 21 of the Constitution has
to provide for basic needs subject to its economic capacity. The purpose of
the Rules is that their family should not be left as destitute and the children
may not go astray for want of financial assistance. Keeping in mind the
above Constitutional obligations a special set of Rules in which the scheme
of appointment to one of the members of the deceased Government
servant's family has been provided. The overall idea and concept of these
Rules is to keep the family in main streamline of the society for which
economic security and social status is to be provided by the State
Government.
The purpose of these Rules is not to open a new source of
recruitment or device for getting employment by the heirs or dependants of
the Government servant who has died-in-harness. It is only a protective
provision and not a device for getting employment and settling the children
at the cost of the death of the father. In case such, a liberal interpretation is
given to the Rules, it would not only create discontentment in the society
where many more young persons are running from pillar to post in search
of employment but would also be discriminatory and without any legal
nexus with the object for which the Rules have been framed. It cannot be
said that simply because the family has faced the shock of death of the
father or the sole bread earner, the need for employment to the member of
such a family would be more pressing, hard and genuine even after lapse of
36
a considerable period, i.e., even after the period of five years, as compared
to those who have to seek employment of these Rules.
In Umesh Kumar Nagpal v. State of Haryana1, the Hon'ble Supreme
Court has discussed in detail regarding the object of compassionate
appointments in dying in harness case. The Supreme Court observed:
"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
1 (1994) 4 SCC 138.
37
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 employments which are suddenly upturned."
It is clear from reading of the Rules that appointment is made on
compassionate ground. The person who is to be appointed is not to face
selection for appointment for a post. The post may be a selection post or it
is to be filled by promotion. The vacancy to a post shall be filled by giving
appointment to a person who is entitled to be appointed under Rule in
preference to others provided he is qualified and suitable for appointment
to such a post. The Rules provide relief to family whose bread earner died
in harness. The appointment has to be made immediately on the death of
the employee.
The purpose of appointment on compassionate ground was indicated
by the Supreme Court in case of Sushma Gosain and Ors. v. Union of India
and Ors.,2 which reads as under:
"We consider that it must be stated unequivocally that in all
claims for appointment on compassionate grounds, there
should not be any delay in appointment. The purpose of
providing appointment on compassionate ground is to
mitigate the hardship due to death of the bread earner in the 2 (1989) 4 SCC 468.
38
family. Such appointment should, therefore, be provided
immediately to redeem the family in distress. It is improper
to keep such case pending for years. If there is no suitable
post for appointment, supernumerary post should be created
to accommodate the applicant."
The principle underlying appointment under dying in harness rule
was considered by a Division Bench of High Court in Harbans Sahai
Srivastava v. State of U.P. and Ors.3 In this case, the employee had died in
harness in the year 1973. His son submitted application before the
authorities concerned for appointment in the year 1985 claming
appointment under the Rules stating that he had obtained degree of B.A. in
the year 1983. His application was rejected. The Court upheld the order. It
was held that the intention of the Rules was to provide assistance to the
family of the deceased who was a Government servant and had died in
harness. It is at that time the help is required by the family members of the
deceased employee. The claim of appointment after expiry of nine years
was too belated. If the applicant could not be appointed, his mother could
have sought appointment under the Rules and she could have been offered
suitable post according to her qualification, but she did not apply for
appointment.
Further the court stated that on the death of an employee, dying in
harness, a vacancy occurs to the post on which he was working. There is no
difficulty for making appointment on the said post in case any family
member of the deceased is qualified for appointment to the said post. The
difficulty arises when no suitable post, according to qualification and
suitability of such dependent, is available at the time of death of the
3 (1991) 11 LLJ 287.
39
employee who died in harness. In that situation there are two courses open.
Either a post is created or such other post, which may be available, is
offered and it is accepted by the family member of the deceased employee.
In the Case of Director of Education (Secondary) v. Pushpendra
Kumar,4 the Hon'ble Apex Court has observed that 'the object underlying a
provision for grant of compassionate employment is to enable the family of
the deceased employee to tide over the sudden crisis resulting due to death
of the bread-earner which has left the family in penury and without any
means of livelihood. Out of pure humanitarian consideration and having
regard to 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 for
giving gainful appointment to one of the dependents of the deceased who
may be eligible for such appointment. Such a provision makes a departure
from the general provisions providing for appointment on the post by
following a particular procedure. Since such a provision enables
appointment being made without following the said procedure, it is in the
nature of an exception to the general provisions. An exception cannot
subsume the main provision to which it is an exception and thereby nullify
the main provision by taking away completely the right conferred by the
main provision. Care has, therefore, to be taken that a provision for grant of
compassionate employment, which is in the nature of an exception to the
general provisions, does not unduly interfere with the right of other persons
who are eligible for appointment to seek employment against the post
which would have been available to them, but for the provision enabling
appointment being made on compassionate grounds of the dependant of a
deceased employee’.
4 (1998) 5 SCC 192.
40
In so far as delay in approaching the authorities for such
appointment is concerned it considered by Supreme Court in the case of
Union of India v. Bhagwan Singh.5 It was held as follows:
"It is evident, that the facts in this case point out, that the plea
for compassionate employment is not to enable the family to
tide over the sudden crisis or distress which resulted as early
as September 1972. At the time Ram Singh died on 12-9-
1972 there were two major sons and the mother of the
children who were apparently capable of meeting the needs
in the family and so they did not apply for any job on
compassionate grounds. For nearly 20 years, the family has
pulled on, apparently without any difficulty. In this
background, we are of the view that the Central
Administrative Tribunal acted illegally and wholly without
jurisdiction in directing the Authorities to consider the case
of the respondent for appointment on compassionate grounds
and to provide him with an appointment, if he is found
suitable."
In the case of Haryana State Electricity Board v. Naresh Tanwar,6 it
was stated that:
"It has been indicated in the decision of Umesh Kumar
Nagpal that compassionate appointment cannot be granted
after a long lapse of reasonable period and the very purpose
of compassionate appointment, as an exception to the general
rule of open recruitment, is intended to meet the immediate
5 (1995) 6 SCC 436. 6 (1996) 8 SCC 23.
41
financial problem being suffered by the members of the
family of the deceased employee. In the other decision of this
Court in Jagdish Prasad case, it has been also indicated that
the very object of appointment of dependent of deceased
employee who died in harness is to relieve immediate
hardship and distress caused to the family by sudden demise
of the earning member of the family and such consideration
cannot be kept binding for years."
An employment on compassionate ground should be provided
strictly in accordance with the Rules and the Court cannot take a view as to
make it violative of Article 14 and 16 of the Constitution of India.
In State of Haryana v. Ankur Gupta,7 the Supreme Court observed :
"As was the State of Haryana v. Rani Devi, 8 it need not be
pointed out that the claim of the person concerned for
appointment on compassionate ground is based on the
premise that he was dependent on the deceased employee.
Strictly, this claim cannot be upheld on the touchstone of
Article 14 or 16 of the Constitution of India. However, such
claim is considered as reasonable and permissible on the
basis of sudden crisis occurring in the family of such
employee who has served the State and dies while in service.
That is why it is necessary for the authorities to frame rules,
regulations or to issue such administrative orders which can
stand the test of Article 14 and 16. Appointment on
compassionate ground cannot be claimed as a matter of
7 (2003) 7 SCC 704. 8 (1996) 5 SCC 308.
42
right.... The appointment on compassionate ground is not
another source of recruitment but merely an exception to the
aforesaid requirement taking into consideration the fact of the
death of the employee while in service leaving his family
without any means of livelihood. In such cases the object is
to enable the family to get over sudden financial crisis. But
such appointment on compassionate ground have to be made
in accordance with the rules, regulations or administrative
instructions taking into consideration the financial condition
of the family of deceased."
While reiterating the purpose of making appointment on
compassionate ground, the Hon'ble Supreme Court in Haryana State
Electricity Board v. Krishna Devi,9 held that the main object behind giving
such employment is to provide immediate financial help to the family of
the deceased employee. Such appointment cannot be made in absence of
Rules or Instructions. Application for such employment must be made
within the period prescribed by the Rules / Instructions. Application made
at a belated stage cannot be entertained for the reason that by lapse of time,
the purpose of making such appointment stands evaporated.
In the case of Punjab National Bank v. Ashwini Kumar Taneja,10 it
was observed by the court that that 'It is to be seen that the appointment on
compassionate ground is not a source of recruitment but merely an
exception to the requirement regarding appointments being made on open
invitation of application on merits. Basic intention is that on the death of
the employee concerned his family is not deprived of the means of
9 (2002) 2 LLJ 773. 10 (2004) 7 SCC 265.
43
livelihood. The object is to enable the family to get over sudden financial
crisis.'
In the case of State of J&K v. Sajad Ahmed Mir11 the Supreme Court
has held that:
“Normally, an employment in the Government or other
public sectors should be open to all eligible candidates who
can come forward to apply and compete with each other. It is
in consonance with Article 14 of the Constitution. On the
basis of competitive merits, an appointment should be made
to public office. This general rule should not be departed
from except where compelling circumstances demand, such
as, death of the sole breadwinner and likelihood of the family
suffering because of the setback. Once it is proved that in
spite of the death of the breadwinner, the family survived and
substantial period is over, there is no necessity to say
'goodbye' to the normal rule of appointment and to show
favour to one at the cost of the interests of several others
ignoring the mandate of Article 14 of the Constitution.”
In the Case of Km Rita Roy v. State of U.P.,12 the Court has
observed that Dying-in-Harness Rules provide for appointment on
compassionate ground to a post commensurate with the qualification of the
candidate. It has never provided a right that such candidates are to be
accommodated despite having been unqualified. Neither has it entitled to
relaxation of the rules despite disqualification while all others are required
to fulfill such qualification. It does not create any such right in favour of a
11 (2006) 5 SCC 766 12 (1998) 2 SCC 864
44
candidate. The compassion is not subject to such an extent of stretching. It
was carried out an exception to Article 16 of the Constitution and the rules
of procedure for recruitment other than the qualification prescribed. There
is no scope for dispensing with the prescribed qualification, simply because
claiming appointment on compassionate ground, it is not open to a
candidate to ask for such appointment even though the candidate lacks
qualification. The appointment is to be given within the ambit of
recruitment rules with the exception that process of selection shall not be
regular one in super-session of Article 16 of the Constitution because of
specific provisions contained in Dying-in-Hamess Rules. The petitioner
has not been able to show anything that there are separate rules prescribing
qualification for clerical staff in the Police Department other than those as
mentioned in the rule relating to clerical cadre except those governing
appointment of the constables.
In the case of M/s Eastern Coalfields Ltd. v. Anil Badyakar & Ors.13
The Apex Court has observed that it can not be offered after crises are
over. The principles indicated above would give a clear indication that the
compassionate appointment is not a vested right which can be exercised at
any time in future. The compassionate employment cannot be claimed and
offered after a lapse of time and after the crisis is over. In the instant case
the employee died in harness in the year 1981 and after a long squabble by
the dependents of the deceased, they arrived at a settlement that the son-in-
law of the second daughter who is unemployed may request for
appointment on compassionate grounds. The request so made was accepted
by the Personal Manager of the Company subject to the approval of the
Director of the Company. The Director (P) , who is the competent authority
13 (2009) 6 SCC 624.
45
for post facto approval, keeping in view the object and purpose of
providing compassionate appointment has cancelled the provisional
appointment on the ground that nearly after 12 years from the date of death
of the employee such an appointment could not have been offered to the so
called dependent of the deceased employee. In our considered view, the
decision of the employer was in consonance with Umesh Kumar Nagpal's
case and the same should not have been interfered with by the High Court.
In Haryana State Electricity Board v. Hakim Singh,14case State
electricity board issued circulars regarding employment to be given to one
member of family of deceased employee - application to be made within
one year of death of deceased - application was made after 14 years -
object of appointment of dependent of deceased employee who dies in
harness is to relieve unexpected hardship and distress caused to family by
sudden demise of earning member of family - claim of dependent preferred
long after death of deceased would amount to another mode of recruitment
of such dependent.
The Court further observed that the object of the provisions should
not be forgotten that it is to give succor to the family to tide over the
sudden financial crisis befallen the dependants on account of the untimely
demise of its sole earning member.
In S. Mohan v. Government of T.N. and Anr.,15 case the pertinent
question was whether appointment of appellant on compassionate grounds
was justified? Court held that at the time of death of appellant's mother, she
was not sole breadwinner of family and her brother were already employed
and her father was receiving pension. Therefore, there was no immediate
14 (1998) 1 SCT 511 at p. 5121 15 (1998) 9 SCC 485
46
financial crisis in appellant family. Then Appellant employed on
compassionate grounds after lapse of 10 years will not take any advantages
for that ground. Thus Government had rightly refused to give him
appointment. Appellant was continued in service on account of interim
orders passed during pendency of proceedings taken out by appellant will
not be helpful to appellant, the court observed.
In Haryana State Electricity Board v. Krishna Devi16case, the
husband of respondent died in 1984. At that time there existed no rule or
scheme for compassionate appointment. The Scheme framed in 1985.
Respondent applying in 1992 to give appointment to her son-.Whether
High Court justifyed in directing to give appointment to son of respondent?
The court Held, “no” It was not to meet immediate financial need of
family.
It was observed by the court that itt is well-settled that employment
on compassionate ground is given only on pure humanitarian consideration
and no appointment can be claimed as a matter of right. The main object
was to provide immediate financial help to the family of the deceased
employee. It is also well-settled that employment under compassionate
ground cannot be made in absence of rules or instructions issued by the
Government or any public authority.
As the application for employment of her son on compassionate
ground was made by the respondent after eight years of death of her
husband, it was not to meet the immediate financial need of the family. The
High Court did not consider the position of law and allowed the writ
petition relying on an earlier decision of the High Court. If the impugned
order was allowed to stand, the purpose of making appointment on 16 (2002) 10 SCC 246
47
compassionate ground would frustrate, the court observed.
In Commissioner of Public Instructions and Ors. v. K.R.
Vishwanath,17 Karnataka Civil Services (Appointment on Compassionate
Grounds) Rules 1990 and Karnataka Civil Services (Appointment on
Compassionate Grounds) (Amendment) Rules 1998 were involved. Under
Rule 5 application for appointment was rejected on the ground that the
application had not been filed within one year of attaining majority. In fact
application was filed before the Amendment Rules came into force. On
appeal by the respondent, the Tribunal allowed the petition and directed the
appellants to consider the case of the respondent for appointment on
compassionate grounds without regard to any period of limitation. On
appeal by the appellant, the High Court dismissed the writ petition.
Appellant contented that the view that there can be no condonation of delay
in making the application is contrary to the applicable provisions.
Respondent contented that the Rules are merely directory and even if it is
conceded that there was no application pending that will not change the
situation. The court held, bare reading of the second proviso makes the
position clear that unless the application is pending at the time of
commencement of the Amendment Rules, the same can have no
application. No scope for introducing a concept of condonation of delay.
Further court held that Tribunal and the High Court were not justified in
directing that the respondent's case be considered without taking note of
the limitation prescribed.
In A.P.S.R.T.C., Musheerabad and Ors. v. Sarvarunnisa Begum,18
Respondent's husband died in harness while in service. Respondent widow
17 (2005) 7 SCC 206. 18 (2008) 3 SCC 402.
48
submitted an application expressing her willingness to accept additional
monetary benefit in lieu of employment. Appellant gave additional
monetary benefit to the Respondent. Subsequently, the respondent made a
request that the additional monetary benefit may be taken back and to
provide her employment on compassionate grounds. Refusal by the
Appellant. Writ filed. High Court held that merely because additional
monetary benefits are given to the respondent, her case for appointment on
compassionate grounds cannot be rejected. On appeal, the Division Bench
of the High Court modified the order of the Single Judge. The court held
that additional monetary benefit has been given to the widow apart from
the benefits available to the widow after the death of her husband. As a
matter of right, she was not entitled to claim the compassionate
appointment and that too when it had not been brought to the notice of the
Court that any vacancy was available where the Respondent could have
been accommodated by giving her a compassionate appointment.
A widow who has been given additional monetary benefit apart
from the benefits available to the widow after the death of her husband, is
not entitled to claim compassionate appointment.
In the present case, the additional monetary benefit has been given
to the widow apart from the benefits available to the widow after the death
of her husband to get over the financial constraints on account of sudden
death of her husband and, thus, as a matter of right, she was not entitled to
claim the compassionate appointment and that too when it had not been
brought to the notice of the Court that any vacancy was available where the
respondent could have been accommodated by giving her a compassionate
appointment. That apart, the Division Bench of the High Court has
committed an error in modifying the direction of the Single Judge by
49
directing the Corporation to appoint the respondent when no appeal was
preferred by the respondent challenging order of the Single Judge.
In so far as delay in approaching the authorities for such
appointment is considered by the Supreme Court in the case of Union of
India v. Bhagwan Singh,19 it was held as follows:
"It is evident, that the facts in this case point out, that the plea
for compassionate employment is not to enable the family to
tide over the sudden crisis or distress which resulted as early
as September 1972. At the time Ram Singh died on 12-9-
1972 there were two major sons and the mother of the
children who were apparently capable of meeting the needs
in the family and so they did not apply for any job on
compassionate grounds. For nearly 20 years, the family has
pulled on, apparently without any difficulty. In this
background, we are of the view that the Central
Administrative Tribunal acted illegally and wholly without
jurisdiction in directing the Authorities to consider the case
of the respondent for appointment on compassionate grounds
and to provide him with an appointment, if he is found
suitable."
In the case of National Hydroelectric Power Corporation v. Nanak
Chand,20 the court has stated that:
“It is to be seen that the appointment on compassionate
ground is not a source of recruitment but merely an exception
to the requirement regarding appointments being made on
19 (1995) 6 SCC 436. 20 (2005) 11 LLJ 240.
50
open invitation of application on merits. Basic intention is
that on the death of the employee concerned his family is not
deprived of the means of livelihood. The object is to enable
the family to get over sudden financial crises.”
In Maharani Devi and Anr. v. Union of India (UOI) and Ors., 21
compassionate appointment issue in the petition was that since the husband
of appellant died in 1995 during the previous order of the Railway Board
when appointment of a near relative was permitted there was no reason to
deny the appointment in favour of the second Appellant. The court held
that employment on compassionate grounds could not be denied on the
ground of financial benefits received by the widow and children of the
deceased Government employee were sufficient to meet their needs.
Question posed as to what would be the relevant date for consideration,
whether it would be the date of death of employee or whether it would be
the date of making the representation has not been considered by the High
Court. The matter was remanded to the High Court and the Petition was
allowed.
On the first question, therefore, the Tribunal found the case against
the appellants. On the second question, however, the Tribunal held that the
employment on compassionate grounds could not be denied on the ground
of financial service benefits received by the widow and children of the
deceased Government employee were sufficient to meet their needs. In
support of this proposition, the Tribunal relied on the decision of Balbir
Kaur and Ors. v. Steel Authority of India.22
That the question posed by the Court as to what would be the
21 (2009) 7 SCC 295. 22 AIR 2000 SC 1906.
51
relevant date for consideration, whether it would be the date of death of
employee or whether it would be the date of making the representation?
That had not been considered by the High Court. The matter was therefore
remanded to the High Court with a request to decide the same. The Apex
Court requested the High Court to dispose of the matter within six months
of the writ reaching the High Court as the matter pertained to the rights of a
poor widow. The appeal was allowed in the terms stated by the Court with
no orders as to the costs.
In State of Haryana v. Piara Singh23 and State of U.P. and Ors. v.
Paras Nath ,24 it was held that the purpose of providing employment to the
dependant of a Government servant dying-in-harness in preference to
anybody else is to mitigate hardship caused to the family of the deceased
on account of his unexpected death while in service. To alleviate the
distress of the family, such appointments are permissible on compassionate
grounds provided there are Rules providing for such appointments.
In the case of Sanjay Kumar v. State of Bihar,25 the court has stated that:
"This Court has held in a number of cases that compassionate
appointment is intended to enable the family of the deceased
employee to tide over sudden crisis resulting due to death of
the bread earner who had left the family in penury and
without any means of livelihood."
In MMTC Ltd. v. Pramoda Dei,26 the court observed:
"The object of compassionate appointment is to enable the
penurious family of the deceased employee to tide over the 23 (1993) 11 LLJ 937. 24 (1999) 11 LLJ 454. 25 AIR 2000 SC 2782. 26 (1997)11 SCC 390.
52
sudden financial crisis and not to provide employment and
that mere death of an employee does not entitle his family to
compassionate appointment."
In the case of S. Mohan v. Government of T.N.,27 the court stated that:
"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 breadwinner, the compassionate employment cannot be
claimed and offered after considerable the lapse of time and
after the crisis is over."
In the case of State of U.P. v. Paras Nath,28 the court has held that
the purpose of providing employment to a dependant of a government
servant dying in harness in preference to anybody else, is to mitigate the
hardship caused to the family of the employee on account of his
unexpected death while still in service. To alleviate the distress of the
family, such appointments are permissible on compassionate grounds
provided there are Rules providing for such appointment. The purpose is to
provide immediate financial assistance to the family of a deceased
government servant. None of these considerations can operate when the
application is made after a long period of time such as seventeen years in
the present case, the court observed.
In Life Insurance Corporation of India v. Asha Ramachhandra
Ambekar and Anr.,29 wherein the Court observed:
“The High Courts and the Administrative Tribunals cannot
confer benediction impelled by sympathetic consideration....
27 (1999) 11 LLJ 539 SC 28 (1999)I 11 LLJ 454 SC 29 (1994) 2 SCC 718
53
Yielding to instinct will tend to ignore the cold logic of law.
It should be remembered that “law is the embodiment of all
wisdom”. Justice according to law is a principle as old as the
hills. The Courts are to administer law as they find it,
however, inconvenient it may be."
In Dhalla Ram v. Union of India,30 it was held that the very object
of making appointment on compassionate grounds is to rehabilitate the
family of the deceased employee who dies in harness. There should be no
difficulty to consider an eligible candidate for providing immediate
sustenance to the members of the deceased employee. In this case the
appellant had applied on July 15, 1987 and the application was rejected on
July 14, 1988 He filed the OA on July 12, 1993. The court held: “In view
of the long delay, after the refusal by the Government, in filing the
application, the same cannot be entertained. The appointment on
compassionate grounds is not a method of recruitment but is a facility to
provide for immediate rehabilitation of the family in distress for relieving
the dependent family members of the deceased employee for destitution.”
In the case of Jagdish Prasad v. State of Bihar and Others,31 in this
case the dependent was 4 years of age when employee died. The court held
that he was not entitled to appointment long thereafter after attaining
majority. The very object of appointment of a dependent of the deceased
employees who die in harness is to relieve unexpected immediate hardship
and distress caused to the family by sudden demise of the earning member
of the family. In the case since the death occurred way back in 1971, in
which year the appellant was four years old, it cannot be said that he is
30 1999 (2) SCT 301 at 301. 31 1996 SCC (L&S) 303.
54
entitled to be appointed after he attained majority long thereafter. In other
words, if that contention is accepted, it amounts to another mode of
recruitment of the dependent of a deceased government servant which
cannot be encouraged, de hors the recruitments rules, the court observed.
The Hon'ble Supreme Court in the matter of I.G. (Karmik) v.
Prahalad Mani Tripathi32 was observed that Public employment is
considered to be a wealth. It in terms of the Constitutional scheme cannot
be given on descent. When such an exception has been carved out by the
Court, the same must be strictly complied with. Appointment on
compassionate ground is given only for meeting the immediate hardship
which is faced by the family by reason of the death of the bread earner.
When an appointment is made on compassionate ground, it should be kept
confined only to the purpose it seeks to achieve, the idea being not to
provide for endless compassion." As a result of foregoing discussions, the
learned Judge was of the considered view that the scheme providing for
compassionate appointment to the dependents of the deceased employee
does not include divorced daughter. It is well settled position that
compassionate appointment is not a vested right therefore, it has to be
strictly complied with in its letter and spirit. The inclusion of any other
relation in the definition of family of the scheme of compassionate
appointment would amount to family to get over the financial crisis which
it faces at the time of death of sole bread-earner by giving employment to
the dependents of the deceased government employee defined under the
scheme within a reasonable time as prescribed and the scheme cannot be
used as device to ensure appointment as a matter of right.
After foregoing discussion in nutshell we may say that the whole
32 (2007) 6 SCC 162
55
object of the scheme for compassionate appointment is to grant
appointment on compassionate ground to a dependent family member of an
employee dying in harness, thereby leaving his family in penury and
without any means of livelihood. It is to relieve the family of the employee
concerned from the financial destruction and to help it get over the
emergency.
Chapter – IV
Dying in Harness Rule & Constitution of India
Compassionate Appointment is one of the very important concept of
Service Jurisprudence. Although there is no such legislation enacted by the
Parliament or State legislatures but nevertheless it has acquired a
mandatory legal Status within the domain of service jurisprudence.
Although the concept of Compassionate Appointment was
introduced in the Directive Principles of State Policy under our
Constitution but this practice was vague even prior to the commencement
of the Constitution. Initially this practice was started by the generous
industrialist during the days of British regime. This practice was not started
under any state interference but the same was introduced & adopted by the
industrialist & big business houses have social commitment on their own.
The Preamble to the Constitution of India resolves to constitute
India into a sovereign democratic republic and to secure all its citizens,
inter-alia, social, economic and political justice, various liberties and
equality of states and of opportunity. With these solemn resolves, “we the
people of India” had adopted enacted and given to any selves the sacred
documents.
To achieve the lofty ideals enumerated in the Preamble, the
Constitution of India provided Part III (Fundamental Rights) Part IV
(Directive Principles of State Policy ) and Part IV-A (Fundamental
Duties). The directives principles of State of policy are directed towards
the ideals of building a true welfare state and inter alia, envisages and end
to economic expatiation, staggering inequalities and cast upon the state
57
duty to secure a just social order. Thus Article 381 lays down that “the state
shall strive to promote the welfare of the people by securing and protecting
as effectively as it may a social order in which justice, social, economic
and political shall inform all institutions of national life”. Article 392 says
that the State shall direct its policy in such a manner as to secure that all
man and women have the right to and adequate means of livelihood, that
the ownership and control of the material resources of the community are
so distributed as best to sub-serve the common good, that there is equal pay
for equal work for both men and women, that the health and strength of
workers : men and women, and the tender age of children are not abused,
that citizens are not forced by economic necessity to enter avocation
unsuited to their age or strength and the childhood and youth are protected
against exploitation. Article 413 seeks within the limits of the states’s
economic capacity and development, to make effective provision for
securing the work, education and public assistance in the event of
unemployment, old ages, sickens and disablement or other cases of
underserved want.
The Constitution enumerates these principles, which though are not
justified or enforceable through a court of law, are regarded as fundamental
in the governance of the country. The Constitution makers regarded their
inclusion in the Constitution as a reminder that though non-enforceable the
state must endeavour to implement them and honour them as policy blue
print for all future governments to which ever party it may belong.
Fundamental rights are rights having a noble pedigree. They are
1 Article 38 : State to secure a social order for the postulates of welfare of the
people. 2 Article 39 : Certain Principle of policy followed by the state. 3 Article 41 : Right to work to education and to public assistance in certain cases.
58
natural rights which are in the nature of external Constitutions necessary
for the greatest possible unfolding of the capacities of a human being.
These served and guaranteed conditions are called fundamental rights.
They may also be called natural rights which have their origin in natural
law theories. It is generally agreed that these natural rights are inherent in
man and cannot be taken away by the state the Universal Declaration of
Human Right, 1949 in its preamble declares,4
"Whereas recognitions of the inherent dignity and of the
equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace of the
world.
.......Whereas the properties of the United Nations have the
charter reaffirmed their faith in fundamental human rights."
Natural rights command higher sanctity than other right based on
contract become they exist unrepentant of any statutes.5
The fundamental rights have been guaranteed under six broad
categories and among them lies the right to equality including equity
before laws and the equal production of laws,6 prohibition of
discrimination on ground or religion, race, caste, sex or place of birth,7 and
equality of opportunity in matters of public employment8.
Under clause (1) and (2) of Article 16, all citizen of India are
guaranteed equality of opportunity in matters relating to employment or
4 Universal Declaration of Human Rights, Proclaimed by the General Assembly of
the United Nations on 10.12.1948. 5 Introduction to the Constitution of India by B.K. Sharma, 1982, p. 54. 6 Article 14. 7 Article 15. 8 Article 16.
59
appointment to any office under the state and no citizen can be
discriminated against or be ineligible for any employment or office under
the State on grounds only of religion, race, caste, sex, descent, place of
birth or residence. The subsequent clause (3), (4) and (5), however, provide
for there exceptional situations when departure can be made from the
general rule of equality of opportunity.
In a modern democratic policy, civil services9 are an inevitable
ingredient of the government apparatus. It is, in fact, the non-political and
non-elected functionaries who are responsible for carrying on the
administration under the directions and control of the eluted representation
of the people and in accordance with the rule and principles.
Although the matters concerning government services could
normally regulated by laws and the power to lay down detailed rules for
recruitment and conditions of service of the union and state employees was
left to the respective legislatures (vide entry 70 of the list I and entry 42 of
list II), the Constitution makers deemed it most provident to assure the
services of providing some Constitutional guarantees and safeguards in the
mature of recruitment, security of tonsuring procedure for disciplinary
action, etc.
Article 309 provided for the regulation of recruitment and
conditions of service of union and states guarantees services of union and
state government services appropriate legislatures subject to the provisions
of the Constitution.10 Until any such laws were enacted, the services were
to be regulated by rules made by the president of the Governor. Thus, the
law made by the Parliament the such legislature or the rules made by the 9 Chapter 33 (Article 308-314) Services under the Union & the States. 10 The rules made by the President / Governor are subject to the provision of the
Constitution of India e.g. Article 14, 15, 15, 19, 21, 310 and 311.
60
President / Governor are required to be reasonable and fair.11 Rule making
pares under provision Article 309 is legislature in nature.12 The
President/Governors can delegate their rule making power under Article
309 to any other provision or authority.
Thus, Article 309 empowers the appropriate legislatures to regulate
the recruitment and conditions of service of persons appointed to public
services and posts in connection with the affairs of the Union or the State.
The proviso to that Article empowers the President in the case of the
services and posts in connection with the affairs of the Union and the
Governor of a State in the case of services and posts in connection with
affairs of the State make rules regulating the recruitment and the conditions
of service of persons appointed to such service and post until provision in
that behalf is made by or under an Act of the appropriate Legislature under
that Article. The rules made in exercise of this power have the effect
subject to the provisions of any such act passed by the appropriate
legislature. It was assumed that in the State of Uttar Pradesh there are other
rules regulating the recruitments and conditions of service of persons
appointed in U.P. Government service and on posts under that
Government, made by or under Acts of U.P. legislature. Obviously, the
rule making authority, while making the Dying in Harness Rules, could not
have intended to override such statutory provisions.
It is in the background of the above provision the rule / regulation
have been framed for giving Compassionate Appointment to son /
daughter/ spouse of the deceased employee who died in harness. Since
government job has property and statues combined in the several cases
11 Balishwar Dass v. State of U.P., AIR 1981 SC 41. 12 P. Murugesan v. State of T.N., (1993) 2 SCC 340.
61
have reached higher judiciary to seek redressed by aggrieved parties. The
Apex Court has scrutinized various aspect attached with the problem and
has laid down preposition of great Constitution import and values Since the
instrumentalities giving such appointment. State within the meaning of
Article 12 of the Constitution of India. It, therefore, in the matter of
appointment, is under a Constitutional obligation to give effect to the
Constitutional scheme of equality as enshrined under Article 14 and 16 of
the Constitution of India.
Appointment on compassionate grounds is an exception carved out
to the general rule that recruitment to public services is to be made in a
transparent and accountable manner providing opportunity to all eligible
persons to compete and participate in the section process. Such
appointments are required to be made on the basis of open invitation of
applications and merit. Dependants of employees who died in harness do
not have any special or additional claim to public service other than one
conferred, if any, by the employer. The claim to, for compassionate
appointment and right, if any, is traceable only to the scheme, executive
instructions, rules, etc. framed by the employer in the matter of providing
employment on compassionate grounds. There is no right of whatsoever
nature to claim compassionate appointment on any ground other than the
one, if any, conferred by the employer by way of scheme or instructions as
the case may be.
Article 16 of the Constitution bars discrimination in employment on
the ground, inter-alia only of descent. If the service rules or any scheme of
government provides that whenever a government servant retires from
service, one of his dependants should be given employment in his place, or
provides that children of government servants will have preference in
62
employment, that would squarely fly in the face of prohibition on the
ground of descent. Employment should not be hereditary or by succession.
But where the policy provides for compassionate appointment in the case
of an employee who dies in harness or an employee who is medically
invalidated, such a provision is based on a classification which is not only
on the ground of descent. The classification is based on another condition
in addition to descent: that is death of the employee in harness, or medical
invalidation of the employee while in service.
CONSTITUTIONALITY OF DYING IN HARNESS RULE
As discuss above this type of appointment has raised a
Constitutional question i.e. whether a compassionate appointment is hit by
Article 14 and 16 of the Constitution of India. Article 16 of the
Constitution which ensures to all citizens equality of opportunity in matters
relating to employment is but an instance of the guarantee of equality
contain in article 14. The concept of equal opportunity undoubtedly
permeates the whole spectrum of an individual’s employment from
appointment through promotion and termination to the payment of gratuity
and pension. But concept of equality has an inherent limitation arising from
the very nature of the Constitutional guarantee. Equality is for equals. That
is to say that those are who similarly circumstances are entitled to an equal
treatment.
Classification, however, is fraught with the danger that it may produce
artificial inequalities and therefore, the right to classify is hedged in with
silent restrains; or else the guarantee or equality will be submerged in class
legislation masquerading as laws meant to govern well-marked classes
characterized by different and distinct attainments. Classification,
therefore, must be truly found on substantial differences which distinguish
63
persons group together from those left out the group and such differential
attributes must bear a just relation to the object and rational relation to the
object sought to be achieved.
In considering the reasonableness of classification from the point of view
of Article 14 of the Constitution, the Court has also to consider the
objective for such classification. If the objective be illogical, unfair and
unjust, necessarily the classification will have to be held us unreasonable.
Discussing on such aspects, the Supreme Court in Umesh Kumar Nagpal v.
State of Haryana13 has held:--
“2. The question relates to the consideration, 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, appointment in the
public services should be made strictly on the basis of open
invitation of applications and merit. Neither other mode of
appointment nor any other consideration is permissible.
Neither Government 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
dependents 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
13 JT 1994 (3) SC 525 (Para 2)
64
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 crises. The object is not to give
a member of such family a post much less a post for post held
by the deceased.”
In State of Haryana and Ors. v. Rani Devi and Anr.,14:--
“5.The question of appointment of one of the dependants of
an employee of the State or central government who dies
while in service has late assumed importance and subject
matter of controversy before different courts. The Apex
Court in the case of Smt Sushma Gosain v. Union of India,15
after referring to the government memorandum under which
the appointment on compassionate ground was being claimed
observed that the purpose providing appointment on
compassionate ground is to mitigate the hardship due to death
of the bread earner in the family. It cannot be disputed that
appointment on compassionate ground is an exception to the
equality clause under Article 14 and can be upheld if such
appointees can be held to form a class by themselves,
otherwise any such appointment merely on the ground that
the person concerned happens to be a dependant of an ex-
employee of the State Government or the Central
14 AIR 1996 SC 2445 (Para 5 and 6) 15 AIR 1989 SC 1976: (1989) 4 SCC 468,
65
Government shall be violative of Article 14 and 16 of the
Constitution: But the court has held that if an employee dies
while in service then according to rule framed by the Central
Government or State Government to appoint one of
dependants shall not be violative of Article 14 and 16 of the
Constitution because it is to mitigate the hardship due to
death of the bread earner of the family and sudden misery
faced by the members of the family of such employee who
had served the Central Government or State Government. It
appears that this benefit has also been extended to the
employee of authorities which can be held to be a State
within the meaning of Article 12 of the Constitution. But
while framing any rule in respect of appointment on
compassionate ground the authorities have to be conscious of
the fact that this right which being extended to dependent of
the deceased employee is an exception to the right granted to
the citizen under Article 14 and 16 of the Constitution. As
such there should be a proper check and balance. Of late, if
appears the right to be appointed on compassionate ground is
being claimed as a right of inheritance irrespective of the
nature of service rendered by the deceased employee.”
It need not to pointed out that the claim of the person concerned for
appointment on compassionate ground is based on the ground that he was a
dependant employee. Strictly this claim cannot be upheld on the touchstone
of Article 14 and 16 of the Constitution of India. But the Supreme Court
upheld this claim as reasonable and permissible on the basis of sudden
crises occurring in the family of such employee who has served the State
66
and dies while in service. That is why it is necessary for the authorities to
frame rules, regulations or to issue such administrative order which can
stand the test of Article 14 and 16.
Article 16 of the Constitution bars discrimination in employment on
the ground only on descent. If the service rule or any scheme of the
government provides that whenever a government servant retires from
service, one of his dependants should be given employment in his place, or
provides that children of government servant will have preference in
employment, that would squarely fly in the face of prohibition on the
ground of descent. Employment should not be hereditary or by succession.
But where the policy provides for compassionate appointment in the case
of an employee who dies in harness or an employee who is medically
invalidated, such a provision based on a classification which is not only on
ground of descent. The classification is based on another condition in
addition to descent: that is death of the employee in harness, or medically
invalidation of the employee while in service.
The Supreme Court had occasion to consider the difference between
conferment of a preferential right to appointment to a family member of a
government servants. merely on the ground that he happens to be a family
member, and schemes relating to compassionate appointment of dependent
family members of government servants who die while in service or who
are incapacitated while in service.
Gazula Dasaratha Rama Rao vs The State Of Andhra Pradesh,16
"It would thus appear that Art. 14 guarantees the general
right of equality; Arts. 15 and 16 are instances of the same
16 1961 (2) SCR 931
67
right in favour of citizens in some special circumstances.
Article 15 is more general than Art.16, the latter being
confined to matters relating to employment or appointment to
any office under the State. It is also worthy of note that Art.
15 does not mention 'descent' as one of the prohibited
grounds of discrimination, whereas Article 16 does. There
can be no doubt that s. 6(1) of the Act does embody a
principle of discrimination on the ground of descent only. It
says that in choosing the persons to fill the new offices, the
Collector shall select the persons whom he may consider the
best qualified from among the families of the last holders of
the offices which have been abolished. This, in our opinion,
is discrimination on the ground of descent only and is in
contravention of Art.16 (2) of the Constitution."
Yogender Pal Singh & Others vs Union Of India & Ors,17
“While it may be permissible to appoint a person who is the
son of a police officer who dies in service or who is
incapacitated while rendering service in the Police
Department, a provision which confers a preferential right to
appointment on the children or wards or other relatives of the
police officers either in service or retired merely because they
happen to be the children or wards or other relatives of such
police officers would be contrary to Article 16 of the
Constitution. Opportunity to get into public service should be
extended to all the citizens equally and should not be
confined to any extent to the descent- ants or relatives of a
17 AIR 1987 SC 1015, 1987 SCR (2) 49
68
person already in the service of the State or who has retired
from the service. Any preference shown in the matter of
public employment the ground of descent only has to be
declared as unconstitutional.”
Umesh Kumar Nagpal vs State Of Haryana,18
“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 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 posts in Classes III and IV are the lowest
posts in non-manual and manual categories and hence they
18 (1994) 4 SCC 138.
69
alone can be offered on compassionate grounds.”
Haryana State Electricity Board vs Hakim Singh,19
This court reiterated the object of compassionate appointment, thus:
“The rule of appointments to public service is that they
should be on merits and through open invitation. It is the
normal route through which one can get into a public
employment. However, as every rule can have exceptions,
there are a few exceptions to the said rule also which have
been evolved to meet certain contingencies. As per one such
exception belief is provided to the bereaved family of a
deceased employee by accommodating one of his dependents
in a vacancy. The object is to give succour to the family
which has been suddenly plunged into penury due to the
ultimately death of its sole bread-winner. This Court has
observed time and again that the object of providing such
ameliorating relief should not be taken as opening an
alternative mode of recruitment to public employment.”
Director of Education ... vs Pushpendra Kumar & Others,20
The object underlying a provision for grant of compassionate
employment is to enable the family of the deceased employee
to tide over the sudden crisis resulting due to death of the
bread earner which has left the family in penury and without
any means of livelihood. Out of pure humanitarian
consideration and having regard to the fact that unless some
source of livelihood is provided, the family would not be able 19 1997 (8) SCC 85 20 1998 (5) SCC 192
70
to make both ends meet, a provision is made for giving
gainful appointment to one of the dependents of the deceased
who may be eligible for such appointment. Such a provision
makes a departure from the general provisions providing for
appointment on the post by following a particular procedure.
Since such a provision enables appointment being made
without following the said procedure, it is in the nature of an
exception to the general provisions.
State Of Haryana And Anr vs Ankur Gupta,21
As was observed in State of Haryana and Ors. v. Rani Devi
& Anr.,22 it need not be pointed out that the claim of person
concerned for appointment on compassionate ground is based
on the premises that he was dependant on the deceased
employee. Strictly this claim cannot be upheld on the
touchstone of Articles 14 or 16 of the Constitution of India.
However, such claim is considered as reasonable and
permissible on the basis of sudden crisis occurring in the
family of such employee who has served the State and dies
while in service. That is why it is necessary for the
authorities to frame rules, regulations or to issue such
administrative orders which can stand the test of Articles 14
and 16. Appointment on compassionate ground cannot be
claimed as a matter of right. The appointment on
compassionate ground is not another source of recruitment
but merely an exception to the aforesaid requirement taking
21 (2003) 7 SCC 704 22 (1996) 6 SCC 646
71
into consideration the fact of the death of employee while in
service leaving his family without any means of livelihood.
In such cases the object is to enable the family to get over
sudden financial crisis. But such appointments on
compassionate ground have to be made in accordance with
the rules, regulations or administrative instructions taking
into consideration the financial condition of the family of the
deceased.
Appointment on compassionate ground is an exception clause under
Article 14 can be upheld if such appointment can be held the equality to
form a class by themselves, otherwise any such appointment merely on the
ground that the person concerned happens to be dependent of an ex-
employee of the State Government or Central Government shall be
violative of Art. 15 and 16 of the Constitution.
As such hence there should be a proper check & balance. The High
Court & the Administrative Tribunals cannot issue directions on
'Sympathetic Considerations’ to make appointments on compassionate
grounds when the regulations framed in respect thereof do not ever
contemplate such appointments.
If the scheme regarding appointment on compassionate ground is
extended to all sorts of casual, and work charged employees including
those who are working as Apprentices, such scheme cannot be justified on
Constitutional Grounds.
Appointment on compassionate ground would be illegal in absence of any
scheme providing therefore. Such scheme must be commensurate with the
Constitutional scheme of equality.
72
The Supreme Court in Punjab Water Supply and Sewerage Boad v.
Ranjodh Singh,23 has observed:
"The statutory bodies are bound to apply to the rules of
recruitment laid down under statutory rules. They being
'States' within the meaning of Article 12 of the Constitution
of India are bound to implement the Constitutional scheme of
equality. Neither the statutory bodies can refuse to fulfill
such Constitutional duty, nor the State can issue any direction
contrary to or inconsistent with the Constitutional principles
adumbrated under Article 14 and 16 of the Constitution of
India...."
In National Institute of Technology & others v. Niraj Kr. Singh,24 the
Supreme Court has held :
“All public appointments must be consonance with Article 16
of the Constitution of India. Exceptions carved out therefore
are the cases where appointments are to be given to the
widow or the dependent children of the employee who died
in harness. Such an exception is carved out with a view to see
that the family of the deceased employee who has died in
harness does not become a destitute. No appointment,
therefore, on compassionate ground can be granted to a
person other than those for whose benefit the exception has
been carved out. Other family members of the deceased
employee would not derive any benefit thereunder.”
In yet another case the Supreme Court in Auditor General of India v.
23 ( 2006) 13 SCALE 426. 24 (2007) 2 SCALE 525.
73
G. Ananta Rajeswara Rao,25 has held that regarding of these various
clauses in the Memorandum discloses that the appointment on
compassionate grounds would not only be a son, daughter or widow but
also a near relative which was vague or undefined. A person who dies in
harness and whose members of the family need immediate relief of
providing appointment to relieve economic distress from the loss of the
bread-winner of the family need compassionate treatment. But all possible
eventualities have been enumerated to become a rule to avoid regular
recruitment. It would appear that these enumerated eventualities would be
breeding ground for misuse of appointments on compassionate grounds.
Articles 16 (3) to 16 (5) provided exceptions. Further exception must be on
Constitutionally valid and permissible grounds. Therefore, the High Court
is right in holding that the appointment on ground of descent clearly
violates Article 16 (2) of the Constitution. But however, it is made clear
that if the appointment on grounds of descent clearly violates Article 16(2)
of the Constitution. But however, it is made clear that if the appointments
are confined to the son/daughter or widow of the deceased government
employee who died in harness and who needs immediate appointment on
grounds of immediate need of assistance in the event of there being no
other earning member in the family to supplement the loss of income from
the bread-winner to relive the economic distress of the members of the
family, it is unexceptionable. But in other cases it cannot be a rule take
advantage of the Memorandum to appoint the persons to these posts of the
ground of compassion, the court observed.
In Government of Andhra Pradesh, General Administration v. D.
25 (1994) 1 SCC 192
74
Gopaiah,26 a full bench of the Andhra Pradesh High Court noticing the
aforementioned judgment and opined :
"By reason of Article 14 of the Constitution of India, great
hopes and aspiration were generated in the minds of the
people of India that employment shall not be given on decent.
Public employment is considered to be public wealth. The
economy of the State has taken a tilt from agriculture to
public employment and the growth rate of employment has
increased to 34%. On a plain reading, Article 16 of the
Constitution of India carriers no exception."
It has further stated, “The matter relating to grant of compassionate
appointment only in limited situation took its root in public employment.
The State and the Central Governments issued several circulars, took
various policy-decisions and also changed their policy- decision from time
to time resulting in spurt in litigation. A close study of the circulars issued
by the State as also the pattern of litigations generating therefrom lead us to
take judicial notice about gross abuse of the schemes and inherent lack of
safeguards”.
Before further adverting to the aforementioned questions, we may
notice that the petitioners themselves stated that in the State of Andhra
Pradesh, no appointment had been made as a ban had been in vogue since
1987. The appointments are being made only on contract basis by way of
schemes, which sense violates to recruitment rules and Article 14 and 16 of
the Constitution of India. A lot of employment is generated through the
populist scheme of regulations of services. There are schemes for
employment for displaced persons, schemes for taking over the service of 26 (2001) 6 ALT 553 (FB).
75
the taken over projects, landless persons and so on and so forth. A person
can obtain appointment in terms of aforementioned schemes or on contract
basis, on political pressures, on demand on of trade unions, as also on the
pressures of the non-governmental organization. The long and short of the
matter is that unless there is somebody to push his case, an employment
cannot ordinarily be obtained by a citizen in terms of Article 14 and 16 of
the Constitution of India. The majority of the population faces of paradox
of articulated programmes for obtaining employment. The schemes for
grant of compassionate appointment on medical invalidation, as noticed
hereinbefore, had been made wider and wider. The State has for one reason
or the other compromised with the basic principles underlying grant of
public employment and has deviated from the Constitutional norms;
sometimes it widened the scope and ambit of grant of appointment on
compassionate ground to such an extent that it had to backtrack its steps.
The State's policy-decision in this regard had never been of firm root. They
took different steps at different times depending on the whims and caprice
of the concerned officers or acted on pressure of the Employee's Union.
The law interpreting Article 14 and 16 of the Constitution of India in this
regard has also undergone ups and downs." Moreover, any appointment in
violation of the Constitutional scheme would also be rendered a nullity.27
In Auditor General of India v. Ananta Rajeswara Rao,28 the
Supreme Court was considering the validity of a scheme which
contemplated appointments on compassionate grounds being made not
27 Secretary, State of Karnataka and Ors. v. Umadevi and Ors., (2006) 4 SCC 1;
Indian Drugs and Pharmaceuticals Ltd. v. Workman, Indiian Drugs and Pharmaceuticals Ltd, (2006) 12 SCALE 1; Municipal Corporation, Jabalpur v. Om Prakash Dubey, (2006) 13 Scale 266; National Fertilizers Ltd. and Ors. v. Somvir Singh (2006) 6 SCALE 101.
28 1994 (1) SCC 192.
76
only in the case of sons and daughters, but also near relatives of a
Government servant who died in harness. The scheme further provided that
in deserving cases even where there is an earning member in the family,
compassionate appointment to another member was permissible. Dealing
with the memorandum containing the said scheme. The Court held, "A
reading of these various clauses in the Memorandum discloses that the
appointment on compassionate grounds would not only be to a son,
daughter or widow but also to a near relative which was vague or
undefined. A person who dies in harness and whose members of the family
need immediate relief of providing appointment to relieve economic
distress from the loss of the bread-winner of the family need
compassionate treatment. But all possible eventualities have been
enumerated to become a rule to avoid regular recruitment. It would appear
that these enumerated eventualities would be breeding ground for misuse
of appointments on compassionate grounds. Articles 16(3) to 16(5)
provided exceptions. Further exceptions must be on Constitutionally valid
and permissible grounds. Therefore, the High Court is right in holding that
the appointment on grounds of descent clearly violates Article 16(2) of the
Constitution. But, however, it is made clear that if the appointments are
confined to the son/daughter or widow of the deceased government
employee who died in harness and who need immediate appointment on
grounds of immediate need of assistance in the event of there being no
other earning member in the family to supplement the loss of income from
the bread-winner to relieve the economic distress of the members of the
family, it is unexceptionable."
The question of appointment of one of the dependants of an
employee of the State or Central Government who dies while in service has
77
of late assumed importance and subject - matter of controversy before
different courts. This Court in the case of Sushma Gosain v. Union of
India,29 after referring to the government memorandum under which the
appointment on compassionate ground was being claimed observed that the
purpose of providing appointment on compassionate ground is to mitigate
the hardship due to the death of the bread earner in the family. It cannot be
disputed that appointment on compassionate ground is an exception to the
equality clause under Article 14 and can be upheld if such appointees can
be held to form a class by themselves, otherwise any such appointment
merely on the ground that the person concerned happens to be a dependent
of an ex-employee of the State Government or the Central Government
shall be violative of Articles 14 and 16 of the Constitution. But this Court
has held that if an employee dies while in service then according to rules
framed by the Central Government or the State Government to appoint one
of the dependents shall not be violative of Articles 14 and 16 of the
Constitution because it is to mitigate the hardship due to the death of the
bread earner of the family and sudden misery faced by the members of the
family of such employee who had served the Central Government or the
State Government. It appears that this benefit has also been extended to the
employees of the authorities which can be held to be a State within the
meaning of Article 12 of the Constitution. But while framing any rule in
respect of appointment on compassionate ground the authorities have to be
conscious of the fact that this right which is being extended to a dependent
of the deceased employee is an exception to the rights which are granted to
the citizen under Articles 14 and 16 of the Constitution. As such there
should be a proper check and balance."
29 AIR 1989 SC 1976
78
Secy., State of Karnataka v. Umadevi,30 opined that any appointment
through side door would be violative of our Constitutional scheme of
equality contained in Article 14 and 16 of the Constitution of India, stating
that it is clear that adherence to the rule of equality in public employment is
a basic feature of our Constitution and since the rule of law is the core of
our Constitution, a court would certainly be disabled from passing an order
upholding a violation of Article 14 or in ordering the overlooking of the
need to comply with the requirements of Article 14 read with Article 14
read with Article 16 of the Constitution. Therefore, consistent with the
scheme for public employment, this Court while laying down the law, has
necessarily to hold that unless the appointment is in terms of the relevant
rules and after a proper competition among qualified persons, the same
would not confer any right on the appointee. If it is a contractual
appointment, the appointment comes to an end at the end of the contract, if
it, were an engagement or appointment on daily wages or casual basis, the
same would come to an end when it is discontinued. Similarly, a temporary
employee could not claim to be made permanent on the expiry of his term
of appointment. It has also to be clarified that merely because a temporary
employee or a casual wage worker is continued for a time beyond the term
of his appointment, he would not be entitled to be absorbed in regular
service or made permanent, merely on the strength of such continuance, if
the original appointment was not made by following a due process of
selection as envisaged by the relevant rules. It is not open to the court to
prevent regular recruitment at the instance of temporary employees whose
period of employment has come to an end or of ad hoc employee who by
the very nature of their appointment, do not acquire any right. The High
Courts acting under article 226 of the Constitution, should not ordinarily 30 (2006) 11 LLJ 722 SC
79
issues directions for absorption, regularization, or permanent continuance
unless the recruitment itself was made regularly and in terms of the
Constitutional scheme. Merely because an employee had continued under
cover of an order of the court, which was described as "litigious
employment" in the earlier part of the judgment, he would not be entitled to
any right to be absorbed or made permanent in the service. In fact, in such
cases, the High Court may not be justified in issuing interim directions,
science, after all, if ultimately the employee approaching it is found entitled
to relief, it may be possible for it to mould the relief in such a manner that
ultimately no prejudice will be caused to him, whereas an interim direction
to continue his employment would hold up the regular procedure for
selection or impose on the State the burden of playing an employee who is
really not required. The court must be careful in ensuring that they do not
interfere unduly with the economic arrangement of its affairs by the State
or its instrumentalities or lend themselves the instruments to facilitate the
bypassing of the Constitutional and statutory mandates.
In the State of Haryana v. Piara Singh,31 the Court observed that so
far as the work charged employees and casual labour are concerned, the
effort must be to regularize them as far as possible and as early as possible
subject to their fulfilling the qualifications, if any, prescribed for the post
and subject also to availability of work. If a casual labourer is continued for
a fairly long spell-say two or three years a presumption may arise that there
is regular need for his services. In such a situation, it becomes obligatory
for the authority concerned to examine the feasibility of his regularisation.
While doing so, the authorities ought to adopt a positive approach coupled
with empathy for the person. Also, in the matter of regularisation, the main
31 (1998) 5 SCC 01..
80
concern of the court is to see that the rule of law is respected and to ensure
that the executive acts fairly and gives a fair deal to its employees
consistent with the requirement of Article 14 and 16 of the Constitution.
The State being a model employer should not exploit the employees nor
take advantage of the helplessness and misery of either the unemployed
person or the person concerned, as the case may be... Where a temporary or
ad hoc appointment is continued for long, the court presumes that there is
regular need for his service on a regular post and accordingly considers.
In the case I.G. (Karnik) and others v. Prahalad Mani Trapathi,32
the Constitutional scheme of equality as envisaged under Articles 14 and
16 of the Constitution was adverted to and after adverting to the same, their
Lordships have held thus :
"Public employment is considered to be a wealth. It in terms
of the Constitutional scheme cannot be given on descent.
When such as exception has been carved out by this Court,
the same must be strictly complied with. Appointment on
compassionate ground is given only for meeting the
immediate hardship which is faced by the family by reason of
the death of the bread earner. When an appointment is made
on compassionate ground, it should be kept confined only to
the purpose it seeks to achieve, the idea being not to provide
for endless compassion."
In Steel Authority of India Limited v. Madhusudan Das & Ors.,33 the
Supreme Court has observed that "this Court in a larger number of decision
has held that the appointment on compassionate ground cannot be claimed
32 (2007) 6 SCC 162. 33 (2008) 15 SCC 560.
81
as a matter of right. It must be provided for in the rules. The criteria laid
down therefore 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."34
In V. Sivamurthy v. State of Andhra Pradesh & Others,35 the
Supreme 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 Article 14 and 16 of
the Constitution, yet appointments on compassionate ground are well
recognized exception to the general rule, carved out in the interest of
justice to meet certain contingencies, highlighted the following two well-
recognized 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
family on account of medical invalidation of the breadwinner.
In Yogendra Ram Chaurasiya v. State of U.P.,36 the court observed
34 General Manager, State Bank of India & Ors. v. Anju Jain, (2008) 8 SCC 475. 35 (2008) 13 SCC 730. 36 2002 (5) AWC 3708.
82
that "Any appointment made under the provisions of Dying-in-Harness
Rules is to be treated as a permanent appointment and not a temporary
appointment. This is also clear from the Government order dated
23.01.1976 filed as Annexure-2 to the writ petition wherein it has been
mentioned that the dependent of deceased employee appointed on
compassionate ground under the provisions of Dying-in-Harness Rules
should not be retrenched even where the strength of the employee is being
reduced. Thus, the appointment of the applicant-writ petitioner is to be
treated as permanent appointment and not a temporary appointment. The
nature of appointment, will not affect the writ petitioner, even if the
appellant-writ petitioner has accepted the terms and conditions of the
appointment which mentioned as a temporary appointment. The nature of
appointment of the appellant-writ petitioner having been held to be
permanent appointment, the appellant-writ petitioner entitled to the
Constitutional safeguards as provided in Article 311 of the Constitution of
India.”
Balbir Kaur v. Steel Authority of India Ltd.,37 wherein their
Lordships have held that in the case of appointment considering the social
and economic justice as enshrined in the Constitution, denial of deserving
cases are liable to be set aside. Further, the purpose of providing
compassionate ground to a son or daughter or a near relative of the
deceased government servant is to render assistance to the family, which is
found in indigent circumstances. Hence in considering the case for
compassionate appointments, the authorities are supposed to adopt a
humane outlook.
37 2000 (6) SCC. 493
83
Similarly, in SAIL v. Madhusudan Das,38 the Supreme 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 there of
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."
The Hon'ble Supreme Court in State of Jharkhand v. Shiv Karampal
Sahu,39 was pleased to lay down as under:
"The scheme for grant of monetary compensation to the
dependents of the deceased or injured that are affected in any
kind of terrorist/virulent/communal attack must be
considered in terms of the stipulations made in the circular
letters containing policy decisions. Appointment on
compassionate grounds, it is trite, must be made keeping in
view the provisions contained in Articles 14 and 16 of the
Constitution of India. Such schemes cannot be given an
expansive meaning as the Constitutional scheme envisages
that all persons who are entitled to be considered for
38 2000 (6) SCC 566 39 (2009) 11 SCC 453
84
appointment would be eligible for being considered
therefore. Any policy decision for appointment on
compassionate grounds must, therefore, receive a strict
construction."
In State of J & K v. Sajad Ahmed Mir,40 the law was laid down in
the following terms:
"We may also observe that when the Division Bench of the
High Court was considering the case of the applicant holding
that he had sought compassion, the Bench ought to have
considered the larger issue as well and it is that such an
appointment is an exception to the general rule. Normally, an
employment in the Government or other public sectors
should be open to all eligible candidates who come forward
to apply and compete with each other. It is in consonance
with Article 14 of the Constitution. On the basis of
competitive merits, an appointment should be made to public
office. This general rule should not be departed from except
where compelling circumstances demand, such as, death of
the sole breadwinner and likelihood of the family suffering
because of the setback. Once it is proved that in spite of the
death of the breadwinner, the family survived and substantial
period is over, there is no necessity to say goodbye to the
normal rule of appointment and to show favour to one at the
cost of the interests of several others ignoring the mandate of
Article 14 of the Constitution."
Article 16 of the Constitution of India assures to all citizens of India 40 AIR 2006 SC 2743
85
equality of opportunity in the matter of employment or appointment to any
office under the State. In Municipal Corporation Of Delhi vs Shri Vir
Mohd.,41 the Respondent, State Bank of India (hereinafter referred to as the
SBI') uncontrovertibly falls within the sweep of Article 12, and therefore
employment therein tantamount to `employment or appointment to any
office under the State'. The dilution of the right of equality of opportunity
is found in Article 16 itself, but `compassionate appointment' does not so
feature. Every statute or rule or order must meticulously measure with
Chapter III of the Constitution and the equality assurances contained and
guaranteed therein. The Petitioner's plea for compassionate employment
must perforce conform in every respect with Article 16. In our country
where unemployment is rampant, and the securing of a job with the State,
the grant of a job on individual consideration is a deleterious deprivation of
the rights of the citizens at large. We witness that with painful regularity a
large section of our society is compelled to adopt a nomadic and migratory
life, seeking temporary and seasonal employment from place to place.
Their children cannot even dream of education. Ill-health and malnutrition
is their reality. Can law ignore these `wretched of the earth' and bestow its
attention to a party/family who has already benefited from state
employment? Furthermore, legislation has now been passed for payment of
compensation in those cases where a person suffers fatal or other injury
while on duty. These considerations cannot but be kept in mind while
deciding the present petition. Hardship, destitution and penury are
differently understood within society. St.Francis narrated the case of a
person lamenting that he had no shoes, until he found person who had no
feet. When a claim for largesse is put forward the relativity of poverty
should not be ignored. 41 94 (2001) DLT 746; 2002 (63) DRJ 136
86
The validity of compassionate appointment to dependent of
medically invalidated employee was discussed in V. Sivamurthy v. State
Of Andhra Pradesh & Ors.42 When compassionate appointment of a
dependant of a government servant who dies in harness is accepted to be an
exception to the general rule, there is no reason or justification to hold that
an offer of compassionate appointment to the dependant of a government
servant, who is medically invalidated, is not an exception to the general
rule. In fact, refusing compassionate appointment in the case of medical
invalidation while granting compassionate appointment in the case of death
in harness, may itself amount to hostile discrimination. While being
conscious that too many exceptions may dilute the efficacy of Article 16
and make it unworkable, we are of the considered view that the case of
dependants of medically invalidated employees stands on an equal footing
to that of dependants of employees who die in harness for purpose of
making an exception to the rule. For the very reasons for which
compassionate appointments to a dependant of a government servant who
dies in harness are held to be valid and permissible, compassionate
appointments to a dependant of a medically invalidated government servant
have to be held to be valid and permissible.
In Union Bank of India and Ors . v. M.T. Latheesh,43 in the case of
by declining the application submitted by the respondent after the proper
consideration of the same in the light of the relevant parameters the
appellant-Bank cannot be said to have acted in an arbitrary manner
regardless of the Constitutional principles. It is also settled law that the
specially constituted authorities in the rules or regulations like the
competent authority in this case are better equipped to decide the cases on 42 (2001) 6 ALT 553 (FB). 43 (2006) 7 SCC 350
87
facts of the case and their objective finding arrived on the appreciation of
the full fact should not be disturbed. Learned Single Judge and the Division
Bench by directing appointment has fettered the discretion of the
appointing and selecting authorities the Bank had considered the
application of the respondent in terms of the statutory scheme framed by
the Bank for such appointment. After that even though the Bank found the
respondent ineligible for appointment to its service, the High Court has
found him eligible and has ordered his appointment. This is against the law
laid down by the apex Court. It is settled law that the principles regarding
compassionate appointment that compassionate appointment being an
exception to the general rule the appointment has to be exercised only in
warranting situations and circumstances existing in granting appointment
and guiding factors should be financial condition of the family. The
respondent was held not entitled to claim relief under the new scheme
because the financial status of the family is much above the Criterion fixed
in the new scheme.
In the result, the appeal was allowed and the orders passed by the
learned Single Judge and of the Division Bench were set aside.
Bhawani Prasad Sonkar v. Union of India,44 the court held that now,
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
44 (2011) 4 SCC 209
88
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.
Thus, it is evident that such employment cannot be clamed as a
vested right. The concept of vested right has been explained by the
Supreme Court in Babi Sayeeda v. State of Bihar,45 wherein it has been
described as under :
"The word Vested' is defined in Black's Law Dictionary (6th
Edition) at page 1563, as 'vested' Fixed, accrued, settled,
absolute, complete. Having the character or given in the
rights of absolute ownership; not contingent; not subject to be
defeated by a condition precedent'. Rights are 'vested' when
right to enjoyment, present or prospective, has become
property of some particular person or persons as present
interest; mere expectancy of future benefits, or contingent
interest in property founded on anticipated continuance of
existing laws, does not constitute vested rights. In Webster's
Comprehensive Directory (International Edition), at page
1397, 'vested' is defined as Law held by tenure subject to no
contingency; complete; established by law as a permanent
rights; vested interest"
45 AIR 1996 SC 1936.
89
Thus, vested right is a right independent of any contingency and it cannot
be taken away without consent of the person concerned. Vested right can
arise from contract, statute or by operation of law.
Thus in view of the above, as the time is an essential factor in a case
like this as the purpose of providing the compassionate employment is to
feed the starving family, no application should be entertained after expiry
of 15 years and petition is liable to be rejected only on this sole ground.
The text and context of the entire provisions must be looked into
while interpreting any of the provision of the Statute. The Court must look
to the object which the Statute seeks to achieve while interpreting the
previsions of the Act/ Rules / Regulations. A purposive approach for
interpreting the provision is necessary.
It is also settled principle of interpretation of law that any
interpretation which leads to hardship and compilation, should be avoided.
In Administrator, Municipal Corporation, Bilaspur v. Dattatraya
Dahankar and Anr.,46 the Hon'ble Apex Court has held that "the
mechanical approach to construction is altogether out of play with the
modern positive approach. The modern positive, i.e., to effectuate the
object and purpose of the Act."
In Colour-Chem. Ltd. v. A.L. Alaspurkar,47 the Supreme Court held
that the provisions of welfare legislation should be construed in a way to
give benefit to the persons for whose benefit the Rules have been enacted
and the Court must examine the policy and object of the Act and must
advance the cause of enactment.
The principles relating to compassionate appointments may be 46 AIR 1992 SC 1846. 47 (1998) 3 SCC 192.
90
summarized thus :
(a) Compassionate appointment based only on descent is
impermissible. Appointments 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 of India. Though no other
mode of appointment is permissible, appointments on compassionate
grounds are well recognised exception to the said general rule, carved out
in the interest of justice to meet certain contingencies.
(b) Two well recognized contingencies which are carved out as
exceptions to the general rule are :
(i) Appointment on compassionate grounds to meet the sudden crisis
occurring in a family on account of the death of the bread-winner while in
service.
(ii) Appointment on compassionate ground to meet the crisis in a
family on account of medical invalidation of the bread winner.
After foregoing discussion over Constitutionality of compassionate
appointment we may say that compassionate appointments are
unconstitutional and arbitrary since based on artificial classification which
has no ‘rational basis’ or nexus with the object sought to be achieved. The
only objective is case of an employee ‘dying in harness’ is to mitigate
hardship in case of ‘distress in family’, of an employee ‘dying in harness’.
It is argued that said objective can be achieved by extending financial
support. And therefore, to give job, by circumventing normal rule of
appointment is uncalled for.
Chapter – V
Eligibilities of Person and Post/Job in Compassionate
Appointment under Dying in Harness Rules
Eligibilities of Person
Normally sons / daughters/nears relatives of a Government servant,
who dies in harness including death by suicide are eligible for appointment
on compassionate grounds. In exceptional cases, appointment on
compassionate grounds may also be given to dependents of a Government
servant, who is retired on medical grounds. But such retirements should be
before attaining the age of 55 years in case of those whose age of
superannuation is 60 years. The sons / daughters or near relatives of
Government servant are also eligible for appointment on compassionate
grounds. Normally, the Head of the Department is the competent authority
to sanction appointments on compassionate grounds. But in case of
families already having at least one earning member, compassionate
appointment can be sanctioned only with approval of the Secretary of the
Ministry / Department concerned.
The claimant however must be a dependent.1 He may also be an
adopted son.2 However major sons who are living separately from the
family or a major unmarried daughter because she is capable of getting a
jab have been considered as ineligible. Generally, however, the Supreme
Court has considered the son, daughter and widow to be justifiable
1 Biswajit Sarkr v. State of W.B., 1995 Lab IC 2158 2 Kamal Rajan v. State of Bihar, 1995 Lab IC 2562
92
claimants. Other near relatives may not be so considered.3
A Division Bench of the Patna High Court4 has held that the word
“dependent” occurring in the concerned Government circular would
include a husband of a deceased female Government servant who died in
harness.
Where the rules provided that only one dependent of the deceased
can be given employment, then in the case of rival claims between the
dependent sons and dependent’ unmarried daughter the authorities would
be acting lawfully, if it appointed the unmarried daughter was found
suitable keeping in view her physical and educational qualifications.
However a scheme of compassionate appointment which excludes a
married daughter from the category of beneficiaries has been held to be
not discriminatory.5 The rule relating to compassionate appointment may
validly create a distinction between death or disability occurring in the
course of employment and such a distinction will not be discriminatory.
The Uttar Pradesh Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974
The Uttar Pradesh Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974 has been framed in exercise of
powers conferred by Article 309 of the Constitution of India. The Uttar
Pradesh Recruitment of Dependents of Government Servants under 1974
Rules are special set of rules, which has been made for providing a source
of livelihood, and to give some respite to the members of the deceased
Government servant’s family at a time when the family is suddenly struck 3 Rekha v. M.D. , A.P. Schedule Castes Co-operative Finance Corporation, 1992 (1)
SLR 560. 4 Haarendra Pandey v. State of Bihar, 1995 Lab IC 985 (Pat.). 5 Surendra Singh Gaur v. State of U.P. , 1992 Lab IC 1474.
93
with a calamity where the sole bread earner dies. The overall idea and
concept of these rules is to keep the family in main streamline of the
society for which economic security and social status is to be provided by
the State Government.
Initially these Rules were applicable to the Government servant
only. Later on, the same were made applicable to the teachers and staff of
the Colleges and Primary School. Rule 2 is the definition clauses and
defines the Government Servant, deceased government servant and the
family. Rule 2(C) where the word ‘family’ has been defined reads as
under:- “family” shall include the following relations of the deceased
Government servant:
(i) Wife or husband
(ii) Sons
(iii) Unmarried and widowed daughters
It is pertinent to mention that Dying in Harness Rules, 1974 were
amended from time to time and by Uttar Pradesh Recruitment of
Dependents of Government Servants Dying in Harness (Sixth Amendment)
Rules, 2001, the relations included in the family of the deceased
government servant have been described, which reads as under :
1. Wife or husband
2. Son
3. Unmarried daughters and widowed daughter
4. Dependant unmarried brother, unmarried sister and widowed
mother of the deceased government servant, if he was unmarried.
On June 28, 2006 the State Government brought Uttar Pradesh
94
Recruitment of Dependents of Government Servant Dying in Harness
(Seventh Amendment) Rules, 2006 whereby in Rule 5 it has been inserted
in clause (3) and (4) as under : -
(3) Every appointment made under sub rule (1) shall be subject to
the condition that the person appointed under sub-rule (1) shall maintain
other members of the family of deceased Government Servant, who were
dependent on the deceased Government servant immediately before his
death and are unable to maintain themselves.
(4) Where the person appointed under sub-rule (1) neglects or refuse
to maintain a person to whom he is liable to maintain under sub-rule (3),
his service may be terminated in accordance with the Uttar Pradesh
Government Servant (Discipline and Appeal) Rules, 1999 as amended
from time to time.
The government servant for the purpose of eligibility means a
government servant appointed on regular basis and not one working on
daily wages or casual or apprentice or ad hoc or contract or re employment
basis. Confirmed work charged staff is also covered under the definition of
government employee but re employment is not included in the said
definition of government employee.
However, rules/regulations have defined specific categories but in
view of economic distress of the deceased family, the courts has widened
its range and includes various other members and solve some tricky issues
in this regard.
Whether a posthumous child can be appointed
In Priyesh Vasudevan v. Shameena6 an interesting question arose
6 (2005) 4 KLT 1003
95
whether a posthumous child of a teacher who died in harness, is eligible to
get appointment under the compassionate employment scheme on his
attaining majority. In this case the teacher concerned died on 10.04.1980
and the child was born 11.12.1980. The application was moved on
29.11.2000. Justice K. Sankaran of Kerala High Court discussing the
provisions contained in the Indian Majority Act 7, Limitation Act8, The
Hindu Succession Act9, The Transfer of Property Act10, and number of
English11,and Indian cases12, held
“Therefore we are of the view that a child in the womb be a
‘dependent’ under the scheme and that a posthumous child is
entitled to the benefit of the Compassionate Employment
Scheme on his attaining majority, provided the application in
filed within the period provided in clause (a) of the scheme."
Whether near relatives of deceased employee also eligible for
compassionate appointment
In Ananta Rajeshwar Rao13 the apex court was considering the
validity of the scheme which contemplated appointments on compassionate
ground being made not only in the case of sons and daughters.
But also near relatives of a Government servant who died in
harness. The scheme further provided that in deserving cases even where
there is an earning member in the family, compassionate appointment to
7 Section 3 8 Section 6 (The explanation of this section says ‘minor’ includes a child in the
womb) 9 Section 20: Right of the child in womb 10 Section 13 and 20 11 Elliot v. Lord Joicy 1935 AC 209; Wingfield (1903) 2 Ch. 11 12 Mathew v. Talrak Land Board 1979 KLT 601 (SC) 13 Auditor General of India v. Ananta Rajeswara Rao, AIR 1994 SC 1521 .
96
another member was permissible. Dealing with the memorandum
containing the said scheme, this court held:
“A reading of these various classes in the memorandum
disclose that the appointment on compassionate grounds
would not only to be a son, daughter or widow but also to a
near relative which was vague or undefined. A person who
dies in harness and whose member of the family need
immediate relief of providing appointment to relieve
economic distress from the loss of the bread winner of the
family need compassionate treatment. But all possible
eventualities have been enumerated to become a rule to avoid
regular recruitment. It would appear that these enumerated
eventualities would be breeding ground for misuse of
appointment on compassionate grounds. Articles 16(3) to
16(5) provided exceptions. Further exceptions must be on
Constitutionally valid and permissible grounds. Therefore,
the High Court is right in holding that the appointment on
grounds of descent clearly violates Article 16(2) of the
Constitution. But, however, it is made clear that if the
appointments are confined to the son / daughter or widow of
the deceased government employee who died harness and
who needs immediate appointment on grounds of immediate
needs of assistance in the event of there being no other
earning member in the family to supplement the loss of
income from the bread winner to relieve the economic
distress of the member of the family, it is unexceptionable.”
97
Adopted Son is entitled for Compassionate Appointment
The question whether an adopted son is entitled for compassionate
appointment or not came up for consideration is Sinhasan Gupta v. State of
U.P. and another, 14 and High Court while answering in affirmative relied
upon an earlier decisions rendered in Sunil Saxena v. State of U.P.,15 which
reads as under : -
“another, objection raised by the respondents about the
petitioner being adopted son and not the real son of the
deceased is not tenable. After adoption, the petitioner is
engrafted in the family of the deceased, who was his adopted
father. Under Hindu Law he gets all the rights, privileges and
obligations of a son. Therefore, there is no difference
between real son and adopted son. Son would include
adopted son if the adoption is valid.”
The decision rendered in Sinhasan Gupta v. State of U.P. and
another,16 has been followed by High Court is a subsequent decision
rendered in Rakhi Singh v. State of U.P. and others.17
At this juncture it would be useful to refer some of the provisions of
the Hindu Adoptions and Maintenance Act 1956 which was enacted with a
view to amend and codify the law relating to adoptions and maintenance
among Hindus. Chapter II deals with the adoption and Section 5 of the Act
says that no adoption shall be made after the commencement of this Act by
14 (1998) UPLBEC 41. 15 1994 FLR 283. 16 Supra note 14 17 2006 (24) LCD 182
98
or to a Hindu except in accordance with the provisions contained in this
Chapter, and any adoption made in contravention of the said provisions
shall be void. Section 6 deals with the requisites of a valid adoption and
enjoins as under :
“No adoption shall be valid unless:-
(I) The person adopting has the capacity, and also the right, to take in
adoption;
(II) The person giving in adoption has the capacity to do so;
(III) The person adopted is capable of being taken in adoption; and
(IV) The adoption is made in compliance with the other conditions
mentioned in this Chapter”
It may be clarified that under Section 6, the law does not recognize
an adoption by a Hindu of any person other than Hindu.
Section 10 deals with persons who may be adopted and reads as
under :
“No person shall be capable of being taken in adoption unless the
following conditions are fulfilled, namely:-
(i) He or she is a Hindu,
(ii) He or she has not already been adopted ;
(iii) He or she has not been married, unless there is a custom or usage
applicable to the parties which permits person who are married
being taken in adoption;
(iv) He or she has not completed the age of fifteen years, unless there
99
is a custom or usage applicable to the parties which permits
person who have completed the age of fifteen years being taken
in adoption."
Section 12 deals with the effects of adoption and reads as under : -
“An adopted child shall be deemed to be the child of his or
her adoptive father or mother for all purpose with effect from
the date of the adoption and from such date all the ties of the
child in the family of his or her birth shall be deemed to be
severed and replaced by those created by the adoption in the
adoptive family.”
Provided that-
(a) The child cannot marry any person whom he or she could not have
married if he or she had continued in the family of his or her birth.
(b) Any property which vested in the adopted child before the adoption
shall continue to vest in such person subject to the obligations, if
any, attaching to the ownership of such property; including the
obligation to maintain relative in the family of his or her birth;
(c) The adopted child shall not divest any person of any estate which
vested in him or her before the adoption.
In Basvarajappa v. Gurubasamma and others,18 the Supreme Court
had an occasion to consider the provisions of the Section 12 of the Act and
held in paragraph 11 of the report as under:-
“… On adoption, the adoptee gets transplanted in the family
18 (2005) 12 SCC 290
100
in which he is adopted with the same rights as that of a
natural – born son. The legal effect of giving a child in
adoption is to transfer the children from the family of his
birth to the family of his adoption. He severs all his ties with
the family from which he is taken in adoption. …”
From the perusal of the aforesaid provisions and the proposition of
law, laid down in Basvarajappa’s case,19 it is abundantly clear that on
adoption, adoptee gets transplanted in adopting family with the same right
as that of natural born son. Adopted child becomes coparcener in Joint
Hindu family property after severing all his ties with the natural family.
Thus, there remain no distinction between the natural son and the adopted
son. Had there been any intention of the legislature to exclude the adopted
son, from the definition of family, as defined in 1974 Rules, they would
have expressly excluded the adopted son.
In the present case, the factum of adoption has not been disputed in
the impugned order. The adoption of the petitioner has been made by a
registered deed, which cannot be said to be bad or against the provisions of
Hindu Law and as such the petitioner is entitled for all the benefits which
are available to the natural born sons.
For the reasons stated above, the writ petition was allowed and the
impugned order dated 21.04.2007 passed by the opposite party no. 2 was
thereby quashed. The respondents were directed to consider afresh the
application for appointment of the petitioner commensurate to his
qualification, in their department, within three months, in light of
19 Ibid.
101
observations made here-in-above from the date of presentation of a
certified copy of the judgment before the respondents.
In Chairman, Bihar Rajya Vidyut Board v. Chhathu Ram and
others,20 the respondent had applied for appointment on compassionate
grounds. He claimed that he was the adopted son of a deceased employee
Bansrajia Devi who had died on 06.09.1989. Learned Single Judge of the
High Court dismissed the petition of the respondent. However, in letters
patent appeal, the High Court had granted relief to the respondent.
The respondent claimed that he was the adopted son on the basis of
a deed of adoption dated 28.02.1989. It is said to have been executed seven
months before the deceased died. In the impugned judgment, the High
Court appears to have proceeded on the basis of a presumption relating to
the validity of the adoption deed under Section 16 of the Hindu Adoptions
and Maintenance Act, 1956. Under Section 16 of the Act, any document
registered under any law for the time being in force is produced before any
court purporting to record the adoption made signed by any person giving
the child in adoption. The copy which is produced before the court did not
indicate that was a registered deed of adoption. Therefore, no presumption
under Section 16 could have been drawn relating to the validity of the
adoption. There were no facts on record showing whether on the date of
adoption, the respondent was under the age of 15 years. There were also no
facts on record to show adoption would have had to be made by the
husband with the consent of the deceased. In the absence of any material,
the court, therefore, refrained from pronouncing on the validity or
20 1999 SCC (L&S) 1008
102
otherwise of the adoption deed. Secondly, by a standing order dated
21.04.1993 the appellants had withdrawn the benefits, if any, under the
scheme for appointment on the compassionate grounds in the case of an
adopted son.
The appellants had also contended that looking to the fact that the
respondent was adopted only on 28.02.1989, and the alleged adoptive
mother died on 06.09.1989, it could not be said that the respondents was
wholly dependent on his mother at the time of her death. Looking to all
the facts and circumstances, the Single judge of the High Court had rightly
held that the respondent was not eligible for appointment on compassionate
grounds. The High Court ought not to have set aside the order of the Single
Judge. Therefore, the approval was allowed by setting aside the judgment
of the High Court and restoring the judgment of the Single judge.
Muslim Adoption permitted?
Normally the relevant rules provide that only spouse/son/daughter,
who were actually dependent on the deceased employee can be appointed.
Thus brother of the deceased is not covered under the definition of family
and hence he is not eligible to be appointed21.
Though Muslim personal Law does not allow adoption, the
Rajasthan High Court ordered that adopted son of Muslim deceased
employee is also eligible for appointment. The Court rejected the plea of
the department that there is no provision of 'adopted son' under Muslim
Law.
The court was disposing of a civil petition filed by one Mukhtar 21 . State of Haryana v. Dhan Singh, (1996) 7 SCC 62.
103
Ahmad, who was denied appointment by the education department on
compassionate grounds saying there was no provision of adopted son in the
Muslim Law. Justice Vineet Kothari rejected the arguments of education
department & ordered to appointment to Ahmad within a month.22
In an unusual but interesting case,23 the grandson of cousin brother
of deceased employee was given the appointment. Holding that widow or
dependent children of the deceased can only be appointed, the Supreme
Court quashed the appointment of the grandson, which was directed by the
High Court.
Married daughter may be eligible for compassionate appointment
Normally, the wife, son or unmarried daughters are considered for
compassionate appointment on death of a Government Employee but
question arises can a married daughter be considering for the same
purpose?
The situation arose in the case of Aprna Narendr Zambre and others
v. Collector, Sangli and others, 24. where a very effective judgement got
passed by Hon’ble Bombay High Court dated 1st August 2011. In this case
father of petitioner was a Government employee who died during service in
an unfortunate event. The deceased had a living wife and two unmarried
daughters. In the year 2004, one of the daughters applied for the
compassionate appointment to the Departmental Head who forwarded the
application to District Collector, the name of unmarried daughter
(petitioner no.1) was registered in the waiting list for appointment for any 22 The Times of India, Jaipur dated 09.12.2013. 23 National Institute of Technology v. Niraj Kr. Singh, AIR 2007 SC 1155. 24 . (2012) 4 LLJ 274 .
104
suitable opening. Meanwhile the unmarried daughter (Petitioner) got
married in year 2007 and naturally lost the status of unmarried daughter. In
2009 she got reply from the department that she was no more eligible for
the compassionate appointment as it can be given to only unmarried
daughter.
On this point Hon’ble court has given reasoning that Department
has erred in their conclusion on the point of marriage because applicant
was unmarried on the date of application therefore even if she married later
on, the act of marriage would not change her standing for compassionate
appointment.
Court has said in this judgment that “the fact that, in the present
case, the application for appointment of petitioner no. 1 on compassionate
ground was made on 29th July, 2004 is indisputable. That was well within
time. At the relevant time, the petitioner No. 1 was unmarried. It is also
common ground that the name of petitioner No. 1 was included in the Wait
List on 22nd August , 2005. This event is also crucial to determine the
eligibility of the incumbent. Even at that time she was unmarried. She got
married only on 11th July, 2007. Thus, applying the legal position, the date
of application and, at any rate, the date of inclusion of her name in the Wait
List ought to be reckoned for considering the claim of petitioner no. 1. As
she was “unmarried” on that date, She fulfilled the requirements of clause
3(a) of the Government Resolution. The fortuitous circumstance of her
marriage on 11th July 2007, while her name remained on the Wait List
since 2005 on account of non availability of vacancy against which she
could be appointed, cannot be the basis to deny her the connection
provided to the family members of deceased Government employee for
105
being appointed on compassionate ground, while it intended to meet the
immediate financial hardship suffered by the members of the family due to
sudden demise of the deceased employee.”
According by the reasons for the rejection of application was found
unjust and the matter was remanded back to authorities for fresh
consideration for appointment.
Question lies in mind that death of an employee causes urgent
needed to his family that at least one of the surviving members get
appointment and the financial flow keep growing in the family but if the
compassionate appointment take 6 long years for them how the surviving
member would feel about the Government and the authorities. The
authorities should also be more compassionate and sensitive on
compassionate appointment application.
Striking a blow for gender equality, the Bombay High Court has
held that a married daughter too is eligible for a job on compassionate
grounds in place of her father, after his demise. To allow only an unmarried
daughter but deny a married one of the chance to be given a government
job on compassionate grounds is in violation of right to equality right to
public employment and even right to life, said the High Court. Such
discrimination is “not expected from a welfare state” the court said.
The order is landmark, as it removes restrictive and discriminatory
shackles of a two-decade old government resolution. The state had in
October 1994 passed a resolution. The state has in October 1994 passed a
resolution which allowed unmarried daughters but excluded married one
from the zone of eligibility to be given a government job held by the
106
parent.
The HC ruling came on a petition filed by a 29-year old Swara
Kulkarni who had challenged an order passed by an irrigation project
officer in Pune that held her ineligible for consideration to post in her
father’s place after her death.
The superintending office of the Pune Irrigation Project Circle had
based its order on the 1994 Maharashtra government resolution.
A bench of Justice S C Dharmadhikari and Revati Mohite- Dere
emphasizing the need for equality in government policies allowed her
petition and quashed the irrigation officer’s order. It directed that
Kulkarni’s name be restored to waiting list maintained by the water
resources department of the state and that her case be considered for
appointment on compassionate grounds based on “applicable policy”.
After hearing Kulkarni’s counsel Ashutosh Kulkarni who
questioned the legality and correctness of the government decision, the
judges ruled:
“The stand of the Maharashtra government that a married
daughter is ineligible to be considered for appointment on
compassionate grounds is violative of Articles14, 16 and 21
(Constitutional right to equality, right to equality of
employment in matter of public employment and right to
life.”
The woman’s father Ashok Kulkarni worked as a wireman and died
in service on September, 2003. Her younger sister and mother, the widow,
were not interested in the job so she applied for it, she said. In 2011 the
107
government informed her that it dropped her name from the list as she
married after 1994. She pointed out that she married in 2008, four years
after applying for the job. As the government did not relent, she moved
court. Since the aim of the policy was to ensure the family does not suffer
due to the sudden loss of income.
In an anohter important case it is generally speaking the rules
regarding appointment on compassionate grounds provide that son/
daughter/spouse can be give appointment. However in case of daughter, it
is a practice that only unmarried dependant daughters are give
appointment. Whether this is not violative of equality before law, because
there is such no bar for sons (married or unmarried), was a moot question
to be decided in St. Ignatius H.S. v. State of Kerala 25, wherein:-
"The Madras High Court has held1 that a deceased
employee’s married daughter is entitled to get appointment
on compassionate ground. Reiterating an order passed in a
similar case, Justice D. Hariparanthaman observed, “if
marriage is not a bar in the case of son, the same yardstick
shall be applied in the case of a daughter also.”
Jayalaksmi, petitioner, was denied compassionate appointment after
her father- a Line Inspector in Tamil Nadu Generation and Distribution
Corporation (Tangedco) – died in harness in 2011. Corporation took the
stand that she was married at the time of death of her father and therefore
not eligible to compassionate appointment. Hence, she filed the present
writ petition challenging the denial.
25 (2013) SCC 132
108
Reiterating an earlier order passed in similar case, Justice D.
Hariparanthaman pointed that he had taken note of the statute—
Maintenance and Welfare of Parents and Senior Citizens Act, 2007---
which placed equal duty on both sons and daughters to take care of their
parents.
Therefore, he said, “In the case of death of the parents, there cannot
be any unequal treatment among the children based on sex. There cannot be
discrimination between sons and daughters in giving compassionate
appointment. He said judgement squarely applies to the facts of this case.”
Widow is entitled for Compassionate Appointment
In Jethi Devi v. Bhakra Beas Management Board,26 widow of the
deceased living with husband’s brother as man and wife-if disentitled.
When the wife of the Government servant dying-in-harness prayed for
compassionate appointment, her claim was refused on the ground that after
her husband’s death she was living with the husband’s brother as man and
wife and has given birth to child. It is on this ground her claim for
compassionate appointment has been refused. The Supreme Court has not
approved the decision of the authority to deny her claim for compassionate
appointment only on that ground. It was held that her statement that she
was the widow of the deceased Government servant was not at all
incorrect, that she being a member of a Hindu Joint Family her status and
that she was dependant upon her husband was also not incorrect and in
these circumstances the refusal was not justified.
26 (1995) 6 SCC 61
109
In State of Manipur v. A. Ongbi Memcha Devi,27 widow provided
with compassionate appointment and the prayer of brother not to be
allowed. When the employee died during service period his widow prayed
for compassionate appointment and was given such appointment. During
the continuance of the appointment of the widow the brother of the
deceased claiming to be the dependant also prayed for compassionate
appointment. It was held by the Supreme Court that subsequent claim of
the brother is impermissible and must be refused and that the brother
cannot claim to be the dependant of the deceased to claim compassionate
appointment.
Compassionate appointment for son of incapacitated father
The driver of the Haryana Roadways retired from service on being
found medically unfit for driving heavy vehicle but not certified to have
become blind or nakara. However he sought for premature retirement on
medical grounds After his retirement, his prayer for compassionate
appointment for one of his sons turned down by the authorities, however,
the High Court directed one of his son be given appointment on
compassionate ground commensurate with his educational qualification.
The Supreme Court has held in appeal of State of Haryana that the High
Court was not justified in issuing direction to give one of his sons a
suitable appointment commensurate with his educational qualification
when the driver was not medically incapacitated to the do any job, in view
of the decision of the Supreme Court in Anand Bihari v. Rajasthan
27 (1995) 4 SCC 210.
110
S.R.T.C.,28The driver could have got alternative job and in exceptional
cases, where that was not possible, compensation could be paid and in the
circumstances the order of the High Court was not found proper in view of
State of Haryana v. Hawa Singh.29 In State of Haryana v. Surjeet Singh,30
the Supreme Court reiterated the same view when the driver of a heavy
vehicle retired on account of deficiency in sight, but the medical report did
not declare him either blind or nakara. It was held that in terms of Haryana
Government instructions dated 22nd February, 1991 and 28th August, 1992
he was not entitled to have his son appointed on compassionate ground,
however, since in reference to the decision of High Court the appellant
State had already appointed his son, therefore, the Supreme Court did not
disturb such appointment.
Major brother’s claim for appointment claiming to be member of
the family of the deceased
A major brother in the State of Haryana claiming benefit of the
definition of “family” in r.6.16bB of the Punjab Civil Services Rule
(Volume – III) as applicable to Haryana had sought for compassionate
appointment on the death of the deceased elder brother in harness. As his
claim was refused, he moved the High Court under Article 226 of the
Constitution and the High Court issued direction upon the Government to
appoint the brother of the deceased on compassionate ground. The
Supreme Court on analyzing the definition of the “family” in the above
rules found that only brothers below the age of eighteen years were among
28 (1991) 1 SCC 731 29 (1995) Supp (2) SCC 258. 30 (1995) 5 SCC 478
111
others constituted the family of the Government servant and not a major
brother and consequently a major brother cannot be treated to be the
member of the family of the deceased Government employees to become
eligible for compassionate appointment. It was sought to be urged that
when previously the Government appointed the major brothers of the
deceased employees on compassionate ground the Government was
stopped from refusing the claim of the respondent to claim compassionate
appointment. The Supreme Court held that it might be that some
department had wrongly given the benefit but such wrong action cannot
become right in the face of the unambiguous language of the rules defining
“family” in the Rule 20 in view of State of Haryana v. Dhan Singh.31
Auditor General of India and others v. G. Ananta Rajeswara Rao,32
Appointment on compassionate ground to a son, daughter or widow to
assist the family to relieve economic distress by sudden demise in harness
of government employee is valid. It is not on ground of descent simpliciter,
but exceptional circumstances for the ground mentioned. It should be
circumscribed with suitable modification by an appropriate amendment to
the Memorandum limiting it to relieve the members of the deceased
employee who died in harness from economic distress.
But in other cases it cannot be a rule to take advantage of the
Memorandum to appoint the persons to this point on the ground of
compassion. The provision in the OM that the appointment on
compassionate grounds would not only be to a son, daughter or widow but
also to near relative was vague or undefined. All possible eventualities
31 (1996) 7 SCC 262 32 1994 SCC (L&S) 500
112
have been enumerated to become a rule to avoid regular recruitment. These
enumerated eventualities would be breeding ground for misuse of
appointments on compassionate grounds. Article 16(3) to 16(5) provided
exceptions. Further exception must be on Constitutionally valid and
permissible grounds. The appointment on grounds of descent clearly
violates Article 16(2) of the Constitution. Therefore, in other respects the
OM attracts Art. 16(2) (Para 5).33Appeal was allowed in part.
In another appeal, by special leave, which arose against the
judgment of the Andhra Pradesh High Court in Writ Appeal No. 20 of
1981 dated February, 3 1981, the respondent made an application to the
appellant to appoint him as a clerk as his father died in harness in 1967
while working in the office of the Auditor General. Government of Andhra
Pradesh. He was qualified for appointment. He passed his PUC
examination and he applied for the appointment on compassionate grounds.
The application was made on December 26, 1978. Since he was not
considered nor appointed, he filed Writ Petition No. 6173 of 1979 and the
learned Single judge dismissed writ petition. On appeal, while dismissing,
the Division Bench declared that the memorandum is violative of Article
16(2) of the Constitution as the appointment of the descendant is ultra virus
Article 16(2). However, while granting leave, the appellant had given as
undertaking to absorb him in any vacancy that would arise in future. The
respondent appeared to have been appointed and therefore he was not
represented in the appeal. 33 P.S. Geeta v. Central Bank of India, Bombay, 1978 Lab IC 1271: (1978) 2LLN
353: (1978) 2 SLR 856 (AP) ; Sushma Gosain (Smt.) v. Union of India, (1989) 4 SCC 468: 1989 SCC (L&S) 662: AIR 1989SC 1976; Kamala Gaind (Smt.) State of Punjab, 990 Supp SCC 800 : 1991 SCC (L&S) 637: (1991) 16 ATC 513 Limited.
113
The only question that arose for decision was whether the
Memorandum is violative of Article 16(2) of the Constitution? Article 14
genus provides equality of opportunity and equal protection of the laws and
it prohibits discrimination Article 16(2) species prohibits discriminations.
Child Born from the Illegitimate Marriage
In Ramesh Chand v. Executive Engineer and others,34 the Allahabad
High Court was faced with an interesting question. Can a child born from
the second marriage of a person during the subsistence of the first
marriage, claim the right of compassionate appointment.
The petitioner’s father was employed with the Uttar Pradesh Power
Corporation (“the Corporation”). He did not have any children from his
first marriage and applied for permission to marry again. The Executive
Engineer granted permission on the basis of an agreement between the
employee and his wife as well as on the medical report confirming that
they could not have any children. There was even a caveat in the
permission that in case any child was born from the first wife then his
relation with second wife would come to an end.
The petitioner was born form the second marriage. When the
petitioner’s father died, there was an agreement between the two widows
by which the first wife was entitled to receive the post retirement benefits
and the petitioner would be entitled for compassionate appointment.
The petitioner made an application for compassionate appointment
but the Corporation denied it saying that children from the second marriage
could not be granted legitimacy on the basis of an agreement between the
parties. Against this rejection, a writ petition was filed and dismissed by a
34 2012 (90) ALR 322.
114
single judge on the ground that even though Section 16(3) of the Hindu
Marriage Act, 1955 provides inheritance to children from void marriages
over the property of their parents, the right to compassionate appointment
was not a right to property of deceased.
The Division Bench found that the Uttar Pradesh Government
Servant Conducts Rules, 1956, (“the UP Conduct Rule”) were applicable in
the present case. Rule 29 of the UP Conduct Rules talks about bigamous
marriage and was compared with the similar Rule 21 of the Central civil
Services (Conducts) Rules, 1964 (“The Central Conducts Rules”)
applicable to Central Government Employees. The provisio to Sub-rule (2)
of Rule 21 of the Central Conduct Rules provides that permission for a
second marriage can only be granted to a government servant, if the couple
belonged to a faith where second marriage is permissible and only for valid
reason. Although this is not so clear in Rule 29 of the UP Conduct Rules,
the Court inferred that the import and result of both the Rules was the
same.
Under Section 5 of the Hindu Marriage Act, the first condition for a
valid marriage is that neither party should have a spouse living at the time
of marriage. The Court underlined that Rule 29 of the UP Conduct Rules
was subject to the Hindu Marriage Act. It does not envisage the grant of
permission to a Hindu to marry a second time during the lifetime of the
first spouse as it would be contrary to Section 5(i) read with Section 11 of
the Hindu Marriage Act, In case it empowers the government to grant such
permission, it would contravene these sections of the Hindu Marriage Act.
The scope of Rule 29(1) the UP Conducts Rule has to be limited to person
belonging to those faiths where the personal law permits a second marriage
during the lifetime of the first spouse. Since the deceased was a Hindu, the
115
Court concluded that no permission could have been granted under Rule 29
(1) of the UP Conduct Rules and therefore, the permission granted was
invalid.
However, this discussion only dealt with the validity of the
permission and the second marriage, not the rights of the illegitimate child
born form that marriage. Although a second marriage during the lifetime
of the first spouse is invalid, Section 16 of the Hindu Marriage Act, grants
legitimacy to the children born out of such a marriage. They have the same
right as children born out of valid marriage unless there is any specified
exception. The Court concluded that the petitioner was the legitimate child
of the deceased employee under Section 16(1) of the Hindu Marriage Act,
and as such was entitled to all rights of a son who might have been born
but out of valid marriage except in regard to inheriting property other than
of his parent.
The natural consequences of the aforesaid conclusions is that the
appellant would be covered within the definition of the word ‘family’
under the Dying-in-Harness Rule and would be entitled to have his
application considered on merit under Rule 5 of the Dying-in-Harness
Rules.
Although the legal analysis went in favour of the petitioner, it did
not translate to the petitioner was founded on the conduct of the invalid
second marriage. A direction to the authorities to consider the appellant’s
application on merit would be tantamount to granting recognition to
conduct that was not permissible under the law. The Court was not in
favour of adopting such a course, and held that it was not a fit case for
exercising discretionary jurisdiction under Article 226 of the Constitution
of India, and therefore dismissed the appeal of the petitioner.
116
To conclude, although the Court said that the petitioner had a right
to have his application considered on merits, since enforcing such a right
through the Court would amount to granting recognition to an invalid act,
his rights could not be enforced through a writ. This may seem a little
convoluted at first glance, but if one looks this conclusion in the
background of equitable origins of writ remedies, the stand of the Court
becomes more justified.
Compassionate appointment cannot be declined on the grounds that
other sons of the deceased employee were already employed35 or the elder
son though living separately has been made permanent after the death of
the father,36or that another brother was in employment of the Electricity
Board when the deceased was not an employee of the Board 37 or that the
widow of the deceased Government servant was living with her husband’s
brother as man and women.38
Wards of Missing Government Servant
Cases of missing Government servants are also covered under the
scheme for compassionate appointment subject to the following
conditions:-
(a) A request to grant the benefit of compassionate appointment can
be considered only after a lapse of at least 2 years from the date
from which the Government servant has been missing, provided
that :
i. An FIR to this effect has been lodged with the Police.
35 Sanjay Kr. Panda v. State of W.B., 1993 (2) SLR 604 (Cal.) 36 Motia Devi v. Life Insurance Corporation of India 1993 (3) SLR 68 (DB). 37 Prakash Chand Jain v. State of Rajasthan 1992 (5) SLR 680. 38 Jethi Devi v. Bhakr Beas Management Board , (1995) 6 SCC 61
117
ii. The missing person is not traceable, and
iii. The competent authority feels that the case is genuine;
(b) This benefit will not be applicable to the case of a Government
servant: -
i. Who had less than two years to retire on the date from which
he has been missing; or
ii. Who is suspected to have committed fraud, or suspected to
have joined any terrorist organization or suspected to have
gone abroad.
(c) Compassionate appointment in the case of missing Government
servant also would not be a matter of right as in the case of
others and it will be subject to fulfillment of all the conditions,
including the availability of vacancy, laid down for such
appointment under the scheme;
(d) While considering such a request report of the Police
investigation should also be taken into account, and
(e) A decision on any such request for compassionate appointment
should be taken only at the level of the Secretary of Ministry /
Departmental concerned.
POST/JOB UNDER COMPASSIONATE APPOINTMENT
Compassionate appointments can be given only in Group 'C' and 'D'
posts. Such appointments are to be only against direct recruitment quota.
For compassionate appointments and appointments against reserved posts,
the total reservation of S.C. and S.T., physically handicapped, Ex-
Servicemen etc. should not exceed 50% of the vacancies available on any
118
particular occasion. The Deptt. of Personnel & Training of the central
government have certified that if direct recruitment is not being allowed,
even then the quota for compassionate appointments is to be determined
after taking into consideration the percentage of reservation of S.Cs &
S.T.s etc for direct recruitment at a particular place.
The CAT, Principle Bench, New Delhi has directed that a common
list should be prepared for all compassionate appointment cases relating to
posts located at Delhi and appointments should be made against the quota
for compassionate grounds from the common list.
The Department of Personnel & Training have advised that
compassionate appointments are to be made at the direction of government
in the light of the facts and circumstances each case and it is not mandatory
that in such cases where the government of employees dies in harness, one
of the legal representative must be provided employment on compassionate
grounds. The financial benefits received by the family after the death of a
Government servant have to be taken into consideration while taking a
final view on the request for appointment on compassionate grounds.
These benefits are the Central Government Group Insurance, Leave
Encashment, Entitlement of additional amount equal to the average balance
in the GPF Account of the deceased Government servant during the
preceding three years, improved family pension and assistance from
compassionate funds whenever applicable. Even though, requests for
compassionate appointments can be considered in cases when death has
taken long ago, yet the concept of compassionate appointments is largely
related to providing immediate assistance to a family, which has lost its
breadwinner.
Appointments on compassionate grounds are normally to be
119
sanctioned taking into consideration, the provisions of normal recruitment
Rules. However, education qualification can be relaxed temporarily for
appointments to Group 'c' posts of LDC, where the condition of the family
is indigent. Such relaxation is permitted for a period of two years, beyond
which no relaxation would be allowed and services of a person so
appointed are liable to be terminated. But in the case of a widow, who is
appointed on compassionate grounds to Group 'D' post, she would be
exempted from the requirements of educational qualification, provided
duties of the post can be satisfactorily performed without having the
requisite educational qualification prescribed in the Recruitment Rules. But
the experience condition prescribed in the Recruitment Rules are not
relaxable for appointments on compassionate grounds.
Before a person is appointed, all the formalities as prescribed in the
Rules / orders issued from time to time like verification of character and
antecedents, medical examination etc. have be completed.
In Director of Education (Secondary) and another v. Pusphendra
Kumar and others,39 the Supreme Court has observed as under :
"The object underlying a provision for grant of
compassionate employment is to enable the family of the
deceased employee to tide over the sudden crisis resulting
due to death of the bread-earner which has left the family in
penury and without any means of livelihood. Out of pure
humanitarian consideration and having regard to the fact that
unless some source of a livelihood is provided, the family
would not be able to make both the ends meet, a provision is
made for giving gainful appointment. Such a provision makes 39 (1998) 5 SCC 192
120
a departure from the general provision providing for
appointment on the post by following a particular procedure.
Since such a provision enables appointment being made
without following the said procedure, it is in the nature of an
exception to the general provisions. An exception cannot
subsume the main provision to which it is an exception and
thereby nullify the main provision. Care has, therefore, to be
taken that a provision for grant of compassionate
employment, which is the nature of an exception to the
general provision, does not unduly interfere with the right of
other persons who are eligible for appointment to seek
employment against the post which would have been
available to them, but for the provision enabling appointment
being made on compassionate grounds for the dependant of a
deceased employee."
In Balbir Kaur v. Steel Authority of India and Ors., 40 the Hon'ble
Supreme Court has held that the appointment on compassionate ground is
not a vested right but it should not be denied in deserving cases for the
reasons that it would be tantamount to denial of economical and social
justice as enshrined in the Constitution and has must be, in its adaptability
and flexibility, applied depending upon a situation for the benefit of the
society.
The theory of compassionate appointments has been holding the
field for quite some time. The precise connotation of the theory, however,
was not laid in any authoritative pronouncement. The Courts proceeded on
a case by case basis and were guided more by sympathy and sentiment than
40 (2000) 6 SCC 493
121
any recognized principle of law. It has therefore been recognized as an
exception to the general rules relating to appointments.
In a very significant judgment, the Supreme Court has held that the
absence of extant rule of instructions at the time of death and of the
employment, there can be no claim for compassionate appointment.41 Such
appointments cannot be made dehors any statutory policy. Such
appointments cannot be made dehors any statutory policy.
In Sushma Gosain v. Union of India42 the Supreme Court has
observed that it was improper to keep such case pending for years and that
if there was no suitable post for appointment, a supernumerary post should
be created to accommodate the applicant. It has also been pointed out that
it is neither a vested right which can be exercised at any time even after the
crisis by the death is over,43 not a hereditary right44 nor can it be
bequeathed.45
A three Judge Bench has explained the purpose of compassionate
appointment and pointed out its exceptional nature and the need to take
care that its application did not interfere with the right of other persons
who are eligible to seek employment.46
But whatever may be the nature of the right, there is no such
principle the “endless compassion” and the claim will stand extinguished
41 Haryana State Electricity Board v. Naresh Tanwar, JT 1996 (2) SC 542 : (1996) 8
SCC 23 : 1996 (2) SLR 11 : for an extreme example of a sympathetical decision; Prem Kanwar v. R.S.T.C.
42 1989 (4) SLR 327: JT 1989 (3) SC 570: (1989) 4 SCC 468 : AIR 1989 SC 1976 43 Haryana State Electricity Board v. Naresh Tomary, JT 1996 (2) SC 542 : (1996) 8
SCC 23 : 996 (2) SLR 11 44 Srikanth v. Chief Engineer, Karnataka Electricity Board, 1996 (1) SLR 18. 45 Ashok Kumar Kumar Maiti v. State of W.B. , 1995 Lab IC 2175 46 Director of Education (Secondary) v. Pushpendra Kumar, (1998) 5 SCC 192: AIR
1998 SC 2330.
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once one of the post applied for is offered and accepted e.g. where the
deceased’s ward applies for appointment ether as Sub Inspector or lower
division clerk and is offered the post of lower division clerk which is
accepted, cannot thereafter claim to appointed as Sub Inspector.47
Dependants, if gainfully employed, cannot be considered.48 The aspirant
cannot insist upon for appointment to a particular post particularly when
the post insisted upon is not available.49
The principle is applied when any employee was missing and had
not been herd of for more than seven years based on the presumption of
death.50
In Balbir Kaur v. Steel Authority of India Ltd.,51 the court reiterated
that compassionate appointment and the benefits flowing from a Family
Benefit Scheme cannot be equated since a lump sum monetary benefits
cannot replace the bread earner: although constitutional obligation was
emphasized, the actual decision was based on the preservation of the right
to be considered for compassionate appointment in a tripartite agreement.
In early 1994, the Supreme Court showed its awareness of the
indiscriminate trend that was developing in the Courts directing the
authorities to make appointments on compassionate grounds. In LIC Case52
where Court was in desperation to lay down a rule of caution in relation to
the Courts exercising jurisdiction in the matter of compassionate
appointment and seized a wrong opportunity to declare the law.
47 State of Rajasthan v. Umrao Singh (1994) 6 SCC 560: 1995 SCC (L&S) 10. 48 (1998) 5 SCC 452 : 1998 SCC (185) 1371 49 Director of Education (Secondary) v. Pushpendra Kumar (1998) SCC 192: AIR
1998 SC 2230. 50 Chief Engineer, Central Zone, APSEB v. K. Naga Hema (1996) 1 LLJ 1121. 51 (2000) 6 SCC 493 : AIR 2000 SC 1596 : (2000) 2 LLJ 1. 52 (1994) 2 SCC 18 : AIR 1994 SC 2148 : (1994) II LLJ 173.
123
But there has been a shift in the approach. The LIC case, was
decided on 28 February 1994. There months later in Umesh Kr. Nagpal v.
State of Haryana,53 Sawant J. laid down the principles relating to
compassionate appointment in clear and emphatic language. He said:
“The question relate 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 merit. No other mode of
appointment or any other consideration is permissible.
Neither the Government nor the public authorities are at
liberty to follow any other procedure or relax 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 for justice and to
meet certain contingencies. One such exception is in favour
of the dependents 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 sources 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 dependents
of the deceased who may be eligible for such employment.
The whole object of granting compassionate employment is 53 Umesh Kr. Nagpal v. State of Haryana (1995) 1 LLJ 798 (SC) : (1994) 4 SCC
(L&S) 930.
124
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 the 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
Class 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 post
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 post 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 service rendered
by him and the legitimate expectations, and the change in the
status and affairs, of the family engendered by the erstwhile
125
employment which are suddenly upturned.”
Non ratification by government of compassionate appointment
(made by a municipality) on the ground that there was lapse of ten years as
well as the fact that two sons were already employed at the time of the
mother’s death and the consequential termination of service has been held
to be valid notwithstanding the services rendered pursuant to interim order
of court. 54
Since the immediate financial disruption is the dominating
consideration, a dependent son who was four years of age at the time of his
father’s death could not claim to be appointed on compassionate grounds
upon attaining majority.55
It cannot be given in the face of financial constraints56 of the
employer not without going into the question of need of the family.57 And
if rules or guidelines have been framed regarding compassionate
appointment it can only be given consistently with such rules. 58
Where a ceiling has been fixed for such appointment and that ceiling
has been exhausted, the question as to whether the ceiling should be
relaxed is entirely a matter of administrative discretion and the courts
cannot direct the authorities to relax the ceiling.59
The policy or provisions for compassionate appointment were 54 S. Mohan v. Government of T.N. (1998) 9 SCC 485 : 998 SCC (L&S) 1231 55 Jagdish Prasad v. State of Bihar (1996) 1 SCC 301 : JT 1995 (9) SC 31; Illa
Sarkar v. State of W.B. (199) II LLJ 1122 : 100 CWN 483; State of U.P. v. Paras Nath, (998) 2 SCC 412 : AIR 1998 SC 2612
56 P.C. John v. Managing Director , KSRTC , 1992 Lab IC 2594 (Ker.). 57 Umesh Kr. Nagpal v. State of Haryana (1995) 1 LLJ 798 (SC) : (1994) 4 SCC
(L&S) 930. 58 Life Insurance Corporation of India v. Asha Ramchandra Ambekar (1994) 2 SCC
718 : AIR 1994 SC 2148; Umesh Kr. Nagpal v. State of Haranaya, (1994) 4 SCC 138 : (1995) I LLJ 798 (SC) : 1994 SCC (L&S) 930.
59 Union of India v. Joginder Sharma (2002) 8 SCC 65 : 2002 SCC (L&S) 111
126
questioned on the ground that it violated the constitutional mandate in Art.
16(2) which prohibited the State from discriminating on ground only of,
amongst others, descent.60 It was argued that the Government
memorandum provided for compassionate appointment not only of the son,
daughter or widow of the government servant dying –in-harness but also in
cases where a Government servant had retired on medical grounds.
Rejecting the contention as for as sons, daughters and widows were
concerned where the Government servant dies in harness the Court upheld
the challenge in so far as it extended to near relatives and other
eventualities.
The Court explained:
“A reading of these various clause in the Memorandum
discloses that the appointment on compassionate grounds
would not only be to a son, daughter or widow but also to a
near relative which was vague or undefined. A person who
dies in harness and whose members of the family need
immediate relief of providing appointment to relieve
economic distress from the loss of the breadwinner of the
family need compassionate treatment. But all possible
eventualities have been enumerated to become a rule to avoid
regular recruitment. It would appear that these enumerated
eventualities would be breeding ground for misuse of
appointments on compassionate grounds. Article 16(3) to
16(5) provided exceptions. Further exception must be on
constitutionally valid and permissible grounds. Therefore, the
60 Auditor General of India v. G. Ananta Rajeswara Rao, (1994) II LLJ 812 (SC) :
(1994) 1 SCC 192 : AIR 1994 SC 1521
127
High Court is right in holding that the appointment on
grounds of descent clearly violates Articles 16(2) of
Constitution. But, however it is made clear that if the
appointments are confined to the son/ daughter or widow of
the deceased government employee who died in harness and
who needs immediate appointment on ground of immediate
need of assistance in the event of there being no other earning
member in the family to supplement the loss of income from
the bread-winner to relieve the economic distress of the
members of the family, it is unexceptionable. But in other
cases it cannot be a rule to take advantage of the
Memorandum to appointment the persons to these posts on
the ground of compassion.”61
Following Sushma Gosain,62 it has been held that non-existence of a
vacancy will not be a bar to appointment and if necessary supernumerary
posts should be created.63 It has been held that age restrictions should not
stand in the way.64 If a policy for compassionate appointment has been
framed then there cannot be denial of the right of consideration for such
appointment.65
The principle of compassionate appointment does not appear to be
confined to cases of death only. Persons with physical disability e.g. total
blindness,66 persons who have lost their lands by reasons of acquisition
61 Id at 1533. 62 1989 (4) SLR 327 : JT 1989 (3) SC 570 : (1989) 4 SCC 468 : AIR 1989 SC 1976 63 Dinesh Rai v. District Inspector of Schools, (1992) 1 LLJ 123 64 Puspa Rani v. State of Punjab, 1992 (6 ) SLR 90 65 Bagwanji Monabhani Khatana v. State of Gujarat, 1995 (5) SLR 34. 66 State of Haryana v. Surjeet Singh, JT 1996 (7) SC 202: (1996) 5 SCC 478
128
for a public project,67 who have become medically unfit or who have been
the beneficiaries of judicial compassion.68 If the eligibility in laid down as
“Nakara” which meant “of no use” and an employee is declared unfit to
perform even light duty will not make him “Nakara” which is the context
meant total disability.69
But in a more recent case the Supreme Court has rejected the
argument that in the case of persons whose lands had been acquired for a
public purpose namely a public project like Rourkela Steel Plant, there was
no obligation on the part of he Government to give employment to
members of the family whose land had been acquired over and above the
compensation paid to them under the Land Acquisition Act. The Court not
only negatived the argument of the land losers based on Art. 21 of the
Constitution but observed that the acceptance of the claim would be against
Art. 14.
Compassionate appointment will be discriminatory if an arbitrary
cut off date is fixed.70 If compassionate appointment is made applicable to
situations other than death or the classes of beneficiaries are extended from
family members to near relatives, it would be violative of Art. 14 and
16(2) of the Constitution.71
Having regard to the exceptional nature of the appointment, the
Supreme Court has pointed out that a scheme extending the scope of
appointment to all sorts of casual or ad-hoc employees including
apprentices would be unconstitutional as violating Art. 14.
67 Calcutta Port Trust v. Deba Prasad Bag, 1995 Supp (1) SCC 454 68 Buttu Prasad v. Steel Autholrity of India Ltd., 1995 (2) SLR 451 (SC) : 1995 Supp
(2) SCC 225. 69 Lal Chand v. State of Haryana (1999) 6 SCC 760 70 G.S. Suresh Kumar v. State of Kerala , 1992 Lab IC 2349 71 Auditor General of India v. G. Anantha Rajeshwara Rao, (1994) II LLJ 812
129
Even if the candidate is eligible for compassionate appointment, it is
not open to the High Court to straight-away direct the authorities to
appointment him. It could only direct consideration of the claim in
accordance with law. 72If for non existence of any vacancy in the post
which was held by the dependent’s father, the dependant accepts a lower
post without any demur, he cannot subsequently claim as a matter of right
appointment to the higher post held by the father when a vacancy occurs in
the higher post.73
It has been also pointed out by the Supreme Court that exercise of
extraordinary jurisdiction, constitutionally conferred on the Supreme Court
under Art. 142 (1) of the Constitution, could be of no guidance on the
scope of Art. 226. It does not appear from the judgment that any argument
was advanced in support of such a power in the High Court and the clear
implication of these observations appear to be that although the Supreme
Court could give such direction for direct appointment, the High Court
have no jurisdiction to do so in exercise of power under Art. 226 of the
Constitution. Long delay (e.g. 17 years) may be a valid basis for not
making compassionate appointment.
A candidate seeking compassionate appointment cannot complain of
discrimination on the ground that others had been given such appointment
to higher posts unless he can prove and there is a positive finding that his
case was comparable with those others in whose favour discrimination is
alleged to have been made.74
72 Life Insurance Corporations of India v. Asha Ramchandra Ambekar (1994) 2 SCC
718 73 Pakam Srinvasulu v. Registrar (Vigilance) High Court of A.P., 2002 (7) SLR 607
(FB-AP) 74 State of Haryana v. Narensh Kr. Bali, (1994) 4 SCC 448
130
If a leave vacancy is created, it has to be first offered to the person
who is entitled to the benefit of the dying-in-harness rules, and if the
person who had gone on leave does not return then the person entitled to
the benefit of dying –in-harness rule should be confirmed in the post. If,
however the person who had gone on leave return then the person entitled
to the benefit of dying-in-harness rules should be give an appointment by
creating an additional post. It would not be proper to direct creation of an
additional post unless a person who was on leave returns or joins the post.
A person who was appointed in leave vacancy has no right to the post and
he will have to go out if a person entitled to the benefit of dying-in-harness
rules is available, for it would not be proper to saddle the Government with
the additional financial liability of having two person against one post.75
After foregoing discussion we may say that though, the
rules/regulations defined the specific categories for the dependent of the
deceased employees. But Indian courts with the dealing on compassionate
appointment related cases has broaden the categories in on grounds of
immediate need of assistance in the event of there being no other earning
member in the family to supplement the loss of income from the bread-
winner to relieve the economic distress of the members of the family,
though it is unexceptionable.
75 Budhi Sagar Dubey v . Dt. Inspector of Schools, (1993) I LLJ 798 (All).
Chapter VI
Categories of Employment Covered Under Dying
in Harness Rule
Public Sector Companies and Undertakings are equally governed by
the general guidelines of the Government as well as the rulings of Supreme
Court. While Compassionate Appointment is banned in Public Sector
Banks, the same is continued in Public Sector Companies. For example, it
is learnt that Compassionate Appointments are still given in GAIL, STC,
Container Corporation of India, Bharat Dynamics, Neyveli Lignite
Corporation, Cochin Port Trust, Bharat Petroleum, Chennai Port Trust, etc.
In Chennai Petroleum Corporation, earlier Compassionate
appointments were being made. This has been substituted by a different
scheme by which the family of the deceased employee is paid the total and
full salary of the deceased employee till the actual date of superannuation
without making any cut.
In the present Chapter, an attempt has been made to discuss various
rules, regulation, Government order, court verdicts regarding
Compassionate appointments in different government and non-
governmental organization.
A. COMPASSIONATE APPOINTMENTS IN BANKING SECTOR
Government Guideline in banking Sector regarding compassionate
appointments
For the past more than four decades, Bank managements had been
considering compassionate ground appointments of the dependents /
132
spouse upon the unfortunate death of an employee while in service. In
1978, the Government of India vides Banking Division, Ministry of
Finance guidelines dated 12.9.1978 had given the scheme under which
compassionate appointments should be made in the Banks.
The scheme provided for appointment of one of the dependents /
spouse to be appointed in the Banks against existing or anticipated
vacancies and without undergoing the written test process which is
prescribed for regular appointments in the Banks. This scheme has been in
vogue and implementation since then.
In 1982, the Government issued further guidelines by which
dependents of employees who voluntarily resign from the service before
the age of 55 due to extreme medical conditions were also covered for
compassionate appointments in the Banks.
Under Section 13 (a) of Banking Service Commission Act 1975, as well
as Banking Service Commission Act of 1984, it was clearly provided that
while the commission was given the power to conduct examinations for
appointments and filling up of vacancies in clerical and officer cadre,
appointments under compassionate grounds can be made under a scheme
framed by the Bank as per Government guidelines and such appointments
could be made without consulting the Commission.
Thus, it was clearly envisaged that notwithstanding the normal
recruitment rules, Compassionate appointments can be considered under a
scheme by the Banks which has not been considered as conflicting with
Article 14 and 16 of the constitution.
In Umesh Kumar Nagpal v. State of Haryana,1 held as under:
1 1994 (4) SCC 138. The Honble Supreme Court, vide its judgement dated 4.5.1994
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(i) As a rule, appointments should be made on the basis of open
invitation and merit. Exception is in favour of dependents of an
employee dying in harness and leaving his family in penury &
without any means of livelihood.
(ii) Out of humanitarian consideration, provision to be made in the rules
for employment of one of the dependents.
(iii) The public authority concerned has to examine the financial
condition of the family of the deceased & only if satisfied; job is to
be offered to the eligible member of the family.
(iv) Compassionate appointment can only be offered in Class III & Class
IV posts.
(v) Such compassionate appointments cannot be granted after a lapse of
reasonable period which must be specified in the rules.
Based on these guidelines received from Government & IBA, Banks
were following the same and compassionate appointments were being
extended only after looking into the financial condition of the family of the
deceased. The appointments were being given only on selective basis
where the family was in indigent situation. Thus, the general principles
evolved out of the Supreme Court judgement in Nagpal case were being
taken care of by the Banks.
Notwithstanding the fact that IBA / Government guidelines based on
Supreme Court judgement in Nagpal Case were being observed and
implemented by the managements from 1996, the attitude of the Bank
managements underwent a change. Based on this, Human Resources
Committee recommended for abolition of compassionate appointments and
payment of Ex-Gratia in lieu of job on the following grounds:
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1. Compassionate appointments lead to surplus staff in Banks.
2. Only the least employable in the family apply for such
compassionate appointments.
3. Some individuals have gone to the Court demanding compassionate
appointments.
4. Indigent condition of the family was being overlooked.
Based on these views, the Government suggested to IBA that IBA
may suggest on alternative scheme of ex-gratia payment in lieu of
compassionate appointments. Accordingly, IBA submitted the proposal to
the Government. Considering the proposal of IBA, the Government, in
October 2003, issued fresh guidelines to IBA as under:
1) Earmarking a large portion of the recruitment in clerical and
Substaff cadres for compassionate appointments will affect the
quality of manpower in Banks.
2) Help to the family of the deceased can be achieved by extending
financial assistance.
3) Financial compensation scheme to be implemented by working out a
uniform basis.
This Government’s advice was said to be in pursuance of Nagpal
case. But Supreme Court did not ban or prohibit compassionate
appointments in their said judgement and only wanted a proper rule or
scheme to be worked out based on the financial condition of the family.
Based on the above advice of the Government, the IBA formulated a
model scheme and submitted to the Government. The Government
approved this scheme. On 31-7-2004 the IBA circulated this model scheme
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to all Banks thus stopping all compassionate appointments in the Banks
and providing for financial compensation.
Obviously, this Scheme was not in conformity with the spirit and rulings
of Supreme Court judgement in Nagpal case which did allow
compassionate ground appointments based on some rules.
IMPLEMENTATION OF MODEL SCHEME BY BANKS
The IBA Model Scheme has been faithfully adopted by the Banks
during 2004 and 2005 and all compassionate appointments were banned.
Even cases involving death of employees while on duty were not
considered. It appeared as though the Bank managements were waiting for
an opportunity to stop compassionate appointments.
Even past cases prior to this Model Scheme and which were duly
processed and approved by the managements including the Board of
Directors and were in the process of issuing appointment orders were
stopped. In a glaring example, a widow appointed by the Bank on
compassionate ground after due approval of the Board and who joined the
Bank was terminated on the plea that the approval was given before the
Model Scheme and date of joining was after the Model Scheme. .
The IBA / Government’s scheme of totally banning the
compassionate appointments and introducing a unilateral compensation
scheme was not acceptable to the Unions and United Forum of Bank
Unions on the following grounds:
(a) After Nagpal case, Banks were extending compassionate
appointments duly taking into account the Supreme Court
judgement.
(b) Supreme Court’s observations and Judgement was / is applicable to
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all but in Central Government / RBI / LIC / Railways, etc.,
Compassionate appointments still continued.
(c) Ex-Gratia Scheme, the ceilings, the procedure of calculations, etc.
were totally unilateral.
(d) Ex-gratia Scheme’s benefit did not benefit majority of the families
of deceased employees. Rather, their cases were mostly declined.
(e) Nagpal judgement did not ban compassionate appointments
In view of this, the UFBU gave a call for Strike on 9.3.2006
exclusively on this issue and demanded reconsideration of the Scheme to
provide for compassionate appointments.
The IBA did not come forward to discuss the issue stating that
compassionate appointment is not a service condition or part of any
Bipartite Settlement.
MEETING WITH PRIME MINISTER REGARDING
COMPASSIONATE APPOINTMENTS
The UFBU met the Hon’ble Prime Minister Dr.Manmohan Singh on
19.3.2007 and submitted a Memorandum reiterating UFBU’s suggestions
to IBA as under:
(a) In cases of deaths on account of resisting robbery, dacoity, terrorist
attack, etc and those who die in performance of their duties etc., the
compassionate appointment scheme should be restored as existed
hither to.
(b) In other cases of normal death of employees / officers in harness,
compassionate appointments to the wife of the deceased employee
should be considered looking to the age and family condition of the
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deceased. In case of death of employees of relatively young age, the
employment to the wife should be extended.
(c) In other cases, financial compensation scheme can be implemented
in lieu of compassionate appointment.
(d) The financial compensation should be evolved by mutual
discussion.
(e) An option should be given to the widow to receive the compensation
amount on monthly basis instead of in lump sum.
While the U.K. Nagpal case of the Supreme Court pertain to 1994,
subsequently in the year 2000, the same Supreme Court in a landmark
judgement in the case of Balbir Kaur vs SAIL Ltd.2 has elaborately held
that compassionate appointments can be given. The salient features of the
judgement are as under:
a) SAIL is an authority within the meaning of Article 12 of the
Constitution and hence has an obligation to act in terms of the
avowed objectives of Social and Economic Justice as enshrined in
the Constitution.
b) Whether SAIL has acted as a model or ideal employer?
c) Whether Social and Economic justice has been obtained?
d) Can we negative the lofty ideals of our Founding Fathers in our
daily life?
e) Socialistic pattern of society as envisaged in the Constitution has to
be attributed its full meaning.
f) The cry of the widow for bare subsistence cannot go unheeded.
2 AIR 2000 SC 1596.
138
g) When the bread winner is no longer available, the prayer for
compassionate appointment should not be denied on the ground that
it may open a Pandora’s box.
h) Can it be the effect of our entering the new millennium?
i) Can the Courts be a mute spectator in denial of such relief to the
family?
In this landmark judgment in 2000 (Nagpal judgment was in 1994),
the Supreme Court ordered for compassionate appointments to the
dependents of two of the deceased employees of SAIL.
In this judgement the Supreme Court has also relied on the fact that
already there was a compassionate appointment scheme and that cannot be
taken away. In the banking sector also right from 1978 as per Government
guidelines, in every Bank schemes were worked out for extending
compassionate appointments. Subsequently, based on U.K. Nagpal case all
the banks have been keeping the judgement in mind while extending
compassionate appointments. Hence, total denial of compassionate
appointments is unjustified, unfair and is also beyond the judgement of the
Supreme Court.
The Supreme Court in its judgement dated April 8, 1993 in the case
of Auditor General of India and others v. G Ananta Rajeswara Rao3 has
held that appointment on grounds of descent clearly violates Articles 16 (2)
of the Constitution; but if the appointment is confined to the son or
daughter or widow of the Government servant who died in harness and
who needs immediate appointment on grounds of immediate need of
assistance in the event of there being no other earning member in the
3 (1994) 1 SCC 1992
139
family to supplement the loss of income from the bread winner to relieve
the economic distress of the members of the family, it is unexceptionable.
Thus, Supreme Court has not banned or prohibited compassionate
appointments.
The Supreme Court has ruled in the cases of Himachal Road
Transport Corporation v. Dinesh Kumar4 on May 7, 1996 and Hindustan
Aeronautics Limited v. Smt A Radhika Thirumalai 5 on October 9, 1996
that appointment on compassionate grounds can be made only if a vacancy
is available for that purpose.
Thus Supreme Court has held that if vacancy is available,
compassionate appointment can be considered.
The Supreme Court has held in its judgement in the case of State of
Haryana and others v. Rani Devi and others6 on July 15, 1996 that if the
scheme regarding appointment on compassionate ground is extended to all
sorts of casual, ad-hoc employees including those who are working as
Apprentices, then such scheme cannot be justified on Constitutional
grounds.
Thus Supreme Court has opined that compassionate appointment
can be considered to the family of permanent employees.
JUSTIFICATIONS FOR COMPASSIONATE APPOINTMENTS IN
BANKS
The following are the appropriate justification for compassionate
appointment :
1. Compassionate appointments were being made in Banks as per 4 JT 1996 (5) SC 31. 5 JT 1996 (9) SC 197. 6 JT 1996 (6) SC 646.
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scheme advised by Government in 1978. 2. From 1996, based on Supreme Court judgement in Nagpal case,
compassionate appointments were being given duly taking into account the viewpoints of the Supreme Court.
3. Even the Supreme Court in the Negpal case (1994) has not prohibited or banned compassionate appointments.
4. In 2000, Supreme Court has given another landmark judgement in Balbir Kaur Vs SAIL directing compassionate appointment. There have been various other judgements also indicating that Compassionate Appointments can be given to the dependent on the death of an employee.
5. For 2004, Compassionate appointments have been totally banned in Banks quoting Nagpal judgement even though there is no such ban order in that judgement.
6. Even today, even after the Nagpal judgement, compassionate appointments are being given in Central Government.
7. Various State Governments continue to give compassionate appointments.
8. In Railways, various Public Sector Undertakings, Private establishments, compassionate appointments are being given.
9. Within the financial sector also, in RBI & LIC, compassionate appointments scheme continues and appointments are being given.
10. Within the banking sector, private banks also give compassionate appointment.
11. The arguments that compassionate appointments lead to surplus staff is a fallacy. There are large numbers of vacancies unfilled in the Banks and acute shortage of staff is the reality.
12. Number of Banks have started the process of recruitments. There may be surplus pockets, if at all, in some area or place, but there is no surplus staff in any Bank as a whole.
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13. The incidence of death in harness is very negligible. It is less than 0.50% of the total employees per year on an average.
14. Even if the widow / family of the deceased employees are offered employment, the number will constitute a very small portion of the available vacancies.
15. In fact, some of them will not be eligible for a job for want requisite qualification and some widows may not take up the job due to family circumstances. Hence the actual incidence of jobs on compassionate ground will by very marginal.
16. Invariably, the deceased employee happens to be the main or sole breadwinner of the family and his death while in service destabilizes the entire economics of the family. A job on compassionate ground is a great support to the family in distress.
17. It may be further mentioned that when an employee retires from service, they get the lump sum commuted value of pension but when an employee dies while in services, this amount is not payable.
18. It is also a fact that bank employees being middle-class employees resort to loans and borrowings to make both ends meet. These loans are not only from the Banks but sometimes from other recognized sources also. When an employee suddenly dies while in services, the savings or terminal dues go to liquidate these loans and the family is facing difficulties.
19. Further, in these days of changed economic conditions, after the death of the bread-winner, the widow is needed to take care of the education of the children and marriage of the daughters which sucks a substantial portion of whatever the family gets as terminal benefits.
In this regard, UFBU has also submitted that compassionate appointments can be given in the Banks for the following reasons:
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1. Supreme Court has not banned compassionate appointments. 2. Banks’ scheme on compassionate appointment is based on
Government guidelines only. 3. Compassionate grounds appointments are available in Central
Government, State Government, Public Sector, RBI, LIC, Railways, Private Sector, etc. and denial of the same only to Banks appears to be discriminative.
4. No. of deaths of employees in service is marginal 5. Banks require a lot of additional staff in the coming years. 6. If prescribed qualification for normal recruitment is ensured in
compassionate appointments also, it will not create any problem relating to quality.
7. Compassionate ground appointments may be given in the banks without violating the guidelines of Supreme Court judgments.
Some important cases relating to compassionate appointment in
banking sector
In State Bank of India & Ors. v. Surya Narain Tripathi7
The brief facts of this appeal are that the one B.P. Tripathi the father
of the first respondent was working in the State Bank of India from
27.12.1969 and he died while in service on 19.1.1998 after completing
more than 28 years of service. At that time he was working as Assistant
Manager. The respondent No.1 who is his son applied for a job on
compassionate basis and his application was turned down by the Bank
which led to the writ petition. The writ petition was allowed by the learned
Single Judge and the appeal of the Bank there from was dismissed.
It is submitted by Mr. Vikas Singh learned senior counsel appearing
7 2014 STPL(Web) 115 SC
143
for appellants that earlier in the year 1979 there was a different scheme
which was prevalent in the matter of compassionate appointment, and
amongst others there was a provision for an interview under clause 7.5(f)
of the Hand Book on Staff Matters. wherein it was laid down that the
object of compassionate appointment is meant to enable the bereaved
family of the deceased employee to face the sudden financial crisis and not
to provide employment as such. This led the Bank to frame another policy
in the year 1998. This judgment is referred in the new policy and it is
provided therein as an objective that when the Bank is satisfied that the
financial condition of the family is such that it requires employment that
compassionate appointment will be offered.8
It is the case of the Bank that as far as the present appointment is
concerned all relevant factors were considered. It was noticed that the
salary of the deceased at the time of his death was Rs.8,970/-. His family
was given an amount of Rs.5,98,092/- plus 0.25 lakh as terminal benefits.
If the said amount was to be invested properly, it would get interest at least
of Rs.5,000/- p.m.
This was apart from the family pension of Rs.4208+Admissible D.A. The
Bank, therefore, took the view that the circumstances do not warrant the
compassionate appointment for the respondent which was applied for.
Mr. Sunny Choudhary counsel appearing for the respondent, on the
other hand, submitted that this was a hard case, and the deceased has left
behind a large family. Apart from the widow, he had two sons and five
daughters and three of them were unmarried. Considering this fact it was
expected that the Bank should provide appointment to one of the members
of the family when the main bread earner had passed away. We relied upon 8 Umesh Kumar Nagpal v. State of Hariyana 1994 (4) SCC 138.
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the judgment of this Court in Govind Prakash Verma v. Life Insurance
Corporation of India & Ors9., 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.
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 bread earner. 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
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.
As stated earlier, the deceased left behind a large family. The fact
however, remains that by now 15 years have gone since then. Besides the
Bank has made appropriate financial provision at par with similar
arrangement that was noted by this Court in the case of M.T. Latheesh
(supra). Therefore it is not possible for us to say that the Court could have
directed the Bank to consider compassionate appointment. In the
circumstances, the appeal is allowed. The judgment rendered by the
learned Single Judge as well as by the Division Bench is set aside. The writ
petition No.5045 of 1999 filed by the respondent shall stand dismissed.
Although the apex court allowing this appeal, and observed that looking
at the difficulties of the deceased family, and that the respondent was
required to go through the litigation up to the Supreme Court, the Court 9 (2005) 10 SCC 289
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may consider granting appropriate litigation expenses to the respondent.
We quite appreciate this gesture and order that the appellant Bank will pay
an amount of Rs.1 lakh to the respondent on this count. However, the apex
court makes it clear that this order on costs is made in consideration of the
special facts of this case. The appeal is allowed in terms of the signed
judgment.
In Sail and Anr. vs Awadhesh Singh And Ors10
In this case the short question that arises for consideration is whether
the Memorandum of Agreement with the National Joint Committee for the
Steel Industry (for short "Memorandum of Agreement") for compassionate
appointment evolved by the Steel Authority of India Ltd. (for short
"SAIL") permits for an appointment on the death of an employee to one of
the dependents of the deceased employee if some other dependent of the
deceased employee is already in service.
Under the Memorandum of Agreement it appears that language used
is "in case of death or permanent total disablement due to accident arising
out of and in course of employment, employment to one of his/her direct
dependents will be provided. The SAIL, on the basis of some agreement,
issued a letter on 14th of August, 1984, clarifying the position that if any of
the dependents (wife/husband or children) of the employee is already
employed, no other dependent would be employed in case of death of the
employee under such Memorandum of Agreem
The High Court appears to have taken the view that the language
used in the Memorandum of Agreement is not susceptible of that
construction and therefore even if the dependent of the deceased may be in
10 (2001) 10 SCC 621.
146
service that would not debar any other dependent from claiming such
compassionate appointment and would require the employer to give such
appointment. SAIL, therefore, assails the aforesaid view of the High Court.
It is contended by the Counsel appearing for the SAIL that the
provision referred to in the Memorandum of Agreement read with the
circular letter of the SAIL dated 14th August, 1984 makes it explicitly
clear that the question of compassionate appointment would arise if none
of the dependent of the deceased is already in service. The learned Counsel
appearing for the respondents, on the other hand, contended that if any of
the dependents is already in service on his own merit, that should not be a
bar for seeking relief by other dependents of the deceased under the
compassionate employment scheme and as such the impugned decision of
the High Court would remain unassailable.
Having regard to the submissions made by the learned Counsel for
both parties, the only question that comes up for our consideration is
whether under the Memorandum of Agreement it is permissible for a
dependent of the deceased to claim an appointment on compassionate
ground even when no other dependent of the deceased is already in service.
Be it stated that the Memorandum of Agreement in question is not a
statutory scheme and therefore would be unenforceable in an application
under Article 226 of the Constitution of India. The Memorandum of
Agreement for appointment on compassionate ground had been evolved by
the employer so that on the sudden death of an employee his dependents
would not be on the roads as destitute and can maintain them selves if an
appointment is given to any one of the dependents of the deceased. Such a
scheme cannot at all be conceived if some other dependent of the deceased
is already in service. The very purpose for which such scheme had been
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evolved would get frustrated if a claim on priority basis is made by a
dependent of the deceased notwithstanding the fact that other dependent of
the deceased is already in service. In this view of the matter we are unable
to sustain the decision of the Patna High Court in the impugned judgments.
In the aforesaid premises, the impugned judgments of the Patna
High Court stand set aside and these appeals are allowed.
In course of hearing, an apprehension was pointed out by the
Counsel appearing for the respondents that if some such compassionate
appointments have already been made, the Authority may take recourse to
getting recovery of the salary that has been paid to such compassionate
appointees. The apex court make it clear that the employer would not be
entitled to take resort to that course of action and no recovery would be
made in such event.
B. COMPASSIONATE APPOINTMENT IN LIFE INSURANCE
CORPORATION OF INDIA (LIC)
In early 1994 the Supreme Court showed its awareness of the
indiscriminate trend that was developing in the Courts directing the
authorities to make appointments on compassionate grounds. In Life
Insurance Corporation of India v. Asha Ramchandra Ambekar,11 the
Supreme Court observed:
“Of late this Court is coming across many cases in which
appointment on compassionate grounds is directed by judicial
authorities. Hence, we would like to lay down the law in this
regard. The High Courts and the Administrative Tribunals
cannot confer benediction impelled by sympathetic
11 (1994) 2 SCC 18 : AIR 1994 SC 2148 : (1994) II LLJ 173.
148
consideration……. Yielding to instinct will tend to ignore the
cold logic of law. According to law is a principle as old as
the hills. The Courts are to administer law as they find it,
however inconvenient it may be………
“…… The Courts should endeavor to find out whether
particular cases in which sympathetic consideration are to be
weighted falls within the scope of law. Disregardful of law,
however, hard the case may be, it should never be done. In
the very case itself, there are regulations and instructions
which we have extracted above. The Court below has not
even examined whether a case falls within the scope of these
statutory provisions. Clause 2 off sub – cl. (iii) of Instruction
makes it clear that the relaxation could be given only when
none of he members of the family is gainfully employed.
Clause 4 of the circular dated 20the January 1987 interdicts
such an appointment on compassionate grounds. The
Appellant Corporation being a Statutory Corporation is
bound by the Life Insurance Corporation Act as well as the
Statutory Regulations and Instructions. They cannot be put
aside and compassionate appointment be ordered.”
In LIC’s case,12 the Staff Instruction of 1979 issued under statutory
power contained provisions for the appointment of staff on compassionate
grounds upon demise of a member of the staff of the Corporation while in
service. Clause 2 Sub-cl, (iii) of these instructions reads inter alia as under.
“2. Relaxation in favour of near relatives of an employee who dies
while in service: 12 Ibid.
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(i) ……
(ii) ……….
(iii) The relaxation shall be admissible only where none of the
members of the family – widow, son or unmarried daughter –
is gainfully employed.”
There was also a circular of 1987 and cl. 4 of that circular provided:
“Where any member of the family is employed, no appointment
may be made on compassionate grounds.”
Ramchandra Ambekar was employed as higher grade Assistant in
the Sanda Branch under the Nasik Divisional Office of the Appellant
Corporation. He expired suddenly on 11th September. Upon his demise, the
first respondent his widow, submitted an application seeking employment
on compassionate grounds with the Appellant Corporation. The
Corporation rejected her request on the ground that she had exceeded the
upper age limit of 45 years.
Thereafter, the second respondent who was the son of the deceased
made representations that he be given employment on compassionate
ground. LIC by its letter dated 21st October 1991 turned down the
representation of the son and stated :
“We had received your appeal dated 21st June 1991. We had
submitted it to the competent authority and we are sorry to inform you that
the competent Authority has expressed inability to offer any employment
to you.”
The Supreme Court referring to this letter observed that the son’s
request for appointment on compassionate ground did not give any reason
as to how his claim was in any way, inconsistent with the Staff Instructions
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of the relevant circulars referred to in the judgment. The only reasons of
the Court on merits are to be found in these words:
“For ought one know, there may be other cases waiting
already for appointment on compassionate grounds, they may
be even harder than that of the second respondent.”
It is difficult to appreciate the soundness of the reasoning. These
observations are not only conjectural in nature but are wholly irrelevant in
the factual context. The Court did not point as to why the appointment was
not warranted. It appears that the Court was in desperation to lay down a
rule of caution in relation to the Courts exercising jurisdiction in the matter
of compassionate appointment and seized a wrong opportunity to declare
the law.
C. COMPASSIONATE APPOINTMENT IN RAILWAYS
Circumstances in which Compassionate appointment may be made:
Appointments on compassionate grounds relate to the appointments
made of dependents of Railway servants who lose their lives in the course
of duty or die in harness otherwise while in service or are medically
incapacitated/decategorised. The circumstances in which appointments on
compassionate grounds may be made are as below:
(i) When Railway servants lose their lives in the course of
duty or get so crippled that they cannot do any work (this
also in the course of duty, for example, loco and traffic
running staff in charge of trains involved in accidents),
(ii) When Railway employees die in harness while in service,
before retirement.
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(iii) When an employee’s whereabouts are not known for a
period of seven years and the settlement dues of the
employees are or are not paid to the family on this
account. This limit of seven years may be relaxed to three
years on the merits of each case with the approval of the
General Manager, subject to the condition that the
services of the person appointed on compassionate
grounds would be terminated in case the missing
employee is traced subsequently. Compassionate
appointments in such cases may be delinked from the
payment of settlement dues. In other words,
compassionate appointments in such cases may not be
denied or deferred only on the ground that settlement dues
of missing employees are still to be paid to the person
entitled to receive them.
[No. E (NG) II/81/RC-1/251 dated 06.02.1982 & 24.05.82 and No. E (NG)
II/81/RC-1/251 dated 27.12.1983]
(iv) When Railway employees become crippled while in
service or develop serious ailments like heart disease,
cancer, etc. or otherwise medically decategorised for the
job they are holding and no alternative job of the same
emoluments can be offered to them.
(v) Where, on being medically decategorised, a Railway
employee is offered alternative employment on the same
emoluments, and requests for compassionate
appointment, provided that if he has less than three years
of service at the time of decategorisation, personal
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approval of the General Manager is to be obtained before
the compassionate appointment is made.
(vi) For appointment of handicapped wards of railway
employees on compassionate grounds, registration with
special employment exchanges is not necessary and if the
candidate claims physical handicap, this may be
verified/established based on the general criteria
circulated vide Annexure to Board’s letter No. E (NG)
III/77/RC-1/54 dated 08.01.1978 through competent
Medical Officers.[
(vii) No. E (NG) II/82/RC-1/48 dated 19.10.1982]
(viii) In the case of a railway servant who is medically
incapacitated or decategorised and retires from service
and if compassionate appointment is otherwise
permissible, such appointments may be offered also to the
wife of the Railway servant subject to the following
conditions:
i. Either the employee has no son or daughter or the son
or daughter is a minor at the time the request for
appointment is made.
ii. In such cases the appointment will be approved
personally by the Chief Personnel Officer; and
iii. The Railway Administration has no practical difficulty
in offering appointment in a post for which the
candidate is eligible and suitable.
[No. E (NG) II/84/RC-1/105 dated 16.11.1984]
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(ix) There is no bar in giving appointment to the husband of a
female railway employee on compassionate grounds in
the circumstances in which such appointments are
otherwise permissible.
[No. E (NG) II/82/RC-I/213 dated 17.01.1983]
(ix) Normally only the father is taken to be the bread-winner
of the family. In the event of both wife and husband are
Railway Employees, on account of death of the
husband employment is permissible to a ward but not
on account of death of the wife.
[No. E (NG) II/86/RC-I/I/Policy dated 31.10.1986]
(x) Where the widow cannot take up employment, Railways can
keep the “case for appointment on compassionate grounds
open to enable consideration of appointment of a minor son
when he attains majority, even though at the time of
occurrence of the event making compassionate appointment
permissible, there is a daughter who has attained majority
and/or a major son who is already employed. This will be
subject to the following conditions:
(a) The minor son to be appointed will be attaining
majority of age within a period of five years of the
event of death which is the basis for appointment on
compassionate grounds.
(b) Where there is more than one minor son, it is only
the eldest minor son who should be considered for
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appointment when he attains majority and not any of
the minor sons.
(c) Further in such cases, the competent authority should
be satisfied about the bona fides of the request of the
widow or if there is no surviving widow, of the
family, that appointment should be given to a minor
son (when he attains majority) instead of a daughter or
an employed son who is already a major.
No. E (NG) II/84/RC-1/172 dated 01.03.1985]
A. Persons eligible to be appointed on compassionate grounds:
Son/daughter/widow/widower of the employees are eligible to be
appointed on compassionate grounds in the circumstances in which such
appointments are permissible. Where the widow cannot take up employ-
ment and the sons/daughters arc minor, the case may be kept pending till
the first son/daughter becomes a major i.e. attains the age of 18 years,
subject to time limits as provided under Para (V) of the Circular. The
benefit of compassionate appointments may also be extended to a “near
relative/adopted son/daughter”. The eligibility of a near relative/adopted
son/daughter to such appointments will be subject to the following
conditions:
(a) Near relative:
(i) Such appointment is not permissible where the railway employee
who has died in harness has left behind only the widow, with no
son/daughter to be supported by her.
(ii) The son or daughter of the employee or ex-employee is a minor one
and the widow cannot take up employment.
155
(iii) A clear certificate should be forthcoming from the widow that the
“near relative” will act as the bread-winner of the family.
(iv) If the family certifies at a later date that the “near relative”, who
was appointed on compassionate grounds, refuses to support the
family, the services of that employee are liable to be terminated.
(v) Once a “near relative” is appointed on compassionate grounds, no
further appointment shall be given later to a son, or daughter or the
widow of the employee, on compassionate grounds.
(vi) The appointment of the “near relative” shall not be considered, if a
son or daughter, or the widow herself is already working and is
earning.
A blood relation who is considered to be a bread-winner of the
family can be considered as “near relative” for the purpose of appointment
on compassionate grounds.
[No. E (NG) III/78/RC-1/1 dated 03.02.1981, No. E (NG) II/88/RC-
l/1/Policy dated 12.02.1990]
(b) Adopted sons and adopted daughters
(i) There is satisfactory proof of adoption valid legally;
(ii) The adoption is legally recognised under the personal law
governing the Railway servant;
(iii) The legal adoption process has been completed and has become
valid before the date of death/medical decategorisation medical
incapacitation (as the case may be) of the ex-employee.
[No. E (NG) II/86/RC-1/I/Policy dated 20.05.1988]
III. A brother-in-law (wife’s brother) would not come within the
156
categories of persons eligible for compassionate appointment. Similarly a
son-in-law also is not eligible for appointment on compassionate grounds.
[No. E (NG) II/87/RC-1/152 dated 19.10.1987 and No. E (NG) III/78/RC-
1/1 dated 03.02.1981]
Time limit for making compassionate appointments:
(a) Normally all appointments on compassionate grounds should be
made within a period of five years from the date of occurrence of the event
entitling the eligible person to be appointed on this ground. This period of
five years may be relaxed by the General Manager, subject to the following
conditions:
(i) The powers shall be exercised personally by the General Manager.
It shall not be delegated to a lower authority.
(ii) The case should not be more than ten years old as reckoned from
the date of death.
(iii) The widow of the deceased employee should not have remarried.
(iv) The benefit of compassionate appointment should not have been
given at any time to any other member of the family or to a near
relative of the deceased employee.
(v) The circumstances of the case should be such as to warrant
relaxation of the time limit of five years.
(vi) The reasons for relaxing the time limit should be placed on record.
(vii) The request for compassionate appointment should have been
received by the Railway Administration as soon as the son/
daughter to be considered for compassionate appointment has
become a major, say within a maximum period of one year.
157
IV. Qualification and conditions to be fulfilled:
(a) Normally the persons seeking appointment on compassionate
grounds should fulfil the conditions of eligibility regarding age
and educational qualifications prescribed for appointment to the
posts or grade concerned. However, the upper age limit may be
freely relaxed on merits of the cases. The lower age limit of 18
years normally required for appointment in Government may
also be relaxed upto one year with the personal approval of the
General Manager. Relaxation of the lower age limit beyond one
year will require the approval of the Ministry of Railways. In
making appointments on compassionate grounds, Divisional
Railway Managers may relax age limit in the case of
appointment to Group ‘D’ posts.[No. E (NG) III/79RC-1/47
dated 29.11.1979]
(b) The educational qualifications prescribed for the post to be
offered should not be relaxed. However, if on the merits of an
individual case, the General Manager feels that such a relaxation
of the minimum educational qualifications is absolutely
necessary, such cases may be referred to the Ministry of
Railways. The Railway Board will consider these cases on
merits subject to the stipulation that the candidate shall acquire
the requisite qualification within a prescribed time limit. Such
case will carry the following stipulations, in the offer of
appointment:
(i) The period to be allowed for acquiring the qualification will be
two years.
(ii) Such a person will not be confirmed in service till he acquires the
158
qualification.
(iii) He will not be eligible for promotion till such time he acquires the
qualification.
(iv) If any junior is promoted before the senior compassionate ap-
pointee acquires the qualification, such promotion of the junior
will be treated as regular. In other words, the compassionate
appointee will lose seniority in the higher grade to such of his
juniors as may have been promoted to the next higher grade,
before he acquires the prescribed qualification.
[No. E (NG) II/80/RC-1/4 (KW) dated 22.02.1989]
V. Grades in which appointments can be made on compassionate
grounds:
(a) In regard to appointments on compassionate grounds to the
categories of Assistant Station Masters, Guards, Senior Clerks,
Enquiry-cum-Reservation Clerks etc., the minimum qualifications
of University Degree should be insisted upon. These appointments
are within the Zonal Powers.
[No. E (NG) II/82/RSC/25 dated 06.05.1982]
(b) All appointments on compassionate grounds should be made only in
the recruitment grades like office clerks, commercial clerks,
Assistant Station Masters, etc. No appointment should be made on
compassionate grounds in an intermediate grade i.e. one, which is
filled purely by promotion. Appointments on Compassionate
grounds are also not normally permissible in the category of Traffic
Apprentices/Commercial Apprentices (Grade Rs. 1600-2660) and
Engineering Graduate Apprentices (Grade Rs. 2000-3200) because
159
direct recruitment in these grades is proportionately very limited.
(c) However, if in any rare and exceptional case, where the circum-
stances are particularly distressing and fixation of pay at a higher
stage than that normally admissible under the Rules is considered
justified, the Railway may approach Railway Board giving full
details in the prescribed proforma for approval. In no case should
pay be fixed at any higher stage in such case without Board’s prior
approval.
[No. E (NG) II/83/RC-1/68 dated 07.12.1983]
D. COMPASSIONATE APPOINTMENT IN CENTRAL
GOVERNMENT SERVICES13
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.
TO WHOM APPLICABLE
To a dependent family member —
(A) of a Government servant who
(a) dies while in service (including death by suicide); or
(b) is retired on medical grounds under Rule 2 of the
CCS (Medical Examination) Rules 1957 or the corresponding provision in
13 See Annexure no.
160
the Central Civil Service Regulations before attaining the age of 55 years
(57 years for Group ‘D’ Government servants); or (c) is retired
on medical grounds under Rule 38 of the CCS(Pension) Rules, 1972 or the
corresponding provision in the Central Civil Service Regulations before
attaining the age of 55 years (57 years for Group ‘D’ Government
servants); or
(B) of a member of the Armed Forces who -
(a) dies during service; or
(b) is killed in action; or
(c) is medically boarded out and is unfit for civil employment.
Note I “Dependent Family Member” means:
(a) spouse; or
(b) son (including adopted son); or
(c) daughter (including adopted daughter); or
(d) brother or sister in the case of unmarried Government servant or
member of the Armed Forces referred to in (A) or (B) of this para,
who was wholly dependent on the Government servant/member of
the Armed Forces at the time of his death in harness or retirement
on medicalgrounds, as the case may be.
This is a compilation of Office Memorandums issued by DOPT
from time to time relating to Appointment on Compassionate Grounds in
Central Government Services
161
In its related judgment, The Madras high court has directed the
government to issue directions to the heads of departments to ensure that
compassionate appointments are done fairly. The HC bench also sought
necessary amendments in relevant government orders so that female
members of deceased government servant are not denied compassionate
appointment. The directive was made while hearing a case filed by a
married women, K Mahalakshmi, who sought compassionate appointment
after her father's death. Justice R Mahadevan who heard the case also set
aside a 2012 order of Ramanathapuram district collector denying
Mahalakshmi job. He directed the collector to give her government
employment on compassionate ground within four weeks from the receipt
of the court order. Judge said the order denying job to the woman has
thrown light upon social attitudes.
"Passing such an order denying job to a married woman indicates
that male alone would take care of the family and woman will go along
with her husband. Now, the Maintenance and Welfare of Parents and
Senior Citizens Act*, 2007 is in force. If the authorities are of the view that
they (women) may not take care of the parents of the deceased employee,
necessary undertaking can be obtained from such candidate," the Judge
said. The petitioner's counsel D Guruswamy pointed out that gender
discrimination is evident in compassionate appointments. The judge
observed that in a majority of cases compassionate employment is sought
only for a male member in the family of the deceased rather than for
female members. In a civilized country such act is highly unwarranted, he
162
said.14
In a latest judgment of the same High Court, the Madras high court
wants to know from the Tamil Nadu government whether there is any
scheme available with the government to provide employment under
compassionate grounds for children of military personnel who die in
service. The court directed the state chief secretary and additional
government pleader P Sanjai Gandhi to inform the court by June 23, 2014
whether there is any scheme for the dependents of military personnel.
Justice S Nagamuthu, while hearing the plea of a soldier's widow,
said: "This court is not informed as to whether there is any scheme
available with the government of Tamil Nadu to provide employment for
the dependents of the members of armed forces who lost their lives while
in service, befitting their educational qualifications. Since it involves a
policy of the government, this court wants to know the stand of the
government." M Mary Matilda of Salem district had filed a petition seeking
a direction to the authorities to appoint her as revenue assistant at Mettur
municipality. Her husband Mariya Luis joined the Indian Army as a soldier
in 1990. After about 14 years of service, he died due to illness on
December 19, 2004, leaving behind his wife, a daughter and aged parents.
In 2006, Mary Matilda applied for revenue assistant's post in Mettur
municipality on compassionate grounds.
In 2013, after the municipal commissioner requested for forwarding
of list of names in waiting list for appointment under compassionate
14 http://timesofindia.indiatimes.com/city/madurai/Compassionate-appointments-
should-be-fair-to-female-kin-HC/articleshow/36981131.cms
163
grounds, the district collector sponsored seven candidates including Mary
Matilda. Her name, however, was rejected by the commissioner in August
2013 saying compassionate appointment could be given only in the
department where the deceased employee had worked. Assailing the order
and pointing out that the labour department had on several occasions held
that compassionate appointments could be given irrespective of the
department where the employee had died, she filed the petition.
Justice Nagamuthu, noting that Maria Luis lost his life while in service for
the country, adjourned the matter to June 23, 2014 for further proceedings.
E. COMPASSIONATE APPOINTMENT IN UNIVERSITIES AND
OTHER GOVERNMENTAL INSTITUTIONS
All Central Universities including Aligarh Muslim University and
other Central government related organization are followed the same
norms, rules and regulation which has been issued by the Scheme for the
Compassionate Appointment-1998, circulated by the Government of India,
Ministry of Personnel, Public Grievances, and pensions (Department of
Personnel and Training), New Delhi. It also be noted here that Government
of India, Ministry of Personnel, Public Grievances, and pensions
(Department of Personnel and Training), New Delhi has made modification
in the aforesaid scheme for compassionate appointment and issued
consolidated instructions for the same.15
Recently Aligarh Muslim University Vice-Chancellor has approved
the said scheme for the Compassionate Appointment-1998 issued by the
15 The Scheme has been incorporated in the form of Annexure no.
164
(Department of Personnel and Training), New Delhi and Registrar of the
University has circulated and informed the concerned Deptt.and its Head
on dated October 29, 2013.
After foregoing discussion we may say that compassionate
appointment schemes are available in Central/State Governments, Public
Sector, RBI, LIC, Railway, etc. as well as the fact that Supreme Court has
not banned or prohibited such compassionate appointments, reconsider the
matter and revise the Scheme accordingly to provide for compassionate
appointments in the Banks and other Governmental institutions.
Chapter – VII
Judicial Review of Dying in Harness Cases
There have been innumerable cases pertaining to compassionate
appointment which have reached High Court and many of them even to
Supreme Court of India. The Supreme Court of India has taken great care
which at jubilating upon them. Right from the Constitutional provision and
prohibition. The Apex Court has carved out an exception to the
Constitutional scheme and has allowed appointment in public services on
compassionate ground. The Central and State government as well as
several public sector undertakings framed relevant rule on the basis of from
judicial pronouncement.
The Supreme Court has discussed various pros and cones of
compassionate appointments and has also provided control on such
appointments. As per convenient, we have analyzed all the related cases on
the bases of heading-wise.
Judicial Control and Restraint on Compassionate Appointment
No Delay
Apex Court in Sushma Gosain v. Union of India,1 observed that in
all claims of appointment on compassionate grounds, there should not be
any delay in appointment. The purpose of providing appointment on
compassionate ground is to mitigate the hardship due to death of the bread
earner in the family. Such appointments should, therefore, the provided
immediately to redeem the family in distress.
1 Sushma Gosain v. Union of India, (1989) 4 SCC 468.
166
Compassionate appointment is not a vested right.
In Shankar Singh v. The Principal Secretary & others,2 it was
pointed out "Compassionate appointment is not reservation for all time to
come and the same is not vested right."
In this case employee died on 17.07.1985 while in service. In 1988
son of the employee filed writ petition wherein direction was issued by the
High Court to consider his claim rejected on 08.010.1998. Present writ
petition against the rejection order. Held that in spite of the death of sole
bread earner in the family, the petitioner has survived for more than 20
years, therefore there is no necessity to show favour to the petitioner. The
court held aforesaid view i.e., compassionate appointment is not
reservation for all time to come and the same is not a vested right.
Compassionate Appointment cannot be claimed as matter
of Right
In State of Jammu & Kashmir v. Sajad Ahmad Mir,3 the Hon'ble
Apex Court, has taken the view that "compassionate appointment cannot be
claimed as matter of right and when matter was taken up 15 years period
had already passed from the date of death & said fact was relevant &
material fact that family survived in spite of the death of employee.
In para II of the aforesaid judgment it was said that when the
Division Bench of the High Court has considered the case of the applicant
holding that he had sought "Compassion", the Bench ought to have
considered the large issue as well, it is that such as an appointment is an
exception to the general rule. Normally, an employment in Government or
2 (2007) UPLBEC 256. 3 2006 AIR SCW 3708.
167
other Public Sectors should be open to all eligible candidates who can
come forward to apply & compete with each other. It is in consonance with
Article-14 of the Constitution. On the basis of competitive merits an
appointment should be made to Public Office. This general rule should not
be departed expect where compelling circumstances demands such as,
death of the sole bread earner & likelihood of the family suffering because
of the set back.
Once it is proved that in spite of death of the bread earner, the
family survived & substantial period is over, there is no necessity to say
"goodbye" to normal rule of appointment & to show favour to one at the
cost of interests of several, ignoring the mandate of Article-14 of the
constitution.
Compassionate Appointment should be provided if there is
a Scheme regarding it
In Phoolwati v. Union of India,4 the Court has said that the fact that
ward was a minor at the time of death of his father is no ground unless the
scheme itself specifically envisages otherwise, to the state that as and when
such minor become a manor he can be appointed without any time
consciousness or limit.
In Director of Education (Secondary) v. Pushpendra Kumar,5 it was
observed by the Apex Court that in the matter of compassionate
appointment there can't be insistence for a particular post. Out of purely
humanitarian consideration & having regard to the fact that unless some
source of livelihood is provided, the family would not be able to make both
ends meet. 4 (1991) 2 SCC 689. 5 (1998) 5 SCC 192.
168
Provisions are made for giving appointment to one of the
dependants of the deceased who may be eligible for appointment. Care has
however to be taken that provision for ground of Compassionate
Employment which is in the nature of an exception to general provisions
doesn't unduly interfere with the right of those other persons who are
eligible for appointment to seek appointment against the post which would
have been available, but for the provision enabling appointment made on
compassionate grounds of the dependant of the deceased employee.
In State of U.P. v. Parasnath,6 it was held that the purpose of
providing employment to the dependant of a government servant dying in
harness in preference to anybody else is to mitigate hardship caused to the
family of the deceased on account of his unexpected death while in service,
to alleviate the distress of the family. Such appointments are permissible on
compassionate grounds provided there are rule providing for such
appointments.
Basis of Compassionate Appointment
Financial condition of the family of deceased employee who died in
harness is main criterion under the scheme.
In State Bank of India & others v. Jaspal Kaur,7 the question was
whether deceased left family in penury & without any means of livelihood.
Bank employee died in harness in 1999. He left behind his window,
twin daughter aged 16 years and a son aged 8 years. Total monthly income
of the family after death of the employee was assessed to Rs. 5855.00. The
widow filed application for compassionate appointment in 2000.
6 (1998) 2 SCC 412. 7 (2007) 2 SCC (L&S) 78.
169
Competent authority took the view that deceased's family was not in
penurious condition & accordingly declined compassionate appointment. It
was held that the court should not disturb the objective finding of the
competent authority specifically constituted for that purpose.
The compassionate employment has to be granted in very
rare necessities circumstances.
In Union Bank of India v. M.T. Latheesh,8 in this case, Union Bank
of India scheme for appointment of dependants of deceased employees on
compassionate ground 1997 clas. 2 (c) & 4 : Claim to compassionate
employment made contrary to the provisions of the scheme on the ground
that several such appointments had already been made claim and pleading
the denial of compassionate employment to him would therefore violate
Art. -14 of the Constitutions of India.
Rejecting the said plea, the court held that Article 14 could not be
extended to legalize illegal order notwithstanding that in certain stray cases
such orders had been passed earlier i.e.,
Ref. : 1 Harpal Kaur Chahal v. Director Punjab Instruction,9
2 Gurushran Singh v. NDMC,10
It is settled law that the compassionate employment has to be
granted in very rare necessities circumstances. The appellant Bank in order
to reduce individual human desecration had formulated a scheme for
employment on compassionate grounds in terms of the judgment of this
court in Umesh Kr. Nagparl v. State of Harayana.11
8 (2006) SCC (L&S) 1646. 9 (1995) 4 SCC 706 10 (1996) 2 SCC 459. 11 (1994) 4 SCC 138.
170
The scheme provides that the compassionate employment is meant
only for cases where the bereaved person's family is in grave penury.
While considering such appointment the competent authority will take into
account the following to determine the financial condition of the family: -
(a) Family Pension, (b) Gratuity, (c) employee's / Employer's contribution
to the P.F. (d) Any compensation paid by Bank or its welfare fund, (e)
Proceeds of LIC policy & other investments of the deceased employees (f)
Income for family from other sources, (g) Employment of other family
members (h) Size of the family & liabilities if any etc.
No Benefit to dependants of Persons retiring on the ground
of medical unfitness (Compassionate Ground)
In State of Haryana & others. v. Suraj Bhan,12 the Supreme Court
has said that, the rule of compassionate appointment are inapplicable to a
driver who was disable in sight to drive heavy vehicles & that, therefore
compassionate appointment to the son of such disabled driver can't be
made.
No Jurisdiction of Tribunal to order appointment when there is no
vacant post.
In H.P.R.T.C. v. Dinesh Kumar,13 in the absence of a vacancy it is
not open to the corporation to appointment person to any post. It will be
gross abuse of the Power of a public authority to appoint persons when
vacancies are not available. If persons are so appointed & paid salaries, it
will be a where misuse of public funds which totally unauthorized.
12 (1996 ) 8 SCC (L& S) 71. 13 AIR 1996 SC 2226.
171
Seeking appointment on Compassionate after attaining
majority
In Jagdish Prasad v. State of Bihar & others,14 the Apex Court held
that the very object of appointment of a dependant of the deceased
employee who die in harness is to relieve unexpected immediate hardship
& distress caused to the family by sudden demise of the earning member of
the family. In the instant case since the death occurred way back in 1971,
in which year the appellant was four year old, it cannot he said that he is
entitled to be appointed after he attained majority long thereafter.
In other words, if that contention is accepted, it amounts to another
mode of recruitment of the dependant of deceased Government servant
which cannot be encouraged, dehors the recruitment rules.
No Right to be appointed on a post of choice
In State of M.P. v. Ramesh Kr. Sharma,15 in this case the
respondent's father Shri J.P. Sharma, who was a constable, died in 1978. In
1981, the respondent applied for appointment as Sub-Inspector on
compassionate ground. The matter was examined at several levels &
ultimately the post of LDC was offered to the respondent, which he did not
accept.
The Court held that the Respondent has no right to any particular
post of his choice; he can only claim to be considered for the post. It would
ultimately be for the authority to decide.
14 (1996) 1 SCC 301. 15 (1995) 4 SCC (L&S) 19
172
Whether death of Government Servant must occur while
discharging duties in the course of employment in order to
claim compassionate appointment.
In Rajesh Kumar v. State of U.P. & Others,16 claim of the petitioner
for compassionate appointment was rejected on the ground that his father, a
police constable died in a road accident while travelling by a matador,
therefore, his death cannot he said to have occurred in the course of
employment.
Allowing the petition held that Rule 5 of U.P. recruitment of
dependent of Government Servants Rule, 1974 no where requires that
death must occur while discharging duty, however the only requirement is
the Government servant must be in service at the time of death & the father
of the petitioner was in service at the time of his death thus the impugned
order is erroneous – SPP, Manipuri, was directed to reconsider the matter
& pass appropriate order is the light of the observation of the court & in
accordance with law.
No Direction appointment even on compassionate Ground
can be granted on Promotional Post
In Jagpal v. D.I.OS., Basti & others,17 in this case, the brief facts
was petitioner appointed on promotional post the senior most class IV
employee, duly qualified and eligible claimed appointment on the post of
Assistant clerk, a promotional post – instead of deciding the claim of the
petitioner fifth respondent was granted compassionate appointment on the
said post.
16 (2007) UPLBEC (Sum) 16. 17 Id at 31.
173
Allowing the petition, held, that no direct appointment even on
compassionate ground can be made on a promotional post if an eligible
candidate is available thus the Committee of Management & DIOS both
were bound to appoint the petitioner. Further, court held that since the 5th
respondent was appointed on the supernumerary post, he will continue on
the post or may be adjusted on some other post in the city & till such
arrangement, he will continue to receive salary.
Second Compassionate Appointment is permissible on the
death of the Compassionate appointee
In Suman Kumari v. State of U.P. & Others,18 the brief facts was
father died-in-harness-subsequently petitioner's mother was given
appointment under dying –in-harness rules. There was a rule under U.P.
Recruitment of Dependants of Government Servants (Dying –in-Harness)
Rules, 1974, Section -5. The mother of the petitioner also died in harness
the petitioner, who was minor at the time of death of his mother, applied
for compassionate appointment within five years of death of his mother.
Respondent rejected the claim of the petitioner on the ground that
once compassionate appointment was given to his mother on the death of
his father, no second compassionate appointment is permissible on the
death of the compassionate appointee.
Allowing the writ of the petitioner, matter remitted back for fresh
order on the ground that all the facilities are also admissible to
compassionate appointee on her being a Government Servant. As such the
petitioner was held entitled to be given appointment under Dying-in-
Harness Rule.
18 (1994) 6 SCC 140.
174
The court held that, once the petitioner's mother is appointed under
the Dying in-Harness Rules, she became a Government employee & all
matters relating to the employment which would include salary, increment
promotion, leave, gratuity, pension, including appointments to her heirs
under the dying-in-harness rule would become applicable.
The object of compassionate appointment is to enable the
penurious family of the deceased employee to tide over
sudden financial crisis and not to provide employment.
In Umesh Chandra Nagpal v. State of Haryana,19 the court held that
this is because as a rule appointment in public service should be made
strictly on the basis of open invitation of applications and neither other
mode of appointment nor any other consideration is permissible. However,
to this general rule which is to be followed strictly in all cases of public
appointment, there are certain exceptions carried out in the interest 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
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 employee who may
be eligible for such employment. So, the whole object of granting
compassionate appointment is to enable the family to tide over the sudden
crisis.
19 (1994) 4 SCC 138
175
Mere death of an employee not sufficient to entitle the
dependant of the family for compassionate appointment.
In Umesh Chandra Nagpal v. State of Haryana,20the Supreme
Court held that the Government or the public authority concerned has to
examine the financial condition of the family, and it is only when 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 Supreme Court has cautioned that it must be remembered
that as against the destitute family of the deceased, there are millions of
other families, which are equally, if not more, destitute. It is, therefore,
pointed out by the Supreme Court.
In Director of Education Secondary v. Pushpendra Kumar21 the
court held that the exception to the general rule that all appointments in
public service shall be made strictly on the basis of open selection on
merits is made in favour of the family of the deceased employee in
consideration of the services rendered by him and the legitimate
expectations and changes in the status and affairs of the family engendered
by erstwhile employment which are suddenly upturned. The Supreme
Court also indicated that the compassionate appointment cannot be granted
after a lapse of reasonable period if that be so, it must be specified in the
rules and the object being to enable the family to tide over the financial
crisis which it faces because of the sudden death of the sole bread earner,
the compassionate employment cannot be claimed and offered after long
lapse of time more so, when the crisis is over, it is because, the
consideration of such employment is not the vested right which can be
20 Id. at 151. 21 (1998) 5 SCC 192
176
exercised at any time in future.
Compassionate appoints to be in consonance with rules
In case of State of Haryana v. Chandra Narain Verma,22 the
Supreme Court has made it clear that compassionate appointment cannot
be made de hors the rules. The respondent claimed compassionate
appointment for the post of sub-Inspector in Rajasthan Police on the death
of father dying in harness, he having crossed the upper age limit for the
appointment to such post even after relaxation of age as provided in the
rules was found ineligible for appointment as Sub-Inspector of Police and
has been offered the post of Lower Division Clerk, however, he persisted
in his demand for appointment as Sub-Inspector of Police and moved the
High Court under Article 226 of the Constitution challenging the
appointment given to him as a LDC. The High Court issued direction to the
Government to give him the appointment of Sub-Inspector and the
Government had to give him such appointment under pressure of contempt
proceedings pursuant to the High Court Judgment. The Supreme Court in
appeal held that the High Court had erred in issuing direction to the State
Government to give appointment to the respondent de hors the rules and
cannot issue such direction regardless of the rules of recruitment.
Compassionate appointment in Class III or Class IV
posts-only.
In case of Umesh Chandra Nagpal v. State of Haryana23, the
Supreme Court held that the posts in Class III and Class IV are non-manual
and manual categories and hence they alone can be offered for
22 (1994) 2 SCC 752 23 (1994) 4 SCC 138
177
compassionate appointment, the object being to relieve the family of the
financial destitution and to help it to 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 and the favour being
given to the dependant of the employee dying-in-harness on such posts has
the rational nexus with the object sought to be achieved i.e. relief against
destitution. The Supreme Court has, therefore, held that no other posts are
expected or required by the public authorities' for the purpose, and that
offering compassionate appointment as a matter of course irrespective of
the financial condition of the family of the deceased and making
compassionate appointments on posts above Class III and Class IV posts is
legally impermissible.
In the State of M.P. v. Ramesh Kumar Sharma,24 the respondent
was offered the post of Lower Division Clerk on his prayer for
compassionate appointment, but he refused and claimed the post of A.P.P.
Grade II for which he had the requisite qualification. It has been held by
the Supreme Court that under the rules of compassionate appointment, the
respondent had no right to any particular post of his choice and he can only
claim to be considered for the post. Moreover, even if in an earlier occasion
the Government gave compassionate appointment to the post of A.P.P.
Grade II that could be no ground for claiming such post by the respondent.
The Supreme Court has observed that mistake committed by the
Government in giving compassionate appointment earlier to a dependant to
the post of A.P.P. Grade II can be no ground for the Government in
repeating the same mistake by offering compassionate appointment to a
dependant to a post above the rank of Lower Division Clerk and the State
24 (1994) Supp. 3 SCC 661
178
cannot be permitted to commit the same mistake. In another decision, the
Supreme Court has trend the plea of discrimination in rejecting the claim of
the dependant son as a teacher and as Inspector/Assistant Sub-Inspector of
Police after he had been offered a post of Clerk and joined the post without
objection. In that case the widow of the Government employee dying-in-
harness in accordance with Government instruction sought for
compassionate appointment of her son as Clerk and the Government
acceded to the request and appointed him as Clerk to which post he joined
without protest. The mother thereafter renewed the prayer for her son's
appointment as a teacher or as Assistant Sub-Inspector of Police and the
request was turned down by the Government. The plea was taken that in
other cases such request for appointment as teacher was given and the
refusal was discriminatory. The High Court entertained the writ petition
and directed the Government to consider his prayer afresh. The Supreme
Court in appeal of State Government had turned down the plea of
discrimination and has held that without proper finding regarding
discrimination on positive facts the plea should not be entertained. It is also
held that the Selection Board rejected the claim on the ground of lack of
requisite qualification and that the post of Assistant Sub-Inspector of Police
is a promotional post and cannot be offered to the candidate in view
of State of Haryana v. Naresh Kumar Bali,25 The Supreme Court has made
it clear that compassionate appointment cannot be insisted upon for a
particular post.
25 (1994) 4 SCC 448
179
Compassionate appointment based on descent- not
permissible.
In case of Auditor General of India v. G. Ananta Rajeswara Rao,26
Government of India O.M.No.1401/1/77 Esstt.(D), dated 25th November
1978 has made provision for compassionate appointment to son, daughter
or widow of Government servant who died in harness but over and above it
made further provision for compassionate appointment for "near relative".
The validity of the said O.M. came up for challenge before the Supreme
Court. The Supreme Court has observed that the appointment on
compassionate ground to a son, daughter or widow to assist the family to
relieve economic distress by sudden demise in harness of the Government
employee is valid because this is not on the ground of descent simplicitor
but exceptional circumstances exist to provide for such compassionate
appointment. It cannot be a rule to take advantage of the Memorandum to
appoint persons to the posts on the ground of compassion, that the
provision in the O.M. that the appointment on compassionate grounds
would be not only to a son, daughter or widow, but also to a near relative
was vague and undefined, that the O.M. has enumerated all the
eventualities to avoid appointment on regular basis, that these enumerated
eventualities would be the breeding ground for misuse of appointments on
compassionate ground, that Articles 16(3) to 16(5) provided exceptions but
further exceptions must be on constitutionally valid and permissible
grounds and that the appointment on the ground of descent clearly violates
Article 16(2) of the Constitution. So, the Supreme Court has directed that
the O.M. be circumscribed with suitable amendment to the Memorandum
limiting it to relieve the members of the deceased employee dying-in-
26 AIR 1994 SC 1521; (1994) 4 SCC 448
180
harness from economic distress.
Circumstances which negative necessity of compassionate
appointment.
In case of Union of India v. Bhagwan Singh,27 the railway servant
died leaving his widow, his two major sons and a minor son aged twelve
years and application for compassionate appointment for the youngest son
had been made twenty years after the death of the railway servant and the
same has been refused. The respondent then made an application before the
Central Administrative Tribunal against such refusal and the Tribunal
directed the authority to consider his case and if found fit to provide him
with employment. The Supreme Court in appeal of Union of India has set
aside the order of the Tribunal by observing that the plea for compassionate
appointment is not to enable the family to tide over the sudden crisis or
distress which resulted long ago, that at the time the railway employee died
there were two major sons and the mother who were apparently capable of
meeting the needs of the family and so did not apply for any job on
compassionate ground that for nearly twenty years, the family has pulled
on apparently without any difficulty and that in this background the
Tribunal must be held to have acted illegally and without jurisdiction in
directing the authorities to consider the case of the respondent for
appointment on compassionate ground and to give him appointment if
found suitable.
Marital status of girl no bar for compassionate
appointment28
"If marriage is not a bar in the case of son (to be employed under 27 (1995) 6 SCC 476 28 The New Indian Express published date 03 July, 2012.
181
compassionate grounds), the same yardstick shall be applied in the case of
daughter also”, noted Justice D Hariparanthaman, while directing
Thoothukudi district administration and State Revenue Department to
consider the plea of a petitioner, without reference to the marital status.
In this case, on November 1, 2012, the petitioner, S
Murugaboopathy, from Kovilpatti taluk in Thoothukudi district, applied for
compassionate employment after her father’s death. Her father, who was
employed as a village assistant in Kovilpatti, died on August 19, 2010, and
is survived by his wife and three daughters, who were married at the time
of his death. Murugaboopathy is the eldest of his daughters.
The tahsildar of Kovilpatti taluk in an impugned order rejected the
petitioner’s application on the grounds that she was already married at the
time of her father’s death and hence she was not entitled for compassionate
appointment.
Thoothukudi Collector, in a counter filed at the court, cited a
Government Order passed in August 3, 1977, by the Labour and
Employment Department, according to which, married daughters of
deceased government employees are not eligible for compassionate
appointment.
Another Government Order passed by the Labour and Employment
Department in August 30, 2007, allowed married daughters of deceased
government employees to enjoy the benefits of compassionate
employment, if the marriage takes place after they submit applications
seeking compassionate appointments.
Under both the government orders, the petitioner was not entitled to be
employed under compassionate grounds, the Collector’s counsel
182
contended.
Justice Hariparanthaman, after hearing the contentions, noted that
there could be no different yardsticks for sons and daughters to seek
employment under compassionate grounds.
“If a married daughter is given compassionate appointment and she
undertakes to safeguard the interest of the family of the deceased
government servant, such compassionate appointment is in order, as per the
GO passed in 2007”, the Judge noted.
After noting that a child, whether a son or a daughter, is lawfully
obliged to take care of their parents in old age, the Judge held that there
cannot be any unequal treatment among children based on sex, in case of
the death of their parents.
The Judge also quashed the impugned order of the tahsildar of
Kovilpatti taluk, with directions to Thoothukudi district administration and
State Revenue Department to consider Murugaboopathy’s application,
without reference to her marital status, and pass appropriate orders in eight
weeks
Appointment of Women Permissible
In Smt. Sushma Gosain And Ors. vs Union Of India,29 the brief of
facts of this case was Mr. Ram Kumar was working as Storekeeper in the
Department of Director General Border Road (DGBR). In October 1982,
he died in harness leaving behind the appellants. Appellant No. 1-Sushma
Gosain is his widow and appellant Nos. 2 and 3 are their minor children.
In November 1982, Sushma Gosain sought appointment in DGBR
as Lower Division Clerk on compassionate grounds. In January 1983, she 29 AIR 1989 SC 1976
183
was called for the written test and later on for interview. She was said to
have passed the trade test. But nonetheless she was not appointed.
Whenever she approached DGBR, she was told that her case was under
consideration.
In September 1985, Sushma Gosain filed writ petition in the High
Court of Delhi for a direction against DGBR to appoint her in a suitable
post. She was entitled to appointment in terms of Government
Memorandum O.M. No. 14034/1/77/Estt. (d) dated 25.11.1978 issued by
the Ministry of Home Affairs. DGBR however, resisted the writ petition
with a primary contention that the appointment of ladies in the
establishment was prohibited. In support of the contention, DGBR relied
upon a notification dated January 25, 1985 issued by the Central
Government under Sub-sections (1) and (4) of Section 4 of the Army Act,
1950. The DGBR however, mercifully stated that it approached other
departments to get an employment to Sushma Gosain in order to mitigate
her hardship, but every one regretted. Interestingly, it was also stated that if
Sushma Gosain nominates a male member of her family, he could be
considered for appointment. This was not without the knowledge that she
has only a minor son. The High Court dismissed the writ petition by a brief
order which reads as under :
"An affidavit has been filed on behalf of the respondents setting out all the
relevant facts and the attempts made by them to provide employment to the
petitioner. It is apparent from the said affidavit that it has not been possible
to do anything for the petitioner."
Counsel for the petitioner has told to Supreme Court that her client
is not able to provide the name of a male relation to whom employment
could be offered. In these circumstances, even this alternative is not
184
possible, and the apex Court cannot give any relief to the petitioner, this
petition is dismissed. After that the appellants filed appeal before the
Supreme Court.
Supreme Court heard counsel on both sides and gave our anxious
consideration to the Problem presented. It seems to us that the High Court
has made the order in a mechanical way and if we may say so, the order
lacks the sense of justice. Sushma Gosain made an application for
appointment as Lower Division Clerk as far back in November 1982. She
had then a right to have her case considered for appointment on
compassionate ground under the aforesaid Government Memorandum. In
1983, she passed the trade test and the interview conducted by the DGBR.
There is absolutely no reason to make her to wait till 1985 when the ban on
appointment of ladies was imposed. The denial of appointment is patently
arbitrary and cannot be supported in any view of the matter.
The Supreme Court considered that it must be stated unequivocally
that in all claims for appointment on compassionate grounds, there should
not be any delay in appointment. The purpose of providing appointment on
compassionate ground is to mitigate the hardship due to death of the bread
earner in the family. Such appointment should, therefore, be provided
immediately to redeem the family in distress. It is improper to keep such
case pending for years. If there is no suitable post for appointment
supernumerary post should be created to accommodate the applicant.
In the result, the Supreme Court allow the appeal and in reversal of
the order of the High Court, the Supreme Court direct respondent No. 2 to
appoint Sushma Gosain - appellant No. 1 in the post to which she has
already qualified. the Supreme Court further direct that she shall be
appointed in an appropriate place in Delhi itself.
185
Widow provided with compassionate appointment and the
prayer of brother not to be allowed.
In State of Manipur v. A. Ongbi Memcha Devi,30in this case when
the employee died during service period his widow prayed for
compassionate appointment and was given such appointment. During the
continuance of the appointment of the widow the brother of the deceased
claiming to be the dependant also prayed for compassionate appointment.
It was held by the Supreme Court that subsequent claim of the brother is
impermissible and must be refused and that the brother cannot claims to be
the dependant of the deceased to claim compassionate appointment.
Compassionate appointment to the dependant of casual or
ad-hoc employee or apprentice
In State of Haryana v. Rani Devi,31 in this case on the basis of the
Haryana State Government Circular dated 31st October, 1985 providing for
compassionate appointment, one of the dependants of the deceased
employee dying-in-harness applied. The question arose before the Supreme
Court if the said provision would be attracted when a casual or ad hoc
employee or an apprentice died-in-harness. In that case, the claim of widow
of the deceased apprentice Canal Patwaris was turned down by the State
Government on the basis of the definition of "employee" given in Chapter
II, Para 2.6. Punjab Civil Service Rules as in force in the State of Haryana
when the widows of the deceased apprentices moved the High Court under
Article 226 of the Constitution direction was issued for the appointment of
the respondent widows on compassionate ground even though the
respective husbands of the respondents were working as apprentice Canal 30 (1995) 4 SCC 210. 31 AIR 1996 SC 2445: 1996 SCC 308
186
Patwaris, however, the Supreme Court did not approve the verdict of the
High Court and has been held that the claim for compassionate
appointment was based on the ground that the claimant was a dependant of
a deceased employee, even though strictly this claim cannot be upheld on
the touchstone of the Articles 14 and 16 of the Constitution, but the
Supreme Court has upheld this claim as reasonable and permissible on the
basis of sudden crisis occurring in the family of such employee who has
served the State and dies while in service and that is why, it is necessary
for the authorities to frame rules, regulations or to issue such administrative
order which can stand the test of Articles 14 and 16 of the Constitution,
however, the Supreme Court has construed the Government Order dated
31st October, 1985 and has held that the said order extends the benefit of
the appointment to one of the dependants of the deceased employee, but
such expression does not conceive casual or purely ad hoc employee or
apprentice. The Supreme Court has also found that the expression
'employee' in the Punjab Civil Service Rules as in force in the State of
Haryana, does not include the casual or purely ad hoc employee or
apprentice and consequently the High Court should not have directed the
appointment of the respondent widows on compassionate ground when
admittedly the respective husbands of the respondents were working as
apprentice Canal Patwaris. The Supreme Court has also pointed out if the
scheme of compassionate appointment of the State Government is
extended to all sorts of casual or ad hoc employee including those who are
working as apprentice, then such scheme cannot be justified on the
constitutional ground.
187
Dependant of Work Charged employee under Die-in-
Harness Scheme of Manipur.
In State of Manipur v. Thingujam,32 in this case on construing the
provisions of Die-in-Harness Scheme, Manipur 1984, Para 3 as substituted
by corrigendum dated 8th May 1984 and amended by O.M. dated 31st
August, 1992, the Supreme Court has held that such scheme of Manipur
continues to be inapplicable to Work Charged employee and his
dependants are not entitled to the benefit of the compassionate appointment
there under. It was urged before the Supreme Court that the Work Charged
employee when confirmed is entitled to be eligible to get the benefit of the
said scheme. The Supreme Court has negatived that plea and has held that
when the Work Charged employee has been excluded from the purview of
the said scheme, them the status of such Work Charged employee is not
changed even after his confirmation.
No time-limit for making the claim-if belated petition
entertain able.
In Haryana SEB v. Naresh Kanwar,33 Ex-employee of Haryana
State Electricity Board died during the minority of his sons and his sons on
staining majority 12 or 13 long years respectively after death claimed
compassionate appointment. Under the scheme of the Government
prevalent at that time on the employee's death, there was no time limit for
making such a claim. The High Court in writ petition directed the Board to
allow their claims. The Supreme Court while setting aside the order of the
High Court held that the High Court order allowing the claim at a deleted
stage is not sustainable because compassionate appointment cannot be 32 AIR 1996 SC 2124: (1996) 9 SCC 29 33 (1996) 8 SCC 23
188
granted after a long lapse of reasonable period and very purpose is intended
to meet the immediate financial problem being suffered by the members of
the deceased family and such consideration cannot be kept pending for
years. Allowing the appeal of the State Electricity Board and setting aside
the order of the High Court, the Supreme Court has, however, observed
that the claimants are not precluded from making representation for
consideration of their cases giving full details of the circumstances and
economic conditions of the family.
High Court or Tribunal cannot direct the authority to
create supernumerary post to make appointment on
compassionate ground.
In Hindusthan Aeronautes Ltd. v. A. Radhika Thimmalai,34 when the
application has been submitted for compassionate appointment before the
Hindustan Aeronautics Ltd. under the Compassionate Appointment Rules
framed by the public undertaking and the application has been rejected on
the ground that there was no vacancy and a ban on fresh recruitment was in
operation as there was surplus labour. The applicant moved the High Court
under Article 226 of the Constitution. The High Court directed to consider
the candidature of the applicant and to give her compassionate appointment
by creating a supernumerary post. The Supreme Court in appeal has held
that such a direction by the High Court in the circumstances of the case is
not proper. It was not disputed that the public-undertaking in question has
framed the rules for compassionate appointment, but such rules are subject
to the availability of the vacancy. It is also observed that when the
respondent applied for compassionate appointment, there was no vacancy
and there was a ban on fresh recruitment as there was a surplus labour the 34 (1996) 6 SCC 394: AIR 1997 SC 123
189
work-force was being reduced and the incentives were offered for
voluntary retirement. In view of the above position, the Supreme Court has
held that the order of the High Court to consider the candidature of the
respondent and to give her an appointment by creating a supernumerary
post is improper. The Supreme Court has observed that when there is a ban
on recruitment and no vacancy was available, it was not proper for the
High Court to direct the authorities to give the respondent's appointment by
creating a supernumerary post.
Similar view has been taken by the Supreme Court in Himachal
Pradesh Road Transport Corporation v. Dinesh Kumar,35 In that case,
even though the Himachal Pradesh Road Transport Corporation has "kith
and kin" policy for giving appointment on compassionate ground for the
employees dying-in-harness, but the prayer for the sons of the deceased
employee of the Corporation was turned down on account of non
availability of the vacant posts. The aggrieved claimant moved the
Administrative Tribunal challenging such order seeking a direction to give
him compassionate appointment to the post of the clerk. The Tribunal
directed the Corporation to appoint the claimant in the regular clerical post
forthwith or to create a supernumerary post to accommodate him. The
Supreme Court has held that such an order is illegal and without
jurisdiction and that in the absence of a vacancy it is not open to the
Corporation to appoint a person to any post and it will be gross abuse of
the powers of the public authority to appoint persons when vacancies are
not available and persons are so appointed and paid salary, it will be mere
misuse of public fund which is totally unauthorized. In view of the above
position, the Supreme Court has observed that even if the Tribunal finds
35 AIR 1996 SC 2226 : (1996) 4 SCC 560
190
that a person is qualified to be appointed to a post under the "kith and kin"
policy, the Tribunal should give a direction to the appropriate authority to
consider the case of the particular applicant in the light of the relevant rules
and subject to the availability of the post and that it is not open to the
Tribunal either to direct the appointment to any person to a post or direct
the authorities concerned to create a supernumerary post and then appoint a
person to such post.
Policy decision of the Government to appoint candidates on
compassionate ground in Class IV posts only irrespective of
their qualifications- if can be challenged.
State of Bihar v. Samsuz Joha,36
A policy has been framed by the State of Bihar to appoint all the
candidates seeking appointment on the compassionate ground to appoint
them in Class IV posts irrespective of their qualifications and twelve posts
have been made available in Class III as reserved for appointment by
promotion from the Class IV candidates who are entitled thereto as per the
rules. But several dependants of the deceased employee challenged such
policy decision and moved the High Court under Article 226 of the
Constitution forwarding the claim to give them appointment to Class III
posts as they had the requisite qualifications for the same. The High Court
passed an order directing them to be appointed in Class III posts. The State
Government has moved the Supreme Court in appeal by special leave. The
Supreme Court has set aside the order of the High Court. It is held that
there is no right vested in the candidates for particular appointment on
compassionate ground, that the State had taken a policy decision to appoint
36 AIR 1996 SC 1961 : (1996) 4 SCC 546
191
all the candidates irrespective of the qualifications to Class IV posts and
twelve posts available in Class III were reserved for appointment by
promotion to the Class IV candidates who are entitled there to as per the
rules and that the principles adopted by the Government cannot said to be
unjustified or illegal. The Supreme Court has taken note that earlier some
candidates approached the Court and obtained order and in compliance
thereof at pain of contempt petition, the Government instead of appointing
them to Class IV posts upgraded the Class IV posts as Class III posts as by
then the Class III posts were not available and confirmed them as Class III
employees. But the Supreme Court has held that the said order which was
wrongly made by the High Court cannot be a base to issue directions in
future, and that if the directions of the High Court as made in this case are
complied with, all the Class IV posts would be converted into Class III
posts which is against the discipline of the service and consequently the
High Court was not justified in issuing direction in all cases for
appointment to the candidates for compassionate appointment in Class III
posts.
Scope of High Courts, and Tribunals' power to order
compassionate appointment.
In Life Insurance Corporation v. Asha Ram Chandra Ambekar,37 the
Supreme Court has held that the Courts cannot order appointment on
compassionate ground, dehors the provisions of the statutory regulations
and instructions. In that case, in view of the provisions in Clause 2(ii) of
1979 Instructions of the Life Insurance Corporation and Clause 4 of the
Circular dated 19th January, 1987 against the granting compassionate
appointment in a case where any member of the family was already
37 AIR 1994 SC 2148 : (1994) 2 SCC 718
192
employed, the Life Insurance Corporation refused the compassionate
appointment to the respondent No. 2. The respondent No. 2 moved the
High Court against such order and the High Court directed the Corporation
to give him such appointment. The Supreme Court has set aside that order
allowing appeal of the Corporation by a special leave. The Supreme Court
has held that the High Court and the Administrative Tribunals cannot
confer benediction impelled by sympathetic considerations, that Court shall
endeavour to find out whether a particular case in which sympathetic
considerations are to be weighed falls within the scope of law and whatever
the case it may be, nothing should be done in disregarding the law. The
Supreme Court has pointed out that in this case there are regulations and
instructions governing the matter that the Court below has not even
examined whether the case falls within the scope of the relevant statutory
provisions and that the appellant Corporation being a statutory Corporation
is bound by the Life Insurance Corporation Act as well as the statutory
regulations and instructions and cannot put aside the same and order
compassionate appointment. The Supreme Court has further pointed out
that the High Court should not have directed the appointment on
compassionate ground and should have merely directed the consideration
of the claim of the 2nd respondent because no mandamus should be issued
directing the authority to do a thing forbidden by law.
Similar view was expressed by the Supreme Court in case of State
of Haryana v. Naresh Kumar Bali,38 In that case as the respondent's claim
for giving an appointment to the post of Inspector of Police was not
acceded to on compassionate ground, he has moved the High Court under
Article 226 of the Constitution and the High Court issued the direction to
38 (1994) 4 SCC 448
193
appoint the respondent to the post of Inspector within three months when
direct recruitment is not available. The Supreme Court has held that the
High Court can only direct consideration of the writ petitioner's claim to
compassionate appointment in accordance with the rules and cannot itself
direct the appointment, more so, when the post in question was exclusively
a promotional one.
In Pepsu Road Transport Corporation v. Satinder Kumar,39 the
Supreme Court has also held that the High Court should not compel the
appointing authorities to appoint a person to a particular post possessing
merely a minimum qualification and should only direct the authority to
consider the appointment of the candidate to the post commensurate with
his qualification, therefore, when in that case, the High Court directed the
Corporation to appoint the respondent to the post of clerk only on the
ground that he possessed the minimum qualification for eligibility, namely,
Matriculation, the Supreme Court has modified the order of the High Court
in appeal by special leave. It was held that such order directing the
Corporation to appoint the respondent to the post of clerk only because he
possessed the miming qualification was not proper and the order of the
High Court has been substituted by the Supreme Court directing the
appellant Corporation to consider the case of the respondent for
appointment on compassionate ground commensurate with his
qualification
Dependents of 'employees' dying in harness40
A number of high courts in India, including the High Court of
Judicature at Allahabad, have taken a sympathetic view of the entitlement 39 (1995) Suppl. (4) SCC 597 40 An Article posted by Vipul Kharbanda , Advocate, Allahabad High Court, April
27, 2011 my law net.com.
194
of dependents of daily wagers or work-charge employees - a type of non-
permanent employee, paid on the basis of work completed - to
compassionate appointment by the state. The dependants of deceased
work-charge employees have been granted the benefit of compassionate
appointment, as demonstrated in a number of cases such as Smt. Pushpa
Lata Dixit v. Madhyamik Shiksha Parishad; 41 Maya Devi v. State of
U.P;42 State of U.P. v. Maya Devi ;43 Santosh Kumar Misra v. State of
U.P.,44 and Anju Misra v.General Manager, Kanpur Jal Sansthan,45.
However, due to lack of a clear government orders or regulation, the High
Court has taken divergent views on the matter, and the issue was referred
to a Bench of three judges to finally put the matter to rest.
The Full Bench of the Allahabad High Court in the case of Pawan
Kumar Yadav v. State of U.P.,46 was called upon to solve this vexed issue.
The main problem arose due to the definition of ‘Government servant’
provided in the U.P. Recruitment of Dependants of Government Servant
(Dying in Harness) Rules, 1974 promulgated under Article 309 of the
Constitution of India, 1950, as follows:
“(a) “Government servant” means a Government servant employed
in connection with the affairs of Uttar Pradesh who –
(i) was permanent in such employment ; or
(ii) though temporary had been regularly appointed in such
employment ; or
(iii) though not regularly appointed, has put in three years'
41 (1991) 18 ALR 591 42 Writ Petition No. 24231 of 1998 decided on 2.3.1998 43 Special Appeal No.409 of 1998 44 (2001) 4 ESC (Alld) 1615 45 (2004) 1 UPLBEC 201 46 (2011) 99 AIC 4 (Sum.) (Alld-F.B.)
195
continuous service in regular vacancy, in such employment.
Explanation- “Regularly appointed” means appointed in accordance
with the procedure laid down for recruitment to the post or service, as the
case may be…”
There is no apparent difficulty in ascertaining the nature of
employment for which the Rules are applicable: if the ‘Government
servant’ was permanent or is temporary and has been regularly appointed
in such employment - as the words ‘regularly appointed’ have been
explained to mean the appointment in accordance with the procedure of
recruitment for the post or service. The difficulty arises where a person has
not been regularly appointed, but has put in three years’ continuous service
in regular vacancy. The word ‘regular vacancy’ in such employment has
not been defined under the Rules.
The argument advanced for the petitioners claiming compassionate
appointment was that the petitioners were dependants of employees who
had been regularly appointed in regular vacancies and, in any case, most of
them had been entitled to regularisation after having served for more than
three years in regular vacancies. It was submitted that but for their untimely
death, these employees were eligible to be considered and regularised in
regular vacancies in the department. In respect of the employees working
in the work-charge establishment, it was submitted that it was only a matter
of time before those employees could be posted in the permanent work-
charge establishment, for claiming regular wages. They were in no manner
different, other than in the nature of appointment of employees, from those
who were regularly appointed in regular vacancies.
Therefore, it was argued that the State Government had caused
invidious discrimination in rejecting the applications of compassionate
196
appointment of the petitioners on the ground that they were not
‘Government servants’, as defined in Clause (a) of Rule 2 of the Rules. It
was contended that the definition was inclusive in nature, and would also
include the employees who were working for long periods and were
entitled to regularisation. The object of compassionate appointment in
respect of daily wagers and work-charge employees, it was argued, is no
less important than the object in giving employment to the employees of
permanent and temporary employees, who were regularly appointed or had
put in three years continuous service in regular vacancy. The petitioners
relied on the words “though not regularly appointed had put in three years'
continuous service in regular vacancy” to argue that these employees were
entitled to be included in the same category.
The Full Bench referred to the case of Uttaranchal Jal
Sansthan v. Laxmi Devi and Others, 47 where the Supreme Court had
discussed the term ‘regular vacancy’, as used in the U.P. Recruitment of
Dependants of Government Servant (Dying in Harness) Rules, 1974, as
follows:
“Indisputably having regard to the equality clause contained in
Articles 14 and 16 of the Constitution of India whether the appointment is
in a regular vacancy or not is essentially a question of fact. Existence of a
regular vacancy would mean a vacancy which occurred in a post
sanctioned by the competent authority… A regular vacancy is which arises
within the cadre strength… It is a trite law that a regular vacancy cannot be
filled up except in terms of the recruitment rules as also upon compliance
of the constitutional scheme of equality. In view of the explanation
appended to Rule 2(a), for the purpose of this case we would, however,
47 (2009) 2 SCC (L&S) 304
197
assume that such regular appointment was not necessarily to be taken
recourse to. In such an event sub-clause (iii) of clause (a) as also the
explanation appended thereto would be rendered unconstitutional… The
provision of law which ex facie violates the equality clause and permits
appointment through the side door being unconstitutional must be held to
be impermissible and in any event requires strict interpretation.”
Relying on this exposition of ‘regular vacancy’, the Full Bench held
that a daily wager and work-charge employee employed in connection with
the affairs of the State of Uttar Pradesh, who was not holding any post -
whether substantive or temporary - and was not appointed in any regular
vacancy, even if he was working for more than three years, would not be a
‘Government servant’; therefore, his dependants, on his death in harness,
would not be entitled to compassionate appointment under the Rules. In
light of the same, the Full Bench also held that the cases of Smt. Pushpa
Lata Dixit v. Madhyamik Shiksha Parishad,48 Smt. Maya Devi v. State of
U.P;49 State of U.P. v. Maya Devi ,50 Santosh Kumar Misra v. State of
U.P.,51 and Anju Misra v. General Manager, Kanpur Jal Sansthan,52
giving benefit of compassionate appointment to the dependants of daily
wage and work-charge employee had not been correctly decided.
Compassionate employment not to breach minimum
qualification: Supreme Court53
The Supreme Court has ruled that a candidate must satisfy minimum
eligibility criteria even for compassionate employment, thus, denying a 48 (1991) 18 ALR 591 49 Supra note 42. 50 Supra note 43. 51 Supra note 44. 52 Supra note 45. 53 Times of India Published on dated September 19, 2012 p.4.
198
peon's job to the son of a police assistant sub-inspector, who died in
harness.
"A person who does not possess the requisite qualification cannot
even apply for recruitment for the reason that his appointment would be
contrary to the statutory rules and would, therefore, be void in law," said a
bench of Justices B S Chauhan and F M I Kalifulla while allowing an
appeal by Gujarat government.
Arvind Kumar Tiwari's father was an ASI in Gujarat police. After
he died in 1999, Tiwari applied for employment on compassionate grounds
for the post of a peon. As he had studied up to Class 8, his application was
rejected but on the ground that his family was not in any financial distress.
However, Tiwari made a second application to the additional
director general of police, who ordered that the same be considered
ignoring the financial condition of the family. It was again rejected in 2005
when it was found that the applicant had only passed Class 7 as against the
minimum eligibility criteria of Class X needed for appointment to a peon's
post.
But the Gujarat High Court asked the police department to consider
Tiwari's appointment on compassionate grounds. The state appealed
against the order in the SC. The bench of Justices Chauhan and Kalifulla
said, "Compassionate appointment cannot be claimed as a matter of right.
It is simply not another method of recruitment. A claim to be appointed on
such a ground has to be considered in accordance with the rules,
regulations or administrative instructions governing the subject, taking into
consideration the financial condition of the family of the deceased.
"Such a category of employment itself is an exception to the
199
constitutional provisions contained in Article 14 (right to equality) and
Article 16 (right to equal opportunity in public employment), which
provide that there can be no discrimination in public employment."
The apex court differentiated between eligibility and qualification
for a post. "Eligibility connotes the minimum criteria for selection that may
be laid down by the executive authority/legislature by way of statute or
rules, while the term qualification may connote any additional norms laid
down by the authorities," it said.
Referring to Tiwari's case, the bench said he had failed in Class 8
and thus could be considered as Class 7th pass and hence, ineligible for the
post of peon. "We are of the considered opinion that since 1991, the
eligibility criteria for a Class IV post was set as passing of Class X and as
the respondent was unable to pass even Class 8, he was most certainly not
eligible to apply for the said post. In view of the legal bar, it is neither
desirable, nor permissible in law, for this court to issue direction to relax
the said eligibility criteria and appoint respondent merely on humanitarian
ground," the bench said.
Death Of Employee Does Not Entitle Family For Job
The Supreme Court (SC) has held that death of a government
employee in harness does not entitle the family to claim compassionate
employment and the person seeking appointment must possess the
eligibility for the post.
A bench of justices B S Chauhan and SA Bobde also said that the
competent authority should examine the financial condition of family of
the deceased and job should be offered to the eligible family member only
if it is satisfied that they would not be able to cope up with the crisis.
200
"Mere death of a government employee in harness does not entitle
the family to claim compassionate employment. The competent authority
has to examine the financial condition of the family of the deceased
employee and it is only if it is satisfied that without providing 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. More so, the person claiming such
appointment must possess required eligibility for the post," it said. The
bench allowed an appeal filed by MGB Gramin Bank which had
challenged a 2010 judgement of the Rajasthan High Court by which one
Chakrawarti Singh, son of a deceased Bank employee, was directed to be
appointed under a scheme of compassionate employment.
Singh's father, who was working as a Class III employee with the
Bank, had died on April 19, 2006 while in harness. Singh had applied for
compassionate appointment on May 12, 2006. The bench set aside the
judgments of the High Court, saying, "The reasoning given by the single
judge as well as by the division bench is not sustainable in the eyes of law."
It also said that "an ameliorating relief should not be taken as opening an
alternative mode of recruitment to public employment". The bench said
compassionate employment cannot be claimed as a "matter of right, as it is
not a vested right". It also said that every appointment to public office must
be made by strictly adhering to the mandatory requirements of Articles 14
and 16 of the Constitution. "An exception by providing employment on
compassionate grounds has been carved out in order to remove the
financial constraints on the bereaved family, which has lost its bread
earner," the bench said.
The Bank had said during pendency of Singh's application, a new
scheme dated June 12, 2006 came into force with effect from October 6,
201
2006 which provided that all applications pending on the date of
commencement of the scheme shall be considered for grant of ex-gratia
payment to the family instead of compassionate appointment.
This contention was rejected by the High Court which said the cause
of action, i.e. death of the employee, had arisen prior to the commencement
of the new scheme and, therefore, the case was to be considered as per the
then existing scheme which provided for compassionate appointment and
not for grant of ex-gratia payment. The apex bench also said that Singh
may apply for consideration of his case under the new scheme and the
Bank should consider his case in accordance with the rules of the scheme
within a period of three months from the date of receiving application.
In Indian Drugs & Pharmaceuticals Ltd. v. Devki Devi & Others,54
it was held that the appellant company did not have any rule or scheme for
compassionate appointment, case – laws shows that to alleviate the distress
of the family of the Government Servant dying-in-harness appointment is
permissible on compassionate grounds provided that there are rules
providing for such appointment.
"The undisputed position is that the appellant company does not
have any rule or schemes for compassionate appointment."
As observed in State of Haryana v. Rani Devi,55 it need not be
pointed out that the claim of the person concerned for appointment on
compassionate ground is based on the premise that he was dependant on
the deceased employee. Strictly this claim cannot be upheld on the
touchstone of Art. 14 or 16 Constitution of India. However such claim may
be considered as reasonable & permissible on the basis of sudden crisis
54 (2006) 1 SCC (L&S) 1169. 55 (1996) 5 SCC 308.
202
occurring in the family of such employee who has served the State while in
service.
That is why it is necessary for the authorities to frame rules,
regulation or to issue such administrative orders which can stand the test of
Article 14 & 16 of the Constitution.
"Appointments on compassionate ground cannot be claimed as a
matter of right. Die in harness scheme cannot be made applicable to all
types of posts irrespective of the nature of service rendered by the
increased employee."
In Rani Devi Case, it was held that a scheme regarding appointment
on compassionate ground if extended to all types of casual or adhoc
employees including those who worked as apprentices cannot be justified
on constitutional grounds.
In LIC of India v. Asha Reamchandra Ambedkar,56 it was pointed
out that the High Courts & the Administrative Tribunals cannot confer
benediction impelled by sympathetic considerations to make appointments
on compassionate ground when the regulations framed in respect there of
do not cover & contemplate such appointments.
It was noted in Umesh Kr. Nagpal v. State of Haryana,57 that as a
rule in Public Service, appointments should be made strictly on the basis of
open invitation of applications & merits.
"The appointment on compassionate grounds is not another source
of Recruitment but merely an exception to the aforesaid requirement taking
into consideration the fact of the death of the employee while in service
56 (1994) 2 SCC 718. 57 (1994) 4 SCC 138.
203
leaving his family without any means of livelihood."
"In such case the object is to enable the family to get over
sudden financial crisis. But such appointments on
compassionate ground have to be made in accordance with
the rules, regulations or administrative instruction taking
into considerations the financial condition of the family of the
deceased."
Strict view of Apex Court regarding compassionate appointment In
Union Bank of India v. M.T. Latheesh,58 which is a landmark case on this
point, in which judgment was pronounced by Apex Court by A.R.
Lakshmanan & Tarun Chatterjee (J.J.). In this case, it was held that grant
of employment on compassionate grounds in all cases, would shut the door
for employment for the increasing unemployed youth, more particularly
when the Industry was being asked to reduce the employee by offering
retirement schemes & scheme for compassionate employment required the
financial conditions of the family to be examined in accordance with the
norms specified therein.
"A dependant of a deceased employee of the Bank making an
application under the scheme for appointment of dependants
of deceased employee on compassionate ground, held does
not automatically become entitled to get compassionate
employment nor does the possession of relevant
qualifications created any Vested Right in his favour to get
preferential treatment against the General principle of
appointment subject to discretion of the Bank."
58 (2006) SCC (L&C) 1646.
204
"It is settled law that the compassionate employment has to be
granted in very rare necessitous circumstances."
In support of submission appellant advocate relied on the following
ruling.
(1) Umesh Kr. Nagpal v. State of Haryana,59 (2) G.M. (D& PB) v.
Kunti Tiwary,60 (3) Punjab National Bank v. Ashwini Kr. Taneja,61
No sympathetic considerations to make appointments on
compassionate ground
LIC of India v. Asha Ramchandra Ambedkar & another, 62 it was
indicated that High Courts & Administrative Tribunals cannot confer
benediction impelled by sympathetic consideration to make appointments
on compassionate grounds when the regulations framed in respect thereof
do not cover & contemplate such appointments.
In Umesh Kr. Nagpal v. State of Haryana & others,63 it was ruled
that public service appointment should be made strictly on the basis of
open invitation of applications and on merits. The appointments on
compassionate ground cannot be a source of recruitment. It is merely an
exception to the requirement of law keeping in view the fact of the death of
employee while in service leaving his family without any means of
livelihood. The object is to enable to family get over sudden financial
crisis.
59 (1994) 4 SCC 138 60 (2004) 7 SCC 271. 61 (2004) 7 SCC 265. 62 (1994) 2 SCC 718. 63 (1994) 4 SCC 138
205
Compassionate Appointment – Denial of on ground of non-
existence of vacancy
In Abhishek Kumar v. State of Haryana and other,64 it was held that
if the appellant agree to join anywhere in the State, he cannot the denied
employment due to non-exist of vacancy in particular district.
In Food Corporation of India and another v. Ram Kesh Yadav &
another,65 it was held, employer cannot be directed by court to give
compassionate appointment contrary to the scheme. Hence court cannot
relax any condition & hold it directory. However, on the peculiar facts of
this case, where in employee made a conditional offer to retire on medical
ground subject to the condition that his son was appointed in his place and
the employer accepted the condition in its entirety, compassionate
appointment directed to be given to retired employee's dependant.
In State Bank of India & another v. Somvir Singh,66 compassionate
appointment to dependant of the employee who died in harness was
governed by scheme, instruction or rules framed by employer. It was held
that dependants has no special or additional claims or Right to appointment
on compassionate grounds.
Compassionate Appointment only on eligible post:
In I.G. (Karnik) and others v. Prahalad Mani Tripathi.67case, the
court held that Compassionate Appointment cannot be granted to a post for
which the candidate is ineligible. Even though higher post was applied for
an compassionate appointments when a lower post offered considering
64 (2007) 2 SCC (L&S) 308. 65 Id at 559. 66 Id at 92. 67 Id at 417.
206
qualification & eligibility as per rules was accepted by the candidate, he
cannot later again claim appointment to the higher post. Person seeking
compassionate appointment to a post by invoking provisions for relaxation
of qualification must show that the authority is vested with such power,
provisions of scheme and rules for compassionate appointment must be
strictly followed.
Further court held that it must be in consonance with the
Constitutional Scheme of equality enshrined in Arts. 14& 16 exception
carved by Supreme Court such as for Police Department must be strictly
complied with Constitution of India, Arts, 14, 16, & 309. Compassionate
Appointment must be confined only to the purpose it seeks to achieve-idea
is not to provide for endless compassion. Public Employment is
considered to be a wealth. It in terms of the Constitutional scheme cannot
be given on descent. When such an exception has been carved out the
Supreme Court, the same must be strictly complied with.
An employee of the State enjoys a Status. Recruitments of
employees of the State is governed by the Rule framed Under a Statue or
the Proviso appended to Article 309 of the Constitution. In the matter of
appointment, the State is obligated to give effect to the constitutional
scheme of Equality as adumbrated under Art. 14 & 16. All appointment
therefore must conform to the said Constitutional scheme.
The Court, however while laying emphasis on said provision carved
out exception in favour of the children or other relatives of the officer who
dies or becomes incapacitated rendering service in Police Department.68
68 Yogendra Pal Singh v. Union of India, (1987) 1 SCC 631.
207
Past conduct of deceased employee is a relevant
consideration
General Manager, State Bank of India and Others v. Anju Jain,69
Compassionate appointment – past conduct of deceased employee is a
relevant consideration, if employee is indolent then his dependant are not
entitled for appointment on compassionate ground.
Compassionate appointment is a concession, not a right employer
can therefore decide be way of policy to refuse appointment to dependent
of a deceased employee who had been punished for misconduct, and such
refusal is neither a double jeopardy nor violation of natural justice.
Appointment on compassionate ground is never considered a right
of a person. In fact, such appointment is violative of rule of equality
enshrined and guaranteed under Article 14 of the Constitution. When any
appointment is to be made in government or semi-government or in public
office, cases of all eligible candidates must be considered alike. That is the
mandate of Article 14.
Normally, therefore the State or its instrumentality making any
appointment to public office cannot ignore such mandate. At the same
time. However, in certain circumstances, appointment on compassionate
ground of dependents of the deceased employee is considered inevitable so
that the family of the deceased employee may not starve.
The Primary object to such scheme is to save the bereaved family
from sudden financial crisis occurring due to death of the sole bread earner.
It is thus exception of the general rule of equality and not another
independent and parallel source of employment.
69 (2008) 2 SCC (L&S) 724.
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If disciplinary proceedings have been initiated against an employee
and the charges levelled against such employee are proved and he is
punished, it is indeed a relevant consideration for not extending the benefit
to a dependent of such employee on the ground that he was punished, it
cannot be said that it is a double jeopardy or a dual punishment.
Compassionate appointment is really a concession in favour of
dependents of a deceased employee's if during his career, he had
committed illegalities and misconduct is proved and he is punished, his
dependents cannot claim right to the employment. Such an action is not
violative of the principles of natural justice. Past conduct of an employee is
undoubtedly an important consideration. The appellant bank was right in
rejecting the respondent wife request observing the "unblemished service
record is implicit" and rejection was according to policy in force.
No insistence for any particular post
It has been observed that in matter of compassionate appointment
there cannot be insistence for a particular post. Out of purely humanitarian
consideration and having regard to the fact that unless some source of
livelihood is provided the family would not be able to make both ends
meet, provisions are made for giving appointment to one of the dependants
of the deceased who may be eligible for appointment. Care has, however,
to be taken that provision for ground of compassionate employment which
is in the nature of an exception to the general provisions does not unduly
interfere with the right of those other person who are eligible for
appointment to seeks appointment against the post which would have been
available, but for the provision enabling appointment being made on
compassionate grounds of the dependant of the deceased employee. As it is
in the nature of exception to the general provision it cannot substitute the
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provision to which it is an exception and thereby nullify the main provision
by taking away completely the right conferred by the main provision.70
The application for compassionate appointment need not be
in prescribed form71
In an application for compassionate appointment what are
important is the application and not the form. If the application in
substance conveyed the request for a compassionate appointment and
provide the information which the manager required for considering the
request, the very fact that the information was not in a given format would
not have been a good reason to turn down the request. When the authority
concerned did not reject the application on the ground that same was not in
the prescribed format or that the application was deficient in disclosing
information that was essential for consideration of the prayer for a
compassionate appointment it could not be set up as a ground for rejection
of the prayer of applicant by the beneficiary of the appointment made in
derogation of the right of applicant.
In case of an application is made by legal heirs of a deceased
employee claiming the benefit of the scheme for compassionate
appointment, the deficiencies and defects, if any, in the said application
ought to be pointed out to the concerned to enable him to remove the same
within a reasonable time. If the defects are not removed within the time
granted, an adverse inference could be drawn against the person in default.
On the contrary, where an application is filed, entertained and eventually
for a reason other than the form in which in the same ought to have been
70 Director of Eduction (Sec.) v. Pushpendra Kumar, (1982) 2 SCC 192. 71 Shrijith L. v. Deputy Director (Education), AIR 2012 SC 2665 (Para 27, 28)
210
filed, the rejection cannot be supported before the higher authority or in the
court on the ground that application was non est as the same was not in
prescribed form.
In the same breath, the Supreme Court has held that claim for
compassionate appointment have to be within time prescribed irrespective
of availability or non availability of vacancy because appointment is to
made irrespective of availability or not of vacancy.72
Highlighting the importance and necessity of appointment on
compassionate grounds, the Supreme Court set aside the appointment of an
incumbent who was working on such post for last five years and who inter
alia opposed the writ petition of the rightful claimant?73
Job on compassionate grounds not a right: SC74
As thousands of dependents of government employees seek jobs
after the deaths of their breadwinners, the Supreme Court has clarified the
legal position, saying that appointments in government offices on
compassionate grounds cannot be claimed as a right A bench of Justices
BS Chauhan and Dipak Misra said such appointments were permissible
only in genuine cases as per rules, else it would violate the Constitution.
“Appointment on compassionate grounds cannot be claimed
as a matter of right. As a rule, public service appointments
should be made strictly on the basis of open invitation of
applications and merit."
“The appointment on compassionate grounds is not another source
of recruitment but merely an exception to the aforesaid requirement taking 72 ibid, para 15 73 ibid, para 11, 12 74 Hindustan Times, New Delhi Dated 17.12.2012.
211
into consideration the fact of the death of the employee while in service,
leaving his family without any means of livelihood,” the bench said.
The ruling came on the Centre’s appeal against an Allahabad High
Court ordergiving a job on compassionate grounds to ShashankGoswami,
whose father Anand Kishore Gautam, a senior accountantin the office of
the accountant-general, Allahabad, died on March 19, 2001. His two sons
were aged about 20 and 19 years and his daughter around 17 years.
Shashank, one of the sons, applied for a job on compassionate
grounds, but his plea was rejected, as he did not fulfil the requirements of
the rules framed by the government. The Central Administrative Tribunal,
however, reversed the order and asked the government to give him a job on
compassionate grounds and the order was upheld by the high court in
Allahabad.
However, the top court allowed the Centre’s appeal, saying the
claim for appointment on compassionate grounds was based on the
premises that the applicant is dependent on the deceased employee.
“Strictly, such a claim cannot be upheld on the touchstone of
Article 14 (right to equality) or Article 16 (right to equality of
opportunity in public employment) of the Constitution of
India."
“However, such claim is considered as reasonable and
permissible on the basis of sudden crisis occurring in the
family of such employee who has served the State and dies
while in service."
“In such cases the object is to enable the family to get over
sudden financial crisis and not to confer a status on the
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family,” the apex court said.
The court said the rules stipulated that to get the job on
compassionate grounds, the total income of the family from all sources
including terminal benefits after death, excluding GPF, should not
exceed Rs. 3 lakh.
In this case, the total income of the family stood at R4.40 lakh,
besides an additional family pension of Rs.3,100 every month, received by
deceased’s widow Rashmi Gautam for a period of seven years and
another Rs. 1,860 a month as admissible relief on pension.
“In view of the fact that, in the instant case the terminal
benefits have been received by the family exceeding Rs. 3
lakhs, respondent Shashank is not eligible to be considered
for the Group ‘C’ post,” the court said.75
Similarly in several other cases ex-gratia payments, instead of
compassionate appointment have been directed by Court.76
In several other cases the Supreme Court has decried the practice of
High Courts and/or Administrative Tribunal whereby they direct for
appointment of claimant by passing the lack in qualification and/or long
delay.77 It is also necessary that there must exist some post.78
Compassionate appointment – To dependents of medically
invalidated Government Servants:-
Article 16 bars discrimination in employment on the ground only of 75 Union of India v. Shashank Goswami, AIR 2012 SC 2294. 76 State of Haryana v. Kamlesh, AIR 2010 SC 1876; Punjab National Bank v.
Ashwani Kumar Taneja, AIR 2000 SC 4155. 77 Cochin Dock Yard Board v. Leenamma, (1999) 9 SCC 87; State of Gujarat v.
Arvind Kumar, AIR 2012 SC 338. 78 Union of India v. Jogender Sharma, (2002) 8 SCC 65.
213
descent. If the service rules or any scheme of Government provides that
whenever a government servant retires from service, one of his dependents
should be given employment in his place, or provides that children of
government servants will have preference in employment, that would
squarely fly in the face of prohibition on the ground of descent. But where
the policy provides for compassionate appointment in the case of an
employee who dies in harness or an employee who is medically
invalidated, such a provision is based on a classification which is not only
on the ground of descent. The classification is based on another condition
in addition to descent: that is death of the employee in harness, or medical
invalidation of the employee while in service.
Though death generally stands on a higher footing than medical
invalidation, the inference that compassionate appointment in case of
medical invalidation cannot be equated with death in harness cases is not
correct. In fact when an employee dies in harness, his family is thrown into
penury and sudden distress on account of stoppage of income. But where a
person is permanently incapacitated due to serious illness or accident, and
his services are consequently terminated, the family is thrown into greater
financial hardship, because not only the income stops, but at the same
mime there is considerable additional expenditure by way of medical
treatment as also the need for an attendant to constantly look after him.
Therefore, the consequences in case of an employee being medically
invalidated on account of a serious illness/accident will be no less, in fact
far more than the consequences of death in harness. The case of dependents
of medically invalidated employees stands on an equal footing to that of
dependents of employees who die in harness for purpose of making an
exception to the rule of equality in appointment. When compassionate
214
appointment of a dependent of a government servant who dies in harness is
accepted to be an exception to the general rule, there is no reason or
justification to hold that an offer of compassionate appointment to the
dependent of a government servant, who is medically invalidated, is not an
exception to the general rule. In fact, refusing compassionate appointment
in the case of medical invalidation while granting it in case of death in
harness, may itself amount to hostile discrimination.79
Sometimes relevant rules permit for appointment of the dependent
of concerned employee if he sought voluntary retirement due to medical
invalidation. In such cases, the Supreme Court has held that strict
compliance with the rules and regulation in imperative.80
Compassionate appointment – Delay in appointment Post
may create if there exists no post :-
It can be stated unequivocally that in all claims for appointment of
compassionate grounds, there should not be any delay in appointment. The
purpose of providing appointment on compassionate ground is to mitigate
the hardship due to death of the bread earner in the family. Such
appointment should, therefore, be provided immediately to redeem the
family in distress. It is improper to keep such case pending for years. If
there is no suitable post for appointment supernumerary post should be
created to accommodate the applicant.81
If the claimant is minor - No endless wait:-
Of appointment on compassionate grounds, there should not be any
delay in appointment. The purpose of providing appointment on 79 V. Shiv Murthy v. State of Andhra Pradesh, AIR 2008 SC 483. 80 Food Corporation of India v. Nizamuddin, AIR 2010 SC 1320. 81 Sushma Gosain v. Union of India, AIR 1979 SC 1976.
215
compassionate ground is to mitigate the hardship due to death of the bread-
earner in the family. Such appointment should, therefore, be provided
immediately to redeem the family in distress. The fact that the ward was a
minor at the time of death of his father is no ground, unless the scheme
itself envisage specifically otherwise to state that as and when such minor
becomes a major he can be appointed without any time consciousness or
limit.82
However, if minor claimant is denied appointment because of his
age and thereafter as filed belated, action of the public sector undertaking is
malafide and appointment can be directed.83
No Compassionate appointment if spouse already working:-
In State of Haryana v. Ankur Gupta,84 the employee concerned died
on 21.12.1996. Prior to that, the policy relating to compassionate
appointment as was imperative was modified. The modification was done
in view of a decision of the Punjab& Haryana High Court.
Prior to the modification there was no embargo on a person getting
appointment under the compassionate appointment scheme, even though
one of his parents was in service at the time when the other expired? The
High Court held that the very purpose of compassionate appointment was
lost by this method of appointment. It was, therefore, held that dependent
of a deceased-Government employee shall not be entitled to employment
on compassionate grounds in case one of his parents is alive and is in
Government employment. In view of the change, no person was entitled to
be considered for compassionate appointment where one of his parents is 82 Phoolwati v. Union of India, (1991) Supp (2) SCC 689 and Union of India v.
Bhagwan Singh, (1995) 6 SCC 476. 83 Mohan Mahato v. Central Coal Field Ltd., AIR 2008 SC 39. 84 AIR 2003 SC 3797.
216
alive and is in Government employment. As the respondent's mother was in
Government employment, the authorities felt that his appointment was not
permissible, in view of clear stipulation in the policy-decision dated 22-08-
1996. The appointment was sought to be nullified by order dated 18-05-
2001. The respondent was appointed as a Clerk on 12-09-1997 on
compassionate grounds under the Die-in-harness Scheme. Show notice was
issued on 18-05-2001. The respondent submitted his reply, and by order
dated 26-09-2001 the appointment letter issued on 12-09-1997 was
cancelled. The High Court nullified the action
The Supreme Court held the appointment illegal although the
candidate had worked for about 4 years, and had become overage for
Government employment. In peculiar circumstances as a matter of grace,
the Supreme Court held that question of his having crossed age bar will not
standing case he applied for Government job.
Belated appointments
In several cases the application by claimant has been filed after long
delays, in several cases, the claimant are minors and thus they cannot apply
till they achieve majority because before that they cannot be appointed.
In local Administration Department v. M. SelvanaYagan,85 the
employee died on 22.11.1988. At that time the eldest son was 11 years old.
He appointed for appointment on 29.07.1993, even while he was a minor.
The Supreme Court held that in such a case, the appointment cannot be
said to subserve to the basic object and purpose of the scheme and hence
declined to interfere.
85. AIR 2011 SC 1880; see also Eastern Coal Fields v. Anil, AIR 2009 SC 2534
217
In yet another interesting case,86 the application was filed by
claimant 17 years after death of his father. In fact, in this case scheme for
employment on compassionate ground was enforced. Subsequent to the
death of claimant's father. In such cases though time stipulated for making
application there under would not be applicable. But the, Court held, as
appointments of this nature are made to tide over immediate difficulties,
there is in built requirement of urgency in making application. Since
application was filed 17 years after the death of concerned employee, the
Supreme Court refused to grant any relief.
After foregoing discussion we may say that Indian judiciary has
been playing a vital role on compassionate appointment in the absence of
any specific legislation in India till date. However, time and again, Apex
Court has stressed the need to examine the terms of the rules/scheme
governing compassionate appointments and ensure that the claim satisfied
the requirements before directing compassionate appointment.
86 . State of Manipur V. Mohammad Rajaodin AIR 2003 SC 3794;
In Haryana State Electricity Board v. Hakim Singh, AIR 1997 SC 3887 (appointment refused because of delay of 14 years); State of J&K v. Sajad Ahmad Mir, AIR 2006 SC 2743 (Delay of 15 years); Dhalla Ram v. Union Of India, AIR 1997 SC 564 (Delay of 22 years); State of U.P. v. Paras Nath, AIR 1998 SC 2612 (Delay of 17 years); In Sanjay Kumar v. State of Bihar, AIR 2000 SC 2782 (appointment cannot wait till the minor son attains majority).
Chapter - VIII
Conclusion and Suggestions
The objective of the scheme for compassionate appointment is to
grant appointment on compassionate ground to a dependent family member
of an employee dying in harness or who is retired on medical ground
thereby leaving his family in penury and without any means of livelihood.
It is to retrieve the family of the employee concerned from financial
destruction and to help it get over the emergency.
The efficacy of the scheme is based on its transparency. It is this
aspect which is a foremost and while considering a request for appointment
on compassionate grounds by a employee, whether government or private,
a balance and objective assessment of the financial condition of the family
has to be made taking into consideration, his assets and liabilities and all
other relevant factors, such as presence of earning member, size of the
family, age of the children and essential needs of the family etc. This is
done to assess the degree of indigence among all the applicants considered
for the compassionate appointment.
It is also pertinent to note that the Dying in Harness Rules are
made under Article 309 of the Constitution. Article 309 empowers the
appropriate legislatures to regulate the recruitment and conditions of
service of persons appointed to public service and posts in connection with
the affairs of the Union or the State. The proviso of that article empowers
the President in case of the services and posts in connection with the affairs
of the Union and the Governor of a State in the case of services and posts
in connection with the affairs of the State to make rules regulating the
recruitment and the conditions of service of persons appointed to such
219
services and posts until provision in that behalf is made by or under an Act
of the appropriate legislature under that Article. The rules made in exercise
of this power have the effect subject to the provisions of any such act
passed by the appropriate legislature.
Article 14 provides equality before law and equal protection of laws
throughout the territory of India. Article 16 provides for equality in
appointment in public offices and most importantly prohibits
discrimination on the ground of the ‘descent’; challenging the
compassionate appointment it has been contended that in case vacant posts
are filled on ‘compassionate grounds’, without following normal procedure
under relevant rules of appointment, valuable rights of other eligible
candidates, including the applicant who are available and desirous of being
considered for appointment in Government /Public Undertaking / local
bodies/ corporation etc. on merit shall be seriously prejudiced , it tends to
erode ‘legitimate expectation’ of such eligible candidates since they are
altogether excluded and denied even an opportunity of seeking
employment in government department and the like. Accordingly, even if
there are ‘Dying in Harness Rules’ compassionate appointments are ultra
vires of the Constitution being violative of Article 14 and 16 of the
Constitution of India.
It was further argued that appointment on compassionate ground,
ignoring other eligible candidates is arbitrary and violative of Article 14
and 16 of the Constitution of India because there is no nexus with the
object sought to be achieved; eligible available candidates are denied
‘opportunity of being considered in public employment’, completely
erodes ‘legitimate expectations’ of such candidates and has no ‘logic’ or
‘rational’ since such compassionate appointment is made ignoring that
220
family of some such available candidate may be in ‘greater distress’
requiring ‘more-immediate- mitigation’ than a family of an employee ‘
Dying in Harness’. It has been submitted that on the ground of ‘sympathy’
no separate class can be legally carved out nor it is permissible in the
matter of public employment under Article14, Constitution of India.
Article 14 of the Constitution permits classification provided it is based on
intelligible differentia having nexus with the object sought to be achieved,
now a settled ‘ criterion of classification’ laid down by the Apex Court- in
the catena of its decisions.
It is contended that ‘misplaced’ reason is no ‘reason’. To say that
the only solution ‘mitigate hardship’ and to ensure that the family of the
deceased employee is able to overcome ‘distress (caused by cessation of
income due to death of employee) is to give compensate appointment is a
trite.
‘Mini-classification based on micro-distinctions’ are illusory, unreal
and not warranted. Over doing of classification is paradox of ‘Equality’.
The court has to function always as a sentinel on the qui vive.
In the case of T. R. Kothandaraman v. T.N. Water Supply and Drainage,1
the Apex Court observed---
“………. the guarantee of equality is precious and the
theory of classification may not be allowed to be extended so
as to subvert or submerge the same. Of course, while being
called upon to decide whether the classification in question is
Constitutionally permissible, excellence in service has also to
be born in mind; so too the fact that excellence and quality
1 (1994) 6 SCC 282(Para 2).
221
are not friendly bedfellows. A pragmatic approach is,
therefore, required to harmonize the requirements of public
services with the aspirations of public servants.”
It has been submitted that aforesaid essential ingredients are
conspicuously absent; no ‘class’ can be carved on the ground of
‘sympathy’ and the rules, even, if framed shall be ultra vires the
Constitution hit by Article 14 and 16 of the Constitution of India. It is
argued that no one can carve out of ‘class’ which is otherwise not
permissible by Article 14, Constitution of India.
It has been contended that the ‘object’ is to provide succor to a family
of deceased employee in distress. In Supreme Court judgements reason
given is that the only way to achieve said object is to give ‘job’ to one of
dependent. It has been vehemently argued that it is misplaced to say that
the only ‘option’ is to give’ appointment’ to one of the dependent of
‘deceased employee’. What is to be compensated is the ‘income’. It has
been said that ‘resevation’ on compassionate ground has traces of
employment on the ground of inheritance which has been held to be bad by
the Apex Court itself in some of the earlier cases.
It has been further submitted that compassionate appointment are
unconstitutional and arbitrary since based on artificial classification which
has no ‘ rational basis’ or nexus with the object sought to be achieved.
Accordingly the ‘only object’ in case of an employee ‘Dying in Harness’ is
to mitigate hardship in case of “distress in family”, of an employee ‘Dying
in Harness’. It is argued that said object can be achieved by extending
‘financial-support’. And therefore, to give job, by circumventing normal
rule of appointment, is uncalled for.
However, out of purely humanitarian consideration and having regard to
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the fact that unless some source of livelihood is provided the family would
not be able to make both ends meet, provisions are made for giving
appointment to one of the dependents of the deceased who may eligible for
appointment. Thus, it is submitted that due care, has to be taken that
provision for ground of compassionate appointment which is in the nature
of exception to the general provisions does not unduly interfere with the
right of those other person who are eligible for appointment to seek
appointment against the post which would have been available.
Compassionate appointment raises a constitutional question and
Supreme Court has categorically stated in so many cases that
compassionate appointment should be made strictly on the bases of open
invitation of applications and merit. No other mode of appointment nor any
other consideration is 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, as every rule can have exceptions,
there are a few exceptions to the said rule also which have been evolved to
meet certain contingencies. As per one such exception belief is provided to
the bereaved family of a deceased employee by accommodating one of his
dependents in a vacancy. The object is to give succour to the family which
has been suddenly plunged into penury due to the ultimately death of its
sole bread-winner. This Court has observed time and again that the object
of providing such ameliorating relief should not be taken as opening an
alternative mode of recruitment to public employment and such
appointments on compassionate ground have to be made in accordance
with the rules, regulations or administrative instructions taking into
consideration the financial condition of the family of the deceased. No
appointment, therefore, on compassionate ground can be granted to a
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person other than those for whose benefit the exception has been carved
out.
Further Supreme Court has shown strong objections over the way in
which different States have given relaxation under the rule. The State has
for one reason or the other compromised with the basic principles
underlying grant of public employment and has deviated from the
Constitutional norms; sometimes it widened the scope and ambit of grant
of appointment on compassionate ground to such an extent that it had to
backtrack its steps. The State's policy-decision in this regard had never
been of firm root. They took different steps at different times depending on
the whims and caprice of the concerned officers or acted on pressure of the
Employee's Union. The Supreme Court has also cautioned by saying when
an appointment is made on compassionate ground, it should be kept
confined only to the purpose it seeks to achieve, the idea being not to
provide for endless compassion. The Supreme Court further observed that
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.
The Supreme Court has to strain all its nerve to solve some tricky
issues related to compassionate appointment and the Supreme Court has
tried to make balance between the rights and compassion. Some important
issues among them are as follows:
224
Whether posthumous child can be appointed?2
Whether married daughter is eligible for appointment?3
Whether a boy born out of a second illegitimate marriage
is eligible?4
Whether near relatives of deceased employee also eligible
for appointment?5
Seeking appointment on compassionate after attaining majority.6
etc.
The principle relating to compassionate appointments may be
summarized thus:
(a) Compassionate appointment based only on descent is impermissible.
Appointment in public service should be made strictly on the basis
of open invitation of applications and comparative merit, having
regard to Article 14 and 16 of the Constitution of India. Though no
other mode of appointment is permissible, appointments on
compassionate ground are well recognized exception to the said
general rule, carved out in the interest of justice to meet certain
contingencies.
(b) Two well recognized contingencies which are carved out as
exception to the general rule are:
(i) appointments on compassionate ground to meet the sudden
crisis occurring in a family on account of the death of the
bread winner while in service.
2 Supra note 6 at 94. 3 Supra note 25 at 105. 4 Supra note 13 at 96. 5 Supra note 14 at 97. 6 Supra note 14 at 171.
225
(ii) appointments on compassionate ground to the crisis in a
family on account of medical invalidation of the bread
winner.
Another contingency, though less recognized, is where land
holders their entire land for a public project, the scheme
provides for Compassionate appointment to member of the
families of project affected person.(Particularly where the
under which the acquisition is made does provide for market
value and solatium, as compensation).
(c) Compassionate appointment can neither be claimed, nor be granted
unless the rules governing the service permit such appointments.
Such appointment shall be strictly in accordance with the scheme
governing such appointments and against existing vacancies.
(d) Compassionate appointment are permissible only in the case of a
dependant member of family of the employee concerned, that is
spouse, son or daughter and not other relatives. Such appointments
should be only to post in the lower category, that is, class III and IV
posts and the crisis cannot be permitted to be converted into a boon
by seeking employment in class I and II posts.
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SUGGESTIONS
1. The object underlying a provision for grant of compassionate
employment is to enable the family of the deceased employee to tide
over the sudden crisis resulting due to death of the bread-earner
which has left the family in penury and without any means of
livelihood. Out of pure humanitarian consideration and having
regard to 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 for giving gainful appointment to one of the dependants of the
deceased who may be eligible for such appointment. Such a
provision makes a departure from the general provisions providing
for appointment on the post by following a particular procedure.
Since such a provision enables appointment being made without
following the said procedure, it is in the nature of an exception to
the general provisions. An exception cannot subsume the main
provision to which it is an exception and thereby nullify the main
provision by taking away completely the right conferred by the main
provision. Care has, therefore, to be taken that a provision for grant
of compassionate employment, which is in the nature of an
exception to the general provisions, does not unduly interfere with
the right of other persons who are eligible for appointment to seek
employment against the post which would have been available to
them.
2. “The construction placed by the higher Court on the Regulations
governing appointment of dependants of teaching/non-teaching staff
in non-Government recognised aided institutions dying-in-harness
without result in all the vacancies in Class III posts in non-
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government recognised aided institutions which are required to be
filled by direct recruitment being made available to the dependants
of persons employed on the teaching/non-teaching staff of such
institutions who die-in-harness and the right of other persons who
are eligible for appointment to seek employment on those posts by
direct recruitment would be completely excluded. On such a
construction, the said provision in the Regulations would be open to
challenge on the ground of being violative of the right to equality in
the matter of employment inasmuch as other persons who are
eligible for appointment and who may be more meritorious than the
dependants of deceased employees would be deprived of their right
of being considered for such appointment under the rules. A
construction which leads to such a result has to be avoided."
The Apex Court noted that such appointment on the ground
of sympathy shall be unconstitutional and hit by Articles 14 and 16,
Constitution of India, The Apex Court, as seen from the above
quoted decisions, approved of compassionate appointment by way
of exception to Article 14, Constitution of India with a sole object to
mitigate hardship caused due to sudden death of deceased employee,
the sole 'bread earner' in the family.
3. Element of 'Equality' lie in the heart of Article 14, Constitution of
India and it is the basic fiber which cannot be scarified in the garb of
artificial and micro classifications based on hypothetical reasonings
no justified by offering ill mentioned excuse.
4. In the case of Auditor General of India (supra), Apex Court,
observed: "who needs immediate appointment" against its "to
supplement the loss of income from the bread winner to relieve the
228
economic distress of the members of the family". This shows that
entire premise in view of the 'object sought to be achieved' is not to
give appointment but to extend financial support."
5. The Supreme Court itself categorically observed that compassionate
appointment, unless 'Rules, are framed, for compassionate
appointment, shall not be valid. The issue is how Rules, can be
made to serve such appointment from being unconstitutional if the
'classification' itself does not satisfy validity criterion.
6. The broad issue is 'Whether offering 'appointment' on
compassionate ground (i.e., sympathy) is the only option/solution to
mitigate 'hardship and distress of the family of an employee dying-
in-harness? Answer is an emphatic 'No'. Firstly, the Rules, as such,
contain no provision to ensure that the-dependent who gets
appointment shall continue to maintain other dependents.
7. The object for granting compassionate appointment is to enable
family in 'distress' of a deceased employee 'Dying-in-Harness' who
happened to be sole bread earner and to tide over sudden financial
crisis precipitated due to 'sudden death' of such an employee purely
out of humanitarian consideration and at best provide 'livelihood' to
make two ends meet their 'affairs'. It is, therefore, more than
apparent that the object is not to substitute 'bread-earner' with 'bread
earner' but to ensure 'livelihood' (i.e., food, clothing, education of
dependants and medical aid) to a family in distress-because of the
'Bread earner' - 'Dying-in-Harness', Loss of 'person' due to the death
of an employee in service, cannot be made good by any mechanism.
Family of such an employee if in 'distress' can be recompensated by
financial aid. It is true that perfect compensation is hardly possible
229
and money cannot renew a physique frame that has been better and
shattered. Object is to, provide means to place claimant-family of an
employee Dying-in-Harness is to place the fame as far as possible in
the same position financially as it was before the death of the bread
earner.
8. It is financial loss, if an employee dies in service, which can be
made good by ensuring financial support for the period, deceased
employee may have been in service. It is, with respect, anomalous
and hard to believe and therefore, not possible to hold that offering
job to a dependent alone is the solution
9. A 'welfare state' like ours is free to initiate effective welfare
scheme/s- and no one will be in a position to oppose. It is well
settled that sympathy cannot be allowed to over ride statutory
provisions land/or Constitutional provisions, particularly when it is
quality of the question of Welfare of the entire society and/or
question of Governance.
10. The State, like ours is free to wed to 'solemn object' to serve the
society at large, purely according to the mandate under Constitution
of India. State cannot be allowed to look after 'welfare' of its own
employees and their families alone.
11. In this context one may refer to "The Uttar Pradesh Benevolent
Fund Scheme, 1997" which was floated with identical Aim, Object
and purpose as the Compassionate Appointment Rules. Members of
the scheme are provided financial assistance, subject to terms and
conditions contained in the said Rule, including grant of advance by
way of financial assistance to a member in case of permanent
disability resulting in discontinuance of service of an employee.
230
12. U.P. Government issued Government Order dated 25.9.1985
(referring to Government Order dated 3rd October, 1978), which
accompanied copy of the Rules for creation and regulation of U.P.
Anukampa Nidhi. The said 'Compassionate Fund Rules'
incorporated exhaustive provisions to ensure financial assistance in
a deserving case, including care of education of the dependents and
marriage of daughters of a deceased employee. Government also
issued many more Government orders viz., dated 26.6.1989,
28.5.1993 and 16.6.1994, available in the Manual of Government
Orders. There are need to updated and modified said rules according
to the time.
13. The Government or its instrumentalities under Article 12,
Constitution of India, can be required by statutory provisions to
establish a Compassionate Fund with reasonably adequate corpus
created by requiring nominal contribution from the concerned
employee. 'Statutory Fund’ so created can be used to ensure transfer
of enough fund in the account of eligible person in the family of a
deceased employee on the basis of summary scrutiny by a
Competent Authority viz., Local highest authority or Head of the
Department and such transferred fund shall be good enough to give
dividends in the form of interest equivalent to the wages of a
deceased employee and what he should have notionally earned from
time to time till the age of superannuation or till a member of his
family gets employment whichever may be earlier and capital
transferred amount should be required to get automatically reverted
to the 'corpus' of the fund. Family will became, on attaining notional
superannuation of the decease employee, entitled to payment of
231
family pension, gratuity etc. in accordance with relevant service
rules and statutory conditions.
14. Underlying idea is to make sure that in case of 'distress' of a family
of a 'deceased employee', immediate succor is provided to mitigate
hardship and pull out such family members from 'distress' without
affecting quality of 'governance' by making compassionate
appointments- without following normal procedure of selection and
in complete negation of merit ignoring, though available, more
suitable and meritorious candidates.
15. There is one more aspect. For illustration, there may be a family in
'Distress' when the 'bread earner' who happened to be an Employee
of the Government, etc. died in harness but here is no eligible
person/s as his dependant (say all are minor). How the Rules
contemplating Compassionate appointment shall achieve the object
and family shall remain in distress. There is need to think about it.
16. A dependent of a deceased employee who is eligible for
compassionate appointment under Dying-in-Harness Rules, if bright
in studies, forced to accept compassionate appointment on a Class
III or Class IV posts and thus compelling a talent to be wasted or
mis-utilised, by forcing a bright boy to accept a clerical/ministerial
job. Proper course would be to give financial assistance at the right
time to such bright boy to complete his academic education and it is
likely that he may prove in future a successful Doctor, Engineer,
Lawyer or Professor, etc. or otherwise an asset to the nation.
17. On the other hand a dependant of a Government employee, who dies
because of his erratic and undisciplined ways of life (like excessive
consumption of alcohol or drugs and/or an employee who is guilty
of financial irregularities, misconduct etc., also get job on
232
compassionate ground as 'premium' of one's misdeeds.
18. There is no justification for the Government to make compassionate
appointments of a dependant on an employee dying-in-harness
ignoring families of those eligible candidates waiting in open market
and whose families may be in still graver. Employment in the State
or its 'authorities' must be on merit alone as the interest of third
party (namely, 'society'; at large) is also involved.
19. Compassionate appointment, in a way create reservation within
reservation and it should be so high so as to destroy land make
concept of equality guaranteed by Article 14, Constitution of India.
Compassionate appointments, as noted above, make reservation
beyond permissible limit of 50%, approved by the Apex Court. By
exceeding this limit, inefficiency in administration and governance
is bound to seep in. Appointments, ignoring merit in public service,
are bound to 'adversely' effect administrative efficiency' and as a
result of it entire society is bound to suffer irreparably.
20. Long experience of 'compassionate appointments', in the
Government establishment’s corporate/local bodies and Education
institution, is not only sad but it has also completely belied the
expediency of such appointment in the context of 'quality of
service'/'quality of administration'. 'Compassionate appointment' of
one of the dependent of the family of an employee 'Dying-in-
Harness' has failed to achieve 'solemn object/purpose' for which the
Rules were framed, namely to maintain other dependants in the
family. It is a matter of common experience that whenever a
dependant get job and as soon as his own family, he neglects others
in the family.
21. The issues requires a fresh look and reconsideration bereft of
233
'emotions' and 'personal whims' or prejudices; since the issue
concerns the 'society at large'. Compassionate appointment, in case
death of an employee, of a State Government or a Corporation, etc.,
has done more harm than good to the Society at large.
22. Short-cut 'charity' and popularity measures are to be avoided and
endeavour to made to accomplish interest of the large community.
Public necessity is subservient to individual necessity --"Necessitas
Public Majot Et Quem Privata".
23. Introduction of compassionate appointment in case of an employee
'Dying-in-Harness', with an object to mitigate distress and hardship
of a family of a deceased employee is commendable but not
approved in law. It is a matter of common experience that a thing
invented takes time to be perfected--"Nihil simul inventum est et
perfectum". Hence the 'object' of compassionate appointment can
still be achieved by ushering valid and legal statutory schemes other
than by making 'compassionate appointments.'
24. We cannot lose sight of the fact that there can be no mechanism to
ensure that a family of 'Government employee' will never be in
distress. For example, financial assistance of a family of a
Government employee, who has attained the age of superannuation
and eligible for pension, may be as bad as another employee Dying-
in-harness. There is no reason why a citizen who is similar situated
or even worst is deprived of public employment and a dependant of
an employee dying-in-harness be given appointment on preferential
basis de hors statutory Rules of regular and normal appointment.
'Compassionate Appointments' in the State have become a virtual
scam. Suitability is rarely assessed under Dying-in-Harness Rules.
25. There are hundreds of cases coming before Court on the ground of
234
forged 'Adoption', will etc. or belated claims on fabricated
allegations and documents. Government Authorities have no agency
or instrumentality to hold requisite enquiry and find out whether
family of deceased employee is in distress or sometime employers
own employees/officers/authority/collude for extraneous reasons
and it has become a source of corruption in this state.
Justice Ratnavel Padian, J., in the case of Indra Sawhney v. Union of
India,7 observed :
"No one can be permitted to invoke the Constitution either as
sword for an office or as a shield for anticipatory defence, in
the sense that no one under the guise of interpreting the
Constitution can causes irreversible injustice and
irredeemable inequalities to any section of the people or can
protect those unethically claiming unquestionable dynastic
monopoly over the Constitutional benefits."
Justice H.R. Khanna, in his Book 'Judging the Judges',8 commented-
“Judicial decisions have to be backed by well reasoned arguments. You
cannot say- no Judge of the highest Court can say, well look here I have
given the decision that no Constitutional law of land can challenge.”
It is not out of place to mention that it is also now settled that what
was 'legal' in the past, may by passage of time, in the context of changed
circumstances in future become 'illegal'.
7 AIR 1993 SC 477 8 Publisher by Gyan Publishing House,New Delhi--1999 Edition--in the chapter
"The Role of the Judiciary" p. 28.
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Journals
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Annexure – 1 SCHEME FOR COMPASSIONATE APPOINTMENT
F.No.14014/02/2012--Estt. (D)
Government of India Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel & Training)
North Block, New Delhi
Dated the 16th January, 2013
OFFICE MEMORANDUM Subject:- Consolidated Instructions on compassionate appointment —
regarding.
The undersigned is directed to invite attention to this Department's O.M. No.14014/6/94-Estt(D) dated 09.10.1998 vide which Scheme for "Compassionate Appointment under Central Government" was issued. Subsequently a number of instructions on compassionate appointments under the Central Government have been issued. The content of important/relevant O.Ms and orders on the subject have been further consolidated for the facility of reference and guidance and are being made available on this Department's website www.persmin.nic.in in the dynamic form (OMs & Orders>Establishment>(A) Administration (III) Concessions in appointment (a) compassionate appointment). This may be brought to the notice of all concerned for information, guidance and necessary action. 2. Hindi version will follow.
(Virender Singh) Under Secretary to the Government of India
Tel. No. 2309 3804 To,
All Ministries/Departments of Government of India Copy to:
1. President's Secretariat, New Delhi 2. Vice-President's Secretariat, New Delhi
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3. The Prime Minister's Office, New Delhi 4. Cabinet Secretariat, New Delhi 5. Rajya Sabha Secretariat/Lok Sabha Secretariat, New Delhi 6. The Registrar General, the Supreme Court of India, New Delhi. 7. The Registrar, Central Administrative Tribunal, Principal Bench, New
Delhi. 8. The Comptroller and Auditor General of India, New Delhi 9. The Secretary, Union Public Service Commission, New Delhi 10. The Secretary, Staff Selection Commission, New Delhi 11. All attached offices under the Ministry of Personnel, Public Grievances
and Pensions. 12. National Commission for Scheduled Castes, New Delhi 13. National Commission for Scheduled Tribes, New Delhi 14. National Commission for OBCs, New Delhi 15. Secretary, National Council (JCM), 13, Ferozeshah Road, New Delhi. 16. Establishment Officer & A.S. 17. All Officers and Sections in the Department of Personnel and Training. 18. Facilitation Centre, DOP&T (20 copies) 19. NIC (DOP&T) for placing this Office Memorandum on the Website of 20. DOP&T. 21. Establishment Section (200 copies).
(Virenderi Singh)
Under Secretary to the Government of India Tel. No. 2309 3804
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SCHEME FOR COMPASSIONATE APPOINTMENT 1. OBJECT
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. 2. TO WHOM APPLICABLE To a dependent family member –- (A) of a Government servant who –-
(a) dies while in service (including death by suicide); or (b) is retired on medical grounds under Rule 2 of the CCS (Medical
Examination) Rules 1957 or the corresponding provision in the Central Civil Service Regulations before attaining the age of 55 years (57 years for erstwhile Group ‘D’ Government servants); or
(c) is retired on medical grounds under Rule 38 of the CCS(Pension) Rules, 1972 or the corresponding provision in the Central Civil Service Regulations before attaining the age of 55 years (57 years for erstwhile Group ‘D’ Government servants); or
(B) of a member of the Armed Forces who – (a) dies during service; or (b) is killed in action; or (c) is medically boarded out and is unfit for civil employment.
Note I "Dependent Family Member" means:
(a) spouse; or (b) son (including adopted son); or (c) daughter (including adopted daughter); or (d) brother or sister in the case of unmarried Government servant or (e) member of the Armed Forces referred to in (A) or (B) of this para, -- who
was wholly dependent on the Government servant/ member of the Armed Forces at the time of his death in harness or retirement on medical grounds, as the case may be.
Note II "Government servant" for the purpose of these instructions means a
Government servant appointed on regular basis and not one working on daily wage or casual or apprentice or ad-hoc or contract or reemployment basis.
Note III "Confirmed work-charged staff" will also be covered by the term
‘Government servant’ mentioned in Note III above.
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Note IV "Service" includes extension in service (but not re-employment) after
attaining the normal age of retirement in a civil post. Note V "Re-employment" does not include employment of ex-serviceman
before the normal age of retirement in a civil post. 3. AUTHORITY COMPETENT TO MAKE COMPASSIONATE
APPOINTMENT (a) Joint Secretary in-charge of administration in the Ministry/Department
concerned. (b) Head of the Department under the Supplementary Rule 2(10) in the
case of attached and subordinate offices. (c) Secretary in the Ministry/Department concerned in special types of
cases. 4. POSTS TO WHICH SUCH APPOINTMENTS CAN BE MADE
Group ‘C’ posts against the direct recruitment quota. 5. ELIGIBILITY
(a) The family is indigent and deserves immediate assistance for relief from financial destitution; and
(b) Applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules.
6. A. EXEMPTIONS
Compassionate appointments are exempted from observance of the following requirements:-
(a) Recruitment procedure i.e. without the agency of the Staff Selection Commission or the Employment Exchange.
(b) Clearance from the Surplus Cell of the Department of Personnel and Training/Directorate General of Employment and Training.
(c) The ban orders on filling up of posts issued by the Ministry of Finance (Department of Expenditure).
B. RELAXATIONS (a) Upper age limit could be relaxed wherever found to be necessary. The
lower age limit should, however, in no case be relaxed below 18 years of age.
Note I Age eligibility shall be determined with reference to the date of
application and not the date of appointment;
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Note II Authority competent to take a final decision for making compassionate appointment in a case shall be competent to grant relaxation of upper age limit also for making such appointment.
(b) In exceptional circumstances Government may consider recruiting
persons not immediately meeting the minimum educational standards. Government may engage them as trainees who will be given the regular pay bands and grade pay only on acquiring the minimum qualification prescribed under the recruitment rules. The emoluments of these trainees, during the period of their training and before they are absorbed in the Government as employees, will be governed by the minimum of the – 1S pay band Rs.4440-7440 without any grade pay. In addition, they will be granted all applicable Allowance, like Dearness Allowances, House Rent Allowance and Transport Allowance at the admissible rates. The same shall be calculated on the minimum-IS pay band without any grade pay. The period spent in the-1S pay band by the future recruits will not be counted as service for any purpose as their regular service will start only after they are placed in the pay band PB-1 of Rs.5200-20200 along with grade pay of Rs.1800. (Para 1 of O.M. No.14014/2/2009-Estt.(D) Dated the 11th December, 2009)
Note In the case of an attached/subordinate office, the Secretary in the
concerned administrative Ministry/Department shall be the competent authority for this purpose.
(c) In the matter of exemption from the requirement of passing the typing test
those appointed on compassionate grounds to the post of Lower Division Clerk will be governed by the general orders issued in this regard:-
(i) by the CS Division of the Department of Personnel and Training if the
post is included in the Central Secretariat Clerical Service; or (ii) by the Establishment Division of the Department of Personnel and
Training if the post is not included in the Central Secretariat Clerical Service.
(d) In case of appointment of a widow not fulfilling the requirement of educational qualification, against the post of MULTI TASKING STAFF, she will be placed in Group 'C'- Pay Band - 1 (Rs. 5200-20200)+ Grade Pay Rs. 1800/- directly without insisting on fulfillment of educational qualification norms, provided the appointing authority is satisfied that the duties of the post against which she is being appointed can be performed with help of some on job training. This dispensation is to be allowed for appointment on compassionate ground against the post of MULTI TASKING STAFF only. (Para 2 of O.M. No.14014/2/2009-Estt. (D) Dated 03.04.2012)
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7. DETERMINATION/AVAILABILITY OF VACANCIES (a) Appointment on compassionate grounds should be made only on
regular basis and that too only if regular vacancies meant for that purpose are available.
(b) Compassionate appointments can be made upto a maximum of 5% of vacancies falling under direct recruitment quota in any Group ‘C’ post. The appointing authority may hold back upto 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. A person selected for appointment on compassionate grounds should be adjusted in the recruitment roster against the appropriate category viz SC/ST/ OBC/General depending upon the category to which he belongs. For example, if he belongs to SC category he will be adjusted against the SC reservation point, if he is ST/OBC he will be adjusted against ST/OBC point and if he belongs to General category he will be adjusted against the vacancy point meant for General category.
(c) While the ceiling of 5% for making compassionate appointment against regular vacancies should not be circumvented by making appointment of dependent family member of Government servant on casual/daily wage/ad-hoc/contract basis against regular vacancies, there is no bar to considering him for such appointment if he is eligible as per the normal rules/orders governing such appointments
(d) The ceiling of 5% of direct recruitment vacancies for making compassionate appointment should not be exceeded by utilising any other vacancy e.g. sports quota vacancy.
(e) The Committee constituted for considering a request for appointment on compassionate grounds should limit its recommendation to appointment on compassionate grounds only in a really deserving case and only if vacancy meant for appointment on compassionate grounds will be available within a year in the concerned administrative Ministry/department/Office, that too within the ceiling of 5% of vacancies falling under DR quota in Group ‘C’ posts. (O.M.No.14014/18/2000-Estt.(D) dated 22.06.2001)
(f) Calculation of vacancies by grouping of posts for small offices/cadres -Grouping of posts in small Offices/Cadres for the purpose of calculation of vacancies for appointment on compassionate grounds is allowed. Consequently, Group ‘C’ posts in which there are less than 20 direct recruitment vacancies in a recruitment year may be grouped together and out of the total number of vacancies 5% may be filled on compassionate grounds subject to the condition that appointment on compassionate
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grounds in any such post should not exceed one. For the purpose of calculation of vacancies for compassionate appointment, fraction of a vacancy either half or exceeding half but less than one may be taken as one vacancy. (Para 2 and 3 of O.M. No. 14014/24/1999-Estt.(D) dated 28.12.1999)
(g) Liberalized method of calculation of vacancies for small Ministries/Departments -The small Ministries/Departments may apply a more liberalized method of calculation of vacancies under 5% quota for compassionate appointment. The small Ministries/Departments, for the purpose of these instructions, are defined as organizations where no vacancy for compassionate appointment could be located under 5% quota for the last 3 years. Such small Ministries/Departments may add up the total of DR vacancies in Group ‘C’ and erstwhile Group ‘D’ posts (excluding technical posts) arising in each year for 3 or more preceding years and calculate 5% of vacancies with reference to the grand total of vacancies of such years, for locating one vacancy for compassionate appointment. This is subject to the condition that no compassionate appointment was/has been made by the Ministries/Departments during 3 years or number of years taken over and above 3 years for locating one vacancy under 5% quota.(Para 4 of O.M. No. 14014/3/2005Estt.(D) dated 09.10.2006
(h) The compassionate appointment can also be made against technical ‘posts’ at Group ‘C’ and erstwhile Group ‘D’ level. The 5% quota of vacancies will be calculated on the basis of total DR vacancies arising in a year in the technical posts. (Para 2 of O.M. No. 14014/3/2005Estt(D) dated 19.01.2007.
8. TIME LIMIT FOR CONSIDERING APPLICATIONS FOR
COMPASSIONATE APPOINTMENT:
Prescribing time limit for considering applications for compassionate appointment has been reviewed vide this Department O.M No.14014/3/2011Estt.(D) dated 26.07.2012. Subject to availability of a vacancy and instructions on the subject issued by this Department and as amended from time to time, any application for compassionate appointment is to be considered without any time limit and decision taken on merit in each case.
9. BELATED REQUESTS FOR COMPASSIONATE APPOINTMENT
(a) Ministries/Departments can consider requests for compassionate appointment even where the death or retirement on medical grounds of a Government servant took place long back, say five years or so. While considering such belated requests it should, however, be kept
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in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the Government servant in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. Therefore, examination of such cases would call for a great deal of circumspection. The decision to make appointment on compassionate grounds in such cases may, therefore, be taken only at the level of the Secretary of the Department/Ministry concerned.
(b) Whether a request for compassionate appointment is belated or not may be decided with reference to the date of death or retirement on medical ground of a Government servant and not the age of the applicant at the time of consideration.
(c) The onus of examining the penurious condition of the dependent family will rest with the authority making compassionate appointment (Para 4 of O.M No.14014/3/2011-Estt.(D) dated 26.07.2012
10. WIDOW APPOINTED ON COMPASSIONATE GROUNDS
GETTING REMARRIED A widow appointed on compassionate grounds will be allowed to continue in service even after re-marriage.
11. WHERE THERE IS AN EARNING MEMBER
(a) In deserving cases even where there is already an earning member in the family, a dependent family member may be considered for compassionate appointment with prior approval of the Secretary of the Department/Ministry concerned who, before approving such appointment, will satisfy himself that grant of compassionate appointment is justified having regard to number of dependents, assets and liabilities left by the Government servant, income of the earning member as also his liabilities including the fact that the earning member is residing with the family of the Government servant and whether he should not be a source of support to other members of the family.
(b) In cases where any member of the family of the deceased or medically retired Government servant is already in employment and is not supporting the other members of the family of the Government servant, extreme caution has to be observed in ascertaining the economic distress of the members of the family of the Government servant so that the facility of appointment on compassionate ground is not circumvented and misused by putting forward the ground that the member of the family already employed is not supporting the family.
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12. MISSING GOVERNMENT SERVANT Cases of missing Government servants are also covered under the scheme for compassionate appointment subject to the following conditions:
(a) A request to grant the benefit of compassionate appointment can be considered only after a lapse of at least 2 years from the date from which the Government servant has been missing, provided that:
i. an FIR to this effect has been lodged with the Police, ii. the missing person is not traceable, and
iii. the competent authority feels that the case is genuine; (b) This benefit will not be applicable to the case of a Government servant:-
i. who had less than two years to retire on the date from which he has been missing; or
ii. who is suspected to have committed fraud, or suspected to have joined any terrorist organisation or suspected to have gone abroad.
(c) Compassionate appointment in the case of a missing Government servant also would not be a matter of right as in the case of others and it will be subject to fulfillment of all the conditions, including the availability of vacancy, laid down for such appointment under the scheme;
(d) While considering such a request, the results of the Police investigation should also be taken into account; and
(e) A decision on any such request for compassionate appointment should be taken only at the level of the Secretary of the Ministry/Department concerned.
13. PROCEDURE
(a) The proforma as in Annexure may be used by Ministries/Departments/ Offices for ascertaining necessary information and processing the cases of compassionate appointment.
(b) The Welfare Officer in each Ministry/Department/Office should meet the members of the family of the Government servant in question immediately after his death to advise and assist them in getting appointment on compassionate grounds. The applicant should be called in person at the very first stage and advised in person about the requirements and formalities to be completed by him.
(c) An application for appointment on compassionate grounds should be considered in the light of the instructions issued from time to time by the Department of Personnel and Training (Establishment Division) on the subject by a committee of officers consisting of three officers – one Chairman and two Members – of the rank of Deputy Secretary/ Director in the Ministry/Department and officers of equivalent rank in the case of attached and subordinate offices. The Welfare Officer may also be made one of the Members/Chairman of the committee depending upon his rank. The committee may meet during the second week of every month to consider cases received during the previous month. The applicant may
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also be granted personal hearing by the committee, if necessary, for better appreciation of the facts of the case.
(d) Recommendation of the committee should be placed before the competent authority for a decision. If the competent authority disagrees with the committee’s recommendation, the case may be referred to the next higher authority for a decision.
14. UNDERTAKING FOR MAINTENANCE OF THE FAMILY OF
THE DECEASED EMPLOYEE A person appointed on compassionate grounds under the scheme should give an undertaking in writing (as in Annexure) that he/she will maintain properly the other family members who were dependent on the Government servant/member of the Armed Forces in question and in case it is proved subsequently (at any time) that the family members are being neglected or are not being maintained properly by him/her, his/her appointment may be terminated forthwith. The question of its legal enforceability has been examined in consultation with the Ministry of Law (Department of Legal Affairs) and it has been decided that it should be incorporated as one of the additional conditions in the offer of appointment applicable only in the case of appointment on compassionate grounds (O.M No.14014/16/1999-Estt.(D) dated 20.12.1999).
15. REQUEST FOR CHANGE IN POST/PERSON
When a person has been appointed on compassionate grounds to a particular post, the set of circumstances, which led to such appointment, should be deemed to have ceased to exist. Therefore, -
(a) he/she should strive in his/her career like his/her colleagues for future advancement and any request for appointment to any higher post on considerations of compassion should invariably be rejected.
(b) an appointment made on compassionate grounds cannot be transferred to any other person and any request for the same on considerations of compassion should invariably be rejected.
16. SENIORITY
A person appointed on compassionate ground in a particular year may be placed at the bottom of all the candidates recruited/appointed through direct recruitment, promotion etc. in that year, irrespective of the date of joining of the candidate on compassionate ground. (Para 4.8 of O.M. No. No.20011/1/2008-Estt.(D) dated 11.11.2010)
17. TERMINATION OF SERVICE
The compassionate appointments can be terminated on the ground of noncompliance of any condition stated in the offer of appointment after providing an opportunity to the compassionate appointee by way of issue of show cause notice asking him/her to explain why his/her services
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should not be terminated for non-compliance of the condition(s) in the offer of appointment and it is not necessary to follow the procedure prescribed in the Disciplinary Rules/Temporary Service Rules for his purpose.
In order to check its misuse, it has also been decided that this power of termination of services for non-compliance of the condition(s) in the offer of compassionate appointment should vest only with the Secretary in the concerned administrative Ministry/Department not only in respect of persons working in the Ministry/Department proper but also in respect of Attached/Sub-ordinate offices under that Ministry/Department.(O.M. No. 14014/19/2000-Estt(D) dated 24.11. 2000).
18. GENERAL
(a) Appointments made on grounds of compassion should be done in such a way that persons appointed to the post do have the essential educational and technical qualifications and experience required for the post consistent with the requirement of maintenance of efficiency of administration.
(b) It is not the intention to restrict employment of a family member of the deceased or medically retired (erstwhile) Group ‘D’ Government servant to a erstwhile Group ‘D’ post only. As such, a family member of such erstwhile Group ‘D’ Government servant can be appointed to a Group ‘C’ post for which he/she is educationally qualified, provided a vacancy in Group ‘C’ post exists for this purpose.
(c) The Scheme of compassionate appointments was conceived as far back as 1958. Since then a number of welfare measures have been introduced by the Government which have made a significant difference in the financial position of the families of the Government servants dying in harness/retired on medical grounds. An application for compassionate appointment should, however, not be rejected merely on the ground that the family of the Government servant has received the benefits under the various welfare schemes. While considering a request for appointment on compassionate ground a balanced and objective assessment of the financial condition of the family has to be made taking into account its assets and liabilities (including the benefits received under the various welfare schemes mentioned above) and all other relevant factors such as the presence of an earning member, size of the family, ages of the children and the essential needs of the family, etc.
(d) Compassionate appointment should not be denied or delayed merely on the ground that there is reorganisation in the Ministry/Department/ Office. It should be made available to the person concerned if there is a vacancy meant for compassionate appointment and he or she is found eligible and suitable under the scheme.
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(e) Requests for compassionate appointment consequent on death or retirement on medical grounds of erstwhile Group ‘D’ staff may be considered with greater sympathy by applying relaxed standards depending on the facts and circumstances of the case.
(f) Compassionate appointment will have precedence over absorption of surplus employees and regularisation of daily wage/casual workers with/without temporary status.
(g) Any request to increase the upper age-limit of 55 years for retirement on medical grounds prescribed in para 2(A) (b) and (c) above in respect of Group ‘A’/’B’/’C’ Government servants and to bring it at par with the upper age-limit of 57 years prescribed therein for erstwhile Group ‘D’ Government servants on the ground that the age of retirement has recently (May, 1998) been raised from 58 years to 60 years for Group ‘A’/’B’/’C’ Government servants (which is at par with the age of retirement of 60 years applicable to erstwhile Group ‘D’ Government servants) or on any other ground should invariably be rejected so as to ensure that the benefit of compassionate appointment available under the scheme is not misused by seeking retirement on medical grounds at the fag end of one’s career and also keeping in view the fact that the higher upper age-limit of 57 years has been prescribed therein for erstwhile Group ‘D’ Government servants for the reason that they are low paid Government servants who get meagre invalid pension in comparison to others.
19. IMPORTANT COURT JUDGEMENTS
The ruling contained in the following judgements may also be kept in view while considering cases of compassionate appointment:
(a) The Supreme Court in its judgement dated April 8, 1993 in the case of Auditor General of India and others v. G. Ananta Rajeswara Rao [(1994) 1 SCC 192] has held that appointment on grounds of descent clearly violates Article 16(2) of the Constitution; but if the appointment is confined to the son or daughter or widow of the Government servant who died in harness and who needs immediate appointment on grounds of immediate need of assistance in the event of there being no other earning member in the family to supplement the loss of income from the bread winner to relieve the economic distress of the members of the family, it is unexceptionable.
(b) The Supreme Court’s judgement dated May 4, 1994 in the case of Umesh Kumar Nagpal v. State of Haryana and others [JT 1994(3) S.C. 525] has laid down the following important principles in this regard:
(i) Only dependents of an employee dying in harness leaving his family in penury and without any means of livelihood can be appointed on compassionate ground.
(ii) The posts in Group ‘C’ and ‘D’ (formerly Class III and IV) are the lowest posts in non-manual and manual categories and hence they
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alone can be offered on compassionate grounds and no other post i.e. in the Group ‘A’ or Group ‘B’ category is expected or required to be given for this purpose as it is legally impermissible.
(iii) The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family of the deceased from financial destitution and to help it get over the emergency.
(iv) Offering compassionate appointment as a matter of course irrespective of the financial condition of the family of the deceased or medically retired Government servant is legally impermissible.
(v) Neither the qualifications of the applicant (dependent family member) nor the post held by the deceased or medically retired Government servant is relevant. If the applicant 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.
(vi) Compassionate appointment cannot be granted after lapse of a reasonable period and it is not a vested right which can be exercised at any time in future.
(vii) Compassionate appointment cannot be offered by an individual functionary on an ad-hoc basis.
(c) The Supreme Court has held in its judgement dated February 28, 1995 in the case of the Life Insurance Corporation of India v. Mrs Asha Ramchandra Ambekar and others [JT 1994(2) S.C. 183] that the High Courts and Administrative Tribunals cannot give direction for appointment of a person on compassionate grounds but can merely direct consideration of the claim for such an appointment.
(d) The Supreme Court has ruled in the cases of Himachal Road Transport Corporation v. Dinesh Kumar [JT 1996 (5) S.C. 319] on May 7, 1996 and Hindustan Aeronautics Limited v. Smt A. Radhika Thirumalai [JT 1996 (9) S.C. 197] on October 9, 1996 that appointment on compassionate grounds can be made only if a vacancy is available for that purpose.
(e) The Supreme Court has held in its judgement in the case of State of Haryana and others v. Rani Devi and others [JT 1996(6) S.C. 646] on July 15, 1996 that if the scheme regarding appointment on compassionate ground is extended to all sorts of casual, ad-hoc employees including those who are working as Apprentices, then such scheme cannot be justified on Constitutional grounds.
(f) The Hon'ble Supreme Court in its judgment dated 05.04.2011 in Civil Appeal No. 2206 of 2006 filed by Local Administration Department v. M. Selvanayagam @ Kumaravelu has observed that "an appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependents and the financial deprivation caused to the dependents as a result of his
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death, simply because the claimant happened to be one of the dependents of the deceased employee would be directly in conflict with Articles 14 & 16 of the Constitution and hence, quite bad and illegal. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind". (O.M. No. 14014/3/2011-Estt.(D) dated 26.07.2012). DoP&T’s O.M. No. 14014/02/2012-Estt.(D) dated 16.01.2013
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PROFORMA REGARDING EMPLOYMENT OF DEPENDENTS OF
GOVERNMENT SERVANTS DYING WHILE IN SERVICE/RETIRED ON INVALID PENSION
PART- A I. (a) Name of the Government servant _______________________ (Deceased/retired on medical grounds). (b) Designation of the Government _______________________ Servant. (c) Whether it is MTS ( erstwhile Group ‘D’) or not? _______________________ (d) Date of birth of the Government _______________________ Servant. (e) Date of death/retirement on ______________________ medical grounds. (f) Total length of Service ______________________ rendered. (g) Whether permanent or temporary. _____________________ (h) Whether belonging to SC/ST/OBC. _____________________ II. (a) Name of the candidate for _____________________ appointment. (b) His/Her relationship with the ______________________ Government servant. (c) Date of birth. _______________________ (d) Educational Qualifications. ______________________ (e) Whether any other dependent family ______________________ member has been appointed on compassionate grounds. III. Particulars of total assets left including amount of _____________________________ (a) Family Pension ___________________________ (b) D.C.R. Gratuity ___________________________ (c) G.P.F. Balance ___________________________ (d) Life Insurance Policies (including Postal Life Insurance) ____________________________ (e) Moveable and Immovable properties and annual income earned therefrom by the family. ____________________________ (f) C.G.E. Insurance amount ____________________________ (g) Encashment of leave ____________________________ (h) Any other assets. ____________________________ Total__________________________ (IV). Brief particular of liabilities if any. ___________________________
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V. Particulars of all dependent family Members of the Government servant (if some are employed, their income and whether they are living together Or separately).
S.No. Name(s) Relationship with Govt.
Age Address Employed or not if employed
servant particulars of
employment and emoluments)
(1) (2) (3) (4) (5) (6) 1 2 3 4 5 VI. DECLARATION/UNDERTAKING 1. I hereby declare that the facts given by me above are, to
the best of my knowledge, correct. If any of the facts herein mentioned are found to be incorrect or false at a future date, my services may be terminated.
2. I hereby also declare that I shall maintain properly the other family members who were dependent on the Government servant/member of the Armed Forces mentioned against 1(a) of Part-A of this form and in case it is proved at any time that the said family members are being neglected or not being properly maintained by me, my appointment may be terminated.
Date: Signature of the candidate Name:-________________ Address:-_______________ Shri/Smt/Kum_________________________________________________is known to and the facts mentioned by him/her are correct. Date: Signature of permanent Government servant. Name: ______________________ Address:- ____________________ ______________________ I have verified that the facts mentioned above by the candidate are correct. Date: Signature of permanent Government servant. Name:______________________ Address:-____________________ ______________________
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PART-B (TO BE FILLED IN BY OFFICE IN WHICH EMPLOYMENT IS PROPOSED)
I. (a) Name of the candidate for Appointment. ____________________________ (b) His/Her relationship with the Government servant. ____________________________ (c) Age (date of birth), educational qualifications and experience, ___________________________ If any. ____________________________ (d) Post (Group C) which employment is Proposed ____________________________ (e) Whether there is vacancy in that post within the ceiling of 5% prescribed under the scheme ____________________________ of compassionate appointment. (f) Whether the post to be filled is included in the Central Secretariat ___________________________ Clerical Service or not. (g) Whether the relevant
Recruitment Rules provide for ___________________________ direct recruitment. (h) Whether the candidate fulfils the requirements of the ___________________________ Recruitment Rules for the post. (i) Apart from waiver of Employment Exchange/Staff Selection ___________________________ Commission procedure what other relaxation are to be given. (II) Whether the facts mentioned in ____________________________ Part-A have been verified by the office and if so, indicate the records. (III) If the Government servant died/ ____________________________ retired on medical grounds more than 5 years back, why the case was not sponsored earlier. (IV) Personal recommendation of the Head _____________________________ of the Department in the Ministry/ Department/Office.
(With his signature and office Stamp/seal)
Annexure – 2
The Uttar Pradesh Recruitment of Department of Government Servants Dying in Harness Rule, 1974,
Noti. No. 6/12/1973- Niyukti-4-Anubhg Dated October 7, 1974
In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and all other powers enabling him in this behalf, the Governor of Uttar Pradesh is pleased to make the following special rules regulating the recruitment of the dependants of Government servants dying in harness.
1. Short title and commencement – (1) These rules may be called the Uttar
Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.
(2) They shall be deemed to have come into force with effect from December 21, 1973.
2. Definitions – In these rules, unless the context otherwise requires : (a) "Government servant" means a Government servant employed in connection whit he affairs of Uttar Pradesh, who –
(i) was permanent in such employment; or
(ii) though temporary had been regularly appointed in such employment; or
(iii) though not regularly appointed, had put in three years continuous service in regular vacancy in such employment.
Explanation – "Regularly appointed" means appointed in accordance with the procedure laid down for recruitment to the post or services, as the case may be :
(b) "deceased Government servant" means a Government servant who dies while in service;
(c) "family" shall include the following relations of the deceased Government servant:
(i) Wife or husband; (ii) Sons ;
(iii) Unmarried and widowed daughters; (iv) If the deceased was unmarried Government servant, brother,
unmarried sister and widowed mother dependant on the deceased Government servant);
“[Provided that if a person belonging to any of the ad-hoc mentioned relations of the deceased Government Servant is not
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available or is found be physically and mentally unfit and thus ineligible for employment in Government Services then only in such situation the if word “family shall also included that grand sons and the unmarried grand daughters of the deceased Government Servant dependent on him]” Inserted by Noti. No. 6/XII/1973- Personal – 2- 2007 dated 09.02.2007.
(d) "Head of Office" means Head of Office in which the deceased Government servant was serving prior to his death.
3. Applications of the rules – These rules shall apply to recruitment of dependents of the deceased Government servants to public services and posts in connection with the affairs of State of Uttar Pradesh, except services and posts which are within the purview of the Uttar Pradesh Public Service Commission.
4. Overriding effect of these rules – These rules and any orders issued thereunder shall, have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of these rules.
5. Recruitment of member of the family of the deceased - In case a Government servant dies in harness after the commencement of these rules one member of his family who is not already employed under the Central Government or State Government or a Corporation, owned or controlled by the Central Government or a State Government shall on making an application for the purpose, be given a suitable employment in Government service which is not within the purview of the State Public Service Commission in relaxation of the normal recruitment rules, if such person (i) fulfils the educational qualification prescribed for the post and (ii) is also otherwise qualified for Government service. and make the application for employment within five years from the date of the death of the Government servant;
Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes under hardship in any particular case, it may dispense with or Relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.
‘Provided further that for the purpose of the aforesaid proviso. The person concerned shall explain the reasons and give proper justification in writing regarding the delay caused application for employment alongwith the necessary documents / proof is support of such delay and the Government shall, after taking in to consideration all the facts leading to such delay take the appropriate decision.
(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.
(3) Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant who were dependent on the deceased Government servant immediately before his death and are unable to maintain them selves.
(4) Where the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his service
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may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 as amended from time to time.
5 A. Recruitment of member of the family of Police /P.A.C. Personnel who dies in May, 1973 – Notwithstanding anything contained to the contrary contained in Rule 5 or in any otehr rule, the provision of these rules shall apply the case of members of the family of twenty –two police or per Provincial Armed Constabulary personnel who died as a result of disturbances in May, 1973, as they apply in the case of a Government servant during dying in harness after the commencement of these rules). 6. Contents of applications for employment – An application for appointment under these rules shall be addressed to the appointing authority in respect of the post for which appointment is sought but it shall be sent to the Head of Office where the deceased Government servant was serving prior to his death. The application shall, inter alia, contain the following information :
(a) the data of the death of the deceased Government servant; the department in which he was working and the post which he was holding prior to his death.
(b) name, age and other details pertaining to all the members of the family of the deceased, particularly about their marriage, employment and income;
(c) details of the financial condition of the family; and (d) the educational and other qualification, if any, of the applicant.
7. Procedure when more than one member of the family seeks employment- If more than one member of the family of the deceased Government servant seeks employment under these rules, the Head of Office shall decide about the suitability of the person for giving employment. The decision will be taken keeping in view also the overall interest of the welfare of the entire family, particularly the widow adn the minor members thereof.
8. Relaxation from age and other requirements – (1) the candidate seeking appointment under these rules must not be less than 18 years at the time of appointment.
(2) The procedural requirements for selection, such as written test or interview by a selection committee or any other authority, shall be dispensed with, but it shall be open to the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post.
(3) An appointment under these rules shall be made against an existing vacancy only.
9. Satisfaction of appointing authority as regards general qualifications- Before a candidate is appointed the appointing authority shall satisfy itself that :
(a) The character of the candidate is such as to render him suitable in all respect for employment in Government service.
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Note - Persons dismissed by the Union Government or by any State Government or by a Local Authority or a Corporation owned or controlled by the Central Government or State Government shall be deemed to be ineligible for appointment to the service .
(b) He is good mental and bodily health and free from any, physical defect likely to interfere with the efficient performance of his duties, for which the candidate shall be required to appear before the appropriate medical authority and to produce a certificate of fitness in accordance with the rules applicable to the case; and
(c) In the case of male candidate he has not more than one wife living and in the case of a female candidate, she has not married a person already having a wife living.
10. Power to remove difficulties – The State Government may, fort he purpose of removing any difficulty (of the existence of which it shall be the sole judge) in the implementation of any provision of these rules, make any general or special order as it may consider necessary or expedient in the interest of fair dealing or in the public interest.
Annexure – 3
Report of Human Right Commission of India on Appointment on
Compassionate ground and Custodial Death
Torture in Police Custody Results in the Death of Kartik Mehto: Bihar (Case No. 8903/95-96)
The Commission received a complaint from Smt. Munuwa Devi alleging that her husband, Kartik Mehto, had been illegally detained by the police on 27 September 1995, brutally tortured and that this led to his death in police custody on 4 October 1995.
In response to a notice from the Commission, the report of the police admitted to the death of the Kartik Mehto in police custody. It added that a case had been registered against a Sub Inspector under section 302 IPC. The Sub Inspector had surrendered before a Court and was being dealt with in accordance with law.
In the light of the report received, the Commission directed the Government of Bihar to pay immediate interim compensation of Rs. 2 lakhs to the family of the deceased and to recover this amount from the accused. The Commission also recommended that employment be given to one of the members of the family of the deceased, in accordance with his/her educational qualifications. Of the total amount of the compensation awarded, the Commission directed that 50 per cent be kept in a fixed deposit in the name of the widow of the deceased, who may be allowed to draw on the interest every quarter.
In this case the Commission had, by its order dated 28 January 2000 directed the State of Bihar to pay a compensation of Rs.2 lakhs to the family of the deceased and employment to one of the members of the family.
In compliance, the State Government of Bihar issued a sanction dated 10 June 2000 in respect of the payment of Rs.2 lakhs, subject to its recovery from the delinquent public servant. As regards the second recommendation of the Commission, it has stated that employment will be considered in accordance with the guidelines issued by the State Government for making appointments on compassionate grounds. The final action taken report is awaited despite reminders.
Alleged custodial death of Shri Shanskhem Kharsaiot followed by death of two persons in police firing in Meghalaya (Year 1993-94)
The Commission took notice of an item broadcast over A.I.R. on 5 November 1993 that two persons had died as a result of police firing on a violent crowd gathered outside Sohra Police Station in Cherrapunjee in Meghalaya State.. It was reported that people had gathered outside the Police Station to protest against the alleged custodial death of Shri Shamskhem Kharsaiot. The Commission immediately called for a report from the Chief Secretary, Meghalaya. On 19 November 1993, the State Government sent an interim report stating that in regard to the incident of alleged custodial death, Magisterial Inquiry had been ordered, and that in regard to the incident of police firing, a retired High Court Judge was being requested to investigate the matter. It was
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further reported that the next of kin of the deceased had been given Rs. 25000/- to meet funeral expenses etc.
Upon perusing the interim report, the Commission called for a further report on the action taken and the State Government sent such a report on 15 January 1994.. With regard to the custodial death, it stated that the Magisterial Inquiry had prima facie indicated the Police Officer concerned. Criminal cases had been registered against him. It was further reported that ex-gratia assistance of Rs. 50000/- had been given to the next kin of the deceased and a near relative of the deceased had been given an appointment in Government on compassionate grounds.
With regard to the deaths resulting from the police firing, it was reported that an inquiry by a retired High Court Judge was continuing.
On perusing the report, the Commission on 17 January 1994, observed that in view of the several steps taken by the State Government, there appeared to be no necessity of the Commission pursuing the matter any further. The Commission placed on record its appreciation on the prompt responses by the State Government
Custodial death of Atal Bihari Mishra - Uttar Pradesh Year 1997-98 A reference to the case was made in the annual report of the Commission for
the year 1996-97. It was mentioned that a number of police personnel were charge-sheeted in this case, consequent to intervention by the Commission.
Thereafter, Shri Umesh Chander Mishra, the elder brother of the deceased made a supplementary prayer that as the investigations had established that Atal Bihari Mishra was killed by the police, the Commission should award Rs. 25 lakhs by way of compensation. He also sought protection for the family and employment to one of its members on compassionate grounds.
As there was prima facie material to hold that Atal Bihari Mishra died as a result of police violence, the Commission issued notice to the Chief Secretary, Government of Uttar Pradesh, to show cause why a reasonable interim-compensation should not be awarded to the members of the family of the deceased. As the State Government did not avail itself of the opportunity to show cause, the Commission proceeded on the assumption that the State of Uttar Pradesh had no cause to show against the claim of interim compensation by the members of the deceased family; and recommended that:
i) the State of Uttar Pradesh do pay to Shri Suresh Mishra, resident of Village Prem Raja, Police Station Bhimpura, District Balia, the father of the deceased, a sum of Rs. 5,00,000/- by way of interim compensation, to be paid within one month from the date of order, subject to the private law rights of the dependents to bring an appropriate legal action for damages in which event the sum awarded by way of interim compensation was adjustable;
ii) appropriate protection to the family of Shri Suresh Mishra be accorded depending on the security and threat perceptions of the situation having regard to the fact that the family could legitimately apprehend retaliatory attitudes from the police officers and personnel against whom the accusation has been made; and
iii) the Government of Uttar Pradesh should sympathetically consider the prayer of the family for an appointment at an appropriate level, having regard to the
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eligibility and qualifications of a suitable member of the family, on compassionate grounds.
The recommendations of the Commission were conveyed to the State of Uttar Pradesh asking for compliance by 5 December 1997. By a communication dated 28 December 1997, the State Government stated that, as a case in connection with the murder of Atal Bihari Mishra was pending in the Court of Chief Judicial Magistrate, Balia against 21 police officials, compliance of the directions/recommendations of the Commission could only be possible after the police officials/accused persons were found guilty of the charges.
The Commission considered the stand taken by the State Government and felt that its tenability or otherwise depended upon, and flowed from, an answer to the question whether the award of "Immediate Interim Relief" envisaged in sub-section (3) of Section 18 of the Protection of Human Rights Act 1993 (‘Act’ for short) is dependent on the establishment of culpability of the public servant at the criminal trial "or whether the remedy is independent of such pettifoggeries". As this matter has wide connotations, the following is reproduced from the Commission’s proceedings of 23 February 1998:
"It is well settled that the standards of proof in civil and criminal cases are not the same. It is equally well settled that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. The authorities say that a strong and marked difference exists as to the effect and probative value of evidence in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision; but in criminal trials, a much higher degree of assurance is required. In criminal cases, the prosecution must prove the charge beyond reasonable doubt. A conviction cannot be sustained even if the prosecution story is considered ‘may be true’ until it is found that it ‘must be true’ but between ‘may be true’ and ‘must be true’ there is inevitably a long distance which has to be covered by legal, reliable and unimpeachable evidence. Therefore, even if an accused person is acquitted by a criminal court of a criminal charge, that, by itself, is no bar to the grant of compensation by a civil court if the offence is also a tort and there is evidence to establish the wrong on a mere preponderance of probability."
"Apart from the foregoing, it is pertinent to take note of the fact that the ‘Immediate Interim Relief’ envisaged in Section 18(3) of the Act has to be correlated to the injury/loss which the victim or members of his family have suffered owing to the violation of Human Rights by public servants. By no stretch of imagination can it be argued that award of this ‘Immediate Interim Relief’ is dependent upon the strict establishment of criminal liability after a full dress court trial. If this view is accepted, the relief will then neither be ‘immediate’ nor ‘interim’. A meaningful and harmonious construction of this clause would have no doubt that the Commission is entitled to invoke its
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benevolent sweep on a prima facie view of the matter irrespective of whether there is any litigation - civil or criminal relating to the matter."
In the case in hand, the very fact that the result of the investigation carried out by the State CID itself shows that as many as 21 police officials have been charge-sheeted for several grave offences and are facing trial before a Court is, by itself, more than sufficient for invoking the provisions of Section 18 (3) of the Act. Victimology and victim assistance and protection are the current values of humanism permeating the administration of criminal justice. All civilised countries the world over have, in one form or the other, schemes for ‘criminal injuries compensation’ to the victims of crime. Section 18(3) of the Protection of Human Rights Act 1993 incorporates and assimilates, at least in a partial measure, this philosophy and recognised the State’s moral obligation to the victims of violations of Human Rights by public servants. The expression ‘relief’, in the context of the Statute, presupposes the existence of conditions of human distress as justifying benevolent intervention. The ‘relief’ may be monetary-relief, medical-relief, compassionate employment, etc., or all of them.
"It is necessary to reiterate that when the Protection of Human Rights Act, 1993 was enacted the Parliament was, and, should always be presumed to be, aware of the state of the civil and criminal law in the country. The Preamble of the Act itself makes manifest Parliament’s anxiety to provide an additional forum for ‘better protection’ of Human Rights and, therefore, it is idle to argue that any proceedings in civil or criminal Courts, pending or prospective, can operate as a limiting factor or influence on the scope of the jurisdiction of the Commission to recommend ‘immediate interim relief’ in cases of distress."
The idea of ‘immediate interim relief’ does not therefore, presuppose the establishment of criminal liability of the offender in a court of law as a precondition for the administration of the ‘reliefs’ nor does it depend on whether any civil litigation is either pending or prospective. A welfare State recognising its obligation to afford ‘relief’ to its citizens in distress, particularly those who are victims of violations of their human rights by public servants, has made this law under which the Governments seek advice from the National Human Rights Commission as to what, in its view, is reasonable ‘immediate interim relief’ in a given case so that the State can act on the recommendation. The recommendations of the Commission are not, no doubt, binding judicial orders; but they cannot be undone and turned to naught by perverse and palpably untenable legal views of the matter. The limiting of such Statutory relief only to cases in which criminal liability of the offending public servant is established in a Court of law beyond reasonable doubt by standards of criminal evidence, is to thwart an otherwise civilised piece of legislation by importing totally irrelevant limitations. The Commission desires to point out that the ground urged by the Government in this case is wholly irrelevant.
"The meaning to be given to Section 18(3) by any State professing to be a Welfare State should ensure a liberal construction to promote the philosophy of the Statute and to advance its beneficent and benevolent purposes. The view that implies that administration of such ‘immediate
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interim relief’ could only be at the end of the day, after the guilt of the offending public servant is established in a criminal trial on the standards of criminal evidence would nullify the great humanism the Statute seeks to enshrine. The Commission only hopes that the Government of Uttar Pradesh is an ally of those values and will respond in a way which accords with the message and philosophy of the law and its obligation as a Welfare State."
"The Chief Secretary of Uttar Pradesh shall accordingly be written to by the Secretary-General enclosing a copy of these proceedings and informing the Chief Secretary that Government of Uttar Pradesh cannot seek to avoid the Commission’s recommendations in this case on the ground that establishment of culpability of a public-servant is a condition precedent to the arising of the liability under Section 18(3). The State Government be urged that its persistence in such untenable stand would expose it to avoidable legal hassles and litigation."
The Commission considered the matter on 1.8.98 when it had ordered as under:-
"The State Govt. of UP has sent a report stating that a sum of Rs. 5 lakhs as recommended by the Commission has already been sanctioned in favour of Shri Suresh Mishra father of Shri Atal Bihari Mishra. However, Govt. has expressed its inability to provide employment to a family member of the deceased on compassionate grounds on the premise that under the existing rules, compassionate appointment is permissible only to dependents of Government servants dying in harness. The report of the State Government is taken on record. Commission hopes that as a special case the State Government would yet sympathetically consider the question of appointment of a family member of the deceased in Government employment on compassionate grounds in view of the fact that the family of the victim has been devastated by the high handed criminal acts of public servants. With these observations the case is closed."
Annexure – 4
Suggestion of Indian Banks Association on Compassionate Appointment in Bank
UNITED FORUM OF BANK UNIONS
(AIBEA-AIBOC-NCBE-AIBOA-BEFI-INBEF-INBOC-NOBW-NOBO) C/o. Singapore Plaza, 3rd Floor, 164, Linghi Chetty Street, Chennai – 600 001
Tel. No. : 044-2535 1522, 6543 1566, Fax: 044-2535 8853, 4500 2191 E Mail: [email protected], [email protected]
March 3, 2008
To The Chairman, Indian Banks Association, WTC Buildings, 6th Floor, Centre I Building, Cuffe Parade, Mumbai 400 005 Dear Sir, Sub: Compassionate Appointments in Banks This has reference to the minutes of understandings dated 25.2.2008, signed between IBA and UFBU based on which our strike action and other agitational programmes were not proceeded with. Under this MoU, regarding Compassionate Appointment, it has been minutised as under: “As regards restoration of Compassionate appointment scheme, the IBA requested UFBU to suggest improvement, modifications, etc to the scheme to enable IBA to refer the matter to the Government for further consideration” Accordingly, further to the discussions held on this issue between us on 18.3.2008 & 25.3.2008, we submit herein our detailed views and suggestions. 1978 - GOVERNMENT GUIDELINES TO BANKS For the past more than four decades, Bank managements had been considering compassionate ground appointments of the dependents / spouse upon the unfortunate death of an employee while in service. In 1978, the Government of India, vide Banking Division, Ministry of Finance guidelines dated 12.9.1978 had given the scheme under which compassionate appointments should be made in the Banks.
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The scheme provided for appointment of one of the dependents / spouse to be appointed in the Banks against existing or anticipated vacancies and without undergoing the written test process which is prescribed for regular appointments in the Banks. This scheme has been in vogue and implementation since then. 1982 – MODIFICATION IN SCHEME In 1982, the Government issued further guidelines by which dependents of employees who voluntarily resign from the service before the age of 55 due to extreme medical conditions were also covered for compassionate appointments in the Banks. BANKING SERVICE COMMISSION ACT, 1975 / 1984 Under Section 13 (a) of Banking Service Commission Act 1975, as well as Banking Service Commission Act of 1984, it was clearly provided that while the commission was given the power to conduct examinations for appointments and filling up of vacancies in clerical and officer cadre, appointments under compassionate grounds can be made under a scheme framed by the Bank as per Government guidelines and such appointments could be made without consulting the Commission. Thus, it was clearly envisaged that notwithstanding the normal recruitment rules, Compassionate appointments can be considered under a scheme by the Banks which has not been considered as conflicting with Article 14 and 16 of the constitution. 1994 – SUPREME COURT JUDGEMENT – U K NAGPAL VS HARYANA In Umesh Kumar Nagpal Vs State of Haryana, the Hon.ble Supreme Court, vide its judgement dated 4.5.1994 held as under: o As a rule, appointments should be made on the basis of open invitation and
merit. Exception is in favour of dependents of an employee dying in harness and leaving his family in penury & without any means of livelihood. o Out of humanitarian consideration, provision to be made in the rules for employment of one of the dependents.
o The public authority concerned has to examine the financial condition of the family of the deceased & only if satisfied, job is to be offered to the eligible member of the family.
o Compassionate appointment can only be offered in Class III & Class IV posts. o Such compassionate appointments cannot be granted after a lapse of reasonable
period which must be specified in the rules. 1996 – GOVERNMENT GUIDELINES In view of the Supreme Court judgement in U.K. Nagpal case, the Government issued a guideline in 1996 advising the Banks to keep the Supreme Court judgement in view while considering the Compassionate appointments.
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1996 - IBA GUIDELINES Based on the above Government guidelines, the IBA issued Circular (Circular No.813, dated 23.8.1996) advising the Banks to strictly abide by the guidelines based on the Nagpal Case judgement. IMPLEMENTATION OF GOVERNMENT / IBA GUIDELINES IN BANKS: Based on these guidelines received from Government & IBA, Banks were following the same and compassionate appointments were being extended only after looking into the financial condition of the family of the deceased. The appointments were being given only on selective basis where the family was in indigent situation. Thus, the general principles evolved out of the Supreme Court judgement in Nagpal case were being taken care of by the Banks. CHANGE IN ATTITUDE OF MANAGEMENTS: Notwithstanding the fact that IBA / Government guidelines based on Supreme Court judgement in Nagpal Case were being observed and implemented by the managements from 1996, the attitude of the Bank managements underwent a change. Based on this, Human Resources Committee recommended for abolition of compassionate appointments and payment of Ex-Gratia in lieu of job on the following grounds: 1. Compassionate appointments lead to surplus staff in Banks. 2. Only the least employable in the family apply for such compassionate
appointments. 3. Some individuals have gone to the Court demanding compassionate
appointments. 4. Indigent condition of the family was being overlooked. Based on these views views, the Government suggested to IBA that IBA may suggest on alternative scheme of ex-gratia payment in lieu of compassionate appointments. Accordingly, IBA submitted the proposal to the Government. GOVERNMENT’S ADVICE IN 2003 Based on these views of IBA, the Government, in October 2003, issued fresh guidelines to IBA as under: 1. Earmarking a large portion of the recruitment in clerical and Substaff cadres for compassionate appointments will affect the quality of manpower in Banks. 2. Help to the family of the deceased can be achieved by extending financial assistance. 3. Financial compensation scheme to be implemented by working out a uniform basis. This Government’s advice was said to be in pursuance of Nagpal case. But Supreme Court did not ban or prohibit compassionate appointments in their said judgement and only wanted a proper rule or scheme to be worked out based on the financial condition of the family.
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NEW MODEL SCHEME, 2004 Based on the above advice of the Government, the IBA formulated a model scheme and submitted to the Government. The Government approved this scheme. On 31-7-2004 the IBA circulated this model scheme to all Banks thus stopping all compassionate appointments in the Banks and providing for financial compensation. Obviously, this Scheme was not in conformity with the spirit and rulings of Supreme Court judgement in Nagpal case which did allow compassionate ground appointments based on some rules. FINANCIAL COMPENSATION SCHEME Eligibility 1. Employees dying due to injury sustained while performing official duty. 2. Employees dying due to dacoity, robbery, terrorist attack. 3. Employees dying in harness (other than under (a) and (b) 4. Employees seeking premature retirement due to incapacitation before the age of
55. Eligible Amount Ex-Gratia compensation will be granted if the monthly income of the family FROM ALL SOURCES is less than 60% of the last drawn salary of the deceased employee. Calculation of Monthly Income (1) Terminal Benefits
Provident Fund Gratuity Leave Encashment Any other amount paid under Bank’s Scheme(s) ----------------
Sub-Total (A) ----------------
(2) Liabilities
Loans taken from Bank and/or other financial Institutions with the prior approval of the Bank ----------------
Sub-Total (B) ----------------
(3) Net corpus of Terminal Benefits (C = A - B)
---------------- (4) Investments
Deposits NSCs PPF LIC policies Others ---------------- Sub-Total (D) ----------------
(5) Details of movable property, if any held and
Monthly income derived therefrom
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(6) Details of immovable property, if any, held
and monthly income thererfrom (7) Monthly Income of the family from all sources-
(a) Monthly interest at the Bank’s maximum Term Deposit rate on the net corpus of Terminal Benefits (C )
(b) Monthly income from investments (c) Monthly income from movable and
Immovable Property (d) Monthly income of dependent family
members (e) Any other monthly income -----------------
Total monthly income of the family -----------------
If the total monthly income of the family arrived at as above is less than 60% of the last drawn gross salary (net of taxes) of the employee, ex-gratia amount as under will be payable. (a) The cadre-wise ceiling on ex-gratia amount payable will be as follows:
Category Maximum Amount Officers Rs.8 lacs Clerical staff Rs.7 lacs Subordinate staff Rs.6 lacs
(b) In case the monthly income of the family as calculated above is less than 60%
of the last drawn gross salary (net of taxes) of the employee, an ex-gratia amount calculated at 60% of the last drawn gross salary (net of taxes) for each month of remaining service of the employees (i.e. up to the age of superannuation in terms of extant service rules/conditions) at
the time of his death / incapacitation subject to the cadre-wise ceiling of “Maximum Amount” mentioned under (i) above, will be payable. (c) In case of death of an employee performing official duty within or outside the
office premises (excluding travel from residence to place of work and back) due to dacoity / robbery / terrorist attack, the family is also eligible to receive, additionally, the one-time monetary compensation in terms of extant Government guidelines depending on the cadre of the employee.
(d) This Ex-gratia amount will be paid within 3 months of application. IMPLEMENTATION OF MODEL SCHEME BY BANKS The IBA Model Scheme has been faithfully adopted by the Banks during 2004 and 2005 and all compassionate appointments were banned. Even cases involving death of employees while on duty were not considered. It appeared as though the Bank managements were waiting for an opportunity to stop compassionate appointments.
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Even past cases prior to this Model Scheme and which were duly processed and approved by the managements including the Board of Directors and were in the process of issuing appointment orders were stopped. In a glaring example, a widow appointed by the Bank on compassionate ground after due approval of the Board and who joined the Bank was terminated on the plea that the approval was given before the Model Scheme and date of joining was after the Model Scheme. UFBU’s CALL FOR STRIKE – MARCH 2006 The IBA / Government’s scheme of totally banning the compassionate appointments and introducing an unilateral compensation scheme was not acceptable to the Unions and United Forum of Bank Unions on the following grounds:
(a) After Nagpal case, Banks were extending compassionate appointments duly taking into account the Supreme Court judgement.
(b) Supreme Court’s observations and Judgement was / is applicable to all but in Central Government / RBI / LIC / Railways, etc., Compassionate appointments still continued.
(c) Ex-Gratia Scheme, the ceilings, the procedure of calculations, etc. were totally unilateral.
(d) Ex-gratia Scheme’s benefit did not benefit majority of the families of deceased employees. Rather, their cases were mostly declined.
(e) Nagpal judgement did not ban compassionate appointments. In view of this, the UFBU gave a call for Strike on 9.3.2006 exclusively on this issue and demanded reconsideration of the Scheme to provide for compassionate appointments. The IBA did not come forward to discuss the issue stating that compassionate appointment is not a service condition or part of any Bipartite Settlement. CONCILIATION BY CLC (C): In view of UFBU’s Strike Notice, Chief Labour Commissioner (Central), Delhi intervened and held a conciliation meeting on 6.2.2006, 24.2.2006 and 6.3.2006. During the conciliation meeting, it was pointed out that while compassionate appointments scheme have been in vogue in Banks for almost 4 decades, even Nagpal Judgement of 1994 did not prohibit compassionate appointments. UFBU further pointed out other subsequent judgments like Balbir Kaur Vs SAIL dated 5.5.2000 and few other judgments have also opined that compassionate appointments can be given and that Ex-gratia can never be an alternative in all cases. CLC suggested that while compassionate appointments should be considered in exceptional cases, in other cases an improved Ex-gratia scheme can be discussed to enable the family to get monthly income near around the wages of the deceased employee.
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He advised both IBA and UFBU to sit together and work out a mutually acceptable scheme. Since IBA agreed to the same, the Strike was deferred. DISCUSSIONS WITH IBA Consequently, discussions were held on 9.5.2006 and 15.6.2006 on the issue when our suggestions as well as improvements were discussed. IBA agreed to place our views in their Managing Committee meeting and then forward the same to the government for their consideration. IBA MANAGING COMMITTEE MEETING The Managing Committee of the IBA was held on 16.6.2006 which considered our suggestions and approved the following:
(a) Compassionate appointments to be given to the family in cases of death while resisting dacoity, robbery, terrorist attack.
(b) In all other cases, Ex-gratia to be paid at 80% of the last drawn wages of the deceased employee for the remaining service period subject to a ceiling of Rs.6 lacs, Rs.7 lacs and Rs.8 lacs for Subordinate Staff, Clerical staff and Officers respectively.
These modifications were recommended to the Government by IBA in August 2006. The IBA also referred to the Government the demand of the UFBU for compassionate appointments to the spouse of an employee dying at a relatively young age provided he / she has the requisite qualifications. UFBU’S STRIKE CALL AGAIN Though the issue was referred to the Government in August 2006, there was no outcome from the Government. Hence, UFBU gave a call for 3 days strike on 28, 29, 30 March 2007 and Indefinite Strike from 3.5.2007, along with other demands like Pension option, etc. The Deputy Chief Labour Commissioner (Central), Mumbai and Chief Labour Commissioner (Central), Delhi held conciliation meeting and IBA did not come forward to resolve the issue. MEETING WITH PRIME MINISTER The UFBU met the Hon’ble Prime Minister Dr.Manmohan Singh on 19.3.2007 and submitted a Memorandum reiterating UFBU’s suggestions to IBA as under:
a) In cases of deaths on account of resisting robbery, dacoity, terrorist attack, etc and those who die in performance of their duties etc., the compassionate appointment scheme should be restored as existed hitherto.
b) In other cases of normal death of employees / officers in harness, compassionate appointments to the wife of the deceased employee should be considered looking to the age and family condition of the deceased. In case of
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death of employees of relatively young age, the employment to the wife should be extended.
c) In other cases, financial compensation scheme can be implemented in lieu of compassionate appointment.
d) The financial compensation should be evolved by mutual discussion. e) An option should be given to the widow to receive the compensation amount
on monthly basis instead of in lump sum. MEETING WITH FINANCE MINISTER On 21.3.2007, UFBU met the Hon’ble Finance Minister and submitted all our Strike demands. He suggested that he would advice IBA to hold discussions with UFBU on these demands to find a solution. MOU WITH IBA ON 21.3.2007 In this background of our meeting with Prime Minister and Finance Minister, IBA held a round of discussions with UFBU and consequently the Strike was deferred with the signing of an MoU. The MoU in relation to compassionate appointment was as under: “The UFBU explained the demands as follows:
a) In exceptional cases of deaths of employees and officers arising out of resisting dacoity, robbery, terrorist attacks and while in performance of duties, the erstwhile scheme of compassionate appointment would be restored.
b) In case of employees / officers dying at relatively young age, wife of the deceased employee would be considered for employment on compassionate grounds based on the qualification prescribed by the Banks for the purpose of recruitments.
c) As regards financial compensation on death in lieu of appointment would be made applicable based on emoluments drawn at the time of death, as per the details already worked out.
IBA informed that based on mutual understandings reached on the issues before the Chief Labour Commissioner (Central) and consequent discussions with UFBU, earlier recommendations have been forwarded to the government and that the response of the Government is expected shortly.” REVISED GOVERNMENT GUIDELINES – JUNE 2007 In the above background, the Government issued a revised guideline F-18/1/2006-1R dt.19.6.2007 providing for the following modifications:
(a) Compassionate appointments to be given to the next of kin of the employee dying while performing official duty as a result of violence, terrorism, dacoity or robbery.
(b) Compassionate appointments to be given to the next of kin of the employee dying within 5 years of his first appointment or before reaching the age of 30 years, whichever is later.
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The Government did not agree for any other suggestion of the UFBU or IBA including the recommendations of IBA on modified Ex-gratia formula. IBA GUIDELINES – JULY, 2007 Based on the above guidelines of the Government, IBA vide their circular No.1549 dt.19.7.2007 advised all Public Sector Banks to adopt the modified scheme incorporating the above guidelines of Government. Accordingly, the Banks have adopted this revised Scheme. UFBU LETTER TO IBA DT.2.8.2007 Since the above modifications were again unilateral and did not meet with our demands, the UFBU wrote a letter to the IBA Chairman on 2.8.2007 as under: “As far as the demand for restoration of Compassionate Appointments and improvement in the financial compensation scheme is concerned, we find that the revised scheme cleared by the Government neither amounts to any meaningful restoration of compassionate appointment nor any improvement in the financial compensation scheme. There is virtually no employee within the age of 30 years and hence in effect the scheme would not apply to any of the present employees or officers. Further there is no change in the financial compensation scheme which is in total disregard to the bilateral discussions held between IBA & UFBU on the advice of the Chief Labour Commissioner. Hence, on this issue also, we appear to be back in square one. ” UFBU CALL FOR STRIKE ON 12.9.2007 Since there was no response from the IBA or the Government, the UFBU from its meeting held on 22.8.2007 gave a call for an All India Strike on 12.9.2007 Arising out of this Strike Notice, once again the Chief Labour Commissioner held conciliation meeting on 3.9.2007 and 10.9.2007. During this discussion IBA agreed to the advise of the CLC for holding discussions with the UFBU within a fortnight to find amicable solution based on the MoU dt.21.3.2007. Hence, the Strike was deferred. ISSUE REMAINED UNRESOLVED: Even though one round of discussions took place with the IBA on 3.10.2007 on the issue of Pension Option, the IBA did not honour its commitments to hold further discussions on the various demands including on Compassionate appointments on the plea that compassionate appointments are based on Government guidelines and IBA cannot do anything on its own. Hence, the issue remains unresolved.
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UFBU’S CALL FOR STRIKE ON 25.1.2008 Since the IBA or the Government did not come forward to resolve the various issues contained in the MoU dt.21.3.2007 the UFBU gave a call for strike on 25.1.2008. In the conciliation meeting held on 23.1.2008, the IBA regretted their inability to make any improvements in the Compassionate Appointment scheme since their suggestions have not been accepted by the Government. In view of this and other issues also remaining unresolved the UFBU observed one day protest Strike on 25.1.2008. UFBU’S CALL FOR TWO DAYS STRIKE ON 25. 2. 2008 & 26. 2. 2008 In view of the negative approach of the IBA and Government, the UFBU gave a call for 2 days Strike on 25 / 26.2.2008. MEETING WITH BANKING DIVISION & FINANCE MINISTER ON 19-2-2008: In this background, the Secretary, Department of Financial Services, Ministry of Finance, Government of India, invited the UFBU for a discussion on 19.2.2008. During this meeting UFBU submitted its suggestions on compassionate appointments besides the other demands. This was followed by a meeting with the Hon’ble Finance Minister wherein also the UFBU explained all its issues. Regarding Compassionate Appointment, the attention of the FM was brought to the fact that notwithstanding the Supreme Court judgement of 1994, compassionate appointments are continued in Central Government, State Governments, RBI, LIC, Railways and some other public sector undertakings. We informed him that even deaths during the performance of duties are not fully included in the revised scheme except cases relating to dacoity / robbery. We also informed him that the understanding between IBA and UFBU on Ex Gratia has been declined in toto by the Government and virtually neither compassionate appointments are given nor Ex Gratia is paid. We also pointed out that the number of cases of death during service is very- very negligible. We further pointed out that the Banks would be needing additional manpower, compassionate appointments can be given in the Banking sector also if the dependents possess necessary qualifications. The FM assured to advise the IBA to receive the suggestions of the UFBU in this regard whereafter the matter could be reviewed by the Government. MOU WITH IBA ON 25.2.2008 In this background, discussions were held before the CLC ( C ) and later with the IBA and an MoU was signed between UFBU and IBA on 25.2.2008 on various issues including on compassionate appointments which reads as under:
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“As regards restoration of Compassionate appointment scheme, the IBA requested UFBU to suggest improvement, modifications, etc to the scheme to enable IBA to refer the matter to the Government for further consideration” MEETING WITH IBA ON 18 / 25.3.2008 Based on the MoU as above, discussions were held with UFBU on 18.3.2008 and 25.3.2008 wherein the UFBU explained its suggestions for improvements and modifications in the compassionate appointment scheme. It was agreed that UFBU would submit its detailed views and suggestions to the IBA. Hence this memorandum containing our views and suggestions. Before recording the suggestions, the UFBU wishes to draw the attention of the IBA/Government to the following: 1. PARLIAMENTARY STANDING COMMITTEE ON COMPASSIONATE GROUND APPOINTMENTS: The Government appointed an exclusive Parliamentary Standing Committee under the Chairmanship of Shri E.M. Sudharsana Natchiappan, Member of Parliament to go into the issue of Government’s policy of appointment on compassionate grounds. The Committee had gone into the issue in detail and has submitted its report to the Parliament in Sep.2007. The Committee, among other things, made the following observations: Para 4.1 : After going through the judgements cited above, the Committee has an inference that Supreme Court also upholds the relevance of the policy in the PSUs and Government Departments. The Committee acknowledges that the court in its judgements tried to ensure implementation of the policy in a logical manner. The Committee is however constrained to note that many of the PSUs / Banks construed the judgements otherwise and thereby restricted the implementation of the policy of appointment on compassionate ground. While interacting with PSUs and Banks, the Committee came across such arguments. The Committee feels that the judgements particularly the Nagpal case was very often misquoted and misrepresented as if the Supreme Court banned the appointment on compassionate ground. Para 6.5 – The Committee strongly feels that the Judgement given / delivered by the Hon’ble Supreme Court in Shri Umesh Kumar Nagpal vs State of Haryana and others does not totally ban employment on compassionate grounds, rather it has been misquoted / misinterpreted / misunderstood that the Hon’ble Supreme Court has totally banned the compassionate employment. The Committee feels that the Government should not put a blanket ban on providing compassionate appointment to the family members of the deceased employees in the public sector banks, rather should find ways and means for giving employment under compassionate grounds in
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view of the shrinking employment opportunities in the Banking sector. The Committee therefore recommends that the Government should not totally ban the appointments on compassionate grounds in the Banking Sector, rather think of providing compassionate appointments to the family members of the deceased. For this, the power to appoint on compassionate grounds may be conferred on the CMDs of Public Sector Banks so as to enable them to give appointments to well deserved cases alone. Para 9.5 – The Committee feels that in a welfare state like ours it is obligatory on the part of the government to provide the social security net to the employees and appointments on compassionate ground is one such measure. It gives a sense of being part and parcel of the organisation amongst its employees who feels that in case of falling victim at the hands of cruel destiny the organisation would take care of their families. The umbrella of protection certainly boosts the morale of not only the employees but also their families. The Committee therefore recommends that the policy of compassionate appointments should continue in the government, its PSUs, organisations, Trusts, etc. as a measure of Social Security Net and also consider offering the package on the lines of Chennai Petroleum Corporation Ltd. so that the family of the deceased employees survive the sudden void and crisis created by the cruel destiny. (Full Report given as Annexure) 2. COMPASSIONATE APPOINTMENT IN CENTRAL GOVERNMENT Para 124.35 The Scheme – The scheme of compassionate appointments was conceived as far back as 1958. Since then a number of welfare measures have been introduced by the Government which have made a significant difference to the financial position of the families of Government servants dying in harness but the scheme still continues as a welfare measure in recognition of the need for immediate assistance to a family on the death of a Government servant in harness. Consequent on the observations/directions of the Supreme Court in its judgement, dated 8.4.1993, the provision relating to appointment on compassionate grounds of a near relative has been deleted and the scheme is now applicable to widow, son or daughter incases of death in harness, suicide and in exceptional cases of retirement of Government servant on medical ground before attaining the age of 55 years (57 years in case of Group ‘D’). The percentage of vacancies which can be filled by compassionate appointment in a given year is 5% of the direct recruitment quota. 124.36 Removal of ceiling on compassionate appointments – A review of the desirability of continuance of the practice of compassionate appointments has been sought on the ground of its impact on efficiency. Removal of the existing ceiling on the percentage of posts which can be filled by compassionate appointments has also been sought. 124.37 Our recommendations – We have considered the suggestions and taken note of the fact that the scheme of compassionate appointments envisages appointment of applicants only if they are eligible and suitable for a post in all respects under the
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provisions of the relevant recruitment rules, and such applicants are given relaxation only in recruitment procedure and age limit. The Scheme itself takes adequate care that appointments made are consistent with the requirements of maintenance of efficiency of administration. We are, therefore, of the view that the existing practice of making appointments on compassionate grounds in deserving cases needs to be continued. As regards removal of ceiling on the percentage of posts which can be filled by compassionate appointments, we are of the view that removal of the ceiling would reduce the number of posts available to candidates coming through direct recruitment which is not desirable. The existing ceiling of 5% in respect of compassionate appointments, therefore, needs to be maintained and followed strictly. 124.38 Enlargement/contraction of the scheme – Extension of facility of compassionate appointments to dependents other than widows / son / daughter of the deceased Government servant and restricting the compassionate appointments to widows alone have been suggested. 124.39 Our recommendations – The scope of the scheme providing for appointment on compassionate grounds has already been narrowed by deleting near relatives from the scheme by the Government. In view of the fact that existing provisions in the scheme are in conformity with the observations of the Supreme Court, inclusion of other relatives within the scope of the scheme or exclusion of son/daughter therefrom would not be appropriate. 124.40 Lumpsum payment in lieu of compassionate appointment – It has been urged that the families of deceased Government servants who die in harness or those who are retired on medical grounds should be paid a lumpsum amount in cases where compassionate appointments are not feasible on administrative grounds. 124.41 Our recommendations – We have considered the suggestion carefully and do not support the idea of making lumpsum payment in lieu of compassionate appointments because the facility of compassionate appointments is extended as an additional benefit to families in immediate need of assistance. 124.42 Time-limit for belated requests – Suggestions have been made that the time lag in compassionate appointments should be reduced and the appointment made within a reasonable period of the demise of the Government servant and not postponed for unduly long periods on the ground that dependent children have not attained majority. 124.43 Our recommendations – Since compassionate appointments can be made up to a maximum of 5% of the vacancies falling under direct recruitment quota in any Group ‘C’ or ‘D’ post, the applicants have sometimes to wait for a long time because of number of applicants exceed the ceiling of 5%. While in such a situation, delay in making compassionate appointments appears to be unavoidable, care should be taken that requests for compassionate appointments are
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received normally within a period of one year from the date of demise of the Government servant and delay does not take place on any other ground. The scheme of compassionate appointments having largely been related to the need for immediate assistance to the family on the passing away of the Government servant in harness, we are of the view that compassionate appointments should be made within a reasonable period of time after the demise of the Government servant and not postponed for unduly longer periods. The very fact that the family has been able to manage somehow all these years should normally be adequate proof to show that the family had some dependable means of subsistence. We have also taken note of the present safeguard that belated requests can be considered at the level of Secretary alone, which we feel is salutary in nature. We are of the view that appointments on compassionate grounds shall be made at the most within five years of the date of demise, and even such belated appointments should made only in the case of minor children who could not have been appointed because of their age being less than the minimum age of recruitment to Government service. 3. COMPASSIONATE APPOINTMENTS IN RBI
1. Revised Compassionate Package Scheme for the dependents of employees dying harness was introduced w.e.f. 4.12.1999 (After U.K. Nagpal judgement)
2. Spouse of employees who were in service as on 4.12.1999 will have option to seek employment (or) receive lump sum payment of Ex-gratia.
3. Spouse of employees joined / joining after 4.12.1999 will be eligible for Ex-gratia only.
4. Spouse of existing employees as on 4.12.1999 who have crossed 50 years of age on the date of death of age on the date of death of the employee will be eligible for Ex-gratia only.
5. Rate of Ex-gratia One month total emolument for each completed year of service
(or) 1½ month total emolument for each remaining year of service whichever is higher
Provided Maximum: Total emoluments for remaining period of service Minimum: Not less than notional value of pension commutation 4. Waiver of Loans Outstanding of housing loan and other loans taken from the Bank by the deceased employee will be waived if the spouses do not opt for Compassionate Appointment Maximum Waiver a) Class IV Rs.2.50 Lacs b) Class III Rs.3.00 Lacs c) Officer Grade A, B, C Rs.3.50 Lacs d) Officer Grade D Rs.4.00 Lacs
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Note: If the deceased employee had not availed Housing Loan, additional 6 months emoluments will be paid to the spouse / dependent. 5. COMPASSIONATE APPOINTMENTS IN LIC
Compassionate Appointment Scheme provides for appointments in the case of death of an employee (or) premature retirement on health grounds before the age of 55.
Appointment will be given to spouse, son or unmarried daughters. Assistant Post : Spouse – pass in SSC with 45% marks
Son / Daughter – Graduate or HSC with 50% marks Record Clerk : Spouse – pass in SSC
Son / Daughter – SSC with 45% mark or a pass in HSC Class IV post (Sweepers) : No educational qualification Other than Sweepers : Only son is eligible
Hamals : Pass in 3rd Standard Watchman, etc. : Pass in 7th / 8th Standard
Widows are eligible for the post of Sub-staff Relaxation in Age:
Spouse : Upper age limit: 45 years Son / Daughter : Upper age limit: 30 years A widow already employed elsewhere in private sector will be allowed to take
the job in LIC in Class III or Class IV post commensurate with her qualification if she opts for this job.
Application for Compassionate appointment to be given within 1 year of death / voluntary retirement on medical grounds before 55 years of age.
Widow is allowed 5 years time from death of her husband to secure prescribed qualification for Class III post.
Son / Daughter is given 2 years to acquire prescribed qualification for Class III post.
Minor Son / Daughter will be given 3 years time to attain majority age to seek the job.
Normal recruitment process / rules will not apply to compassionate appointments. There will be no written test for them. Only interview will be held.
All compassionate appointments shall be subject to existing sanctioned vacancy.
6. COMPASSIONATE APPOINTMENTS BY STATE GOVERNMENTS Even after the Supreme Court judgement in U.K. Nagpal case, various state Governments have been extending Compassionate Appointments Madhya Pradesh (22.1.2007) 1. Fully dependent spouse, children, brother, sister eligible.
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2. Appointment will be confined to Class III & IV post only. 3. 3 years time given to acquire qualification. 4. No maximum age limit for wife. 5. 8 years age relaxation for children. 6. For minor children, appointment can be given up to 7 years after death. 7. Appointment to be given in same department 8. If post is not available, in some other office within the same district. 9. If Class IV is not available, lump sum payment of Rs.1 Lac. 10. For those killed in communal riots, if main bread winner dies, one family
member is to be given a Government job. Tamilnadu (12.3.2007)
1. Conditions of Supreme Court to be strictly followed. 2. Dependent will be given the job. 3. Appointments will be in Class III & Class IV only 4. Appointing Authority will examine the financial condition of the family.
Tahsildar certificate for indigency will be obtained. 5. Family Pension of the deceased employee and immovable property like living
house of the employee need not be taken for calculating the income of the family.
6. Application should be received within 3 years 7. Appointment will be given out against actual vacancy and not in
supernumerary post. 8. Since there was a ban on recruitment from 29.11.2001 to 21.2.2006, family of
employees who died during this period can now apply within 3 months. MAHARASHTRA: Recently, there have been reports that the Government of Maharashtra has decided to release 19,000 cases of compassionate ground appointments pending with them since 1997 since the Government is going to fill up the various unfilled vacancies. 7. COMPASSIONATE APPOINTMENTS IN RAILWAYS 1. Compassionate ground appointment scheme will apply to Railway employees
(1) who lose their lives in the course of duty (or) (2) die in harness otherwise while in service (or) (3) are medically incapacitated or (4) whose whereabouts are not known for a period of 7 years.
2. Job can be given to wife / husband / son / daughter. 3. In husband and wife are working in Railways and if husband dies, then job can
be given to the ward. 4. If the widow cannot take the job, Railways can keep the job open till the minor
son affairs majority but within 5 years. 5. The applicant should fulfil conditions of eligibility of age and qualification. No
relaxation in educational qualification. 6. For posts like Water Woman, Sweeper, Khalasi, etc minimum qualification will
not be insisted upon. 7. For posts like Assistant Station Master, Guard, Senior Clerk, etc. graduation
will be insisted.
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8. Appointments can be made only in recruitment grades and not in promotional grades.
9. Suitability will be subject to a test by 3 officials. 10. Son of a deceased group D employee can be appointed in Group E if qualified. 11. To accommodate illiterate widows, posts like Waiting Room Attendant may be
exclusively reserved for them. 12. Upper age limit can be relaxed. 8. COMPASSIONATE APPOINTMENTS IN PUBLIC SECTOR COMPANIES Public Sector Companies and Undertakings are equally governed by the general guidelines of the Government as well as the rulings of Supreme Court. While Compassionate Appointment are banned in Public Sector Banks, the same is continued in Public Sector Companies. For example, it is learnt that Compassionate Appointments are still given in GAIL, STC, Container Corporation of India, Bharat Dynamics, Neyveli Lignite Corporation, Cochin Port Trust, Bharat Petroleum, Chennai Port Trust, etc. In Chennai Petroleum Corporation, earlier Compassionate appointments were being made. This has been substituted by a different scheme by which the family of the deceased employee is paid the total and full salary of the deceased employee till the actual date of superannuation without making any cut. PUBLIC SECTOR BANKS: OTHER THAN GOVT. MODEL SCHEME:
Union Bank of India Ex-gratia Compensation Scheme (Decided by Board meeting on 21.12.2005)
a) Dependent of deceased employees will be granted Ex-gratia if the income of the family is less than 100% of the gross salary of the deceased.
b) Amount = Last drawn gross salary for balance service Minimum Maximum Sub-staff 2.00 Lacs 6.00 Lacs Clerical 3.00 Lacs 7.00 Lacs Officers 4.00 Lacs 8.00 Lacs
Bank of India
60% of last wages for remaining service Maximum Rs.6.00 lacs, 8 lacs & 10 lacs
9. COMPASSIONATE APPOINTMENTS IN PRIVATE BANKS In the Private Sector Banks like Karnataka Bank, ING Vysya Bank, Lakshmi Vilas Bank, Federal Bank, etc, the managements continue to extend Compassionate Ground appointments upon the death of employees while in service. There are even agreements to this effect which continue even today.
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JUSTIFICATIONS FOR COMPASSIONATE APPOINTMENTS IN BANKS
1. Compassionate appointments were being made in Banks as per scheme advised by Government in 1978.
2. From 1996, based on Supreme Court judgement in Nagpal case, compassionate appointments were being given duly taking into account the viewpoints of the Supreme Court.
3. Even the Supreme Court in the Negpal case (1994) has not prohibited or banned compassionate appointments.
4. In 2000, Supreme Court has given another landmark judgement in Balbir Kaur Vs SAIL directing compassionate appointment. There have been various other judgements also indicating that Compassionate Appointments can be given to the dependent on the death of an employee.
5. For 2004, Compassionate appointments have been totally banned in Banks quoting Nagpal judgement even though there is no such ban order in that judgement.
6. Even today, even after the Nagpal judgement, compassionate appointments are being given in Central Government.
7. Various State Governments continue to give compassionate appointments. 8. In Railways, various Public Sector Undertakings, Private establishments,
compassionate appointments are being given. 9. Within the financial sector also, in RBI & LIC, compassionate appointments
scheme continues and appointments are being given. 10. Within the banking sector, private banks also give compassionate
appointment. 11. The arguments that compassionate appointments lead to surplus staff is a
fallacy. There are large number of vacancies unfilled in the Banks and acute shortage of staff is the reality.
12. Number of Banks have started the process of recruitments. There may be surplus pockets, if at all, in some area or place, but there is no surplus staff in any Bank as a whole.
13. The incidence of death in harness is very negligible. It is less than 0.50% of the total employees per year on an average.
14. Even if the widow / family of the deceased employees are offered employment, the number will constitute a very small portion of the available vacancies.
15. In fact, some of them will not be eligible for a job for want requisite qualification and some widows may not take up the job due to family circumstances. Hence the actual incidence of jobs on compassionate ground will by very marginal.
16. Invariably, the deceased employee happens to be the main or sole breadwinner of the family and his death while in service destabilizes the entire economics of the family. A job on compassionate ground is a great support to the family in distress.
17. It may be further mentioned that when an employee retires from service, they get the lump sum commuted value of pension but when an employee dies while in services, this amount is not payable.
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18. It is also a fact that bank employees being middle-class employees resort to loans and borrowings to make both ends meet. These loans are not only from the Banks but sometimes from other recognized sources also. When an employee suddenly dies while in services, the savings or terminal dues go to liquidate these loans and the family is facing difficulties.
19. Further, in these days of changed economic conditions, after the death of the bread-winner, the widow is needed to take care of the education of the children and marriage of the daughters which sucks a substantial portion of whatever the family gets as terminal benefits:
20. To sum up: UFBU submits that compassionate appointments can be given in the Banks since:
a. Supreme Court has not banned compassionate appointments. b. Banks’ scheme on compassionate appointment is based on
Government guidelines only. c. Compassionate grounds appointments are available in Central
Government, State Government, Public Sector, RBI, LIC, Railways, Private Sector, etc. and denial of the same only to Banks appears to be discriminative.
d. No. of deaths of employees in service is marginal. e. Banks require a lot of additional staff in the coming years. f. If prescribed qualification for normal recruitment is ensured in
compassionate appointments also, it will not create any problem relating to quality.
g. Compassionate ground appointments may be given in the banks without violating the guidelines of Supreme Court judgements.
UFBU’S SUGGESTIONS
From the above submissions and details provided hereinabove, it will be clear that the present ban / restrictions on compassionate appointment is totally unjustified. Having regard to the developments and justifications mentioned above and without prejudice to our contentions and claims on our demand for compassionate appointments and having regard the need for working out a mutually acceptable formula to deal with situations arising out of unfortunate death of an employee or officer while in service, and further having regard to the observations of the Supreme Court, we submit the following suggestions: a) DEATH WHILE IN PERFORMANCE OF DUTY: In cases of deaths during performance of duties/related to duties in all contingencies including cases where an employee dies while resisting robbery, dacoity, terrorist attacks, attack by borrowers/other while on recovery and other duties, fatal accidents, death during office hours, etc. compassionate appointment to be extended to the spouse or dependent son/daughter. b) DEATH ARISING OUT OF TERMINAL DISEASES: In the cases of deaths due to employees suffering from terminal diseases like cancer, etc. compassionate appointment to be extended to the spouse or dependent son/daughter.
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c) DEATH DUE TO NATURAL CALAMITIES, ETC. Spouse/dependents of employees who lose their lives in natural calamities, violence, civil commotion, etc. to be considered for compassionate appointment. d) MISSING EMPLOYEES: Wife of an employee who has been missing and not traceable for more than 2 years to be considered for compassionate appointment. e) OTHER DEATHS IN HARNESS/DURING SERVICE: In all other cases, the widow of the deceased employee to be considered for compassionate appointment subject to the widow being 50 years of age and below. f) PREMATURE RETIREMENT DUE TO INCAPACITATION: In cases where an employee becomes physically incapacitated due to medical grounds, he may be permitted to retire prematurely and his dependent may be considered for employment in the Bank provided such an employee is 55 years of age and less. g) If the deceased Employee is a widower, his son / daughter to be made up eligible for compassionate appointment. OPTION FOR EX-GRATIA LUMP SUM: In case the widow is unable to accept the employment in the Bank due to genuine reasons though otherwise eligible for compassionate appointments, she may be given an option to avail of ex-gratia payment in lieu of employment. EX-GRATIA SCHEME: In all other cases not covered under (a) and (g) above, ex-gratia payment should be made to the dependent / family based on 80% of the last drawn emoluments for the remaining years of service with a ceiling of Rs. 9 lacs for subordinate staff, Rs. 10.50 lacs for Clerical staff and Rs. 12 lacs for officer staff with suitable minimum compensation amount. OPTION FOR MONTHLY INCOME: Further an option should be given to the widow / family to avail of the ex-gratia on monthly basis by keeping the ex-gratia amount with the Bank as a deposit for a period upto the notional date of retirement of the deceased employee.
UFBU SUGGESTS THAT A CEILING ON COMPASSIONATE APPOINTMENTS IN AN YEAR MAY BE FIXED AT 2% OF TOTAL NUMBER OF EMPLOYEES IN A BANK IN THAT YEAR.
Qualification: Qualification as applicable to normal recruitments may be prescribed
Age: Suitable relaxation in age to be given Waiver of Loans: Housing Loan and other staff loans availed by the deceased
employee may be waived upto a ceiling amount and provision for continuation of staff Quarters for 2 years as in the case of RBI.
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Financial condition of family/widow to be considered with relaxations, compassion, sympathy, other recognizable debts/loans of deceased, future liabilities like marriage of daughters and education of children, medical expenses and exclusion of normal savings, own PF, personal insurance policies, income from house, family pension, etc. from income criteria. Some standard minimum liability norms may also be worked out.
Notional monthly income from out of net available funds after adjusting liabilities to be calculated at 5% p.a. since a portion of it has to be kept in savings account for immediate contingencies and only a portion of it can be invested in Fixed Deposits.
Regarding extant guidelines relating to disciplinary action against the deceased employee, the same needs to be reviewed since any charge or action will abate with the death of the employee.
Applications received upto 1 year from the date of death to be considered. Where the dependent is minor or under-qualified, their representation can be
registered and accepted provided four years time may be given to reach the age of majority or to acquire the necessary qualification.
Applications for compassionate appointments / ex-gratia should be considered within a period of three months.
All the past cases should be reviewed/reconsidered based on the modified scheme as above.
We are sure that the Government and the Indian Banks Association will appreciate the sensitivity of the issue involved, understand the genuineness of our demand and having regard to the justifications, suggestions and submissions made hereinabove and further having regard to the fact that compassionate appointment schemes are available in Central / State Governments, Public Sector, RBI, LIC, Railway, etc. as well as the fact that Supreme Court has not banned or prohibited such compassionate appointments, reconsider the matter and revise the Scheme accordingly to provide for compassionate appointments in the Banks. Thanking you,
Yours faithfully, C.H. VENKATACHALAM GENERAL SECRETARY - AIBEA and CONVENER, UFBU G.D. NADAF GENERAL SECRETARY - AIBOC V.K. GUPTA GENERAL SECRETARY – NCBE R.J. SRIDHARAN GENERAL SECRETARY - AIBOA
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PRADIP BISWAS GENERAL SECRETARY - BEFI SUBHASH S. SAWANT GENERAL SECRETARY – INBEF K.K. NAIR GENERAL SECRETARY - INBOC ASHWANI RANA GENERAL SECRETARY – NOBW S.N. JOSHI GENERAL SECRETARY - NOBO
Annexure – 5
SCHEME FOR PAYMENT OF EX-GRATIA AMOUNT IN LIEU OF APPOINTMENT ON COMPASSIONATE GROUNDS
(REF NO. EST / 36 / 2004 -05 DT.04.10.2004.)
1. Background A Scheme for appointment of dependents of deceased employees on compassionate grounds to be uniformly implemented by public sector banks was advised by the banking Division, Government of India, on 12.9.1978. Appointments could be made against specific existing vacancies or in expectation of vacancies. Written tests prescribed for regular recruitment to such posts were waived, in these cases. The Government has modified / relaxed the provisions of the Scheme from time-to-time. In May 1982, Government permitted banks to modify the Scheme so as to extend the benefit of compassionate appointment even to the dependents of those who demit office on medical grounds subject to certain provisions in this regard. The Supreme Court of India in a landmark judgment concerning Shri. Umesh Kumar Nagpal Vs State of Haryana and others (JT 1994(3) SC 525) has laid down the following principles:
“....As a rule, appointment in the public services should be made strictly on the basis of open invitations of applications and merit. However, to this general rule, there are some exceptions carved out in the interest of justice and one such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. The whole object of granting compassionate employment is thus to enable the candidate 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 of the deceased will not be able to meet the crisis, that a job is to be offered to the eligible member of the family.”
Compassionate employment can only be offered in posts in Class III and IV.
Compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the Rules.
A Guide to Your Duties and Rights A Guide to Your Duties and Rights - 2011 The Government has advised all the public sector banks in August 1996 to keep the above principles in view while deciding compassionate appointments in the banks.
Notwithstanding the objective of the Scheme, over a period of time, banks have been facing several difficulties in administering the Scheme, some of which are mentioned here below:
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(a) Building up of excess manpower due to appointment on compassionate grounds in supernumerary positions.
(b) Compulsion to appoint dependents despite their not possessing the minimum academic / technical qualifications required for the job in the emerging competitive and technological environment when business models and strategies are undergoing constant change.
(c) Litigations for employment of dependents, even from those who have opted for pension and who take voluntary retirement on medical grounds.
(d) Practical difficulties in determining indigent condition of the family of the deceased employee.
2. Objective In the light of the principles laid down by the Supreme Court in its judgement concerning Shri. U.K. Nagpal Vs State of Haryana and others, it may be observed that the Court while stating that the object is not to give a member of such family a post, much less a post for a post held by the deceased, was laying stress on the need to provide relief to the family of a deceased employee to tide over the sudden crisis brought about by his / her premature death. The relief envisaged could be of a nature which would provide the distressed family immediate succour and financial assistance to recover from the unexpected deprivation of the income of the sole bread-winner of the family. Keeping this in perspective and with a view to bring about a balance between the business objectives of banks and their social obligations towards the families of employees dying in harness, a Scheme is being proposed for grant of ex- gratia amount to the family of the deceased employee in lieu of appointment on compassionate grounds. 3. For the purpose of the proposed Scheme, “employee” would mean and include
only a confirmed regular employee who was serving full time or part-time on scale wages, at the time of death / premature retirement and does not include any one engaged on contract / temporary / casual / part-time on consolidated wages or any person who is paid on commission basis.
4. The Scheme will be applicable in the following cases of employees:
(i) Employee dying in harness (other than due to injury while performing official duty).
(ii) Employee dying due to injury sustained while performing official duty within or outside office premises (excluding travel from residence to place of work and back).
(iii) Employee dying while performing official duty within or outside the office premises (excluding travel from residence to place of work and back) due to dacoity / robbery / terrorist attack.
(iv) Employee seeking premature retirement due to incapacitation before reaching the age of 55 years.
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5. In the above cases, ex-gratia amount will be paid to the family of the employee if eligible and if requested for within twelve months from the date of the death of the employee.
“Family” for this purpose would mean and include spouse, wholly dependent children (son, including legally adopted son/unmarried daughter including legally adopted unmarried daughter). In case of unmarried employee, parents who are wholly dependent on the employee will constitute “family”.
6. Ex-gratia may be granted to the family of the employee in the manner and
subject to the ceilings specified below, if the monthly income of the family from all sources is less than 60% of the last drawn salary (net of taxes) of the employee.
Calculation of monthly income (1) Terminal Benefits
(i) Provident Fund (ii) Gratuity (iii) Leave Encashment (iv) Any other amount paid under Bank’s
Scheme (s)___________________
Sub-total (A)_________________
(2) Liabilities
Loans taken from bank and / or other financial institutions with the prior approval of the bank
Sub-total (B) ________________ (3) Net corpus of terminal benefits (C=A-B) (4) Investments
Deposits NSCs PPF LIC Policies Others
Sub-total (D)_______________ (5) Details of movable property, if any, held and monthly income derived
therefrom. (6) Details of immovable property, if any, held and monthly income therefrom. (7) Monthly income of the family from all sources(
i) Monthly interest at the bank’s maximum term deposit rate on the net corpus of terminal benefits (C)
(ii) Monthly income from investments (D) (iii) Monthly income from movable and Immovable
property (iv) Monthly income of dependent family Members
excluding major children
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(v) Any other monthly income Total monthly income of the family __________
___________ 7. If the total monthly income of the family arrived at as above is less than 60% of
the last drawn gross salary (net of taxes) of the employee, ex-gratia amount as under will be payable.
(i) The cadre wise ceiling on ex-gratia amount payable will be as follows:
Category Maximum Amount Officers Rs.8 lacs Clerical Staff Rs.7 lacs Subordinate Staff Rs.6 lacs
(ii) In case the monthly income of the family as calculated above is less than 60%
of the last drawn gross salary (net of taxes) of the employee, an ex- gratia amount calculated @ 60% of the last drawn gross salary (net of taxes) for each month of remaining service of the employee (i.e. up to the age of superannuation in terms of extant service rules / conditions) at the time of his death / incapacitation subject to the cadre-wise ceiling of “Maximum Amount” mentioned under (i) above, will be payable.
(iii) In case of death of an employee performing official duty within or outside the office premises (excluding travel from residence to place of work and back) due to dacoity / robbery / terrorist attack, the family is also eligible to receive, additionally, the one-time monetary compensation in terms of extant government guidelines depending on the cadre of the employee.
8. In case of an employee seeking premature retirement due to total incapacitation for work, the ex-gratia is payable only if all the extant provisions for such retirement are fully satisfied and the retirement has been approved by the competent authority specified therefor.
9. While dealing with proposals for grant of ex-gratia as above, in cases where disciplinary action has been taken / was pending against the employee dying in harness or the deceased employee was involved in financial irregularities, embezzlement of funds, committing frauds etc., banks will continue to abide the guidelines issued by the Government of India requiring consideration and decision in each case by the Board of the bank.
10. The ex-gratia amount in eligible cases will be paid within 3 months of receipt of application, complete in all respects.
11. The ex-gratia relief under the above scheme is not an entitlement but may be granted at the sole discretion of the Bank looking into the financial conditions of the family and in deserving and eligible cases only.
12. The Board of the bank reserves its right to substitute, amend or vary from time-to-time any provision of the Scheme mentioned above.
13. The new scheme approved by the board comes into effect immediately. However, all pending applications (which are under various stages of processing) of such of those cases where the deaths of the employees have taken place on or before 31.03.2004 will be dealt with, in accordance with the existing compassionate appointment norms.
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INDIAN OVERSEAS BANK
PERSONNEL ADMINISTRATION DEPARTMENT CENTRAL OFFICE ....................
Application for payment of ex-gratia in lieu of appointment under Compassionate grounds. Please read instructions given in page No.320 before filling up application. 1. PARTICULARS OF THE DECEASED / PREMATURELY RETIRED
EMPLOYEE DUE TO TOTAL INCAPACITATION FOR WORK a. Name Sh./Smt b. Roll Number c. Designation d. Branch/Office last attached e. PAN No. of the deceased f. Date of birth g. Date of joining the Bank h. Date of death/Premature retirement i. Cause of Death/premature retirement j. Marital status Single/Married 2. PARTICULARS OF LEGAL HEIRS/DEPENDANTS: S. No.
Name and Address Sri/Smt/Ms
Relationship to the deceased/ Retiree
Date of birth & age
Educational Qualification
Marital Status
Employment particulars
Income p.m. Rs.
(Legal heirship certificate issued by Revenue Authorities not below the rank of Tahsildar to be enclosed) 3. DETAILS OF ASSETS OF THE DECEASED/PREMATURELY RETIRED
EMPLOYEE a. Whether the deceased employee/spouse has a house in his/spouse name? :
Yes/No b. If yes, whether the house is self occupied or let out. : c. If the house is let out, then rent received per month : Rs. d. Whether the employee had other immovable properties in his name? : Yes/No (such as land, building, agricultural lands, other ancestral properties etc.) e. Monthly income from immovable properties : Rs. f. Details of movable properties in the name of the deceased : g. Monthly income from movable properties : Rs. h. Income from any other source (Specify) : Rs. i. Monetary value of savings : Face Value Date of Maturity Rs. Maturity
value Rs. 1. LIC Policies
(Amount settled/likely to be settled)
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2. National Savings Certificates 3. PPF 4. Deposits 5. Shares, Debentures, Bonds, etc. 6. Any others (Specify)
4. LIABILITIES OF THE DECEASED/PREMATURELY RETIRED EMPLOYEE
a. Details of all loans outstandings (as on date of death/premature retirement of the employee with interest)
b. Details of loans taken from other financial Institutions with the prior approval of the Bank (as on date of death/premature retirement of the employee, with up to date interest)
5. PARTICULARS OF FAMILY MEMBERS :
1. Whether the spouse or any children are having house in their names? If so, give details such as in whose name, the rent, if any, being received etc.
2. Details of movable property, if any, held and monthly income derived. I hereby declare that all the information and particulars given by me in this form are true and correct. I also note that if any of the above statements/information are incorrect or false or if any material information of particulars has been found to be suppressed or omitted therefrom, am liable to refund the entire ex-gratia amount to the Bank.
Place : Date : Signature of the Claimant (Claimant should be Spouse in the case of married deceased/prematurely retired employee & Parents in the case of unmarried deceased/prematurely retired employee)
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TO BE VERIFIED AND CERTIFIED BY THE BRANCH MANAGER/CHIEF OFFICER WITH OFFICE SEAL
1. Last drawn salary of the deceased/prematurely retired employee, when he had drawn full salary
Rs. Basic Pay DA HRA Notional HRA (in case deceased/retired was staying in Bank quarters) CCA PPA Conveyance allowance Others (Any allowance of permanent nature)
2. Was the employee a pension optee? : YES / NO 3. Was he a member to the SSBS? : YES / NO 4. Details of loans outstanding in the name of the deceased/prematurely retired
employee : (Even if all the loans are closed from the terminal benefits, the details as on date of death/premature retirement of the employee, with interest are to be furnished)
S.No. Particulars of the loans Amount outstanding (with interest) Rs. 1 Staff Housing loan 2 Staff Consumer Loan 3 Vehicle Loan 4 Term Loan 5 Jewel Loan 6 Festival Advance 7 Demand Loan 8 DL (NSC) 9 DL (LIC) 10 DL (Jewel) 11 DPNL 12 DL (Share) 13 Flood Loan 14 Winter Loan 15 Others (specify) 5. (i). Details of Assets of the deceased/prematurely retired employee S.No. Particulars Amount (Rs.) i. ii. iii. iv. v.
NSC LIC (SSS) LIC (Direct) Bank Shares Other Shares/Debentures/Bonds
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iv. vi. vii. viii. ix. x. xi. xii. xiii. xiv. xv.
PF PPF VCPF Deposits Gratuity Compassionate Gratuity Group Insurance Accident Insurance Income from Movable Property Income from Immovable Property Any other Income
(ii). Details of amount, if any held in suspense/sundry creditors accounts : 6. Details of encashable leave/amount paid/likely to be paid : 7. Whether the deceased member has been punished for any minor or major
misconduct? If so, the details may be furnished : Verified that Shri/Smt ................................................ was in active service of this office / branch at the time of his/her death/premature retirement. The above particulars have been verified and found correct. Also it is confirmed that no disciplinary proceedings were pending or were being contemplated at the time of death/premature retirement of the employee nor was there any disciplinary proceedings against his/ her before his/her death/premature retirement. Date : Chief/Senior Manager
(Name & designation of the signatory with office seal)
REGIONAL OFFICE We certify the following: 1. The employee was not proceeded against in any manner during his service. 2. No disciplinary proceedings were pending or were being contemplated at the time
of the death/retirement of the employee under Vigilance angle/IR angle. 3. The member has not remained on absence/leave/on loss of pay during the last one
year. Date : Deputy Chief Officer/Chief Officer
RECOMMENDATIONS
Chief/Senior Regional Manager
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INSTRUCTIONS FOR FILLING UP THE APPLICATION: 1. The ex-gratia relief under the above Scheme is not an entitlement but may be
granted at the sole discretion of the Bank having regard to the financial conditions of the family and in deserving and eligible cases only.
2. The Scheme will be applicable in the following cases of employees: i. Employee dying in harness (other than due to injury while performing official duty). ii. Employee dying due to injury sustained while performing official duty within or
outside office premises (excluding travel from residence to place of work and back).
iii. Employee dying while performing official duty within or outside the office premises (excluding travel from residence to place of work and back) due to dacoity/ robbery/terrorist attack.
iv. Employee seeking premature retirement due to incapacitation before reaching the age of 55 years.
3. Ex-gratia amount will be paid to the family of the deceased if eligible and if requested for within six months from the date of the death of the employee.
4. Family for this purpose would mean and include spouse, wholly dependent children (son, including legally adopted son/unmarried daughter including legally adopted unmarried daughter). In case of unmarried employee, parents who are wholly dependent on the employee will constitute “family”.
5. Affidavit duly notarised as per annexure II (format enclosed) has to be submitted by the claimant of deceased employee.
6. Death Certificate to be enclosed. 7. Proof for cause of death to be enclosed. 8. Legal Heirship Certificate from the appropriate revenue authority to be
submitted.
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LIST OF DOCUMENTS/CERTIFICATES/LETTERS TO BE FORWARDED ALONGWITH THE APPLICATION FORM. ALL CERTIFICATES IN VERNACULAR ARE TO BE TRANSLATED INTO ENGLISH AND ATTESTED COPIES OF THE SAME ALSO TO BE ENCLOSED. TO BE ATTESTED BY THE BRANCH MANAGER 1. DEATH CERTIFICATE 2. APPLICATION FORM 3. LEGAL HEIRSHIP CERTIFICATE 4. IN CASE MINOR CHILDREN (ARE NOT
REPRESENTED BY NATURAL GUARDIAN) COURT ORDER FOR GUARDIANSHIP
5. COPY OF LAST PAY SLIP 6. COPY OF LATEST FORM 16
TO BE ATTESTED BY NOTARY PUBLIC
1. Consent letter from all legal heirs (guardian to sign on
behalf of minors) to appropriate terminal benefits of the deceased towards outstanding liabilities and also to pay the balance amount if any still outstanding from their own sources.
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Non Judicial Stamp Paper
AFFIDAVIT
(To be submitted by claimant)
I/We___________ w/o children of_______________ aged___________ years residing at ___________________________________________________________________________ ____________________________ do hereby solemnly affirm and state as follows : My husband/our father Sh. _______died on _________ and has not left any will. **His/Her Will dated ___________________ is the last Will left by the deceased.
THAT the deceased died as a # bachelor/spinster/married/widower/widow and the mother of the deceased # is alive/pre-deceased.
I/We state that the particulars furnished in the Application for payment of ex-gratia in lieu of appointment under compassionate grounds are true and correct. We have not suppressed any material information in the Application Form. If it is found at any time later on that any information furnished to Bank by me/us is/are incorrect or untrue and any information is suppressed/ omitted in the Application Form, I/We undertake to refund the entire ex-gratia payment and agree that I am/we are also liable for criminal action. The above statements are true. Place : 1. Date :
(Claimant) * On proper stamp paper as applicable to the State where it is being executed. ** Omit this sentence if not applicable. # Delete whichever is not applicable. Affidavit should be attested by a Notary Public/Magistrate.
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REVISED MODEL SCHEME FOR COMPASSIONATE APPOINTMENT / EX GRATIA PAYMENT IN LIEU OF COMPASSIONATE APPOINTMENT : Government of India, vide its letter dated 19.06.2007 has made modifications to the existing Scheme for payment of ex-gratia , by providing for Compassionate appointment in exceptional cases where an Officer : a) Dies while performing his official duty as result of violence, terrorism, robbery
or decoity ; OR b) Dies within five years of his first appointment or before he/she reaches the age
of 30 years, whichever is later, leaving a dependent spouse / or minor children. The above amendment is adopted by our Bank also. CHECK LIST WHILE APPLYING FOR EX-GRATIA PAYMENT : 1. Applicant (the legal heir) should submit his request in the prescribed application
form only, duly filling all the columns with required details. 2. Outstanding under all the loan accounts of the deceased Officer, at the time of
death, even if the loan account/s is/are closed out of terminal benefits at the time of applying.
3. Full particulars of NSC in the name of the deceased Officer Viz. Face value, Maturity value, Maturity date, outstanding under NSC loan, if availed, should be furnished.
4. Number of Bank Shared held. 5. LIC claim amount settled or to be settled to the family of the deceased out of
policy/ ies held in the name of the deceased Officer. 6. INDIVIDUAL DECLARATION LETTER FROM ALL MAJOR LEGAL
HEIRS, with regard to their present employment details. 7. Notarised Consent Letter ( IN NON-JUDICIAL STAMP PAPER) from all legal
heirs (in the case of minor legal heir/s Guardian has to sign) to appropriate the terminal benefits of the deceased Officer towards outstanding liabilities / bank dues , if any, Further consent to pay the dues to the bank over and above terminal benefits, if any.
(Xerox copy is not acceptable) 8. Latest (i.e. last) Pay Slip of the deceased officer. 9. Leave encashment payment (Not LFC encashment) details paid/to be paid to the
family of the deceased Officer. 10. Receipt for House Rent paid, if any. 11. Death certificate of the deceased Officer. 12. Original Legal Heirship Certificate from the Competent Authority (NOT BELOW
THE RANKOF THASILDAR) to be submitted. 13. Affidavit in original to be submitted ( Xerox copy not acceptable) 14. Latest (last) Form 16 issued by the bank of the deceased Officer to be
submitted. 15. Salary arrears (gross arrears) received, if any, and tax recovered on arrears. 16. Permanent address of the legal heir with pin code and also telephone number
with STD code ( landline and mobile)
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17. If the spouse has opted for pension under second option, the amount remitted for the same.
18. Respective Regional Office of the branch where the deceased Officer worked last has to submit their clearance with CRM/SRM recommendations.
19. EXGRATIAAPPLICATION TO BE SUBMITTED WITHIN 12 MONTHS FROM THE DATE OF DEMISE OF THE OFFICER.
COMMON LAPSES IN THE APPLICATION SUBMITTED : a) Intimation regarding death of the Officer is not advised by the branch / RO to
Personnel Administration Department, (Clerical Section, who are handling exgratia for all)
b) Residential address of the legal heir not provided in full with pin code, phone number for fast and prompt communication.
c) Consent Letter available in Ex gratia application not signed by all the legal heirs.
d) Latest available Form 16 ( issued by the bank for income tax recovered from the deceased Officer) not submitted.
e) Leave encashment received along with terminal benefits is not furnished. Instead LFC encashment is furnished.
f) Outstanding under all loan accounts of the deceased Officer at the time of death is not furnished ( this is must even if the loan accounts are closed out of terminal benefits at the time of applying ex gratia).
g) Details of amount paid towards second option to pension is not furnished. h) DATE OF DEATH.
Annexure – 6 COMPASSIONATE APPOINTMENT – RECOMMENDATION OF
DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITEE
No.41013/1/2013-Estt. (D) Government of India
Ministry of Personnel, Public Grievances and Pensions (Department of Personnel 8v Training)
North Block, New Delhi
Dated: the 25th March, 2013
OFFICE MEMORANDUM Subject:-Recommendation of Department Relates Parliamentary Standing Committee on Compassionate Appointment — reg. The undersigned is directed to refer to para 9.3 of the 23rd Report on Government Policy on Compassionate Ground given by Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, Rajya Sabha. The Committee inter-alia recommended as under: 1. The guidelines/circulars issued by the Government must be complied with and a
feedback must be obtained from each of the administrative Ministries so that a cross check can be in place to see that the instructions issued are followed properly.
ii. The role of the administrative Ministries under which the particular PSU comes become all the more important and it should pass on each and every instruction issued by the Government of India to the PSUs and receive the confirmation from them and send the feedback to the Government of India.
iii. A yearly report must be sent to the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) by the administrative Ministries to ensure whether the instructions issued by the Government are complied with and the Ministry of Personnel must also call for a report on the issue per annum.
2. The Department of Public Enterprises vide their letter no. 2(63)07-DPE(GM)
dated 1 1 th March 2008 informed the Committee that Vittal Committee has reviewed the guidelines issued by them in the matter of compassionate appointment. CPSEs were given autonomy to frame their own guideline on compassionate appointment keeping in view their operational/business requirements. The Department of Financial Services informed that the scheme formulated and circulated by the Indian Banks' Association to all the public
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sector banks, ensures the uniform application of the appointment on compassionate grounds or exgratia in lieu thereof.
3. All the administrative Ministries/Department are requested to furnish an annual
report in the enclosed proforma latest by 30th April of every year, indicating the status of implementation of government instructions on compassionate appointment as on 31st March of that year. Initially separate reports for three years covering the period from 01.04.2010 to 31.03.2011, 01.04.2011 to 31.03.2012 and 01.04.2012 to 31.03.2013 should be sent. Thereafter, an annual report covering the period from 1st April of the preceding year to 31st March of the current years be sent. While forwarding the report, the status of compassionate appointment in public sector units/banks/Insurance companies, autonomous bodies etc. may be indicated.
Sd/-
(Virender Singh) Under Secretary to the Government of India
Annexure No. – 7
Frequently Asked Questions (FAQs) on Compassionate Appointment
Department of Personnel & Training
Government of India S.No. Question Answer
Introduction and Objective
1 Under what provisions of Government, appointments on compassionate grounds are regulated?
The appointments on compassionate grounds against a post in Central Government are regulated in terms of the provisions of "Scheme for Compassionate Appointment under Central Government" issued under Department of Personnel & Training O.M. No. 14014/6/1994- Estt(D) dated 09.10.1998, as amended from time to time. All the instructions on compassionate appointments have been consolidated vide O.M. 14014/02/2012-Estt(D) dated 16.01.2013 and are available on the Department's website www.persmin.nic.in (OMs & Orders > Establishment> (A) Administration (III) oncessions inAppointments (a) Compassionate Appointments).
2 What is the objective of scheme for compassionate appointments?
The objective of the Scheme is to grant appointment on compassionate grounds to a dependent family member of a Government servant who has died while in service or who is retired on medical grounds before attaining the age of 55 years (57 years for erstwhile Group ‘D’ employees), thereby leaving the family in penury and without any means of sustainable livelihood so as to provide relief to the family of the Government servant concerned from financial destitution and to help it get over the emergency.
Is the Scheme applicable to member of Armed Forces?
Yes. Dependent family member of a Armed Force personnel can be considered for appointment against a civilian post within any establishment/organisation under the Ministry of Defence, if the armed force personnel:
a) Dies during service; or
b) Is killed in action; or
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c) Is medically boarded out and is unfit for civil employment
4 Can dependents of a deceased government employee who committed suicide be considered for compassionate appointment?
Yes. If the family satisfies the criteria to be considered for compassionate appointment (see S.
No. 29).
Age Limit for appointment on compassionate grounds
5. What is the upper and lower age limit for making compassionate appointment?
The age limits would be based on the Recruitment Rules of the post to which the compassionate appointment is proposed to be made.
6 Whether upper age limit prescribed for a post can be relaxed while making appointment on compassionate ground?
Yes. Upper age limit can be relaxed wherever found to be necessary.
7. Whether lower age limit prescribed for a post can be relaxed while making appointment on compassionate ground?
No. The lower age limit cannot be relaxed below 18 years of age.
8. What is the crucial date for determining age eligibility for appointment on compassionate grounds?
Age eligibility shall be determined with reference to the ‘date of application’ for compassionate appointment.
9. Which authority is competent to grant relaxation of upper age
limit?
Authority competent to take a final decision for making compassionate appointment in a case is the competent authority to grant relaxation of upper age limit.
10. Is there any restriction of age limit of medically retired government servant for consideration of cases of dependents for compassionate appointment?
Yes. The Government servant should have retired on medical grounds before attaining the age of 55 years (57 years for erstwhile Group D employees).
Definition of a Dependent Family Members
11. Who are considered dependent Family Members for the purpose of consideration of appointment on compassionate grounds?
Dependent Family Member means:
a) spouse; or
b) son (including adopted son); or
c) daughter (including adopted daughter); or
d) brother or sister in the case of unmarried Government servant; or
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e) member of the Armed Forces, as defined in S.No. 3, who was wholly dependent on the Government servant/ member of the Armed Forces at the time of his death in harness or retirement on medical grounds, as the case may be.
12. Whether a ‘married daughter’ can be considered for compassionate appointment?
Yes, but subject to conditions: .
i. That she was wholly dependent on the Government servant at the time of his/her death in harness or retirement on medical grounds
ii. She must support other dependents members of the family.
13. Whether ‘married son’ can be considered for compassionate appointment?
No. A married son is not considered dependent on a government servant.
14. Whether ‘married brother’ can be considered for compassionate appointment?
No. A married brother is not considered dependent on a government servant.
15. Whether dependent of an employee working on ‘daily wage or causal or apprentice or ad-hoc or contract or re-employment’ basis can be considered for compassionate appointment?
No. Only the dependent of regular government employee can be considered for compassionate appointment.
16. Whether dependent of "confirmed work-charged staff" can be considered for compassionate appointment?
Yes. Confirmed work-charged staff is covered by the term Government servant.
17. Whether a widow appointed on compassionate ground be allowed to continue in service after re-marriage?
Yes.
18. Whether dependent of deceased government employee can be considered for compassionate appointment when there is an earning member in the family?
Yes. In deserving cases, even where there is already an earning member in the family, a dependent family member may be considered for compassionate appointment with prior approval of the Secretary of the Department/Ministry concerned who, before approving such appointment, will satisfy himself that grant of compassionate appointment is justified having regard to number of dependents, assets and liabilities left by the Government servant, income of the earning member as also his liabilities including
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the fact that the earning member is residing with the family of the Government servant and whether he should not be a source of support to other members of the family.
19. Whether dependent of a missing government employee can be considered for compassionate appointment?
Yes. Subject to conditions prescribed in this Department O.M. dated 09.10.1998, dependent family of missing government employees can be considered for compassionate appointment.
Competent Authority for Compassionate Appointments 20. Who is the competent
authority to make appointment on compassionate grounds in case of a Ministry / Department?
a) Joint Secretary in-charge of administration in theMinistry / Department concerned;
b) Head of the Department under the Supplementary Rule 2(10) in case of attached and subordinate office;
c) Secretary in the Ministry/Department concerned in special type of cases;
Posts/vacancies against which compassionate appointments can be made
21. Against which group of posts a compassionate appointment can be made?
Compassionate appointment can be made only upto 5% of vacancies falling under direct recruitment quota in Group 'C' posts (Including erstwhile Group ‘D’ posts) in a ‘recruitment year’. The manner of determination of vacancies has been explained in the consolidated instructions on compassionate appointment dated 16.01.2013
22. How do we make appointment on compassionate grounds in small offices/cadres in which there are less than 20 direct recruitment vacancies in a ‘recruitment year’, the minimum vacancies required to make a compassionate appointment?
Group ‘C’ posts, in which there are less than 20 direct recruitment vacancies in a recruitment year, may be grouped together and out of the total number of vacancies ‘in a year’, 5% may be filled up on compassionate grounds subject to the condition that appointment on compassionate grounds in any such post should not exceed one. For the purpose of calculation of vacancies for compassionate appointment, fraction of a vacancy either half or exceeding half but less than one may be taken as one vacancy.
23. How are vacancies for appointment on compassionate grounds to be calculated in small Ministries / Departments where sufficient vacancies do not arise, year after year, for making compassionate appointment?
The small Ministries / Departments may apply a more liberalized method of calculation of vacancies under 5% quota for compassionate appointment. Small Ministries / Departments, for the purpose of these instructions, are defined as organizations where no vacancy for compassionate appointment could be located under 5% quota for the last 3 years. Such small Ministries/Departments may add up the total of DR vacancies in Group ‘C’ and erstwhile
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Group ‘D’ posts (excluding technical posts) arising in each year for 3 or more preceding years and calculate 5% of vacancies with reference to the grand total of vacancies of such years, for locating one vacancy for compassionate appointment. This is subject to the condition that no compassionate appointment was/has been made by the Ministries/Departments during 3 years or number of years taken over and above 3 years for locating one vacancy under 5% quota.
24. Can compassionate appointment be made against a Group 'A' or Group 'B' post?
No.
25. Can compassionate appointment be made to a Group ‘A’ or Group ‘B’ post if the dependent has higher qualifications?
No.
26. If compassionate appointment cannot be given in a year, can it be considered in the next recruitment year?
Yes. There is no time limit for compassionate appointment. A request for compassionate appointment can be carry forward to next or more years, but the total compassionate appointment made in a year should not exceed 5% limit of the direct recruitment Group C quota.
27 Can compassionate appointment be made against a future vacancy?
No. Compassionate appointment can be made only if a regular vacancy is available for that purpose. No appointment can be made against a future vacancy.
30. Whether the administrative Ministry / Department / Office are required to prepare a waiting list for appointment on compassionate ground?
No. Since no compassionate appointment can be made against a future vacancy, no waiting list is to be prepared.
31. Can a Committee constituted in a Ministry/Department for considering the request for appointment on compassionate ground recommend persons for appointment against the next year vacancy?
No. The recommendation of the Committee should be limited to existing vacancies only. No recommendation for appointment on compassionate ground can be made against a future vacancy.
32 Can appointment on compassionate grounds be made against a Technical post?
Yes. Compassionate appointment can also be made against technical ‘posts’ at Group ‘C’ and erstwhile Group ‘D’ level. The 5% quota of vacancies will be calculated on the basis of total DR vacancies arising in a year against the technical posts.
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33 Is reservation roster applicable to compassionate appointments?
Yes. A person selected for appointment on compassionate grounds should be adjusted in the recruitment roster against the appropriate category viz SC/ST/ OBC/General depending upon the category to which he belongs. For example, if he belongs to SC category he will be adjusted against the SC reservation point, if he is ST/OBC he will be adjusted against ST/OBC point and if he belongs to General category he will be adjusted against the vacancy point meant for General category.
Criteria for consideration of the desirability of compassionate appointments
34 What is criteria for determining eligibility of a person for consideration for compassionate appointment
Following factors are to be mandatorily taken into consideration for making compassionate appointments:
a) The family is indigent and deserves immediate assistance for relief from financial destitution; and
b) Applicant for compassionate appointment should be eligible and suitable for the post inall respects under the provisions of the relevant Recruitment Rules. The onus for examining the penurious condition of the dependent family rest with authority making compassionate appointment. Courts have clearly stated in various judgments that offering compassionate appointment as a matter of course, irrespective of the financial condition of the family of the deceased or medically retired Government servant, is untenable.
Exemptions admissible for compassionate appointees
35 What are exemptions available to administrative Ministry/ Departments while making compassionate appointment?
Compassionate appointments are exempted from observance of the following requirements:-
a) Recruitment procedure i.e. without the agency of the Staff Selection Commission or the Employment Exchange.
b) Clearance from the Surplus Cell of the Department of Personnel and Training/Directorate General of Employment and Training.
c) The ban orders on filling up of posts issued by the Ministry of Finance (Department of Expenditure)
36 Whether a person appointed as LDC on compassionate ground exempted from
In the matter of exemption from the requirement of passing the typing test, those appointed on compassionate grounds to the post
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requirement of passing the type writing test.
of Lower Division Clerk will be governed by the general orders issued in this regard:-
i. by the CS Division of the Department of Personnel and Training, if the post is included in the Central Secretariat Clerical Service; or
ii. by the Establishment Division of the Department of Personnel and Training, if the post is not included in the Central Secretariat Clerical Service.
37 Whether a person who does not fulfill education qualification of a post can be appointed on compassionate ground?
Yes. A person who does not fulfill educational qualification of a post can be appointed as “Trainee” (DOPT OM No. 14014/2/2009-Estt(D) dated 11.02.09 and 03.04.2012)
38 Whether Government Department can appoint a widow who does not fulfill educational qualification requirement of a post?
Yes. In case a widow who does not fulfill educational requirement of a post is considered for compassionate appointment, she can be appointed only against a multi-tasking staff post provided the appointing authority is satisfied that she can satisfactorily perform duties of the post with the help of some on job training.
39 Can dependents of deceased government employee be considered for appointment on compassionate ground on casual/ daily wage/adhoc/ contract basis?
No. Only regular appointment can be made on compassionate grounds against a regular vacancy.
Time-Limit for considering cases of compassionate appointments
40 Is there any time limit for considering a case for compassionate appointment?
Subject to availability of a vacancy and instructions on the subject issued by this Department, as amended from time to time, any application for compassionate appointment can be considered without any time limit subject to the merit of each case (see criteria mentioned in S.No. 32).
41 Can a Department consider belated requests for compassionate appointment?
Ministries/Departments can consider requests for compassionate appointment even where the death or retirement on medical grounds of a Government servant took place long back. While considering such belated requests it should, however, be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the Government servant in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should
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normally be taken as an adequate proof that the family had some dependable means of subsistence.
42 Can the cases which were closed on completion of 3 years’ time-limit as provided in DOPT OM dated 5.5.2003, be re-opened after the waiver of time-limit in DoPT OM dated 26.07.2012?
Yes, provided that the cases were closed due to non-availability of vacancies during the 3 year time-period and subject to the criteria mentioned in S.No. 32 and S.No. 39. Such cases should not be opened merely because the time limit has been waived off.
43 Whether belated case of compassionate appointments against the Group D can be considered now after regularization of all Group `D’ employees as Group `C’ employees.
The belated cases of compassionate appointment are to be considered as per the revised recruitment rules for the MTS posts
Status and admissibility of pay /allowances of a Trainee
43 What will be Status of Trainee?
A person appointed as ‘Trainee’ enjoys the Status of Government servant from initial day and will be allowed all the allowances and benefit allowed to a government servant.
44 What will be maximum time period allowed for a person appointed as ‘Trainee’ to acquire minimum education qualification
A person appointed as a ‘Trainee” on compassionate grounds has to acquire minimum educational qualifications in 5 years.
45 Whether a person appointed on compassionate grounds as ‘Trainee’ will have probation period.
Yes. The probation period, as specified in Recruitment rules of the post/grade against which he/she is appointed would commence from the date he/she acquires minimum educational qualifications.
46 Whether Earned Leave, Half pay leave and other types of leave as applicable to regular Government employees would be admissible to a Trainee
A `Trainee’ appointed on compassionate ground would be entitled for all kinds of leave allowed to a regular Government servant.
47 Admissibility of Leave Travel concession as applicable to regular government servants.
A ‘Trainee’ appointed on compassionate ground would be allowed LTC concession only on completion of one year service
48 Is a Trainees appointed on compassionate grounds entitled to Medical facilities/ Benefit of CGEGIS/CGHS and Children Educational
Yes. As allowed to a regular government servant in the pre-revised pay scale of Rs. 4440-7440/- without grade pay. However, he would not be entitled to OTA during the period as a Trainee.
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Allowance.
49 Admissibility of New Pension Scheme
Yes. As allowed to a regular government servant in the pre-revised pay scale of Rs. 4440-7440/- without grade pay
50 Whether dependent of a Trainee appointed on compassionate grounds entitled to compassionate appointment.
Yes.
Miscellaneous
51 Which administrative authority is responsible for informing the dependents of deceased government employee or a medically retired official about the scheme for compassionate appointment?
Welfare Officer of the concerned Ministry/Department/Office is responsible for appropriate counselling and facilitating the process of compassionate appointment of the dependent of a deceased or medically retired Government employee.
52 Whether maintenance of the family of the deceased employee is responsibility of person appointed on compassionate ground?
Yes. A person appointed on compassionate grounds under the scheme has to give an undertaking in writing that he/she will maintain properly the other family members who were dependent on the Government servant/member of the Armed Forces in question and in case it is proved subsequently (at any time) that the family members are being neglected or are not being maintained properly by him/her, his/her appointment may be terminated forthwith.
53 Once a person has been appointed on compassionate ground, can be considered eligible for consideration for appointment on compassionate ground against another post?
No. When a person has been appointed on compassionate grounds to a particular post, the set of circumstances, which led to such appointment, should be deemed to have ceased to exist and he/she should strive in his/her career like his/her colleagues for future advancement and any request for appointment to any higher post on considerations of compassion should invariably be rejected.
54 Can an appointment on compassionate ground be transferred from one person to another person?
Appointment made on compassionate grounds cannot be transferred to any other person and any request for the same on considerations of compassion is invariably to be rejected.
55. How is the seniority of a person appointed on compassionate ground to be determined?
A person appointed on compassionate ground in a particular recruitment year may be placed at the bottom of all the candidates recruited/appointed through direct recruitment, promotion etc. in that year, irrespective of the date of joining of the candidate on compassionate ground.
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56 Can service of an employee appointed on compassionate grounds terminated for not fulfilling the terms and condition of offer of appointment.
The compassionate appointments can be terminated on the ground of noncompliance of any condition stated in the offer of appointment after providing an opportunity to the compassionate appointee by way of issue of show cause notice asking him/her to explain why his/her services should not be terminated for non-compliance of the condition(s) in the offer of appointment and it is not necessary to follow the procedure prescribed in the Disciplinary Rules/Temporary Service Rules for his purpose.
55 Can a dependent of deceased government employee who held the erstwhile Group 'D' now MTS post, considered for
appointment on compassionate ground against a Group 'C' post?
Yes. A family member of erstwhile Group ‘D’ post Government servant (now MTS) can be appointed to a Group ‘C’ post for which he/she is educationally qualified, provided a vacancy in Group ‘C’ post exists for this purpose.
56 Can an application on compassionate ground rejected because the family of the deceased government employee has received benefits under various welfare scheme?
No. An application for compassionate appointment cannot be rejected merely on the ground that the family of the Government servant has received the benefits under the various welfare schemes and will have to be considered on the basis of criteria mentioned in S.No. 32 and S.No. 39.
57 Can an application on compassionate ground be rejected on the ground of re- organisation in the Ministry / Department/ Office?
No. Compassionate appointment cannot be denied or delayed merely on the ground that there is reorganisation in the Ministry/Department/ Office. It should be made available to the person concerned if there is a vacancy meant for compassionate appointment and he or she is found eligible and suitable under the scheme (see criteria mentioned under S.No. 32).
58 Can courts order appointment on compassionate grounds?
The Supreme Court has held in its judgement dated February 28, 1995 in the case of the Life Insurance Corporation of India vs. Mrs Asha Ramchandra Ambekar and others [JT 1994(2) S.C. 183] that the High Courts and Administrative Tribunals cannot give direction for appointment of a person on compassionate grounds but can merely direct consideration of the claim for such an appointment.
(Mukta Goel) Director (E.!)
Tele: 23092479