P.K. MISRA, J The present appeal is filed by the Director of Panchayats and the Assistant Director of Panchayats, Kuralagam, against the order of the learned single Judge in W.P.No.892 of 2008, dated 6.2.2008, whereunder the learned single Judge, while quashing the orders passed by the present appellants dated 3.11.2006 and 30.11.2007, directed them to appoint the present Respondent on compassionate grounds.
2. The facts were as follows :-
The father of the petitioner, who was initially employed as Bill Collector and subsequently promoted as Junior Assistant, died in harness on 30.11.1991. The respondent after attaining majority filed an application on 20.5.2002 seeking appointment on compassionate grounds and it is stated that such application was registered as Sl.No.16 in the register maintained for compassionate appointments. By communications dated 21.6.2002, 19.9.2002 and 27.8.2003, the respondent was informed that since there was a ban on appointment in Government service, the application for appointment on compassionate grounds would be considered in accordance with the Rules after the ban was lifted. Subsequently, however, by the impugned orders dated 3.11.2006 and 30.11.2007 the respondent (writ petitioner) was informed that since she had already got married, her claim for compassionate appointment cannot be considered. Such communications were challenged in W.P.No.892 of 2008.
3. Learned single Judge by placing reliance upon a Division Bench decision of this Court reported in 2006(2) LW 324 (U. ARULMOZHI v. THE DIRECTOR OF SCHOOL EDUCATION & OTHERS), wherein it was held that the subsequent marriage of the applicant will not be a bar for appointment on compassionate grounds, allowed the writ petition and issued a direction to the present appellants to appoint the present respondent. This direction is in question in the present appeal.
4. Learned counsel for the appellants has submitted that as a matter of fact the death had occurred in the year 1991 and the writ petition was filed in the year 2008 for quashing the communication dated 3.11.2006 and the subsequent communication dated 30.11.2007, rejecting the claim for compassionate appointment. It is submitted that the main intention in any scheme for compassionate appointment is to enable the members of the bereaved family, whose breadwinner has died in harness, to tide over the immediate financial stringency and issuing a direction regarding appointment on compassionate grounds about 17 years after the death of the quondam employee cannot be sustained in law. Learned counsel for the appellants has further submitted that the ratio of the earlier Division Bench decision was not at all applicable.
5. Learned counsel for the respondent has submitted that at the time when the father of the present respondent expired, she was a minor girl and soon after attaining majority she made an application, which was kept pending, and thereafter such application was rejected only on the ground that she had married in the meantime. It is therefore submitted by her that the ratio of the earlier Division Bench decision was squarely applicable, which was followed by the learned single Judge and, therefore, there should not be any interference in this appeal.
6. Before considering other aspects, it is first necessary to consider regarding the applicability of the earlier Division Bench decision. In the said reported decision, the death of the father had taken place on 31.7.1990 and the unmarried daughter had applied for appointment on compassionate grounds on 30.6.1994 and in fact she was given appointment on 15.9.1998. However, subsequently the appointment was terminated on the ground that such applicant after seeking appointment on compassionate grounds had got married. In the above context, it was observed :-
"8. There is no dispute that the Government has made provision for appointment on compassionate ground, obviously with a view to enable the family members of the deceased employee to tide over immediately the financial stringency on account of the death of the breadwinner in the family. It is of course true that as per the G.O.Ms.No.73, Employment Services dated 26.10.1983, only an unmarried daughter is eligible and not a married daughter. However, there is no requirement in the G.O. that at the time of actual employment such unmarried daughter should continue to be unmarried nor there is any requirement that after an unmarried daughter gets employment on the compassionate ground, she cannot marry in future. There is no dispute that the present petitioner was eligible to make the application and she make an application as an unmarried daughter. The appropriate authority took about 3 to 4 years to finalise the matter. Merely because the unmarried daughter got married in the meantime and that too with a specific understanding that her husband would have no objection to her maintaining the members of the family of her father, it cannot be said that such person had got employment by suppressing any material fact."
7. Termination of employment, which was already made, on the ground that by the time the employment was given the daughter had already married, was the core issue. In the above context it was held that merely because the unmarried daughter, who was eligible to make the application, had got married by the time the application was considered and thereafter got employment, it cannot be said that such person had got employment by suppressing any material fact. The decision no where lays down that even if the death had taken place eons ago, a person would be entitled to seek for appointment on compassionate grounds. As a matter of fact, in the said decision it was also highlighted that appointment on compassionate grounds is given with a view to enable the family member to tide over immediately the financial stringency.
8. In the present case, the basic fact that the death had taken place in the year 1991 and a direction was sought to be issued seeking appointment on compassionate grounds after about 17 years, has been completely lost sight of by the learned single Judge. In the above context, it is necessary to highlight several decisions of the Supreme Court on the scope and aspect relating to appointment on compassionate grounds.
9. In (1989) 4 SCC 468 (SMT. SUSHMA GOSAIN & OTHERS v. UNION OF INDIA AND OTHERS), the Supreme Court had observed :-
"9. . . . 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."
10. In (1994) 2 SCC 718 (LIFE INSURANCE CORPORATION OF INDIA v. ASHRA RAMACHHANDRA AMBEKAR), it was observed :-
"10. . . . The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration.
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17. . . . Thus, apart from the direction as to appointment on compassionate grounds being against statutory provisions, such direction does not take note of this fact. Whatever it may be, the Court should not have directed the appointment on compassionate grounds. The jurisdiction under mandamus cannot be exercised in that fashion. It should have merely directed consideration of the claim of the second respondent. . . ."
11. Matters which should be considered while giving up an appointment in public service on compassionate ground was again considered in (1994) 4 SCC 138 (UMESH KUMAR NAGPAL v. STATE OF HARYANA AND OTHERS), wherein it was observed as follows :-
"2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.
3. Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible.
4. It is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even directed compassionate employment either as a matter of course or in posts above Classes III and IV. We are also dismayed to find that the decision of this Court in Sushma Gosain v. Union of India has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above Classes III and IV. . . .
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6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."
12. In (1994) 4 SCC 448 (STATE OF HARYANA v. NARESH KUMAR BALI), it has been stressed that even where the Administrative Tribunal or the High Court comes to a conclusion that the petitioner before it has made out a case of appointment on compassionate grounds, it can only direct the authorities concerned to consider "the claim of the applicant in accordance with the relevant law or rules, if any".
13. In (2007) 4 SCC 778 (STATE BANK OF INDIA AND ANOTHER v. SOMVIR SINGH), after referring Umesh Kumar Nagpal's case and the decision reported in (2006) 7 SCC 350 (UNION BANK OF INDIA AND OTHERS v. M.T. LATHEESH), it was observed:-
"10. There is no dispute whatsoever that the appellant Bank is required to consider the request for compassionate appointment only in accordance with the scheme framed by it and no discretion as such is left with any of the authorities to make compassionate appointment dehors the scheme. In our considered opinion the claim for compassionate appointment and the 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."
14. In (2003) 7 SCC 704 (STATE OF HARYANA v. ANKUR GUPTA), it was observed :-
"6. As was observed in State of Haryana v. Rani Devi 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 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 of the nature of service rendered by the deceased employee. In Rani Devi case it was held that the 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 LIC of India v. Asha Ramchhandra Ambekar it was pointed out that the 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 contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana that as a rule, in public service appointments 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 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 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."
15. In AIR 2006 SC 2743 : (2006) 5 SCC 766 (STATE OF JAMMU & KASHMIR v. SAJAD AHMED MIR), it was observed:-
"17. . . .When the Division Bench decided the matter, more than fifteen years had passed from the date of the death of the father of the applicant. The said fact was indeed a relevant and material fact which went to show that the family survived in spite of the death of the employee. . . ."
16. The observation made in Umesh Kumar Nagpal's case was again followed in (2008) 3 SCC 462 (A.P.SRTC v. SARVARUNNISA BEGUM).
17. In a very recent unreported decision of a Division Bench of this Court in W.A.No.1221 of 2008 (DIRECTOR OF SCHOOL EDUCATION, CHENNAI & 2 OTHERS v. FANNY SUSIL KUMARI), disposed of on 11.6.2009, almost a similar question had cropped up, wherein it was observed as follows :-
"2. The father of the respondent was working as a Headmaster in a school situated in Chengam Taluk in Tiruvannamalai District. He died on 01.06.1991. It appears that the mother of the respondent applied for a job, but she did not get it. The respondent herself applied sometime in the year 2001, which application was kept pending. In the meantime, the respondent got married in November, 2004. Her application was rejected on the ground of her marriage. Being aggrieved by the said order, the respondent filed the writ petition, which came to be allowed. It was pointed out before the learned single Judge that the respondent got married in November 2004 and she was no longer supporting the family, which she ought to be supporting. It was on that ground that the learned single Judge found that the submission was untenable and therefore, directed the Department to reconsider the respondent's claim for compassionate appointment. Being aggrieved by the said order, the appellants/respondents have come forward with this appeal.
3. Mr.Manoj Seevatasan, learned counsel appearing for the respondent submits that merely because the respondent got married that cannot be a disqualification for getting an appointment on compassionate ground. We see some force in the said submission. However, on the facts of the case, what we find is t hat her father died in the year 1991. May be her mother applied earlier. But ultimately the respondent applied for a job in the year 2001 i.e., nearly ten years after the death of her father. She got married in the year 2004. All these facts go to show that the urgency and difficulty that was there on account of the death of the father of the respondent did not remain compelling for the State to provide a job to the family. Compassionate appointment is to tide over the immediate difficulties faced by the family on account of the death of the bread winner of the family. In the instant case, as seem from the fact, nearly 10 years after the death of her father, the respondent applied for a job. She got married later. Though the reason canvassed before the learned single Judge may not be stated to be a very good reason, on the facts of this case there was no longer any urgency and justification to provide for compassionate appointment.
4. Compassionate appointment is an exception to the rule namely, that public employment has to be offered to all by applying uniform yardstick. It is an exception for the people who are in difficulty and therefore, when that difficulty subsists such appointment has to be considered. The learned single Judge obviously erred in granting a direction to reconsider the claim of the respondent, which, in our opinion, does not arise in any manner."
18. We hardly see any difference in the factual background of the above case and the present case. Judged in the light of the above decisions of the Supreme Court as well as the Division Bench decision of this Court, we are afraid the order passed by the learned single Judge, which apparently based more on sympathy and less on the scheme for appointment on compassionate grounds, cannot be sustained.
19. Learned counsel appearing for the respondent has submitted that at the time when the father of the respondent expired, she was a minor and soon after attaining majority, she had made the application and, therefore, long lapse of time should not be considered as a bar against such compassionate appointment.
20. We do not think such a contention can be countenanced. There is no law in the land which ensures appointment of a progeny of a deceased employee as no such appointment can be claimed as an hereditary right. If there is any scheme relating to compassionate appointment, an eligible person can make application to be considered in accordance with such scheme. It is not the case of the present respondent that as per the scheme available, a minor has a right to make application for appointment on compassionate grounds after she attains majority irrespective of the number of years elapsed in the meantime.
21. It is well settled that an appointment on compassionate grounds is an exception to the ordinary mode of recruitment and cannot be claimed as a matter of right bereft of the scheme or the rule applicable to the particular organization. It has to be remembered that as between an employee dying in harness leaving behind some dependent members and a man on the street without any apparent means of livelihood, the members of the bereaved family of the deceased employee are more fortunate in the sense that at least some benefits in the shape of ex-gratia compensation or pension to the widow or members of the bereaved family are available; whereas nothing is available to the members of the bereaved family where the decease happens to be a jobless person. It is always considered that appointment on compassionate grounds on account of death of the employee is an exception to the normal rule and being an exception it is required to be enforced and interpreted strictly.
22. Learned counsel for the respondent has placed reliance upon a decision of the Supreme Court reported in (1995) 6 SCC 476 (UNION OF INDIA AND OTHERS v. BHAGWAN SINGH) in support of the contention that minor child of a deceased employee is entitled to file an application for appointment on compassionate grounds after attaining majority.
23. We have carefully perused the aforesaid decision. We do not think that the aforesaid decision anywhere lays down that a claim for compassionate appointment can be made even after lapse of more than a decade after the death of the concerned employee merely because the child was minor at the time of such death. On the other hand, the said decision clearly lays down that the claim for compassionate appointment can be made only in accordance with the rules or the scheme and not de hors the scheme. As a matter of fact, in the above decision, the direction issued by the Administrative Tribunal regarding giving appointment on compassionate grounds was set aside in appeal on account of the fact that the petition seeking for appointment on compassionate grounds has been filed before the concerned Administrative Tribunal after fairly long delay.
24. For the aforesaid reasons, we allow the appeal and dismiss the writ petition. No costs. Consequently, the connected miscellaneous petition is closed.
(P.K.M.,J) (R.P.S.,J) 30-07-2009 Index : Yes / No Internet: Yes / No dpk P.K. MISRA, J and R. SUBBIAH, J JUDGMENT IN WA.502/2008 30-07-2009