Bombay High Court

Smt. Rajshree Wd/O Sunil Naidu And ... vs Union Of India, Ministry Of ... on 3 October, 2023

Bench: Avinash G. Gharote, Urmila Sachin Phalke

2023:BHC-NAG:14402-DB


                                                                               wp.8153.2018. judgment.odt
                                                           (1)

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       NAGPUR BENCH : NAGPUR

                                       WRIT PETITION NO.8153 OF 2018

                 1.      Smt. Rajshree wd/o Sunil Naidu,
                         Aged about 49 years, Occ : Nil.

                 2.      Mayur s/o late Sunil Naidu,
                         Aged about 27 years, Occ : Nil
                         Both R/o Qutr. No.1/1,
                         Infront of ESIC Hospital,
                         Somwari Quarter, Nagpur.                              ..... PETITIONERS

                                                    // VERSUS //

                 1.     Union of India,
                        Ministry of Consumer Affairs,
                        Food and Public Distribution,
                        New Delhi - 110001
                        Through its Secretary.

                 2.     Food Corporation of India,
                        Church Gate, Mumbai - 400 020,
                        Through its Zonal Manager.

                 3.     Food Corporation of India,
                        Church Gate Mumbai - 400 020,
                        Through its Sr. Regional Manager/
                        General Manager.

                 4.     Food Corporation of India,
                        Ajani Nagpur,
                        Through its Regional Manager.                          .... RESPONDENTS

                 ---------------------------------------------------------------------------------------
                         Shri S. D. Shukla, Advocate for petitioners.
                         Shri S. R. Deshpande, Advocate for respondent Nos.2 to 4.
                 ---------------------------------------------------------------------------------------


                                               CORAM :        AVINASH G. GHAROTE AND
                                                              URMILA JOSHI-PHALKE, JJ.

                                               RESERVED ON :                 31.08.2023
                                               PRONOUNCED ON :               03.10.2023
                                                     wp.8153.2018. judgment.odt


JUDGMENT : [ PER: URMILA JOSHI-PHALKE, J.]

1.          RULE. Rule made returnable forthwith.

2. The matter is finally heard by the consent of the parties.

3. The present writ petition is filed to challenge the

communication of respondent No.3 dated 22.06.2017 by which the

application for compassionate appointment of the petitioners is rejected.

4. The petitioner No.1 is the wife and petitioner No.2 is the

elder son of Shri Sunil s/o Shriram Naidu. Deceased Sunil Naidu was

employed on the post of Watchman from 02.07.1991 till the date of his

death on 03.12.2001 with the respondent No.4 under the control of

respondent Nos.1, 2 and 3. Shri Sunil Naidu died on 03.12.2001

leaving behind petitioners, one son and one daughter. As per the

contention of the petitioners, deceased was only bread earner of the

family. After the death of the deceased Sunil, petitioner No.1 - wife

applied for employment on compassionate basis which was not

considered. Petitioner No.2 filed an application for substitution of his

name on waiting list which was considered in the year 2013.

Thereafter, on 21.03.2015 petitioners were informed that claim of the

petitioner No.2 for considering him for employment on a compassionate

basis was rejected. The said communication was challenged by the wp.8153.2018. judgment.odt

petitioners before the learned Central Administrative Tribunal, Bench at

Nagpur by filing Original Application No.158/2016, which was allowed.

The learned Central Administrative Tribunal directed the respondents to

consider representation of the petitioners in eight weeks. Accordingly,

petitioners have made representation which was rejected on 22.06.2017,

assigning reason that the petitioner No.2 is under graduate as well as he

has not attained the benchmark which was fixed by the respondents for

the appointment of the legal heirs of the employees on compassionate

basis. Being aggrieved with the said, present petition is filed.

5. It is contended by the petitioners that the action of not

considering the petitioners' claim for compassionate appointment is

illegal, arbitrary and mala fide against the policy of the State framed for

appointment on compassionate ground and prayed for directions to the

respondents for considering the claim of petitioners for appointment on

compassionate ground.

6. The petition is opposed by the respondent Nos.2 to 4 on the

ground that petitioner No.2 was not educationally qualified, there were

no vacancies of Class -IV employees and minimum qualifications of the

Class - III employees is graduate and the petitioner applied for only

Class - III post and not Class - IV post thereof. The case of the petitioner wp.8153.2018. judgment.odt

was evaluated based on the overall penurious condition on different

attributes i.e. current family pension, terminal benefits received, monthly

income of family members, income from property, immovable property

held by the dependents, number of dependents at the time of death,

number of minor children at the time of death etc. The petitioners could

not be selected during the round of appointment (in the year 2017) as

other candidates were found relatively deserving and prayed for

dismissal of the petition.

7. Learned Counsel Shri Shukla for the petitioners vehemently

submitted that present petitioners are entitled for compassionate

appointment, in view of the policy framed by the Government as well as

in view of the policy framed by the respondents. Petitioner No.2 has

claimed Class - IV post which is also not considered by the respondents.

He further submitted that though Central Administrative Tribunal

directed the respondents to consider the claim of the petitioners but

without assigning any reason the claim of the petitioners is rejected.

The action of the respondents is arbitrary, illegal and therefore, direction

is required to be given to the respondents to consider the claim of the

present petitioners.

wp.8153.2018. judgment.odt

8. The petitioner has challenged the communication by which

the prayer of the present petitioners for grant of compassionate

appointment is not considered. The question involved in the present

application is whether the application for compassionate appointment

would be considered after delay of several years. The object of the

compassionate employment by an employer being intended to enable the

family members of a deceased/incapacitated employee to tide over the

sudden financial crises, appointments on compassionate ground should

be made immediately to redeem the family in distress. Admittedly, there

is no dispute that public employment in offices or posts under the State

or its instrumentalities or any other authority covered by Article 12 of

the Constitution must be in accordance with statutory rules or in their

absence, in tune with the policies issued for regulating recruitment.

Appointment on compassionate ground, which is offered is on

humanitarian grounds, is an exception to the above rule of equality in

the matter of public employment. Nobody can claim compassionate

appointment by way of inheritance. Compassionate appointment is a

concession and not a right. None can claim compassionate appointment,

on the occurrence of death/medical incapacitation of the concerned

employee, as if it were a vested right, and any appointment without

considering the financial condition of the family of the deceased is

legally impermissible.

wp.8153.2018. judgment.odt

9. It is also well settled that any appointment on

compassionate ground has to be made in terms of the scheme and not

otherwise.

10. In the light of above said well settled legal position, if the

facts of the present case are considered, it reveals that death of the

deceased is caused in the year 2001 i.e. on 03.12.2001. Initially, the

petitioner No.1 filed an application for seeking compassionate

appointment. Said fact is not disclosed by the petitioners in the present

petition. From the application filed by the petitioner No.2 on

19.01.2015, it reveals that initially petitioner No.1 has filed an

application for compassionate appointment and in the year 2013, the

name of the petitioner No.2 was included in the waiting list. Learned

Counsel for the petitioners submitted that present petitioners have

claimed the appointment in Class-IV post wherein the qualification of

graduation is not required. However, the application dated 19.01.2015

nowhere states that he claim the appointment in Class-IV post. The

notice issued to the respondents state that deceased has claimed the

compassionate appointment in place of his father either in a Class-III or

Class-IV post. The impugned order dated 22.06.2017 shows that the

name of the present petitioner was included in a waiting list for Class-III

and Class-IV post. The benchmark was fixed for the appointment on wp.8153.2018. judgment.odt

compassionate ground. Total 686 applications were pending out of

which 121 candidates were recommanded and benchmark of 75 marks

was fixed. The applications were scrutinized by the Evaluation

Committee on the basis of imputs provided by the District Offices and

documents submitted by the claimants on nine different parameters such

as income of the deceased employees family, number of dependents and

minor children at the time of death, family pension etc. for making an

objective assessment about the penurious condition of the

applicants/claimants. Points obtained by individual claimants on 100

points scale have been taken for deciding the penurious conditions of the

claimants. On the basis of the evaluation the Zonal Committee checked

the integrated list of all the claimants and arranged the list in

descending order based on the points obtained by the claimants as the

highest point implies the most penurious family/claimants.

11. The scheme of the compassionate appointment framed by

the respondents is also placed on record. As per the scheme, 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 wp.8153.2018. judgment.odt

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. The upper age limit of 45 is fixed and lower age

limit is 18 years. The definition of family includes spouse; or son

(including adopted son); or daughter (including adopted daughter); or

brother or sister in the case of unmarried government servant. A

married daughter is entitled if she was only dependent on the

government servant at the time of his/her death in harness or retirement

on medical ground. He must support other dependent members of the

family. The scheme further states that compassionate appointment can

be made only upto 5% of vacancies falling for direct recruitment quota

in Group 'C' posts (including erstwhile Group 'D' post) in a 'recruitment

year'. The manner of determination of vacancies has been explained in

the consolidated instructions on compassionate appointment dated

16.01.2023. The scheme further states that compassionate appointment

can be made only if a regular vacancy is available for that purpose. No

appointment can be made against a future vacancy. 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. The consideration for the

compassionate appointment is that the family is indigent and deserves

immediate assistance for relief from financial destitution; and applicant wp.8153.2018. judgment.odt

for compassionate appointment should be eligible and suitable for the

post in all respects under the provisions of the relevant recruitment

Rules. The onus for examining the penurious condition as per Clause 32

of the dependent family rest with authority making compassionate

appointment. Thus, the basic criteria for compassionate appointment is

of that to provide the appointment to the persons as financial assistance

or immediate succor to the family. Considering the intent of the policy

for providing compassionate appointment, any delay would clearly

defeat the policy.

12. In the present matter, the father of the petitioner No.2 died

on 03.12.2001. The name of the petitioner No.2 was included in the

waiting list in the year 2013, prior to that, the name of the petitioner

No.1 was included in the waiting list. It is also not disputed that the

retirement benefits are received by the petitioner No.1 who had initially

applied for the compassionate appointment. Since as per the policy, the

compassionate appointment is to be against the vacancy available and

benchmark was fixed for appointment of the said compassionate ground,

to attain the said benchmark the Committee has considered the

parameters such as income of the deceased employee's family, number of

dependents and minor children at the time of death, family pension etc.

for making an objective assessment about the penurious condition of the wp.8153.2018. judgment.odt

applicants and claimants. Points obtained by individual claimants on

100 points scale have been taken into consideration for deciding the

penurious condition of the claimants. The present petitioner No.2 could

not attain the said benchmark and therefore, he was not considered for

the said appointment. The petitioner No.2 is also not qualified as he is

under graduate and in the evaluation process, he obtained 74 marks out

of 100, when benchmark of 75 was fixed. As such the condition of

petitioner No.2 has not been found to be penurious resultant to which

compared to the selected claimants, he was not considered. The

reasoned order was passed by the respondents while rejecting the claim

of the present petitioners.

13. In Fertilizers and Chemicals Travancore Ltd. and others Vs.

Anusree K. B., 2022 LiveLaw (SC) 819, the Hon'ble Apex Court has held

in para 9.1 and 9.2 as under:

"9.1 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the respondent shall not be entitled to the appointment on compassionate ground on the death of her father, who died in the year 1995. After a period of 24 years from the death of the deceased employee, the respondent shall not be entitled to the appointment on compassionate ground. If such an appointment is made now and/or after a period of 14/24 years, the same shall be against the object wp.8153.2018. judgment.odt

and purpose for which the appointment on compassionate ground is provided.

9.2 Under the circumstances, both, the learned Single Judge as well as the Division Bench of the High Court have committed a serious error in directing the appellants to reconsider the case of the respondent for appointment on compassionate ground. The impugned judgment and order passed by the High Court is unsustainable."

14. The similar position is reiterated in The State of West Bengal

Vs. Debabrata Tiwari and others Etc. Etc. reported in 2023 LiveLaw (SC)

175 in para 7.5 in the following words:

"7.5. Considering the second question referred to above, in the first instance, regarding whether applications for compassionate appointment could be considered after a delay of several years, we are of the view that, in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Further, the financial circumstances of the family of the deceased, may have changed, for the better, since the time of the death of the government employee. In such circumstances, Courts or other relevant authorities are to be guided by the fact that for such prolonged period of delay, the family of the deceased was able to sustain themselves, most probably by availing gainful employment from some other source. Granting compassionate appointment in such a case, as noted by this Court in Hakim Singh would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession which is contrary to the Constitution. Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents wp.8153.2018. judgment.odt

of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee."

15. It is, thus, apparent that any delay either in making of the

application or in the appointment on compassionate basis would defeat

the very purpose and object of the policy and take away the plea of

necessity and immediate succor, for the reason that since for that

duration as the family of the deceased was able to sustain themselves,

granting of compassionate appointment after several years/decade

would foster a backdoor entry and defeat the object of providing public

employment on merits.

16. Applying the law laid down by this Court in the aforesaid

decision to the facts of the case on hand and considering the

observations made here in above and the object and purpose for which

the appointment on compassionate ground is provided, the petitioner