Gujarat High Court
Vinubhai Madhubhai Bhaliya vs Mahuva Municipality on 9 February, 2024
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9703 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
================================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
VINUBHAI MADHUBHAI BHALIYA
Versus
MAHUVA MUNICIPALITY & 3 other(s)
================================================================
Appearance:
MS VIDITA D JAYSWAL(6730) for the Petitioner(s) No. 1
MR ADITYA JADEJA, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 2,3
RULE SERVED for the Respondent(s) No. 4
MS SIMRAN PAHWA FOR THAKKAR AND PAHWA ADVOCATES(1357) for
the Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 09/02/2024
ORAL JUDGMENT
1. By way of present petition under Article 226 of the
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
Constitution of India, the petitioner begs to challenge the
inaction on the part of the Respondent Authorities in delaying
the application of the petitioner for compassionate
appointment dated 21.11.2002 for almost ten years and also
the order of the Respondent No.4 herein in rejecting the
compassionate appointment application of the petitioner
considering it to be an application made in the year 2012 and
not 2002. Therefore, in the present petition, the petitioner has
prayed for the following reliefs :
"A. YOUR LORDSHIPS may be pleased to admit and allow the
petition.
B. YOUR LORDSHIPS may be pleased to issue a writ of mandamus
or any other appropriate writ, order or direction, to direct the
respondent authorities to consider representation dated 21.11.2002
and decide the same in accordance with law and consider the grant
of compassionate appointment to the petitioner and further be
pleased to quash and set aside the order of the respondent
authorities dated 27.09.2012.
C. Pending admission, hearing and final disposal of present petition,
YOUR LORDSHIPS may be pleased to direct the respondent
authorities to consider representation dated 21.11.2002 and decide
the same in accordance with law and consider the grant of
compassionate appointment to the petitioner and further be
pleased to quash and set aside the order of the respondent
authorities dated 27.09.2012.
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
D. YOUR LORDSHIPS may be pleased to grant any other and further
relief/s, as may be deemed just and proper in the interest of justice
and fitness of things."
2. The brief facts leading to the present petition are as
under :
2.1 It is the case of the petitioner that the father of the
petitioner Late Shri Madhubhai Bhagwanbhai Bhaliya was
working as Mali in the Medical Unit of the Respondent No. 1.
The father of the petitioner died on 28.10.2002 while in
service, leaving behind his family consisting of widow mother,
two sons and six daughters. It is further the case of the
petitioner that immediately after the death of his father, the
petitioner had preferred a representation dated 21.11.2002
before the respondent no.1 authority to appoint the petitioner
on compassionate ground as there is no earning member in
the family of the petitioner.
2.2 It is the case of the petitioner that after the
representation for appointment on compassionate basis was
sent to the Respondent No. 1 Authority there was no
communication from the Respondent No. 1. The petitioner had
visited the office of the Respondent No. 1 several times but no
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
correct information was provided to the petitioner. Thereafter,
on 28.08.2012 the petitioner again sent a representation to the
Respondent No. 1 requesting the Respondent No. 1 to grant
appointment on compassionate basis and later again on
31.08.2012 another representation was made before the
Respondent No. 1 requesting the Respondent No. 1 to consider
the application of the petitioner and also that the petitioner is
ready to accept any kind of work in any department and at any
place.
2.3 It is the case of the petitioner that thereafter, on
12.09.2012, the application of the petitioner for compassionate
appointment was forwarded to the Respondent No. 3 -
Collector by the Respondent No. 1 and on 27.09.2012,
Respondent No. 4 communicated to the Respondent No. 1 that
as per the Resolution dated 26.06.2003 of the Urban
Development and Urban Housing Development Department,
no compassionate appointments be given which was duly
informed to all the municipalities by the Respondent No. 2 -
Directorate of Municipalities vide letter dated 30.06.2003 and
again on 04.09.2012. It is further the case of the petitioner that
pursuant to the letter of the Respondent No. 4, the Respondent
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
No. 1 vide letter dated 09.10.2012 informed the petitioner that
as per the resolutions dated 30.06.2003 and 04.09.2012
passed by the Director of Municipalities neither any
compassionate appointments be given nor compensation be
given to the applicants for compassionate appointment and
thereafter, the Respondent No. 4 vide letter dated 18.10.2012
instructed the Respondent No. 1 to submit a report as to why
the application of 2002 was not processed till 2012.
2.4 Being aggrieved and dissatisfied with the inaction of the
respondent authorities in delaying the compassionate
appointment application of the present petitioner for almost 10
years and also the action of the Respondent No. 4 in rejecting
the application for compassionate appointment of the
petitioner by considering it to be an application made in the
year 2012 and not 2002, the petitioner has preferred the
present petition.
3. Heard learned advocate Ms.Vidita Jayswal, appearing on
behalf of the petitioner, learned advocate Ms.Simran Pahwa,
appearing on behalf of the respondent No.1 - Municipality and
learned Assistant Government Pleader Mr.Aditya Jadeja,
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
appearing on behalf of the respondent - State Authorities.
4. Learned advocate Ms.Jayswal for the petitioner has
submitted that the action of the respondents in rejecting the
application of compassionate appointment of the petitioner is
perverse, illegal and unsustainable in the eye of law. She has
submitted that the petitioner had made an application for
compassionate appointment on 21.11.2002 which was lying
with the respondent No.1 for more than ten years and after
second representation dated 28.08.2012, the application of the
petitioner was forwarded to the respondent No.3 and
therefore, the inaction of the respondent No.1 has led to
infringement of the petitioner's legal right of being employed.
She has submitted that the order dated 27.09.2012 passed by
the respondent No.4 is without application of mind and without
going through the contents of the application of the petitioner.
She has further submitted that the respondent authorities are
trying to deprive the petitioner of the legal and legitimate right
granted by the State and therefore, she has urged that the
present petition be allowed and the orders passed by the
respondent authorities dated 27.09.2012 and 09.10.2012 be
quashed and set aside.
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
5. As against that, learned advocate Ms.Simran Pahwa,
appearing on behalf of the respondent - Municipality, has
vehemently opposed the present petition and has submitted
that the petitioner has applied for compassionate appointment
after 10 years of the demise of his father on 28.10.2002 who
was employed in the Medical Unit of the respondent -
Municipality, and on the ground of delay and latches, the
petition deserves to be dismissed. She has referred to the
averments made in the affidavit-in-reply filed on behalf of the
respondent No.1, more particularly paragraphs 4 and 5, which
reads as under :
"4. I state that despite reprimanded by the Collector, Bhavnagar,
the then Chief Officer of the respondent no.1 - Municipality again
forwarded another proposal for compassionate appointment of the
petitioner vide communication dated 12.9.2012 as per Annexure-E
to the petition and the Additional collector, Bhavnagar vide
communication dated 8.10.2012 again rejected the proposal and
called upon the then Chief Officer to show cause as to why
disciplinary action should not be taken against him for resending
the proposal of the petitioner for compassionate appointment, as
per Annexure-F to the petition. I state that the petitioner was
accordingly informed vide communication dated 9.10.2012 that the
petitioner cannot be appointed on compassionate ground as per the
prevailing policy of the government, as per communication at
Annexure-G to the petition. The petition is filed after delay of two
years from the last communication and considering the fact that the
petitioner has approached after about 12 years, the petitioner
cannot be said to a person in distress and harness to seek
compassionate appointment.
5. I state that moreover the management of the Medical Unit i.e.
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
General Hospital, Mahuva is taken over by the State Government
w.e.f. 1.5.2013 and therefore, now it is for the State Government to
consider the grievance of the petitioner for compassionate
appointment."
5.1 Learned advocate Ms.Pahwa has further submitted that
on earlier occasion, it was informed that the application of the
petitioner cannot be considered in light of the fact that the
application was made in the year 2002 and thereafter, the
petitioner had never taken appropriate steps to challenge the
action / inaction on the part of the respondent authorities till
filing of this petition i.e. in the year 2014 and therefore, there
is a gross delay in approaching this Court and the law is very
settled in the aspects of appointment on compassionate
ground. She has therefore, urged that the present petition be
dismissed.
6. I have heard the learned advocates appearing for the
respective parties and perused the material placed on record.
It appears from the record that for the purpose of immediate
relief to the family members of the deceased employee, the
scheme was flaunted for compassionate appointment. After
the petitioner had made application in the year 2002 for
compassionate appointment, the petitioner had neither taken
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
any appropriate steps or approach the authority by making
application / representation nor he had approached any
competent Court and the petitioner has filed the present
petition after almost 12 years. It is pertinent to note here that
the application of the petitioner was decided by the
respondent authority in light of the resolutions dated
30.06.2003 and 04.09.2012 passed by the Director of
Municipalities, which clearly states that neither compassionate
appointment nor any compensation be given to the applicants
for compassionate appointment, which fact was informed to
the petitioner by the respondent authority by letter dated
09.10.2012. However, the said decision was challenged by the
petitioner after almost two years and thus, there is a gross
delay in approaching this Court.
6.1 At this stage, it would be appropriate to refer to the
decision of the Hon'ble Apex Court rendered in case of State
of West Bengal Vs. Debabrata Tiwari & Ors. Etc. Etc.,
reported in 2023 LiveLaw [SC] 175, wherein, it has been
observed and held as under :
Head note : Compassionate Appointment - Since
compassionate appointment is not a vested right and the
same is relative to the financial condition and hardship
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
faced by the dependents 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.
"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 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.
8. Laches or undue delay, the blame-worthy conduct of a person in
approaching a Court of Equity in England for obtaining discretionary
relief which disentitled him for grant of such relief was explained
succinctly by Sir Barnes Peacock, in Lindsay Petroleum Co. vs.
Prosper Armstrong, (1874) 3 PC 221 as under:
"Now the doctrine of laches in Courts of Equity is not an
arbitrary or a technical doctrine. Where it would be
practically unjust to give a remedy, either because the party
has, by his conduct, done that which might fairly be regarded
as equivalent to a waiver of it, or where by his conduct and
neglect he has, though perhaps not waiving that remedy, yet
put the other party in a situation, in which it would not be
reasonable to place him if the remedy were afterwards to be
asserted, in either of these cases, lapse of time and delay are
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
most material. But in every case, if an argument against
relief, which otherwise would be just, is founded upon mere
delay, that delay of course not amounting to a bar by any
statute or limitations, the validity of that defence must be
tried upon principles substantially equitable. Two
circumstances, always important in such cases, are, the
length of the delay and the nature of the acts done during
the interval, which might affect either party and cause a
balance of Justice or injustice in taking the one course or the
other, so far as it relates to the remedy."
Whether the above doctrine of laches which disentitled grant of
relief to a party by Equity Court of England, could disentitle the
grant of relief to a person by the High Court in the exercise of its
power under Article 226 of our Constitution, came up for
consideration before a Constitution Bench of this Court in Moon
Mills Ltd. vs. M. R. Meher, President, Industrial Court, Bombay, AIR
1967 SC 1450. In the said case, it was regarded as a principle that
disentitled a party for grant of relief from a High Court in the
exercise of its discretionary power under Article 226 of the
Constitution.
In State of M.P. vs. Nandlal Jaiswal, (1986) 4 SCC 566 this Court
restated the principle articulated in earlier pronouncements in the
following words:
"9. ... the High Court in exercise of its discretion does not
ordinarily assist the tardy and the indolent or the acquiescent
and the lethargic. If there is inordinate delay on the part of
the Petitioner and such delay is not satisfactorily explained,
the High Court may decline to intervene and grant relief in
exercise of its writ jurisdiction. It was stated that this Rule is
premised on a number of factors. The High Court does not
ordinarily permit a belated resort to the extraordinary
remedy because it is likely to cause confusion and public
inconvenience and bring, in its train new injustices, and if
writ jurisdiction is exercised after unreasonable delay, it may
have the effect of inflicting not only hardship and
inconvenience but also injustice on third parties. It was
pointed out that when writ jurisdiction is invoked,
unexplained delay coupled with the creation of third- party
rights in the meantime is an important factor which also
weighs with the High Court in deciding whether or not to
exercise such jurisdiction."
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
While we are mindful of the fact that there is no period of limitation
provided for filing a writ petition under Article 226 of the
Constitution, ordinarily, a writ petition should be filed within a
reasonable time, vide Jagdish Lal vs. State of Haryana, (1997) 6
SCC 538; NDMC vs. Pan Singh, (2007) 9 SCC 278.
9. Further, simply because the Respondents-Writ Petitioners
submitted their applications to the relevant authority in the year
2005- 2006, it cannot be said that they diligently perused the
matter and had not slept over their rights. In this regard, it may be
apposite to refer to the decision of this Court in State of Uttaranchal
vs. Shiv Charan Singh Bhandari, (2013) 12 SCC 179, wherein the
following observations were made:
"19. From the aforesaid authorities it is clear as crystal that
even if the court or tribunal directs for consideration of
representations relating to a stale claim or dead grievance it
does not give rise to a fresh cause of action. The dead cause
of action cannot rise like a phoenix. Similarly, a mere
submission of representation to the competent authority
does not arrest time." (emphasis by us)
11. It may be apposite at this juncture to refer to the following
observations of this Court in Malaya Nanda Sethy vs. State of
Orissa, AIR 2022 SC 2836, as to the manner in which the authorities
must consider and decide applications for appointment on
compassionate grounds:
"9. Before parting with the present order, we are constrained
to observe that considering the object and purpose of
appointment on compassionate grounds, i.e., a family of a
deceased employee may be placed in a position of financial
hardship upon the untimely death of the employee while in
service and the basis or policy is immediacy in rendering of
financial assistance to the family of the deceased consequent
upon his untimely death, the authorities must consider and
decide such applications for appointment on compassionate
grounds as per the policy prevalent, at the earliest, but not
beyond a period of six months from the date of submission of
such completed applications.
We are constrained to direct as above as we have found that
in several cases, applications for appointment on
compassionate grounds are not attended in time and are
kept pending for years together. As a result, the applicants in
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
several cases have to approach the concerned High Courts
seeking a writ of Mandamus for the consideration of their
applications. Even after such a direction is issued, frivolous or
vexatious reasons are given for rejecting the applications.
Once again, the applicants have to challenge the order of
rejection before the High Court which leads to pendency of
litigation and passage of time, leaving the family of the
employee who died in harness in the lurch and in financial
difficulty. Further, for reasons best known to the authorities
and on irrelevant considerations, applications made for
compassionate appointment are rejected. After several years
or are not considered at all as in the instant case.
If the object and purpose of appointment on compassionate
grounds as envisaged under the relevant policies or the rules
have to be achieved then it is just and necessary that such
applications are considered well in time and not in a tardy
way. We have come across cases where for nearly two
decades the controversy regarding the application made for
compassionate appointment is not resolved. This
consequently leads to the frustration of the very policy of
granting compassionate appointment on the death of the
employee while in service. We have, therefore, directed that
such applications must be considered at an earliest point of
time. The consideration must be fair, reasonable and based
on relevant consideration. The application cannot be rejected
on the basis of frivolous and for reasons extraneous to the
facts of the case. Then and then only the object and purpose
of appointment on compassionate grounds can be achieved."
(emphasis by us)
In the said case, the claim of the appellant-applicant therein for
compassionate appointment was directed by this Court to be
considered by the competent authority. This Court noted that in the
said case, there was no lapse on the part of the appellant-applicant
therein in diligently pursuing the matter. The delay in considering
the application of the appellant therein was held to be solely
attributable to the authorities of the State, and no part of it was
occasioned by the appellant-applicant. Further, in the said case, the
appellant-applicant was prejudiced not only because of the
prolonged delay in considering his application but also by the fact
that in the interim, the policy of the State governing compassionate
appointment had changed to his detriment. Therefore, the facts of
the said case were distinct from the facts involved herein. In the
present case, the conduct of the Respondents-Writ Petitioners
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
cannot be said to be blameless in that they did not pursue their
matter with sufficient diligence. However, the observations made in
the said case as to the manner in which applications for
compassionate appointment are to be considered and disposed of
are relevant to the present case.
As noted in the said case, the operation of a policy/scheme for
compassionate appointment is founded on considerations of
immediacy. A sense of immediacy is called for not only in the
manner in which the applications are processed by the concerned
authorities but also in the conduct of the applicant in pursuing his
case, before the authorities and if needed before the Courts.
12. In the present case, the applications for compassionate
appointment were made by the Respondents-Writ Petitioners in the
year 2005-2006. Admittedly, the first concrete step taken by the
Chairman of the Burdwan Municipality was in the year 2013, when
the said authority forwarded a list of candidates to be approved by
the Director of Local Bodies, Burdwan Municipality. The
Respondents-Writ Petitioners knocked on the doors of the High
Court of Calcutta only in the year 2015, i.e., after a lapse of nearly
ten years from the date of making the application for
compassionate appointment. The Respondents-Writ Petitioners
were not prudent enough to approach the Courts sooner, claiming
that no concrete step had been taken by the Appellant-State in
furtherance of the application by seeking a Writ in the nature of
Mandamus.
13. The sense of immediacy in the matter of compassionate
appointment has been lost in the present case. This is attributable
to the authorities of the Appellant-State as well as the Respondents-
Writ Petitioners. Now, entertaining a claim which was made in 2005-
2006, in the year 2023, would be of no avail, because admittedly,
the Respondents-Writ Petitioners have been able to eke out a living
even though they did not successfully get appointed to the services
of the Municipality on compassionate grounds. Hence, we think that
this is therefore not fit cases to direct that the claim of the
Respondents-Writ Petitioners for appointments on compassionate
grounds, be considered or entertained.
15. The question as to whether a direction issued several years
after an application for compassionate appointment, to consider
and decide such application, is in consonance with the object of a
policy/scheme for compassionate appointment, has been answered
in the negative. However, we shall also examine whether these
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
appeals must succeed on a second count, i.e., whether there exists
any scheme in the State of West Bengal, governing compassionate
appointment vis-à-vis municipal employees dying in harness."
6.2 In case of Ahmednagar Mahanagar Palika Vs.
Ahmednagar Mahanagar Palika Kamgar Union, reported
in 2022 LiveLaw [SC] 739, the Hon'ble Apex Court has
observed and held as under :
"8. Even otherwise, such an appointment to the heirs of the
employees on their retirement and/or superannuation shall be
contrary to the object and purpose of appointment on
compassionate grounds and is hit by Article 14 of the Constitution
of India. As observed and held by this Court in a catena of
decisions, compassionate appointment shall always be treated as
an exception to the normal method of recruitment. The
appointment on compassionate grounds is provided upon the death
of an employee in harness without any kind of security whatsoever.
The appointment on compassionate grounds is not automatic and
shall be subject to the strict scrutiny of various parameters
including the financial position of the family, the economic
dependence of the family upon the deceased employee and the
avocation of the other members of the family. No one can claim to
have a vested right for appointment on compassionate grounds.
Therefore, appointment on compassionate grounds cannot be
extended to the heirs of the employees on their superannuation
and/or retirement. If such an appointment is permitted, in that case,
outsiders shall never get an appointment and only the heirs of the
employees on their superannuation and/or retirement shall get an
appointment and those who are the outsiders shall never get an
opportunity to get an appointment though they may be more
meritorious and/or well educated and/or more qualified. Therefore,
the submission on behalf of the respondent that the appointment is
not on compassionate grounds but the same be called as varas
hakka cannot be accepted. Even if the same be called as varas
hakka the same is not supported by any scheme and even the
same also can be said to be violative of Article 14 as well as Article
15 of the Constitution of India."
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
6.3 In case of Shivam Satishkumar Vaidya Vs. State of
Gujarat, reported in 2023 LawSuit [Guj] 1499, the
Division Bench of this Court has observed and held as under :
"8. Having heard learned advocates for both the sides, at the
outset, let refer to the decision of the Hon'ble Supreme Court as to
find out purport and object of scheme of compassionate
appointment, in the case of Bhawani Prasad Sonkar v/s. Union of
India [(2011) 4 SCC 209], it has been held as under :-
"15. 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
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....
17. In Umesh Kumar Nagpal Vs. State of Haryana & Ors.1, while
emphasising that a compassionate appointment cannot be claimed
as a matter of course or in posts above Class III and IV, this Court
had observed that:
"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
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
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."
....20.Thus, while considering a claim for employment on
compassionate ground, the following factors have to be borne in
mind:
(i) Compassionate employment cannot be made in the
absence of rules or regulations issued by the Government or
a public authority. The request is to be considered strictly in
accordance with the governing scheme, and no discretion as
such is left with any authority to make compassionate
appointment dehors the scheme.
(ii) An application for compassionate employment must be
preferred without undue delay and has to be considered
within a reasonable period of time.
(iii) An appointment on compassionate ground is to meet the
sudden crisis occurring in the family on account of the death
or medical invalidation of the bread winner while in service.
Therefore, compassionate employment cannot be granted as
a matter of course by way of largesse irrespective of the
financial condition of the deceased/incapacitated employee's
family at the time of his death or incapacity, as the case may
be.
(iv) Compassionate employment is permissible only to one of
the dependants of the deceased/incapacitated employee, viz.
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
parents, spouse, son or daughter and not to all relatives, and
such appointments should be only to the lowest category
that is Class III and IV posts."
9. After referring case of Govind Prakash Verma v/s. LIC [(2005) 10
SCC 289], the Hon'ble Supreme Court in the case of State of
Himachal Pradesh and Anr. v/s. Shashi Kumar [(2019) 3 SCC 653
considered the object and purpose of appointment on
compassionate ground. In para 21 and 26 in the said judgment, it is
observed and held as under :-
"21. The decision in Govind Prakash Verma [Govind Prakash
Verma v. LIC, (2005) 10 SCC 289, has been considered
subsequently in several decisions. But, before we advert to
those decisions, it is necessary to note that the nature of
compassionate appointment had been considered by this
Court in Umesh Kumar Nagpal v. State of Haryana [Umesh
Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138]. The
principles which have been laid down in Umesh Kumar
Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4
SCC 138] have been subsequently followed in a consistent
line of precedents in this Court. These principles are
encapsulated in the following extract: (Umesh Kumar Nagpal
case [Umesh Kumar Nagpal v. State of Haryana, (1994) 4
SCC 138], SCC pp. 139-40, para 2)
"2. ... As a rule, appointments in the public services should be
made strictly on the basis of open invitation of applications
and merit. No other mode of appointment nor any other
consideration is permissible. Neither the Governments nor
the public authorities are at liberty to follow any other
procedure or relax the qualifications laid down by the rules
for the post. However, to this general rule which is to be
followed strictly in every case, there are some exceptions
carved out in the interests of justice and to meet certain
contingencies. One such exception is in favour of the
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 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
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
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."
26. The judgment of a Bench of two Judges in Mumtaz Yunus
Mulani v. State of Maharashtra [(2008) 11 SCC 384] has
adopted the principle that appointment on compassionate
grounds is not a source of recruitment, but a means to
enable the family of the deceased to get over a sudden
financial crisis. The financial position of the family would
need to be evaluated on the basis of the provisions contained
in the scheme. The decision in Govind Prakash Verma
[Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC
(L&S) 590] has been duly considered, but the Court observed
that it did not appear that the earlier binding precedents of
this Court have been taken note of in that case."
10. It is also relevant to refer law laid in the recent decision in the
case of Director of Treasuries in Karnataka and Anr. v/s. V.
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
Somyashree [2021 SCC Online SC 704], whereby, the Hon'ble
Supreme Court referred to earlier decision in the case of
N.C.Santhosh v/s. State of Karnakata [(2020) 7 SCC 617] and
summarize the principle governing grant of appointment on
compassionate ground as under in para - 7:-
"7. While considering the issue involved in the present
appeal, the law laid down by this Court on compassionate
ground on the death of the deceased employee are required
to be referred to and considered. In the recent decision, this
Court in the case of Director of Treasuries in Karnataka and
Anr. Vs. V. Somyashree, 2021 SCC Online SC 704, had
occasion to consider the principle governing the grant of
appointment on compassionate ground. After referring to the
decision of this Court in N.C. Santhosh Vs. State of Karnataka,
(2020) 7 SCC 617, this Court has summarised the principle
governing the grant of appointment on compassionate
ground as under:-
(i) that the compassionate appointment is an exception to
the general rule;
(ii) that no aspirant has a right to compassionate
appointment;
(iii) the appointment to any public post in the service of the
State has to be made on the basis of the principle in
accordance with Articles 14 and 16 of the Constitution of
India;
(iv) appointment on compassionate ground can be made only
on fulfilling the norms laid down by the State's policy and/or
satisfaction of the eligibility criteria as per the policy;
(v) the norms prevailing on the date of the consideration of
the application should be the basis for consideration of claim
for compassionate appointment."
11. The decision in the case of Fertilizers and Chemicals Travancore
Ltd. And Ors. (supra) has visited above judgments whereby in para -
9 the Hon'ble Supreme Court has observed and held as under :-
"9. Thus, as per the law laid down by this Court in the
aforesaid decisions, compassionate appointment is an
exception to the general rule of appointment in the public
services and is in favour of the dependents of a deceased
dying in harness and leaving his family in penury and without
any means of livelihood, and in such cases, out of pure
humanitarian consideration taking into consideration the fact
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
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 such family a post
much less a post held by the deceased.
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
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."
12. Apt to refer to decision in the case of State of Himachal Pradesh
v/s. Jaflidevi (smt.) [1997 (5) SCC 301], wherein, the Hon'ble
Supreme Court has held that policy laid down by the Government
regarding compassionate appointment should not be departed from
by the High Court merely on account of sympathetic consideration
and hardship of person concerned.
13. Thus, what perceives that compassionate appointment is
exception to general rule. Person seeking compassionate
appointment has no right to get it. Generally, appointment on
compassionate ground can be made only on fulfilling norms laid
down by the State policy and /or on satisfaction of the eligibility
criteria as per policy. Compassionate appointment is exception to
general rule of policy in the public services and the person who
claims to be dependent of the deceased dying in harness has to
NEUTRAL CITATION
C/SCA/9703/2014 JUDGMENT DATED: 09/02/2024
undefined
establish that family is facing financial crunch and having no means
of livelihood. The family is running in financial difficulty as only
breadwinner of the family expired during his service and unless
source of livelihood is provided, family would not be able to meet
requirements. The whole object of granting compassionate
appointment is to enable the family to come out from financial
crunch which resulted due to sudden death of the employee and
put family in penury. The object is not to give family the post which
was held by the deceased as right."
7. For the foregoing reasons and in light of the aforesaid
reported decisions of the Hon'ble Apex Court as well as this
Court, I am of the opinion that the present petition being
devoid of any merits, deserves to be dismissed and it is
accordingly dismissed. Rule is discharged. No order as to costs.
(HEMANT M. PRACHCHHAK,J)
Dolly
