Punjab-Haryana High Court
Sobia Mujib vs State Of Punjab And Others on 26 September, 2024
Neutral Citation No:=2024:PHHC:128357
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
126
CWP-24865-2024
Date of Decision : 26.09.2024
Sobia Mujib .....Petitioner
Versus
State of Punjab and others ....Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present : Mr. L.S. Sidhu, Advocate for the petitioner.
Mr. Surya Kumar, A.A.G., Punjab.
****
NAMIT KUMAR, J. (ORAL)
1. The petitioner has invoked the jurisdiction of this Court by
filing the instant petition under Article 226 of the Constitution of India
seeking a writ of certiorari, quashing the orders dated 28.07.2022
(Annexure P-8) and 22.06.2023 (Annexure P-9), whereby the claim of
the petitioner for compassionate appointment has been rejected.
2. The brief facts, as have been pleaded in the petition, are
that father of the petitioner Sh. Mujib Rehman Khan was working as
Supervisor with Market Committee, Ahmedgarh and he died on
22.03.2012 in harness. On his death, his son namely Kasif Ali Khan was
appointed as Peon at Market Committee, Ahmedgarh on compassionate
ground. In pursuance to the said appointment, he joined and thereafter,
started absenting himself from duty during the probation period.
Therefore, he was issued show cause notices dated 15.04.2014,
19.04.2014 and 06.05.2014 which were replied by him by stating that
the reason of his absence is his mental illness, however, he could not
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produce any supporting documents for sanction of his leave. Since the
Market Committee did not find the reply to be satisfactory, therefore,
vide letter dated 27.08.2015, Kasif Ali Khan was called for hearing,
however, he could not produce any evidence of his mental illness and
finding his reply to be unsatisfactory, he was declared absent from duty
w.e.f. 01.04.2014 and the Market Committee initiated disciplinary
proceedings against him under Rule 8 of the 'Punjab State Agricultural
Marketing Service (Punishment and Appeal) Rules, 1988' (hereinafter
referred as '1988 Rules') by issuing a charge-sheet dated 21.06.2016
and after holding a regular departmental inquiry, his services were
terminated, vide resolution dated 30.11.2016, passed by the Market
Committee, Ahmedgarh and he was informed about the same vide letter
dated 07.12.2016. He preferred an appeal under Rule 15 of the 1988
Rules before the Secretary, Punjab Mandi Board, Chandigarh and the
Appellate Authority set aside the resolution dated 30.11.2016 of the
Market Committee, Ahmedgarh and the case was remanded back for
passing a fresh speaking order within a period of one month, vide order
dated 21.03.2018. The Administrator of the Market Committee-cum-
Sub Divisional Magistrate passed order dated 21.05.2018/04.06.2018,
whereby services of Kasif Ali Khan were terminated w.e.f. 01.04.2014.
Against the said order again an appeal was preferred by Kasif Ali Khan
before the Secretary, Punjab Mandi Board, Chandigarh. During the
course of hearing in the appeal, on 19.02.2020, the following order was
passed :-
"The applicant (Kasif Ali) appeared before the
undersigned. He stated that during the period of absent he
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was mentally ill & he was taking the treatment from the
Hospital Mind Care, Ludhiana. He also submitted the
medical reports and stated that he is fully fit for the duty. But
I observed him and he was not looking fit as he was absent
mind during the hearing.
I have considered opinions that get the medical fitness
report from concerned CMO regarding his fitness."
Consequently, vide letter dated 05.03.2020, Kasif Ali Khan was asked to
get himself medically examined and obtain the Medical Fitness Report.
This letter was followed by reminders dated 15.02.2021 and 27.04.2021,
however, Kasif Ali Khan failed to obtain the Medical Fitness Report and
did not submit the same with the Appellate Authority. Vide order dated
10.03.2022, the Secretary, Punjab Mandi Board, Chandigah sent the
appeal to the District Mandi Officer, Sangrur and the said authority vide
letter dated 02.05.2022 called upon the appellant-Kasif Ali Khan to
produce the Medical Fitness Report. The said letter was followed by
reminder dated 18.08.2022. In response thereto, the mother of Kasif Ali
Khan submitted an application dated 05.09.2022 submitting that her son
is ready and willing to undergo Medical Fitness Test, however, the
Medical Officer, Malerkotla has not given appointment for the same.
Thereafter, letter dated 08.09.2022 was addressed to the Medical
Officer, Malerkotla with a request to give an appointment for the
medical examination of Kasif Ali Khan. In response thereto, the Senior
Medical Officer, Incharge, Sub Divisional Hospital, Malerkotla, vide his
letter dated 27.09.2022 constituted the Medical Board and fixed the time
of medical examination of Kasif Ali Khan on 06.10.2022 at 12:30 p.m.
and Kasif Ali Khan was informed vide letter dated 30.09.2022 to appear
before the Medical Board and it was clarified that the same would be
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the last and final chance and in case he fails to appear before the
Medical Board then ex parte decision shall be taken and the appeal will
be consigned to record and no further opportunity shall be afforded. The
letter dated 30.09.2022 reads as under :-
"Regarding the aforementioned subject/reference,
your mother Smt. Sumaira Begum had, on dated 05.09.2022
filed an application and it was requested that we are ready to
undergo the test, however, the Medical Officer, Malerkotla
has not yet given us the appointment for conducting the test.
This office has requested Medical Officer, Malerkotla
at its own level for seeking appointment for conducting the
medical test. Considering the same, the Senior Medical
Officer, Incharge, Sub Divisional Hospital, Malerkotla vide
his order No.4048, dated 27.09.2022, endorsement No.4049-
52, dated 27.09.2022 has constituted a Board. The time has
been fixed at 12:30 pm on dated 06.10.2022 (Copy of the
office order is appended).
Regarding the aforementioned, it is informed to you
that you should appear before the Medical Board at the fixed
time on the fixed date. In case you do not present yourself
before the Medical Board, then it would be considered that
you are not serious in pursuing your appeal and you are
deliberately not cooperating in getting the appeal decided
and you are deliberately wasting the precious time of this
office. Even on earlier occasion, the Reader in Court,
Secretary, Punjab Mandi Board, Mohali, vide letter No.62-
64, dated 05.03.2020, letter No.Reader/Secretary/25, dated
15.02.2021 and letter No.Reader/Secretary/68, dated
27.04.2021 has given many opportunities and enough time to
you for undergoing the medical test. This would be the last
opportunity given to you. In case you do not appear before
the Medical Board on the fix time then the ex parte order will
be passed and your appeal will be consigned and no further
opportunity
will be given in future. You shall be personally responsible
for such ex parte order."
The Senior Medical Officer, Incharge, Sub Divisional Hospital,
Malerkotla vide, his letter dated 04.11.2022, informed the District
Mandi Officer, Sangrur that Kasif Ali Khan has failed to appear before
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the Medical Board on the given date and place. Consequently, the
appeal filed by Kasif Ali Khan was rejected vide order dated
12.01.2023.
3. Thereafter, the petitioner, who is daughter of deceased-
Sh. Mujib Rehman Khan, vide application dated 04.03.2023, requested
the Chairman, Punjab Mandi Board, Chandigarh to consider her case for
compassionate appointment as her brother Kasif Ali Khan could not
continue in service and has been terminated due to his mental health and
her family is in dire economic distress with no other source of income.
The said claim of the petitioner has been rejected by the District Mandi
Officer, Sangrur vide his letter dated 28.07.2022 by passing the
following order :-
"Regarding the aforementioned subject/reference, it
is informed that upon the death of Shri Muzib Rehman
Khan, Mandi Supervisor, Office of Market Committee,
Ahmedgarh, the Market Committee, Ahmedgarh has
already given compassionate appointment to his son/
your elder brother Shri Kasif Ali Khan.
As per para No.15(b) of letter No.
11/105/98/4PP/II/14420, dated 21.11.2002 issued by
Punjab Government, Personnel Department (Personnel
Policy-II Branch) "An appointment made on
compassionate grounds cannot be transferred to any
other person and any request for the same on
consideration of compassion should invariably be
rejected'.
In accordance with the aforesaid instructions issued
by the Punjab Government, your application for
compassionate appointment in place of your elder brother
Shri Kasif Ali Khan is not liable to be considered. Hence,
the application filed by you is being consigned to
record."
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It appears that the petitioner has further submitted some
representation and the same has also been rejected vide order dated
22.06.2023 in view of the earlier rejection order dated 28.07.2022.
Against the said orders, the petitioner has preferred the present writ
petition.
4. Learned counsel for the petitioner has contended that
although Kasif Ali Khan (son of the deceased and brother of the present
petitioner) was given appointment on compassionate grounds, however,
due to suffering from psychotic illness, he remained absent from duty
and his services have been terminated. Since due to his mental illness,
the brother of the petitioner was not able to continue his job, therefore,
the petitioner has claimed compassionate appointment in his place and
the said claim has wrongly been rejected by the respondents. Therefore,
appropriate directions may be issued to the respondents-authorities to
appoint the petitioner on compassionate grounds keeping in view the
fact that there is no other source of income of the family of the
petitioner.
5. Learned State counsel, who has appeared on receipt of
advance copy of the writ petition, submits that once the son of the
deceased employee-Muzib Rehman Khan has already been given
appointment on compassionate grounds, as per Clause 15(b) of the
Policy dated 21.11.2022, the claim of the petitioner has rightly been
rejected.
6. I have heard learned counsel for the parties and perused the
record.
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7. The facts are not in dispute that the father of the petitioner
namely Muzib Rehman Khan, who was working as Supervisor with the
Market Committee, Ahmedgarh, died on 22.03.2012 in harness and his
son Kasif Ali Khan was appointed as Peon on 09.04.2013 on
compassionate grounds in pursuance to the resolution dated 26.03.2013
passed by the Market Committee, Ahmedgarh. However, he was
declared absent from duty w.e.f. 01.04.2014 and after holding a regular
departmental inquiry, his services have been terminated vide resolution
dated 30.11.2016 duly conveyed to the petitioner vide letter dated
07.12.2016. Departmental appeal preferred by him has also been
rejected vide order dated 12.01.2023. Thereafter, the present petitioner,
who is daughter of the deceased employee- Muzib Rehman Khan
submitted an application dated 04.03.2023 seeking compassionate
appointment and the said claim has been rejected by the respondents
vide order dated 28.07.2022 under Clause 15(b) of the Policy dated
21.11.2002 which provides that "an appointment made on
compassionate grounds cannot be transferred to any other person and
any request for the same on considering the compassion should
invariably be rejected".
8. The Hon'ble Supreme Court in Umesh Kumar Nagpal Vs.
State of Haryana : 1994(3) S.C.T. 174, while considering the rights of
the family of the deceased employee has held that compassionate
appointment is an exception to the general rule of making appointments
in conformity with the Articles 14 and 16 of the Constitution of India. In
the said judgment, it has been held as under :-
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"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 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 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 dependents 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 dependent 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
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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 TV. We are also dismayed to
find that the decision of this Court in Sushma Gosain v.
Union of India, JT 1989(3) SC 570 : 1989(4) SLR 327 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. In the present case, the High Court has rightly
pointed out that the State Government's instructions in
question did not justify compassionate employment in
Class 11 posts. However, it appears from the judgment that
the State Government had made at least one exception and
provided compassionate employment in Class II post on the
specious ground that the person concerned had technical
qualifications such as M.B.B.S., B.E., B.Tech. etc. Such
exception, as pointed out above, is illegal, since it is
contrary to the object of making exception to the general
rule. The only ground which can justify compassionate
employment is the penurious condition of the deceased's
family. Neither the qualifications of his dependent nor the
post which he held is relevant. It is for this reason that we
are unable to understand the following observations of the
High Court in the impugned judgment:
"We are of the view that the extraordinary situations
require extraordinary remedies and it is open to the
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Government in real hard cases to deviate from the
letter and spirit of the instructions and to provide
relief in cases where it is so warranted. To hold as a
matter of law that the Government cannot deviate
even minutely from the policy of providing
appointment only against Class III and Class IV
posts, would be to ignore the reality of life these
days. It would be ridiculous to expect that a
dependent of a deceased Class I Officer, should be
offered appointment against a Class III or IV post.
While we leave it to the Government to exercise its
discretion judiciously in making appointments to
Class I or 11 posts on compassionate grounds, yet a
word of caution needs to be struck. It is to be noted
that such appointments should be ordered in the
rarest of rare cases, and in very exceptional
circumstances. As a matter of fact, we would
recommend that the Government should frame a
policy even for such appointments."
5. It is obvious from the above observations that the
High Court endorses the policy of the State Government to
make compassionate appointment in posts equivalent to the
posts held by the deceased employees and above Classes
III and IV. It is unnecessary to reiterate that these
observations are contrary to law. If the dependent of the
deceased employee 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.
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.
7. It is needless to emphasise that the provisions for
compassionate employment have necessarily to be made by
the rules or by the executive instructions issued by the
Government or the public authority concerned. The
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employment cannot be offered by an individual functionary
on an ad hoc basis."
9. Hon'ble Supreme Court while considering the similar issue
in Union of India and another Vs. B. Kishore : 2011(3) S.C.T. 18 has
held as under: -
"6. In State Bank of India v. Raj Kumar, 2010(4)
S.C.T. 77 : (2010) 11 SCC 661, elucidating the nature of
the scheme of compassionate appointments this Court
observed :-
"It is now well settled that appointment on
compassionate grounds is not a source of
recruitment. On the other hand it is an exception to
the general rule that recruitment to public services
should be on the basis of merit, by an open invitation
providing equal opportunity to all eligible persons to
participate in the selection process. The dependants
of employees, who die in harness, do not have any
special claim or right to employment, except by way
of the concession that may be extended by the
employer under the rules or by a separate scheme,
to enable the family of the deceased to get over the
sudden financial crisis. The claim for compassionate
appointment is therefore traceable only to the
scheme framed by the employer for such employment
and there is no right whatsoever outside such
scheme. An appointment under the scheme can be
made only if the scheme is in force and not after it is
abolished/withdrawn. It follows therefore that when
a scheme is abolished, any pending application
seeking appointment under the scheme will also
cease to exist, unless saved. The mere fact that an
application was made when the scheme was in force,
will not by itself create a right in favour of the
applicant."
10. To the same effect is the judgment of a Division Bench of
this Court in Rajesh Kumar Vs. Union of India and others : 2011(4)
S.C.T. 218, wherein it has been held as under: -
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"4. Having heard learned counsel for the parties we are of
the considered view that the view taken by the Tribunal
does not suffer from any legal infirmity warranting
interference of this Court. The Tribunal has rightly
observed that the compassionate appointment is not a
mode of entry into service but it is only to help the
surviving members of the family to overcome sudden
financial crisis created by the sudden death of the bread
winner, as has been held by Hon'ble the Supreme Court in
the cases of National Hydro v. Nanak Chand, 2004(4)
S.C.T. 724 : (2004) 12 SCC 487 : [2005 (1) SLR 1 (SC)]
and Hindustan Aeronautics Limited v. Smt. A. Radhika
Thirumalal 1997(1) S.C.T. 329 : 1996 (9) SC 197 : [1996
(6) SLR 21 (SC)]. Such an appointment cannot be secured
as a matter of right as it is an exception to Articles 14 and
16(1) of the Constitution. The father of the applicant-
petitioner expired on 19.7.2004. It cannot be concluded
that the situation created by his death is still prevailing and
continuing. Hon'ble the Supreme Court in the cases of
Santosh Kumar Dubey v. State of U.P. 481 2009(3) S.C.T.
629 : 2009(4) Recent Apex Judgments (R.A.J.) 563 :
[2010 (1) SLR 261 (SC)] and Mumtaz Yunus Mulani v.
State of Maharashtra, 2008(2) S.C.T. 669 : 2008(3)
Recent Apex Judgments (R.A.J.) 263 : (2008) 11 SCC 384
: [2008 (3) SLR 782 (SC)], has held that compassionate
appointment after lapse of number of years is
impermissible. There is, thus, no merit in the instant
petition and accordingly the same is dismissed."
11. Hon'ble Supreme Court in its latest judgment in The State
of West Bengal Vs. Debabrata Tiwari and others : 2023 AIR Supreme
Court 1467, while considering the similar issue and after considering
various judgments of the Hon'ble Supreme Court, has been held as
under :-
"Policy of Compassionate Appointment: The Rationale:
7. The majesty of death is that it is a great leveller for,
it makes no distinction between the young and the old or
the rich and the poor. Death being as a consequence of
birth at some point of time is inevitable for every being.
Thus, while death is certain, its timing is uncertain.
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Further, a deceased employee does not always leave
behind valuable assets; he may at times leave behind
poverty to be faced by the immediate members of his
family. Therefore, what should be done to ensure that death
of an individual does not mean economic death for his
family? The State's obligation in this regard, confined to its
employees who die in harness, has given rise to schemes
and rules providing for compassionate appointment of an
eligible member of his family as an instance of providing
immediate succour to such a family. Support for such a
provision has been derived from the provisions of Part IV
of the Constitution of India, i.e., Article 39 of the Directive
Principles of State Policy.
7.1. It may be apposite to refer to the following decisions
of this Court, on the rationale behind a policy or scheme
for compassionate appointment and the considerations that
ought to guide determination of claims for compassionate
appointment.
i. In Sushma Gosain vs. Union of India, (1989) 4
SCC 468, this Court observed that in all claims for
appointment on compassionate grounds, there
should not be any delay in appointment. That the
purpose of providing appointment on compassionate
grounds is to mitigate the hardship caused due to the
death of the bread earner in the family. Such
appointment should, therefore, be provided
immediately to redeem the family in distress.
ii. In Umesh Kumar Nagpal vs. State of Haryana,
(1994) 4 SCC 138, this Court observed that the
object of granting compassionate employment is to
enable the family of a deceased government
employee to tide over the sudden crisis by providing
gainful employment to one of the dependents of the
deceased who is eligible for such employment. That
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, provided a
scheme or rules provide for the same. This Court
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further clarified in the said case that compassionate
appointment is not a vested right which can be
exercised at any time after the death of a government
servant. 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, compassionate
employment cannot be claimed and offered after
lapse of considerable amount of time and after the
crisis is overcome.
iii. In Haryana State Electricity Board vs. Hakim
Singh, (1997) 8 SCC 85, ("Hakim Singh") this
Court placed much emphasis on the need for
immediacy in the manner in which claims for
compassionate appointment are made by the
dependants and decided by the concerned authority.
This Court cautioned that it should not be forgotten
that the object of compassionate appointment is to
give succour to the family to tide over the sudden
financial crisis that has befallen the dependants on
account of the untimely demise of its sole earning
member. Therefore, this Court held that it would not
be justified in directing appointment for the
claimants therein on compassionate grounds,
fourteen years after the death of the government
employee. That such a direction would amount to
treating a claim for compassionate appointment as
though it were a matter of inheritance based on a
line of succession.
iv. This Court in State of Haryana vs. Ankur Gupta,
AIR 2003 SC 3797 held that in order for a claim for
compassionate appointment to be considered
reasonable and permissible, it must be shown that a
sudden crisis occurred in the family of the deceased
as a result of death of an employee who had served
the State and died while in service. It was further
observed that appointment on compassionate
grounds cannot be claimed as a matter of right and
cannot be made available to all types of posts
irrespective of the nature of service rendered by the
deceased employee.
v. There is a consistent line of authority of this Court
on the principle that appointment on compassionate
grounds is given only for meeting the immediate
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unexpected hardship which is faced by the family by
reason of the death of the bread earner vide Jagdish
Prasad vs. State of Bihar, (1996) 1 SCC 301. When
an appointment is made on compassionate grounds,
it should be kept confined only to the purpose it
seeks to achieve, the idea being not to provide for
endless compassion, vide I.G. (Karmik) vs.
Prahalad Mani Tripathi, (2007) 6 SCC 162. In the
same vein is the decision of this Court in Mumtaz
Yunus Mulani vs. State of Maharashtra, (2008) 11
SCC 384, wherein it was declared 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.
vi. In State of Jammu and Kashmir vs. Sajad Ahmed
Mir, AIR 2006 SC 2743, the facts before this Court
were that the government employee (father of the
applicant therein) died in March, 1987. The
application was made by the applicant after four
and half years in September, 1991 which was
rejected in March, 1996. The writ petition was filed
in June, 1999 which was dismissed by the learned
Single Judge in July, 2000. When the Division Bench
decided the matter, more than fifteen years had
passed from the date of death of the father of the
applicant. This Court remarked that the said facts
were relevant and material as they would
demonstrate that the family survived in spite of
death of the employee. Therefore, this Court held
that granting compassionate appointment after a
lapse of a considerable amount of time after the
death of the government employee, would not be in
furtherance of the object of a scheme for
compassionate appointment.
vii. In Shashi Kumar, this Court speaking through Dr.
D.Y. Chandrachud, J. (as His Lordship then was)
observed that compassionate appointment is an
exception to the general rule that appointment to
any public post in the service of the State has to be
made on the basis of principles which accord with
Articles 14 and 16 of the Constitution. That the basis
of the policy is that it recognizes that a family of a
deceased employee may be placed in a position of
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financial hardship upon the untimely death of the
employee while in service. That it is the immediacy
of the need which furnishes the basis for the State to
allow the benefit of compassionate appointment. The
pertinent observations of this Court have been
extracted as under:
"41. Insofar as the individual facts
pertaining to the Respondent are concerned, it
has emerged from the record that the Writ
Petition before the High Court was instituted
on 11 May 2015. The application for
compassionate appointment was submitted on
8 May 2007. On 15 January 2008 the
Additional Secretary had required that the
amount realized by way of pension be included
in the income statement of the family. The
Respondent waited thereafter for a period in
excess of seven years to move a petition Under
Article 226 of the Constitution. In Umesh
Kumar Nagpal (supra), this Court has
emphasized that the basis of a scheme of
compassionate appointment lies in the need of
providing immediate assistance to the family
of the deceased employee. This sense of
immediacy is evidently lost by the delay on the
part of the dependant in seeking
compassionate appointment."
7.2. On consideration of the aforesaid decisions of this
Court, the following principles emerge:
i. That a provision for compassionate appointment
makes a departure from the general provisions
providing for appointment to a post by following a
particular procedure of recruitment. 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 and must be
resorted to only in order to achieve the stated
objectives, i.e., to enable the family of the deceased
to get over the sudden financial crisis.
ii. Appointment on compassionate grounds is not a
source of recruitment. The reason for making such a
benevolent scheme by the State or the public sector
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undertaking is to see that the dependants of the
deceased are not deprived of the means of
livelihood. It only enables the family of the deceased
to get over the sudden financial crisis.
iii. Compassionate appointment is not a vested right
which can be exercised at any time in future.
Compassionate employment cannot be claimed or
offered after a lapse of time and after the crisis is
over.
iv. That compassionate appointment should be provided
immediately to redeem the family in distress. It is
improper to keep such a case pending for years.
v. In determining as to whether the family is in
financial crisis, all relevant aspects must be borne in
mind including the income of the family, its
liabilities, the terminal benefits if any, received by
the family, the age, dependency and marital status of
its members, together with the income from any
other source.
7.3. 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 due to the
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 in a position 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. Having regard to such an object, it
would be of no avail to grant compassionate appointment
to the dependants of the deceased employee, after the crisis
which arose on account of death of a bread-winner, has
been overcome. Thus, there is also a compelling need to act
with a sense of immediacy in matters concerning
compassionate appointment because on failure to do so,
the object of the scheme of compassionate would be
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frustrated. Where a long lapse of time has occurred since
the date of death of the deceased employee, the sense of
immediacy for seeking compassionate appointment would
cease to exist and thus lose its significance and this would
be a relevant circumstance which must weigh with the
authorities in determining as to whether a case for the
grant of compassionate appointment has been made out for
consideration.
7.4. As noted above, the sine qua non for entertaining a
claim for compassionate appointment is that the family of
the deceased employee would be unable to make two ends
meet without one of the dependants of the deceased
employee being employed on compassionate grounds. The
financial condition of the family of the deceased, at the
time of the death of the deceased, is the primary
consideration that ought to guide the authorities' decision
in the matter."
12. Undoubtedly, the respondents have fulfilled their duty by
granting the compassionate appointment to the son of the deceased
employee vide order dated 09.04.2013. However, on account of his
absence from duty, his services were terminated after holding a regular
departmental inquiry. His statutory appeal against the said order of
termination has also been dismissed by the Appellate Authority.
Thereafter, the present petitioner, who is daughter of the deceased
employee and sister of Kasif Ali Khan, has sought compassionate
appointment in his place which is not permissible in terms of the Policy
dated 21.11.2002 and in view of the law laid down in the above
authoritative judgments. Even otherwise a period of more than 10 years
have elapsed and at this stage, the claim of the petitioner is not
permissible under the law because the consideration for such
employment is not a vested right which can be exercised at any time in
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future. The object is to ensure the family to get over the financial crises
when it faces at the time of the death of the sole breadwinner.
13. In view of the above, there is no merit in the present
petition and the same is hereby dismissed, with no order as to costs.
26.09.2024 (NAMIT KUMAR)
Kothiyal JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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