Asha Rani vs State of Punjab and Others

Rajiv Narain Raina, J.—The petitioner has approached this Court under Article 226 of the Constitution of India seeking a mandamus to the State to consider her case for providing employment to her on compassionate grounds in circumstances arising out of the death of her husband while in harness and soon thereafter the extraordinary situation of he death of her son in an accident within six months his appointment on compassionate grounds. It is often said and sometimes it becomes necessary and expedient in the interest of justice to apply to extraordinary situations, extraordinary measures. The brief facts leading up to filing the present petition are: The petitioner''s husband was a regular safai karamchari serving in the department of education, Punjab. He died in harness during the year 2008. The petitioner applied for a job for her son on compassionate grounds under the ex gratia scheme in place of her late husband. The department accepted her prayer. Her son was appointed as a Sweeper on compassionate grounds. Not six months thereafter her son unfortunately died of an injury in a road accident in March 2010. She lost her husband and her son in quick succession. In these special circumstances she approached the Government once again imploring that she was rendered destitute and if she could be employed on compassionate grounds she could occupy herself in a gainful employment. But no action was taken on her request and her file has remained dormant. This is where she stood when this petition was filed in 2012 claiming directions to the respondents to provide her compassionate appointment.

In response to the writ petition, the State appeared and filed written statement denying the claim of the petitioner on the ground that instructions dated November 21, 2002 (P-8) do not cover her case since a ''mother'' was not included as a dependent family member for the purposes of providing compassionate appointments and, therefore, the petitioner is not entitled to consideration for appointment on compassionate grounds. It has been pointed out that the petitioner is in receipt of family pension following the death of her husband late Sham Lal. However, the instructions do not envisage a situation resulting from unexpected deaths of husband and son within a short span of two years. There appears to be hardly any doubt that by the letter of the law no relief can be granted to her as a mother. But what does the spirit of the law ordain? The letter of the scheme of compassionate appointments is tangible benefit but the spirit is not so. What can be done in the facts and circumstances of the case? Would a reasonable man throw out the petition or try and cull out the relief in case it is found justified?

Government has supported the impugned order dated January 12, 2011 passed by it as a legal and valid one since it has been passed in accordance with the instructions on the subject and is normally not open to be disturbed since Government has to adhere to its own instructions and not violate them in the matter of extending the benefit of compassionate appointment. Compassionate appointments are meant to tide over unforeseen and sudden hardship caused by sudden crisis that strikes a family.

Apparently unhappy with the cut and dry defence of the State in the written statement, this court passed the following interim order on February 09, 2015:-

"The facts would indicate that petitioner lost her husband while in harness in October 2008. Her son was given compassionate appointment who also died in March 2010 in a road accident. The petitioner who is unfortunate widow, has lost her husband and son. Her plea for compassionate appointment has been declined on the ground that her son barely had completed six months of service and thus holding that petitioner was not entitled to compassionate appointment being not covered under the instructions. The claim, however, has not been considered on account of her husband dying in harness.

The policy of compassionate appointment has to be interpreted liberally and cannot be permitted to become a hostage to technicalities. In the given set of circumstances, the pitiable condition of the petitioner is writ large. Thus the respondents are not right in not considering her claim for appointment in lieu of services rendered by her husband, who died in October 2008.

Learned counsel for the respondents prays for sometime to seek instructions.

Adjourned to 8.5.2015."

Today, Mrs. Puneet Shekhon, learned Addl. AG, Punjab has filed an additional affidavit of the Director of Public Instructions (SE) Punjab on behalf of respondents-1 to 3 in which the view of the Department of School Education for granting relaxation is expressed relying on the letter dated August 11, 2015 of the Department of Personnel which has foreclosed the case. The competent appointing authority has been advised as under:-

"Attention of the Administrative Department is invited to Para 15(b) of the instructions of the Department of personnel dated 21.11.2002 which is as under:-

"an appointment made on compassionate grounds cannot be transferred to any other person and any request for the same on consideration of compassion should invariable be rejected".

(2) It is also written that there is no provision in these instructions for giving relaxation.

(3) The file of the Administrative Department bearing No. 12/149/2012 - 3Edu3(E-426) is returned herewith".

The crystallized view now in the affidavit is that an appointment made on compassionate grounds cannot be "transferred" to any other person and any such request should invariably be rejected. It is held out that the State is helpless in the matter.

This Court finds that the present is not a case of transfer of an appointment and the reasoning adopted by the administrative authority is rather wide off the mark in it humanistic approach and is not acceptable as an ouster clause of rights arising from the death of Sham Lal are not accounted for in the impugned view. It is well to remember once again that extraordinary situations require extraordinary measures and broadly speaking executive instructions under Article 162 of the Constitution are themselves the prescription and the medicine for curing human problems and leave enough elbow room to the administrator social justice where rule or previous instructions may not necessarily be the controlling, limiting or the determining factor in the matter of grant of relief when justice demands. To speak teleologically, Parliament and State Assemblies made the law tailored to suit and to govern lives of citizens while the administrator has set about to fill the gaps in the law by framing rules and instructions but neither of them made the working life to run like machines without a heart. These do not nor should overly obsess us while dealing with out of the way cases which demand social justice by using so to speak-forks to lift food for our survival or to put it better; to apply the head of a pragmatic man and the hands of a liberal person acting within the sympathy that judicially manageable standards can afford. The rules and regulations on the statute and rule book or instructions in manuals are not just a makeup kit with just as many things put into into the basket. There is more to life than what meets the eye in legal documents and papers and that extra component lies is equity. To best understand the significance of the teleological explanation of why forks have prongs is that this design helps humans eat certain foods; stabbing food to help humans eat is what forks are for. Mercifully, forks are not found in rules or instructions of government otherwise even this principle may not work to tide over an encountered human issue because of the wide variety of forks in the cutlery shop which make choices even more difficult. This is what is meant by a teleological explanation. This is how I think power of issuing executive instructions should be exercised and permitted by the court of law to be applied while judicially reviewing work of administrators who should never be afraid or shy in creating a new precedent or a fresh instruction when the call of social justice demands or a situation creates which can recur in other people''s lives. There are many bad precedents anyway scattered on the path, both administrative and judicial for anyone to worry.

On the other hand, the purpose and object of Article 162 of the Constitution is also to give to a class of persons not only the minimal but at the same time the much needed freedom to the Government to act or respond to newly emerging situations as never before witnessed in government files or addressed and to respond to them in a fair and just manner. To do real justice, rules and instructions are not enough to be obsessed with and the ex aequo et bono principle may deservedly apply to the case in hand to make the decision ameliorative in nature and pulsating with life which decision may sometimes not necessarily be in perfect harmony or in sync with the instructions/rules, but a decision based really on what appears to be fair and just, just as one might view the case of the widow in this case. If she is appointed by compassion heavens won''t fall nor would all hell break loose.

The solution to the problem lies largely in the wisdom of the co-ordinate bench and the intuitive reflex in the interim order dated February 09, 2015 that if the son died within six months of appointment then what would happen to mothers'' rights arising directly from the death of the husband assuming the son was not in between. She had doubtlessly a direct right to claim consideration in the year 2008 when Sham Lal passed away. In these circumstances I would prefer to hold that the appointment of her son was rendered infructuous by death within six months and he would be counted out of reckoning as though he were never appointed to service, the tenure being far too brief to impact adversely the long term rights and interests of the petitioning mother who deserves to be treated as an original recipient by creating a legal fiction and not by viewing her case myopically as a "transfer" of right from son to mother but as one from husband to wife. Social justice appears to me to be best served by adopting this line of reasoning to be the employable method in the interpretation of the instructions which, if applied, will go a long way in sub-serving humanistic object and purpose of making compassionate appointments itself and especially when read with the fundamental duty enshrined in Article 51A(h) of the Constitution of India which informs citizens "to develop the scientific temper, humanism and the spirit of inquiry and reform;" Compassion is the essence of dynamic humanism and in this case ought to be read in a manner which seeks to achieve the object and purpose of making compassionate appointments, by eliminating the son from the picture in order to wholesomely address the ends of justice. Viewed from any angle the case stands in no man''s land and in non-rule territory beyond the pale of the executive which is not the headmaster of justice and this is where the constitutional court may come in with sufficient free play in the joints to venture to do unconventional justice in a case applying principles of ex aequo et bono.

In Jagdev Sharma Vs. State of Punjab and Others I had occasion to deal with competing interests of two disabled persons one of whom was afflicted by polio from child birth whilst the petitioner was injured in an accident which occurred when he was well into life. The accidental injury had disabled him with a minor affliction which read in percentages of handicap took him beyond the 40% mark required for declaration of disability to qualify for appointment in the reserved quota of handicapped, in which quota the posts in question were advertised. The appointment of the polio victim was brought under challenge and one of the grounds taken was that the selection criteria had been changed at the last minute which was urged to have vitiated the appointment. The other was that the petitioner was older and therefore more experienced person more suitable for the job of Junior Draftsman. There was something to be said on the law point but what ultimately weighed with the Court was the nature and degrees of affliction of both, one God given from birth, the other caused by a motor accident. The Court ruled in favour of the young woman who had suffered more. And had besides, already worked on the post for 3 years by the time the petition matured for hearing as against the rights claimed by the man then in his forties. I saved the appointment in an unconventional way, observing

"The relief provided by article 226 of the Constitution is a discretionary one. A writ may neither issue nor an order made merely because it is lawful to do so. The writ court sits in equity where the rules of prudence preside and occupy the field of vision when known legal principles may not come to the rescue or be of any intrinsic help to cull out the relief or to deny it. Equity in its brightest and the most sublime form is a jealous mistress which may not want to share its bed and be betrayed by pedestrian rules, shackled by plebeian legal principles which may be found insufficient whilst venturing to do unconventional justice in a case. It is often said that a case to be decided ex aequo et bono, overrides the strict rule of law and requires instead a decision based on what is fair and just, given the circumstances. Life and its vicissitudes are larger than the law."

Consequently, the petition is allowed. The operating reason for discarding the claim of the petitioner stands overruled since it works as an unreasonable restriction on the petitioner''s rights to compassionate appointment in the peculiar facts and circumstances of the case when no judicial precedent is found matching or to the contrary. At least none has been brought to the notice of the Court, if there is one in the law library. The deceased son will be counted out and the case of the petitioner and her rights will be treated by fiction as coming directly from her late husband. The State is requested to hold the fork sympathetically and make a fresh consideration of the case and pick up the relief on principles of ex aequo et bono without being trammelled by its own record and to act fairly in the light of the observations made above. The State may even consider the suitability of including a mother in cases where the death of a dependant appointee occurs within a short span of time and as it thinks fit to instruct its departments while dealing with freak cases like this. Let the consideration as far as compassionate appointment is concerned take place within two months from the date of receipt of certified copy of this order. Executive instructions, if any, may take their reasonable time in case they are to be formulated.