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Judgment
The petitioner has invoked the writ jurisdiction of this Court for issuing a direction to the respondents to appoint the petitioner as Assistant Grade III by
way of compassionate appointment.
2- Shri K.K. Bhatnagar, father of the petitioner, died as Deputy Clerk of Court on 11.2.2011. The petitioner sought appointment on compassionate
grounds vide an application dated 3.3.2011. He was initially appointed on 16.11.2011 as ‘contingency paid employee’, but on 23.11.2011, the
petitioner was appointed on full time basis. Thereafter, the petitioner submitted representations for appointment to the post of Assistant Grade III, in
view of his qualification and appointment given to other similarly situated persons.
3- In the return, the stand is that essential condition of appointment to the post of Assistant Grade III is Diploma in Computer Application, which the
petitioner was not possessing, therefore, he was appointed against the post to which he was qualified.
4- In Umesh Kumar Nagpal Vs. State of Haryana, 1994 (4) SCC 138, the court held that appointment to public posts are required to be made on merit
after applications are invited from general public but 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. The Hon’ble Supreme Court held as under:-
“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 dependants of an
employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration
taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is
made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole
object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such
family a post much less a post for post held by the deceased. ….â€
5- In IG. (Karmik) and others Vs. Prahlad Mani Tripathi, 2007 (6) SCC 162, the Supreme Court held that public employment is considered to be
wealth. In terms of constitutional scheme it cannot be given on descent. The Supreme Court has carved out an exception and the same must be
strictly complied with. Appointment on compassionate ground is given only for mitigating the hardship which is faced by the family by reason of death
of bread earner. It is held as under:
“6. An employee of a State enjoys a status. Recruitment of employees of the State is governed by the rules framed under a statute or the proviso
appended to Article 309 of the Constitution of India. In the matter of appointment, the State is obligated to give effect to the constitutional scheme of
equality as adumbrated under Articles 14 and 16 of the Constitution of India. All appointments, therefore, must conform to the said constitutional
scheme. This Court, however, while laying emphasis on the said proposition carved out an exception in favour of the
“15. children or other relatives of the officer who dies or who becomes incapacitated while rendering services in the police department. See
Yogender Pal Singh and Others v. Union of India and Others [(1987) 1 SCC 631].
Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has
been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate
hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be
kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion. â€
6- Considering the aforesaid judgments, the Supreme Court in a judgment reported as Steel Authority of India Limited Vs. Madhusudhan Das and
others, (2008) 15 SCC 560, held that the provision of compassionate appointment was made as a measure of social benefit, but it does not lay down a
legal principle that the Court will pass an order to that effect despite the fact that condition precedent has not been satisfied. It was held as under:
This Court in a large number of decisions has held that the appointment on compassionate ground cannot be claimed as a matter of right. It must be
provided for in the rules. The criteria laid down therefor, viz. that the death of the sole bread earner of the family, must be established. It is meant to
provide for a minimum relief. When such contentions are raised, the constitutional philosophy of equality behind making such a scheme be taken into
consideration. Articles 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts
which have fallen vacant. Appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said rule. It is
a concession, not a right. [See General Manager, State Bank of India and Others v. Anju Jain, (2008) 8 SCC 475, para 33].
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It may be that such a provision was made as a measure of social benefit but it does not lay down a legal principle that the court shall pass an order
to that effect despite the fact that the conditions precedent therefor have not been satisfied. …â€
7- In another judgment reported as Bhawani Prasad Sonkar Vs. Union of India and others, (2011) 4 SCC 209, the court delineated the factors which
have to be kept in mind while giving compassionate appointment. It was held as under:
“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. 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.â€
8- In another judgment reported as State of Haryana and others Vs. Vipin Kumar, AIR 2002 SC 2867, the Hon’ble Supreme Court held that
appointment on compassionate ground can be given only on a post lower than the post held by the deceased employee. The relevant extract from the
judgment reads as under:
“3. All that need to be done is that, post that is offered to the respondent claiming a post on compassionate ground, should be at least one step
below that was held by the deceased employee and that does not mean it should be the immediate post below it, it could be even lower than that. If
that is the correct interpretation to be placed of the relevant rules, the post offered to the respondent appears to us to be correct. ….â€
9- In view of the aforesaid judgments, we find that the petitioner was not qualified for appointment to the post of Assistant Grade III, as he did not
have Diploma in Computer Application. Still further, he could be appointed to Class III or Class IV post. Once he has been appointed on a Class IV
post, he cannot say that he should be given compassionate appointment on the higher post.
10- In view thereof, we do not find any merit in the writ petition.
Dismissed.