Union of India (UOI) and Others vs Smt. Asha Mishra and Another

Herd Shri Sanjai Kumar Om, learned Counsel appearing for the Union of India and representing all the petitioners including Secretary, Ministry of Information and Broadcasting, Government of India, New Delhi and the Director General, Prasar Bharti, Durdarshan Bhawan, New Delhi. A supplementary affidavit has been filed brining on record the certified copy of the judgment of the Central Administrative Tribunal (CAT).

The petitioners are aggrieved by the judgment of the CAT, Allahabad Bench, Allahabad dated 17th July, 2009 allowing the original application and quashing the instructions contained in the Office Memorandum dated 5.5.2003 of the Departmental of Personnel and Training, Ministry of Personnel, Public Grievances and Pension, Government of India, fixing a maximum time limit of 3 years to offer compassionate appointment, and the order dated 25.5.2005 passed by the Deputy Director (Administration), Prasar Bharti, New Delhi. The Tribunal has directed that the applicant''s case for compassionate appointment be considered afresh ignoring the aforesaid limit fixed under the circular, taking into account the financial condition of the family.

Brief facts giving rise to this writ petition are that late Shri Santosh Kumar Misra was serving as Upper Divisional Clerk in the office of Door Darshan, Kanpur. He died in harness on 14.8.1998 in Hallet Hospital, Kanpur leaving behind Smt. Asha Misra as his widow and two minor sons Prakhar and Shikhar. Smt. Asha Mishra, the widow of the deceased, had passed her High School and Intermediate examinations in the year 1982 and 1984, and B.A. IIIrd year examination in the year 2001 on 1.8.2001. She applied for compassionate appointment. She was informed by the Director General, Prasar Bharti, New Delhi by a letter dated 7/8.12.199 that the competent authority has approved her compassionate appointment on the post of LDC, Group-C in Door arshan and that her name has been included in the pending list of compassionate cases. She will be offerred appointment, when her case will mature depending upon the vacancy, which may be available in future against 5% quota prescribed for compassionate appointments. Subsequently by letter dated 15.3.2000 the Door Darshan Kendra, Kanpur informed her that according to the instructions by the Director General, Doordarshan no further correspondence is required. The applicant awaiting the appointment letter continued to make representations on 10.3.2005 and 13.4.2005. In the meantime, her sons passed the High School Examination in the year 2004 and 2005 respectively.

Smt. Asha Mishra filed an Original Application in CAT for deciding her representation dated 13.4.2005 and to quash the order dated 25.5.2005 by which Shri Mashoda Lal, Deputy Director (Admn), Prasar Bharti (Broadcasting Corporation of India), in the office of Director General; Doordarshan, Doordarshan Bhawan communicated to her that all wait listed cases, which were approved in principle for compassionate ground in Doordarshan could not be offerred appointment due to nonavailability of 5% vacancies under the direct recruitment quota. In the meeting dated 17.3.2005 held at the Directorate the Committee while considering the cases of compassionate appointment observed, that since the adequate number of vacancies under the 5% of direct recruitment quota, in a year fixed by the DOP & T for compassionate appointment are not becoming available, and the number of such cases are increasing every year, therefore, keeping in view the instructions dated 5.5.2003 of DOP & T that if no appointment is offerred within three years, no case be kept in the waiting list for more than three years. The Committee has further taken a decision that all such wait listed cases, which are more than three years old may be closed and their names be deleted from the wait list.

In the counter affidavit of one Shri S.N. Mathur, Station Engineer, Doordarshan filed in the Tribunal the department contended that the respondent could not be offerred appointment due to nonavailability of adequate vacancies in the concerned category of Group-C post. As per DOP & Ts instructions dated 5.5.2003, the maximum period for which a erson''s name can be kept under consideration for offerring compassionate appointment is three years. After three years if it is not possible to offer compassionate appointment to the applicant, his/her case will be finally closed and will not be considered again. Since the adequate number of vacancies were not available within 5 % quota of direct recruitment in the prescribed time limit, the Committee decided to close the case of claimant. The decision was conveyed to her on 25.5.2005.

The Central Administrative Tribunal has, relying upon Umesh Kumar Nagpal Vs. State of Haryana and Others, and the judgment of this Court delivered by one of us in Hari Ram v. Food Corporation of India, Civil Misc. Writ Petition No. 2412 of 2008 decided on 8.4.2009 and reported in 2009 (6) ADJ 90 as well as the judgment of the Supreme Court in Smt. Sushma Gosain and Others Vs. Union of India (UOI) and Others, Sanjay Kumar Vs. The State of Bihar and Others, and Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others, held that keeping in view the object and purpose of compassionate appointment, if the committee has recorded its opinion on the material available to it that the dependents of the deceased are living in penurious condition, the denial of compassionate appointment, if a post is not available in 5% quota for three years, makes the denial in the realm of chance and becomes a gaming exercise. The consideration of compassionate appointment must be based on human and sympathetic consideration to the family of the deceased employee. Each case should be reviewed on its merit and the consideration should not be allowed to be confined to any number of years. If the family continues to be under financial distress, there should be no limit of maximum number of years for which an application may be considered. The Tribunal consequently quashed the instructions in the Office Memorandum dated 5.5.2003 of the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pension, Government of India and the order dated 25.5.2005 by which the applicant''s application was rejected. The Tribunal directed that her application be considered afresh within three months without considering he maximum limit, taking into account the financial conditions in which the family is living.

Shri Sanjay Kumar Om, learned Counsel for the petitioners submits that the judgment of the Tribunal is wholly erroneous in law in as much as in Umesh Kumar Nagpal (Supra) the Supreme Court has clearly directed that such appointment should not be given after a lapse of reasonable period. The circular dated 5.5.2003 provides for three years as a reasonable period for considering compassionate appointment. He submits that compassionate appointment is not a method of recruitment and thus it cannot be claimed as a matter of right. In Hari Ram v. Food Corporation of India (Supra) the petitioner was living in indigent circumstances. That case is entirely different on facts. In the present case almost 10 years have passed since the application was made. There is nothing to show that penurious circumstances have continued to exist, keeping the family in financial distress.

In Smt. Sushma Gosain and Others Vs. Union of India (UOI) and Others, the Supreme Court held:

We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.

In Life Insurance Corporation of India Vs. Mrs. Asha Ramachandra Ambekar and another, the Supreme Court held in paras 10, 11, 15 and 16 as follows:

Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. No doubt Shakespeare said in Merchant of Venice:

The quality of mercy is not strain''d; It droppeth, as the gentle rain from heaven Upon the place beneath it is twice bless''d; it blessth him that gives, and him that takes;.

These words will not apply to all situations. Yielding to instinct will tend to ignore the cold logic of law. It should be remembered "law is the embodiment of all wisdom". Justice according to law is a principle as old as the hills. The Courts are to administer law as they find it, however, inconvenient it may be.

At this juncture we may usefully refer to Martin Burn Ltd. Vs. The Corporation of Calcutta, of the Report the following observations are found:

A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not.

The Courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however hard the case may be, it should never be done. In the very case itself, there are Regulations and Instructions which we have extracted above. The Court below has not even examined whether a case falls within the scope of these statutory provisions. Clause 2 of Sub-clause (iii) of Instructions makes it clear that relaxation could be given only when none of the members of the family is gainfully employed. Clause 4 of the Circular dated 20-1-1987 interdicts such an appointment on compassionate grounds. The appellant Corporation being a statutory Corporation is bound by the Life Insurance Corporation Act as well as the Statutory Regulations and Instructions. They cannot be put aside and compassionate appointment be ordered.

To say, as a Court below has done that the 2nd respondent is at the prime of his life and youth and is aged about 21 years and the dues that are paid by the Life Insurance Corporation to the family are the lawful dues that are earned by the deceased. Therefore, on facts, he would be entitled to appointment on compassionate grounds is not the correct approach.

We are totally unable, to support this line of reasoning. For aught one knows, there may be other cases waiting already for appointment on compassionate grounds, they may be even harder than that of the 2nd respondent.

In Umesh Kumar Nagpal (Supra) the Supreme Court held in paras 2 and 6 as follows:

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 Class-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 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.

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.

In the last decade most of the departments and the banks framed their respective schemes for consideration of compassionate appointment. The Union Bank of India in Para 4 of its scheme for appointment of dependents of deceased employees on compassionate grounds provides that compassionate appointment will be offerred by the bank only in the case where the bank is satisfied that the financial condition of the family is such, that but for profession of employment, the family will not be able to meet the crisis. The bank declined the request on the ground that the respondent''s family was not indigent. The terminal benefits and the monthly family pension was sufficient for the family. In Union Bank of India and Others Vs. M.T. Latheesh, the Supreme Court considered a case in which Union of India rejected the application for compassionate appointment on the ground that the terminal benefits, monthly family pension received was sufficient for maintaining the family. The writ petition was allowed by the single judge of the High Court and the Division Bench dismissed the appeal. In the Civil Appeal the Supreme Court after referring to the judgments in Umesh Kumar Nagpal (Supra); Gursharan Singh and others etc. Vs. New Delhi Municipal Committee and others, Balbir Kaur and Another Vs. Steel Authority of India Ltd. and Others, Punjab National Bank and Others Vs. Ashwini Kumar Taneja, and Balbir Kaur and Another Vs. Steel Authority of India Ltd. and Others, allowed the appeal on the ground that the bank had considered the application in terms of the statutory schemes framed by the bank. The bank did not find the applicant to be eligible for appointment. The High Court could not have held otherwise. The compassionate appointment being an exception to the general rule, the appointment has to be exercised only in warranting situations and circumstances existing in granting appointment and guiding factor should be financial conditions of the family.

In General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi and Others, the Supreme Court had an occasion to revisit the law of compassionate appointment, in a matter arising out of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. It was held that if the deceased was not a government servant, the question of applicability of the Rules did not arise. The compassionate appointment has to be given strictly in accordance with the Rules.

In Santosh Kumar Dubey Vs. State of U.P. and Others, the Supreme Court reported in paras 11 and 12 as follows:

The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints.

The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service.

In State of Chhatisgarh and Others Vs. Dhirjo Kumar Sengar, the Supreme Court held that appointment on compassionate ground is an exception to the constitutional scheme of equality as adumbrated under Article 14 and 16 of the Constitution of India. Nobody can claim appointment by way of inheritance. It is a concession and not a right. The Supreme Court followed Steel Authority of India Ltd. Vs. Madhusudan Das and Others, and I.G. (Karmik) and Others Vs. Prahalad Mani Tripathi, in which it was held that an employee of a State enjoys a status. The recruitment of employees of the State is governed by the Rules framed under an statute or the proviso appended to Article 309 of the Constitution of India. In the matter of appointment the State is obliged to give effect to the constitutional scheme of equality as adumbrated under Article 14 and 16 of the Constitution of India. All appointment, therefore, must conform to the said constitutional scheme. The Court, however, while laying emphasis carved out an exception in favour of the children or other relatives of the officer, who died or become incapacitated while rendering service in the police department. It was held that public employment is considered to be a wealth. In its premise of constitutional scheme compassionate appointment cannot be given on mere descent. When such an exception has been carved out by the court, the same must be strictly complied with. The appointment on compassionate ground, is given only for meeting the minimum 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.

The principles of consideration for compassionate appointment have been firmly settled and have been reiterated from time to time. Compassionate appointment is not a vested right or an alternate mode of employment. It has to be considered and granted under the relevant rules. The object of compassionate appointment is to tide over an immediate financial crisis. It is not a heritable right to be considered after an unreasonable period, for the vacancies cannot be held up for long and that appointment should not ordinarily await the attainment of majority.

Where the family has survived for long, its circumstances must be seen before the competent authority may consider such appointment. It is not to be ordinarily granted, where a person died close to his retirement. The Court, however, has emphasised time to time and more authoritatively in National Institute of Technology and Others Vs. Niraj Kumar Singh, that such appointment can be granted only under a scheme. It should not be considered after a long lapse of time.

In this background, keeping the object and purpose of such appointment, the Tribunal rightly found that where family has been held to be living in penurious condition, and that appointment could not be offerred for want of vacancies in 5% of the direct recruitment, the restriction of 3 years for consideration for such appointment is wholly unreasonable, irrational and arbitrary. Unless it is found that any member of the family has acquired employment or any asset, which may mitigate the continuing hardships, the closure of the case for consideration of compassionate appointment to a family of which the bread earner has died, after three years is extremely harsh and unjust. In such case the family in need of compassionate appointment may be displaced by another family, who may be sufferring lesser hardships.

The question of delay is related to the making of the application and not the pendency of application. Where a member of the family of the deceased seeking compassionate appointment has applied within a reasonable time and that competent authority/committee has found the application to fall within the prescribed norms, and living in penury, the delay on account of want of availability of vacancy in 5% quota of direct recruitment cannot be attributed to the applicant. The prescription of 5% quota may serve the principles of reverse discrimination to direct recruits, seeking employment and violation of their rights under Article 14 and 16, if all the vacancies are available for compassionate appointment, but confining the consideration for appointment in 5% quota for only three years has no rationale or any object to achieve for providing such appointment. In Hari Ram (Supra) the principle of rationality was discussed in paras 17 and 18 as follows:

Rationality is a term related to the idea of reason. It has dual aspects. One of the aspect associates it with apprehension, intelligence or inference. The other aspect associates the rationality with explanation, understanding and justification. A logical reason is rational, if it is logically valid. Rationality is, however, broader term than logic. It also includes "uncertain but sensible" argument based on probability, expectation and personal experience. The logic on the other hand deals with provable facts and demonstrably valid relations between them. There are many theories of rationality. German Sociologist Max Weber distinguished between four types of rationality; (a) purposive or instrumental rationality, which includes expectation to the behaviour of other human being or objects in the firmament, (b) valuable/belief oriented rationality, which means action for one might call reasons intrinsic to the others, some ethical, aesthetic religious or other motive, (c) effectual where the action determined by actors specific effect, feeling or emotions, which are meaningfully oriented and (d) traditional means determined by ingrained habituation. It is very unusual to find anyone of these orientation compassion are norm.

In this case the placement in the waiting list for 5% DR quota has not been shown to be based on the penurious condition of the family of the deceased employee. His first and second review by the Prescribed Committee confirms that the application still needs and falls within the category of the family, which are in financial distress. Inspite of such verification, the prescription of maximum period of three years for compassionate appointment may result into grant of appointment after long delay, but has no object to be achieved except by permitting the family to continue to live under poverty, whereas new cases may be considered on their own merits in the first, second and third year.

In the present case the respondents have neither pleaded nor placed any material to show that during the pendency of the application for three years within which it was considered, or thereafter the family has pulled out of financial distress, or that it no longer falls within the norms of offerring compassionate appointment. The appointment has been denied only on the ground that for three years no vacancy could be found for her in 5% quota and thus her case was closed. The Tribunal in our opinion has rightly found that policy for consideration of application by only three years and the consequential order is wholly unreasonable, irrational and is violative of Article 14 and 16 of the Constitution of India.

The writ petition is dismissed.