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Judgment
S. Manikumar, J.—Mr. S. Chandrasekar, learned Government Advocate takes notice for the respondents. The petitioner has filed this writ
petition for issuance of a Writ of Certiorarified Mandamus to call for the records of the second respondent in his proceedings in Na. Ka. No.
Aa4/2592/2009 dated 03.08.2012 and to quash the same and consequently, to direct the respondents to give suitable appointment to the
petitioner.
Material on record discloses that the petitioner''s father died on 16.09.2005 in harness. At that time, the petitioner was aged about 9 years. The
petitioner''s mother has given a representation dated 04.12.2008 to the respondents seeking employment assistance on compassionate grounds to
the petitioner''s brother viz., Senthil Kumar, who was aged only 14 years at the time of application. The respondents denied employment assistance
to him on the ground that he was a minor. Therefore, the petitioner''s mother made an application on 09.02.2009 for providing employment
assistance to her. In the meanwhile, the petitioner attained majority and therefore he has submitted an application on 10.12.2009 to provide
compassionate appointment. By the impugned order in Na. Ka. No. A4/2592/2009 dated xx.07.2012, signed on 03.08.2012, it was stated by
the Commissioner of Police, Madurai that as per the Circular of the Additional Director General of Police, Chennai - 4 in Na. Ka. No.
34918/C.A.2/05 dated 23.06.2005, the application of the petitioner cannot be considered, and that same has been rejected. Challenging the
same, the petitioner has filed this writ petition.
Assailing the correctness of the impugned order, Mr. F. Deepak, learned counsel appearing for the petitioner submitted that the respondents
have failed to consider that at the time of death of petitioner''s father M. Pichai, the petitioner was aged only 9 years and on attaining majority, the
petitioner is entitled to make a representation for providing employment assistance on compassionate ground. According to him, three years
limitation period would run only from the date of acquiring majority of the legal heir and not from the date when the government servant died. He
also submitted that the respondents have failed to consider the intention of the benevolent scheme of the Government in providing employment
assistance.
Per contra, the learned Government Advocate submitted that providing appointment to a person on compassionate ground after his attaining
majority will amount to keeping a post reserved for him, till he attains majority and therefore prayed to sustain the impugned order and dismiss the
writ petition.
Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents and perused the
materials available on record.
The petitioner''s father died on 16.09.2005, for which a legal heirship certificate has been issued by the Tahsildar, Madurai South in Pa. Mu.
No. 22636/2005/C1 dated 14.10.2005, which shows that on the date of issuance of the legal heirship certificate, mother of the petitioner was
aged 45 years, elder brother of the petitioner Mr. Senthil Kumar was aged 15 years and that the petitioner was aged 9 years. The deceased left
behind him his mother also, aged 80 years.
Material on record further discloses that when a request was made to provide employment assistance to the petitioner''s elder brother Mr.
Senthil Kumar, the Commissioner of Police, Madurai city, in his proceedings in Na. Ka. No. A4/9729/07 dated 04.12.2008 has rejected the said
request on the ground that on the date of the said representation, his elder brother was only a minor and not eligible to be considered for
appointment. According to the petitioner, on his own efforts, his brother has been now recruited in T.S.P. Pattalion at Chennai. The petitioner is
stated to have made a representation on 10.12.2011, which is enclosed at Page No. 3 of the typed set of papers filed along with this writ petition,
wherein he has narrated the above said fact.
First of all, it should be kept in mind that introduction of a scheme for providing employment assistance to the legal heir of the deceased
government servant is only to tide over the financial constraint of the family and the request to provide employment assistance has to be made to
the competent authority, within a period of three years, by anyone of the members of the family of such government servant, of course, subject to
the eligibility of the applicant to anyone of the posts in the Department, in which the Government servant died during harness. If anyone of the legal
heirs is not eligible, or does not satisfy the eligibility criteria for anyone of the posts in the said Department, which includes age or educational
qualifications, then such legal heir cannot as a matter of right insist that his candidature should be considered, even after the expiry of three years
period from the date of death of the Government servant. When the right to claim employment assistance is restricted to a period of three years,
from the date of death of the Government servant, the limitation by the Government has to be strictly followed. Court has no power to extend the
limitation. Courts cannot extend the period of limitation, as provided for in the scheme, until the applicant attains majority. When the Government
has introduced a scheme for considering employment assistance on compassionate grounds, prescribing a specific time limit for applying to anyone
of the posts in the Department, subject to fulfillment of the qualifications for any such post, and it includes, age and educational qualifications of the
person, who seeks for employment assistance, within a period of three years.
In the case on hand, when the petitioner''s elder brother Senthil Kumar applied for the post in the Police Department, he was only a minor aged
14 years and therefore, rightly, the Commissioner of Police, Madurai City by proceedings in Na. Ka. No. A4/9729/07 dated 04.12.2008 has
rejected his application on the ground that he was a minor on the date of application. It is needless to state that a minor cannot seek for
appointment in Government service. Though the petitioner has contended that his mother had submitted an application on 09.02.2009, seeking
employment assistance for herself, it could be deduced that the said application has not been made after three years, from the date of death of her
husband. Now, on attaining majority, the petitioner is stated to have made application dated 10.12.2011 to the Commissioner of Police, Madurai.
The application submitted is belated and beyond the period of limitation provided by the Government, for submission of an application, seeking
employment assistance on compassionate grounds. It is also not open to the legal heirs of the deceased government servant to submit applications
one after another, requesting employment assistance. If any application is made by more than one legal heir, then, the same has to be made within
three years period, as provided for and as per the guidelines, a no objection certificate has to be obtained by the applicant from other legal heirs.
Though the petitioner''s mother has made a representation on 09.02.2009, that was also barred by limitation.
On the aspect of delay in applying for employment assistance on compassionate appointment, the Supreme Court has consistently held that the
delay in applying for compassionate appointment cannot be condoned, as it would be introducing a concept of condonation of delay, which is
otherwise not provided in the scheme of compassionate assistance. In this context, it is worthwhile to extract few decisions of the Supreme Court.
In Union of India (UOI) and Others Vs. Bhagwan Singh, one Ram Sigh, a Senior Clerk in Railways died on September 12, 1972, leaving
behind his wife, two major sons and the respondent (before the Supreme Court), who was a minor aged 12 years. He passed Higher Secondary
Examination in 1983. Stating that he attained majority in 1980/1981, he sought appointment on compassionate grounds. The same was rejected.
The Authorities took the view that the application was beyond the period of limitation (five years) and that the case of the respondent was not
covered by the relevant rules, at the time of the demise of Ram Singh. Besides, there were two other major sons of the deceased, who did not
seek for employment and that the family was not in financial distress. The Central Administrative Tribunal, held that the order of rejection as
unjustified and directed the Union of India to reconsider the case of the respondent therein, if he was otherwise qualified.
Testing the correctness of the order of the Central Administrative Tribunal and the object behind the grant of special concession of employment
assistance on compassionate grounds to provide immediate financial assistance to the family of a Government Servant who dies in harness, the
Supreme Court, at paragraph No. 8, held as follows:
It is evident, that the facts in this case point out, that the plea for compassionate employment is not to enable the family to tide over the sudden
crisis or distress which resulted as early as September 1972. At the time Ram Singh died on September 12, 1972 there were two major sons and
the mother of the children who were apparently capable of meeting the needs in the family and so they did not apply for any job on compassionate
grounds. For nearly 20 years, the family has pulled on, apparently without any difficulty. In this background, we are of the view that the Central
Administrative Tribunal acted illegally and wholly without jurisdiction in directing the Authorities to consider the case of the respondent for
appointment on compassionate grounds and to provide him with an appointment, if he is found suitable. We set aside the order of the Tribunal
dated February 22, 1993. The appeal is allowed.
In Haryana State Electricity Board and another Vs. Hakim Singh, the Haryana Electricity Board challenged an order of the High Court of
Punjab and Haryana contending inter-alia that the respondent therein was not entitled to be considered for appointment in the Board on
compassionate grounds. In the reported case, father of the respondent therein was a Lineman in the employment of the Board. He died on
24.8.1974 in harness, leaving behind him, his widow and minor children including the respondent. About 14 years after the death of the said
Lineman, the widow applied for appointment to her son in the Board, on compassionate grounds, based on two circulars. As per the said circulars,
one member of the family of the deceased employee could be considered for employment in the service of the Board as a goodwill gesture,
provided the request for such employment is made within one year of the death of the employee. The respondent filed a writ petition in the High
Court contending inter-alia that when his father died, he was only four years old and therefore, his mother could make an application in the
prescribed form and when he attained majority, he made a request. The Board did not give any favorable response to the repeated representations
made in the matter. The Board took a stand that as the application was not made within the period specified in the circulars, the Board was unable
to entertain the request for appointment on compassionate grounds. The High Court ordered the Board to consider the case of the respondent
therein for compassionate appointment on the ground that, even if the dependents happened to be a minor child, at the time of death of the
employee, the policy mandates his case to be considered by an extended period i.e., the time till the defendant attained majority. The Board''s
appeal was negatived by the Division Bench, with a direction to comply with the orders of the Single Judge within a time frame. When the
correctness of the above said orders was tested, at paragraph No. 8 of the judgment, the Supreme Court held as follows:
The rule of appointment to public service is that they should be on merits and through open invitation. It is the normal route through which one
can get into a public employment. However, as every rule can have exceptions there are a few exceptions to the said rule also which have been
evolved to meet certain contingencies. As per one such exception relief is provided to the bereaved family of a deceased employee by
accommodating one of his dependents in a vacancy. The object is to give succor to the family which has been suddenly plunged into penury due to
the untimely death of its sole bread-winner. This Court has observed time and again that the object of providing such ameliorating relief should not
be taken as opening an alternative mode of recruitment to public employment.
As regards the extended period, on attaining the majority, the Court at paragraph Nos. 14 and 15, held as follows:
In that case widow of a deceased employee made an application almost twelve years after the death of her husband requesting for
accommodating her son in the employment of the Board, but it was rejected by the Board. When she moved the High Court the Board was
directed to appoint him on compassionate ground. This Court upset the said directions of the High Court following two earlier decisions rendered
by this Court one in Umesh Kumar Nagpal Vs. State of Haryana and Others, the other in Jagdish Prasad Vs. State of Bihar and Another, In the
former, a Bench of two Judges has pointed out that ""the whole object of granting compassionate employment is 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 the post held by the deceased"". In the latter
decision which also was rendered by a Bench of two judges, it was observed that ""the very object of appointment of dependent of the deceased
employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of earning member
of the family"". The learned Judges pointed out that if the claim of the dependent which was preferred long after the death of the deceased employee
is to be countenanced it would amount to another mode of recruitment of the dependent of the deceased government servant ""which cannot be
encouraged, dehors the recruitment rules.
It is clear that the High Court has gone wrong in giving a direction to the Board to consider the claim of the respondent as the request was
made far beyond the period indicated in the circular of the Board dated 1.10.1986. Respondent, if he is interested in getting employment in the
Board has to pass through the normal route now.
Ultimately, the Supreme Court set aside the impugned orders of the High Court.
In State of U.P. and Others Vs. Paras Nath, father of the respondent working as an Assistant Teacher in a Basic School, died on 08.06.1969.
At that time, there was no rule permitting appointment of a dependent of such a person dying in harness on compassionate grounds. The Uttar
Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, came into force on 21.12.1973. Even after the
commencement of the rules, no application was made by any dependent of the deceased, teacher. The respondent, who sought employment on
compassionate grounds was just two years old, at the time when his father died. Seventeen years later, he made an application on 08.01.1986 for
being considered to the post of Primary School Teacher under the said rules. His application was rejected. He therefore filed a writ petition before
the High Court, which was allowed and later on confirmed by the Division Bench. When the correctness of the order of the High Court was tested,
the Supreme Court, after considering the purpose for which employment assistance is given, and taking note of a decision in Union of India (UOI)
and Others Vs. Bhagwan Singh, has held as follows:
The purpose of providing employment to a dependent of a government servant dying in harness in preference to anybody else, is to mitigate the
hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such
appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide
immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is
made after a long period of time such as seventeen years in the present case.
We may, in this connection, refer to only one judgment of this Court in the case of Union of India v. Bhagwan Singh. In this case, the application
for appointment on similar compassionate grounds was made twenty years after the railway servant''s death. This Court observed:
The reason for making compassionate appointment, which is exceptional, is to provide immediate financial assistance to the family of a government
servant who dies in harness, when there is no other earning member in the family.
No such considerations would normally operate seventeen years after the death of the government servant. The High Court was therefore, not
right in granting any relief to the respondents.
In Sanjay Kumar Vs. The State of Bihar and Others, the petitioner was 10 years old, when his mother died. She was working as an Excise
Constable. He made an application on 02.06.1988, soon after the death of his mother, seeking appointment on compassionate grounds. The said
application was rejected. A fresh application made subsequently was also rejected. Being aggrieved by the same, he preferred a writ petition
before the High Court. A learned Single Judge dismissed the writ petition and that the same was also confirmed by the Division Bench. On appeal,
the Supreme Court at paragraph No. 3, held as follows:
We are unable to agree with the submissions of the learned senior counsel for the petitioner. This Court has held in a number of cases that
compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread
earner who had left the family in penury and without any means of livelihood: In fact such a view has been expressed in the very decision cited by
the petitioner in Director of Education and Anr. v. Pushpendra Kumar and Ors. (Supra). It is also significant to notice that on the date when the
first application was made by the petitioner on 2.6.1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the
petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there is some
specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief.
In State of Manipur Vs. Md. Rajaodin, the respondent''s father died in harness on 19.07.1980. He made a request seeking compassionate
appointment on 25.07.1997. The writ petition was filed in the year 2001. Since no appointment was made, a direction to the authorities concerned
for giving compassionate appointment under the Die-in-Harness Scheme was sought for. The claim was resisted by the State on the following
grounds:
(i) that it was a belated claim;
(ii) that in view of the ban imposed on appointment under the Scheme by an office memorandum dated 24.07.2001, the question of making any
such appointment did not arise; and
(iii) that the letter issued was inconsequential in view of the clear stipulation in the Scheme itself about the concurrence of the Government,
Department of Personnel and Administrative Reforms (Personnel Division) in making such appointments.
The Single Judge, allowed the writ petition. The appeal filed by the State before the Division Bench was dismissed. The correctness of the orders
of the High Court were challenged before the Supreme Court and after considering the Office Memorandum of the Government dated
02.05.1984, dealing with compassionate ground appointment, in which a specific time period has been stipulated within which the application
should be made and the object of providing employment assistance on compassionate grounds, the Supreme Court at paragraph Nos. 9 to 11 has
held as follows:
Admittedly, the respondent''s father died before the office memorandum came into operation. In the memorandum a time period is stipulated.
Since the Scheme itself was not in operation when the respondent''s father died, the time stipulation as provided in the Scheme would not be
strictly applicable to the case of the respondent and anyone seeking for relief thereunder has to at least move within the time stipulated commencing
from the date of the order. Nevertheless, keeping in view at any rate the object for which such appointments which are also compassionate
appointments are made, the minimum requirement is that the request for appointment should be made as expeditiously as the circumstances
warrant. It could not be brought to our notice whether there was any scheme in operation prior to the Scheme of 1984 referred to above. As the
appointments of such nature envisaged under the said Scheme are made to tide over immediate difficulties, there is an inbuilt requirement of
urgency in making the application. Though it was contended that the respondent was a minor at the time of his father''s death, it is to be noted that
he was 10 years of age in 1980 when his father died. Even if a reasonable period after he attained majority is taken, certainly the application on
25-7-1997 seeking appointment was highly belated.
As was observed in State of Haryana v. Rani Devi it need not be pointed out that the claim of the person concerned for appointment on
compassionate ground is based on the premise that he was dependent on the deceased employee. Strictly, this claim cannot be upheld on the
touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of a
sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the
authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on
compassionate ground cannot be claimed as a matter of right. Die-in-Harness Scheme cannot be made applicable to all types of posts irrespective
of the nature of service rendered by the deceased employee. In Rani Devi case it was held that the Scheme regarding appointment on
compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on
constitutional grounds. In LIC of India v. Asha Ramchhandra Ambekar it was pointed out that High Courts and Administrative Tribunals cannot
confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in
respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana that as a rule public
service appointments should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground
is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of an
employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden
financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative
instructions taking into consideration the financial condition of the family of the deceased.
In Sushma Gosain v. Union of India it was observed that in all claims of 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 breadwinner in the
family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the
time of death of his father is no ground, unless the Scheme itself envisages specifically otherwise, to state that as and when such minor becomes a
major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati v. Union of India and Union of
India v. Bhagwan Singh. In Director of Education (Secondary) v. Pushpendra Kumar it was observed that in the matter of compassionate
appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless
some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of
the dependents of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for grant of compassionate
employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are
eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being
made on compassionate grounds of the dependent of the deceased employee. As it is in the nature of exception to the general provisions it cannot
substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main
provision.
So saying, on the above said grounds, the Supreme Court set aside the orders of the High Court.
In Director, Defence Metal Research Laboratory and Anr. v. G. Murali, (2003) 9 SCC 247 the claimant was aged about two years, at the
time of death of his father and that his application for compassionate ground appointment made, on attainment of majority was rejected, on the
ground of non-availability of the posts. The Central Administrative Tribunal, rejected the challenge. However, the High Court directed appointment
on compassionate grounds and that too, with a direction to the respondent''s therein to create a post to accommodate him. The Civil appeal filed
by the Director (Defense) and another, was allowed and at paragraph No. 4, the Supreme Court opined as follows:
We do not find any flimsy ground or technicalities in the Tribunal''s order. In fact, we find the High Court''s order to be unsustainable. There has
been a failure to appreciate what the Tribunal had rightly taken into account, namely, that the writ petitioner and his family had coped without the
compassionate appointment for about eighteen years. There was no warrant in such circumstances for directing the writ petitioner''s appointment
on compassionate grounds and that too with the direction to the respondents to the writ petition to create a post to accommodate him.
In National Hydroelectric Power Corporation and Another Vs. Nanak Chand and Another, father of the respondent was working under
Hydro Electric Project of Government of India and died on 10.12.1976. The project was handed over to the appellant Corporation in 1978. The
respondent after attaining majority in 1986 applied for compassionate appointment which was rejected on the ground that the application was
made after 10 years and that Corporation had surplus staff.
Placing reliance on the instructions issued by the Government as contained in Swamy''s Complete Manual and Establishment and
Administration, the High Court granted the relief in favour of the respondent/dependent. Setting aside the said order, the Supreme Court, after
referring to a catena of decisions held that the impugned judgment therein as unsustainable. The Apex Court further held that the fact that the ward
was a minor at the time of death of his father, was no ground to grant compassionate ground appointment, unless the Scheme itself envisages.
In State Bank of India and Another Vs. Somvir Singh, , the Apex Court held as follows:
Article 16(1) of the Constitution of India guarantees to al its citizens equality of opportunity in matters relating to employment or appointment to
any office under the State. Article 16(2) Protects citizens against discrimination in respect of any employment or office under the State on grounds
only of religion, race, caste, sex and descent. It is so well settled and needs no restatement at our end that appointment on compassionate grounds
is an exception carved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing
opportunity to all eligible persons to compete and participate in the selection process. Such appointments are required to be made on the basis of
open invitation of applications and merit. Dependents of employees died in harness do not have any special or additional claim to public services
other than the one conferred, if any, by the employer.
There is no dispute whatsoever that the appellant bank is required to consider the request for compassionate appointment only in accordance
with the scheme framed by it and no discretion as such is left with any of the authorities to make compassionate appointment dehors the scheme. In
our considered opinion the claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules,
etc. framed by the employer in the matter of providing employment on compassionate grounds. There is no right of whatsoever nature to claim
compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may
be.
The Supreme Court further held that it is well settled that the hardship of the dependent does not entitle one, to compassionate appointment,
dehors the scheme or the statutory provisions, as the case may be.
In Eastern Coalfields Ltd. Vs. Anil Badyakar and Others, , died on 31.12.1981. Initially, wife of the deceased sought for appointment and
subsequently, the elder daughter made an application for compassionate appointment on 07.03.1983. Thereafter, there was an understanding
between the family members and the 2nd daughter''s husband (respondent) who was nominated for seeking appointment on compassionate
grounds, which was also given to him, on 10.05.1993. But the competent authority, who was to grant post facto approval, cancelled it, on
23.09.1993, on the ground that the appointment cannot be given after a lapse of 12 years from the date of death of the employee. Cancellation of
the appointment made, i.e., in extending the benefit to the son-in-law of the deceased after 12 years was held as invalid by the High Court. After
considering the nature and object of appointment, on compassionate grounds, the Apex Court has extracted a catena of decisions in paragraph
Nos. 7 to 19 and they are produced hereunder.
In the case of Jagdish Prasad Vs. State of Bihar and Another, it was observed that:
The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and
distress caused to the family by sudden demise of the earning member of the family.
In Managing Director, MMTC Ltd., New Delhi v. Pramoda Dei alias Nayak, (1997) 11 SCC 390 , it is observed by the court:
As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the
sudden financial crisis and not to provide employment and that mere death of an employee does not entitle his family to compassionate
appointment.
In the case of S. Mohan Vs. Government of T.N. and Another, the court stated 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, the
compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.
This Court has observed in Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others,
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 resulting due to 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 able to make both ends meet,
a provision is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a
provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. 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. An
exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right
conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of
an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek
employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate
grounds of the dependent of a deceased employee. In Umesh Kumar Nagpal v. State of Haryana this Court has taken note of the object
underlying the rules providing for appointment on compassionate grounds and has held that 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.
In the case of Sanjay Kumar Vs. The State of Bihar and Others, the court has stated that:
This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over
sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood.
In the case of Punjab National Bank and Others Vs. Ashwini Kumar Taneja, , it was observed by the court that:
It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding
appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is
not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis.
In so far as delay in approaching the authorities for such appointment is considered by this Court in the case of Union of India (UOI) and
Others Vs. Bhagwan Singh, it was held as follows:
It is evident, that the facts in this case point out, that the plea for compassionate employment is not to enable the family to tide over the sudden
crisis or distress which resulted as early as September 1972. At the time Ram Singh died on 12-9-1972 there were two major sons and the
mother of the children who were apparently capable of meeting the needs in the family and so they did not apply for any job on compassionate
grounds. For nearly 20 years, the family has pulled on, apparently without any difficulty. In this background, we are of the view that the Central
Administrative Tribunal acted illegally and wholly without jurisdiction in directing the Authorities to consider the case of the respondent for
appointment on compassionate grounds and to provide him with an appointment, if he is found suitable.
In the case of Haryana State Electricity Board Vs. Naresh Tanwar and Another, it was stated that:
It has been indicated in the decision of Umesh Kumar Nagpal that compassionate appointment cannot be granted after a long lapse of reasonable
period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the
immediate financial problem being suffered by the members of the family of the deceased employee. In the other decision of this Court in Jagdish
Prasad case, it has been also indicated that the very object of appointment of dependent of deceased employee who died in harness is to relieve
immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept
binding for years.
In the case of State of U.P. and Others Vs. Paras Nath, the court has held that:
The purpose of providing employment to a dependent of a government servant dying in harness in preference to anybody else, is to mitigate the
hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such
appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide
immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is
made after a long period of time such as seventeen years in the present case.
In the case of Haryana State Electricity Board Vs. Krishna Devi, the court has observed that:
As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we
are of the opinion that it was not to meet the immediate financial need of the family. The High Court did not consider the position of law and
allowed the writ petition relying on an earlier decision of the High Court.
In the case of National Hydroelectric Power Corporation and Another Vs. Nanak Chand and Another, the court has stated that:
It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding
appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is
not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises.
In the case of State of Jammu & Kashmir and Others Vs. Sajad Ahmed Mir, he court has held that:
Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and
compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be
made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole
breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family
survived and substantial period is over, there is no necessity to say ""goodbye"" to the normal rule of appointment and to show favour to one at the
cost of the interests of several others ignoring the mandate of Article 14 of the Constitution.
The principles enunciated in the above said judgments would makes it clear that compassionate appointment is not a vested right which can be
exercised at any time, in future. Compassionate employment cannot be claimed after a lapse of time. On the facts and circumstances of the above
case, the Apex Court proceeded to observe that the employee died in harness in the year 1981 and after a long squabble by the dependents of the
deceased, they have arrived at a settlement that the son-in-law of the second daughter who was unemployed may request for appointment on
compassionate grounds. The request so made was accepted by the Personal Manager of the Company subject to the approval of the Director of
the Company. The Director (P), who is the competent authority for post facto approval, keeping in view the object and purpose of providing
compassionate appointment has cancelled the provisional appointment on the ground that nearly after 12 years from the date of death of the
employee such an appointment could not have been offered to the so called dependent of the deceased employee. In their considered view, the
decision of the employer was in consonance with Umesh Kumar Nagpal''s case and that the same should not have been interfered with by the High
Court.
Thus it could be seen from the catena of decisions, the object of providing employment assistance is to tide over the financial constraint due to
the untimely death of the breadwinner and that, a post cannot be kept vacant till the dependent attains the majority, so as to enable him to seek
employment assistance on compassionate grounds. Employment assistance can be sought for by any one of the dependents in the family, including
wife or son or daughter depending upon age and the educational qualifications, prescribed by the Government, at the time of making the
application. If there are more than one dependents, a No Objection Certificate is insisted from other legal heirs. One of the criteria for employment
assistance on compassionate ground is that the family, should be in indigent circumstances and that the same has to be certified by a competent
authority.
In the light of the decisions cited supra, this Court is of the view that this court cannot alter or modify the time prescribed by the Government
for submission of an application, so as to enable any legal heir to seek for employment assistance.
For the reasons stated above, this Court does not find any patent illegality warranting intervention. Hence, the impugned order is sustained and
this writ petition is liable to be dismissed. Accordingly, this writ petition is dismissed. No costs. Consequently, the connected M.P. (MD) No. 1 of
2013 is also dismissed.