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Judgment
O R D E R
By means of this OA, the applicant has sought the following reliefs :
“(i)Issue an order or direction set aside the order dated 30.03.2018 passed by the Divisional Railway Manager, Northern Railway Moradabad rejecting the claim of applicant for compassionate appointment as Annexure No. 1 in compilation 1 of original application.
(ii)To issue a suitable order or direction to the respondents authority consider the case of applicant case in the light of Hon’ble Court decision Manjull Srivastava Vs. State of U.P and others.
(iii)To issue a suitable order or direction to the respondents/authorities concerned to appoint the applicant on any suitable post on compassionate appointment.
(iv)To pass any such order direction which this Hon’ble Tribunal may deem fit and proper.
(v)To award cost of application”.
The brief facts of the case are that the tThe applicant is the daughter of Late Smt. Hosiyari Devi, who was working as a regular Safai Wali under CHI/MB and died in harness on 10.11.2007, leaving behind five family members. The applicant passed Class VIII in 1997-98 and later passed High School from the National Institute of Open Schooling in 2020. Her educational certificate was duly verified and found genuine. After the death of the deceased employee, her daughter Smt. Reena initially applied for compassionate appointment, but her candidature was cancelled on 20.09.2016 as her educational certificate was found forged. Thereafter, the family members were asked to decide the next eligible candidate and thereafter applicant submitted her claim. The respondents rejected the applicant’s claim vide order dated 20.03.2018 mainly on the ground that she was a married daughter. The applicant states that despite her marriage, she continued to live with and take care of her mother and was dependent upon her income. Her husband is also stated to be unemployed. Thus, the applicant submits that her claim was rejected only on the ground of her being a married daughter, without properly considering her dependency and the financial condition of the family. Hence, she has challenged the order dated 20.03.2018 and seeks compassionate appointment.
Counter affidavit has been filed by the learned counsel for the respondents, stating therein that Late Smt. Hosiyari Devi, Safai Wali, died in harness on 10.11.2007. She left behind four married daughters, namely Rajo Devi, Urmila Devi, Asha Sonkar and Smt. Sonam (the applicant), and one unmarried daughter, Smt. Reena. After the death of the deceased employee, Smt. Reena applied for compassionate appointment. As per the Railway guidelines, the minimum educational qualification for such appointment was Class VII. However, her educational certificate was found to be fake and her candidature was cancelled. The other daughters had earlier given their consent in favour of Smt. Reena for compassionate appointment. After cancellation of her candidature, applications were invited from the family members for considering the next eligible candidate. The three other daughters were illiterate and the applicant, Smt. Sonam, thereafter submitted her claim. The applicant is a married daughter. As per Railway Board’s letter dated 03.02.1981, in the case of a married daughter, the competent authority has to satisfy itself that she would be the breadwinner of the bereaved family.At the time of death of the employee, Smt. Reena was unmarried, but she is now married. The applicant has also not produced the consent of her other sisters in her favour. It is further submitted that there is no other liability of the deceased employee which is required to be discharged by the applicant. Compassionate appointment is not a matter of right and is intended only to provide immediate relief to the family of the deceased employee. Thus, respondents stated that the applicant is not entitled to compassionate appointment and the Original Application is liable to be dismissed.
The applicant has filed Rejoinder Affidavit to the Counter Affidavit as filed by the respondents refuting the contentions made by the respondents in their Counter Affidavit while reiterating the averments made in the O.A.
I have heard Shri U.P Srivastava, learned counsel for the applicant and Shri S.C. Mishra, learned counsel for the respondents and perused the record.
Learned counsel for the applicant submitted that the applicant is the daughter of Late Smt. Hosiyari Devi, who died in harness on 10.11.2007 while working as Safai Wali in the Railway. He submitted that after the death of the employee, the applicant’s sister Smt. Reena had initially applied for compassionate appointment, but her candidature was cancelled as her educational certificate was found to be forged. Learned counsel for the applicant further submitted that thereafter the applicant applied for compassionate appointment and her educational certificate was duly verified and found genuine. However, her claim was rejected only on the ground that she was a married daughter. He submitted that the applicant continued to live with and take care of her mother even after her marriage and was dependent upon her. Her Page 3 of 9 husband is also unemployed. He next submitted that the claim of a married daughter cannot be rejected merely on the ground of her marital status, without considering her actual dependency and the financial condition of the family. He placed reliance upon the judgments in Neha Srivastava Vs. State of U.P. & Others in SPECIAL APPEAL DEFECTIVE No. - 863 of 2015 decided on 23.12.2015 by Hon’ble Allahabad High Court and Smt. Vimla Srivastava Vs. State of U.P. & Others in Writ ‘C’ No.14853 of 2015 decided on 04.12.2015 by Hon’ble High Court, Allahabad. Thus, he submitted that the impugned order dated 20.03.2018 is not sustainable and the respondents may be directed to consider the applicant’s case for compassionate appointment in accordance with law.
On the other hand, learned counsel for the respondents submitted that compassionate appointment is not a matter of right and is intended to provide immediate financial assistance to the family of a deceased employee. Learned counsel for the respondents submitted that at the time of death of the employee, her unmarried daughter Smt. Reena had applied for compassionate appointment. However, her candidature was cancelled after her educational certificate was found to be fake. Thereafter, the other family members were given an opportunity to submit their claims and the present applicant, who is a married daughter, submitted her application. Learned counsel for the respondents further submitted that the deceased employee died on 10.11.2007, whereas the applicant’s claim for compassionate appointment was considered much later. Thus, there is a considerable lapse of time between the death of the employee and the claim made by the applicant. Compassionate appointment is intended to provide immediate financial assistance to the family of a deceased employee and not to provide employment after a long period. The long delay itself shows that the family was able to manage its affairs after the death of the employee. Therefore, the applicant cannot claim compassionate appointment as a matter of right after such a long period. He further submitted that under the Railway Board’s letter dated 03.02.1981, in the case of a married daughter, the competent authority has to satisfy itself that she would be the breadwinner of the bereaved family. The applicant has also not produced the consent of her other sisters in her favour. It was further submitted that there is no continuing liability of the deceased employee which is required to be discharged by the applicant. Therefore, the competent authority rightly rejected her claim. The impugned order calls for no interference and the Original Application is liable to be dismissed.
I have considered the rival submissions advanced by the learned counsel for the parties and have gone through the record.
It is not in dispute that Late Smt. Hosiyari Devi died in harness on 10.11.2007. It is also not in dispute that initially her daughter Smt. Reena had applied for compassionate appointment, but her candidature was cancelled on 20.09.2016 after her educational certificate was found to be forged. Thereafter, the applicant submitted her claim for compassionate appointment. Her educational certificate was verified and found genuine.
The main question which arises for consideration is whether, after such a long period from the date of death of the employee, the applicant can still claim compassionate appointment.
The Hon’ble Supreme Court has consistently held that compassionate appointment is an exception to the normal rule of appointment in public service. Its object is to provide immediate financial assistance to the family of a deceased employee facing sudden financial crisis. It is not a mode of recruitment or a matter of inheritance. It is also not a vested right which can be claimed at any time after the death of the employee.
The Hon’ble Supreme Court in State of West Bengal Vs. Debabrata Tiwari, Civil Appeal Nos. 8842-8855 of 2022, decided on 03.03.2023, has held as under:-
“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 Page 5 of 9 considerations that ought to guide determination of claims for compassionate appointment.
1.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.
2.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 dependants 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 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. 5
3.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.
4.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.
5.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 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 19 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.
6.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 6 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.
7.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 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 7 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 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 Page 7 of 9 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”.
It is settled law that the object of compassionate appointment is to provide immediate financial assistance to the family of the deceased employee and to help the family tide over the sudden financial crisis caused by the death of the breadwinner. It is not intended to provide employment after a long lapse of time. The Hon’ble Supreme Court has consistently held that compassionate appointment cannot be claimed after a considerable lapse of time when the immediate crisis arising from the death of the employee has ceased. In State of J&K Vs. Sajad Ahmed Mir, (2006) 5 SCC 766, the Hon’ble Supreme Court held that where the family has survived for a substantial period after the death of the breadwinner, there is no need to depart from the normal rule of appointment.
Thus, in view of aforesaid judgment of Hon’ble Supreme Court, compassionate appointment cannot be claimed after a considerable lapse of time and that, while examining such a claim, the income, liabilities, terminal benefits, age, dependency and marital status of the family members and other relevant circumstances are required to be considered.
In the present case, Late Smt. Hosiyari Devi died on 10.11.2007. More than 18 years have now passed from her death. The applicant’s claim also arose only after the earlier claim of her sister Smt. Reena was cancelled in the year 2016. Thus, the applicant was not seeking appointment immediately after the death of the employee. The considerable passage of time is, therefore, an important circumstance which cannot be ignored. On an overall consideration of the facts and circumstances, this Tribunal finds that the applicant has failed to establish that her case still answers the basic object of compassionate appointment, namely, to provide immediate relief from the financial crisis arising out of the death of the employee. The long lapse of more than 18 years is a significant factor in the present case.
In view of the above discussion, this Tribunal finds no sufficient ground to interfere with the impugned order rejecting the applicant’s claim for compassionate appointment. The reliefs sought by the applicant cannot, therefore, be granted.
Accordingly, the Original Application is dismissed. There shall be no order as to costs. All pending MAs, if any, shall stand disposed of.