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Judgment
Arun Kumar Goel, J.—This appeal is directed against the order dated 19.3.1998 passed by a learned Single Judge of this Court in SWP
No. 172/97 wherein following directions have been given :
The petitioner has also suffered on account of delay. The petitioner has placed on record a certificate that his family income was less than Rs.
2000/. The requisite certificate was signed by the Asstt. Commissioner Kathua. This is Annexure P2. If above factor is taken into consideration
then the stand taken in the objections that family income of the petitioner was more than Rs. 2000/ is not correct. As such, the petitioner would
prima facie be eligible under the rules of 1989 and he was prima facie entitled to appointment on compassionate grounds.
This petition which was admitted and with the consent of the parties taken up for final disposal is allowed. The respondent would accordingly
consider the case of the petitioner in terms of rules 1989 and pass orders in this regard.
Admitted facts of this case are that Late Shri Harbans Singh was working as a driver in J&K State Motor Garages. He died on 20.9.1989.
Date of birth of the petitioner is 2.7.1973. On the date of filing of this writ petition vide SRO No. 43/94 State Government in exercise of powers
vested under Section 124 of the Constitution of J&K had promulgated the J&K (Compassionate Appointment), Rules 1994 which were deemed
to have come into force with effect from 24th September, 91. This SRO repealed the J&K Appointment on Compassionate Ground Rules, 1991
issued vide SRO 283 of 1991. Date of issue of this SRO was 24th September, 91 and this SRO was to come in force at once. When this SRO of
1991 was issued, SRO 194 of 1989 dated 18th May, 89 i.e. The J&K Government Employees (Death in Harness) Dependents Appointment
Rules, 1989 were in force. A narration of these facts shows that SRO 194/89 was repealed vide SRO 283/91, and this SRO was repealed vide
SRO 43/94.
By means of impugned judgment direction has been issued to the appellants to consider the case of the respondent in terms of Rules of 1989
and pass orders in terms thereof.
Further case as set up by the respondent in the writ petition was that after the death of his father he became major. Thereafter he learned driving
and driving licence was issued by the Licencing Authority, Jammu on 18.10.96 when he applied for compassionate appointment to the
respondents. Petitioner claims that besides himself, he has two sisters and one brother who are all young to him. Under what SRO he applied has
been kept blank in the writ petition when a reference is made to paragraph 6 thereof. Petitioner claims that he is entitled to be appointed to the
post of driver in the State Motor Garages or any other department. Record of the writ file suggests that he approached Director, State Motor
Garages, Jammu under Rule 43 (SRO 43 ?). A copy of this communication dated 10.12.1996 is placed on the writ file as Annexure P5. Amongst
other things he has stated that he has got a driving licence as also experience of two years. He claims that his father was serving in the State Motor
Garages, who expired during service, he is an unemployed youth having no source of income and it is very difficult to make both endsmeet from
the meagre pension of Rs. 1900/. Vide Annexure P2, a certificate was issued by the Office or Deputy Commissioner, Kathua wherein description
of the family of deceased, which includes petitioner, his mother, two sisters and one brother are named in it. Monthly income of the family from all
sources is shown to be Rs. 250/. This is issued on 11.4.1990 i.e. within less than one year of the date of death of father of respondent Mohinder
Singh. It is also mentioned in this annexure that case of pension, GPF and gratuity has not yet been settled. Admissible pension was to be available
to the family in terms of Pension Rules from the date of death of the deceased father of respondent. Thus is can safely be presumed that on the
date of death of his father total income of the family of respondent was more than Rs. 2000/ per month (Rs. 1900 + Rs. 250/). What is its effect
will be discussed hereinafter.
It is by now well known and has been judicially accepted that the purpose of providing compassionate appointment to an eligible family member
of the deceased employee by the State Government is one, that immediately on the death of breadwinner of the family it may be in a position to
overcome the hardship that befalls on the family. Welfare State ensures by offering such an employment on urgent basis immediately that the family
is not compelled to live a life in destitution as also is not forced to come with a begging bowl in the streets. Besides this, when a government
employee dies in harness, with a view of relieve the unexpected misery as also the distress caused to the family on account of such sudden death of
the earning hand, State Government has framed the above said SROs from time to time. The whole purpose of offering such an appointment is an
act of compassion to the family, of course as per rules on account of situation in which it is placed. One such an employment is offered the laudible
object as aforesaid is achieved.
In this context it may also be noted that the compassionate appointment offered is neither an alternate source of recruitment nor the person
offered such an employment can insist, muchless claim that he should be appointed against a particular post. In case offer made by the government
as per rules is not acceptable, such a person is at liberty not to accept such an offer and compete in the open market alongwith other eligible
candidates. In case a person who applies for compassionate appointment insists that he should be appointed to a particular post at a particular
level, it will be contrary to law as other persons who are eligible and are entitled for consideration in open market would be denied such an
opportunity and their cases may be more hard than that of such a candidate. Thus such an action will be arbitrary and unconstitutional being
violative of Articles 14 and 16 of the Constitution of India.
As already observed with a view to overcome the immediate hardship compassionate appointment is offered. Thus it needs to be ensured that
such an employment is offered at the earliest and in case there is any provision in the relevant rules framed for such an appointment, then the
appointment is made as per such rules. Where a family had sustained for quite sometime, even then compassionate appointment cannot be offered
to the ward of the deceased government employee who dies in harness. In cases wherein ward of the deceased government employee attained
majority/eligibility after quite some time after the death of such an employee, compassionate appointment has been declined. Reason given for
doing so is that in case the family has survived without compassionate appointment for such a long time, with the passage of time the right is also
lost.
Learned counsel for the appellants has urged that the learned Single Judge had fallen into error while issuing the above noted direction to the
appellants. According to her SRO 194 of 1989 whereunder direction has been issued to the appellants to consider the case of respondent was
inapplicable as it stood repealed on the date of application by the respondent, and according to her on his own showing vide Annexure P5 with the
writ petition, respondent had applied under SRO 43/94 and not under SRO 194 of 1989 (supra). Application was highly belated having been
made after about seven years of date of death of his father by the respondent and was itself a ground to reject this claim. This having not been
done, learned Single Judge was in error by issuing the direction in question. In the alternative and without conceding learned Government Advocate
submitted that as per SRO 194/89 because income of the family of the respondent was more than Rs. 2000/ per month in terms of Annexure P2
and P5 with the writ petition, writ petition was liable to be dismissed. All these pleas have been controverted by Shri Sahni, learned counsel for the
respondent, who submitted that provisions of SRO 194/89, 293/91 and 43/94 are beneficial provisions enacted by the respondentState with a
view to minimise the hardship that befalls on the family of a deceased government servant, therefore those need to be liberally construed with a
view to achieve the object for which these have been enacted by the government from time to time. According to him plight of the family of his
client can be better imagined than explained. He further submitted that there is no infirmity legal or otherwise calling for interference in the judgment
of learned Single Judge. As such according to Shri Sahni the appeal being wholly misconceived has no merit and was liable to be dismissed. It was
further urged by Shri Sahni that in case prayer made on behalf of the appellant is allowed, it will be contrary to the spirit, purpose and intention of
the above referred SROs enacted by the State Government for giving appointment on compassionate grounds to one eligible family member of the
deceased government servant. As such he prayed for dismissal of this appeal on this ground also.
A reference to the impugned order suggests that after taking note of two decisions reported in 1997(1) SCT 812 from Gujarat High Court in the
case of ""Nisar Ahmad Abdulmiya v. State of Gujarat"" , wherein decision of the Supreme Court of India in case ""Sushma Gosain and others v.
Union of India and others"" reported in AIR 1989 SC 1976 was relied, the impugned direction has been issued. A reference to these decisions
clearly suggests that they had No. 2 applicability to the facts of the present case.
In the case of Sushma Gosain (supra) her husband had died in October, 82 in harness when he was working in the Department of Director
General of Border Roads. In November, 1982 she sought appointment in the said department as Lower Division Clerk. In January 1983 she was
called for written test followed by interview. She was said to have passed the trade test also. It was in this background that direction was issued.
What was observed in this decision was in the following terms :
We heard counsel on both sides and gave our anxious consideration to the problem presented. It seems to us that the High Court has made the
order in a mechanical way and if we may say so, the order lacks the sense of justice. Sushma Gosain made an application for appointment as
Lower Division Clerk as far back in November 1982. She had then a right to have her case considered for appointment on compassionate ground
under the aforesaid Government Memorandum. In 1983, she passed the trade test and the interview conducted by the DGBR. There is absolutely
no reason to make her to wait till 1985 when the ban on appointment of ladies was imposed. The denial of appointment is patently arbitrary and
cannot be supported in any view of the matter.
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.
So far case of Nisar Ahmad Abdulmiya v. State of Gujarat (supra) is concerned, in this case father of the petitioner died on 28.12.1985 when
appointment on compassionate ground was asked. On 13.9.1991 State Government accorded its approval for appointment of the petitioner as
Junior Clerk, but still for almost 10 years after the death of his father petitioner not appointed. Thereafter on 19.2.1994 petitioner was told by the
respondents that authority to appoint has been given to the Development Commissioner who may be approached as they (respondents) cannot do
anything in this matter. It is in the background after following the decision in the case of Sushma Gosain (supra) that writ petition was allowed.
What seems to be the situation between the date of death and 1991, case for appointment of the petitioner was being processed and appropriate
relief was granted by the Government, and on failure of the respondents to appoint the petitioner as Junior Clerk that writ petition was filed which
was allowed by the Gujarat High Court.
Thus this case has no applicability to the case of the respondent because as per his own showing he approached the Director, State Motor
Garages vide Annexure P5 after seven years of the death of his father. Secondly he was persisting that he needs to be appointed as a driver
because his father was also working in that capacity at the time of his death.
So far legal proposition laid down in the case of Sushma Gosain (supra) by the Supreme Court is concerned, there can hardly be any dispute
nor it can be disputed by the learned Government Advocate appearing for the appellants. She only reiterated that in circumstances of this case on
the pleas noted hereinabove petitioner was not eligible for any direction as ordered vide impugned judgment.
The matter relating to compassionate appointment had been attending attention of the Supreme Court as also of different High Courts. Some of
these would be referred to hereinafter.
In 1994(3) SCT 174 (SC) : (1994) 4 SCC 138, ""Umesh Kumar Nagpal v. State of Haryana and others"" , after examining the object of
compassionate appointment amongst other things it was observed as under :
The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears
that there has been a good deal of obfuscation on the issue. As a rule, appointment 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 Government 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. Once 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. 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
dependents 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 muchless 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 Classes III
and IV are the lowest posts in nonmanual 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.
Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter
of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally
impermissible.
It is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even
directed compassionate employment either as a matter of course or in posts above Classes III and IV. We are also dismayed to find that the
decision of this Court in Sushma Gosain v. Union of India has been misinterpreted to the point of distortion. The decision does not justify
compassionate employment either as a matter of course or in employment in posts above Classes III and IV. In the present case, the High Court
has rightly pointed out that the State Government's instructions in question did not justify compassionate employment in Class II posts. However, it
appears from the judgment that the State Government had made at least one exception and provided compassionate employment in Class II post
on the specious ground that the person concerned had technical qualifications such as M.B.B.S., B.E., B.Tech. etc. Such exception, as pointed out
above, is illegal, since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate
employment is the penurious condition of the deceased's family. Neither the qualifications of his dependent nor the post which he had held is
relevant. It is for this reason that we are unable to understand the following observations of the High Court in the impugned judgment :
We are of the view that the extraordinary situations require extraordinary remedies and it is open to the Government in real hard cases to deviate
from the letter and spirit of the instructions and to provide relief in cases where it is so warranted. To hold as a matter of law that the Government
cannot deviate even minutely from the policy of providing appointment only against Class III and Class IV posts, would be to ignore the reality of
life these days. It would be ridiculous to expect that a dependent of a deceased Class I Officer, should be offered appointment against a Class III
or IV post. While we leave it to the Government to exercise its discretion judiciously in making appointment to Class I or II posts on
compassionate grounds, yet a word of caution needs to be struck. It is to be noted that such appointments should be ordered in rarest of rare
cases, and in view exceptional circumstances. As a matter of fact, we would recommend that the Government should frame a policy even for such
appointment.
It is Obvious from the above observations that the High Court endorses the policy of the State Government to make compassionate
appointment in posts equivalent to the posts held by the deceased employees and above Classes II and IV. It is unnecessary to reiterate that these
observations are contrary to law. If the dependent of the deceased employee finds it below his dignity to accept the post offered, he is free not to
do so. The post is not offered to cater to his status but to see the family through the economic calamity.
In 1996(2) SCT 778 (SC) : (1996) 8 SCC 23, ""Haryana State Electricity Board v. Naresh Tanwar and another"" , while considering the matter
relating to the grant of delayed compassionate appointment it was observed as under :
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 (1997) 8 SCC 85 : 1998(1) S.C.T. 511, ""Haryana State Electricity Board and another v. Hakim Singh"" , after following its earlier decisions in
the case of Umesh Kumar Nagpal (supra) and Haryana State Electricity Board (supra), it was held as under :
The High Court relied on an earlier decision of the same High Court in which after considering the same circulars it was observed thus :
Neither in the service of the Haryana Government nor in the service of the respondentBoard a person below the age of 18 years can be given
employment. Therefore, if a deceased employee is survived by minors, it is impossible to give effect to the conditions incorporated in the circulars
of the Board dated 26.9.1985 and 1.10.1986, which requires submission of application within three years of the death of the employee. A
condition which is impossible to the performed is ordinarily liable to be treated as arbitrary and unconstitutional but if such condition can be given a
reasonable meaning so as to avoid the charge of unconstitutionality that interpretation has to be preferred. Therefore, the instructions contained in
the circulars dated 26.9.1985 and 1.10.1986 will have to be interpreted to mean that in case of a minor child the period of three years would be
applicable from the date he becomes major.
Learned Single Judge followed the aforesaid observations and issued the impugned directions to the Board.
We are of the view that the High Court has erred in overstretching the scope of the compassionate relief provided by the Board in the circulars
as above. It appears that the High Court would have treated the provisions as a lien created by the Board for a dependent of the deceased
employee. If the family members of the deceased employee can manage for fourteen years after his death one of his legal heirs cannot put forward
a claim as though it is a line of succession by virtue of a right of inheritance. The object of the provisions should not be forgotten that it is to give
succour to the family to tide over the sudden financial crisis befallen the dependants on account of the untimely demise of its sole earning member.
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. The respondent, if he is interested in getting employment in the
Board, has to pass through the normal route now.
In 1999(4) SCT 292 (SC) : (1998) 2 SCC 412, ""State of U.P. and others v. Paras Nath"", while considering the U.P. Recruitment of Dependants
of Government Servants Dying in Harness Rules, 1974, Supreme Court declined the belated claim of an applicant who was two years of age when
his father died.
Again in 1998(2) SCT 790 (SC) : (1998) 5 SCC 192, ""Director of Education (Secondary) and another v. Pushpendra Kumar and others"" , a
three Judge Bench of the Supreme Court of India while examining U.P. Intermediate Education Act, 1921 and Regulations framed thereunder
allowed the appeals. In this case barring one respondent, all of them were appointed on compassionate basis to Class IV post. Whereas in the
case of one of the respondents he was offered Class IV post. In this background all the respondents approached the Allahabed High Court for
being appointed against Class III posts. High Court allowed these writ petitions, quashed the appointment of respondents to Class IV post and
directed that the appointment be made to Class III post. In case of the petitioner who had not joined, it was directed that in case he is eligible, he
be appointed on a Class III post in the District, and if post is not available supernumerary post be created. Against this judgment appeal was filed
in the Supreme Court. Cases of Umesh Kumar Nagpal (supra) and Sushma Gosain (supra) were referred to. Supreme Court while allowing the
appeals set aside the judgment of the High Court and ordered that the appointment of all the respondents would be against Class IV post. Relevant
observations made on the Principle of Law concerning compassionate appointment on the basis of aforesaid two decisions are as under :
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 breadearner 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 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 that case the Court was
considering the question whether appointment on compassionate grounds could be made against posts higher than posts in Classes III and IV. It
was held that such appointment could only be made against the lowest posts in nonmanual categories. It was observed : (SCC p. 140, para 2)
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.
In the said case, this Court has considered the earlier judgment in Sushma Gosain v. Union of India. It has been observed that the said judgment
has been misinterpreted to the point of distortion"" and that it does not justify compassionate employment as a matter of course.
The construction placed by the High Court on the Regulations governing appointment of dependants of teaching/nonteaching staff in non
government recognised aided institutions dying in harness would result in all the vacancies in Class III post in nongovernment recognised aided
institutions which are required to be filled by direct recruitment being made available to the dependants of persons employed on the
teaching/nonteaching staff of such institutions who die in harness and the right of other persons who are eligible for appointment to seek
employment on those posts by direct recruitment would be completely excluded. On such a construction, the said provision in the Regulations
would be open to challenge on the ground of being violative of the right to equality in the matter of employment inasmuch as other persons who are
eligible for appointment and who may be more meritorious than the dependants of deceased employees would be deprived of their right of being
considered for such appointment under the rules. A construction which leads to such a result has to be avoided. Having regard to the fact that there
are a large number of posts falling vacant in Class IV and appointment on these posts is made by direct recruitment, the object underlying the
provision for giving employment to a dependant of a person employed on teaching/non teaching staff who dies in harness would be achieved if the
said provision in the Regulations is construed to mean that in the matter of appointment of a dependant of a teaching/nonteaching staff in a
nongovernment recognised aided institution dying in harness if a post in Class III is not available in the institution in which the deceased employee
was employed or in any other institution in the district, the dependant would be appointed on a Class IV post in the institution in which the
deceased employee was employed and for that purpose a supernumerary post in Class IV may be created. If the Regulations are thus construed,
the respondentapplicants could only be appointed on a Class IV post and they could not seek a direction for being appointed on a Class III post
and for creation of supernumerary post in Class III for that purpose. We are, therefore, unable to uphold the direction given by the High Court in
the impugned judgments whereby the respondents have been directed to be appointed on a Class III post if they possess the requisite
qualifications for such a post and in case no Class III post is available, then a supernumerary Class III post be created for the purpose of such
appointment.
In (1998) 9 SCC 485, ""S. Mohan Singh v. Government of T.N. and another"", mother of the appellant died on 8.1.1974 and he was appointed
against a leave vacancy on 6.9.1984 for three months on compassionate grounds. He was terminated on 17.12.1984. Thereafter on 12.8.1985 he
submitted full particulars regarding the family of his deceased mother, the status of two brothers, their income and also particulars regarding income
of the father. On 19.10.1987 S. Mohan was appointed as a Junior Assistant in Bodinayakanur Municipality on compassionate grounds which he
joined. His services were terminated on 3.1.1990. His application for rectification was forwarded to the government through proper channel who,
it later on transpired had refused to ratify the appointment on compassionate grounds. Not only this action was ordered to be taken immediately
and report submitted. After termination of his service S. Mohan approached the Administrative Tribunal and under the interim orders he continued
to be in service. Finally application was dismissed by the Tribunal. He approached the Supreme Court. In this background what was observed by
the Supreme Court is as under :
Learned counsel for the appellant has strenuously urged that the appointment of the appellant on compassionate grounds was justified and that
the appellant had not suppressed any fact at the time of seeking appointment on compassionate grounds. The question, however, is whether in the
facts and circumstances set out, could the appointment of the appellant have been made on compassionate grounds after a lapse of 10 years from
the date of death of his mother. Secondly, whether the circumstance justify the appointment of the appellant on compassionate grounds. On the
first question, this Court, in the case of Umesh Kumar Nagpal v. State of Haryana (SCC at p. 141) has observed that 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 present case, at the time of the death of the mother, she was not the sole breadwinner of the family. Two sons were already
employed and the father was receiving a small pension. The appellant sought employment on compassionate grounds after a lapse of 10 years. It
was, therefore, obvious that there was no immediate financial crisis in the family which would warrant any out of turn appointment of the appellant
on compassionate grounds. The financial crisis, if any, caused by the death of the mother was 10 years prior to the application of the appellant. At
the time of death of his mother, the appellants was around 12 or 13 years of age and his two brothers were employed. Looking to all the
circumstances, the Government had rightly refused to give him appointment. The fact that the appellant was continued in service on account of the
interim orders passed during the pendency of the proceedings taken out by the appellant will not be of any help to the appellant since he was
throughout aware that these were only interim orders which were subject to the outcome of the proceedings. We do not see any reasons to set
aside the order of the Tribunal. The appeal is, therefore, dismissed. There will, however, be no order as to costs.
A Division Bench of Gauhati High Court in the case of ""State of Manipur v. Kh. Jasobanta Singh"" reported in 2000(1) SCT 430 , after following
the decisions of Supreme Court of India held as under :
Hence, we are of the view that the appointment on compassionate ground or under the dieinharness scheme, should be made in accordance with
related scheme and rules and it is not a method of regular appointment or recruitment but it is an appointment to afford immediate relief and
rehabilitation of the family in distress for relieving the dependent family members from hardship and distress. In the instant case, no question of
immediate rehabilitation or relief to the family of the deceased Kh. Mani Singh ever arose or arises in view of the existing facts and circumstances
of the case and, apart from it, we are further of the view that the petitioner has a right to claim to be considered by the competent authority for such
appointment under the related dieinharness scheme but not with this Court as it is under the domain and wisdom of the competent authority in the
matter.
In the instant case SRO 194 as already noted stood repealed vide SRO 283 of 1991. Similarly the latter SRO stood repealed in 1994 vide
SRO 43 of 1994. As already noted respondent applied for his appointment in the year 1996 vide Annexure P5. In these circumstances by no
stretch of imagination it can be said that the application of the petitioner was to be considered in terms of SRO 194 of 1989. In fact this was not
the case set up by the petitioner even in the writ petition. In paragraph 5 of the writ petition SRO whereunder respondent had applied was kept
blank. On the other hand from Annexure P5 attached with the writ petition it can be inferred out that respondent Mohinder Singh applied in terms
of SRO 43 of 1994. In this view of the matter it is clear that he was seeking employment on compassionate grounds after a gap of more than seven
years. This was totally impermissible in view of the authoritative pronouncement of the Supreme Court referred to hereinabove.
Even if it be assumed that SRO 194 of 1989 governed the case of petitioner, on his own showing he was ineligible in view of Clause 8 of this
SRP. This Clause reads as under :
No benefit will be admissible under this Scheme in a case in which the monthly income reported by the Assistant Commissioner exceeds Rs.
2000/ per month.
No benefit will be admissible under this Scheme in a case in which the monthly income reported by the Assistant Commissioner exceeds Rs.
2000/ per month. As already noted in the begining of this judgment monthly income of the family exceeded Rs. 2000/ per month. Rs. 250/ as
reported by the Assistant Commissioner vide Annexure P2 dated 11.4.1990 with the writ petition and pension was Rs. 1900/ on his own showing
in Annexure P5 by Mohinder Singh. In this context it may be appropriate to observe that on the date of filing of the writ petition purposely the
requisite certificate was not filed by the respondent. Reasons appear to be two, namely that SRO 194 of 1989 was inapplicable; and the other
reason seems to be that pension was admissible from the date of death of the father of respondent. Because income of the family for the aforesaid
reasons was more than Rs. 2000/ per month, therefore on this ground also respondent was not entitled to any relief whatsoever.
Faced with this situation Shri Sahni, learned counsel for respondent submitted that this is a very hard case and only right of consideration has
been given to his client in terms of impugned order. As such he prayed that the judgment passed by the learned Single Judge may not be disturbed
because it is not known in what manner the appellants may examine the case of his client.
No other point is urged.
When the present case is examined in the light of facts referred to hereinabove as well as on the basis of the law declared by the Supreme
Court of India as referred to in the preceding paras, it is clear that respondent Mohinder Singh is not entitled to any relief whatsoever both under
SRO 194 of 1989 as well as under SRO 43 of 1994. That being so in our considered opinion the impugned judgment is liable to be set aside and
it is ordered accordingly. As a consequence of the same this appeal is allowed and SWP No. 172/97 is hereby dismissed with no orders as to
costs.
However before parting with this case we observe that this decision will not preclude respondentMohinder Singh to make a representation to
the appellant for consideration of his case in the State Motor Garages in terms of SRO 43 of 1994 in any capacity whatsoever. He will be further
at liberty to give full details of the family circumstances and its financial condition. It is expected that if such a representation will be made the same
would be considered by the appellants sympathetically. Such a direction is in consonance with the observations made by the Supreme Court of
India in the case of ""Haryana State Electricity Board v. Naresh Tanwar"" (supra).