T. Arockiaraj vs The Deputy Registrar of Co - operative Societies Palani Circle and The Special Officer

S. Manikumar, J.—Pleadings disclose that the Petitioner''s father, working as a Salesman in the Special Officer, A 387 -Kodaikannal Co-

operative Stores Ltd., Kodaikannal Post & Taluk, Dindigul District, the second Respondent herein, died on 01.10.1985, leaving behind the

Petitioner and his mother, brother and sisters, as legal heirs. At the time of death, the Petitioner''s mother was 27 years old. The Children were

young, mother was not physically and mentally fit for any post in the second Respondent Society. After the completion of school education and

attaining 18 years, the Petitioner''s mother submitted an application, dated 15.02.1994 on behalf of the Petitioner to the second Respondent,

seeking employment assistance on compassionate grounds. A resolution was also passed by the Society, on 10.30.1995 recommending the case

of the Petitioner, for employment assistance, as the same was also forwarded to the Deputy Registrar of Co�operative Societies Palani Circle,

Shanmugapuram, Palani Post, Dindigul District, the first Respondent herein. The Petitioner also sent a grievance petition to the Hon''ble Chief

Minister Cell, dated 10.12.2010, and that the same was forwarded for necessary action. But, by the impugned order dated 15.04.2011 the

request for employment assistance on compassionate grounds has been rejected, on the ground that as per the Government Rules in forces, an

application for compassionate appointment, should be submitted within 3 years from the date of death, of the employee, which is impugned in this

Writ Petition.

In the case on hand, the Petitioner''s father died on 01.10.1985. After nearly 9 years, the application has been submitted for employment

assistance to the second Respondent. Guidelines governing employment assistance stipulate a condition that it should be made within three years,

from the date of death. The Scheme only enables, those who are eligible to apply, within the said period and they would be considered, depending

upon the availability of the post to which application was made. Scheme does not contemplate that employment assistance can be sought for after

a long time, when any one of the legal heirs, attains majority. It is well settled in catena of decisions that belated applications for employment

assistance cannot be entertained.

On the aspect of delay in applying for compassionate appointment, the Supreme Court has consistently held that delay in applying for

compassionate assistance 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, where the rejection of

belated applications have been sustained.

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 only 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 favourble 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 succour 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 Apex 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. 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 lateron 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 v.

Bhagwan Singh, reported in 1995 (6) SCC 436, at paragraph Nos. 5 to 7 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 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, , at Paragraphs 7 and 10, 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 exceptioncarved out to the general rule that recruitment to publicservices is to be made in a transparent and accountablemanner

providing opportunity to all eligible persons tocompete and participate in the selection process. Suchappointments are required to be made on the

basis of openinvitation of applications and merit. Dependents ofemployees died in harness do not have any special oradditional claim to public

services other than the oneconferred, if any, by the employer.

There is No. dispute whatsoever that the Appellant bank is required to consider the request for compassionateappointment only in accordance

with the scheme framedby it and No. discretion as such is left with any of theauthorities to make compassionate appointment dehors thescheme. In

our considered opinion the claim for compassionate appointment and the right, if any, istraceable only to the scheme, executive instructions, rules,

etc. framed by the employer in the matter of providingemployment on compassionate grounds. There is No. rightof whatsoever nature to claim

compassionate appointmenton any ground other than the one, if any, conferred by theemployer by way of scheme or instructions as the case

maybe.

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 before the Apex Court) 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 and at paragraph Nos. 7 to 19 of

the decisions on compassionate grounds have been extracted as follows:

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

breadearner 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 v. Bhagwan

Singh, reported in (1995) 6 SCC 436, 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, , the 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 make 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 observed 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 (husband 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. The Supreme Court held that

the decision of the employer was in consonance with Umesh Kumar Nagpal''s case and the same should not have been interfered with by the High

Court.

Thus it could be seen from the catena of decisions, that 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 the educational qualifications. 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 view of the settled principle of law, the rejection of the Petitioner''s request for employment assistance, cannot be said to be illegal and the

same is not contrary to the rules, warranting interference. Hence, this Writ Petition is dismissed. Consequently, connected Miscellaneous Petition is

also dismissed. No. costs.