Service Law – Compassionate appointment – The State, if entitled to take into account family pension and other terminal benefits in determining whether compassionate appointment should be granted to the dependant of a deceased employee – Held: The terms on which compassionate applications would be considered are subject to the policy which is framed by the State and must fulfill the terms of the policy – In instant case, policy was formulated on 18.01.1990, which was designed to meet the needs of those families where death of a government servant has left them in indigent circumstances, requiring immediate means of subsistence – Policy recognized that the benefits which were received by a family on account of welfare measures were required to be considered – The policy did not preclude the dependants of a deceased employee from being considered for compassionate appointment merely because they are in receipt of family pension – What the Policy mandated was that the receipt of family pension should be taken into account in considering whether the family has been left in indigent circumstances requiring immediate means of subsistence – The receipt of family pension is, therefore, one of the considerations which is to be taken into account.
Service Law – Compassionate appointment – Prescription of income slab – On 18.01.1990, the State Government framed a policy/scheme for making compassionate appointments – A income criteria/income slab was prescribed by the Finance Department by a letter dated 29.09.2008 – High Court was of the view that it was not open to the Finance Department to amend the scheme – The State contended that income slab reduces the element of discretion and obviates a case by case analysis of what should or should not be an income criterion for deciding the indigent circumstances of a family – Held: The fixation of an income slab is a measure which diluted the element of arbitrariness – Fixation of an income slab subserves the purpose of bringing objectivity and uniformity in the process of decision making – Circulars issued by the Finance Department cannot be construed to be an amendment to the policy – Circulars are explanatory, since they are intended to guide the decision maker on the concept of indigency which is incorporated in the scheme – Thus, decision of the State Government to fix income limits confirmed – Further, the State directed to periodically revise the income limits at intervals of three years or earlier, and consider whether a revision is warranted having regard to the cost of living, inflation and other relevant facts and circumstances.
Delay/Laches – Compassionate appointment – Held: In the instant case, the respondent waited for a period in excess of seven years to move a petition u/Art.226 of the Constitution – Supreme Court in Umesh Kumar Nagpal case 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 was evidently lost by the delay on the part of the dependant in seeking compassionate appointment – Thus, respondent debarred from seeking compassionate appointment by the delay as well as by the lapse of time.– Service Law.
Constitution of India – Arts.14 and 16 – Compassionate appointment – Held: 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 Arts.14 and 16 of the Constitution – Dependants of a deceased employee of the State are made eligible by virtue of the Policy on compassionate appointment.
Father of the respondent, who was working in the Horticulture Department died in the year 2005 while he was in service. In 2007, the respondent submitted an application for compassionate appointment. The application was forwarded to the competent authorities. Additional Secretary (Horticulture) required that a certificate of income, including pension should be obtained from the concerned SDM by the appellant. In 2015, writ petition was filed by the respondent. The High Court held that the State is not entitled to take into account family pension and other terminal benefits in determining whether compassionate appointment should be granted to the dependant of a deceased employee. Hence, the present appeal.
Disposing of the appeal, the Court
HELD: 1. The 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. Dependants of a deceased employee of the State are made eligible by virtue of the Policy on compassionate appointment. 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. It is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. Where the authority finds that the financial and other circumstances of the family are such that in the absence of immediate assistance, it would be reduced to being indigent, an application from a dependant member of the family could be considered. The terms on which such applications would be considered are subject to the policy which is framed by the State and must fulfill the terms of the Policy. In that sense, it is a well-settled principle of law that there is no right to compassionate appointment. But, where there is a policy, a dependant member of the family of a deceased employee is entitled to apply for compassionate appointment and to seek consideration of the application in accordance with the terms and conditions which are prescribed by the State. [Para 20] [447-E-H; 448-A-B]
2. The policy in the present case which was formulated on
18 January 1990 categorically speaks of providing employment assistance to dependants of government servants who have died while in service, “leaving their families in indigent circumstances”. The Policy, in other words, is designed to meet the needs of those families where the death of a government servant has left them in indigent circumstances, requiring immediate means of subsistence. The policy recognizes that the benefits which are received by a family on account of welfare measures are required to be considered. Among them, the policy stipulates that family pension and death gratuity are required to be taken into account in assessing the financial circumstances of the family. The Policy does not preclude the dependants of a deceased employee from being considered for compassionate appointment merely because they are in receipt of family pension. What the Policy mandates is that the receipt of family pension should be taken into account in considering whether the family has been left in indigent circumstances requiring immediate means of subsistence. The receipt of family pension is, therefore, one of the considerations which is to be taken into account. Paragraph 10(c) of the Policy sets out the measures provided by the State which have a bearing on the financial need of the family. [Para 21][448-B-E]
3. That leads the Court to the next aspect of the matter relating to the fixation of an income slab. The fixation of an income slab is, in fact, a measure which dilutes the element of arbitrariness. While, undoubtedly, the facts of each individual case have to be borne in mind in taking a decision, the fixation of an income slab subserves the purpose of bringing objectivity and uniformity in the process of decision making. The High Court was of the view that it was not open to the Finance Department to amend the Scheme. The circulars which are issued by the Finance Department cannot be construed to be an amendment of the policy. They are really clarificatory of the intent and purpose of the Scheme. The circulars are explanatory, since they are intended to guide the decision maker on the concept of indigency which is incorporated in the Scheme. [Para 39] [455-D-F]
4. What should be the appropriate income criterion is undoubtedly a matter of policy for the State Government to determine. However, it is impressed upon the State Government the need to periodically revise the income limits preferably at intervals of three years. Inflation and the increase in the cost of living have an important bearing on financial exigencies faced by families of serving as well as deceased employees. In fixing the income criteria for considering cases of compassionate appointment, it would be appropriate if the State revisits the income limit at periodic intervals. [Para 39] [456-B-C]
5. 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 case, 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 delay on the part of the dependant in seeking compassionate appointment. The respondent is debarred from seeking compassionate appointment by the delay as well as by the lapse of time which has taken place. [Paras 40 and 42] [456-D-F; 457-B]
Umesh Kumar Nagpal v. State of Haryana (1994) 4 SCC
138 ; Union of India v. Shashank Goswami (2012) 11 SCC 307 : [2012] 6 SCR 98 ; State Bank of India v. Surya Narain Tripathi (2014) 15 SCC 739 – relied on. Govind Prakash Verma v. Life Insurance Corporation of India (2005) 10 SCC 289 ; APSRTC, Musheerabad v. Sarvarunnisa Begum AIR 2008 SCW 198 : [2008] 8 SCR 453 ; Canara Bank v. M. Mahesh Kumar (2015) 7 SCC 412 : [2015] 9 SCR 724 ; General Manager
(D&PB) v. Kunti Tiwary (2004) 7 SCC 271 ; Punjab National Bank v. Ashwani Kumar Taneja (2004) 7 SCC
265 : [2004] 3 Suppl. SCR 597 ; State Bank of India v. Somvir Singh (2007) 4 SCC 778 : [2007] 2 SCR 509 ; Mumtaz Yunus Mulani v. State of Maharashtra (2008)
11 SCC 384 : [2008] 5 SCR 241 ; State Bank of India v. Jaspal Kaur (2007) 9 SCC 571 : [2007] 2 SCR
101 ; State of J&K v. Sajad Ahmed Mir (2006) 5 SCC
766 : [2006] 3 Suppl. SCR 576 ; Local Administration Department v. M. Selvanayagam (2011) 13 SCC 42 : [2011] 4 SCR 244 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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