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PETITIONER:

STATE OF HARYANA & ORS

Vs.

RESPONDENT:

RANI DEVI & ANR.

DATE OF JUDGMENT: 15/07/1996

BENCH:

SINGH N.P. (J)

BENCH:

SINGH N.P. (J)

AHMAD SAGHIR S. (J)

CITATION:

JT 1996 (6) 646 1996 SCALE (5)338

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

N.P. SINGH. J.

Leave granted.

These appeals have been filed on behalf of the State of

Haryana for setting aside the orders passed on two writ

petitions filed by respondents Rani Devi and Anguri Devi,

directing the appellant-State to appoint the said

respondents against class-IV posts on compassionate grounds

in view of the fact that their respective husband died while

working as Apprentice Canal Patwaris. The husband of

respondent Rani Devi worked as Apprentice Canal Patwari from

25.8.1987 to 25.2.1989, whereas the husband of respondent

Anguri Devi worked as Apprentice Canal Patwari from

15.7.1992 to 2.6.1993.

There is no dispute that the husbands of the two

respondents had been appointed on ad-hoc basis as Apprentice

Canal Patwaris. According to the court punishment, in this

back ground there is no question of issuing any direction in

respect of appointments of the respondents who are the

widows on compassionate grounds. In this connection, our

attention was drawn to the Punjab Civil Services Rules which

we are informed are in force even in the State of Haryana.

Paragraph 2.6 of chapter II defines 'Apprentice' to mean a

person deputed for training in a trade or business with a

view to employment in Government service, who draws pay at

monthly rates from the Government during such training, but

is not employed in or against a substantive vacancy in the

cadre of the department. Reference was also made to the

decision of the State Government which was notified on

9.5.1972 saying that the scheme of benefit of ex-gratia

payment to the dependant of the employees of the Haryana

Government who died while in service was not applicable to

ad-hoc employees. The stand of the State is that any scheme

in respect of payment to one of the dependents of the

deceased Government employee is not applicable to casual,

ad-hoc employees or employees who are just apprentices.

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It appears that on 31.10.1985, a communication was

issued by the State Government to all concerned saying that

Government had introduced payment of ex-gratia grant for the

welfare of the 'deceased Government employees' in order to

assist the members of the bereaved family for settling

themselves. The scheme also conceived giving employment to

one of the dependants of the deceased employee. According to

state, the expression 'employee' used in the aforesaid

communication shall not include casual, ad-hoc employee or a

person who has been appointed as an Apprentice.

The question of appointment of one of the dependants of

an employee of the State or Central Government who dies

while in service has of late assumed importance and subject

matter of controversy before different courts. This Court in

the case of Smt. Sushma Gosain & Ors. vs. Union of India &

Ors., AIR 1989 SC 1976 = (1989) 4 SCC 468 after referring to

the Government Memorandum under which the appointment on

compassionate ground was being claimed observed that the

purpose of providing appointment on compassionate ground is

to mitigate the hardship due to the death of the bread

earner in the family. It cannot be on disputed that

appointment on compassionate ground is an exception to the

equaliity clause under Article 14 and can be upheld if such

appointees can be held to form a class by themselves,

otherwise any such appointment merely on the ground that the

person concerned happens to be a dependant of an ex-employee

of the State Government or the Central Government shall be

violative of Articles 14 and 16 of the Constitution. But

this Court has held that if an employee dies while in

service then accordiing to rule framed by the Central

Government or the State Government to appoint one of the

dependants shall not be violative of Articles 14 and 16 of

the Constitution because it is to mitigate the hardship due

to the death of the bread earner of the family and sudden

misery faced by the members of the family of such employee

who had served the Central Government or the State

Government. It appears that this benefit has also been

extended to the employees of the authorities which can be

held to be a State within the meaning of Articie 12 of the

Constitution. But while framing any rule in respect of

appointment on compassionate ground the authorities have to

conscious of the fact that this right which is being

extended to a dependant of the deceased employee is an

exception to the right granted to the citizen under Articles

14 and 16 of the Constitution. As such there should be a

proper check and balance. Of late, it appears the right to

be appointed on compassionate ground is being claimed as a

right of inheritance irrespective of the nature of service

rendered by the deceased employee. In many cases,

applications for appointments on compassionate grounds are

being made even after 10-15 years because on the date of the

death of the employee the applicant was a minor and could

not have been appointed. In the case of Life Insurance

Corporation of India vs. Asha Ramchhandra Ambekar & Anr.,

(1994) 2 SCC 718 this Court pointed out that the High Courts

and the Administrative Tribunals cannot issue directions on

sympathetic considerations to make appointments on

compassionate grounds when the regulations framed in respect

thereof do not cover and contemplate such appointments. Any

such right for appointment on compassionate ground flows on

basis of rules, regulations or some administrative order

issued in the form of resolution or office memorandum. In

the case of Umesh Kumar Nagpal vs. State of Haryana & Ors.,

(1994) 4 SCC 138, it was impressed that as a rule,

appointments in public services should be made strictly on

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basis of open invitation of applications and merit. The

appointment on compassionate ground was an exception to the

aforesaid rule taking into consideration the fact of the

death of the employee while in service and leaving his

family without any means of livelihood. In such cases, the

object is to enable the family to tide over sudden crisis.

However, such appointments on compassionate grounds have to

be made in accordance with the rules, regulations or

administrative instructions taking into consideration the

financial condition of the family of the deceased. In the

case of State of Haryana vs. Naresh Kumar Bali, (1994) 4 SCC

448 on an appeal filed by State of Haryana, a 3-Judges Bench

of this Court deprecated the direction given by the High

Court to appoint the respondent of the said case against a

post of an Inspector and it was observed that the High Court

should have merely directed consideration of the claim of

the said respondent in accordance with rules.

It need not be pointed out that the claim of the person

concerned for appointment on compassionate ground is based

on the ground that he was a dependant on the deceased

employee. Strictly this claim cannot be upheld on the touch

stone of Articles 14 or 16 of the Constitution. But this

Court has upheld this claim as reasonable and permissibe on

employee who has served the State and dies while in service.

That is why it is necessary for the authorities to frame

rules, regulations or to issue such administrative orders

which can stand the test of Articles 14 and 16.

So far the facts of the present case are concerned, we

fail to appreciate as to how the High Court directed that

the respondents aforesaid be appointed on compassionate

ground when admittedly the respective husbands of the

respondents were working as Apprentice Canal Patwaris for

the periods mentioned above. If the scheme regarding

appointment on compassionate ground is extended to all sorts

of casual, ad-hoc employees including those who are working

as Apprentices, then such scheme cannot be justified on

constitutional grounds. It need not be pointed out that

appointments on compassionate grounds, are made as a matter,

of course, without even requiring the person concerned to

face any Selection Committee. In the case of Umesh Kumar

Nagpal vs. State of Haryana & Ors. (supra) it was said:

"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 Class III and

IV. It is unnecessary to reiterate

that these observations are

contrary to law. If the dependant

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."

It was also impressed that appointments on compassionate

ground cannot be made after lapse of reasonable period which

must be specified in the rules because the right to such

employment is not a vested right which can be exercised at

any time in future.

According to us, when the aforesaid Government Order

dated 31.10.1985 extends the benefit of appointment to one

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of the dependants of the 'deceased employee' the expression

'employee' does not conceive casual or purely ad-hoc

employee or those who are working as apprentices.

Accordingly, the appeals are allowed and the impugned orders

on the two writ petitions, filed on behalf of the

respondents are set aside. In the facts and circumstances of

the case, there shall be no order as to costs.