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PETITIONER:

UMESH KUMAR NAGPAL

Vs.

RESPONDENT:

STATE OF HARYANA (Sawant, J.)

DATE OF JUDGMENT04/05/1994

BENCH:

SAWANT, P.B.

BENCH:

SAWANT, P.B.

SINGH N.P. (J)

CITATION:

1994 SCC (4) 138 JT 1994 (3) 525

1994 SCALE (5)834

ACT:

HEADNOTE:

JUDGMENT:

The Judgment of the Court was delivered by

SAWANT, J.- These two petitions are directed against the

decision dated 18-12-1992 of the Division Bench of the

Punjab & Haryana High Court in Letters Patent Appeal No. 734

of 1992 and CWP No. 6357 of 1992. Since they raise a point

of considerable importance, it has become necessary to

deliver a short judgment while dismissing them at the

admission stage.

2.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, appointments

in the public services should be made strictly on the basis

of open invitation of applications and met-it. No other

mode of appointment nor any other consideration is Neither

the Governments nor the

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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. One such exception is in favour of the

dependants 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 dependants 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 much less a post for

post held by the deceased. What is further, mere death of

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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 non-manual 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.

3.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.

4.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 TV. We are also dismayed to find that the

decision of

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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 11 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 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

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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 dependant 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

appointments to Class I or 11 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 the

rarest of rare cases, and in very exceptional

circumstances. As a matter of fact, we would

recommend that the Government should frame a

policy even for such appointments."

5. 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 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.

6.For these very reasons, 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

1 (1989)4SCC468:1989SCC(L&S)662:(1989)11ATC878:(1989)4SLR327

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breadwinner, the compassionate employment cannot be claimed

and offered whatever the lapse of time and after the crisis

is over.

7.It is needless to emphasise that the provisions for

compassionate employment have necessarily to be made by the

rules or by the executive instructions issued by the

Government or the public authority concerned. The

employment cannot be offered by an individual functionary on

an ad hoc basis.

8. For the reasons given above, we dismiss the special

leave petitions.

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