STATE OF HIMACHAL PRADESH & ANR versus SHASHI KUMAR on 16 January 2019

SUPREME COURT REPORTS

[2019] 2 S.C.R.

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STATE OF HIMACHAL PRADESH & ANR.

v.

SHASHI KUMAR

(Civil Appeal No.988 of 2019)

BJANUARY 16, 2019

[DR. DHANANJAYA Y CHANDRACHUD AND

HEMANT GUPTA, JJ.]

Service Law – Compassionate appointment – The State, ifentitled to take into account family pension and other terminalCbenefits in determining whether compassionate appointment shouldbe granted to the dependant of a deceased employee – Held: Theterms on which compassionate applications would be consideredare subject to the policy which is framed by the State and mustfulfill the terms of the policy – In instant case, policy was formulatedDon 18.01.1990, which was designed to meet the needs of thosefamilies where death of a government servant has left them in indigentcircumstances, requiring immediate means of subsistence – Policyrecognized that the benefits which were received by a family onaccount of welfare measures were required to be considered – Thepolicy did not preclude the dependants of a deceased employeeEfrom being considered for compassionate appointment merelybecause they are in receipt of family pension – What the Policymandated was that the receipt of family pension should be takeninto account in considering whether the family has been left inindigent circumstances requiring immediate means of subsistence –FThe receipt of family pension is, therefore, one of the considerationswhich is to be taken into account.

Service Law – Compassionate appointment – Prescription ofincome slab – On 18.01.1990, the State Government framed a policy/scheme for making compassionate appointments – A income criteria/Gincome slab was prescribed by the Finance Department by a letterdated 29.09.2008 – High Court was of the view that it was not opento the Finance Department to amend the scheme – The Statecontended that income slab reduces the element of discretion andobviates a case by case analysis of what should or should not bean income criterion for deciding the indigent circumstances of aH

family – Held: The fixation of an income slab is a measure whichdiluted the element of arbitrariness – Fixation of an income slabsubserves the purpose of bringing objectivity and uniformity in theprocess of decision making – Circulars issued by the FinanceDepartment cannot be construed to be an amendment to the policy– Circulars are explanatory, since they are intended to guide thedecision maker on the concept of indigency which is incorporatedin the scheme – Thus, decision of the State Government to fix incomelimits confirmed – Further, the State directed to periodically revisethe income limits at intervals of three years or earlier, and considerwhether a revision is warranted having regard to the cost of living,inflation and other relevant facts and circumstances.

Delay/Laches – Compassionate appointment – Held: In theinstant case, the respondent waited for a period in excess of sevenyears to move a petition u/Art.226 of the Constitution – SupremeCourt in Umesh Kumar Nagpal case has emphasized that the basisof a scheme of compassionate appointment lies in the need ofproviding immediate assistance to the family of the deceasedemployee – This sense of immediacy was evidently lost by the delayon the part of the dependant in seeking compassionate appointment– Thus, respondent debarred from seeking compassionateappointment by the delay as well as by the lapse of time.–Service Law.

Constitution of India – Arts.14 and 16 – Compassionateappointment – Held: Compassionate appointment is an exceptionto the general rule that appointment to any public post in the serviceof the State has to be made on the basis of principles which accordwith Arts.14 and 16 of the Constitution – Dependants of a deceasedemployee of the State are made eligible by virtue of the Policy oncompassionate appointment.

Father of the respondent, who was working in theHorticulture Department died in the year 2005 while he was inservice. In 2007, the respondent submitted an application forcompassionate appointment. The application was forwarded tothe competent authorities. Additional Secretary (Horticulture)required that a certificate of income, including pension should beobtained from the concerned SDM by the appellant. In 2015, writ A

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Apetition was filed by the respondent. The High Court held thatthe State is not entitled to take into account family pension andother terminal benefits in determining whether compassionateappointment should be granted to the dependant of a deceasedemployee. Hence, the present appeal.

BDisposing of the appeal, the Court

HELD: 1. The compassionate appointment is an exceptionto the general rule that appointment to any public post in theservice of the State has to be made on the basis of principleswhich accord with Articles 14 and 16 of the Constitution.CDependants of a deceased employee of the State are made eligibleby virtue of the Policy on compassionate appointment. The basisof the policy is that it recognizes that a family of a deceasedemployee may be placed in a position of financial hardship uponthe untimely death of the employee while in service. It is theimmediacy of the need which furnishes the basis for the State toDallow the benefit of compassionate appointment. Where theauthority finds that the financial and other circumstances of thefamily are such that in the absence of immediate assistance, itwould be reduced to being indigent, an application from adependant member of the family could be considered. The termsEon which such applications would be considered are subject tothe policy which is framed by the State and must fulfill the termsof the Policy. In that sense, it is a well-settled principle of lawthat there is no right to compassionate appointment. But, wherethere is a policy, a dependant member of the family of a deceasedemployee is entitled to apply for compassionate appointment andFto seek consideration of the application in accordance with theterms 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 on18 January 1990 categorically speaks of providing employmentGassistance to dependants of government servants who have diedwhile in service, “leaving their families in indigentcircumstances”. The Policy, in other words, is designed to meetthe needs of those families where the death of a governmentservant has left them in indigent circumstances, requiring H

immediate means of subsistence. The policy recognizes that thebenefits which are received by a family on account of welfaremeasures are required to be considered. Among them, the policystipulates that family pension and death gratuity are required tobe taken into account in assessing the financial circumstances ofthe family. The Policy does not preclude the dependants of adeceased employee from being considered for compassionateappointment merely because they are in receipt of family pension.What the Policy mandates is that the receipt of family pensionshould be taken into account in considering whether the familyhas been left in indigent circumstances requiring immediate meansof subsistence. The receipt of family pension is, therefore, oneof the considerations which is to be taken into account. Paragraph10(c) of the Policy sets out the measures provided by the Statewhich 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 matterrelating to the fixation of an income slab. The fixation of an incomeslab is, in fact, a measure which dilutes the element ofarbitrariness. While, undoubtedly, the facts of each individualcase have to be borne in mind in taking a decision, the fixation ofan income slab subserves the purpose of bringing objectivity anduniformity in the process of decision making. The High Courtwas of the view that it was not open to the Finance Departmentto amend the Scheme. The circulars which are issued by theFinance Department cannot be construed to be an amendment ofthe policy. They are really clarificatory of the intent and purposeof the Scheme. The circulars are explanatory, since they areintended to guide the decision maker on the concept of indigencywhich is incorporated in the Scheme. [Para 39] [455-D-F]

4. What should be the appropriate income criterion isundoubtedly a matter of policy for the State Government todetermine. However, it is impressed upon the State Governmentthe need to periodically revise the income limits preferably atintervals of three years. Inflation and the increase in the cost ofliving have an important bearing on financial exigencies faced byfamilies of serving as well as deceased employees. In fixing the ABC

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Aincome criteria for considering cases of compassionateappointment, it would be appropriate if the State revisits theincome limit at periodic intervals. [Para 39] [456-B-C]

5. Insofar as the individual facts pertaining to therespondent are concerned, it has emerged from the record thatBthe Writ Petition before the High Court was instituted on 11 May2015. The application for compassionate appointment wassubmitted on 8 May 2007. On 15 January 2008 the AdditionalSecretary had required that the amount realized by way of pensionbe included in the income statement of the family. The respondentwaited thereafter for a period in excess of seven years to move aCpetition under Article 226 of the Constitution. In Umesh KumarNagpal case, this Court has emphasized that the basis of a schemeof compassionate appointment lies in the need of providingimmediate assistance to the family of the deceased employee.This sense of immediacy is evidently lost by the delay on the partDof the dependant in seeking compassionate appointment. Therespondent is debarred from seeking compassionate appointmentby 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 SCCE138 ; Union of India v. Shashank Goswami(2012) 11SCC 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 Corporationof India (2005) 10 SCC 289 ;APSRTC, MusheerabadFv. Sarvarunnisa Begum AIR 2008 SCW 198 : [2008] 8SCR 453 ;Canara Bank v. M. Mahesh Kumar (2015) 7SCC 412 : [2015] 9 SCR 724 ;General Manager(D&PB) v. Kunti Tiwary (2004) 7 SCC 271 ; PunjabNational Bank v. Ashwani Kumar Taneja (2004) 7 SCC265 : [2004] 3 Suppl. SCR 597 ;State Bank of India v.GSomvir 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 Indiav. Jaspal Kaur (2007) 9 SCC 571 : [2007] 2 SCR101 ; State of J&K v. Sajad Ahmed Mir (2006) 5 SCC

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766 : [2006] 3 Suppl. SCR 576 ;Local AdministrationDepartment v. M. Selvanayagam (2011) 13 SCC 42 :[2011] 4 SCR 244 – referred to.

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 988 of

From the Judgment and Order dated 06.10.2015 of the HighCourt of Himachal Pradesh, Shimla in CWP No.3652 of 2015.

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Vikas Mahajan, AAG, P.S. Patwalia, Sr. Adv., Aakash Verma,Anil Kumar, Abhinav Mukerji, Ms. Bihu Sharma, Ms. Purnima Krishna,Ms. Pratishtha Vij, Ajay Marwah, Atul Kumar, Ishan Dewan, PlakBagchi, Abhimanyu Sharma, Ishan Dewan, S. K. Verma, SuryanarayanaSingh, Ms. Pragati Neekhra, Ms. Kaveri Vats, Varinder Kumar Sharma,Ms. Radhika Gautam, Rajul Shrivastav, K. Krishna Kumar, VikrantNarayan Vasudeva, Ashwani Kumar, Ms. Iti Sharma, Jay Kr. Bhardwaj,Ravinder Nain, Puneet Sharma, Jogy Scaria, Reegan S. Bali, Ms. BeenaVictor, Ravi Homod, Veeranjaneyvilu K.L.N.V., Anil Nag, Ravi Bakshi,Aditya Dhawan, Ms. Kiran Dhawan, Shashank Kumar, Chander Shekhar G

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AAshri, Jayant Mohan, Sunil Kumar Jain, Abhishek Jain, Ms. AnushaAgarwal, Punya Garg, Abhishek Jain, Srilok Nath Rath, Y.P. Singh,Sharan Thakur, Mahesh Thakur, Vijay Kumar Pardesi, Dr. SushilBalwada, Karan Chauhan, Ms. Manjeet Chawla, Ms. Bharti Tyagi, Ms.Divya Jyoti Singh, Vinod Sharma, Pawan Reley, Gopal Prasad, SatishKumar, Aravindh S., A. Lakshmi Narayan, Mrs. Nanita Sharma, VivekBSharma, Bajrang Lal Jat, Baldev Singh, D.S. Patial, Binay Kumar Das,Yogesh Kumar Mathur, Ms. Amita Singh Kalkal, M. C. Dhingra, PiyushKant Roy, Ms. Indira Kanora, Gaurav Dhingra, Ms. Shobha Gupta,Ashwani Kr. Gupta, Vikrant Yadav, P. N. Puri, Reeta Dewan Puri,Abhishek Puri, Dhiraj, Parmanand Gaur, Ekansh Bansal, Yash PalCDhingra, Baldev Singh, D.S. Patial, Vinay Kumar Das, Advs. for theappearing parties.

The Judgment of the Court was delivered by DR. DHANANJAYA Y. CHANDRACHUD, J. 1. Leavegranted.D

2. The present appeal arises from a judgment of a Division Benchof the High Court of Himachal Pradesh in a batch of cases which dealtwith the issue of compassionate appointment.

3. The facts, insofar as they are material to this appeal, are thus:

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E4. The father of the respondent, who was working as HFO in theHorticulture Department at Kullu, died on 29 March 2005 while he wasin service. On 8 May 2007, the respondent submitted an application forcompassionate appointment. The application was forwarded by theDeputy Director, Horticulture at Kullu to the competent authorities onF14 September 2007. On 15 January 2008, the Additional Secretary(Horticulture) to the Government of Himachal Pradesh addressed acommunication to the Director of Horticulture stating that the incomecertificate which had been forwarded together with the application didnot include the pension which the family was receiving from theGovernment. Accordingly, the Additional Secretary required that aGcertificate of income, including pension, should be obtained from theconcerned SDM by the applicant.

5. The Writ Petition before the High Court was instituted on 11May 2015, well over seven years thereafter. The respondent has averred H

STATE OF HIMACHAL PRADESH v. SHASHI KUMAR[DR. DHANANJAYA Y. CHANDRACHUD, J.]

that he had made representations, but to no avail, as a result of which hewas eventually compelled to initiate proceedings under Article 226 ofthe Constitution of India before the High Court. The High Courtconsolidated a batch of cases, both Letters Patent Appeals and WritPetitions for hearing. They emanated from a Policy dated 18 January1990 framed by the State Government for providing employmentassistance on compassionate grounds to dependants of governmentservants who have died in harness, leaving a family in need of assistance.The High Court, during the course of the judgment, framed as many asnine issues which were in the following terms:

“(i) Whether the amount of family pension and other retiral benefits,received by the family of the deceased-employee, can beincluded in the family income for denying the compassionateappointment?

(ii) Which date would be relevant for applicability of the Policy -whether the date of death of the employee or the date whenthe application was presented, for the first time, for seekingemployment on compassionate ground or the date on which theapplication came up for consideration before the Authorities,and whether a claim for compassionate appointment can bedecided on the basis of subsequent amendment, when theapplication was presented prior to such amendment?

(iii) If an applicant was in lis and his case was directed to bereconsidered, whether the claim of such applicant is to bedetermined as per the policy which was existing at the time ofpassing the order or as per the policy which was in place at thetime of staking claim for the first time or as per the policy existingat the time of consideration?

(iv) Whether the applicant can claim appointment on compassionateground against a higher cadre, once he had been appointed inthe lower cadre?

(v) In case a person is appointed on contract basis, whether he iswithin his rights to seek appointment on regular basis?

(vi) In a given set of cases, in one case the appointment oncompassionate ground has been offered against a Class-III postand in other case, the appointment has been offered to a Class-IV post, whether it amounts to discrimination?

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A(vii) Whether a person can claim compassionate appointment aftera considerable delay?

(viii) Whether requisite qualification or age can be relaxed?

(ix) In case one or more dependants of a deceased-employee is/are in service, though living separately, whether that can be madeBa ground to deny compassionate appointment to the otherdependant of the deceased-employee?”

6. Insofar as the present appeal is concerned, the State ofHimachal Pradesh has contested the decision of the High Court on issues(i) and (vii). Hence, for the purposes of this appeal, the present judgmentCgoverns only the above aspects of the case.

7. In order to appreciate the nature of the controversy, it would benecessary to advert to the genesis of the policy of the State Government.

8. On 18 January 1990, the Government of Himachal PradeshDframed a policy for making compassionate appointments. The policyindicates that it applies to requests for the appointment of sons, daughtersand near relatives of government servants who die in harness, leavingthe family in immediate need of assistance. Insofar as it is material, thePolicy provides thus:

“Subject;- Appointment of sons/daughters/near relations of aEgovernment servant who died in harness, leaving his family inimmediate need of assistance.

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1) Policy:- The employment on compassionate grounds to theFdependents of Govt. servants who die while in service is not to beprovided as a matter of right. It should be given only in deservingcases where the family of deceased Govt. servant is left in indigentcircumstances requiring immediate means of subsistence. Theconcerned Administrative Departments would satisfy themselvesabout the indigent circumstances of the family before appointmentGon compassionate grounds is made.”

9. Paragraph 2 of the policy provides for its applicability, in orderof priority only to a widow, son or an unmarried daughter and in the caseof an unmarried government servant to the father, mother, brother orunmarried sister. Paragraph 2(a) reads as follows:H

“2) To whom the policy is applicable:- The employment assistanceon compassionate grounds will be allowed in order of priority onlyto widow or a son or an unmarried daughter (in case of unmarriedGovt. servant to father, mother brother and unmarried sister) of:

(a) a Govt. servant who dies while in service (including bysuicide) leaving his family in immediate need of assistance.”

10. Paragraph 4 of the policy stipulates that an appointment oncompassionate grounds can be made only to the lowest rung of Class-III and Class-IV posts carrying a prescribed pay scale. Paragraph 8 ofthe Policy stipulates that requests for the grant of employment assistanceshould be received within three years of the death of the governmentservant. However, where none of the children of the deceasedgovernment servant had attained majority at the time of death, the timelimit for receipt of a request for appointment will be postponed to theattainment of the age of twenty one years by the eldest son or unmarrieddaughter. Paragraph 8 is in the following terms:

“8) Belated requests for compassionate appointments: Requestsfor grant of employment assistance should be received in the Deptt.concerned within three years of the death of the Governmentservant. In case where none of the sons/daughters of the deceasedGovernment servant attain majority (age of 18 years) at the timeof the death of the Government servant, the time limit for receiptof request for employment assistance in department concernedwill be attainment of age of 21 years by the eldest son/un-marrieddaughter. No relaxation will be allowed in entertaining requestsbeyond the above age except in the case of sons/un-marrieddaughter/widow of deceased Govt. servants belonging to thedifficult areas as laid down in the Transfer Policy.

11. Paragraph 10 of the policy stipulates that the government hasintroduced a number of welfare measures, which have made a significantdifference to the financial position of families of government servantswho die in harness. Hence, the policy stipulates that benefits receivedby the family on account of those welfare measures “may be kept inview” while considering cases of employment assistance oncompassionate grounds. The policy proceeds to enumerate the welfaremeasures which, on the date of its formulation, were available to familiesof deceased employees. Paragraph 10(c) of the Policy, which has abearing in this case, is in the following terms:

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“(c) The provision of employment assistance was introduced in1958 and since then a number of welfare measures have beenintroduced by the Govt. which made significant difference in thefinancial position of the families of the Govt. servants dying inharness. The benefit received by the family on account of thesemeasures may be kept in view while considering cases ofemployment assistance on compassionate grounds. Suchmeasures, in brief, which are at present available to the familiesof the deceased employees are as under:

(i) Ad-hoc ex-gratia grant @ 10 times the emoluments whichthe Government servant was receiving before death, subjectto a minimum of Rs. 10,000/- and maximum of Rs. 30,000/-.

(ii) Grant of improved family pension.

(iii) Grant of death Gratuity as under:- Length of Rate of gratuityservice

a) Less than 2 times of emoluments. one year

b) One year 6 times of emoluments. or more but less than 5 years

c) 5 years or 12 times of emoluments

more but less than 20 years

d) 20 years Half of emoluments for every or more completed six monthly period of qualifying service subject to a maximum of 33 times emoluments provided that the amount of Death Gratuity shall in no case, exceed one lakh rupees.

(iv) Employees Group Insurance Scheme:- Financial assistanceto the family of the deceased Government servant as under:

(i) Class-IV employees-Rs. 10,000/-

(ii) Class-III employees-

Rs. 20,000/-

(iii) Class-II employees-Rs. 40,000/-

(iv) Class-I employees-

(v) In addition nearly 2/3[rd] of the amount contributed by theGovernment servant to the fund is also payable alongwith theabove amounts.

(vi) Encashment of the leave at the credit of the deceased Govt.servant subject to the maximum of 240 days.

(vii) Entitlement of additional amount equal to the average balancein the GPF of the deceased Govt. servant during the three yearsimmediately preceding the death of the subscriber subject to certaincondition under the Deposit Linked Insurance Scheme.”

12. The Policy has undergone amendment from time to time.

On 24 August 2002, a clarification was issued in regard to theexpression “indigent circumstances” used in the Policy. The clarificationprovided thus:

“……in this connection, references have been received fromcertain departments enquiring as to what constitutes “Indigentcircumstances” and also requesting that some uniform guidelineson the subject may be issued.

The matter has been considered carefully and it is noticedthat specific guidelines with respect to what would amount to“indigent circumstances” will not be possible or practicable.“Indigent circumstances” of a family are to be seen with specificreference to the assets i.e. immoveable and moveable propertyleft behind by the deceased income from various sources i.e.assets, house(s), pension, savings resulting to income employmentstatus and number of employees within the extended family etc.as also liabilities i.e. number of dependents specially unmarrieddaughters aged parents etc. left behind by the deceased, someconsideration towards the particular standard of life that the familyof the deceased might be used to during the life time of thegovernment employee etc. These are vital parameters that haveto be kept in mind before any decision is arrived at regardingadmissibility of employment to the ward/dependent of the deceasedemployee. As the above would show the question of “indigent A

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Acircumstances”, therefore has to be decided in each individualcase after obtaining detailed information about all the relevantaspects mentioned, so that employment on compassionate groundsis not given as matter of routine. While every effort should bemade to provide suitable employment in all deserving cases. Itshould always be kept in mind that employment on compassionateBground can not be claimed as a matter of right. Also the competentauthority should take full precautions to exclude the element of“pick and choose” while considering such cases.”

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13. Subsequently, an office memorandum dated 4 April 2008clarified that while considering whether the family of a deceasedCemployee is in indigent circumstances, no certificate of any kind is required.The clarification, inter alia, provided that:

“3. No indigent certificate of any kind is required as per instructions.Only indigent circumstances of the family are required to be lookedinto. This purpose can be achieved by examining the income ofDthe family. There is no such certificate prescribed by theGovernment nor should indigent certificate be demanded fromthe affected families.”

14. Another aspect of the Policy which requires mention is thefixation of income slabs. On 1 November 2008, as noticed by the HighECourt, the Secretary, Public Works Department, addressed acommunication to the Engineer-in-Chief adverting to a letter dated 29September 2008 of the Finance Department, bearing No. PBW-A-B(2)-34/2006. The income criteria which was prescribed by the FinanceDepartment was in the following terms:

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“The Income Criteria fixed by the Finance Department takes intoconsideration maximum family income ceiling fixed by the financeDeptt. for a family for 4 members as Rs. 1.00 lac and for smallerfamilies, the internal criteria is Rs. 25,000/- per person, per annum.Thus, if there is only one dependent, the overall income limit to beGconsidered is Rs. 25,000/- per annum. In case, there are twodependents of the deceased, the income of the applicant shouldnot exceed Rs. 50,000/- per annum. In case of three dependents,the overall income should not exceed Rs. 75,000/- per annum.

The overall income limit is Rs. 1.00 lac per annum, even if familysize is more than four. Gratuity, leave encashment, commutationamount are excluded for purpose of calculating family income butmonthly pension/family pension, Dearness Relief, Interim Reliefis included for calculation of yearly family income.”

15. The High Court has adverted to the fact that the income limitof Rs.1,00,000/- was subsequently revised to Rs.1,50,000/-. We havebeen informed during the course of the hearing by Mr. P.S. Patwalia,learned senior counsel appearing on behalf of the State, that this revisiontook place on 20 April 2011.

16. The High Court while dealing with the first issue which itframed for decision, held that the State is not entitled to take into accountfamily pension and other terminal benefits in determining whethercompassionate appointment should be granted to the dependant of adeceased employee.

17. In coming to this conclusion, the High Court has relied upon adecision of this Court in Govind Prakash VermaVs.Life InsuranceCorporation of India[1] and on two subsequent decisions in APSRTC,Musheerabad Vs. Sarvarunnisa Begum[2 ]and in Canara Bank Vs. M.Mahesh Kumar[3]. Having held that the State is not entitled to considerthe family pension and other terminal benefits received by the dependantsof the deceased employee, the High Court has held that the income slabwhich was prescribed by the Finance Department did not constitute anamendment of the Policy and that, consequently, it must be disregardedin deciding upon cases of compassionate appointment.

18. Assailing the view which has been taken by the High Court,Mr. P.S. Patwalia, learned senior counsel urged that the terms of thePolicy dated 18 January 1990 envisage the grant of employmentassistance to dependants of government servants, where an employeeof the State has died while in service, leaving the family in indigentcircumstances. The submission is that the genesis of compassionateappointment is that assistance should be rendered to the family of anemployee who dies in harness in a case where the family is in immediateneed of subsistence and is otherwise left in indigent circumstances.

1 (2005) 10 SCC 289

2 AIR 2008 SCW 198

3 (2015) 7 SCC 412

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2 AIR 2008 SCW 198

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ALearned senior counsel submitted that a consistent line of authority ofthis Court establishes the principle that there is no right to compassionateappointment, but only an entitlement to be considered in accordancewith the prevailing scheme or the rules framed by the employer, wheresuch a scheme exists. In the present case, it was urged that the Policy,as subsequently amended, categorically requires that whether the familyBis in indigent circumstances has to be determined by taking into accountthe assets left behind by the deceased, the income from various sourcesincluding pension and the nature of the liabilities including the number ofdependants. Hence, when terms of the Policy require that pensionarybenefits should be accounted for, it was urged that the High Court wasCnot justified in issuing a direction to ignore the Policy. At the same time,it has been submitted that the State does not take into account gratuity,leave encashment and commutation. However, monthly pension, familypension, dearness relief and interim relief are taken into consideration.The rationale for excluding one time payments is that, in the consideredview of the State, these do not enure to the benefit of the family over aDperiod of time. Be that as it may, it has also been urged that the decisionof the Finance Department to prescribe an income ceiling or slab cannotbe faulted. Learned senior counsel submitted that the prescription of anincome slab subserves a fair assessment of individual applications. Itreduces the element of discretion and and obviates a case by caseEanalysis of what should or should not be an income criterion for decidingthe indigent circumstances of a family. Finally, it was urged, on the factsof the present case, that the application which was submitted by therespondent in 2007 was dealt with by requiring the inclusion of the pensionwhich the family was receiving in the statement of income. Upon theletter dated 15 January 2008 of the Additional Secretary, the Writ PetitionFwas filed on 11 May 2015, well over seven years thereafter and nearlyten years after the death of the deceased employee. Hence, it wassubmitted that the ultimate direction issued by the High Court forconsideration of the application is manifestly misconceived. The purposeof compassionate appointment is to enable the family of a deceasedGemployee to tide over an immediate crisis caused by the death of theemployee. Hence, delay of this nature, in any event, should result in therejection of the application as well as the Writ Petition.

19. On the other hand, it has been submitted on behalf of therespondent that the issue of delay ought not to come in the way of the H

application for compassionate appointment being considered, havingregard to the fact that Paragraph 8 of the Policy contemplates that wherenone of the children of the deceased employee had attained the age ofmajority, the time limit for the submission of an application is extendedtill the attainment of the age of twenty one years by the eldest child.Though the respondent was not a minor on the date of the death of thedeceased employee, it was urged, by analogy of reasoning, that delay,by itself, ought not to result in the rejection of the application, particularlysince the upper age of recruitment in the State has been extended toforty five years. On the aspect of the inclusion of family pension, reliancewas placed on the decision of the High Court, which in turn is based oncertain judgments of this Court. Finally, on the income slab, it has beensubmitted that apart from the considerations which have weighed withthe High Court, it was not open to the Finance Department to amend thePolicy. Moreover, there is no basis for the income limit of Rs.1,00,000/-,which was prescribed by the Finance Department on 29 September2008 as enhanced to Rs.1,50,000/-. It was urged that as a result of theprescription of an unduly low income limit, the benefit of compassionateappointment will be denied to families which are indigent and are in needof employment.

20. While considering the rival submissions, it is necessary to bearin mind that compassionate appointment is an exception to the generalrule that appointment to any public post in the service of the State has tobe made on the basis of principles which accord with Articles 14 and 16of the Constitution. Dependants of a deceased employee of the Stateare made eligible by virtue of the Policy on compassionate appointment.The basis of the policy is that it recognizes that a family of a deceasedemployee may be placed in a position of financial hardship upon theuntimely death of the employee while in service. It is the immediacy ofthe need which furnishes the basis for the State to allow the benefit ofcompassionate appointment. Where the authority finds that the financialand other circumstances of the family are such that in the absence ofimmediate assistance, it would be reduced to being indigent, an applicationfrom a dependant member of the family could be considered. The termson which such applications would be considered are subject to the policywhich is framed by the State and must fulfill the terms of the Policy. Inthat sense, it is a well-settled principle of law that there is no right tocompassionate appointment. But, where there is a policy, a dependant A

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Amember of the family of a deceased employee is entitled to apply forcompassionate appointment and to seek consideration of the applicationin accordance with the terms and conditions which are prescribed bythe State.

21. The policy in the present case which was formulated on 18BJanuary 1990 categorically speaks of providing employment assistanceto dependants of government servants who have died while in service,“leaving their families in indigent circumstances”. The Policy, in otherwords, is designed to meet the needs of those families where the deathof a government servant has left them in indigent circumstances, requiringimmediate means of subsistence. The policy recognizes in ParagraphC10 that the benefits which are received by a family on account of welfaremeasures are required to be considered. Among them, the policystipulates that family pension and death gratuity are required to be takeninto account in assessing the financial circumstances of the family. ThePolicy does not preclude the dependants of a deceased employee from

Dbeing considered for compassionate appointment merely because theyare in receipt of family pension. What the Policy mandates is that thereceipt of family pension should be taken into account in consideringwhether the family has been left in indigent circumstances requiringimmediate means of subsistence. The receipt of family pension is,therefore, one of the considerations which is to be taken into account.EParagraph 10(c) of the Policy sets out the measures provided by theState which have a bearing on the financial need of the family.

22. In view of the clear terms of the Policy, we are of the viewthat the High Court was in error in issuing a mandamus to the Governmentto disregard its Policy. Such direction could not have been issued by theFHigh Court. The High Court has drawn sustenance in a issuingmandamus in the above terms from a decision of this Court in GovindPrakashVerma (supra). That was a case of compassionate appointmentwhere in the course of the proceedings before the High Court, a learnedSingle Judge had directed the Life Insurance Corporation, which wasGthe employer of the deceased employee, to make an enquiry and submita report on whether the members of the family engaged in gainfulemployment were also supporting the family of the deceased employee.This Court, in an appeal against the judgment of the High Court rejectingthe petition for compassionate appointment, observed that the officer who had enquired into the matter in pursuance of the order of the learnedSingle Judge completely omitted to furnish any report on the points whichwere required by the High Court to be investigated. The High Courtrejected the petition on the ground that the family was in receipt offamily pension and other amounts towards terminal benefits. Reversingthe view of the High Court, a two-Judge Bench of this Court held thus:

“6. In our view, it was wholly irrelevant for the departmentalauthorities and the learned Single Judge to take into considerationthe amount which was being paid as family pension to the widowof the deceased (which amount, according to the appellant, hasnow been reduced to half) and other amounts paid on account ofterminal benefits under the Rules...”

23. The decision in Govind Prakash Verma(supra) has beenconsidered subsequently in several decisions. But, before we advert tothose decisions, it is necessary to note that the nature of compassionateappointment had been considered by this Court in Umesh Kumar NagpalVs. State of Haryana[4]. The principles which have been laid down inUmesh Kumar Nagpal (supra) have been subsequently followed in aconsistent line of precedents in this Court. These principles areencapsulated in the following extract:

“2. ...As a rule, appointments in the public services should bemade strictly on the basis of open invitation of applications andmerit. No other mode of appointment nor any other considerationis permissible. Neither the Governments nor the public authoritiesare at liberty to follow any other procedure or relax thequalifications laid down by the rules for the post. However, to thisgeneral rule which is to be followed strictly in every case, thereare some exceptions carved out in the interests of justice and tomeet certain contingencies. One such exception is in favour ofthe dependants of an employee dying in harness and leaving hisfamily in penury and without any means of livelihood. In suchcases, out of pure humanitarian consideration taking intoconsideration the fact that unless some source of livelihood isprovided, the family would not be able to make both ends meet, aprovision is made in the rules to provide gainful employment toone of the dependants of the deceased who may be eligible for AB

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Asuch employment. The whole object of granting compassionateemployment is thus to enable the family to tide over the suddencrisis. The object is not to give a member of such family a postmuch less a post for post held by the deceased. What is further,mere death of an employee in harness does not entitle his familyto such source of livelihood. The Government or the publicBauthority concerned has to examine the financial condition of thefamily of the deceased, and it is only if it is satisfied, that but forthe provision of employment, the family will not be able to meetthe crisis that a job is to be offered to the eligible member of thefamily. The posts in Classes III and IV are the lowest posts inCnon-manual and manual categories and hence they alone can beoffered on compassionate grounds, the object being to relieve thefamily, of the financial destitution and to help it get over theemergency. The provision of employment in such lowest posts bymaking an exception to the rule is justifiable and valid since it isnot discriminatory. The favourable treatment given to suchDdependant of the deceased employee in such posts has a rationalnexus with the object sought to be achieved, viz., relief againstdestitution. No other posts are expected or required to be givenby the public authorities for the purpose. It must be rememberedin this connection that as against the destitute family of the deceasedEthere are millions of other families which are equally, if not moredestitute. The exception to the rule made in favour of the familyof the deceased employee is in consideration of the servicesrendered by him and the legitimate expectations, and the changein the status and affairs, of the family engendered by the erstwhileemployment which are suddenly upturned.”F

24. Specifically in the context of considering the financialcircumstances of the family of the deceased employee, several judgmentsof this Court have elaborated on the principles to be followed.

25. The decision in General Manager (D&PB) Vs. KuntiTiwary[5]Ginvolved an interpretation of an office memorandum dated 7 August1996 circulated to all banks in the light of the decision in Umesh KumarNagpal (supra). The Indian Banks Association adopted the directionsof this Court in the Scheme which was proposed for the appointment ofheirs of deceased employees. The Scheme contemplated that in order5(2004) 7 SCC 271H

to determine the financial condition of the family, the following amountswould have to be taken into account:

“7...(a) Family pension.

(b) Gratuity amount received.

(c) Employee’s/employer’s contribution to provident fund.

(d) Any compensation paid by the Bank or its Welfare Fund.

(e) Proceeds of LIC policy and other investments of the deceased employee.

(f) Income of family from other sources.

(g) Employment of other family members.

(h) Size of the family and liabilities, if any, etc.”

26. Eventually, this recommendation was accepted in the Scheme.In the light of these recommendations and the Scheme, this Courtobserved that where the family of a deceased employee was not leftwithout means of livelihood, the claim for compassionate appointmentcould not be sustained. It may be noted that in that case it was on areview of the overall financial position of the family, including amountsreceived towards terminal benefits that the decision was taken.

27. The decision of this Court in Punjab National Bank Vs. AshwaniKumarTaneja[6] followed the same principle. While reiterating the viewwhich was taken in KuntiTiwary (supra), this Court held that the Schemespecified the amounts which were required to be taken into consideration.

28. The decision in State Bank of India Vs. Somvir Singh[7] hasnoticed the scheme for appointment of dependants of deceasedemployees on compassionate grounds framed by the State Bank of India.The Court expressly held that the authorities were not in error in takingaccount of the terminal benefits, investments and the monthly familyincome including the family pension paid by the Bank. The view of thisCourt finds expression in the following extract:

“12. The competent authority while considering the applicationhad taken into consideration each one of those factors andaccordingly found that the dependants of the employee who diedin harness are not in penury and without any means of livelihood.The authority did not commit any error in taking the terminalbenefits and the investments and the monthly family incomeincluding the family pension paid by the Bank into 6 (2004) 7 SCC 265

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Aconsideration for the purposes of deciding as to whether thefamily of late Zile Singh had been left in penury or withoutany means of livelihood. The scheme framed by the appellantBank in fact mandates the authority to take those factors intoconsideration. The authority also did not commit any error intaking into consideration the income of the family from otherBsources viz. the agricultural land.”

(emphasis supplied)

29. In the view of this Court, the only issue to be considered waswhether the claim for compassionate appointment had been consideredCin accordance with the Scheme. The income of the family from allsources was required to be taken into consideration according to theScheme. This having been ignored by the High Court, the appeal filed bythe Bank was allowed.

30. The judgment of a Bench of two-Judges in Mumtaz YunusDMulani Vs. State of Maharashtra[8] has adopted the principle thatappointment on compassionate grounds is not a source of recruitment,but a means to enable the family of the deceased to get over a suddenfinancial crisis. The financial position of the family would need to beevaluated on the basis of the provisions contained in the Scheme. Thedecision in Govind Prakash Verma (supra) has been duly considered,Ebut the Court observed that it did not appear that the earlier bindingprecedents of this Court have been taken note of in that case.

31. In Union of IndiaVs. Shashank Goswami[9], this Courtconsidered a circular issued by the Office of the Comptroller and AuditorGeneral of India in terms of which the total income of the family from allFsources, including terminal benefits received, was required to be takeninto account. Income limits were specified in the circular for Group ‘B’,Group ‘C’ and Group ‘D’ posts. Taking note of the fact that a familypension has been authorized to the widow of the deceased employee,this Court held that the case of the dependant did not fall within theGincome limits meant for Group ‘C’ posts.

32. The same principle has been reiterated in another decision ofa Bench of two-Judges of this Court in State Bank of India Vs. SuryaNarain Tripathi[10]. While adverting to a submission of learned counsel 8 (2008) 11 SCC 3849 (2012) 11 SCC 307H10(2014) 15 SCC 739

based on the decision in Govind PrakashVerma (supra), this Court notedthus:

“8. He relied upon the judgment of this Court in Govind PrakashVerma v. LIC [Govind Prakash Verma v. LIC, (2005) 10 SCC289 : 2005 SCC (L&S) 590] where a view has been taken thatthe compassionate appointment cannot be refused on the groundthat another member of the family had received appropriateemployment and the service benefits were adequate. We mayhumbly state that this view runs counter to the view which wastaken earlier in Umesh Kumar Nagpal [Umesh Kumar Nagpalv. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930 :(1994) 27 ATC 537] which was not cited before the Court inGovind Prakash [Govind Prakash Verma v. LIC, (2005) 10SCC 289 : 2005 SCC (L&S) 590]. The subsequent two judgmentswhich were referred above also take the same view as in UmeshKumar Nagpal [Umesh Kumar Nagpal v. State of Haryana,(1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] .Mr Vikas Singh has drawn our attention to the judgment in SBI v.Somvir Singh [SBI v. Somvir Singh, (2007) 4 SCC 778 : (2007)2 SCC (L&S) 92] where the 1998 Scheme has been considered.

9. In all the matters of compassionate appointment it must benoticed that it is basically a way out for the family which isfinancially in difficulties on account of the death of the breadearner.It is not an avenue for a regular employment as such. This is infact an exception to the provisions under Article 16 of theConstitution. That being so, if an employer points out that thefinancial arrangement made for the family subsequent to the deathof the employee is adequate, the members of the family cannotinsist that one of them ought to be provided a comparableappointment. This being the principle which has been adopted allthroughout, it is difficult for us to accept the submission made onbehalf of the respondent.”

33. Now, it is in this background that it would be necessary toadvert to the decision in Canara Bank(supra). A Scheme forcompassionate appointment of 8 May 1993 was prevalent in CanaraBank when the employee died on duty in October 1998. Faced with the A

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Arejection of an application for compassionate appointment, the High Courtwas moved in a Writ Petition in which a learned Single Judge issued adirection for reconsideration of the claim for appointment. During thependency of the appeal before the Division Bench, the Scheme forcompassionate appointment was replaced by a new Scheme providingfor ex gratia in lieu of appointment. The main issue which fell forBconsideration before this Court was whether the subsequent Schemewhich was formulated in 2005 providing for ex gratia payment wouldgovern or whether the application would have to be disposed of on thebasis of the earlier Scheme of 1993. It may be noted that the applicationfor compassionate appointment in that case had been rejected on theCground that the family of the respondent was not in indigent circumstances,as required by the Scheme for compassionate appointment of 1993.34. Dealing with the applicability of the subsequent Scheme, aBench of two-Judges of this Court held, following the earlier decision inState Bank of India Vs. Jaspal Kaur[11], that the cause of action to beDconsidered for compassionate appointment arose when the earlier Schemewas in force. Hence, the claim could not be decided on the basis of thesubsequent Scheme which provided only for the payment of ex gratia.Moreover, as a matter of fact, the subsequent scheme was supersededin 2014 by reviving the Scheme for the provision of compassionateappointment.E

35. Hence, the issue which has been dealt with in Canara Bank(supra) is whether the application for grant of compassionate appointmentcould have been rejected on the basis of a scheme which had come intoforce after the date of submission of the application. That, as this Courtobserved, was the main question which fell for consideration. The BenchFof two-Judges, however, also noted that it was urged on behalf of theappellant – Bank that the family of the respondent was in receipt offamily pension. This, the Court held, was of no consequence inconsidering the application for compassionate appointment.

36. Learned senior counsel appearing on behalf of the appellantsGhas sought to distinguish the above observations, in the judgment in CanaraBank (supra), by submitting that it is not the case of the State of HimachalPradesh that mere receipt of family pension would disable an applicantfrom submitting an application for compassionate appointment or precludeconsideration of the claim. On the contrary, the submission which is H11 (2007) 9 SCC 571

urged is that the Scheme requires consideration of all relevant sourcesof income and hence, receipt of family pension would be one of thecriteria which would be taken into consideration in determining as towhether the family of the deceased employee is in indigent circumstances.

37. We find merit in this submission, for the simple reason, that itis in accord with the express terms of the Scheme of 18 January 1990,as modified by the State. The Scheme contemplates that paymentswhich have been received on account of welfare measures provided bythe State including family pension are to be taken into account. Plainly,the terms of the Scheme must be implemented.

38. For these reasons, we have come to the conclusion that theHigh Court was not justified, based on the decision in Govind PrakashVerma (supra) in issuing a direction to the State to act in a mannercontrary to the express terms of the Scheme which require that thefamily pension received by the dependants of the deceased employeebe taken into account.

39. That leads the Court to the next aspect of the matter relatingto the fixation of an income slab. In our view, the fixation of an incomeslab is, in fact, a measure which dilutes the element of arbitrariness.While, undoubtedly, the facts of each individual case have to be borne inmind in taking a decision, the fixation of an income slab subserves thepurpose of bringing objectivity and uniformity in the process of decisionmaking. The High Court was of the view that it was not open to theFinance Department to amend the Scheme. The circulars which areissued by the Finance Department cannot be construed to be anamendment of the policy. They are really clarificatory of the intent andpurpose of the Scheme. The circulars are explanatory, since they areintended to guide the decision maker on the concept of indigency whichis incorporated in the Scheme. In fact, as we have noted earlier, in thedecision of this court in Shashank Goswami(supra), the Court wasspecifically dealing with a circular of the Comptroller and Auditor Generalof India which had imposed income limits respectively for Group ‘B’,‘C’ and ‘D’ posts for the purpose of guiding the decision in the case ofcompassionate appointment. The fixation of income limits was notconstrued to be and is not an arbitrary exercise of power. However,what we find from the record of this case is that the income limit wasfixed (as the High Court observed) on 29 September 2008 by the letter A

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Aof the Finance Department. The income limit of Rs.1,00,000/- for afamily of four persons has since been revised to Rs.1,50,000/- on20 April 2011. Mr. P.S. Patwalia has, on instructions, stated before thisCourt that this ceiling has been reiterated on 27 July 2017. What shouldbe the appropriate income criterion is undoubtedly a matter of policy forthe State Government to determine. However, we would impress uponBthe State Government the need to periodically revise the income limitspreferably at intervals of three years. Inflation and the increase in thecost of living have an important bearing on financial exigencies faced byfamilies of serving as well as deceased employees. In fixing the incomecriteria for considering cases of compassionate appointment, it would beCappropriate if the State revisits the income limit at periodic intervals, aswe have indicated above. We clarify that it would be open to the Stateto revise the income limits at a frequency of less than three years, if theState is so advised.

40. Insofar as the individual facts pertaining to the respondent are Dconcerned, it has emerged from the record that the Writ Petition beforethe High Court was instituted on 11 May 2015. The application forcompassionate appointment was submitted on 8 May 2007. On 15 January2008 the Additional Secretary had required that the amount realized byway of pension be included in the income statement of the family. The respondent waited thereafter for a period in excess of seven years toEmove a petition under Article 226 of the Constitution. In Umesh KumarNagpal (supra), this Court has emphasized that the basis of a scheme ofcompassionate appointment lies in the need of providing immediateassistance to the family of the deceased employee. This sense ofimmediacy is evidently lost by the delay on the part of the dependant inFseeking compassionate appointment.

41. We are not impressed with the submission that delay shouldnot be taken into account since Paragraph 8 of the Scheme contemplatesthat in a situation where all the dependant children of the deceasedemployee have yet to attain the age of majority, the time limit forGsubmission of an application is extended until the first of the childrenattains the age of twenty one years. A case where each of the childrenis a minor falls in a different class altogether. This cannot be equatedwith a situation where a dependant of a deceased employee who was amajor on the date of death fails to submit an application within areasonable period of time from the death of the employee. This aspectH

of delay has been dealt with in other decisions of this Court, includingState of J&K Vs. Sajad Ahmed Mir[12] and Local AdministrationDepartment Vs. M. Selvanayagam[13].

42. We see no reason or purpose in now directing the State toreconsider its decision in the case of the respondent which would onlyresult in another round of fruitless litigation. In our view, the respondentis debarred from seeking compassionate appointment by the delay aswell as by the lapse of time which has taken place.

43. In the circumstances, we allow the appeal in the followingterms:

(i) The Writ Petition (CWP No.3652 of 2015) filed by therespondent before the High Court shall stand dismissed and the directionof the High Court for reconsideration of the application for compassionateappointment shall stand set aside;

(ii) The direction issued by the High Court to the appellants todesist from taking into account the family pension and other terminalbenefits is unsustainable in law and is accordingly set aside;

(iii) While we confirm the decision of the State Government to fixincome limits in order to satisfy the terms of eligibility for compassionateappointment, we expect that the State Government shall, in compliancewith the Policy, revisit the income limits at intervals of three years orearlier and consider whether a revision is warranted having regard tothe cost of living, inflation and other relevant facts and circumstances.

44. The appeal is disposed of in the above terms. No costs.

Ankit Gyan

Appeal disposed of.

12(2006) 5 SCC 766, para 1113 (2011) 13 SCC 42, para 11, 12 and 13

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