REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5101 OF 2005

BHAWANI PRASAD SONKAR — APPELLANT  

VERSUS

UNION OF INDIA & ORS. — RESPONDENTS

J U D G M E N T

D.K. JAIN, J.:

1. This appeal, by grant of special leave, is directed against the judgment  

dated 1st September, 2003 delivered by the High Court of Judicature at  

Allahabad at Lucknow, whereby the writ petition filed by the appellant  

herein, seeking compassionate appointment, has been dismissed on the  

ground that  he did  not  fulfil  the  conditions  envisaged in  the  Railway  

Board Circular dated 29th November, 2001.

2. Appellant’s  father,  Mr.  Prahladji  Sonkar,  was  posted  as  a  Guard  

Mail/Express,  North  Eastern  Railway  at  the  Lucknow  Junction.  

Respondent  No.  2  viz.  the  Senior  Divisional  Karmik  Adhikari,  North  

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Eastern  Railway  (N.E.R.),  Lucknow directed  the  appellant’s  father  to  

appear  before  the  Medical  Board  for  a  medical  examination.  

Accordingly, appellant’s father appeared before the Medical Board and  

was  declared  medically  unfit  in  A2,  A3,  B1  and  B2  categories  vide  

certificate dated 6th March, 1998. However, he was found fit in C1 and  

C2  categories  and  was  directed  to  appear  for  another  medical  

examination after six months.

3. Accordingly, appellant’s father again appeared for a medical examination  

and vide certificate dated 13th July, 1999, he was declared medically unfit  

as de-categorized employee. Nevertheless, he was found fit in category  

B1  and  below.  Thereafter,  on  9th August,  1999,  appellant’s  father  

appeared  before  the  Standing  Committee  which  decided  to  retire  him  

without  offering  him  any  alternate  employment,  as  stipulated  in  the  

service rules. Ultimately, appellant’s father was retired from service vide  

retirement order dated 30th August, 1999 issued by respondent   No. 3 viz.  

Divisional Railways Manager (Karmik), Lucknow, which stated that:

“Shri Prahlad Ji Sonkar, Guard Mail/Express in the pay scale of  (5500-9000) at Lucknow Junction who having been declared as  decategorised employee has been recommended by the standing  committee for retirement, is retired with immediate effect.”

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4. At this  juncture,  it  would be relevant  to  note  that  an appointment on  

compassionate ground in the Railways was governed by Railway Board  

Circular dated 22nd September, 1995 which provided that:

“1. In  terms  of  the  instructions  contained  in  para  I(iv)  of  Board’s  letter  No.  E(NG)III/78/RC-1/1 dated 07.04.1983 and  03.09.1983,  appointment  on  compassionate  grounds  is  permissible  where  a  Railway  employee  becomes  medically  decategorised for the job he is holding and no alternative job  with  the  same  employee  is  but  it  is  not  accepted  by  the  employee and he chooses to retire from service. 2. The  question  whether  appointment  on  compassionate  ground  can  be  considered  in  the  case  of  a  medically  decategorised  employee  who  does  not  wait  for  the  Administration  to  identify  an  alternative  job  for  him  but  chooses to retire under consideration of the Board.  3. After  careful  consideration  of  the  matter,  Board  have  decided  that  in  partial  modification  of  Board’s  letter  No.  E(NG)III/78/RC-1/1 dated 03.09.1983, in the case of medically  decategorised  employee,  compassionate  appointment  of  an  eligible  ward  may  be  considered  also  in  cases  where  the  employee  concerned  does  not  wait  for  the  administration  to  identify  an  alternative  job  for  him but  chooses  to  retire  and  makes a request for (sic) such appointment.”

5. It is also pertinent to mention here that on 29th April, 1999, the Railway  

Board issued a circular stating, inter alia, that in light of the mandate of  

the Persons with Disabilities (Equal Opportunities, Protection of Rights  

and Full Participation) Act, 1995, employees who become incapacitated  

from holding the post they were currently holding, but found eligible for  

retention in service in posts  corresponding to lower medical  category,  

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shall be offered alternative employment in the posts for which they are  

found suitable.  

6. Appellant’s  father  moved  an  application  dated  1st September,  1999,  

before respondent No. 2 requesting that his son be given compassionate  

appointment as a Class IV employee. Since there was no response to the  

said request, the father of the appellant moved another application, dated  

30th December, 1999, before respondent No. 3.  On 18th January, 2000,  

the  Railway  Board  issued  a  letter  stating  that  when  an  employee  is  

declared as medically unfit to perform the work which he was performing  

but is found to be fit to perform work in a lower category, any request for  

giving compassionate employment to such employee’s ward would not  

be considered if the employee opts for voluntary retirement after being  

de-categorized.  

7. Thereafter, on 29th November, 2001, the General Manager (Personnel),  

Gorakhpur issued a letter stating that in case of employees who opted for  

voluntary retirement after 29th April,  1999, the cases of wards of only  

totally incapacitated employees would be considered for appointment on  

compassionate  grounds.  In  pursuance  of  the  same,  respondent  No.  3  

issued a letter dated 15th February, 2002 to appellant’s father stating that  

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the  application for appointment of his son on compassionate ground was  

not found fit for consideration by the competent authority.  

8. Being aggrieved, the appellant preferred an Original Application before  

the Central Administrative Tribunal, Lucknow (for short “the Tribunal”).

9. Vide  order  dated  31st December,  2002,  the  Tribunal  dismissed  the  

Original Application, observing thus:

“I have considered the facts of the case and submissions made  on behalf  of the parties,  and I am of the view that the O.A.  deserves to be dismissed on the basis of the circular letter dated  29.11.2001  which  had  the  effect  of  superseding  the  earlier  instructions on the subject. Since, the applicant’s father was not  totally  incapacitated  and retired  on 30.8.99,  the  claim of  the  applicant for compassionate appointment has to be considered  in the light of the instructions of the Railway Board letter dated  29.11.2001  according  to  which  he  is  not  eligible  for  compassionate appointment.”

10.Still being aggrieved, the appellant filed a writ petition before the High  

Court.  As  afore-mentioned,  the  High  Court  has,  vide  the  impugned  

judgment, dismissed the petition, stating that:

“The Tribunal has recorded clear-cut finding to the effect that  the  petitioner  was  not  eligible  for  any  compassionate  appointment which (sic) could be offered as envisaged in the  policy  decision  of  the  Railway  Board  as  indicated  in  the  Circular dated 29.11.2001, were not satisfied. ………………………………………………………………….. Taking into  consideration  the  facts  and circumstances  of  the  case as brought on record in their totality no justifiable ground  

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for  any  interference  by  this  Court  can  be  said  to  have  been  made out while exercising the extraordinary jurisdiction under  Article 226 of the Constitution.”

11. Meanwhile, the appellant also preferred a review application before the  

Tribunal for reviewing its earlier order dated 31st December, 2002.  Vide  

order dated 5th March, 2004, the said application was dismissed by the  

Tribunal on the ground that the same was barred by limitation.

12.Hence, the present appeal.

13. Mr.  D.P.  Chaturvedi,  learned  counsel  appearing  on  behalf  of  the  

appellant, while assailing the impugned judgment, strenuously urged that  

having  retired  appellant’s  father  without  offering  him  a  suitable  

alternative  job,  despite  the  fact  that  he  was  found  medically  fit  in  

category B1, the respondents  were obliged to appoint  the appellant  in  

terms  of  instructions  dated  7th April,  1983  and  3rd September,  1983,  

which were reiterated in Circular dated 22nd September, 1995.  

14. Per contra, Mr. Ashok Bhan, learned counsel appearing on behalf of the  

respondents, contended that appellant’s father, having opted for voluntary  

retirement  in  terms  of  the  Railway  Board’s  letter  dated  18th January,  

2000, could not seek appointment of his son on compassionate ground.  

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Learned counsel urged that the appellant has not brought any material on  

record to substantiate his plea that his father was forced to retire.

15.Now, it is well settled that compassionate employment is given solely on  

humanitarian grounds with the sole object to provide immediate relief to  

the employee’s family to tide over the sudden financial crisis and cannot  

be claimed as a matter of right. Appointment based solely on descent is  

inimical to our Constitutional scheme, and ordinarily public employment  

must  be  strictly  on  the  basis  of  open  invitation  of  applications  and  

comparative  merit,  in  consonance  with  Articles  14  and  16  of  the  

Constitution  of  India.  No  other  mode  of  appointment  is  permissible.  

Nevertheless,  the  concept  of  compassionate  appointment  has  been  

recognized as an exception to the general rule, carved out in the interest  

of  justice,  in  certain  exigencies,  by  way  of  a  policy  of  an  employer,  

which partakes the character of the service rules.  That being so, it needs  

little  emphasis  that  the  scheme or  the  policy,  as  the  case  may be,  is  

binding both on the employer and the employee.  Being an exception, the  

scheme has to be strictly construed and confined only to the purpose it  

seeks  to  achieve.  We  do  not  propose  to  burden  this  judgment  with  

reference to a long line of decisions of this Court on the point.  However,  

in order to recapitulate the factors to be taken into consideration while  

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examining the claim for appointment on compassionate ground, we may  

refer to a few decisions.   

16. In  Umesh  Kumar  Nagpal  Vs.  State  of  Haryana  &  Ors.1,  while  

emphasising that a compassionate appointment cannot be  claimed as a  

matter  of  course  or  in  posts  above  Class  III  and  IV,  this  Court  had  

observed that:

“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 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  dependant 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  

1 (1994) 4 SCC 138

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legitimate expectations, and the change in the status and affairs,  of the family engendered by the erstwhile employment which  are suddenly upturned.”

17. Similarly, in Steel Authority of India Limited Vs. Madhusudan Das &  

Ors.2, this Court has observed that:

“This Court in a large number of decisions has held that the  appointment on compassionate ground cannot be claimed as a  matter of right. It must be provided for in the rules. The criteria  laid down therefor viz. that the death of the sole bread earner of  the  family,  must  be established.  It  is  meant  to provide  for  a  minimum  relief.  When  such  contentions  are  raised,  the  constitutional  philosophy  of  equality  behind  making  such  a  scheme be taken into consideration. Articles 14 and 16 of the  Constitution of India mandate that all eligible candidates should  be considered for appointment in the posts which have fallen  vacant.  Appointment  on  compassionate  ground  offered  to  a  dependant of a deceased employee is an exception to the said  rule.  It  is  a  concession,  not  a  right.”  (See  also:  General   Manager, State Bank of India & Ors. Vs. Anju Jain3.)

18. In V. Sivamurthy Vs. State of Andhra Pradesh & Ors.4, this Court while  

observing  that although appointment  in public service should be made  

strictly  on the basis of open invitation of applications and comparative  

merit,  having  regard  to  Articles  14  and  16  of  the  Constitution,  yet  

appointments  on compassionate grounds are well recognized  exception  

to the general rule, carved out in the interest of justice to meet certain  

2 (2008) 15 SCC 560 3 (2008) 8 SCC 475 4 (2008) 13 SCC 730

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contingencies,  highlighted  the  following two  well-recognised  

contingencies as exceptions to the general rule :

“(i) appointment on compassionate grounds to meet the sudden  crisis  occurring  in  a  family  on  account  of  the  death  of  the  breadwinner while in service.

(ii) appointment on compassionate ground to meet the crisis in  a  family  on  account  of  medical  invalidation  of  the  breadwinner.”

19.Thus,  while  considering  a  claim  for  employment  on  compassionate  

ground, the following  factors have to be borne in mind:

(i) Compassionate  employment  cannot  be  made  in  the  

absence  of  rules  or  regulations  issued  by  the  

Government or a public authority. The request is to be  

considered strictly in accordance with the governing  

scheme,  and  no  discretion  as  such  is  left  with  any  

authority to make compassionate appointment dehors  

the scheme.

(ii) An application for compassionate  employment  must  

be  preferred  without  undue  delay  and  has  to  be  

considered within a reasonable period of time.  

(iii) An appointment on compassionate ground is to meet  

the sudden crisis occurring in the family on account of  

the death or medical invalidation of the bread winner  

while  in  service.  Therefore,  compassionate  

employment cannot be granted as a matter of course  

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by  way  of  largesse  irrespective  of  the  financial  

condition  of  the  deceased/incapacitated  employee’s  

family at the time of his death or incapacity, as the  

case may be.

(iv) Compassionate  employment  is  permissible  only  to  

one of  the dependants  of  the deceased/incapacitated  

employee, viz.  parents,  spouse, son or daughter and  

not to all relatives, and such appointments should be  

only to the lowest category that is Class III and IV  

posts.

20. Tested  on  the  touchstone  of  these  broad  guidelines  governing  

appointment on compassionate  ground,  we are of  the opinion that  the  

appellant has made out a case for such appointment.  It is manifest that in  

terms of circular dated 29th November, 2001 only those employees, who  

have been totally  incapacitated  from performing any service after  29th  

April,  1999 were entitled to seek compassionate employment for their  

wards. In the instant case, appellant’s father retired on 30th August, 1999  

i.e. after 29th April, 1999, but was not offered alternative employment in  

terms of the Circular dated 29th April, 1999.  

21. The circular/letter  dated  29th November,  2001,  on which reliance  was  

placed  while  rejecting  appellant’s  claim  has  to  be  understood  in  its  

correct  perspective.   Evidently,  it  seeks  to  limit  the  benefit  of  

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compassionate employment to only those incapacitated employees who  

had been retired after 29th April, 1999, as in case of employees who were  

found fit for performing services in a lower category, Circular dated 29th  

April, 1999 would be applicable, and the Railways was bound to offer  

alternative employment to such employees. It flows therefrom that after  

29th April  1999,  those  employees  who  did  not  accept  the  alternative  

employment, and opted for voluntary retirement could not be given the  

benefit of compassionate employment for their wards.  

22. In  the  instant  case,  the  respondents  have  not  placed  any  material  on  

record to establish that the appellant’s father was offered any alternative  

employment in terms of Circular dated 29th April, 1999. On the contrary,  

it  appears  that  the  Standing  Committee  recommended  his  retirement.  

Having denied appellant’s father the benefit of Circular dated 29th April  

1999, the respondents cannot claim that Circular dated 29th November,  

2001 was applicable to appellant’s father, disentitling him from seeking  

employment on compassionate ground for his son as he was not totally  

incapacitated and had sought voluntary retirement. It  is clear from the  

retirement order dated 30th August, 1999 that the appellant’s father was  

retired  from service  pursuant  to  the  recommendation  of  the  Standing  

Committee.  

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23. In  light  of  the  fact  that  Circular  dated  29th November,  2001  was  not  

applicable in the case of appellant’s father, inasmuch as the benefit of the  

29th April, 1999 Circular was not extended to him, and he was made to  

retire from service, we are of the opinion that the earlier circular dated  

22nd September, 1995 is applicable in the instant case.  Consequently, the  

appellant would be entitled to employment on compassionate ground as  

the said Circular contemplates compassionate employment for the wards  

of those employees who have been medically de-categorized, and have  

retired, without being offered an alternative suitable job.  We are unable  

to  accept  the  plea  of  the  respondents  that  on  being  de-categorized,  

appellant’s father had opted for voluntary retirement.  

24. In light of the foregoing discussion, the appeal is allowed; the impugned  

judgment is set aside and it is directed that the appellant shall be granted  

employment on compassionate ground within three months of the receipt  

of copy of this judgment, subject to his complying with other eligibility  

conditions, as applicable on 1st September, 1999.  However, for all intents  

and purposes, he shall be deemed to be in service from the date of actual  

joining.

25.In the facts and circumstances of the case, there shall be no order as to  

costs.

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.……………………………………               (D.K. JAIN, J.)  

                             .…………………………………….              (H.L. DATTU, J.)

NEW DELHI; MARCH 11, 2011. ARS

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