DIRCTOR GENERAL OF POSTS Vs K.CHANDRASHEKAR RAO
Bench: SWATANTER KUMAR,SUDHANSU JYOTI MUKHOPADHAYA
Case number: C.A. No.-009049-009049 / 2012
Diary number: 12972 / 2009
Advocates: ARVIND KUMAR SHARMA Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9049 OF 2012 (Arising out of SLP (C) No.19871 of 2009)
Director General of Posts & Ors. …
Appellant
Versus
K. Chandrashekar Rao … Respondents
WITH
CIVIL APPEAL NO. 9050 OF 2012 (Arising out of SLP (C) No.19872 of 2009)
CIVIL APPEAL NO. 9051 OF 2012 (Arising out of SLP (C) No.21910 of 2009)
CIVIL APPEAL NO. 9053 OF 2012 (Arising out of SLP (C) No.23211 of 2009)
CIVIL APPEAL NO. 9054 OF 2012 (Arising out of SLP (C) No.23212 of 2009)
CIVIL APPEAL NO. 9055 OF 2012 (Arising out of SLP (C) No.23213 of 2009)
CIVIL APPEAL NO. 9056 OF 2012 (Arising out of SLP (C) No.23214 of 2009)
CIVIL APPEAL NO. 9057 OF 2012 (Arising out of SLP (C) No.25550 of 2009)
CIVIL APPEAL NO. 9058 OF 2012 (Arising out of SLP (C) No.25551 of 2009)
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CIVIL APPEAL NO. 9059 OF 2012 (Arising out of SLP (C) No.25553 of 2009)
CIVIL APPEAL NO. 9060 OF 2012 (Arising out of SLP (C) No.25559 of 2009)
CIVIL APPEAL NO. 9061 OF 2012 (Arising out of SLP (C) No.27784 of 2009)
J U D G M E N T
Swatanter Kumar, J.
1. Leave granted in all the SLPs.
2. By this common judgment we shall dispose of all the
above mentioned appeals which are directed against the
judgments of the High Court of Andhra Pradesh at
Hyderabad passed on different dates vide which the Court,
while relying upon its judgment dated 23rd July, 2008
passed in Writ Petition (C) No. 15820/2008, has dismissed
the writ petitions filed by the concerned government
authority.
3. Thus, it is not necessary for us to notice the facts of
each appeal separately. Though, the judgments are of
different dates, they are primarily based upon the 2
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judgment of the High Court dated 23rdJuly, 2008. For the
purpose of convenience, we would be referring to the facts
of SLP(C) No.19871/2009.
FACTS:
4. The Department of Personnel and Training (for short
‘DoPT’), Ministry of Personnel, Public Grievances and
Pension, Government of India, issued a memorandum
dated 9th October, 1998 containing the scheme for
compassionate appointment with an object to give a
source of employment to the dependent family members
of the government servant dying in harness or one who
has retired on medical grounds. This scheme was
declared on 9th October, 1998. The scheme stipulated that
the compassionate appointment could be made upto a
maximum of 5 per cent of the vacancies falling under
Direct Recruitment Quota in Group ‘C’ or ‘D’ post.
5. According to the appellants, the scheme of
compassionate appointment is always treated as an
exception to the general rule of recruitment.
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6. The father of the respondent was employed with the
appellants in a Group ‘D’ post. Unfortunately, the father
of the respondent died on 19th April, 2000.
7. On 16th May, 2001, the DoPT issued an office
memorandum in view of the policy of the Government of
India that fresh recruitment should be limited to one per
cent of the total strength of civilian staff. The basis for the
same appeared to be that about three per cent of the staff
retired every year and thus, the reduction in manpower
would reduce to 2% p.a. if fresh recruitment is limited to
1% p.a. This would achieve a deduction of ten percent in
five years. It was decided that each Ministry and
Department would formulate an Annual Direct
Recruitment Plan through the mechanism of Screening
Committee. Para 2.2 of this memorandum provided that
while preparing the Annual Recruitment Plan, the
concerned Screening Committee was to ensure that the
direct recruitment did not exceed one per cent of the total
sanctioned strength of the Department. Since three per
cent of the staff retired every year, this would translate
only to one-third of the Direct Recruitment vacancies
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occurring in each year being filled. Thus, the recruitment
would be limited to filling one-third of the vacancies of
Direct Recruitment arising in the year, subject to a further
ceiling, that it does not exceed one percent of the total
sanctioned strength of the Department. In terms of Para
2.4 of the memorandum, it was further stated that the
vacancies so cleared by the Screening Committee will be
filled up by applying rules for reservation, handicapped,
compassionate quota therein.
8. However, the Special Circle Relaxation Committee,
approved the names of the candidates in the category of
compassionate appointment on the basis of 5 per cent of
the existing vacancies occurring in the year 2000, 2001
and 2002. In face of the memorandum dated 16thMay,
2001, on or about 13th March, 2002, 69 names were
approved. On 4th July, 2002, the DoPT issued a
clarificatory memorandum that the five per cent quota for
compassionate appointment was to be calculated on the
basis of direct recruitment vacancies finally cleared by the
Screening Committee and not on the basis of the total
vacancies occurring in the Department. The respondent,
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on 6th August, 2002 was communicated the intimation with
regard to the approval of his name for appointment to
Group ‘D’ post, which he joined on 22nd August, 2002.
9. It is the case of the appellants now that the mistake
of appointment in excess of the prescribed quota was
detected and vide letter dated 12th March, 2003 it was
communicated that it was not possible to adjust the
candidates who were recommended in excess of the quota
because the recommendation for compassionate
appointment was to be made on the basis of five per cent
of the approved vacancies cleared by the Screening
Committee. In furtherance to this, a decision was taken
on 17th May, 2004 to select only the most indigent persons
against the available vacancies within the prescribed
ceiling of 5 per cent of the vacancies finally cleared by the
Screening Committee. In furtherance to the decision
taken by the competent authority, a meeting of the
Special Circle Relaxation Committee was convened and
appointment of total 21 candidates on the basis of five per
cent approved vacancies cleared by the Screening
Committee was approved. The remaining 48 candidates
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were terminated/not permitted to continue/dropped on
12th October, 2004. On 12th January, 2005, the appellants
noticed that the candidates, whose names had been
cleared for compassionate appointment on 13-15th March,
2002 or in the year 2002 were still temporary servants.
48 names were in excess of the quota, therefore, a notice
of termination under Rule 5 of the Central Civil Services
(Temporary Services) Rules, 1965 was issued and as
already noticed, the services of the 48 persons, whose
names were recommended in excess of the quota, were
terminated. These appointees, including the respondent
in the present appeal, challenged the said order of
termination before the Central Administrative Tribunal (for
short ‘CAT’). The CAT granted an interim stay during the
pendency of the hearing of the application vide its order
dated 8th February, 2005. The present appellants also
point out that two other applications, being OA No.
434/2005 and OA No. 761/2005 filed by similarly situated
employees, came to be dismissed vide orders of the CAT
dated 20th October, 2005 and 19th April, 2007 respectively.
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10. The application filed by the present respondent came
up before the CAT for hearing on 31st October, 2007.
While allowing the application of the respondent, the CAT
held that the appointment of the respondent-applicant
before it, was not liable to be terminated inter alia, but
primarily for the following reasons:-
“17. Therefore, it has been proved and established that the instructions dated 16.05.2001 in so far as it relates to compassionate appointment, frustrate the very object of the scheme for compassionate appointment. The scheme for compassionate appointment is a rehabilitation scheme. Therefore, the subsequent instructions, the application/operation of which frustrates the very object of the scheme or make the scheme not practically applicable, cannot be said to be valid instruction(s). Therefore, even if there had been any instructions of 2001 to consider the cases for compassionate appointment to the extent of 5% of the approved vacancies cleared by the screening committee (which could not be produced by the respondents before us), any appointment made without following such instructions cannot be said to be irregular appointment. More over, the administration should be more particular while considering the cases of compassionate appointment so that the persons appointed will not be terminated for any irregularity in the appointment. In no case, the family which has been provided with compassionate appointment
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to enable the family to meet with the indigent conditions caused due to the death of the employee would be put to distress again due to the fault of the administration. We may, at the cost of repetition, mention that (i) when the very instruction dated 16.05.2001 in so far as it relates to compassionate appointment, has been proved to be frustrating the very object of the scheme which is a rehabilitation scheme, even if any appointment is made without following such instruction, cannot or does not make the appointment irregular. (ii) The applicants who have been given appointment against 2000 vacancies following the instructions/scheme of 1998, their appointments do not, in any way, come within the purview of the DOPT instructions of 2001. Therefore, their appointments can in no way be terminated by applying the instructions of 2001. (iii) All the applicants who were considered and approved and were given compassionate appointments in 2002 cannot be terminated after they have worked for a considerable period. More particularly, when the scheme is a rehabilitation scheme and the 2001 instructions in so far it relates to compassionate appointments frustrates the very object of the scheme and make the scheme practically inapplicable as mentioned vide instructions cannot be said to be valid. For the reasons mentioned above, it will not be out of place to mention that in the case of Union of India and Others vs. K.P. Tiwari [2003 SCC (L&S) 1233] Hon’ble Supreme Court declined to interfere with the appointment made 5 years back and said that:
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“It is unnecessary in the present case to examine either questions of law or fact arising in the matter. Suffice to say that the respondent was appointment and has been in service for more than five years. It would not be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood.”
Since the appropriate instructions dated 14.06.2006 have already been issued to consider the cases for compassionate appointment to the extent of 5% of total vacancies against the direct recruitment quota, no further order is necessary to that effect. Therefore, such appointment which is made without following the said instructions cannot be terminated for the reasons mentioned above. 18. Therefore, in view of the above discussion, we hold that the respondents are not justified in issuing the impugned notice of termination/order of notice to delete the names of the applicants from the list of approved candidates. The applicants are entitled to continue in service on the strength of the appointment given to them. We, therefore, quash and set aside the impugned orders/notices issued by the respondents in all the applications. Interim order granted by this Tribunal stands absolute.”
11. Being aggrieved from the judgment of the
Tribunal, the appellant filed a writ petition, being W.P.(C)
No. 20655/2008 before the High Court. The High Court by
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that time had already disposed of Writ Petition (C) No.
15820 of 2008 filed by the Government Department
entitled Superintendent of Post Offices, Anantpur Division,
Anantpur vs. R.S. Madan Lal vide its judgment dated 23rd
July, 2008, the subject matter in SLP(C) No. 19872/2009
which is also listed along with the present bunch of
matters. While the High Court upheld the order of the
CAT, it not only accepted its reasoning but in addition
thereto held as under:-
“We do not find any error in the above reasoning adopted by the Tribunal. The respondent and others who were given appointments against vacancies arising in 2000 ignoring the scheme-1998 cannot be removed from service, pursuant to the instructions issued in 2001. Therefore, the candidates who were considered and given compassionate appointment in 2002 cannot be removed from service. At this stage, it is pat (sic-apt) to note that the Government taking into consideration the difficulties being faced by various Ministries in implementing the scheme for compassionate appointment issued certain instructions in memo dated, 14.6.2006. Para-3 of the said instructions reads thus:
“On a demand raised by Staff Side in the Standing Committee of the National Council (JCM) for review of the compassionate appointment policy, the matter has been carefully
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examined and taking into account the fact that the reduction in the number of vacancies for Group ‘C’ and ‘D’ posts (excluding technical pots) that have arisen in the year. Total vacancies available for making direct recruitment would be calculated by deducting the vacancies to be filled on the basis of compassionate appointment form the vacancies available for direct recruitment in terms of existing orders on optimization.”
From the above, it is clear that the vacancies meant for direct recruitment shall have to be calculated only after earmarking the vacancies required for compassionate appointment. In words, the direct recruitment vacancies shall have to be arrived at only after deducting the vacancies required for compassionate appointment under the scheme. The Tribunal while allowing the O.As, has also taken into consideration, the aforementioned instructions issued by the Government of India.
Admittedly, the notice of termination was issued on 24.11.2005, i.e., prior to the instructions of the Government of India, dated 14.6.2006. Therefore, the authorities have to reconsider the matter in the light of the instructions issued I memo, dated 14.5.2006. The Tribunal on a careful consideration of the relevant material on record has rightly come to the conclusion that the persons appointment in the year 2002 cannot be terminated from service. We find no error in the order of the Tribunal
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warranting interference by this Court in exercise of power of judicial review under Article 226 of the Constitution of India.
The writ petition fails and the same is accordingly dismissed, at the admission stage. No costs.”
12. As is clear from the above factual matrix of the case
that the issue revolves around the scope, interpretation
and applicability of the office memorandums issued by the
DoPT and other concerned authorities from time to time.
13. The Ministry of Personnel, Public Grievances and
Pension, Government of India had issued a circular on 9th
October, 1998 declaring its policy in the form of a Scheme
for Compassionate appointment under the Central
Government. This Scheme provided that the policy shall
be applicable to the family members of a government
servant who dies while in service including death by
suicide or is retired on medical grounds, but subject to
fulfilment of the conditions stated therein. It is not
necessary for us to go into other clauses of this Scheme
inasmuch as there is no dispute to other clauses except
the clause relating to prescription of percentage in relation
to direct recruitment for the purposes of compassionate
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appointment. It may be noticed that this Scheme of
Compassionate Appointment can be applied only to the
following;
(i) The post should be falling in Group ‘C’ and ‘D’
posts,
(ii) It should be in relation to direct recruitment as
specified.
14. The Scheme provided for power of relaxation with the
authorities in regard to age etc. Clause 7 of the Scheme
is the relevant clause with which we are concerned. The
same reads as under:-
“7. Determination/Availability of
Vacancies
(a) Appointment on compassionate grounds should be made only on regular basis and that too only if regular vacancies meant for that purpose are available.
(b) Compassionate appointments can be made upto a maximum of 5% of vacancies falling under direct recruitment quota in any Group ‘C’ or ‘D’ post. The appointing authority may hold back upto 5% of vacancies in
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the aforesaid categories to be filled by direct recruitment through Staff Selection Commission or otherwise so as to fill such vacancies by appointment on compassionate grounds. A person selected for appointment on compassionate grounds should be adjusted in the recruitment roster against the appropriate category viz. SC/ST/OBC/General depending upon the category to which he belongs. For example, if he belongs to SC category he will be adjusted against the SC reservation point, if he is ST/OBC he will be adjusted against ST/OBC point and if he belongs to General category he will be adjusted against the vacancy point meant for General category.
(c)While the ceiling of 5% for making compassionate appointment against regular vacancies should not be circumvented by making appointment of dependent family member of Government servant on casual/daily wage/ad-hoc/contract basis against regular vacancies, there is no bar to considering him for such appointment if he is eligible as per the normal rules/orders governing such appointments.
(d) The ceiling of 5% of direct recruitment vacancies for making compassionate appointment should not be exceeded by (sic) any other vacancy e.g. sports quota vacancy.
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(e) Employment under the scheme is not confined to the Ministry/Department/Office in which deceased/medically retired Government servant had been working. Such an appointment can be given anywhere under the Government of India depending upon availability of a suitable vacancy meant for the purpose of compassionate appointment.
(f) If sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Ministry/Department/Office to take up the matter with other Ministries/ Departments/ Offices of the Government of India to provide at any early date appointment on compassionate grounds to those in the waiting list.”
15. Before, we proceed to analyse the above clause as
well as examine its impact in view of the amended OMs of
the Government of India, we must notice that under
clause 16(c) of this Scheme, it was specifically noticed
that Scheme of Compassionate Appointment was
conceived by the Government of India as far back as
1958. Since then, a number of welfare schemes have
been introduced by the Government which has made a
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significant difference in the financial position of the
families of the government servants dying in
harness/retired on medical grounds.
16. Clause 16(d) further provides that a compassionate
appointment should not be denied or delayed merely on
the ground that there is re-organisation in the office of the
Ministry. The post should be made available to the
person concerned if there is a vacancy meant for
compassionate appointment and he or she is found
eligible and suitable under the Scheme. Not only this,
under clause 16(f), a compassionate appointment will
have precedence on absorption of surplus employees and
reorganisation of daily wage/casual worker with or without
temporary status.
17. Reverting to clause 7 of the Scheme, it is stipulated
under the Scheme that appointment on compassionate
grounds should be made only on regular basis and that
too if regular vacancies meant for that purpose are
available. The compassionate appointments can be made
upto a maximum of 5% of vacancies falling under direct
recruitment quota in any group ‘C’ or ‘D’ post. The
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appointing authority may hold back upto 5% of the
vacancies in the aforesaid categories to be filled by direct
recruitment through Staff Selection Commission or
otherwise so as to fill such vacancies by appointment on
compassionate grounds.
18. Clause 7(f) needs to be emphasised as it
contemplates that even if sufficient vacancies are not
available in any particular office to accommodate the
persons in the waiting list for compassionate appointment,
it is open to the administrative Ministry/Department/Office
to take up the matter with other
Ministries/Departments/Offices of the Government of India
to provide at an early date appointment on compassionate
grounds to those in the waiting list.
19. The above clauses clearly show that the Scheme of
1998 for compassionate appointment is a welfare activity
carried out by the Government of India. It is a benevolent
act on the part of the State. Keeping in view the dire
economic and social crisis to which the family of a
deceased government employee in Class ‘C’ or ‘D’ is
exposed, the government through this Scheme offers a
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helping hand. This is a voluntary act of generosity on the
part of the State. The generosity once extended in the
form of exercise of a subordinate legislative power by
formulating the said Scheme, will have the force of law. It
is enforceable to its limited extent and within its
prescribed parameters. The purpose of the 1998 Scheme
was to provide employment and preferably as part of the
regular cadre subject to availability of vacancies. Then
the Central Government issued Office Memorandum dated
16th May, 2001. This Memorandum did not refer to the
circular of 1998 as such, however, the essence of this
memorandum was that while presenting the Budget for
the year 2001-2002, the Finance Minister stated that “all
requirements of recruitment will be scrutinized to ensure
that fresh recruitment is limited to 1 per cent of total civil
staff strength. As about 3 per cent of the staff retire every
year, this will reduce the manpower by 2 per cent per
annum achieving a deduction of 10 per cent in five years
as announced by the Prime Minister.” Under clause 2.2 of
this Memorandum, it was further stated that while
preparing the Annual Recruitment Plans, the concerned
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screening committees would ensure that direct
recruitment does not in any case exceed 1 per cent of the
sanctioned strength of the department and accordingly
direct recruitment would be limited to 1/3rd of the direct
recruitment vacancies arising in the year subject to further
restriction that this will not exceed 1 per cent of the total
sanctioned strength of the department.
20. In furtherance to this Memorandum, the Government
of India, DoPT issued a clarification on the guidelines for
compassionate appointment to Group ‘C’ and ‘D’ posts on
4th July, 2002. It clarified that 5 per cent quota for
compassionate appointment is to be worked out with
reference to DR vacancies in each recruitment year finally
approved for filling up by the Screening Committee under
the optimisation policy of the Government contained in
Office Memorandum dated 16th May, 2001. In other
words, this Memorandum merely reiterated the
applicability of the Office Memorandum dated 16th May,
2001.
21. Finally on 14th June, 2006, ‘Scheme for
Compassionate Appointment under the Central
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Government Determination of Vacancies’ was clarified. In
this Office Memorandum, an attempt was made to clarify
the optimisation of direct recruitment to civilian posts as
contained in the Office Memorandum dated 16th May, 2001
to say that the recruitment does not exceed 1% of the
total sanctioned strength of the department. It noticed
that there had been a continuous reduction in the number
of vacancies for direct recruitment, thus, very few
vacancies or, in fact, no vacancies were available for
compassionate appointment. In light of this, the earlier
instructions including the instructions dated 9th October,
1998 stood modified to the extent mentioned therein.
22. From the above Scheme and Office Memorandum, it
is clear that where on the one hand, the State had
formulated a welfare scheme for compassionate
appointments, there on the other, because of limitations
of its financial resources it decided to take economic
measures by reducing the extent of appointment by direct
recruitment from the financial year 2001-2002. Both
these matters falling in the domain of the Government
and being matters of policy, the Court is hardly called
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upon to comment upon either of them. These are the
acts which fall in the domain of the State and do not call
for any judicial interference. All that we propose to hold is
that State has to abide by the Scheme it has floated for
compassionate appointment. The 1998 Scheme floated
by the Government should receive a liberal construction
and application as it is stated to be a social welfare
scheme and largely tilted in favour of the members of the
family of the deceased employee. The purpose appears to
be to provide them with recruitment on a regular basis
rather than circumvent the same by adopting any other
measure. That is the reason why the Government
specifically states in its Scheme that efforts should be
made to appoint the members of a distressed family to the
post provided he/she satisfies the other parameters stated
in the Scheme.
23. The appellant was admittedly appointed to the post,
in furtherance to the 1998 Scheme, in the year 2002
(while other appellants were appointed during the period
of 2001-2003). The instructions which specifically dealt
with the compassionate appointments were issued by
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office memorandum dated 4th July, 2002. Neither the
Memorandum dated 16th May, 2001 nor Memorandum
dated 4th July, 2002 stated that the restrictions sought to
be imposed were applicable retrospectively or even
retroactively. The rights of these persons had been
settled, the respondent and others had been appointed to
the posts and they had already worked in their respective
posts before the notice of termination were issued to them
at the end of year 2004. No data or material has been
placed by the government before us even to support the
contention that under the effect of the instructions of the
year 1998, these persons were appointed in excess of the
posts provided under the Scheme. Both these office
memorandums were expected to operate prospectively
and thus the rights which had been settled could not be
re-settled. The stand of the appellant that it was a
discrepancy or an error does not stand to any reason and
must be rejected. It is also undisputed before us that the
appointments of the respondent and others were made on
the basis of the vacancies existing against the year 2000
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when the instructions of 1998 were in operation, free of
any restriction.
24. In the meanwhile and as already noticed, another
office memorandum came to be issued on 14th June, 2006
amending the restrictions placed by the office
memorandum dated 16th May, 2001. The memorandum of
14th June, 2006 in fact requires as to how the vacancies
available for making direct recruitment are to be
calculated. It is not even the case of the appellants
before us that in face of the memorandums, this exercise
in terms of this memorandum was ever undertaken by the
appellants. It will be a contradictory stand, if on the one
hand, the appellants are permitted to treat office
memorandums including office memorandum dated 16th
May, 2001 as retrospective while on the other they treat
office memorandum dated 14th June, 2006 as
prospectively. The High Court in the operative part of its
judgment has clearly observed that the authorities have to
reconsider the matter in the light of instructions issued in
the memorandum dated 14th June, 2006. We are unable
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to find any error of jurisdiction or otherwise in the said
finding returned by the High Court.
25. Despite the fact that the judgment of the Central
Administrative Tribunal (for short “the Tribunal”) has been
upheld by the High Court, we are unable to contribute and
sustain the view taken by the Tribunal that the
Memorandum dated 16th May, 2001 frustrated the very
object of the Scheme for Compassionate Appointment and
on that ground alone, it was liable to be declared invalid.
As already noticed, both the matters are policy matters of
the State and for valid and proper reasons, without
infringing the spirit of Article 14 and 16 of the
Constitution. The State can frame its policy, where it is for
economic reasons, least such decision would be open to
judicial review to that extent. In the present case, there
is some ambiguity created by issuance of office
memorandums dated 16th May, 2001 and 14th June, 2006
and the enforcement of the former vide office
memorandum dated 4th July, 2002 in relation to the
implementation of Compassionate Appointment Scheme
of 1998. Thus, it is not only desirable but necessary that
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the competent authority should issue comprehensive
guidelines squarely covering the issue, but they cannot
tamper with the existing rights of the appointees.
26. To contend that the existing status should not be
disturbed by this Court, the learned counsel appearing for
the respondent heavily relied upon the judgment of this
Court in Union of India and Others v. K.P. Tiwari [(2003) 9
SCC 129], where the Court noticed in para 4 of the
judgment that “it is unnecessary in this case to examine
either questions of law or fact arising in the matter. Suffice
to say that the respondent has been appointed now and
has been in service for more than five years. We do not
think, it would be appropriate to disturb that state of
affairs by making any other order resulting in uprooting
the respondent from his livelihood”.
27. As is evident from this judgment, no law has been
stated by the Court, however it was stated that in the
facts of that case, it was not appropriate to disturb the
appointment at that stage. We may usefully refer to
another judgment of this Court in the case of Balbir Kaur
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and Anr. v. Steel Authority of India Ltd. and Others etc.
etc. [(2000) 6 SCC 493], where this Court held as under:-
“19. Mr Bhasme further contended that family members of a large number of the employees have already availed of the Family Benefit Scheme and as such it would be taken to be otherwise more beneficial to the employee concerned. We are not called upon to assess the situation but the fact remains that having due regard to the constitutional philosophy to decry a compassionate employment opportunity would neither be fair nor reasonable. The concept of social justice is the yardstick to the justice administration system or the legal justice and as Roscoe Pound pointed out the greatest virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law courts also to apply the law depending upon the situation since the law is made for the society and whatever is beneficial for the society, the endeavour of the law court would be to administer justice having due regard in that direction.”
28. In the above case, the Court has placed emphasis
upon the concept of socio-economic justice and granted
relief to the appellant and, in addition, directed
employment of one of the family members.
29. In view of the above settled position of law and the
fact that the memorandums could not be given
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retrospective effect, we do not consider it appropriate to
interfere with the judgment of the High Court. The spirit
of the Scheme was to provide relief to the family members
of the deceased persons and thus on the yardstick of
social justice, such relief cannot be withdrawn on the
ground of some alleged discrepancy which has not been
supported by any data, is unreasonable and therefore,
even unsustainable. The appellants must state
appropriate reasons and provide the expected data on
record if they expect the Court to come to a different
conclusion. As already noticed, the appellants have
miserably failed to place any such data on the basis of the
Memorandum dated 14th June, 2006.
30. For the reasons afore-stated, we dismiss all these
appeals and further issue the following directions;
A) The appointments of the respondents will not be
interfered with by the appellants on the strength of
the memorandum dated 4th July, 2002.
B) The Office Memorandum dated 16th May, 2001, 14th
June, 2006 and 4th July, 2002 have in relation to the
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1998 Scheme for Compassionate Appointment
caused some confusion on the one hand and while on
the other they have prejudicially affected the rights
of large number of heirs of the employees who died
in harness. Thus, we direct the appellants to issue
comprehensive, certain and unambiguous directions
which shall put an end to such unnecessary
controversies.
31. However, there shall be no orders as to costs.
……...….…………......................J. (Swatanter Kumar)
.…………..................................J. (Sudhansu Jyoti Mukhopadhaya) New Delhi, December 13, 2012
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