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REPORTABLE Item No.8.28/3.4

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.977 OF 2019 (Arising out of SLP(C) No.28355 of 2016)

STATE OF HIMACHAL PRADESH AND ANR.      APPELLANT(s)

VERSUS

PARKASH CHAND RESPONDENT(s)

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J.

Leave granted.

This appeal arises from a judgment of a Divison Bench

of the High Court dated 6 October 2015.   

The father of the respondent who was working as a

Peon in the Revenue Department of the State, died on 4

January 1997, while in service.  On the date of the death

of his father, the respondent was a minor.  He attained

the age of majority on 17 November 2002.  The policy of

compassionate appointment framed by the State of Himachal

Pradesh,  inter alia, contains a stipulation that where

none of the children of a deceased government employee

have attained the age of majority at the time of the

death of the employee, an  application can be submitted

on the attainment of the age of twenty one years by the

eldest child.  This provision is contained in paragraph 8

of the policy dated 18 January 1990.  The application

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submitted by the respondent upon attaining the age of

majority was processed, but was eventually rejected on 25

April  2008  on  the  ground  that  the  brother  of  the

respondent  is  already  in  the  service  of  the  Himachal

Pradesh Electricity Board.  The fact that the brother of

the respondent is employed with a State undertaking is

not in dispute.   

In  the  writ  petition  before  the  High  Court,  the

respondent urged that his brother was living separately

and relied on a ration card and a certificate issued by

the Pradhan of the Gram Panchayat.  The fact that the

brother was residing separately for seventeen years was

admitted in the Writ Petition in the following terms:

“...Because  the  elder  brother  of  the petitioner was living separately and no family member of the petitioner is in Govt./Semi Govt. service,  which  fact  is  clear  from  the certificate issued by the competent authority, copy of which is annexed herewith as Annexure- P7.   The  ration  card  of  the  family  of  the petitioner clearly shows that the elder brother of  the  petitioner  is  not  residing  with  the petitioner,  copy  of  ration  card  is  annexed herewith as Annexure-P8.  The Pradhan concerned has also certified that the elder brother of the petitioner is residing separately for the last 17 years, which fact is clear from the certificate, copy of which is annexed herewith as Annexure-P9.”

The respondent, in the reliefs which were sought in

the  petition  under  Article  226  of  the  Constitution,

sought  a  direction  for  setting  aside  the  letter  of

rejection dated 25 April 2008 and for his appointment as

a Peon on compassionate grounds.  

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The Policy framed by the State Government contains

the following conditions of eligibility in paragrah 5(c):

“In all cases where one or more members of the family are already in government service or in  employment  of  autonomous  bodies/bodies/ boards/corporations  etc.  of  the  State/Central Government,  employment  assistance  should  not under  any  circumstances  be  provided  to  the second or third member of the family. In cases, however,  where  the  widow  of  the  deceased government  servant  represents  or  claims  that her employed sons/daughters are not supporting her,  the  request  of  employment  assistance should  be  considered  only  in  respect  of  the widow.  Even  for  allowing  compassionate appointment  to  the  widow  in  such  cases  the opinion  of  the  department  of  personnel,  and Finance  Department  should  specifically  be sought and the matter finally decided by the Council of Ministers.”

In the batch of cases which has been disposed of by

the High Court, one of the issues which were framed for

decision was as follows:

“(ix) In case one or more dependants of a deceased- employee is/are in service, though living sepa- rately, whether that can be made a ground to deny compassionate appointment to the other dependant of the deceased-employee?”

The policy contains a stipulation that where one or

more persons of the family are already in the employment

of the State Government or of autonomous bodies, Boards,

Corporations,  etc.  of  the  State  or  the  Central

Government, employment assistance should not be provided

to another member of the family.  However, an exception

is carved out in the case of the widow of the deceased

government  employee,  if  she  claims  that  her  employed

children  are  not  supporting  her.   Before  allowing

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compassionate appointment, the opinion of the Department

of Personnel and Finance Department is required to be

sought and the matter is left to the ultimate decision of

the Council of Ministers.   

The High Court while deciding issue (ix) has relied

upon  the  decision  of  this  Court  in  Govind  Prakash

Verma Vs. Life  Insurance  Corporation  of  India  1 more

specifically on the observation that the mere fact that

the  elder  brother  of  the  applicant  was  engaged  in

agricultural work and was also doing the work of a casual

painter, would not be construed as gainful employment.

This finding in  Govind Prakash Verma is purely on the

facts of that case and cannot be construed to be of any

relevance to the present case.

The High Court has observed that the State should

consider cases for appointment on compassionate basis by

dealing with the applications submitted by sons, or as

the  case  may  be,  daughters  of  deceased  government

employees,  even  though,  one  member  of  the  family  is

engaged in the service of the government or an autonomous

board or corporation.  This direction of the judgment of

the High Court virtually amounts to a  mandamus to the

State Government to disregard the terms which have been

stipulated  in  paragraph  5(c)  of  its  policy  dated  18

January 1990.  The policy contains a limited exception

which is available only to a widow of a deceased employee

1 (2005) 10 SCC289

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who seeks compassionate appointment even though one of

the  children  of  the  deceased  employee  is  gainfully

employed with the State.  The basis for this exception is

to deal with cases where the widow is not being supported

financially by her children.

In the exercise of judicial review under Article 226

of the Constitution, it was not open to the High Court to

re-write the terms of the policy.  It is well-settled

that compassionate appointment is not a matter of right,

but must be governed by the terms on which the State lays

down the policy of offering employment assistance to a

member of the family of a deceased government employee.

[Umesh Kumar Nagpal Vs. State of Haryana  2, General Manager

(D&PB) Vs. Kunti Tiwary  3,Punjab National Bank Vs. Ashwani

Kumar  Teneja  4  , State  Bank  of  India Vs.  Somvir  Singh  5,

Mumtaz Yunus Mulani Vs.  State of Maharashtra  6,Union of

India Vs. Shashank Goswami  7, State     Bank      of       India   Vs.

Surya        Narain      Tripathi  8   and    Canara Bank     Vs.     M. Mahesh

Kumar  9]

For the above reasons, we are of the view that the

judgment of the High Court is unsustainable.  The High

Court has virtually re-written the terms of the policy

2 (1994) 4 SCC 138 3 (2004) 7 SCC 271 4 (2004) 7 SCC 265 5 (2007) 4 SCC 778 6 (2008) 11 SCC 384 7 (2012) 11 SCC 307 8 (2014) 15 SCC 739 9 (2015) 7 SCC 412

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and  has  issued  a  direction  to  the  State  to  consider

applications  which  do  not  fulfill  the  terms  of  the

policy.  This is impermissible.   

That apart, we find from the record that the father

of the respondent died on 4 January 1997.  Though the

respondent applied on attaining majority, as permissible

under  the  policy,  the  application  was  rejected  on  25

April 2008.  The Writ Petition was filed nearly two years

and six months thereafter.  Apart from stating that the

elder  brother  of  the  respondent  who  was  engaged  in

government service was living separately, there were no

factual averments in support of the plea.  In any event,

as we have already held, the High Court was not justified

in  issuing  a  direction  which  would  breach  the  policy

framed by the State.   

For these reasons, we allow the appeal and set aside

the directions issued by the High Court in its impugned

judgment and order, as noted earlier.  In consequence,

the Writ Petition filed by the respondent shall stand

rejected.  No costs.

.............................J.  (DR. DHANANJAYA Y. CHANDRACHUD)

.............................J.  (HEMANT GUPTA)

NEW DELHI JANUARY 17, 2019