REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1045 OF 2006

UNION OF INDIA & ANR. … APPELLANTS VERSUS

B. KISHORE … RESPONDENT

J U D G M E N T

Aftab Alam, J.

1. This  appeal  by  special  leave  is  directed  against the judgment of the Division Bench of the  Madras High Court. By the judgment and order coming  under  appeal,  the  High  Court  directed  the  appellants to include the name of the respondent in  the  list  of  candidates  waiting  for  appointment  under the scheme of “compassionate appointments”.  2. The wife of the respondent K. Janaki died on  September  1,  1993,  while  giving  birth  to  their  

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second child. At that time she was working as a  Senior Accountant in the Office of the Directorate  of Postal Accounts, Madras. On September 21, 1993,  the respondent made an application for payment of  her  death-cum-terminal  dues.  A  rival  claim  was  raised  by  the  mother  of  the  deceased  but  the  respondent  was  able  to  obtain  the  succession  certificate and on that basis he got payment of a  sum of Rs.71,000/- as death-cum-retirement gratuity  of  his  deceased  wife,  in  addition  to  a  sum  of  Rs.2,998/- per month as family pension. 3. On January 11, 1994, the respondent made the  request for compassionate appointment but he was  informed by the concerned departmental authorities  that his claim for compassionate appointment would  be  considered  only  after  the  settlement  of  the  rival claims for payment of the death-cum-terminal  dues of K. Janaki. After payment of the monetary  dues to the respondent, his claim for appointment  on  compassionate  basis  was  taken  up  and  he  was  

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asked  to  submit  proof  of  passing  the  S.S.L.C.  examination. On July 9, 1996, the respondent made  another  representation  for  appointment  on  compassionate  grounds.  His  case  was  finally  considered by the Circle Selection Committee and he  was  informed  by  letter  dated  February  26,  1998,  that he was not found entitled to appointment on  compassionate grounds because he was not considered  to be “in indigent circumstances”.  4. The respondent challenged the decision of the  Circle  Selection  Committee  before  the  Central  Administrative  Tribunal,  Madras  Bench  in  O.A.  No.610/1998.  The  Tribunal  dismissed  the  O.A.  by  order dated July 16, 1998. Against the order passed  by the Tribunal, the respondent went to the Madras  High  Court  in  Writ  Petition  No.12225/1998.   A  Division Bench of the High Court allowed the Writ  Petition with the direction to the appellants to  include his name in the list of candidates waiting  for appointment on compassionate basis. The High  

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Court in the judgment coming under appeal observed  as follows:-

“In deserving cases even when there is  an  earning  member  in  the  family,  compassionate appointment may be offered,  if the family is found to be in distress,  with the prior approval of the Secretary  of the Department concerned.”

It went on to say: “The Scheme, therefore,  does not lay  

emphasise on the indigency as a criterion  for withholding or offering compassionate  appointment.  Compassionate appointment is  to be made as a result of the death of the  deceased official and when his/her family  is in immediate need of assistance.”

                           (emphasis added) It further said:

“Admittedly, there is a young son has  to  be  looked  after  and  brought  up.   It  cannot, therefore, be said that the family  is not in need of income. The fact that  the family receives pension also no ground  to  decline  appointment  nowhere  provides  that  in  case  where  the  family  is  paid  pension.”

5. On going through the judgment passed by the  High Court, it is evident that it is based on a  complete  misconception  about  the  scheme  of  

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compassionate  appointments.  Contrary  to  the  High  Court’s observation, indigence of the dependents of  the deceased employee is the first pre-condition to  bring the case under the scheme of “compassionate  appointment”.  The very purpose and object of the  scheme  is  to  provide  immediate  succour  to  the  family  of  an  employee  that,  on  his  death,  may  suddenly find itself in a state of destitution. If  the element of indigence and the need to provide  immediate  assistance  for  relief  from  financial  deprivation  is  taken  out  from  the  scheme  of  compassionate appointments, it would turn out to be  a reservation in favour of the dependents of an  employee who died while in service which would be  directly  in  conflict  with  the  ideal  of  equality  guaranteed  under  Articles  14  and  16  of  the  Constitution.  6. In State Bank of India v. Raj Kumar, (2010) 11  SCC 661, elucidating the nature of the scheme of  compassionate appointments this Court observed:

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“It  is  now  well  settled  that  appointment  on  compassionate  grounds  is  not a source of recruitment.  On the other  hand  it  is  an  exception  to  the  general  rule that recruitment to public services  should  be  on  the  basis  of  merit,  by  an  open  invitation  providing  equal  opportunity  to  all  eligible  persons  to  participate in the selection process.  The  dependants  of  employees,  who  die  in  harness, do not have any special claim or  right to employment, except by way of the  concession  that  may  be  extended  by  the  employer under the rules or by a separate  scheme,  to  enable  the  family  of  the  deceased to get over the sudden financial  crisis.   The  claim  for  compassionate  appointment is therefore traceable only to  the scheme framed by the employer for such  employment  and  there  is  no  right  whatsoever  outside  such  scheme.   An  appointment under the scheme can be made  only  if  the  scheme  is  in  force  and  not  after  it  is  abolished/withdrawn.  It  follows  therefore  that  when  a  scheme  is  abolished, any pending application seeking  appointment  under  the  scheme  will  also  cease to exist, unless saved.  The mere  fact that an application was made when the  scheme was in force, will not by itself  create  a  right  in  favour  of  the  applicant.”

7. The  Central  Government  issued  revised  and  consolidated  instructions  in  connection  with  the  scheme  of  compassionate  appointments  under  the  

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Central  Government  vide Office  Memorandum  dated  October 9, 1998.  Clause 1 of the Office Memorandum  describes the object of the Scheme as under:-

“The object of the Scheme is to grant  appointment on compassionate grounds to a  dependent  family  member  of  a  Government  servant dying in harness or who is retired  on  medical  grounds,  thereby  leaving  his  family in penury and without any means of  livelihood  to  relieve  the  family  of  the  Government  servant  concerned  from  financial destitution and to help it get  over the emergency.”                          (emphasis added) Clause 5 lays down the eligibility criterion  

and provides as follows:- “(a)The  family  is  indigent  and  

deserves  immediate  assistance  for  relief  from financial destitution; and  

(b) Applicant  for  compassionate  appointment shall be eligible and suitable  for  the  post  in  all  respects  under  the  provisions  of  the  relevant  Recruitment  Rules.”

                               (emphasis added) Clause 7 deals with availability of vacancies  

and sub-clause (b) provides as follows:-

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“(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 5% of 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.”

8. In the writ petition filed by the respondent  before the High Court it was stated that he was  unemployed. It was further stated that in August,  1988, one of his friends took him to Singapore in  search of employment. But there too the respondent  was unable to find a “lucrative job”. He came back  to India after staying there for about four years  in 1992. From the writ petition it appears that  though the respondent might have been struggling  for financial upliftment, he certainly cannot be  described as an indigent or destitute.   9. The case of the respondent clearly did not come  under  the  revised  and  consolidated  scheme  formulated by Office Memorandum dated October 9,  1998, that had come into force when his case came  

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up for consideration before the High Court. Even  otherwise and without any reference to the Office  Memorandum dated October 9, 1998, the case of the  respondent  does  not  meet  or  satisfy  the  basic  object and purpose of appointment on compassionate  grounds. 10. The  High  Court  was,  therefore,  in  error  in  passing the impugned order.  11. It  further  appears  that  an  important  and  relevant  fact  was  completely  missed  out  in  considering the respondent’s claim for appointment  on compassionate basis. From the records it appears  that in the verification appended to his OA before  the Tribunal he gave his age as 58 years in June,  1998.  Unless  his  age  is  wrongly  stated  in  the  verification to the OA, he would be 54 years of age  when  he  made  the  application  for  compassionate  appointment and 61 years old when the High Court  allowed his Writ Petition.  In other words, he was  already beyond the age of superannuation and there  

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was no question of his appointment on compassionate  ground or on any other grounds.   12. In light of the discussions made above, the  order coming under appeal is wholly unsustainable.  It is set aside.  The appeal is allowed but with no  order as to costs.  

………………………………………………J. (Aftab Alam)

………………………………………………J. (R.M. Lodha)

New Delhi; April 6, 2011.  

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