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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8635 OF  2012 (Arising out Special Leave Petition (Civil) No. 25985 of 2012)

The Chief Commissioner,  Central Excise and Customs, Lucknow & Ors. …Appellants

Versus

Prabhat Singh …Respondent  

O R D E R

JAGDISH SINGH KHEHAR, J.

1.  Leave granted.

2. Vijay Bahadur Singh, who was working as a sepoy in the Central  

Excise and Customs Department and was posted in the Customs Division  

at Varanasi, died in harness on 2.3.1996. His son Prabhat Singh applied  

for appointment on compassionate ground.  It seems, that he could not be  

appointed  as  such,  because  there  was  no  vacancy  available  to  

accommodate him. His application therefore remained pending.

3. Having waited long enough, Prabhat Singh filed Original Application  

no.  1459 of  2005 before the Central  Administrative  Tribunal,  Allahabad  

Bench, Allahabad (hereinafter referred to as the “CAT-Allahabad Bench”).  

In  his  Original  Application,  Prabhat  Singh prayed  for  a  direction  to  the  

respondents to appoint  him on compassionate grounds, since his father  

Vijay  Bahadur  Singh had  died  in  harness.   The  CAT-Allahabad  Bench

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disposed of  the application filed by Prabhat  Singh on 8.12.2005 with a  

direction  to  the  Commissioner,  Central  Excise,  Allahabad  to  take  a  

decision on the representation filed by Prabhat Singh seeking appointment  

on compassionate ground within three months.

4. In  compliance  with  the  directions  issued  by  the  CAT-Allahabad  

Bench  dated  8.12.2005,  the  Commissioner,  Central  Excise,  Allahabad,  

adjudicated  upon  the  claim  of  Prabhat  Singh  (for  appointment  on  

compassionate  ground),  by  an  order  dated  5.1.2006.  A  perusal  of  the  

aforesaid order inter alia reveals, that the policy instructions pertaining to  

appointment on compassionate ground envisage, that such appointments  

can be made only up to a maximum of 5% vacancies, arising under the  

direct  recruitment  quota (in  any group “C” or  group “D” posts).   It  also  

emerges from the order dated 5.1.2006, that the Ministry of Finance, vide  

its  letter  dated 19.7.2001,  restrained the authorities  from,  filling up any  

vacancies  by  way  of  direct  recruitment.   In  compliance  therewith,  the  

department had not made any appointment by way of direct recruitment  

since  December,  2000.   Accordingly,  in  the  absence  of  appointment  

against direct recruitment vacancies, no compassionate appointment could  

have been made.  This therefore constituted one of the reasons for not  

appointing Prabhat Singh on compassionate ground.  The order passed by  

the  Commissioner,  Central  Excise,  Allahabad  further  reveals,  that  the  

erstwhile cadres of Lower Divisional  Clerks and Upper Divisional  Clerks  

had  been  abolished.   The  existing  Lower  Divisional  Clerks  and  Upper  

Divisional  Clerks  were  merged  into  a  newly  created  cadre  of  Tax  

Assistants.   In  so  far  as  the  post  of  Tax  Assistant  is  concerned,  the  

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minimum  prescribed  qualification,  for  appointment  by  way  of  direct  

recruitment  thereto,  was  graduation.    Prabhat  Singh  could  not  be  

appointed on compassionate ground, against the post of Tax Assistant as  

he possessed the qualification  of  intermediate,  which is  lower  than the  

minimum  prescribed  qualification.   For  the  reasons  summarized  

hereinabove,  the  claim  of  Prabhat  Singh  for  appointment  on  

compassionate ground was rejected by the order  of  the Commissioner,  

Central Excise, Allahabad dated 5.1.2006.

5. Dissatisfied  with  the  order  dated  5.1.2006,  Prabhat  Singh  

approached the Central Administrative Tribunal, Lucknow Bench, Lucknow  

(hereinafter referred to as “the CAT- Lucknow Bench”), by filing Original  

Application  no.468  of  2006.   The  instant  Original  Application  filed  by  

Prabhat Singh was disposed of by CAT-Lucknow Bench by an order dated  

14.03.2008,  with  the  direction,  that  the  claim  of  Prabhat  Singh  for  

appointment on compassionate ground be re-considered  against the post  

of Tax Assistant.  While issuing the aforesaid direction,  it  was clarified,  

that the earlier order dated 5.1.2006 would not be taken into consideration,  

to the detriment of the applicant-Prabhat Singh.

6. In compliance with the directions issued by the CAT-Lucknow Bench  

dated  14.3.2008,  the  Additional  Commissioner,  (P&V),  Central  Excise,  

Allahabad, re-considered the claim of Prabhat Singh for appointment on  

compassionate ground.  It would be relevant to mention, that at the time of  

the  instant  consideration,  an  Office  Memorandum  issued  by  the  

Department of Personnel and Training dated 5.5.2003 (hereinafter referred  

to as “the O.M. dated 5.5.2003”) was taken into consideration.  The O.M.  

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dated 5.5.2003, spells out the policy, as also, the terms and conditions for  

appointment  on  compassionate  ground.   A  perusal  of  the  order  dated  

22.5.2008  passed  on  reconsidering  the  claim  of  Prabhat  Singh  (for  

appointment  on  compassionate  ground)  reveals,  that  the  O.M.  dated  

5.5.2003 inter alia expressly provided,  that appointment of a dependant  

family  member  on  compassionate  ground,  was  permissible  only  within  

three years of the death of the bread-winner  in harness.  The aforesaid  

order dated 22.5.2008, also noticed, that a Review  Committee constituted  

for the purpose of making appointments on compassionate ground, had re-

considered all  pending matters on 21.09.2007.   The Review Committee  

had excluded the name of Prabhat  Singh (and all  other candidates like  

him) from consideration, because more than three years expired after the  

death of his father (on 2.3.1996).  Apart from the reason expressed above,  

in the order dated 22.5.2008, it was noticed that there was no available  

vacancy in the cadre of Tax Assistant.  It was pointed out, that the cadre  

controlling authority had not released any further vacancy of Tax Assistant,  

which could be filled up by direct  recruitment.   Accordingly,  due to non  

availability  of  any  direct  recruitment  vacancy,   in  the  cadre  of  Tax  

Assistant, the claim of Prabhat Singh for such appointment, was held to be  

not  made out.   For  the reasons summarized hereinabove,  the claim of  

Prabhat  Singh,  for  appointment  on  compassionate  ground,  was  again  

rejected.

7. Even though the appellant in compliance with the directions issued  

by the CAT-Lucknow Bench, dated 14.3.2008, re-examined the claim of  

Prabhat Singh for appointment on compassionate ground, and accordingly,  

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passed the order dated 22.5.2008 (referred to in the foregoing paragraph),  

yet the appellants chose to assail the order passed by the CAT-Lucknow  

Bench dated 14.3.2008 (disposing of O.A. no.468 of 2006). The appellants  

accordingly, preferred Miscellaneous Writ Petition no.33452 of 2008 in the  

High Court of Judicature at Allahabad (hereinafter referred to as “the High  

Court”)  to  assail  the  order  passed  by  the  CAT-Lucknow  Bench,  dated  

14.3.2008, wherein the directions had been issued to the appellants to re-

consider the claim of Prabhat Singh, for appointment on compassionate  

grounds against the post of Tax Assistant.

8. The High Court disposed of the aforesaid miscellaneous writ petition  

vide order dated 9.8.2011. The operative part of the order passed by the  

High Court is being extracted hereunder:-

“Looking into this fact that now the post of Tax Assistant is to  be  filled  up  by  way  of  promotion,  the  order  of  Tribunal  is  modified to the extent that the case of respondent no.1 shall  now  be  considered  by  the  petitioner  in  the  grade  of  Tax  Assistant  or  any  other  post  falling  in  the  quota  of  direct  recruitment.  The respondent no.1 shall be given appointment  either in the department where his father was working or in  any other department of Government of India, expeditiously,  but  not  later  than six  months  from the date of  receipt  of  a  certified copy of the order of this Court.

With the aforesaid directions the writ petition is disposed of.”

The aforesaid  directions issued by the High Court  have been assailed,  

through the instant Special Leave Petition.

9. A perusal of the impugned order passed by the High Court reveals  

that  the High Court  expressly  noticed  the  fact,  that  in  the order  of  the  

Commissioner, Central Excise, Allahabad, dated 5.1.2006, the ground on  

which  the  claim  of  Prabhat  Singh  for  appointment  on  compassionate  

ground was declined, was expressed as non-availability of any vacancy,  

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because of creation of the new cadre of Tax Assistant (and the merger of  

the posts of  Lower  Division Clerk and Upper  Division Clerk  in the said  

cadre).  The Commissioner, Central Excise, consequent upon the abolition  

of  posts of  Lower Division Clerk and Upper Division Clerk declined the  

claim of Prabhat Singh for appointment against the post of Tax Assistant  

on compassionate ground,  for  the reasons that  he did not  possess the  

qualification  of  graduation,  which  was  the  prescribed  educational  

qualification, for appointment by way of direct recruitment, against the post  

of Tax Assistant.  The claim of Prabhat Singh, having been so considered,  

the High Court could not have passed the ultimate direction requiring the  

appellants  herein,  to yet  again  consider  the claim of  Prabhat  Singh for  

appointment  against  the  post  of  Tax  Assistant  or  against  any  other  

equivalent post in the same grade.   

10. Whether  or  not  the  claim  of  Prabhat  Singh  for  appointment  on  

compassionate ground could be considered, in terms of directions issued  

by the High Court, would truly depend on the OM dated 5.5.2003 which  

laid  down the policy,  as  also,  the terms and conditions  of  eligibility  for  

appointment  as  such.   It  is  evident  from the  narration  of  facts  noticed  

above, that the appellants while considering the claim of Prabhat Singh for  

appointment  on  compassionate  ground  (consequent  upon  directions  

issued  by  the  CAT-Allahabad  Bench  and  CAT-Lucknow  Bench)  vide  

orders dated 5.1.2006 and 22.5.2008, clearly expressed, that there was no  

direct  recruitment  vacancy  available,  to  consider  the  candidature  of  

Prabhat  Singh,  for  appointment  on  compassionate  ground.   In  the  

background  of  the  aforesaid  factual  position,  there  was  hardly  any  

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justification  for  the  High  Court  to  have  passed  the  directions  extracted  

above.   

11. It  would also be pertinent  to mention,  that  the High Court,  in  the  

impugned  order  dated  9.8.2011,  also  took  notice  of  the  fact,  that  the  

Ministry  of  Finance  vide  its  order  dated  19.7.2001,  had  prohibited  the  

appellants  from  filling  up  any  further  vacancies  by  way  of  direct  

recruitment.   In  the  orders  passed  by  the  appellants  herein,  it  was  

categorically noticed, that no vacancies by way of direct recruitment were  

actually filled up after December, 2000.  Since the OM dated 5.5.2003 laid  

down a quota of  5%, for appointment on compassionate ground, out of  

vacancies filled up by direct recruitment, the question of appointment on  

compassionate  ground  could  have  arisen,  only  if  the  appellants  had  

proceeded to make appointments by way of direct recruitment.  Since it is  

not a matter of dispute before us, that no appointment by way of direct  

recruitment was made by the appellants after December, 2000, it clearly  

emerges  that  the  quota  contemplated  in  the  OM  dated  5.5.2003  for  

appointment  on  compassionate  ground  had  not  become  available.  

Therefore, the question of appointment of Prabhat Singh at the hands of  

the appellants on compassionate ground, did not arise at all.   

12. The  High  Court  expressed,  that  ban  at  the  hands  of  Finance  

Department would not affect appointment on compassionate ground, the  

said  determination,  in  our  view,  was  rendered  without  taking  into  

consideration  the  fact,  that  the  quota  of  5%  would  arise  only  when  

appointments by direct recruitment were actually made.  Out of vacancies  

filled up by way of direct recruitment, 5% could then be earmarked towards  

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compassionate  appointment  under  the  OM  dated  5.5.2003.   Since  no  

direct  recruitment  was  made  by  the  appellants  after  December,  2000,  

clearly  no  vacancy  had  became  available  for  appointment  on  

compassionate  ground,  with effect  from December,  2000.  The direction  

issued  by  the  High  Court  dated  9.8.2011,  requiring  the  appellants  to  

consider  the  case of  Prabhat  Singh for  appointment  on compassionate  

ground,  was  without  reference  to  the  OM dated  5.5.2003,  wherein  the  

policy,  and  terms  and  conditions  for  appointment  on  compassionate  

ground, were laid down.   

13. Most importantly, the High Court did not take into consideration one  

of  the  most  significant  reasons  depicted  in  the  orders  passed  by  the  

appellants  (dated  5.1.2006 and 22.5.2008),  namely,  that  under  the OM  

dated  5.5.2003 appointment  on  compassionate  ground was permissible  

within a period of  three years from the date of  death of  the concerned  

employee in harness.  Vijay Bahadur Singh, the father of Prabhat Singh  

had died on 2.3.1996.  The candidature of Prabhat Singh, for appointment  

on compassionate ground, under the OM dated 5.5.2003 could have been  

considered  only  till  1.3.1999.   Thereafter,  Prabhat  Singh was  rendered  

ineligible  for  appointment  on  compassionate  ground.   Pointedly,  on  

aforesaid ground the Review Committee constituted by the appellants to  

consider the claims of dependents of employees who had died in harness,  

vide  an  order  dated  21.9.2007,  had  excluded  the  names  of  persons  

including Prabhat Singh, from the list of pending cases for appointment on  

compassionate  ground,  because they could  no longer  be appointed  on  

compassionate ground, since more than three years had expired after the  

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death of the concerned bread winner in harness.  Had the High Court or  

the Tribunals applied their mind to the aforesaid pre-condition for eligibility  

for appointment on compassionate ground, none of the directions issued  

by  the  High  Court  or  the  Tribunals  would  have  been  issued.   Such  

directions could have been issued only when the party approaching the  

Tribunal  or  the  High  Court  had  established  a  prima  facie  case,  by  

demonstrating  fulfillment  of  the  terms  and  conditions  stipulated  in  

rules/regulations/policy  instructions/office  memoranda,  relevant  for  such  

consideration.   Had  the  aforesaid  simple  exercise  been  carried  out,  it  

would not have been necessary to examine the matter again and again.  In  

the instant case, on a simple issue of compassionate appointment, there  

have been  repeated  rounds  of  litigation,  the  first  time before  the  CAT-

Allahabad Bench,  then before the CAT-Lucknow Bench,  and thereafter,  

before the High Court.   From the High Court  the matter has now been  

carried to this Court.  If only the pre-requisite eligibility of Prabhat Singh for  

appointment on compassionate ground had been examined, it would not  

have been necessary to examine the matter again, and yet again.  The  

instant observations have been recorded only to demonstrate how judicial  

time  at  different  levels  has  been  wasted  by  entertaining  a  frivolous  

litigation.  Surely, because Prabhat Singh had approached a judicial forum  

nine  years  after  the  death  of  his  father,  whereas,  appointment  on  

compassionate ground is permissible only within three years of the death  

of  the bread winner,  the matter  deserved to have been rejected at  the  

stage of first entertainment.

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14. We  are  constrained  to  record  that  even  compassionate  

appointments are regulated by norms.  Where such norms have been laid  

down, the same have to be strictly followed.  Where claims for appointment  

on compassionate ground, exceed, the available vacancies (which can be  

filled up by way of compassionate appointment), a selection process has to  

be adopted by the competent authority.  The said process, necessarily has  

to be fair,  and based on a comparative compassion gradient  of eligible  

candidates, or on some such like criterion having a nexus to the object  

sought to be achieved.  In other words, where there are two candidates but  

only one vacancy is available,  there should be a clear, transparent and  

objective criterion to determine which of the two should be chosen.  In the  

absence  of  a  prescribed  criteria,  a  fair  selection  process  has  to  be  

followed,  so  that,  the  exercise  carried  out  in  choosing  one  of  the  two  

candidates against a solitary available vacancy, can be shown to be based  

on reason, fair-play and non arbitrariness.   

15. The  very  object  of  making  provision  for  appointment  on  

compassionate ground, is to provide succor to a family dependent on a  

government employee, who has unfortunately died in harness.  On such  

death,  the family  suddenly  finds itself  in  dire  straits,  on  account  of  the  

absence of its sole bread winner.  Delay in seeking such a claim, is an  

ante thesis,  for  the purpose for  which compassionate  appointment  was  

conceived.   Delay in raising such a claim, is contradictory to the object  

sought to be achieved.  The instant controversy reveals that even though  

Vijay Bahadur Singh, the father of the applicant (Prabhat Singh) seeking  

appointment  on  compassionate  ground  had  died  on  2.3.1996,  Prabhat  

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Singh sought judicial redress, for the first time, by approaching the CAT-

Allahabad Bench in 2005.  By such time, there was no surviving right for  

appointment on compassionate ground under the OM dated 5.5.2003.  As  

already noticed above, appointment on compassionate ground under the  

OM dated 5.5.2003 is permissible within three years of the death of the  

bread winner in harness.  By now, sixteen years have passed by, and as  

such, there can be no surviving claim for compassionate appointment.

16. Courts  and  Tribunals  should  not  fall  prey  to  any  sympathy  

syndrome,  so  as  to  issue  directions  for  compassionate  appointments,  

without reference to the prescribed norms.  Courts are not supposed to  

carry  Santa  Claus’s  big  bag  on  Christmas  eve,  to  disburse  the  gift  of  

compassionate appointment, to all those who seek a court’s intervention.  

Courts and Tribunals must understand, that every such act of sympathy,  

compassion and discretion, wherein directions are issued for appointment  

on compassionate ground, could deprive a really needy family requiring  

financial support, and thereby, push into penury a truly indigent, destitute  

and  impoverish  family.   Discretion  is  therefore  ruled  out.   So  are,  

misplaced sympathy and compassion.   

17. For the reasons recorded hereinabove, the impugned order passed  

by  the  High  Court  dated  9.8.2011,  directing  the  appellants  to  appoint  

Prabhat Singh on compassionate ground, against a post in the grade of  

Tax Assistant or any other post falling in the quota of direct recruitment, is  

liable to be set aside.  The same is accordingly hereby set aside.

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18. The instant appeal is accordingly allowed.

   ..………………………..J.

           (Dr. B.S. Chauhan)

..…..……………………J. (Jagdish Singh Khehar)

New Delhi, November 30, 2012

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