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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.988 OF 2019 (Arising out of SLP(C) No.7079 of 2016)

STATE OF HIMACHAL PRADESH & ANR.         APPELLANT(s)

VERSUS

SHASHI KUMAR RESPONDENT(s)

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J.

Leave granted.

The  present  appeal  arises  from  a  judgment  of  a

Division Bench of the High Court of Himachal Pradesh in a

batch  of  cases  which  dealt  with  the  issue  of

compassionate appointment.   

The  facts,  insofar  as  they  are  material  to  this

appeal, are thus:

The father of the respondent, who was working as HFO

in the Horticulture Department at Kullu, died on 29 March

2005  while  he  was  in  service.   On  8  May  2007,  the

respondent  submitted  an  application  for  compassionate

appointment.  The application was forwarded by the Deputy

Director,  Horticulture  at  Kullu  to  the  competent

authorities on 14 September 2007.  On 15 January 2008,

the Additional Secretary (Horticulture) to the Government

of  Himachal  Pradesh  addressed  a  communication  to  the

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Director  of  Horticulture  stating  that  the  income

certificate which had been forwarded together with the

application did not include the pension which the family

was  receiving  from  the  Government.   Accordingly,  the

Additional  Secretary  required  that  a  certificate  of

income, including pension, should be obtained from the

concerned SDM by the applicant.

The  Writ  Petition  before  the  High  Court  was

instituted  on  11  May  2015,  well  over  seven  years

thereafter.  The respondent has averred that he had made

representations, but to no avail, as a result of which he

was eventually  compelled to  initiate proceedings  under

Article 226 of the Constitution of India before the High

Court.  The High Court consolidated a batch of cases,

both  Letters  Patent  Appeals  and  Writ  Petitions  for

hearing.  They emanated from a Policy dated 18 January

1990  framed  by  the  State  Government  for  providing

employment  assistance  on  compassionate  grounds  to

dependants  of  government  servants  who  have  died  in

harness, leaving a family in need of assistance.  The

High Court, during the course of the judgment, framed as

many as nine issues which were in the following terms:

“(i) Whether the amount of family pension and other

retiral benefits, received by the family of the

deceased-employee, can be included in the family

income for denying the compassionate appointment?

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(ii) Which date would be relevant for applicability

of the Policy - whether the date of death of the

employee or the date when the application was

presented, for the first time, for seeking em-

ployment on compassionate ground or the date on

which the application came up for consideration

before the Authorities, and whether a claim for

compassionate appointment can be decided on the

basis of subsequent amendment, when the applica-

tion was presented prior to such amendment?

(iii) If an applicant was in lis and his case was

directed to be reconsidered, whether the claim of

such applicant is to be determined as per the

policy which was existing at the time of passing

the order or as per the policy which was in place

at the time of staking claim for the first time

or as per the policy existing at the time of con-

sideration?

(iv) Whether the applicant can claim appointment on

compassionate ground against a higher cadre, once

he had been appointed in the lower cadre?

(v) In case a person is appointed on contract ba-

sis, whether he is within his rights to seek ap-

pointment on regular basis?

(vi) In a given set of cases, in one case the ap-

pointment on compassionate ground has been of-

fered against a Class-III post and in other case,

the appointment has been offered to a Class-IV

post, whether it amounts to discrimination?

(vii) Whether a person can claim compassionate ap-

pointment after a considerable delay?

(viii) Whether requisite qualification or age can

be relaxed?

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(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?”

Insofar as the present appeal is concerned, the State

of Himachal Pradesh has contested the decision of the

High  Court  on  issues  (i)  and  (vii).   Hence,  for  the

purposes  of  this  appeal,  the  present  judgment  governs

only the above aspects of the case.

In order to appreciate the nature of the controversy,

it would be necessary to advert to the genesis of the

policy of the State Government.   

On  18  January  1990,  the  Government  of  Himachal

Pradesh  framed  a  policy  for  making  compassionate

appointments.  The policy indicates that it applies to

requests for the appointment of sons, daughters and near

relatives  of  government  servants  who  die  in  harness,

leaving  the  family  in  immediate  need  of  assistance.

Insofar as it is material, the Policy provides thus:

“Subject;- Appointment of sons/daughters/near re-

lations of a government servant who died in har-

ness, leaving his family in immediate need of as-

sistance.

...

1)  Policy:-  The  employment  on  compassionate

grounds to the dependents of Govt. servants

who die while in service is not to be provided

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as a matter of right. It should be given only

in  deserving  cases  where  the  family  of  de-

ceased Govt. servant is left in indigent cir-

cumstances requiring immediate means of sub-

sistence. The concerned Administrative Depart-

ments would satisfy themselves about the indi-

gent circumstances of the family before ap-

pointment on compassionate grounds is made.”

Paragraph  2  of  the  policy  provides  for  its

applicability, in order of priority only to a widow, son

or an unmarried daughter and in the case of an unmarried

government  servant  to  the  father,  mother,  brother  or

unmarried sister.  Paragraph 2(a) reads as follows:

“2) To whom the policy is applicable:- The employ-

ment assistance on compassionate grounds will

be allowed in order of priority only to widow

or a son or an unmarried daughter (in case of

unmarried  Govt.  servant  to  father,  mother

brother and unmarried sister) of:

(a) a Govt. servant who dies while in service

(including by suicide) leaving his family in

immediate need of assistance.”

Paragraph  4  of  the  policy  stipulates  that  an

appointment on compassionate grounds can be made only to

the lowest rung of Class-III and Class-IV posts carrying

a  prescribed  pay  scale.   Paragraph  8  of  the  Policy

stipulates  that  requests  for  the  grant  of  employment

assistance should be received within three years of the

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death of the government servant.  However, where none of

the  children  of  the  deceased  government  servant  had

attained majority at the time of death, the time limit

for  receipt  of  a  request  for  appointment  will  be

postponed  to  the  attainment  of  the  age  of  twenty  one

years by the eldest son or unmarried daughter.  Paragraph

8 is in the following terms:

“8)  Belated  requests  for  compassionate  appoint-

ments: Requests for grant of employment assis-

tance  should  be  received  in  the  Deptt.  con-

cerned within three years of the death of the

Government servant. In case where none of the

sons/daughters of the deceased Government ser-

vant attain majority (age of 18 years) at the

time  of  the  death  of  the  Government  ser-

vant, the time limit for receipt of request for

employment  assistance  in  department  concerned

will be attainment of age of 21 years by the

eldest  son/un-married  daughter.  No  relaxation

will be allowed in entertaining requests beyond

the above age except in the case of sons/un-

married daughter/widow of deceased Govt. ser-

vants belonging to the difficult areas as laid

down in the Transfer Policy.

Paragraph  10  of  the  policy  stipulates  that  the

government has introduced a number of welfare measures,

which have made a significant difference to the financial

position of families of government servants who die in

harness.   Hence,  the  policy  stipulates  that  benefits

received  by  the  family  on  account  of  those  welfare

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measures “may be kept in view” while considering cases of

employment  assistance  on  compassionate  grounds.   The

policy proceeds to enumerate the welfare measures which,

on  the  date  of  its  formulation,  were  available  to

families of deceased employees.  Paragraph 10(c) of the

Policy,  which  has  a  bearing  in  this  case,  is  in  the

following terms:

“(c) The provision of employment assistance was

introduced in 1958 and since then a number of

welfare measures have been introduced by the

Govt.  which  made  significant  difference  in

the financial position of the families of the

Govt. servants dying in harness. The benefit

received by the family on account of these

measures may be kept in view while consider-

ing cases of employment assistance on compas-

sionate  grounds.  Such  measures,  in  brief,

which are at present available to the fami-

lies of the deceased employees are as under:

(i) Ad-hoc ex-gratia grant @ 10 times the

emoluments  which  the  Government  servant

was receiving before death, subject to a

minimum of Rs. 10,000/- and maximum of Rs.

30,000/-.

(ii) Grant of improved family pension.

(iii) Grant of death Gratuity as under:-

Length  of service

Rate of gratuity

a)  Less  than one year

2 times of emoluments.

b)  One  year or  more  but

6 times of emoluments.

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less  than  5 years

c) 5 years or more but less than 20 years

12 times of emoluments

d)  20  years or more

Half  of  emoluments  for every  completed  six monthly  period  of  quali- fying  service  subject  to a  maximum  of  33  times emoluments  provided  that the amount of Death Gra- tuity  shall  in  no  case, exceed one lakh rupees.

(iv) Employees Group Insurance Scheme:- Fi-

nancial  assistance  to  the  family  of  the

deceased Government servant as under:

(i) Class-IV employees- Rs. 10,000/-

(ii) Class-III employees- Rs. 20,000/-

(iii) Class-II employees- Rs. 40,000/-

(iv) Class-I employees- Rs. 80,000/-

(v) In addition nearly 2/3rd of the amount con-

tributed  by  the  Government  servant  to  the

fund  is  also  payable  alongwith  the  above

amounts.

(vi) Encashment of the leave at the credit of

the  deceased  Govt.  servant  subject  to  the

maximum of 240 days.

(vii) Entitlement of additional amount equal to

the average balance in the GPF of the de-

ceased Govt. servant during the three years

immediately preceding the death of the sub-

scriber  subject  to  certain  condition  under

the Deposit Linked Insurance Scheme.”

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The Policy has undergone amendment from time to time.

On  24  August  2002,  a  clarification  was  issued  in

regard to the expression “indigent circumstances” used in

the Policy.  The clarification provided thus:

“……in this connection, references have been re-

ceived  from  certain  departments  enquiring  as  to

what constitutes “Indigent circumstances” and also

requesting that some uniform guidelines on the sub-

ject may be issued.

The matter has been considered carefully and it

is noticed that specific guidelines with respect to

what would amount to “indigent circumstances” will

not be possible or practicable.  “Indigent circum-

stances” of a family are to be seen with specific

reference to the assets i.e. immoveable and move-

able property left behind by the deceased income

from various sources i.e. assets, house(s), pen-

sion, savings resulting to income employment status

and number of employees within the extended family

etc. as also liabilities i.e. number of dependents

specially  unmarried  daughters  aged  parents  etc.

left behind by the deceased, some consideration to-

wards the particular standard of life that the fam-

ily of the deceased might be used to during the

life time of the government employee etc. These are

vital parameters that have to be kept in mind be-

fore any decision is arrived at regarding admissi-

bility of employment to the ward/dependent of the

deceased  employee.  As  the  above  would  show  the

question of “indigent circumstances”, therefore has

to be decided in each individual case after obtain-

ing detailed information about all the relevant as-

pects mentioned, so that employment on compassion-

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ate  grounds  is  not  given  as  matter  of  routine.

While every effort should be made to provide suit-

able employment in all deserving cases. It should

always be kept in mind that employment on compas-

sionate ground can not be claimed as a matter of

right.  Also  the  competent  authority  should  take

full precautions to exclude the element of “pick

and choose” while considering such cases.”

Subsequently, an office memorandum dated 4 April 2008

clarified that while considering whether the family of a

deceased  employee  is  in  indigent  circumstances,  no

certificate of any kind is required.  The clarification,

inter alia, provided that:

“3. No indigent certificate of any kind is re- quired as per instructions. Only indigent cir- cumstances of the family are required to be looked into. This purpose can be achieved by examining the income of the family. There is no such certificate prescribed by the Govern- ment nor should indigent certificate be de- manded from the affected families.”

Another aspect of the Policy which requires mention

is the fixation of income slabs.  On 1 November 2008, as

noticed by the High Court, the Secretary, Public Works

Department, addressed a communication to the Engineer-in-

Chief adverting to a letter dated 29 September 2008 of

the Finance Department, bearing No.  PBW-A-B(2)-34/2006.

The income criteria which was prescribed by the Finance

Department was in the following terms:

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“The  Income  Criteria  fixed  by  the  Finance Department takes into consideration maximum family income ceiling fixed by the finance Deptt. for a family for 4 members as Rs. 1.00 lac and for smaller families, the internal criteria  is  Rs.  25,000/-  per  person,  per annum. Thus, if there is only one dependent, the overall income limit to be considered is Rs. 25,000/- per annum. In case, there are two dependents of the deceased, the income of the applicant should not exceed Rs. 50,000/- per annum. In case of three dependents, the overall income should not exceed Rs. 75,000/- per annum. The overall income limit is Rs. 1.00 lac per annum, even if family size is more than four. Gratuity, leave encashment, commutation amount are excluded for purpose of  calculating  family  income  but  monthly pension/family  pension,  Dearness  Relief, Interim Relief is included for calculation of yearly family income.”

The  High  Court  has  adverted  to  the  fact  that  the

income limit of Rs.1,00,000/- was subsequently revised to

Rs.1,50,000/-.  We have been informed during the course

of  the  hearing  by  Mr.  P.S.  Patwalia,  learned  senior

counsel  appearing  on  behalf  of  the  State,  that  this

revision took place on 20 April 2011.   

The High Court while dealing with the first issue

which it framed for decision, held that the State is not

entitled to take into account family pension and other

terminal  benefits  in  determining  whether  compassionate

appointment  should  be  granted  to  the  dependant  of  a

deceased employee.

In  coming  to  this  conclusion,  the  High  Court  has

relied upon a decision of this Court in  Govind Prakash

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Verma Vs. Life Insurance Corporation of India  1 and on two

subsequent  decisions  in  APSRTC,

Musheerabad Vs. Sarvarunnisa  Begum  2 and  in  Canara

Bank Vs. M. Mahesh Kumar  3.  Having held that the State is

not entitled to consider the family pension and other

terminal  benefits  received  by  the  dependants  of  the

deceased  employee,  the  High  Court  has  held  that  the

income  slab  which  was  prescribed  by  the  Finance

Department did not constitute an amendment of the Policy

and  that,  consequently,  it  must  be  disregarded  in

deciding upon cases of compassionate appointment.

Assailing the view which has been taken by the High

Court, Mr. P.S. Patwalia, learned senior counsel urged

that  the  terms  of  the  Policy  dated  18  January  1990

envisage the grant of employment assistance to dependants

of government servants, where an employee of the State

has died while in service, leaving the family in indigent

circumstances.  The submission is that the genesis of

compassionate appointment  is that  assistance should  be

rendered to the family of an employee who dies in harness

in  a  case  where  the  family  is  in  immediate  need  of

subsistence  and  is  otherwise  left  in  indigent

circumstances.  Learned senior counsel submitted that a

consistent line of authority of this Court establishes

the principle that there is no right to compassionate

1 (2005) 10 SCC289 2 AIR 2008 SCW 198 3 (2015) 7 SCC 412

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appointment, but only an entitlement to be considered in

accordance with the prevailing scheme or the rules framed

by the employer, where such a scheme exists.  In the

present  case,  it  was  urged  that  the  Policy,  as

subsequently amended, categorically requires that whether

the  family  is  in  indigent  circumstances  has  to  be

determined by taking into account the assets left behind

by  the  deceased,  the  income  from  various  sources

including  pension  and  the  nature  of  the  liabilities

including the number of dependants.  Hence, when terms of

the  Policy  require  that  pensionary  benefits  should  be

accounted for, it was urged that the High Court was not

justified in issuing a direction to ignore the Policy.

At the same time, it has been submitted that the State

does not take into account gratuity, leave encashment and

commutation.  However, monthly pension, family pension,

dearness  relief  and  interim  relief  are  taken  into

consideration.   The  rationale  for  excluding  one  time

payments is that, in the considered view of the State,

these do not enure to the benefit of the family over a

period of time.  Be that as it may, it has also been

urged  that  the  decision  of  the  Finance  Department  to

prescribe an income ceiling or slab cannot be faulted.

Learned senior counsel submitted that the prescription of

an income slab subserves a fair assessment of individual

applications.  It reduces the element of discretion and

and obviates a case by case analysis of what should or

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should  not  be  an  income  criterion  for  deciding  the

indigent  circumstances  of  a  family.   Finally,  it  was

urged,  on  the  facts  of  the  present  case,  that  the

application which was submitted by the respondent in 2007

was dealt with by requiring the inclusion of the pension

which  the  family  was  receiving  in  the  statement  of

income.  Upon the letter dated 15 January 2008 of the

Additional Secretary, the Writ Petition was filed on 11

May 2015, well over seven years thereafter and nearly ten

years after the death of the deceased employee.  Hence,

it was submitted that the ultimate direction issued by

the High Court for consideration of the application is

manifestly misconceived.   The  purpose of  compassionate

appointment  is  to  enable  the  family  of  a  deceased

employee to tide over an immediate crisis caused by the

death of the employee.  Hence, delay of this nature, in

any  event,  should  result  in  the  rejection  of  the

application as well as the Writ Petition.

On the other hand, it has been submitted on behalf of

the respondent that the issue of delay ought not to come

in  the  way  of  the  application  for  compassionate

appointment being considered, having regard to the fact

that Paragraph 8 of the Policy contemplates that where

none  of  the  children  of  the  deceased  employee  had

attained  the  age  of  majority,  the  time  limit  for  the

submission  of  an  application  is  extended  till  the

attainment of the age of twenty one years by the eldest

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child.  Though the respondent was not a minor on the date

of the death of the deceased employee, it was urged, by

analogy of reasoning, that delay, by itself, ought not to

result in the rejection of the application, particularly

since the upper age of recruitment in the State has been

extended  to  forty  five  years.   On  the  aspect  of  the

inclusion of family pension, reliance was placed on the

decision of the High Court, which in turn is based on

certain judgments of this Court.  Finally, on the income

slab,  it  has  been  submitted  that  apart  from  the

considerations which have weighed with the High Court, it

was  not  open  to  the  Finance  Department  to  amend  the

Policy.  Moreover, there is no basis for the income limit

of  Rs.1,00,000/-,  which  was  prescribed  by  the  Finance

Department  on  29  September  2008  as  enhanced  to

Rs.1,50,000/-.  It was urged that as a result of the

prescription of an unduly low income limit, the benefit

of compassionate appointment will be denied to families

which are indigent and are in need of employment.

While  considering  the  rival  submissions,  it  is

necessary to bear in mind that compassionate appointment

is an exception to the general rule that appointment to

any public post in the service of the State has to be

made  on  the  basis  of  principles  which  accord  with

Articles 14 and 16 of the Constitution.  Dependants of a

deceased  employee  of  the  State  are  made  eligible  by

virtue of the Pplicy on compassionate appointment.  The

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basis of the policy is that it recognizes that a family

of a deceased employee may be placed in a position of

financial  hardship  upon  the  untimely  death  of  the

employee while in service.  It is the immediacy of the

need which furnishes the basis for the State to allow the

benefit  of  compassionate  appointment.   Where  the

authority  finds  that  the  financial  and  other

circumstances of the family are such that in the absence

of immediate assistance, it would be reduced to being

indigent, an application from a dependant member of the

family  could  be  considered.   The  terms  on  which  such

applications  would  be  considered  are  subject  to  the

policy which is framed by the State and must fulfill the

terms of the Policy.  In that sense, it is a well-settled

principle of law that there is no right to compassionate

appointment.  But, where there is a policy, a dependant

member of the family of a deceased employee is entitled

to  apply  for  compassionate  appointment  and  to  seek

consideration of the application in accordance with the

terms and conditions which are prescribed by the State.

The policy in the present case which was formulated

on  18  January  1990  categorically  speaks  of  providing

employment  assistance  to  dependants  of  government

servants who have died while in service, “leaving their

families  in  indigent  circumstances”.   The  Policy,  in

other  words,  is  designed  to  meet  the  needs  of  those

families where the death of a government servant has left

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them in indigent circumstances, requiring immediate means

of subsistence.  The policy recognizes in Paragraph 10

that  the  benefits  which  are  received  by  a  family  on

account  of  welfare  measures  are  required  to  be

considered.   Among  them,  the  policy  stipulates  that

family  pension  and  death  gratuity  are  required  to  be

taken  into  account  in  assessing  the  financial

circumstances  of  the  family.   The  Policy  does  not

preclude the dependants of a deceased employee from being

considered for compassionate appointment merely because

they are in receipt of family pension.  What the Policy

mandates is that the receipt of family pension should be

taken into account in considering whether the family has

been left in indigent circumstances requiring immediate

means of subsistence.  The receipt of family pension is,

therefore, one of the considerations which is to be taken

into account.  Paragraph 10(c) of the Policy sets out the

measures provided by the State which have a bearing on

the financial need of the family.

In view of the clear terms of the Policy, we are of

the view that the High Court was in error in issuing a

mandamus to the Government to disregard its Policy.  Such

direction could not have been issued by the High Court.

The High Court has drawn sustenance in issuing mandamus

in the above terms on a decision of this Court in Govind

Prakash Verma (supra).  That was a case of compassionate

appointment where in the course of the proceedings before

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the High Court, a learned Single Judge had directed the

Life Insurance Corporation, which was the employer of the

deceased employee, to make an enquiry and submit a report

on whether the members of the family engaged in gainful

employment  were  also  supporting  the  family  of  the

deceased employee.  This Court, in an appeal against the

judgment of the High Court rejecting the petition for

compassionate appointment, observed that the officer who

had enquired into the matter in pursuance of the order of

the learned Single Judge completely omitted to furnish

any report on the points which were required by the High

Court to be investigated.  The High Court rejected the

petition on the ground that the family was in receipt of

family  pension  and  other  amounts  towards  terminal

benefits.  Reversing the view of the High Court, a two-

Judge Bench of this Court held thus:

“6. In our view, it was wholly irrelevant for  the  departmental  authorities  and  the learned Single Judge to take into consideration the  amount  which  was  being  paid  as  family pension to the widow of the deceased (which amount,  according  to  the  appellant,  has  now been reduced to half) and other amounts paid on account  of  terminal  benefits  under  the Rules...”

The decision in Govind Prakash Verma (supra) has been

considered  subsequently  in  several  decisions.   But,

before we advert to those decisions, it is necessary to

note  that  the  nature  of  compassionate  appointment  had

been considered by this Court in Umesh Kumar Nagpal Vs.

19

State of Haryana  4.  The principles which have been laid

down in Umesh Kumar Nagpal (supra) have been subsequently

followed  in  a  consistent  line  of  precedents  in  this

Court.   These  principles  are  encapsulated  in  the

following extract:

“2. ...As  a  rule,  appointments  in  the public services should be made strictly on the basis of open invitation of applications and merit.  No  other  mode  of  appointment  nor  any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One  such  exception  is  in  favour  of  the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian  consideration  taking  into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. 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

4 (1994) 4 SCC 138

20

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

Specifically  in  the  context  of  considering  the

financial  circumstances  of  the  family  of  the  deceased

employee, several judgments of this Court have elaborated

on the principles to be followed.

The  decision  in  General  Manager  (D&PB) Vs.  Kunti

Tiwary  5  involved  an  interpretation  of  an  office

memorandum dated 7 August 1996 circulated to all banks in

the light of the decision in Umesh Kumar Nagpal (supra).

The Indian Banks Association adopted the directions of

this  Court  in  the  Scheme  which  was  proposed  for  the

appointment of heirs of deceased employees.  The Scheme

contemplated  that  in  order  to  determine  the  financial

condition of the family, the following amounts would have

5 (2004) 7 SCC 271

21

to be taken into account:

“7...(a) Family pension. (b) Gratuity amount received. (c) Employee's/employer's contribution to  provident fund. (d) Any compensation paid by the Bank or its   Welfare Fund. (e) Proceeds of LIC policy and other investments  of the deceased employee. (f) Income of family from other sources. (g) Employment of other family members. (h) Size of the family and liabilities, if any,  etc.”

Eventually, this recommendation was accepted in the

Scheme.  In the light of these recommendations and the

Scheme, this Court observed that where the family of a

deceased  employee  was  not  left  without  means  of

livelihood, the claim for compassionate appointment could

not be sustained.  It may be noted that in that case it

was on a review of the overall financial position of the

family,  including  amounts  received  towards  terminal

benefits that the decision was taken.

The  decision  of  this  Court  in  Punjab  National

Bank Vs.  Ashwani  Kumar  Taneja  6 followed  the  same

principle.  While reiterating the view which was taken in

Kunti Tiwary (supra), this Court held that the Scheme

specified the amounts which were required to be taken

into consideration.

The decision in State Bank of India Vs. Somvir Singh  7

has noticed the scheme for appointment of dependants of

6 (2004) 7 SCC 265 7 (2007) 4 SCC 778

22

deceased employees on compassionate grounds framed by the

State Bank of India.  The Court expressly held that the

authorities were not in error in taking account of the

terminal  benefits,  investments  and  the  monthly  family

income including the family pension paid by the Bank.

The view of this Court finds expression in the following

extract:

“12. The  competent  authority  while considering  the  application  had  taken  into consideration  each  one  of  those  factors  and accordingly found that the dependants of the employee who died in harness are not in penury and  without  any  means  of  livelihood.  The authority did not commit any error in taking the terminal benefits and the investments and the monthly family income including the family pension paid by the Bank into consideration for the  purposes  of  deciding  as  to  whether  the family  of  late  Zile  Singh  had  been  left  in penury or without any means of livelihood. The scheme  framed  by  the  appellant  Bank  in  fact mandates the authority to take those factors into consideration. The authority also did not commit any error in taking into consideration the  income  of  the  family  from  other  sources viz. the agricultural land.”  

(emphasis supplied)   

In  the  view  of  this  Court,  the  only  issue  to  be

considered  was  whether  the  claim  for  compassionate

appointment had been considered in accordance with the

Scheme.  The income of the family from all sources was

required to be taken into consideration according to the

Scheme.  This having been ignored by the High Court, the

appeal filed by the Bank was allowed.

23

The judgment of a Bench of two-Judges in Mumtaz Yunus

Mulani Vs. State of Maharashtra  8 has adopted the principle

that appointment on compassionate grounds is not a source

of recruitment, but a means to enable the family of the

deceased  to  get  over  a  sudden  financial  crisis.   The

financial  position  of  the  family  would  need  to  be

evaluated on the basis of the provisions contained in the

Scheme.  The decision in Govind Prakash Verma (supra) has

been duly considered, but the Court observed that it did

not appear that the earlier binding precedents of this

Court have been taken note of in that case.

In  Union of India Vs.  Shashank Goswami  9, this Court

considered  a  circular  issued  by  the  Office  of  the

Comptroller  and  Auditor  General  of  India  in  terms  of

which the total income of the family from all sources,

including terminal benefits received, was required to be

taken into account.  Income limits were specified in the

circular for Group ‘B’, Group ‘C’ and Group ‘D’ posts.

Taking note of the fact that a family pension has been

authorized to the widow of the deceased employee, this

Court held that the case of the dependant did not fall

within the income limits meant for Group ‘C’ posts.

The  same  principle  has  been  reiterated  in  another

decision  of  a  Bench  of  two-Judges  of  this  Court  in

State     Bank      of       India   Vs. Surya       Narain      Tripathi  10.

8 (2008) 11 SCC 384 9 (2012) 11 SCC 307 10 (2014) 15 SCC 739

24

While adverting to a submission of learned counsel based

on the decision in  Govind Prakash Verma (supra), this

Court noted thus:

“8. He  relied  upon  the  judgment  of  this Court  in Govind  Prakash  Verma v. LIC[Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] where a view has been taken that the compassionate appointment cannot be refused on the ground that another member of the family had  received  appropriate  employment  and  the service benefits were adequate. We may humbly state that this view runs counter to the view which  was  taken  earlier  in Umesh  Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27  ATC  537]  which  was  not  cited  before  the Court  in Govind  Prakash [Govind  Prakash Verma v. LIC,  (2005)  10  SCC  289  :  2005  SCC (L&S) 590] . The subsequent two judgments which were referred above also take the same view as in Umesh  Kumar  Nagpal[Umesh  Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] . Mr Vikas  Singh  has  drawn  our  attention  to  the judgment  in SBIv. Somvir  Singh [SBI v. Somvir Singh, (2007) 4 SCC 778 : (2007) 2 SCC (L&S) 92] where the 1998 Scheme has been considered.

9. In  all  the  matters  of  compassionate appointment  it  must  be  noticed  that  it  is basically a way out for the family which is financially in difficulties on account of the death of the breadearner. It is not an avenue for a regular employment as such. This is in fact  an  exception  to  the  provisions  under Article 16 of the Constitution. That being so, if an employer points out that the financial arrangement made for the family subsequent to the  death  of  the  employee  is  adequate,  the members of the family cannot insist that one of them  ought  to  be  provided  a  comparable appointment. This being the principle which has been adopted all throughout, it is difficult for us to accept the submission made on behalf of the respondent.”

Now,  it  is  in  this  background  that  it  would  be

necessary  to  advert  to  the  decision  in  Canara  Bank

25

(supra).  A Scheme for compassionate appointment of 8 May

1993 was prevalent in Canara Bank when the employee died

on duty in October 1998.  Faced with the rejection of an

application for compassionate appointment, the High Court

was moved in a Writ Petition in which a learned Single

Judge issued a direction for reconsideration of the claim

for  appointment.   During  the  pendency  of  the  appeal

before the Division Bench, the Scheme for compassionate

appointment was replaced by a new Scheme providing for ex

gratia in lieu of appointment.  The main issue which fell

for  consideration  before  this  Court  was  whether  the

subsequent Scheme which was formulated in 2005 providing

for  ex  gratia payment  would  govern  or  whether  the

application would have to be disposed of on the basis of

the earlier Scheme of 1993.  It may be noted that the

application for  compassionate appointment  in that  case

had been rejected on the ground that the family of the

respondent was not in indigent circumstances, as required

by the Scheme for compassionate appointment of 1993.   

Dealing  with  the  applicability  of  the  subsequent

Scheme,  a  Bench  of  two-Judges  of  this  Court  held,

following the earlier decision in State Bank of India Vs.

Jaspal Kaur  11, that the cause of action to be considered

for  compassionate  appointment  arose  when  the  earlier

Scheme  was  in  force.   Hence,  the  claim  could  not  be

decided  on  the  basis  of  the  subsequent  Scheme  which

11 (2007) 9 SCC 571

26

provided only for the payment of ex gratia.  Moreover, as

a matter of fact, the subsequent scheme was superseded in

2014  by  reviving  the  Scheme  for  the  provision  of

compassionate appointment.   

Hence, the issue which has been dealt with in Canara

Bank (supra)  is  whether  the  application  for  grant  of

compassionate appointment could have been rejected on the

basis of a scheme which had come into force after the

date of submission of the application.  That, as this

Court  observed,  was  the  main question  which  fell  for

consideration.  The Bench of two-Judges, however, also

noted that it was urged on behalf of the appellant – Bank

that  the  family  of  the  respondent  was  in  receipt  of

family  pension.   This,  the  Court  held,  was  of  no

consequence  in  considering the  application  for

compassionate appointment.   

Learned  senior  counsel  appearing  on  behalf  of  the

appellants  has  sought  to  distinguish  the  above

observations, in the judgment in Canara Bank (supra), by

submitting  that  it  is  not  the  case  of  the  State  of

Himachal  Pradesh  that  mere  receipt  of  family  pension

would disable an applicant from submitting an application

for compassionate appointment or preclude consideration

of the claim.  On the contrary, the submission which is

urged is that the Scheme requires consideration of all

relevant sources of income and hence, receipt of family

pension would be one of the criteria which would be taken

27

into  consideration  in  determining  as  to  whether  the

family  of  the  deceased  employee  is  in  indigent

circumstances.   

We  find  merit  in  this  submission,  for  the  simple

reason, that it is in accord with the express terms of

the Scheme of 18 January 1990, as modified by the State.

The  Scheme  contemplates  that  payments  which  have  been

received on account of welfare measures provided by the

State  including  family  pension  are  to  be  taken  into

account.   Plainly,  the  terms  of  the  Scheme  must  be

implemented.

For these reasons, we have come to the conclusion

that  the  High  Court  was  not  justified,  based  on  the

decision in  Govind Prakash Verma (supra) in issuing a

direction to the State to act in a manner contrary to the

express terms of the Scheme which require that the family

pension  received  by  the  dependants  of  the  deceased

employee be taken into account.

That leads the Court to the next aspect of the matter

relating to the fixation of an income slab.  In our view,

the fixation of an income slab is, in fact, a measure

which  dilutes  the  element  of  arbitrariness.   While,

undoubtedly, the facts of each individual case have to be

borne in mind in taking a decision, the fixation of an

income slab subserves the purpose of bringing objectivity

and uniformity in the process of decision making.  The

High Court was of the view that it was not open to the

28

Finance Department to amend the Scheme.  The circulars

which  are  issued  by  the  Finance  Department  cannot  be

construed to be an amendment of the policy.  They are

really clarificatory of the intent and purpose of the

Scheme.  The circulars are explanatory, since they are

intended to guide the decision maker on the concept of

indigency which is incorporated in the Scheme.  In fact,

as we have noted earlier, in the decision of this court

in  Shashank  Goswami(supra), the  Court was  specifically

dealing with a circular of the Comptroller and Auditor

General  of  India  which  had  imposed  income  limits

respectively for Group ‘B’, ‘C’ and ‘D’ posts for the

purpose  of  guiding  the  decision  in  the  case  of

compassionate  appointment.     The  fixation  of  income

limits was not construed to be and is not an arbitrary

exercise of power.  However, what we find from the record

of this case is that the income limit was fixed (as the

High Court observed) on 29 September 2008 by the letter

of  the  Finance  Department.   The  income  limit  of

Rs.1,00,000/- for a family of four persons has since been

revised  to  Rs.1,50,000/-  on  20  April  2011.   Mr.  P.S.

Patwalia has, on instructions, stated before this Court

that this ceiling has been reiterated on 27 July 2017.

What  should  be  the  appropriate  income  criterion  is

undoubtedly a matter of policy for the State Government

to determine.  However, we would impress upon the State

Government  the  need  to  periodically  revise  the  income

29

limits preferably at intervals of three years.  Inflation

and the increase in the cost of living have an important

bearing  on  financial  exigencies  faced  by  families  of

serving as well as deceased employees.  In fixing the

income criteria  for considering  cases of  compassionate

appointment,  it  would  be  appropriate  if  the  State

revisits the income limit at periodic intervals, as we

have indicated above.  We clarify that it would be open

to the State to revise the income limits at a frequency

of less than three years, if the State is so advised.

Insofar  as  the  individual  facts  pertaining  to  the

respondent are concerned, it has emerged from the record

that  the  Writ  Petition  before  the  High  Court  was

instituted  on  11  May  2015.   The  application  for

compassionate appointment was submitted on 8 May 2007.

On 15 January 2008 the Additional Secretary had required

that the amount realized by way of pension be included in

the  income  statement  of  the  family.   The  respondent

waited thereafter for a period in excess of seven years

to move a petition under Article 226 of the Constitution.

In Umesh Kumar Nagpal (supra), this Court has emphasized

that the basis of a scheme of compassionate appointment

lies in the need of providing immediate assistance to the

family of the deceased employee.  This sense of immediacy

is  evidently  lost  by  the  delay  on  the  part  of  the

dependant in seeking compassionate appointment.

30

We are not impressed with the submission that delay

should not be taken into account since Paragraph 8 of the

Scheme contemplates that in a situation where all the

dependant children of the deceased employee have yet to

attain the age of majority, the time limit for submission

of  an  application  is  extended  until  the  first  of  the

children attains the age of twenty one years.  A case

where  each  of  the  children  is  a  minor  falls  in  a

different class altogether.  This cannot be equated with

a situation where a dependant of a deceased employee who

was a major on the date of death fails to submit an

application within a reasonable period of time from the

death of the employee.  This aspect of delay has been

dealt with in other decisions of this Court, including

State  of  J&K Vs.  Sajad  Ahmed  Mir  12 and  Local

Administration Department Vs. M. Selvanayagam  13.

We  see  no  reason  or  purpose  in  now  directing  the

State  to  reconsider  its  decision  in  the  case  of  the

respondent which would only result in another round of

fruitless litigation.  In our view, the respondent is

debarred from  seeking compassionate  appointment by  the

delay as well as by the lapse of time which has taken

place.

In  the  circumstances,  we  allow  the  appeal  in  the

following terms:

12 (2006) 5 SCC 766, para 11 13 (2011) 13 SCC 42, para 11, 12 and 13

31

(i) The Writ Petition (CWP No.3652 of 2015) filed by

the  respondent  before  the  High  Court  shall  stand

dismissed  and  the  direction  of  the  High  Court  for

reconsideration  of  the  application  for  compassionate

appointment shall stand set aside;

(ii) The direction issued by the High Court to the

appellants to desist from taking into account the family

pension and other terminal benefits is unsustainable in

law and is accordingly set aside;

(iii)  While  we  confirm  the  decision  of  the  State

Government to fix income limits in order to satisfy the

terms of  eligibility for  compassionate appointment,  we

expect  that  the  State  Government  shall,  in  compliance

with the Policy, revisit the income limits at intervals

of three years or earlier and consider whether a revision

is  warranted  having  regard  to  the  cost  of  living,

inflation and other relevant facts and circumstances.

The appeal is disposed of in the above terms.  No

costs.

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

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

NEW DELHI JANUARY 16, 2019