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PETITIONER: HARYANA STATE ELECTRICITY BOARD AND ANOTHER

       Vs.

RESPONDENT: HAKIN SINGH

DATE OF JUDGMENT:       30/09/1997

BENCH: A.S. ANAND, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T THOMAS, J.      Leave granted.      This appeal  by the  Haryana  State  Electricity  Board (‘the Board’  for short) is in challenge of the order of the High Court  of Punjab  and Haryana declaring that respondent is entitled  to be considered as eligible for appointment in the employment of the Board on compassionate grounds.      The facts leading to this appeal are the following:      Father of  the respondent one Hakim Singh was a Lineman in the  employment of  the Board.  He died  on 24.8.1974  in harness leaving  behind him  his widow  and  minor  children including the  respondent. About 14 years after the death of Hakim Singh  his widow  applied for  appointing her son (the respondent) in  the employment of the Board on compassionate grounds mainly  basing on two circulars issued by the Board, one on  26.9.1985 and  the other, in partial modification of the earlier,  on 1.10.1986.  As per  the said  circulars one member of  the family  of the  deceased  employee  could  be considered for  employment in  the service of the Board as a goodwill gesture,  provided request  for such  employment is made within one year of the death of the employee.      Respondent who  filed the  writ petition  in  the  High Court submitted  that when his father he was only four years old and  hence his  mother could make the application in the prescribed from  only when he attained majority and that the Board has  not given any favourable response to the repeated representations made  in this  matter. The  Board  took  the stand that as the application was not made within the period specified in the circulars the Board was unable to entertain the request  for employment  on compassionate  ground. While resisting the  writ petition the Board cited the decision of the same  High Court  dated 18.1.1995 in Sohan Lal vs. HSEB, in support of their stand.      Learned Single  Judge of  the High  Court distinguished Sohan Lal’s  case on  the premise  that the claimant therein waited for five years after attaining majority and that made him disentitled  to  employment  on  compassionate  grounds, whereas in  the present case the request was made soon after respondent attained  majority. Learned  Single  Judge  found

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support from  three other decisions of the High Court as the facts therein  were more  comparable with  the facts in this case. The  extended period  of three  years indicated in the circular has  been interpreted  by the High Court to mean in the case  of a  minor child  as applicable  from the date he became a  major. High  Court has  observed that "this is the only possible  way to  give effect  to the  policy of giving employment to  the deceased  employee where  his  dependents happen to  be minor  children." Accordingly,  learned Single Judge allowed  the writ  petition and  directed the Board to entertain the claim of the respondent.      Though the  Board has filed an appeal before a Division Bench of  the High  Court the  same was dismissed summarily. However, the  Division Bench granted further period of three months to  the Board to comply with the directions issued by the learned Single Judge.      During consideration  of the  Special Leave Petition an endeavour was  made to  have the  matter  otherwise  settled between the  parties. But  learned counsel  for  the  Board, after taking  instructions, submitted  to us that a decision on the legal position is very much warranted from this Court as large  number of similar claims are pending consideration before the Board.      The rule of appointments to public service is that they should be  on merits  and through open invitation. It is the normal route  through  which  one  can  get  into  a  public employment. However,  as every  rule  can  have  exceptions, there are  a few exceptions to the said rule also which have been evolved  to meet certain contingencies. As per one such exception belief  is provided  to the  bereaved family  of a deceased employee  by accommodating one of his dependents in a vacancy. The object is to give succour to the family which has been  suddenly plunged into penury due to the ultimately death of its sole bread-winner. This Court has observed time and again  that the  object of  providing such  ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment.      The first  circular which  afforded such  a  beneficial provision to  the dependants  of  a  deceased  employee  was issued by  the Board  on 14.9.1983  wherein it was specified that "only one member of the family of the deceased employee is to be considered for employment in the Board’s service as a goodwill  gesture  and  the  intention  is  not  that  the employment is  to be provided as a matter of course." In the circular the  time-limit within  which the  dependent of the deceased employee  is to  be accommodated  was fixed  as one year. The  circular further  stressed that  "the request for employment would  be entertained  only in  the case in which the widow  submits application  for  employment  immediately after the  death of  her husband."  On 26.9.91983  the Board issued a  circular clarifying  that the  purpose of  such  a provision was not that employment would be given as a matter of course.  However, the Board extended the period as in the case of  a widow  with minor children from one year to three years "provided a request for giving such employment is made to the Board within one year of the death of the employee."      High Court  relied on  an earlier  decision of the same High Court  in which after considering the same circulars it was observed thus:      "Neither  in  the  service  of  the      Haryana  Government   nor  in   the      service of  the respondent-Board  a      person below  the age  of 18  years      can be given employment. Therefore,      if a  deceased employee is survived

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    by minors, it is impossible to give      effect     to     the     condition      incorporated in  the  circulars  of      the  Board   dated  26.9.1985   and      1.10.1986,      which      requires      submission  of  application  within      three years  of the  death  of  the      employee.  A   condition  which  is      impossible  to   be  performed   is      ordinarily liable  to be treated as      arbitrary and  unconstitutional but      if such  condition can  be given  a      reasonable meaning  so as  to avoid      the charge  of  unconstitutionality      that  interpretation   has  to   be      preferred.      Therefore,      the      instructions   contained   in   the      circulars   dated   26.9.1985   and      1.10.1986   will    have   to    be      interpreted to mean that in case of      a minor  child the  period of three      years would  be applicable from the      date he becomes major."      Learned   Single    Judge   followed    the   aforesaid observations and  issued  the  impugned  directions  to  the Board.      We are  of the  view that  the High  Court has erred in over  stretching  the  scope  of  the  compassionate  relief provided by  the Board in the circulars as above. It appears that High  Court would  have treated the provision as a lien created by  the  Board  for  a  dependent  of  the  deceased employee. If the family members of the deceased employee can manage for  fourteen years  after his death one of his legal heirs cannot  put forward  a claim as though it is a line of succession by  virtue of a  right of inheritance. The object of the provisions should not be forgotten that it is to give succour to  the family  to tide  over the  sudden  financial crisis befallen  the dependents  on account  of the untimely demise of its sole earning member.      This Court  has considered  the scope  of the aforesaid circulars in  Haryana State  Electricity  Board  vs.  Naresh Tanwar and Anr. etc. etc [1996 (2) JT 542].      In that  case widow  of a  deceased  employee  made  an application almost  twelve years  after  the  death  of  her husband  requesting   for  accommodating   her  son  in  the employment of  the Board,  but it was rejected by the Board. When she  moved the  High court  the Board  was directed  to appoint him  on compassionate  grounds. This Court upset the said directions  of the  High Court  following  two  earlier decisions rendered  by this Court, one in Umesh Kumar Nagpal vs. State of Haryana & ors. [1994 (4) SCC 138], the other in Jagdish Prasad vs. State of Bihar & anr. [1996 (1) SCC 301]. In the  former, a  Bench of  two Judges has pointed out that "the whole object of granting compassionate employment is to enable to  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  the post  held by  the deceased."  In  the  latter decision, which  also was rendered by a Bench of two Judges, it was  observed that  "the very  object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family  by sudden  demise of  the earning  member of the family." The learned Judges pointed out that if the claim of the dependent  which was  preferred long  after the death of the deceased  employee is to be countenanced it would amount

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to another  mode of  recruitment of  the  dependent  of  the deceased government  servant "which  cannot  be  encouraged, dehors the recruitment rules."      It is  clear that  the High  Court has  gone  wrong  in giving a direction to the Board to consider the claim of the respondent as  the request  was made  far beyond  the period indicated in  the circular  of the  Board  dated  1.10.1986. Respondent, if he is interested in getting employment in the Board, has to pass through the normal route now.      We, therefore,  allow this  appeal and  set  aside  the impugned judgment of the High Court.