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PETITIONER: HARYANA STATE ELECTRICITY BOARD

       Vs.

RESPONDENT: NARESH TANWAR AND ARN. ETC. ETC.

DATE OF JUDGMENT:       09/02/1996

BENCH: K. RAMASWAMY, S. SAGHIR, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R       Leave granted.      Heard learned  counsel for  the parties.  In both these matters, the  question of  compassionate employment  of  the heir  of   the  deceased   employee  of  the  Haryana  State Electricity Board is required to be considered. In the first matter concerning SLP (C) No. 7878/95 the ex-employee of the Haryana State  Electricity Board died on 18.11.80. The widow of the  deceased-employee made  an  application  inter  alia indicating therein  that she  had not  married and  she  had three minor children, the eldest of them having been born in 1972. As  per the existing Circular for giving relief to the distressed member  of the  family of  the deceased-employee, ex-gratia payment  was given  to the widow of the family. It is  only   in  1992  the  representation  was  made  by  the respondent - the mother of the Naresh Tanwar, the son of the deceased-employee that  since the  son had attained majority by  that   time,  he   should  be   given   appointment   on compassionate  ground.  Such  representation  was,  however, rejected and,  therefore, a  writ petition  was moved before the Punjab  and Haryana  High  Court  and  by  the  impugned judgment,  the   High   Court   has   directed   that   such compassionate appointment should be given to the respondent- Naresh  Tanwar.   In  this  appeal,  the  said  judgment  is impugned.      In the  appeal relating to SLP (C) No. 13708/95, an ex- employee of  Haryana State Electricity Board died on 16.3.75 and a  representation was made by the widow of the deceased- employee in  October. 1988 for appointment of the son of the widow of  the employee  by contending that by that time, the minor son  had attained majority and, therefore, eligible to be given  appointment. Such  representation was  rejected by the State  Electricity Board  but the writ petition filed by the respondent Sonana Devi the widow of the said ex-employee has been  allowed by  the impugned judgment by directing the State Electricity  Board to  give appointment  to the son of the said  respondent Sohana  Devi  being  the  near  of  the deceased-employee, on compassionate ground.      Learned counsel  appearing for  the  State  Electricity Board in  these matters  have drawn  our  attention  to  the

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decision of this Court in Umesh Kumar Nagpal versus State of Haryana and  Ors. (1994  (4) SCC  138). In  the said case, a scheme was  made for employee on the ground of compassionate appointment. This  court has  not  only  held  in  the  said decision that no scheme for appointment to Class-II or Class I shall  be made  by way  of appointment  on  the  score  of compassionate appointment,  but it has been father indicated in the said decision that:      "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      hor  any   other  consideration  is      permissible. Neither the Government      hor 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      but in the interests of justice and      to meet  certain contingencies. One      such exception  is in favour of the      respondents 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.                         (Emphasis added)      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      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      categories and hence they alone can      be   offered    on    compassionate

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    grounds,  the   object   being   to      relieve   the    family,   of   the      financial destination  and to  help      it get over the emergency."                         (Emphasis added)      It has  been submitted  before us  that this  Court has very  clearly  indicated  in  the  said  judgment  that  the consideration for  compassionate employment  must be treated as an  exception to  the general  rule for giving employment only by  making open recruitment and consideration of but of turn employment  on  compassionate  ground  is  intended  to enable the  family to  tide over the sudden crisis caused on account of  death of the earning member. Learned counsel has also grown  our attention  to paragraph  6 of  the  decision where it has been indicated:      "For  these   very   reasons,   the      compassionate employment  cannot be      granted after a lapse of reasonable      period which  must be  specified in      the rules.  The  consideration  for      such employment  is  not  a  vested      right which can be exercised at any      time in future. The object being to      enable the  family to  get over the      financial crisis  which it faces at      the time  of the  death of the sole      breadwinner    the    compassionate      employment cannot  be  claimed  and      offered whatever  the lapse of time      and after the crisis is over."                         (Emphasis added)      The learned  counsel  has  also  placed  before  us  an unreported decision  of this  Court in Jagdish Prasad versus State of  Bihar (C.A.No.10682  of 1995)  decided on November 13, 1995.  In the  said case, the question of appointment on compassionate ground  to an applicant who was four years old at the  time when his father an ex-employee died in harness, came up  for consideration.  It was  contended  before  this Court that  since the  appellant was  minor when  the father died in  harness,  the  compassionate  circumstances  having continued  till   the  date   he  made  an  application  for appointment,  he   was   entitled   to   be   appointed   on compassionate ground.  Such contention  was not  accepted by the Court  below and  upholding the  rejection of such claim for appointment.  this Court  has indicated to the following effect:      "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. Since      the  death  occurred  way  back  in      1971, in  which year, the appellant      was four  years old.  it cannot  be      said that  he  is  entitled  to  be      appointed   after    he    attained      majority long  thereafter. In other      words,  if   that   contention   is      accepted,  it  amounts  to  another      mode   of    recruitment   of   the      dependent of  a deceased Government      servant which cannot be encouraged.      be hors the recruitment rules."

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    It has  been submitted before us by the learned counsel appearing for  the State  Electricity Board  that previously there was  no scheme  to give  appointment to the members of the  ex-employee  dying  in  harness,  but  considering  the indigent condition  of the  members of the family, provision to give  monetary assistance within a limit to be determined by the concerned authority was made and such scheme has also been annexed  to the SLP (C) No. 7878 of 1995. Later on some of  the  circulars  issued  by  the  Government  for  giving compassionate appointment to the heirs of the ex-employee in government  service  dying  in  harness,  were  adopted.  It appears from  the annexures referred to the SLPs 7878/95 and SLP 13708/95  that previously there was no time limit within which an  application was  required to  be made  for getting appointment on  compassionate ground.  Subsequently  it  was confined that  within a  period of one year such application was required  to be  made. The  said time frame was later on extended to  a period  of three years from the date of death of the  ex-employee. The  learned counsel has submitted that although at  the relevant  time when the ex-employee died in both the  civil writ  petitions, no  time limit  for  making application was indicated, but such application was required to be  made within  a reasonable  time and in any event, the very purpose  of compassionate  appointment  being  to  give immediate assistance to the members of the family of the ex- employee will be frustrated if such concession is allowed to be extended  over the  veers so  that by  such long lapse of time the  heir of the deceased-employee attains majority and then becomes eligible for being considered for appointment.      By the  impugned judgments, the High Court proceeded on the footing  that compassionate  appointment to  achieve its purpose cannot  be restricted within the time frame of three years and  if assistance  to the  members  of  the  deceased employee is  required to  be given,  the family  member must necessarily attain  majority and  then  become  eligible  to apply for getting appointment.      It has  been indicated  in the  decision of Umesh Kumar Nagpal (Supra)  that  compassionate  appointment  cannot  be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule  of open  recruitment, is  intended to meet the immediate financial problem being suffered by the members of the family  of the  deceased employee. In the other decision of this  Court in  Jagdish Prasad  ’s case, it has been also indicated that  the very  object of appointment of dependent of deceased-employee  who died  in  harness  is  to  relieve immediate hardship  and distress  caused to  the  family  by sudden demise  of the  earning member of the family and such consideration cannot be kept binding for years.      It appears  to us  that the  principle of compassionate appointment as  indicated in the aforesaid decisions of this Court, is  not  only  reasonable  but  consistent  with  the principle of employment in government and public sector. The impugned decisions  of the  High Court  therefore can not be sustained.      In that  view of  the matter, we set aside the impugned judgments by allowing both the appeals. This order, however, will  not   preclude  the   concerned  applicants   to  make representations  to   the  State   Electricity   Board   for consideration of  the case  of their appointment either as a temporary or  permanent employee  by giving  full details of the family  circumstances and the economic conditions. It is reasonably accepted that if such representation is made, the concerned authority,  namely, the  Haryana State Electricity Board will  consider the  same with  such  sympathy  as  the

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applicant may deserve in the facts of the case.