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CASE NO.: Appeal (civil)  2002 of 2008

PETITIONER: Mumtaz Yunus Mulani

RESPONDENT: State of Maharashtra & Ors

DATE OF JUDGMENT: 14/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO  2002 OF 2008 (Arising out of SLP (C) No.19123 of 2006)

S.B. Sinha, J.

1.      Leave granted. 2.      Whether compassionate appointment of the appellant is warranted in  the facts and circumstances of this case is the question involved herein. 3.      Appellant is the widow of one Yunus Dastagir Mulani.  He was a  Peon witking in the respondent, a vocational institution.    It is a public  charitable trust.  Appellant’s husband expired on 6.9.1996.  She filed an  application for appointment on compassionate ground.  As no response  thereto was received, she made representations. 4.      Second Respondent, however, declined to give any appointment on  compassionate ground to the appellant.  She filed a writ petition before the  High Court.  By reason of the impugned judgment the said petition has been  dismissed. 5.      Mr. Makarand D. Adkar, learned counsel appearing on behalf of the  appellant, would submit that the reason for depriving the appellant of the  right to be appointed on compassionate ground, being payment of family  pension, the impugned judgment cannot be sustained.  It was contended that  the appellant has a large family to maintain which includes her two grown  up children.  The family pension received by her being only Rs.1,100/- per  month, the respondent should be directed to offer appointment on  compassionate ground to her even at that stage. 6.      Learned counsel appearing on behalf of the respondents, on the other  hand, would contend that immediately upon the death of the appellant’s  husband, the respondents supported the case of the appellant in assisting her  to get the retrial benefits of her husband.  However, in the year 1997, another  person being Mr. Arun Uttereshwar having been appointed, it is not possible  to dismiss him from service so as to accommodate the appellant.   7.      Appellant’s husband was appointed in a Class IV post.  The school is  an aided institution.  The State, although instructed the respondent to appoint  the appellant on compassionate ground, it appears, such an instruction had  been issued in view of the scheme for appointment on compassionate ground  as contained in the Government Order dated 31st December, 2002.  The said  resolution, inter alia, reads as under : "1)     Regarding giving appointment on  compassionate principle, the above scheme  will be applicable to all teachers and  employees other than teachers of private,  primary, secondary and higher middle as  well as training schools for teachers. 2)      Rules relating to absorption of relatives of  employees deceased or retired because of

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medical reason, are given in the enclosed  Annexure "A". 3)      Information about application to be made for  service by the concerned relatives of  employees and documents to be submitted  along with it will be as mentioned in  Annexure "B". 4)      If the decision is taken prior to  implementation of this scheme in respect of  giving/refusing to give appointment on  compassionate principle, those cases should  not be taken into consideration for review.   However,  those employees who are  deceased or those employees who are  prematurely retired because of incurable  illness after 1 January, 2001, in case if  persons from such family have applied for  appointment on compassionate principle,  and if in case their application has been  turned down, such relatives can submit their  application again afresh in this scheme."

7.      The fact that the appellant has been receiving family pension is not in  dispute.  It has furthermore been averred in the counter affidavit that she has  income from the immoveable properties in regard whereto, there is no denial  or dispute. 8.      Appointment on compassionate ground can only be granted to tide  over the sudden crisis of the family of the deceased. The right to get  appointment on compassionate ground would depend upon the scheme  operating in the field.  [See Umesh Kumar Nagpal v. State of Haryana &  Ors. [(1994) 4 SCC 138]; and National Institute of Technology & Ors. v.  Niraj Kumar Singh [2007 (2) SCALE 525] 9.      The High Court in its judgment had noticed that the scheme which  was operative at the relevant point of time was that appointment on  compassionate ground should not be given if the monthly income exceeds  Rs.5,00/-.  Evidently, the appellant did not fulfill the said criteria.  It may be  true that in a given case, appointment on compassionate ground cannot be  denied only because the dependent of the deceased had been receiving some  amount by way of family pension.   10.     However, it is now a well settled principle of law that appointment on  compassionate ground is not a source of recruitment.  The reason for making  such a benevolent scheme by the State or the Public Sector Undertaking is to  see that the dependents of the deceased are not deprived of the means of  livelihood.  It only enables the family of the deceased to get over the sudden  financial crisis. {see I.G. (Karmik) & Ors. v. Prahalad Mani Tripathi [(2007)  6 SCC 162]}. 11.     In General Manager (D&PB) & Ors. v. Kunti Tiwary & Anr. [(2004)  7 SCC 271], this Court laid down the law as under : "8. This recommendation of the Indian Banks’  Association was accepted in the Scheme which  was finally formulated on 1-1-1998 where the  same criteria for determining the financial  condition of the family was laid down. It may be  noted that the express language for appointment on  compassionate grounds reads as follows : "Appointments in the public services are  made strictly on the basis of open invitation  of applications and merit. However,  exceptions are made in favour of dependants  of employees dying in harness and leaving  their family in penury and without any  means of livelihood."

12.     However, we may notice that in Punjab National Bank v. Ashwini

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Kumar Taneja [(2004) 7 SCC 265], this Court relying on the decision of  Smt. Sushma Gosain & Ors. v. Union of India & Ors. [(1989 (4) SCC 468]  held : "9. One other thing which needs to be considered  is whether the retiral benefits are to be taken into  consideration while dealing with prayer for  compassionate appointment. The High Court was  of the view that the same was not to be taken into  consideration. The view is contrary to what has  been held recently in G.M. (D&PB) v. Kunti  Tiwary. It was categorically held that the amounts  have to be taken into consideration. In the instant  case, there was a scheme called "Scheme for  Employment of the Dependants of the Employees  Who Die While in the Service of the Bank \027  Service on Compassionate Grounds" (in short "the  Scheme") operating in Appellant 1 Bank which  categorically provides as follows: "Financial condition of the family The dependants of an employee dying in  harness may be considered for  compassionate appointment provided the  family is without sufficient means of  livelihood, specifically keeping in view the  following: (a)     Family pension. (b)     Gratuity amount received. (c)     Employee’s/Employer’s contribution  to PF. (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. It is most respectfully submitted that the  Board of Directors of the petitioner Bank  had approved the abovesaid Scheme, which  was based upon the guidelines circulated by  Indian Banks’ Association to all the public  sector banks which in turn are based upon  the law laid down by this Hon’ble Court in  the case of Umesh Kumar Nagpal v. State of  Haryana. The Scheme after approval was  circulated vide PDCL 6/97 read with PDCL  11/99 dated 17-4-1999."

13.     The question came up for consideration yet again in Govind Prakash  Varma v. Life Insurance Corporation of India & Ors. [(2005) 10 SCC 289],  wherein it was held : "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 scheme of compassionate  appointment is over and above whatever is  admissible to the legal representatives of the  deceased employee as benefits of service which

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one gets on the death of the employee. Therefore,  compassionate appointment cannot be refused on  the ground that any member of the family received  the amounts admissible under the Rules. So far as  the question of gainful employment of the elder  brother is concerned, we find that it had been given  out that he has been engaged in cultivation. We  hardly find that it could be considered as gainful  employment if the family owns a piece of land and  one of the members of the family cultivates the  field. This statement is said to have been  contradicted when it is said that the elder brother  had stated that he works as a painter. This would  not necessarily be a contradiction much less  leading to the inference drawn that he was  gainfully employed somewhere as a painter. He  might be working in his field and might casually  be getting work as painter also. Nothing has been  indicated in the enquiry report as to where he was  employed as a regular painter. The other aspects,  on which the officer was required to make  enquiries, have been conveniently omitted and not  a whisper is found in the report submitted by the  officer. In the above circumstances, in our view,  the orders passed by the High Court are not  sustainable. The respondents have wrongly refused  compassionate appointment to the appellant. The  inference of gainful employment of the elder  brother could not be acted upon. The terminal  benefits received by the widow and the family  pension could not be taken into account."

It, however, does not appear that therein the earlier binding precedent  of this Court had been taken notice of. 14.     Yet again in State of J & K & Ors. v. Sajad Ahmed Mir [(2006) 5  SCC 766], the law was laid down in the following terms : "11. We may also observe that when the Division  Bench of the High Court was considering the case  of the applicant holding that he had sought  "compassion", the Bench ought to have considered  the larger issue as well and it is that such an  appointment is an exception to the general rule.  Normally, an employment in the Government or  other public sectors should be open to all eligible  candidates who can come forward to apply and  compete with each other. It is in consonance with  Article 14 of the Constitution. On the basis of  competitive merits, an appointment should be  made to public office. This general rule should not  be departed from except where compelling  circumstances demand, such as, death of the sole  breadwinner and likelihood of the family suffering  because of the setback. Once it is proved that in  spite of the death of the breadwinner, the family  survived and substantial period is over, there is no  necessity to say "goodbye" to the normal rule of  appointment and to show favour to one at the cost  of the interests of several others ignoring the  mandate of Article 14 of the Constitution."

15.     In this case, the respondent is a charitable institution.  It is run on  Government aid.  It cannot afford to appoint persons in a post which has not  been sanctioned.  It has not been denied or disputed that one Arun  Uttareshwar has already been appointed in place of the deceased husband of  the appellant.  It does not matter as to whether the said appointment has been

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approved by the State or not inasmuch as if it had not been done, on the  basis of the policy decision contained its is resolution dated 31st December  2002 the same cannot be considered to be of much significance, particularly,  in view of the fact that the appellant’s husband died as far back as on  16.9.1996 and the vacancy had been filled up in the year 1997.  16.     Furthermore, about 12 years have passed.  Appellant’s son is aged  about 20 years and daughter is aged about 16 years.  Therefore, they have  become major.  Appellant herself would be aged about 38 years now.  She  cannot be given any appointment at this age.   17.     Keeping in view the fact situation obtaining in this case, we are of the  opinion that no case has been made out for exercising our discretionary  jurisdiction under Article 136 of the Constitution of India.  This appeal,  therefore, is dismissed.  No costs.