15 October 2004
Supreme Court
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NATIONAL HYDROELECTRIC POWER CORPN. &ANR Vs NANAK CHAND

Bench: ARIJIT PASAYAT,C.K. THAKKER
Case number: C.A. No.-005185-005185 / 2002
Diary number: 14577 / 2002
Advocates: Vs YASH PAL DHINGRA


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CASE NO.: Appeal (civil)  5185 of 2002

PETITIONER: N.H.P.C & Anr.

RESPONDENT: Nanak Chand & Anr.

DATE OF JUDGMENT: 15/10/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Challenge in this appeal is to the legality of judgment rendered by a  Division Bench of the Himachal Pradesh High Court directing that Nanak Chand  (respondent herein) be given compassionate appointment by the Union of India  through the Secretary, Power, Government of India, either by directing  National Hydroelectric Power Corporation (hereinafter referred to as the  ’Corporation’ appellant no.1 herein) or in any of its  projects/establishments, Corporations appropriately.   It was further  directed that in case the present appellant shows reluctance in spite of  being asked by the Union of India to give appointment, then the Union of  India would be duty bound to engage him and if that contingency arises the  respondent herein would be entitled to back wages from February 1, 1993 i.e.  the date of filing of the writ petition provided he was not gainfully  employed.                

       Factual background which is almost undisputed is as follows:

        Father of respondent one Shri Shakti Prasad was working under Baira  Siul Hydroelectric Project of the Government of India.  While so working he  died on 10.12.1976.  The said Shakti Prasad was survived by his widow and  three children.  In full and final settlement of her claim the widow  received Rs.19,200/- as per the existing rules.  On 20.1.1978 the said Baira  Siul Hydroelectric Project was handed over to the appellant-Corporation by  Government of India by virtue of a deed of transfer.  After attaining  majority in 1986 the respondent filed an application for appointment on  compassionate ground. The application was rejected on the ground that  application has been made after 10 years of the death of his father and also  that the Corporation had already surplus staff. On 9.5.1989 the Chairman- cum-Managing Director of the Corporation laid down guidelines to the effect  that request for compassionate appointment has to be made within six months  of the occurrence of death. Respondent was informed by the authorities of  the Corporation about the rejection of his application. On 30.6.1992 the  respondent approached the Deputy Commissioner, Chamba for compassionate  appointment in the aforesaid Baira Siul Project.  By letter dated 30.6.1992  the Deputy Commissioner informed the respondent that since his claim for  appointment had already been rejected, there was no scope for any further  consideration.  Sometimes in the year 1993 i.e. after about 7 years of  initial rejection of the request, respondent filed a writ petition CWP No.  161 of 1993 before the Himachal Pradesh High Court.  The writ petition was  contested on several grounds by the present appellants. It was the primary  stand that it was a highly belated approach for compassionate appointment  and in any event the Corporation was not required to deal with the matter.  

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The respondent’s father was not an employee of the Corporation and when he  died he was employed by the Central Government.  The High Court referred to  instructions issued by Government of India as contained in Swamy’s Complete  Manual and Establishment and Administration, 5th Edition, Chapter XXIX and  held that respondent was entitled to the directions.   

       Learned counsel for the Corporation submitted that the directions  given for appointment on compassionate grounds were clearly erroneous. The  instructions of the Government as contained in Swamy’s Manuals are not  applicable to the Corporation which had its own administrative instructions.  The highly belated application should have been thrown out at the threshold  by the High Court.  The purpose of compassionate appointment is to meet  unforeseen financial constraints and therefore no direction should have been  given for appointment as done by the High Court.   

       In response, learned counsel for the respondent no. 1 submitted that  keeping in view the ground realities the High Court has given the direction  and this is not a fit case where any interference should be done by this  Court.                            

It is to be seen that the appointment on compassionate ground is not a  source of recruitment but merely an exception to the requirement regarding  appointments being made on open invitation of application on merits.  Basic  intention is that on the death of the employee concerned his family is not  deprived of the means of livelihood.  The object is to enable the family to  get over sudden financial crises.   

As was observed in State of Haryana and Ors. v. Rani Devi & Anr. (JT  1996 (6) SCC 646), it need not be pointed out that the claim of person  concerned for appointment on compassionate ground is based on the premises  that he was dependant on the deceased employee. Strictly this claim cannot  be upheld on the touchstone of Articles 14 or 16 of the Constitution of  India.  However, such claim is considered as reasonable and permissible on  the basis of sudden crisis occurring in the family of such employee who has  served the State and dies while in service.  That is why it is necessary for  the authorities to frame rules, regulations or to issue such administrative  orders which can stand the test of Articles 14 and 16.  Appointment on  compassionate ground cannot be claimed as a matter of right. Die-in-harness  scheme cannot be made applicable to all types of posts irrespective of the  nature of service rendered by the deceased employee.  In Rani Devi’s case  (supra) it was held that scheme regarding appointment on compassionate  ground if extended to all types of casual or ad hoc employees including  those who worked as apprentices cannot be justified on constitutional  grounds. In Life Insurance Corporation of India v. Asha Ramchhandra Ambekar  (Mrs.) and Anr. (1994 (2) SCC 718) it was pointed out that High Courts and  Administrative Tribunals cannot confer benediction impelled by sympathetic  considerations to make appointments on compassionate grounds when the  regulations framed in respect thereof do not cover and contemplates such  appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and  Ors. (1994 (4) SCC 138) that as a rule in public service appointment should  be made strictly on the basis of open invitation of applications and merit.   The appointment on compassionate ground is not another source of recruitment  but merely an exception to the aforesaid requirement taking into  consideration the fact of the death of employee while in service leaving his  family without any means of livelihood.  In such cases the object is to  enable the family to get over sudden financial crisis. But such appointments  on compassionate ground have to be made in accordance with the rules,  regulations or administrative instructions taking into consideration the  financial condition of the family of the deceased.

In Smt. Sushma Gosain and Ors. v. Union of India and Ors. (1989 (4)  SCC 468) it was observed that in all claims of appointment on compassionate  grounds, there should not be any delay in appointment.  The purpose of  providing appointment on compassionate ground is to mitigate the hardship  due to death of the bread-earner in the family.  Such appointments should,

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therefore, be provided immediately to redeem the family in distress. The  fact that the ward was a minor at the time of death of his father is no  ground, unless the scheme itself envisage specifically otherwise, to state  that as and when such minor becomes a major he can be appointed without any  time consciousness or limit. The above view was re-iterated in Phoolwati  (Smt.) v. Union of India and Ors. (1991 Supp. (2) SCC 689) and Union of  India and Ors. v. Bhagwan Singh (1995 (6) SCC 476). In Director of Education  (Secondary) and Anr. v. Pushpendra Kumar and Ors. (1998 (5) SCC 192); it was  observed that in matter of compassionate appointment there cannot be  insistence for a particular post. Out of purely humanitarian consideration  and having regard to the fact that unless some source of livelihood is  provided the family would not be able to make both ends meet, provisions are  made for giving appointment to one of the dependants of the deceased who may  be eligible for appointment. Care has, however, to be taken that provision  for ground of compassionate employment which is in the nature of an  exception to the general provisions does not unduly interfere with the right  of those other persons who are eligible for appointment to seek appointment  against the post which would have been available, but for the provision  enabling appointment being made on compassionate grounds of the dependant of  the deceased employee. As it is in the nature of exception to the general  provisions it cannot substitute the provision to which it is an exception  and thereby nullify the main provision by taking away completely the right  conferred by the main provision.   

       In State of U.P. and Ors. v. Paras Nath (1998(2) SCC 412) it was held  that the purpose of providing employment to the dependant of a government  servant dying-in harness in preference to anybody else is to mitigate  hardship caused to the family of the deceased on account of his unexpected  death while in service.  To alleviate the distress of the family, such  appointments are permissible on compassionate grounds provided there are  Rules providing for such appointments.  None of these considerations can  operate when the application is made after a long period of time. In that  case also the delay was 17 years.

These aspects were highlighted in State of Manipur  v. Md. Rajaodin    (2003 (7) SCC 511), State of Haryana & Anr. v. Ankur Gupta (2003 (7) SCC  704), Haryana State Electricity Board v. Naresh Tanwar  (1996 (8) SCC 23)   and Haryana State Electricity Board v. Hakim Singh  (1997 (8) SCC 85) and  Punjab National Bank  and Ors. v. Ashwini Kumar Taneja  (Civil Appeal No.  5256 of 2004 decided on 16.8.2004)   Above being the position, we find the judgment of the High Court to be  unsustainable.  The same is, therefore, set aside.       Our judgment, however, will not stand in the way of the respondent’s  case being considered sympathetically under any scheme or by any  administrative decision in accordance with law.

The appeal is allowed with no orders as to costs.