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PETITIONER: UMESH KUMAR NAGPAL

       Vs.

RESPONDENT: STATE OF HARYANA (Sawant, J.)

DATE OF JUDGMENT04/05/1994

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. SINGH N.P. (J)

CITATION:  1994 SCC  (4) 138        JT 1994 (3)   525  1994 SCALE  (5)834

ACT:

HEADNOTE:

JUDGMENT:      The Judgment of the Court was delivered by SAWANT,  J.-  These two petitions are directed  against  the decision  dated  18-12-1992  of the Division  Bench  of  the Punjab & Haryana High Court in Letters Patent Appeal No. 734 of 1992 and CWP No. 6357 of 1992.  Since they raise a  point of  considerable  importance,  it has  become  necessary  to deliver  a  short  judgment while  dismissing  them  at  the admission stage. 2.The question relates to the considerations which should guide  while  giving  appointment  in  public  services   on compassionate ground.  It appears that there has been a good deal  of obfuscation on the issue.  As a rule,  appointments in the public services should be made strictly on the  basis of  open  invitation of applications and met-it.   No  other mode  of appointment nor any other consideration is  Neither the Governments nor the 140 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

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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  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 dependent 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. 3.Unmindful of this legal position, some Governments  and public   authorities   have  been   offering   compassionate employment  sometimes as a matter of course irrespective  of the  financial condition of the family of the  deceased  and sometimes  even in posts above Classes III and IV.  That  is legally impermissible. 4.It  is  for these reasons that we have not  been  in  a position to appreciate judgments of some of the High  Courts which   have  justified  and  even  directed   compassionate employment  either as a matter of course or in  posts  above Classes  III and TV.  We are also dismayed to find that  the decision of 141 this  Court  in Sushma Gosain v. Union of  India’  has  been misinterpreted  to  the point of distortion.   The  decision does not justify compassionate employment either as a matter of  course or in employment in posts above Classes  III  and IV.  In the present case, the High Court has rightly pointed out that the State Government’s instructions in question did not  justify  compassionate employment in  Class  11  posts. However,  it  appears  from  the  judgment  that  the  State Government  had  made at least one  exception  and  provided compassionate  employment in Class II post on  the  specious ground    that   the   person   concerned   had    technical qualifications  such as M.B.B.S., B.E., B.Tech.  etc.   Such exception,  as  pointed out above, is illegal, since  it  is contrary  to the object of making exception to  the  general rule.   The  only  ground which  can  justify  compassionate employment  is  the penurious condition  of  the  deceased’s family.  Neither the qualifications of his dependent nor the post which he held is relevant.  It is for this reason  that we  are unable to understand the following  observations  of the High Court in the impugned judgment:               "We  are  of the view that  the  extraordinary               situations require extraordinary remedies  and               it  is  open to the Government  in  real  hard               cases to deviate from the letter and spirit of               the  instructions  and to  provide  relief  in

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             cases where it is so warranted.  To hold as  a               matter  of  law  that  the  Government  cannot               deviate  even  minutely  from  the  policy  of               providing  appointment only against Class  III               and  Class  IV posts, would be to  ignore  the               reality  of  life  these days.   It  would  be               ridiculous  to  expect that a dependant  of  a               deceased  Class I Officer, should  be  offered               appointment  against a Class III or  IV  post.               While  we  leave  it  to  the  Government   to               exercise its discretion judiciously in  making               appointments  to  Class  I  or  11  posts   on               compassionate  grounds, yet a word of  caution               needs  to be struck.  It is to be  noted  that               such  appointments  should be ordered  in  the               rarest of rare cases, and in very  exceptional               circumstances.  As a matter of fact, we  would               recommend  that the Government should frame  a               policy even for such appointments." 5. It is  obvious from the above observations that the  High Court  endorses the policy of the State Government  to  make compassionate  appointment in posts equivalent to the  posts held by the deceased employees and above Classes III and IV. It  is unnecessary to reiterate that these observations  are contrary to law.  If the dependant of the deceased  employee finds it below his dignity to accept the post offered, he is free not to do so.  The post is not offered to cater to  his status but to see the family through the economic calamity. 6.For  these very reasons, the  compassionate  employment cannot be granted after a lapse of a 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 1 (1989)4SCC468:1989SCC(L&S)662:(1989)11ATC878:(1989)4SLR327 142 breadwinner, the compassionate employment cannot be  claimed and offered whatever the lapse of time and after the  crisis is over. 7.It  is  needless to emphasise that the  provisions  for compassionate employment have necessarily to be made by  the rules  or  by  the  executive  instructions  issued  by  the Government   or   the  public  authority   concerned.    The employment cannot be offered by an individual functionary on an ad hoc basis. 8.   For  the  reasons given above, we dismiss  the  special leave petitions. 143