Reportable  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4210 OF 2003

V. Sivamurthy … Appellants

Vs.

State of Andhra Pradesh & Ors. … Respondents

With  

CA Nos. 4208-4209, 4213, 4226 of 2003  

J U D G M E N T

R. V. RAVEENDRAN, J.

These  appeals  by  special  leave  challenge  the  judgment  dated

12.10.2001  of  a  Full  Bench of  Andhra Pradesh  High Court  holding  that

there can be no appointment on compassionate grounds in cases other than

death  of  a  government  servant  in  harness,  and  that  any  scheme  for

compassionate  appointment  on  medical  invalidation  of  a  government

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servant, is unconstitutional, being violative of Article 16 of the Constitution

of India.  

2. By  GO  dated  30.7.1980,  the  government  of  Andhra  Pradesh

formulated  a  scheme  for  providing  compassionate  appointment  to  the

dependents  (spouse/son/daughter)  of Government servants  who retired on

medical  invalidation.  By a further  GO dated  4.7.1985,  the benefit  of the

scheme was restricted to cases where the Government servants retired on

medical  invalidation,  at  least  five  years  before  attaining  the  age  of

superannuation.  To prevent  misuse of  the scheme,  the State  Government

issued GO dated 9.6.1998, prescribing suitable safeguards and procedures

by constituting Medical Boards, District/State Level Committees to examine

and recommend the applications for compassionate appointment on ground

of medical invalidation. It provided that as and when a government servant

sought retirement on medical grounds, the concerned appointing authority

should refer the case to the Medical Board; that on receiving the medical

opinion, he should refer the matter to the District Level Committee (or the

State Level Committee in respect of employees in the Secretariat); and that

the  said  Committee  would  scrutinize  the  proposals  for  compassionate

appointment  in  accordance  with  the  guidelines  and  make  its

recommendations  to  the  State  Government  which  would  take  the  final

decision.  

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3. The following clarification was issued by Government Memo (‘GM’

for short) dated 25.6.1999, as to the date with reference to which the five

year period prior to superannuation should be reckoned:  

“It is hereby clarified that the benefit of compassionate appointment will be applicable only to those government employees who retire on Medical Invalidation Five (5) years before they attain the age of superannuation. Therefore, the required period of five (5) years of left over service is to be reckoned  from  the  date  of  issue  of  orders  of  retirement  on  medical invalidation.  It  is  further  clarified  that  in  cases  where  the  Government employees  do  not  have  five  (5)  years  of  service  before  the  employees attain the age of superannuation at the time of considering such cases by the State Level Committee or District Level Committees, the respective Committees  after  scrutiny  of  Medical  invalidation  certificates  in  those cases may recommend only for retirement of such government employees on  medical  invalidation  as  per  the  certificate  issued  by  the  Medical Board.”

The  said  clarification  led  to  considerable  grievance.  The  government

servants felt  that the clarification was not just. They contended that even

when a government servant  made an application for medical  invalidation

when the ‘left over period’ was more than five years, if there was delay on

the  part  of  Medical  Board  and/or  the  District  Level  or  State  Level

Committee in processing and making the recommendations, the ‘left over

period’  may  get  reduced  to  less  than  five  years  thereby  making  his

dependant  ineligible  for  the  benefit  of  compassionate  appointment.  For

example, if an application for medical invalidation was made six years prior

to  the  due  date of  superannuation,  but  the process  of  verification by the

Medical Board, the process of recommendation by the District/State Level

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Committee and the process of sanctioning of retirement, took more than one

year, and as a consequence the sanction for retirement is given on a date

when the ‘left over period of service’ is less than five years, for no fault of

the government  servant,  the benefit  of  compassionate  appointment  to  his

dependant  family member will  be denied.  Another  example is  where the

application  is  made  five  and  half  years  prior  to  the  due  date  of

superannuation,  and  the  decision  of  the  Medical  Board  and  the

recommendations  of  the  District/State  Level  Committee  is  given  within

three months leaving a clear left over period of five years and three months,

but the state government takes four months and the actual sanction is given

on  a  date  which  falls  within  five  years  before  the  due  date  of

superannuation, the dependant of the government servant would be denied

the benefit  of compassionate  appointment for no fault  of the government

servant or his dependant. They contended that when a government servant

gave the application when the ‘left over period of service’ was more than

five  years,  he  should  not  be  penalized  by  denial  of  compassionate

appointment to a family member,  for reasons  of delay on the part of the

Medical  Board,  or  District/State  Level  Committee  or  the  Government,

which are beyond his control. They therefore contended that the five year

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period prior  to superannuation should be calculated with reference to the

date of application for medical invalidation.  

4. Many of the government servants and/or their children/spouses who

were denied the benefit  of the scheme, on the ground that by the date of

retirement on medical invalidation, ‘the left over period of service’ was less

than five years, approached the AP Administrative Tribunal. The Tribunal

in several cases including the cases of respondents, took the view that the

five  year  period  should  be  calculated  with  reference  to  the  date  of

application  by  the  government  servant  for  retirement  on  medical

invalidation and rejected the clarification in the GM dated 25.6.1999. These

orders were challenged by the State Government in several writ petitions

before the High Court on the ground that its policy decision contained in

GM dated 25.6.1999 was not open to interference. The said writ petitions

were disposed of by a Full Bench by the impugned order dated 12.10.2001.

Though the only issue in the writ petitions was whether the ‘five years left

over  service’  should  be  reckoned  from  the  date  of  application  by  the

government servant or from the date of sanction of retirement by the state

government, the Full Bench neither addressed nor answered that question.

On the  other  hand,  it  took  up  for  consideration  the  following  question:

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“whether  compassionate  appointments  on  the  ground  of  medical

invalidation,  were  permissible  having  regard  to  Article  16  of  the

Constitution  of  India?”  The  Full  Bench  observed  in  the  course  of  its

judgment that though the question of vires of the scheme was not raised in

the writ petitions, it had heard the parties at length on the said question. But

the  fact  was  that  neither  the  State  Government  nor  the  employees  were

interested in raising such a question. Nor did they want a decision on such a

question. Nevertheless, the Full Bench went into the constitution validity of

the policy and held that the policy offering appointment to a dependant on

compassionate grounds on medical invalidation of the government servant,

did  not  satisfy  the  requirements  of  Article  16.  The  said  judgment  is

challenged by the government servants or the applicants for compassionate

appointment, in these appeals by special leave.  

5. We  may  refer  to  a  development  in  pursuance  of  the  impugned

judgment of the High Court. In view of the declaration by the Full Bench

that the scheme for compassionate appointment on medical invalidation was

invalid and unconstitutional, the State Government by GM dated 27.4.2002

dispensed  with  the  scheme  of  compassionate  appointments  on  medical

invalidation.  By  a  further  GM  dated  17.7.2002,  the  State  Government

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directed  that  appointments  cannot  be made even  in  cases  pending  as  on

12.10.2001.  

6. On  the  contentions  raised  the  following  questions  arise  for  our

consideration:

(i) Whether  compassionate  appointment  of  sons/daughters/spouses  of government  servants  who  retire  on  medical  invalidation  is unconstitutional and invalid?  

(ii) Whether the High Court could have considered and decided an issue which was not  the subject  matter of the writ  petitions,  particularly when neither party had raised it or canvassed it?  

(iii) Whether the Government was justified in issuing clarificatory order dated  25.6.1999  that  the  left  over  period  of  five  years  should  be reckoned from the date  of  issue of order  of  retirement  on medical invalidation, is unreasonable and arbitrary?   

Re : Question No. (i):  

7. Article 16 of the Constitution bars discrimination in employment on

the  ground  only  of  descent.  If  the  service  rules  or  any  scheme  of

government  provides  that  whenever  a  government  servant  retires  from

service, one of his dependants should be given employment in his place, or

provides  that  children  of  government  servants  will  have  preference  in

employment,  that  would  squarely  fly  in  the  face  of  prohibition  on  the

ground of descent. Employment should not be hereditary or by succession.

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But where the policy provides for compassionate appointment in the case of

an  employee  who  dies  in  harness  or  an  employee  who  is  medically

invalidated, such a provision is based on a classification which is not  only

on the ground of descent. The classification is based on another condition in

addition to descent : that is death of the employee in harness, or medical

invalidation of the employee while in service.  

8. This  Court  had  occasion  to  consider  the  difference  between

conferment of a preferential right to appointment to a family member of a

government servant, merely on the ground that he happens to be a family

member, and schemes relating to compassionate appointment of dependant

family members of government servants who die while in service or who are

incapacitated while in service.   

8.1) In Gazula Dasaratha Rama Rao  vs. State of Andhra Pradesh [1961

(2)  SCR  931]  dealing  with  section  6(1)  of  the  Madras  hereditary

Village-Offices Act, 1895, this Court observed thus :  

“It  would  thus  appear  that  Article  14  guarantees  the  general  right  of equality; Articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances. Articles 15 is more general than Article 16, the latter being confined to matters relating to employment or appointment to any office under the State. It is also worthy of note that Article 15 does not mention 'descent' as one of the prohibited grounds of discrimination,  whereas Article  16 does.....  There can be no doubt  that Section 6(1) of the Act does embody a principle of discrimination on the

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ground of descent only. It says that in choosing the person to fill the new offices, the Collector shall select the persons whom he may consider the best qualified from among the families of the last holders of the offices which have been abolished. This, in our opinion, is discrimination on the ground of  descent  only and is  in  contravention of  Article  16(2)  of  the Constitution."

8.2) In  Yogender Pal Singh vs. Union of India [1987 (1) SCC 631], this

Court held :  

“While it  may be permissible to appoint  a  person who is  the son of a police officer who dies in service or who is incapacitated while rendering service in the Police Department, a provision which confers a preferential right  to  appointment  on the children or  wards or other  relatives  of the police officers either in service or retired merely because they happen to be children  or  wards  or  other  relatives  of  such  police  officers  would  be contrary to Article 16 of the Constitution. Opportunity to get into public service should be extended to all the citizens equally and should not be confined to any extent to the descendants or relatives of a person already in the service of the State or who has retired from the service…… …..Any preference shown in the matter of public employment  on the ground of descent only has to be declared as unconstitutional….”

[emphasis supplied]

8.3) In Umesh Kumar Nagpal v. State of Haryana [1994 (4) SCC 138] this

Court held :

“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  nor  any  other  consideration  is  permissible.  Neither  the Governments nor 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 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

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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 posts in class III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds.”

(emphasis supplied)

8.4) In  Haryana State Electricity  Board v. Hakim Singh [1997 (8) SCC

85] this Court reiterated the object of compassionate appointments, thus:

“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 relief  is  provided  to  the  bereaved  family  of  a  deceased  employee  by accommodating one of his dependants in a vacancy. The object is to give succour to the family which has been suddenly plunged into penury due to the untimely death of its sole breadwinner. 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.”

[emphasis supplied]

8.5) In  Director  of  Education  (Secondary) v. Pushpendra Kumar [1998

(5) SCC 192], this Court considered the nature and object of compassionate

appointments, in particular, in case of death in-harness cases :

“The  object  underlying  a  provision  for  grant  of  compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood.  Out of pure 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, a provision is made for giving gainful appointment to one of  the  dependants  of  the  deceased  who  may  be  eligible  for  such

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appointment.  Such  a  provision  makes  a  departure  from  the  general provisions  providing  for  appointment  on  the  post  by  following  a particular procedure. Since such a provision enables appointment being made  without  following  the  said  procedure,  it  is  in  the  nature  of  an exception to the general provisions.”

(emphasis supplied)

8.6) In State of Haryana v. Ankur Gupta [2003 (7) SCC 704], this Court

observed :

“As was observed in State of Haryana v. Rani Devi (1996) 5 SCC 308 it need  not  be  pointed  out  that  the  claim  of  the  person  concerned  for appointment on compassionate ground is based on the premise that he was dependent on the deceased employee. Strictly, this claim cannot be upheld on  the  touchstone  of  Article  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…..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 the 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.”

8.7) In  Food Corporation  of  India v.  Ram Kesh Yadav [2007 (9)  SCC

531], this Court observed :

“There is no doubt that an employer cannot be directed to act contrary to the terms of its  policy governing compassionate  appointments. Nor can compassionate appointment be directed dehors the policy. In LIC v. Asha Ramchhandra Ambekar (1994) 2 SCC 718 this Court stressed the need to examine  the  terms  of  the  rules/scheme  governing  compassionate appointments and ensure that the claim satisfied the requirements before directing compassionate appointment.”

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9. The  principles  relating  to  compassionate  appointments  may  be

summarized thus :  

(a) Compassionate  appointment  based  only  on  descent  is impermissible.  Appointments  in  public  service  should  be  made strictly  on  the  basis  of  open  invitation  of  applications  and comparative  merit,  having  regard  to  Articles  14  and  16  of  the Constitution  of  India.  Though  no  other  mode  of  appointment  is permissible,  appointments  on  compassionate  grounds  are  well recognised  exception  to  the  said  general  rule,  carved  out  in  the interest of justice to meet certain contingencies.  

(b) Two well  recognized  contingencies  which  are  carved  out  as exceptions to the general rule are :

(i) appointment  on  compassionate  grounds  to  meet  the sudden  crisis  occurring  in  a  family  on  account  of  the death of the bread-winner  while in service.  

(ii) appointment on compassionate ground to meet the crisis in  a  family  on  account  of  medical  invalidation  of  the bread winner.  

Another contingency, though less recognized, is where land holders lose their  entire land for  a public  project,  the scheme provides  for compassionate  appointment  to  members  of  the  families  of  project affected  persons.  (Particularly  where  the  law  under  which  the acquisition is made does provide for market value and solatium, as compensation).  

(c) Compassionate  appointment  can  neither  be  claimed,  nor  be granted,  unless  the  rules  governing  the  service  permit  such appointments. Such appointments shall be strictly in accordance with the  scheme  governing  such  appointments  and  against  existing vacancies.  

(d) Compassionate appointments are permissible only in the case of a dependant member of family of the employee concerned, that is

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spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, class III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts.

10. The  High  Court  referred  to  the  various  decisions  dealing  with

compassionate  appointments  and  culled  out  the  principles  relating  to

compassionate appointment. Then it referred to the decision of this Court in

Auditor General of India v. G.Ananta Rajeswara Rao [1994 (1) SCC 192]

and inferred  therefrom a proposition  that  there  can  be no  compassionate

appointment  in  cases other  than death in  harness  cases.  On that  basis,  it

proceeded to hold that appointments on compassionate grounds on medical

invalidation  were  contrary  to  the  principles  underlying  Article  16  and

therefore,  unconstitutional.  Firstly,  this  Court  in  Ananta  Rajeswara  Rao,

nowhere laid  down a proposition that  compassionate  appointment can be

only in cases of death in harness and not in cases of medical invalidation or

other contingencies. Secondly, the High Court overlooked the fact that the

principles  underlying  Article  16  were  violated,  not  only  in  cases  of

compassionate appointments as a consequence of medical invalidation, but

also in cases of compassionate appointments as a consequence of death in

harness. But both are saved as they are considered to be exceptions to the

rule contained in Article 16, carved out to meet special contingences in the

interests of justice.   

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11. In Ananta  Rajeswara  Rao (supra),  this  Court  was  considering  the

validity of a scheme which contemplated appointments  on compassionate

grounds being made not only in the case of sons and daughters,  but also

near relatives of a Government servant who died in harness. The scheme

further  provided  that  in  deserving  cases  even  where  there  is  an  earning

member in the family, compassionate appointment to another member was

permissible. Dealing with the memorandum containing the said scheme, this

Court held :    

“A reading of these various clauses in the Memorandum discloses that the appointment  on  compassionate  grounds  would  not  only  be  to  a  son, daughter  or  widow  but  also  to  a  near  relative  which  was  vague  or undefined. A person who dies in harness and whose members of the family need  immediate  relief  of  providing  appointment  to  relieve  economic distress  from  the  loss  of  the  bread-winner  of  the  family  need compassionate  treatment.  But  all  possible  eventualities  have  been enumerated to become a rule to avoid regular recruitment. It would appear that these enumerated eventualities would be breeding ground for misuse of  appointments  on  compassionate  grounds.  Articles  16(3)  to  16(5) provided exceptions. Further exceptions must be on constitutionally valid and permissible grounds.  Therefore,  the High Court  is right in holding that the appointment on grounds of descent clearly violates Article 16(2) of the Constitution. But, however, it is made clear that if the appointments are confined to the son/daughter or widow of the deceased government employee who died in harness and who needs immediate appointment on grounds of immediate need of assistance in the event of there being no other earning member in the family to supplement the loss of income from the bread-winner to relieve the economic distress of the members of the family, it is unexceptionable.”

[emphasis supplied]

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The  observations  in  Ananta  Rajeswara  Rao (supra)  that  compassionate

appointments  should  be  confined  to  the  son/daughter  or  widow  of  the

deceased  government  employee  who  dies  in  harness,  was  not  made  in

contradistinction from the position relating to compassionate appointments

in medical invalidation cases. In fact, this Court had no occasion to consider

the other several contingencies in which compassionate appointments could

be  made.  In  particular  it  did  not  at  all  consider  whether  compassionate

appointment could be granted in cases of medical invalidation. Nor did it

lay down that only in the case of government employee dying in harness,

compassionate appointment is available. The questions that was considered

were :  (i)  where there is  a scheme for compassionate appointment in the

case of a government employee dying in harness, whether employment can

be offered only to a son/daughter/widow or whether it can be offered to any

other  near  relatives  of  the  deceased;  and  (ii)  whether  compassionate

appointment can be offered even if there is already another earning member

in  the  family  of  the  deceased.  It  is  in  that  context  this  Court  said  that

compassionate  appointment  should  be  confined  only  to  a  son/daughter/

widow  of  the  deceased  government  employee  who  dies  in  harness  and

whose family did not have another earning member. When this Court said

that  compassionate  appointment  should  be  restricted  only  to  the

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son/daughter/wife  of  a  government  servant  dying  in  harness,  what  was

excluded was compassionate appointments of near relatives of the deceased

dying in harness as also compassionate appointments to anyone where the

family  of  the  employee  dying-in-harness  had  already  another  earning

member.  This  Court  neither  considered  nor  excluded  compassionate

appointment  on  medical  invalidation  or  other  grounds,  vis  a  vis

compassionate appointment in the case of employees dying in harness.  

12. In  fact  several  decisions  of  this  Court  make  it  clear  that

compassionate appointment is not restricted to death in harness cases only.

As noticed above, in Umesh Kumar Nagpal (supra) this Court observed that

the general rule that appointments in public service should be strictly on the

basis  of  open  invitation  of  applications  and  merit,  is  subject  to  “some

exceptions carved  out  in  the  interest  of  justice  and  to meet  certain

contingencies.”  To the  same effect  are  the  observations  of  this  Court  in

Hakim  Singh (supra)  where  this  Court  again  said  that  the  rule  of

appointments to public service is that they should be on merit and through

open invitation, but there are a few exceptions to the said rule which have

been  evolved  to  meet  certain  contingencies.  The  use  of  the  words  “few

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exceptions”  and “to meet  certain  contingencies”,  in  the  above decisions,

make it clear that the exceptions to the general rule (that employment should

be by open invitation and on merit) by way of compassionate appointment is

not  restricted to only one contingency of death in harness. The decisions

make it clear that exceptions to the rule, may relate to several contingencies,

one of which is employee dying in harness. There can be exceptions in other

extreme cases of sudden deprivation of means of livelihood. If the intention

was  to  restrict  compassionate  appointments  only  to  cases  of  death  in

harness,  these  two  decisions  would  have  obviously  used  the  words

‘exception’ and ‘contingency’ instead of ‘exceptions’ and ‘contingencies’.

Further in  Yogendra Pal Singh (supra), this Court made it clear that while

appointment  only  on  the  criterion  of  descent  would  be  unconstitutional,

appointment  of  a  dependant  is  permissible  both when  the  government

servant dies in service or is incapacitated while rendering service. We may

also notice that this Court dealt with provisions relating to compassionate

appointments on medical invalidation in several cases, but did not hold that

such appointments were violative of Article 16. Reference may be made to

W.B. State Electricity Board vs. Samir K. Sarkar – 1999 (7) SCC 672, and

Food Corporation of India vs. Ram Kesh Yadav – 2007 (9) SCC 531. Be

that as it may. The assumption by the High Court, that this Court had held

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that compassionate appointments can be only in death-in-harness cases and

not in retirement on medical invalidation cases, is not sound.

13. As an incidental reason for holding that compassionate appointments

are  not  permissible  in  cases  of  medical  invalidation,  the  High Court  has

observed  that  death  stands  on  a  “higher  footing”  when  compared  to

sickness.  The inference is  compassionate  appointment in  case of medical

invalidation  cannot  be  equated  with  death  in  harness  cases,  as  medical

invalidation is not of the same degree of importance or gravity as that of

death; and that as medical invalidation is not as serious as death in harness,

exception can be made only in cases of employees dying in harness. But

what  is  lost  sight  of  is  the  fact  that  when  an  employee  is  totally

incapacitated  (as  for  example when he is  permanently bed ridden due  to

paralysis or becoming a paraplegic due to an accident or  becoming blind)

and the services of such an employee is terminated on the ground of medical

invalidation,  it  is  not  a  case  of  mere  sickness.  In  such  cases,  the

consequences  on  his  family,  may  be  much  more  serious  than  the

consequences of an employee dying in harness. When an employee dies in

harness, his family is thrown into penury and sudden distress on account of

stoppage of income. But where a person is permanently incapacitated due to

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serious illness or accident, and his services are consequently terminated, the

family  is  thrown  into  greater  financial  hardship,  because  not  only  the

income  stops,  but  at  the  same  time  there  is  considerable  additional

expenditure by way of medical treatment as also the need for an attendant to

constantly  look  after  him.  Therefore,  the  consequences  in  case  of  an

employee  being  medically  invalidated  on  account  of  a  serious

illness/accident, will be no less, in fact for more than the consequences of

death in harness. Though generally death stands on a higher footing than

sickness, it cannot be gainsaid that the misery and hardship can be more in

cases of medical invalidation involving total blindness, paraplegia serious

incapacitating illness etc.  

14. Another  observation  made  by  the  High  Court  in  support  of  its

conclusion is that “while considering the cases of sick employees, the court

cannot  lose  sight  of  cases  of  sick  unemployed.”  What  the  High  Court

apparently  means  is  that  if  an  exception  is  made  for  compassionate

appointments  in  the  case  of  an  employee  medically  invalidated,  it  may

account  to  hostile  discrimination,  as  compassionate  appointment  is  not

extended in the case others who are equally sick but are not employees of

the government. But the same logic is applicable to death in harness cases

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also. It  can equally be said that  “while considering the cases of death of

employees in service, the court cannot lose sight of cases of death of other

unemployed poor”. Members of the family of a deceased are thrown into

penury and hardship not only where the deceased is a government servant,

but also where they belong to weaker or poorer sections of the society. In

fact  in  the case of death of  government  servants,  there is  at  least  family

pension and terminal benefits. But in the case of death of anyone belonging

to poor and weaker sections, there is nothing at all to support their families.

Should compassionate appointments be therefore stopped even in death in

harness case also? The issue is complex. Comparison with non-employed is

neither logical nor sound.  

15. When compassionate  appointment  of  a dependant  of  a government

servant who dies in harness is accepted to be an exception to the general

rule, there is no reason or justification to hold that an offer of compassionate

appointment  to  the  dependant  of  a government  servant  who is  medically

invalidated,  is  not  an  exception  to  the  general  rule.  In  fact,  refusing

compassionate  appointment  in  the  case  of  medical  invalidation  while

granting compassionate appointment in the case of death in harness, may

itself amount to hostile discrimination. While being conscious that too many

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exceptions may dilute the efficacy of Article 16 and make it unworkable, we

are  of  the  considered  view  that  the  case  of  dependants  of  medically

invalidated employees stands on an equal footing to that of dependants of

employees who die in harness for purpose of making an exception to the

rule.  For  the  very  reasons  for  which  compassionate  appointments  to  a

dependant of a government servant who dies in harness are held to be valid

and permissible, compassionate appointments to a dependant of a medically

invalidated government servant have to be held to be valid and permissible.  

16. There are of course safeguards to be taken to ensure the scheme is not

misused. One is to ensure that mere medical unfitness to continue in a post

is  not  treated  as  medical  invalidation  for  purposes  of  compassionate

appointment. A government servant should totally cease to be employable

and become a burden on his family, to warrant compassionate appointment

to a member of his family. Another is barring compassionate appointments

to dependants of an employee who seeks voluntary retirement on medical

grounds on the verge of superannuation. This Court observed in Ram Kesh

Yadav (supra) as follows :

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“But  for  such  a  condition,  there  will  be  a  tendency  on  the  part  of employees  nearing  the  age of  superannuation  to  take  advantage of  the scheme and seek voluntary retirement at the fag end of their service on medical  grounds  and  thereby  virtually  creating  employment  by “succession”. It is not permissible for the court to relax the said condition relating  to  age  of  the  employee.  Whenever  a  cut-off  date  or  age  is prescribed, it is bound to cause hardship in marginal cases, but that is no ground to hold the provision as directory and not mandatory.”

We find  that  in  this  case stringent  safeguards  were  in  fact  built  into  the

scheme on both counts by GMs dated 4.7.1985 and 9.6.1998.  

Re : Question No. (ii) :

17. The  learned  counsel  for  appellants  submitted  that  rational

classification is not prohibited by either Article 14 and 16 and that unless

someone is aggrieved by a classification, and challenges it on the ground of

hostile discrimination or denial of equal opportunity, there is no occasion

for a court to suo motu consider whether a policy relating to an affirmative

action is valid or not. Reliance was placed on observations of this Court in

M.Purandara v. Mahadesh S. [2005 (6) SCC 791] and Som Mittal v. State

of Karnataka [2008 (2) Scale 717]. In Purandara, this Court observed that

where an issue was not before the court and none had raised the question,

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adjudication on such issue is not proper; and that issues in question alone,

and not  matters  at  large,  could be considered.  In  Som Mittal, this  Court

observed that while rendering judgments, courts should only deal with the

subject matter of the case and the issues involved therein, and courts should

desist  from issuing directions  affecting executive or legislative policy, or

general directions unconnected with the subject matter of the case.

18. We  are  however  of  the  view  that  the  appellants’  grievance  is

unwarranted. It is true that the State Government had challenged the orders

of the Tribunal only with reference to the interpretation of a provision of an

existing scheme, as to the date of commencement of the five year left over

period prior to superannuation. But if during hearing, the question about the

validity of the scheme was raised and therefore the matter was placed before

a Full Bench having regard to the importance of the issue, the appellants

cannot have any grievance so long as they were heard. We find that the Full

Bench  has  noted  the  reason  as  to  why  the  issue  was  examined  thus:

“Although the question of vires of the Scheme was not specifically raised in

the  writ  petitions,  but  having  regard  to  the  importance  thereof,  the  said

question was permitted to be raised by the learned Counsel appearing for

the parties. In this regard, we have heard the learned Counsel for the parties

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in great detail.”   The issue considered was not wholly unconnected to the

subject matter of the writ petitions. We therefore reject the contention that

the decision of the High Court should be interfered, on the ground that it

was a decision on a non-issue.    

Re : Point No. (iii) :

19. The ‘five year left over period’ is capable of being commenced with

reference to any one of the following dates : (i) the date of application by

the Government servant for medical invalidation; (ii) the date of report of

the Medical  Board certifying that  the Government servant  required to  be

medically invalidated; (iii) the date of recommendation by the State/District

Level Committee in regard to medical invalidation; and (iv) the date of issue

of orders of retirement on medical invalidation.  

20. The contention of the appellants is that once an application is made

by a government servant  at  a point  of  time when the left  over period of

service  is  more than five years,  the medical  examination  by the Medical

Board, recommending process by the District/State Level Committees and

consideration and decision by the state government, are not in the hands of

the Government servant and therefore neither he nor his dependant should

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be punished by denying compassionate appointment on account of delays on

the  part  of  the  authorities.  The  appellants  therefore  contend  that  the

eligibility should be determined with reference to date of application and

not with reference to date of sanction. But the terms of the scheme are clear.

The  benefit  of  compassionate  appointment  is  available  to  a

son/daughter/spouse of a government servant  who retires from service on

medical invalidation five years before attaining the age of superannuation.

Under the scheme therefore, the five year cut off period commences from

the date of retirement from service on medical invalidation and not from the

date  of  application  by the government  servant  for  retirement  on  medical

invalidation.  This  was  also  clarified  in  the  G.M dated  25.6.1999  which

forms part of the scheme. The issue is not what is most advantageous to the

government servant, but what is the actual term of the scheme. The question

is not whether an interpretation which is more advantageous or beneficial to

the Government  servant  should  be  adopted.  The  question  is  whether  the

policy as it stands which is clear and unambiguous, is so unreasonable or

arbitrary or absurd as to invite an interpretation other than the normal and

usual meaning. Matters of policy are within the domain of the executive. A

policy is not open to interference merely because the court feels that it is not

practical  or less advantageous for government servants for whose benefit

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the policy is made or because it considers that a more fairer alternative is

possible. Compassionate appointment being an exception to the general rule

of appointment, can only be claimed strictly in accordance with the terms of

scheme and not by seeking relaxation of the terms of the scheme. The fact

that  on  account  of  certain  delays  in  processing  the  application,  a

government servant  may lose the benefit  of  the scheme, is  no ground to

relax the terms of the scheme. If in a particular case the processing of an

application is  deliberately delayed to  deny the benefit  to  the government

servant, the inaction may be challenged on the ground of want of bona fides

or  ulterior  motives.  But  where  the  time taken to  process  the  application

(through medical Board, local/State level Committee and the government) is

reasonable,  the  government  servant  cannot  contend  that  relief  should  be

extended, even if the left over period is less than five years. Let us give an

example. If an application for compassionate appointment on the ground of

medical  invalidation is given five years and one week before the date of

superannuation, obviously the Government servant cannot expect the entire

process  of  scrutiny,  medication  examination,  recommendation  and

consideration at three levels should be completed in one week. He cannot

contend that  when he had made the application the left  over  period was

more than five years and therefore his dependant is entitled to appointment.

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As stated above these are matters of policy and courts will not interfere with

the terms of a policy, unless it is opposed to any constitutional or statutory

provision or suffers from manifest arbitrariness and unreasonableness.  

Conclusion

21. We  therefore allow these appeals, set aside the judgment of the High

Court.  We also  set  aside  the  orders  of  the  Tribunal  though  on  different

grounds. We uphold the validity of the compassionate appointment scheme

(contained in the GO dated 30.7.1980, 4.7.1985 and 9.6.1998 as clarified by

Memo dated 25.6.1999) providing that the period of five years of ‘left over

service’ should be reckoned from the date of issue of the order of retirement

on medical invalidation and not from the date of application for retirement

on medical invalidation.  

22. As the scheme was withdrawn by GM dated 27.4.2002 to give effect

to  the  impugned  decision  of  the  High  Court,  the  state  government  is  at

liberty to revive the scheme with or without modifications.  

………………………...J (R. V. Raveendran)

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New Delhi; ……………………...…J August 12, 2008. (Lokeshwar Singh Panta)

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