1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Balwant Singh vs. Union of India & Ors. (D.B.Civil Writ Petition No.6618/05) Date of Judgment:- 13th October, 2006. HON'BLE THE CHIEF JUSTICE SHRI S.N.JHA HON'BLE JUSTICE SHRI MOHAMMAD RAFIQ Mr. R.S.Saluja, Advocate for the petitioner. Mr.M.S.Godara, Advocate for Union of India. REPORTABLE BY THE COURT: (PER HON'BLE MOHAMMAD RAFIQ,J.) This writ petition has been preferred against the judgment dated 26th August, 2004 passed by the Central Administrative Tribunal,Jodhpur Bench, Jodhpur( in short “the Tribunal”) whereby original application of the petitioner seeking direction to the Union Government for appointing him on compassionate ground was dismissed. Earlier then approaching the Tribunal, the petitioner had gone through two rounds of 2 litigation. He filed the first original application before the Tribunal sometime in the month of August, 2001 on the premise that his father while serving the respondents as extra departmental postal agent expired on 10.3.2001 and his application seeking appointment on compassionate ground has been rejected by the respondents without assigning any reasons on 7th August, 2001. The Tribunal by its judgment dated 2.1.2001 rejected the said original application holding that since the petitioner was not dependent on his father, he was not entitled to appointment on compassionate ground. The petitioner challenged the said judgment of the Tribunal was challenged by the petitioner before this Court in D.B.C.Writ Petition No. 4424/01. This writ petition was allowed by this Court vide judgment dated 13th May, 2002. In the judgment, it was held that whether or not a person was solely dependent on his father cannot be decided only on the basis of his marital status particularly in the rural areas. The Tribunal while dismissing the original application did not assign any reason except this and the respondents also have not disclosed the reasons for rejecting the petitioner's prayer for compassionate 3 appointment. While allowing the writ petition, this Court directed the respondents authorities to consider the application of the petitioner for compassionate appointment afresh and pass a reasoned order if the appointment is refused. The petitioner thereupon submitted a fresh application before the respondents on 23rd May, 2002 again requesting for compassionate appointment. The respondents by order dated 23rd August, 2002 again rejected his prayer for compassionate appointment but this time by a detailed and speaking order. Appointment was declined on the premise that object of compassionate appointment was to provide immediate help to the dependent of the deceased government servant so as to help them come out of crisis that has befallen the family due to sudden death of their sole breadwinner. In doing so, facts like number of dependents, properties of the family, their liabilities and income and also the fact if any of members of the family was employed elsewhere have to be taken into consideration. It was stated that apart from the widow of the deceased government servant, he was survived 4 by four sons who were all major and married. The family has no liability nor was it a case where the family was required to pay off the loan taken for treatment of the deceased government servant. The family also held agriculture land which has duly been certified by the revenue authorities. Three of the sons of the deceased government servant were not staying with the family and were self sufficient. There was sufficient income from the agriculture land which has been certified by the Tehsildar(Revenue) to the tune of Rs.45,000/- p.a.. Thus stating, the competent authority again rejected the application of the petitioner for compassionate appointment on review consideration. Still not satisfied with the rejection of his claim, the petitioner again filed a fresh original application on 23.8.2002 before the Tribunal. The Tribunal by its judgment dated 18.7.2003 directed the respondents that the mere fact that the petitioner was married should not disentitle him from consideration for appointment on compassionate grounds. He should also not be refused compassionate appointment 5 because only there was some other income and the `haisiyat' of the family was Rs.45,000/-. The respondents were required to see whether the petitioner and his mother needed any financial help on the death of the employee who was the sole breadwinner of the family. It was held that the fact that there were other sons and daughters was not relevant as they were no longer supporting the widow of the deceased. A direction was therefore again issued to the respondents to reconsider the case of the petitioner for compassionate appointment. The petitioner again submitted a detailed application. The matter of the petitioner was then taken to Circle Relaxation Committee for a fresh consideration. The said committee in its meeting held on 13th August, 2003 again rejected the prayer of the petitioner for compassionate appointment by observing as follows :- “Shri Aad Ram, Ex-GDS BPM Malkheda expired on 10.3.2001 leaving behind widow, 4 married daughters and 4 married sons. 3 sons are living separately. As per revenue records, the applicant owns one Bighas, 15-5/9 Biswa agriculture land and is deriving income of Rs.6,000/- per annum there from. The immovable property of the widow was assessed as Rs.45,000/- by the Tehsildar. The case 6 of Shri Balwant Singh was considered by the CRC on 8/9.8.2002 and did not find indigent, hence rejected. Shri Balwant Singh is qualified up to Matriculation and eligible for consideration for the post of BPM. The Hon'ble CAT has observed that the annual income of the applicant is Rs.20,000/- instead of Rs.45,000/- as stated above. Therefore, financial condition of the applicant was not adequate for leading the normal life of the applicant and his mother. The CRC reconsidered the case in the light of the observations of the Hon'ble CAT and observed that the appointment on compassionate grounds is rendered to provide immediate assistance to the family members of the deceased official who has died in harness leaving the family under grave financial crises. In this case the family is earning Rs.6,000/- through agricultural land and has own house to live in at his village. There is no liability of marriage/education of children. The family has annual income through all other sources which is Rs.20,000/- per annum which is adequate for the widow for her livelihood. Thus, there is no indigency to give appointment to the applicant at this stage. Hence, the case is rejected.” Aforequoted order was conveyed to the petitioner by Superintendent of Post offices, Sriganganagar Division, Sriganganagar vide communication dated 3rd September, 2003. The petitioner then again challenged this order in original application which was dismissed by the learned Tribunal by the impugned judgment dated 26th August, 2004 which is 7 impugned in the present writ proceedings. We have heard Mr.R.S.Saluja, learned counsel for the petitioner and Mr.M.S.Godara, learned counsel for the Union of India and perused the record. Mr.R.S.Saluja, learned counsel for the petitioner argued that rejection of his prayer for compassionate appointment by Circle Relaxation Committee in its meeting held on 13th August, 2003 as conveyed to him by order dated 3rd September, 2003 was not in conformity with the directions earlier issued by the Tribunal in its judgment dated 18th July, 2003. The respondents in rejecting his claim for appointment have reiterated the very same reasons which did not find favour with the learned Tribunal while deciding the aforesaid original application. Mr.R.S.Saluja argued that while remanding the matter to the respondents, the learned Tribunal was very much cognizant of the fact that the petitioner's family had the income of Rs.45,000/- per annum yet the very same reason of income has again weighed with the authorities for declining 8 compassionate appointment to the petitioner. This according to him amounted to error apparent on the face of record warranting interference by this Court. Mr.R.S.Saluja argued that the learned Tribunal was not justified in rejecting the original application merely on the basis of pleadings in para 4.6 of original application that the post in question was reserved for Scheduled Tribe as the petitioner could have been considered for appointment in any other adjoining villages where the post was lying vacant. He argued that there was no material with the respondents to hold that the family of the petitioner was not in an indigent condition. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in Govind Prakash Verma vs. Life Insurance Corporation of India & Ors., reported in (2005) 10 S.C.C. p.289 in support of his contention and argued that the Hon'ble Supreme Court in the said case directed for giving compassionate appointment to the dependent of a deceased employee in whose case the employer had declined to do so on the ground that his elder brother was gainfully employed and that the family pension was being paid to the widow of the deceased. 9 On the other hand, Mr. M.S.Godara, learned counsel for the respondents argued that the case of the petitioner has been considered on as many as three occasions and on each of time, with due application of mind. He while reiterating the stand taken by the department before the Tribunal argued that the family of the petitioner cannot be considered to be in indigent condition inasmuch as it had sufficient income and resources to maintain itself and there were other three sons of the deceased employee who were all earning and self sufficient. He therefore argued that the judgment passed by the learned Tribunal does not suffer from any error apparent on the face of record so as to warrant interference by this Court and the writ petition deserves to be dismissed. We have given our earnest consideration to rival arguments advanced by both the learned counsel and perused the record. Present one is a peculiar case where the prayer of the petitioner for compassionate appointment was rejected by 10 the respondents not once but on as many as three occasions. Once it was considered and rejected and then again considered under the direction of this Court vide judgment dated 13.5.2002. When the respondents again rejected the prayer of the petitioner, the Tribunal vide its judgment dated 18.7.2003 again directed them to reconsider his claim and decide it afresh. But the respondents yet again by their order dated 29.8.2003/3.9.2003 rejected the prayer of the petitioner. He again approached the Tribunal which vide its judgment dated 26th August, 2004 rejected the original application while upholding the order passed by the respondents. This is indeed an uncommon feature of this case that the respondents upon being repeatedly required to reconsider the case every time reiterated their decision almost on the similar grounds although in their last order they have dealt with the matter in rather greater details. Now that the petitioner is again before this Court challenging the order of rejection of his prayer for appointment and dismissal of his original application by the Tribunal, we because of peculiarity of this case consider it appropriate to deal with this matter at some length. 11 The first and foremost question that needs to be examined is as to what is the object of giving compassionate appointment to the dependents of government servants dying while in service and what corresponding rights does it confer on them to claim such appointment and how far and up to what extent such dependents can seek the enforcement of this right. This question has been engaging attention of the Hon'ble Supreme Court in very many cases for quite sometime in the past. But the approach of law on the question of compassionate appointment has undergone a complete change since the origin of this right in service jurisprudence. Sushma Gosain & Ors. vs. Union of India & Ors., 1989(4) SCC p.468 was perhaps the earliest judgment of the Apex Court on the subject in which direction to provide compassionate appointment to the widow of the deceased government servant was backed by a further direction to create a supernumerary post to accommodate her. There has however been a steep come down in the position of law entitling dependents to compassionate appointment from that era to now. Following the Apex Court judgment in Sushma Gosain(supra), when such similar judgments were passed by 12 some of the High Courts, the Hon'ble Supreme Court while considering this question in Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 S.C.C. p.138 observed as under :- “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 IV. We are also dismayed to find that the decision of 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.”(emphasis supplied) In the aforesaid case, their Lordships further observed that : “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.” Elaborately commenting upon the object of compassionate appointment, their Lordships in Umesh Kumar Nagpal further observed as under :- “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 merit. No other mode of appointment nor any other consideration is permissible. Neither the 13 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 dependents 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 dependents 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 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 provisions 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 14 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.” Life Insurance Corporation of India vs. Asha Ramchandra Ambekar & Anr. , 1994(2) S.C.C. p.718 was also one of the earlier decisions available on the point wherein their Lordships were considering a case in which one of the sons of the deceased employee was already in service and application was made for compassionate appointment by his second son. The Life Insurance Corporation rejected the prayer on consideration of this fact but the High Court directed for compassionate appointment observing that so far as the 15 payment of dues paid by the employer to the family was concerned, they were the lawful dues and appointment could not be declined because another member of the family was in the employment. In those facts, it was observed by the Hon'ble Supreme Court as follows :- “The courts should endeavor to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however hard the case may be, it should never be done.” Question as to what is the object for grant of compassionate appointment also fell for consideration of Hon'ble Supreme Court in Director of Education(Secondary) vs. Pushpendra Kumar & Ors., (1998) 5 S.C.C. p.192. In para 8 of which, their Lordships observed as under :- “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 provisions is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions 16 providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee.” Strictly speaking, the claim of compassionate appointment cannot be upheld on the touchstone of Articles 14 and 16 of the Constitution of India. But the Courts have held that if such appointment is given to one of the dependents of the deceased government servant according to the rules framed by the government, it would not be violative of Articles 14 and 16 of the Constitution of India. It is intended to mitigate the hardship due to death of bread earner of the family and sudden misery faced by the members of the family of such employee who had served the government. Their Lordships of the Hon'ble Supreme Court in State of Haryana vs. Rani Devi & 17 Anr., (1996) 5 S.C.C. p.308 sounded the note of caution on the question of framing rules on the subject as under :- “while framing any rule in respect of appointment on compassioante ground the authorities have to be conscious of the fact that this right which is being extended to a dependant of the deceased employee is an exception to the right granted to the citizen under Articles 14 and 16 of the Constitution. As such there should be a proper check and balance. Of late, it appears the right to be appointed on compassioante ground is being claimed as a right of inheritance irrespective of the nature of service rendered by the deceased employee.” In State of H.P. & Anr. vs. Jafali Devi, 1997(5) SCC p.301 also the government declined to give compassionate appointment to the son of the deceased employee on the ground that his another son was already in government service but the High Court setting aside such order directed reconsideration of the case. It was in those facts that their Lordships of the Hon'ble Supreme Court while observing that the courts cannot confer benediction impelled by sympathetic consideration held that the Courts should ensure to find out whether a particular case in which sympathetic considerations are to be weighed fall within the scope of law and set aside the judgment of the High Court. 18 Question as to the object of compassionate appointment again fell for consideration of the Hon'ble Supreme Court in Managing Director, MMTC Ltd., New Delhi & Anr. vs. Pramoda Dei, (1997) 11 SCC p.390. While reiterating the view taken in Umesh Kumar Nagpal(supra), it was held that “the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and is not to provide employment. Mere death of an employee does not entitle his family to compassionate appointment.” Reiterating this very view, their Lordships of the Apex Court in Jagdish Prasad vs. State of Bihar & Anr., (1996) 1 S.C.C.p.301 observed that “ 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.” In this case, age of son of the deceased employee at the time of his death was only four years and he applied for compassionate appointment on attaining majority. It was 19 observed by their Lordships that “ if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased government servant which cannot be encouraged, de hors the recruitment rules.” Similarly in the case of Haryana State Electricity Board vs. Naresh Tanwar & Anr., (1996) 8 S.C.C. p.23 their Lordships of Hon'ble Supreme Court again enunciated the very same law by observing 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.” Delay has been always accepted as one of the relevant considerations for declining the prayer for appointment on compassionate grounds. The Apex Court has expressed itself in favour of refusing such appointment if a sufficiently long time period has expired after the death of the employee. Application for compassionate appointment in 20 Director, Defence Metal Research Laboratory & Anr. vs. G.Murli, (2003) 9 SCC p.247 was made 18 years after the death of the government servant. The Central Administrative Tribunal rejected the application on the ground that since the family has been managing somehow for last 18 years, as such the case was not covered under the instructions issued by the government. The High Court however reversed the judgment of the Tribunal and directed for appointment and held that even if the post was not available, this was not an excuse and a post had to be created if not available. The Hon'ble Supreme Court in the facts of that case observed