C.W.P.No.15304 of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.W.P.No.15304 of 2006 Date of Decision : 26.02.2008 Jagdish .....Petitioner versus Uttar Haryana Bijli Vitran Nigam and another .....Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE MOHINDER PAL Present : Shri Sushil Jain, Advocate for the petitioner. Shri Narender Hooda, Advocate for the respondents. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? JUDGMENT HEMANT GUPTA, J. The challenge in the present writ petition is to the order dated 14.6.2006, Annexure P-5, whereby the claim of the petitioner for appointment on compassionate ground was declined, but an amount of Rs.2.5 lacs as cash financial assistance was found payable to the petitioner. Shri Dharam Pal, father of the petitioner was working with the respondents as Assistant Lineman, died on 8.12.2001. The petitioner applied for appointment on compassionate ground within one month from the date of death of his father. However, on 22.3.2002, a communication was addressed to the petitioner to seek consent of other legal heirs of the deceased and No Objection in respect of appointment of the petitioner against Class-IV post with the respondents. Later, the petitioner received a C.W.P.No.15304 of 2006 2 communication dated 27.10.2003, in which claim of the petitioner for compassionate appointment has been rejected for the reason that at the time of death of his father, the petitioner was 30 years, 9 months and 17 days of age and, therefore, the case of the petitioner for compassionate appointment is not covered under the Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2003 (hereinafter referred to as the `2003 Rules'). Subsequently, the communication dated 14.6.2006, Annexure P-5, was addressed to the petitioner in response to the legal notice served by the petitioner, whereby the claim of the petitioner for appointment on compassionate ground was again declined. It is the case of the petitioner that at the time of death of his father on 8.12.2001, the Policy dated 8.5.1995 in respect of the appointment on compassionate ground was in existence. It is contended by the petitioner that the respondents are bound by the said Policy and the subsequent Rules regulating the appointment on compassionate ground, cannot defeat the claim of the petitioner. Reliance is placed upon a judgment of this Court passed in Civil Writ Petition No.6061 of 2006, titled as Neeraj Malik versus The State of Haryana and others, decided on 18.8.2006, wherein it has been held that the Policy, as is in existence on the date of death, would be applicable to consider the claim of an applicant for appointment on compassionate ground. Reliance is also placed upon the order of Hon'ble Supreme Court in case “Abhishek Kumar Versus State of Haryana and others, 2007 (3) R.S.J.-121”, wherein the date of death was taken as relevant for grant of appointment on compassionate ground. C.W.P.No.15304 of 2006 3 No doubt, on the date of death of father of the petitioner, the 1995 Instructions were in force, but the petitioner has no right to seek appointment on compassionate ground on the basis of such Instructions alone. It has been repeatedly held by the Hon'ble Supreme Court as well as by this Court that the Courts would not be justified in directing the appointment on compassionate ground as a matter of course. It has been held that the 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 crises, that a job is to be offered to the eligible member of the family. The consideration for such employment is not a vested right. The object of offering employment on compassionate ground is only to enable the family to get over the financial crises which it faces at the time of the death of the sole breadwinner. It was held to the following effect by the Division Bench of this Court in “Gurdevi Versus State of Haryana and others, 2005 (2) P.L.R. 516”:- “xx xx xx xx 4. The aforesaid observations make it abundantly clear that High Court would not be justified in directing the appointment on compassionate ground as a matter of course. The Supreme Court has clearly laid down in Umesh Nagpal's case that 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 crises, that a job is to be offered to the eligible C.W.P.No.15304 of 2006 4 member of the family. It has also been held that the provision for employment even on the lowest post can only be justified in the form of relief against destitution. It must also be framed (noticed ?) that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The consideration for such employment is not a vested right. The object of offering employment on compassionate ground is only to enable the family to get over the financial crises which it faces at the time of the death of the sole breadwinner. In view of the clear enunciation of the law by the Supreme Court, it would not be possible to hold that the petitioner has been denied the appointment arbitrarily or unreasonably. The law laid down by the Supreme Court in the case of Umesh Nagpal (supra) has been reiterated in the case of Haryana State Electricity Board V. Naresh Tanwar and another, 1996 (2) SCT 778 (SC) : 1996 (8) SCC 23. It has been reiterated that appointment on compassionate ground is an exception to the general rule of open recruitment, intended to make the immediate financial problem being suffered by the members of the family of the deceased employee. As noticed earlier, the husband of the petitioner had been declared medically unfit. He had been relieved from service in accordance with the Statutory Service Rules. He had been granted all the retiral benefits, presumably under the Rules. Petitioner would not be entitled to any appointment on compassionate ground under the 2003 Rules, which have been framed under Article 309 of the Constitution of India, clearly. xx xx xx xx.” C.W.P.No.15304 of 2006 5 In “Vijay Kumar Versus State of Haryana and others, 2005 (3) S.C.T.750”, the Division Bench of this Court considered the 2003 Rules and the Instructions issued by the State of Haryana from time to time and held that the Instructions including the 1995 Instructions have been repealed and the Rules have been promulgated under the proviso to Article 309 of the Constitution of India and that the object set out in the 2003 Rules is in conformity with the law laid down by the Supreme Court in case “Umesh Kumar Nagpal Versus State of Haryana, 1994 (3) SCT-174”. It was held to the following effect:- “xx xx xx xx 12. A conjoint reading of all the rules makes it abundantly clear that in the case of the dependents of a deceased employee who dies in harness at the age of 55 years or more, no appointment is to be offered on compassionate grounds. The dependents are only entitled to the payment of ex-gratia amount of Rs.2.5 lacs. A perusal of Rule 2 of the 2003 Rules makes is abundantly clear that the object of the rules is to assist the family of a deceased employee to tide over the emergent situation resulting from the loss of the bread-earner. The object set out in the 2003 rules is in conformity with the law laid down by the Supreme Court in the case of Umesh Nagpal (supra) in which it has been held as under:- “The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crises. The object is not to give a member of such family a post much C.W.P.No.15304 of 2006 6 less a post for post held by the deceased. What is further, mere death of an employee is harness does not entitle his family to such source of livelihood. 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 Class III and IV. We are also dismayed to find that the decision of this Court in Sushma Gosain and others V. Union of India and others, 1989 (4) SLR-327 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 Class III and IV.” 13. The aforesaid observations make it abundantly clear that High Court would not be justified in directing the appointment on compassionate ground as a matter of course. The Supreme Court has clearly laid down in Umesh Kumar Nagpal's case (supra) that 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 crises, that a job is to be offered to the eligible member of the family. It has also been held that the provision for employment even on the lower post can only be justified in the form of relief against destitution. It must also be noticed that as against the destitute family of the deceased, there C.W.P.No.15304 of 2006 7 are millions of other families which are equally, if not more destitute. Consideration for such employment is not a vested right. xx xx xx xx.” In “Bijender Singh Versus State of Haryana and others, 2005 (2) P.L.R.559”, a Division Bench of this Court found that the executive instructions, which are contrary to the Rules, will not prevail over the Rules. It was held to the following effect:- “xx xx xx xx 8. We are also unable to accept the submission of the petitioner that the claim of the petitioner had to be considered under the instructions dated 2.12.1975 and 23.11.1992. The 2003 Rules have been framed under the Proviso to Article 309 of the Constitution of India. These would have to prevail over the executive instructions, especially when the instructions are contrary to the provisions of the Rules made. It is a settled proposition of law that the executive instructions can only supplement and not supplant the rules framed under Proviso to Article 309 of the Constitution of India. We draw support for this view from the judgment of the Supreme Court in the case Sant Ram Sharma Versus State of Rajasthan, 1967 SLR-906, wherein it has been held as under:- “6.........It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, Government can fill up the gaps and supplement the rules and issue instructions C.W.P.No.15304 of 2006 8 not inconsistent with the rules already framed.” xx xx xx xx.” The Hon'ble Supreme Court in I.G.(Karmik) & others Versus Prahalad Mani Tripathi, 2007 (6) S.C.C.-162, has held that the public employment is considered to be a wealth and cannot be given on descent. It was held to the following effect:- “xx xx xx xx 5. An employee of a State enjoys a status. Recruitment of employees of the State is governed by the rules framed under a statute or the proviso appended to Article 309 of the Constitution of India. In the matter of appointment, the State is obligated to give effect to the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. All appointments, therefore, must conform to the said constitutional scheme. This Court, however, while laying emphasis on the said proposition carved out an exception in favour of the children or other relatives of the officer who dies or who becomes incapacitated while rendering services in the police department. 6. Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. C.W.P.No.15304 of 2006 9 When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion. Xx xx xx xx” In “State Bank of India and another Versus Somvir Singh, (2007) 4 SCC-778”, the Hon'ble Supreme Court observed that indiscriminate grant of employment on compassionate ground would shut the door for employment to the ever-growing population of employed youths. It proceeded to hold that:- “xx xx xx xx 10. There is no dispute whatsoever that the appellant Bank is required to consider the request for compassionate appointment only in accordance with the scheme framed by it and no discretion as such is left with any of the authorities to make compassionate appointment dehors the scheme. In our considered opinion the claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules, etc. framed by the employer in the matter of providing employment on compassionate grounds. There is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be. xx xx xx xx.” In “State Bank of India Versus Jaspal Kaur, 2007 (9) SCC- 571”, the Hon'ble Supreme Court held that an employer cannot be directed C.W.P.No.15304 of 2006 10 to act contrary to the terms of its policy governing compassionate appointments, nor can compassionate appointment be directed dehors the policy. In “State of Haryana and another Versus Ankur Gupta, (2003) 7 SCC-704”, the appointment on compassionate ground was cancelled as it was found that such appointment is not permissible under the modified policy. It was held that it was necessary for the Authority to frame Rules, Regulations or to issue administrative orders which can stand the test of Articles 14 & 16 of the Constitution of India. The appointment on compassionate ground cannot be claimed as a matter of right. It was found that as per the Government Instructions, only those dependents of the deceased Government employee whose family income is upto Rs.2500/- per month, can be appointed in Government service. It was found that the relaxation in the stipulations was granted, though there is no provision whereby relaxation was permissible. In view of the said finding, the order of cancellation of appointment was maintained. The judgment of the Division Bench of this Court in Neeraj Malik's case (supra), relied upon by learned counsel for the petitioner, has been stayed by the Hon'ble Supreme Court vide order dated 13.7.2007 in Special Leave to Appeal (Civil) No.18972 of 2006. The judgment in “Abhishek Kumar's case (supra) was on its own facts as even though the petitioner was offered appointment by the State, but it was the District Magistrate who refused to provide for the post. It was the facts of the case which led to the order passed. No principle of law has been enunciated on the basis of which it can be said that the Rules, which are in existence at the time of death of the employee, would be applicable. C.W.P.No.15304 of 2006 11 In the present case, on the date of death of the father of the petitioner, it was the executive instructions which were regulating the appointment on compassionate ground. Thereafter, the Rules have been framed in terms of the proviso to Article 309 of the Constitution of India regulating the appointment on compassionate ground. After the Rules were framed, the petitioner cannot rely upon the executive instructions as the appointment on compassionate ground is not a right, but a concession given to the dependent members of the deceased family to tide over the financial crises, therefore, such Rules would be applicable to all cases which were pending when 2003 Rules were framed. In fact, that is the specific provision of such Rules as well. Since the appointment on compassionate ground is not a right, but a concession, therefore, such concession has to be governed in terms of the Rules framed by the respondents. Thus, we do not find any illegality or irregularity in the communication dated 14.6.2006, Annexure P-5 whereby the petitioner was offered financial assistance and not the appointment of compassionate ground, which may warrant interference of this Court in exercise of writ jurisdiction. The writ petition stands dismissed. (HEMANT GUPTA) JUDGE 26-02-2008 (MOHINDER PAL) *mohinder JUDGE