C.W.P.No.6005 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.W.P.No.6005 of 2007 Date of Decision : March 12, 2008 Kuldip Kumar .....Petitioner versus Managing Director, Uttar Haryana Bijli Vitran Nigam and another .....Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE MOHINDER PAL Present : Shri Madan Pal, 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 father of the petitioner was working as Lineman with the Uttar Haryana Bijli Vitran Nigam (hereinafter referred to as the `Nigam'). He died on 27.12.2001. The mother of the petitioner applied for appointment of the petitioner on compassionate appointment after the death of her husband, in January, 2002. The petitioner has completed all the formalities in terms of the Policy dated 8.5.1995, for giving appointment on compassionate grounds, prevailing at that time. However, before any decision could be taken, the Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2003 (hereinafter referred to as the `2003 Rules'), were framed in exercise of the C.W.P.No.6005 of 2007 2 power conferred under proviso to Article 309 of the Constitution of India. The said Rules were adopted by the respondent Nigam as well. It is the case of the petitioner that the father of the petitioner was 55 years, 8 months and 17 days of age at the time of his death. In view of the said fact, the claim of the petitioner for compassionate appointment has been rejected by the Nigam vide communication dated 24.12.2003, Annexure P-5. It is the said communication which is subject matter of challenge in the present writ petition. It has been further pointed out that on 10.2.2004, the Haryana Government amended the aforesaid Rules wherein in case a Government employee dies in harness at the age of 55 years or thereafter, the ex-gratia financial assistance of Rs.2.5 lacs was contemplated to be provided. It is also pointed out that the claim of the petitioner has not been considered on the ground that he was more than 25 years of age at the time of death of his father, but such condition is not tenable for the reason that the father of the petitioner has crossed 55 years of age at the time of his death and thus, he is still entitled to compassionate financial assistance of Rs.2.5 lacs. It is also pointed out that deceased father of the petitioner has left behind his wife, who is illiterate and three children. Since the petitioner is the elder son, therefore, he is entitled to be appointed on compassionate ground. In reply, it has been pointed out that the petitioner was born on 5.6.1968 and, thus, he was about 33 years of age at the time of death of his father, and therefore, the case of the petitioner for compassionate appointment has been rejected on 24.12.2003 for the reason that the petitioner was beyond the age prescribed as well as the father of the C.W.P.No.6005 of 2007 3 petitioner has died after attaining the age of 55 years. It is also averred in the written statement that all the pending cases, as on the date coming into force the 2003 Rules, are to be decided in terms of the said Rules. Therefore, the petitioner is not entitled to either compassionate financial assistance or appointment of compassionate ground. Learned counsel for the petitioner has vehemently argued that the claim of the petitioner for appointment on compassionate ground has to be decided on the basis of the Rules as are applicable on the date of death of the deceased employee. Since the father of the petitioner died prior to framing of 2003 Rules, therefore, the claim of the petitioner for compassionate appointment has to be considered and decided in accordance with the Policy dated 8.5.1995. Reliance is placed upon the Supreme Court Judgment “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. Reliance is also placed upon a Division Bench judgment of this Court “Neeraj Malik Versus State of Haryana and others, 2007 (1) RSJ-235”. It is further argued that the rejection of the claim of the petitioner for the reason that he is more than 25 years of age at the time of death of his father, is not sustainable and in terms of Rule 8 of the 2003 Rules, the petitioner is eligible for appointment on compassionate ground. 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 C.W.P.No.6005 of 2007 4 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 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 C.W.P.No.6005 of 2007 5 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.” 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 C.W.P.No.6005 of 2007 6 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 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 C.W.P.No.6005 of 2007 7 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 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.” C.W.P.No.6005 of 2007 8 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 not inconsistent with the rules already framed.” xx xx xx xx.” The Hon'ble Supreme Court in I.G.(Karmik) & others Versus C.W.P.No.6005 of 2007 9 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. 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” C.W.P.No.6005 of 2007 10 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 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 C.W.P.No.6005 of 2007 11 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. 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 C.W.P.No.6005 of 2007 12 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. Reliance of the petitioner in case “Raghbir Singh Versus Uttar Haryana Bijli Vitran Nigam Limited and another, 2006 (4) RSJ-162”, is again not tenable. The object of framing of 2003 Rules is to assist the family of the deceased Government employee to tide over the emergent situation resulting from the loss of the bread-earner, by giving two options. The first option is to grant ex-gratia appointment on compassionate ground to a member of the family who has completely dependent on the deceased employee and the second option is to grant ex-gratia compassionate financial assistance to the family of the deceased, over and above all other benefits like ex-gratia grant due to his family, in case where the family of the deceased does not opt for ex-gratia employment. In the aforesaid Rules, the 'dependent' is defined in Rule 3 (e) to mean an unmarried daughter and son till she/he attains the age of 25 years. The age of 25 years has since been increased to 30 years by the Haryana Government vide notification dated 17.12.2004 while amending Clauses (ii) & (iii) of Rule 3 (e) of the 2003 Rules, wherein the son or the daughter till attaining the age of 30 years are C.W.P.No.6005 of 2007 13 the dependents. Rule 8 of the 2003 Rules, prescribes the criteria for eligibility including the eligibility of a married son. Earlier, such Rules were amended on 10.2.2004, whereby 3rd option was introduced by adding (iii) to Rule 2 of the 2003 Rules. The amended Rules read as under:- “2. Object of the Rules:- The objects of the rules is to assist the family of a deceased employee in tiding over the emergency situation, resulting from the loss of the bread-earner by giving either of the following options:- (i) ex-gratia appointment on compassionate ground to a member of the family who was completely dependent on the deceased employee and is in extreme financial distress due to the loss of the deceased, namely, the Government employee who dies in 'harness'; (ii) ex-gratia compassionate financial assistant to the family of the deceased, over and above all other benefits like ex-gratia grant due to his family to be paid @ 2.5 lacs, in cases where the family of the deceased does not opt for ex-gratia employment; (iii) ex-gratia compassionate financial assistance to the family of the deceased Government employees to be paid at the rate of Rs.2.5 lacs, in case where the Government employee dies in harness at the gate of 55 years or thereafter. xx xx xx 3. Definitions: In these rules, unless the context otherwise requires:- (a) xx xx xx xx (b) xx xx xx xx (c) xx xx xx xx C.W.P.No.6005 of 2007 14 (d) “deceased Government employee” means a Government employee:- (i) appointed on regular basis and not working on daily wages, casual, apprentice, work charged, adhoc, contractual or re- employment basis; (ii) who has served the Government for atleast 3 years. (e) “dependent” means:- (i) spouse of the deceased Government employee or missing Government employee; (ii) son (including adopted son) till he attains the age of 30 years subject the proof of adoption as envisaged in the Hindu Adoption and Maintenance Act, 1956 (78 of 1956); (iii) unmarried daughter (including adopted daughter) till she attains the age of 30 years, subject to the proof of adoptions as envisaged in the Hindu Adoption and Maintenance Act, 1956 (78 of 1956). 4. Option: (1) A dependent of the deceased/missing Government employee shall give in writing his/her preference of option within 3 years from the date of death of the Government employee, for one of the following:- (a) ex-gratia appointment on compassionate grounds to a member of the family who has completely dependent on the deceased employee and is in extreme financial distress due to the loss of the deceased, namely, the Government employee who dies in service; (b) ex-gratia compassionate financial assistance to the family of the deceased, over and above all other benefits like ex-gratia grant due to his/her C.W.P.No.6005 of 2007 15 family, to be paid @ Rs.2.5 lacs in case of the family of the deceased not opting for ex-gratia employment or (c) ex-gratia compassionate financial assistance to the family of the deceased Government employee to be paid at the rate of Rs.2.5 lacs in case the Government employee dies in harness at the age of 55 years or thereafter.” 2. Exercise of option shall be permitted only once and shall not be changed, once exercised. xx xx xx xx 8. Criteria of eligibility: The criteria for eligibility under these Rules shall be as under:- (a) xx xx xx (b) xx xx xx (c) xx xx xx (d) xx xx xx (e) Married son of the deceased will be eligible only if no other member of the family is eligible for government service and his spouse is not already in Government service and unmarried eligible dependent is not willing to join service and give an affidavit to this effect; (f) Where dependent of the deceased Government employee does not become eligible for appointment on amy ground or within three years of the death of the Government employee, he/she shall not be eligible for the ex-gratia compassionate financial assistance also.” In Raghbir Singh's case (supra), the Court has relied upon Rule 8 of the 2003 Rules to hold that the married son is eligible for appointment, C.W.P.No.6005 of 2007 16 while directing the respondents to consider the claim of the petitioner for appointment afresh. In the