Case: STATE OF HIMACHAL PRADESH Vs. SHASHI KUMAR

The facts, insofar as they are material to this appeal, are thus:The father of the respondent, who was working as HFO in the Horticulture Department at Kullu, died on 29 March 2005 while he was in service. On 8 May 2007, the respondent submitted an application for compassionate appointment. The application was forwarded by the Deputy Director, Horticulture at Kullu to the competent authorities on 14 September 2007. On 15 January 2008, the Additional Secretary (Horticulture) to the Government of Himachal Pradesh addressed a communication to the Director of Horticulture stating that the income certificate which had been forwarded together with the application did not include the pension which the family was receiving from the Government. Accordingly, the Additional Secretary required that a certificate of income, including pension, should be obtained from the concerned SDM by the applicantThe Writ Petition before the High Court was instituted on 11 May 2015, well over seven years thereafter. The respondent has averred that he had made representations, but to no avail, as a result of which he was eventually compelled to initiate proceedings under Article 226 of the Constitution of India before the High Court. The High Court consolidated a batch of cases, both Letters Patent Appeals and Writ Petitions for hearing. They emanated from a Policy dated 18 January 1990 framed by the State Government for providing employment assistance on compassionate grounds to dependants of government servants who have died in harness, leaving a family in need of assistance. The High Court, during the course of the judgment, framed as many as nine issues which were in the following terms:(i) Whether the amount of family pension and other retiral benefits, received by the family of the deceased-employee, can be included in the family income for denying the compassionate appointment?(ii) Which date would be relevant for applicability of the Policy - whether the date of death of the employee or the date when the application was presented, for the first time, for seeking em- ployment on compassionate ground or the date on which the application came up for consideration before the Authorities, and whether a claim for compassionate appointment can be decided on the basis of subsequent amendment, when the applica- tion was presented prior to such amendment?(iii) If an applicant was in lis and his case was directed to be reconsidered, whether the claim of such applicant is to be determined as per the policy which was existing at the time of passing the order or as per the policy which was in place at the time of staking claim for the first time or as per the policy existing at the time of con- sideration?(iv) Whether the applicant can claim appointment on compassionate ground against a higher cadre, once he had been appointed in the lower cadre?(v) In case a person is appointed on contract ba- sis, whether he is within his rights to seek ap- pointment on regular basis?(vi) In a given set of cases, in one case the ap- pointment on compassionate ground has been of- fered against a Class-III post and in other case, the appointment has been offered to a Class-IV post, whether it amounts to discrimination?(vii) Whether a person can claim compassionate ap- pointment after a considerable delay?(viii) Whether requisite qualification or age can be relaxed?(ix) In case one or more dependants of a deceased- employee is/are in service, though living sepa- rately, whether that can be made a ground to deny compassionate appointment to the other dependant of the deceased-employee?Insofar as the present appeal is concerned, the State of Himachal Pradesh has contested the decision of the High Court on issues (i) and (vii). Hence, for the purposes of this appeal, the present judgment governs only the above aspects of the caseIn order to appreciate the nature of the controversy, it would be necessary to advert to the genesis of the policy of the State GovernmentOn 18 January 1990, the Government of Himachal Pradesh framed a policy for making compassionate appointments. The policy indicates that it applies to requests for the appointment of sons, daughters and near relatives of government servants who die in harness, leaving the family in immediate need of assistance. Insofar as it is material, the Policy provides thus:Subject;- Appointment of sons/daughters/near re- lations of a government servant who died in har- ness, leaving his family in immediate need of as- sistance.1) Policy:- The employment on compassionate grounds to the dependents of Govt. servants who die while in service is not to be provided as a matter of right. It should be given only in deserving cases where the family of de- ceased Govt. servant is left in indigent cir- cumstances requiring immediate means of sub- sistence. The concerned Administrative Depart- ments would satisfy themselves about the indi- gent circumstances of the family before ap- pointment on compassionate grounds is madeParagraph 2 of the policy provides for its applicability, in order of priority only to a widow, son or an unmarried daughter and in the case of an unmarried government servant to the father, mother, brother or unmarried sister. Paragraph 2(a) reads as follows:2) To whom the policy is applicable:- The employ- ment assistance on compassionate grounds will be allowed in order of priority only to widow or a son or an unmarried daughter (in case of unmarried Govt. servant to father, mother brother and unmarried sister) of:(a) a Govt. servant who dies while in service (including by suicide) leaving his family in immediate need of assistanceParagraph 4 of the policy stipulates that an appointment on compassionate grounds can be made only to the lowest rung of Class-III and Class-IV posts carrying a prescribed pay scale. Paragraph 8 of the Policy stipulates that requests for the grant of employment assistance should be received within three years of the death of the government servant. However, where none of the children of the deceased government servant had attained majority at the time of death, the time limit for receipt of a request for appointment will be postponed to the attainment of the age of twenty one years by the eldest son or unmarried daughter. Paragraph 8 is in the following terms:8) Belated requests for compassionate appoint- ments: Requests for grant of employment assis- tance should be received in the Deptt. con- cerned within three years of the death of the Government servant. In case where none of the sons/daughters of the deceased Government ser- vant attain majority (age of 18 years) at the time of the death of the Government ser- vant, the time limit for receipt of request for employment assistance in department concerned will be attainment of age of 21 years by the eldest son/un-married daughter. No relaxation will be allowed in entertaining requests beyond the above age except in the case of sons/un- married daughter/widow of deceased Govt. ser- vants belonging to the difficult areas as laid down in the Transfer PolicyParagraph 10 of the policy stipulates that the government has introduced a number of welfare measures, which have made a significant difference to the financial position of families of government servants who die in harness. Hence, the policy stipulates that benefits received by the family on account of those welfare measures may be kept in view while considering cases of employment assistance on compassionate grounds. The policy proceeds to enumerate the welfare measures which, on the date of its formulation, were available to families of deceased employees. Paragraph 10(c) of the Policy, which has a bearing in this case, is in the following terms:(c) The provision of employment assistance was introduced in 1958 and since then a number of welfare measures have been introduced by the Govt. which made significant difference in the financial position of the families of the Govt. servants dying in harness. The benefit received by the family on account of these measures may be kept in view while consider- ing cases of employment assistance on compas- sionate grounds. Such measures, in brief, which are at present available to the fami- lies of the deceased employees are as under:(i) Ad-hoc ex-gratia grant @ 10 times the emoluments which the Government servant was receiving before death, subject to a minimum of Rs. 10,000/- and maximum of Rs. 30,000/-(ii) Grant of improved family pension(iii) Grant of death Gratuity as under:Length of service Rate of gratuitya) Less than one year 2 times of emolumentsb) One year or more but 6 times of emoluments. less than 5 yearsc) 5 years or more but less than 20 years 12 times of emolumentsd) 20 years or more Half of emoluments for every completed six monthly period of quali- fying service subject to a maximum of 33 times emoluments provided that the amount of Death Gra- tuity shall in no case, exceed one lakh rupees(iv) Employees Group Insurance Scheme:- Fi- nancial assistance to the family of the deceased Government servant as under:(i) Class-IV employees- Rs. 10,000/(ii) Class-III employees- Rs. 20,000/(iii) Class-II employees- Rs. 40,000/(iv) Class-I employees- Rs. 80,000/- (v) In addition nearly 2/3 rd of the amount con- tributed by the Government servant to the fund is also payable alongwith the above amounts. (vi) Encashment of the leave at the credit of the deceased Govt. servant subject to the maximum of 240 days(vii) Entitlement of additional amount equal to the average balance in the GPF of the de- ceased Govt. servant during the three years immediately preceding the death of the sub- scriber subject to certain condition under the Deposit Linked Insurance SchemeThe Policy has undergone amendment from time to time. On 24 August 2002, a clarification was issued in regard to the expression indigent circumstances used in the Policy. The clarification provided thus:……in this connection, references have been re- ceived from certain departments enquiring as to what constitutes Indigent circumstances and also requesting that some uniform guidelines on the sub- ject may be issuedThe matter has been considered carefully and it is noticed that specific guidelines with respect to what would amount to indigent circumstances will not be possible or practicable. Indigent circum- stances of a family are to be seen with specific reference to the assets i.e. immoveable and move- able property left behind by the deceased income from various sources i.e. assets, house(s), pen- sion, savings resulting to income employment status and number of employees within the extended family etc. as also liabilities i.e. number of dependents specially unmarried daughters aged parents etc. left behind by the deceased, some consideration to- wards the particular standard of life that the fam- ily of the deceased might be used to during the life time of the government employee etc. These are vital parameters that have to be kept in mind be- fore any decision is arrived at regarding admissi- bility of employment to the ward/dependent of the deceased employee. As the above would show the question of indigent circumstances, therefore has to be decided in each individual case after obtain- ing detailed information about all the relevant as- pects mentioned, so that employment on compassion- ate grounds is not given as matter of routine. While every effort should be made to provide suit- able employment in all deserving cases. It should always be kept in mind that employment on compas- sionate ground can not be claimed as a matter of right. Also the competent authority should take full precautions to exclude the element of pick and choose while considering such casesSubsequently, an office memorandum dated 4 April 2008 clarified that while considering whether the family of a deceased employee is in indigent circumstances, no certificate of any kind is required. The clarification, inter alia, provided that:3. No indigent certificate of any kind is re- quired as per instructions. Only indigent cir- cumstances of the family are required to be looked into. This purpose can be achieved by examining the income of the family. There is no such certificate prescribed by the Govern- ment nor should indigent certificate be de- manded from the affected familiesAnother aspect of the Policy which requires mention is the fixation of income slabs. On 1 November 2008, as noticed by the High Court, the Secretary, Public Works Department, addressed a communication to the Engineer-in- Chief adverting to a letter dated 29 September 2008 of the Finance Department, bearing No. PBW-A-B(2)-34/2006. The income criteria which was prescribed by the Finance Department was in the following terms:The Income Criteria fixed by the Finance Department takes into consideration maximum family income ceiling fixed by the finance Deptt. for a family for 4 members as Rs. 1.00 lac and for smaller families, the internal criteria is Rs. 25,000/- per person, per annum. Thus, if there is only one dependent, the overall income limit to be considered is Rs. 25,000/- per annum. In case, there are two dependents of the deceased, the income of the applicant should not exceed Rs. 50,000/- per annum. In case of three dependents, the overall income should not exceed Rs. 75,000/- per annum. The overall income limit is Rs. 1.00 lac per annum, even if family size is more than four. Gratuity, leave encashment, commutation amount are excluded for purpose of calculating family income but monthly pension/family pension, Dearness Relief, Interim Relief is included for calculation of yearly family incomeThe High Court has adverted to the fact that the income limit of Rs.1,00,000/- was subsequently revised to Rs.1,50,000/-. We have been informed during the course of the hearing by Mr. P.S. Patwalia, learned senior counsel appearing on behalf of the State, that this revision took place on 20 April 2011The High Court while dealing with the first issue which it framed for decision, held that the State is not entitled to take into account family pension and other terminal benefits in determining whether compassionate appointment should be granted to the dependant of a deceased employeeIn coming to this conclusion, the High Court has relied upon a decision of this Court in Govind Prakash Verma Vs. Life Insurance Corporation of India (2005) 10 SCC289   and on two subsequent decisions in APSRTC, Musheerabad Vs. Sarvarunnisa Begum AIR 2008 SCW 198 and in Canara Bank Vs. M. Mahesh Kumar (2015) 7 SCC 412 .   Having held that the State is not entitled to consider the family pension and other terminal benefits received by the dependants of the deceased employee, the High Court has held that the income slab which was prescribed by the Finance Department did not constitute an amendment of the Policy and that, consequently, it must be disregarded in deciding upon cases of compassionate appointment.

Reasoning:
While considering the rival submissions, it is necessary to bear in mind that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. Dependants of a deceased employee of the State are made eligible by virtue of the Pplicy on compassionate appointment. The basis of the policy is that it recognizes that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. It is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. Where the authority finds that the financial and other circumstances of the family are such that in the absence of immediate assistance, it would be reduced to being indigent, an application from a dependant member of the family could be considered. The terms on which such applications would be considered are subject to the policy which is framed by the State and must fulfill the terms of the Policy. In that sense, it is a well-settled principle of law that there is no right to compassionate appointment. But, where there is a policy, a dependant member of the family of a deceased employee is entitled to apply for compassionate appointment and to seek consideration of the application in accordance with the terms and conditions which are prescribed by the StateThe policy in the present case which was formulated on 18 January 1990 categorically speaks of providing employment assistance to dependants of government servants who have died while in service, leaving their families in indigent circumstances. The Policy, in other words, is designed to meet the needs of those families where the death of a government servant has left them in indigent circumstances, requiring immediate means of subsistence. The policy recognizes in Paragraph 10 that the benefits which are received by a family on account of welfare measures are required to be considered. Among them, the policy stipulates that family pension and death gratuity are required to be taken into account in assessing the financial circumstances of the family. The Policy does not preclude the dependants of a deceased employee from being considered for compassionate appointment merely because they are in receipt of family pension. What the Policy mandates is that the receipt of family pension should be taken into account in considering whether the family has been left in indigent circumstances requiring immediate means of subsistence. The receipt of family pension is, therefore, one of the considerations which is to be taken into account. Paragraph 10(c) of the Policy sets out the measures provided by the State which have a bearing on the financial need of the familyIn view of the clear terms of the Policy, we are of the view that the High Court was in error in issuing a mandamus to the Government to disregard its Policy. Such direction could not have been issued by the High Court. The High Court has drawn sustenance in issuing mandamus in the above terms on a decision of this Court in Govind Prakash Verma (supra). That was a case of compassionate appointment where in the course of the proceedings before the High Court, a learned Single Judge had directed the Life Insurance Corporation, which was the employer of the deceased employee, to make an enquiry and submit a report on whether the members of the family engaged in gainful employment were also supporting the family of the deceased employee. This Court, in an appeal against the judgment of the High Court rejecting the petition for compassionate appointment, observed that the officer who had enquired into the matter in pursuance of the order of the learned Single Judge completely omitted to furnish any report on the points which were required by the High Court to be investigated. The High Court rejected the petition on the ground that the family was in receipt of family pension and other amounts towards terminal benefits.Eventually, this recommendation was accepted in the Scheme. In the light of these recommendations and the Scheme, this Court observed that where the family of a deceased employee was not left without means of livelihood, the claim for compassionate appointment could not be sustained. It may be noted that in that case it was on a review of the overall financial position of the family, including amounts received towards terminal benefits that the decision was takenIn the view of this Court, the only issue to be considered was whether the claim for compassionate appointment had been considered in accordance with the Scheme. The income of the family from all sources was required to be taken into consideration according to the Scheme. This having been ignored by the High Court, the appeal filed by the Bank was allowedNow, it is in this background that it would be necessary to advert to the decision in Canara Bank (supra). A Scheme for compassionate appointment of 8 May 1993 was prevalent in Canara Bank when the employee died on duty in October 1998. Faced with the rejection of an application for compassionate appointment, the High Court was moved in a Writ Petition in which a learned Single Judge issued a direction for reconsideration of the claim for appointment. During the pendency of the appeal before the Division Bench, the Scheme for compassionate appointment was replaced by a new Scheme providing for ex gratia in lieu of appointment. The main issue which fell for consideration before this Court was whether the subsequent Scheme which was formulated in 2005 providing for ex gratia payment would govern or whether the application would have to be disposed of on the basis of the earlier Scheme of 1993. It may be noted that the application for compassionate appointment in that case had been rejected on the ground that the family of the respondent was not in indigent circumstances, as required by the Scheme for compassionate appointment of 1993Hence, the issue which has been dealt with in Canara Bank (supra) is whether the application for grant of compassionate appointment could have been rejected on the basis of a scheme which had come into force after the date of submission of the application. That, as this Court observed, was the main question which fell for consideration. The Bench of two-Judges, however, also noted that it was urged on behalf of the appellant – Bank that the family of the respondent was in receipt of family pension. This, the Court held, was of no consequence in considering the application for compassionate appointmentWe find merit in this submission, for the simple reason, that it is in accord with the express terms of the Scheme of 18 January 1990, as modified by the State. The Scheme contemplates that payments which have been received on account of welfare measures provided by the State including family pension are to be taken into account. Plainly, the terms of the Scheme must be implementedFor these reasons, we have come to the conclusion that the High Court was not justified, based on the decision in Govind Prakash Verma (supra) in issuing a direction to the State to act in a manner contrary to the express terms of the Scheme which require that the family pension received by the dependants of the deceased employee be taken into accountThat leads the Court to the next aspect of the matter relating to the fixation of an income slab. In our view, the fixation of an income slab is, in fact, a measure which dilutes the element of arbitrariness. While, undoubtedly, the facts of each individual case have to be borne in mind in taking a decision, the fixation of an income slab subserves the purpose of bringing objectivity and uniformity in the process of decision making. The High Court was of the view that it was not open to the Finance Department to amend the Scheme. The circulars which are issued by the Finance Department cannot be construed to be an amendment of the policy. They are really clarificatory of the intent and purpose of the Scheme. The circulars are explanatory, since they are intended to guide the decision maker on the concept of indigency which is incorporated in the Scheme. In fact, as we have noted earlier, in the decision of this court in Shashank Goswami(supra), the Court was specifically dealing with a circular of the Comptroller and Auditor General of India which had imposed income limits respectively for Group B, C and D posts for the purpose of guiding the decision in the case of compassionate appointment. The fixation of income limits was not construed to be and is not an arbitrary exercise of power. However, what we find from the record of this case is that the income limit was fixed (as the High Court observed) on 29 September 2008 by the letter of the Finance Department. The income limit of Rs.1,00,000/- for a family of four persons has since been revised to Rs.1,50,000/- on 20 April 2011. Mr. P.S. Patwalia has, on instructions, stated before this Court that this ceiling has been reiterated on 27 July 2017. What should be the appropriate income criterion is undoubtedly a matter of policy for the State Government to determine. However, we would impress upon the State Government the need to periodically revise the income limits preferably at intervals of three years. Inflation and the increase in the cost of living have an important bearing on financial exigencies faced by families of serving as well as deceased employees. In fixing the income criteria for considering cases of compassionate appointment, it would be appropriate if the State revisits the income limit at periodic intervals, as we have indicated above. We clarify that it would be open to the State to revise the income limits at a frequency of less than three years, if the State is so advisedWe are not impressed with the submission that delay should not be taken into account since Paragraph 8 of the Scheme contemplates that in a situation where all the dependant children of the deceased employee have yet to attain the age of majority, the time limit for submission of an application is extended until the first of the children attains the age of twenty one years. A case where each of the children is a minor falls in a different class altogether. This cannot be equated with a situation where a dependant of a deceased employee who was a major on the date of death fails to submit an application within a reasonable period of time from the death of the employee.We see no reason or purpose in now directing the State to reconsider its decision in the case of the respondent which would only result in another round of fruitless litigation. In our view, the respondent is debarred from seeking compassionate appointment by the delay as well as by the lapse of time which has taken place.