JUDGMENT
Surinder Singh Nijjar, C.J.
1. The petitioner claims that she is the widow of one Late Nikhil Chandra Soam, who died on 10th April, 1988 while in service in the army. She claims to be a non-matric having passed only Class-VIII examination from a local school. She claimed that she had two sons, viz., Ranu Soam and Bapi Soam respectively.
2. After the death of her husband on 10th April, 1988 she applied to the Zilla Sainik Board, Government of West Bengal for appointment in a suitable Group ‘D’ post. She based her claim on the instructions issued by the Union of India dated 28th November, 1990. The application made by the petitioner was duly received by the authorities. However, no action was taken. Therefore, she made an application to the Ministry of Personnel, Public Grievances and Pension Cell in Delhi on 25th November, 1991 on the basis of the scheme known as “Employment Assistance to the Relatives of Government Servant died while in Service”. She claimed that she had none to help her and had been almost starving along with two minor sons. This application of the petitioner was transferred by the Director General of E.M.E. to Master General of the Ordinance Branch, Army Headquarters, New Delhi. By letter dated 4th March, 1992 the respondent in turn informed the petitioner that her application should be submitted to the Commanding Officer of the last zone served by her husband. She again made an application for appointment on a suitable post on compassionate grounds. The application submitted by the petitioner did not yield any positive result. She pointed out that in her letter dated 15th April, 1997 it had been observed that the case of the petitioner for compassionate appointment has been examined and found a deserving one. In spite of the aforesaid observations a job was not given to her. Ultimately on 20th July, 1998 she was informed as follows:
(2) As per the instruction received from Army Head Quarters, your case has been found to be a deserving one but you will have to wait for 3 to 4 years….
(3) On the basis of the Army … Your case will be considered as and when release order is received from Army Head Quarters.
3. Aggrieved against the aforesaid non-speaking order, the petitioner filed the present writ petition. The respondents had duly filed an affidavit-in-opposition specifically denying the averments made by the petitioner. It has been stated that the case of the petitioner was referred to the relevant authority and has been considered in accordance with the Rules and Regulations. It has been specifically stated in the affidavit that the case of the petitioner was considered by the Board of Officers in accordance with the Rules on the subject and has not been found fit for granting appointing on compassionate grounds. The reasons for rejecting her application by the Army Headquarters were stated as under:
(a) As per the instructions of Government of India issued vide Dop & T Letter No. 14104/6/95-Est(D) dated 26th September, 1996 compassionate appointment are offered up to a maximum of 5% of the wastage vacancies occurring in a year for Gr. ‘C and ‘D’ posts;
(b) The compassionate appointments are offered to the most deserving cases only and it cannot be offered in each and every case since the Quota prescribed for the compassionate appointment is only 5% for Gr. ‘C and ‘D’ posts;
(c) The compassionate cases are examined by a Board of Officers taking various factors into account, like economic condition, liabilities in terms of unmarried daughters terminal benefits, family person, movable/immovable properties of the family, etc. and cases which are found most deserving are offered compassionate appointments;
(d) The petitioner has only two family members to support and thus has no liabilities to be looked after.
4. The learned single Judge considered the entire matter and by Judgment and order dated 19th June, 2002 allowed the writ petition. The respondent authority had been directed to give a group ‘D’ appointment to the writ petitioner within a period of eight weeks.
5. A perusal of the Judgment of the learned single Judge shows that the affidavit-in-opposition of the respondent has not been duly considered. Learned single Judge notices the submissions made on behalf of the respondents that in 2002, the two minor sons of the petitioner would have been 20 years and 18 years of age. The writ petition was, however, allowed on the ground that the petitioner was asked to opt for Group ‘D’ job which she did on 11th August, 1992.
6. Learned Counsel for the appellants has submitted that the Judgment of the learned single Judge cannot be supported on either facts or on law. He has placed reliance on a number of Judgments of the Supreme Court in support of the submissions that the appointments on compassionate grounds are to be given only in cases of emergency, which may be caused by reducing the family of a deceased employee to abject poverty on the death of the sole bread winner. Learned Counsel also submitted that employment on compassionate grounds is not to be given merely to replace the deceased employee with the dependents. Even on facts he submitted that the petitioner has filed the present writ on 22nd July, 1999. The matter remained pending in the High Court till 19th June, 2002. Admittedly the husband of the petitioner died on 10th April, 1988. Clearly, therefore, it is indicative of the fact that the petitioner is not living in abject poverty. She is not seeking the appointment on compassionate grounds as she finds it impossible to exist even from day to day. Rather the claim of the petitioner is that once the respondent authorities had found her claim to be justified on 20th July, 1998 she was entitled to a Group ‘D’ post. On the other hand, learned Counsel for the petitioner submits that the delay caused by the respondents in taking a decision on the claim of the petitioner cannot be used by the respondents to deny her a job on compassionate grounds. Learned Counsel further submitted that merely because the petitioner had received the terminal benefits of the deceased employee would not justify the rejection of her claim for appointment on compassionate grounds.
7. We have considered the submissions made by the learned Counsel for the parties. We are constrained to observe that in this case the well settled law, repeated and reiterated by the Supreme Court in a catena of Judgments has not been adverted to at all by the learned single Judge. The learned single Judge was not impressed by the submissions of the respondents that the petitioner is financially sound. It has also been held that since the petitioner had been asked to give an option on 24th July, 1992 to be appointed on a Group ‘D’ job, the respondent-authorities were bound to appoint her on such a post.
8. A perusal of the Judgments clearly shows that the learned single Judge had been moved by sympathetic considerations for the plight of the petitioner. Undoubtedly the appointment can be granted on compassionate grounds to tide over a family, who is in financial distress on or immediately after the death of the only bread winner. It must however be remembered that the appointments have to be given strictly in accordance with the rules. Generally speaking appointments on compassionate grounds are an exception to the normal rule of making recruitment on government posts by direct recruitment and/or advertisement and wide publicity. No amount of misplaced sympathy would bring the appointment, on compassionate grounds within the normal rule. At this stage we may notice the observation of the Supreme Court in the case of Life Insurance Corporation of India v. Mrs. Asha Ramchhandra Ambekar and Anr. . Justice S. Mohan speaking for the Court observed as follows:
10. Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. No doubt Shakespeare said in Merchant of Venice:
The quality of mercy is not strain’d;
It droppeth, as the gentle rain from heaven.
Upon the place beneath it is twice bless’d;
It blesseth him that gives, and him that takes;
11. These words will not apply to all situations. Yielding to instinct will tend to ignore the cold logic of law. It should be remembered “law is the embodiment of all wisdom”. Justice according to law is a principle as old as the hills. The Courts are to administer law as they find it, however, inconvenient it may be.
9. In our opinion, these observations are fully applicable to the facts and circumstances of this case and the Judgment delivered by the learned single Judge.
10. We may now notice some of the other Judgments which have been relied upon by, the learned Counsel for the appellants. In the case of Sushma Gosain and Ors. v. Union of India and Ors. reported in (1989)4 SLR 327 it has been observed as follows:
8. We, heard counsel on both sides and gave our anxious consideration to the problem presented. It seems to us that the High Court has made the order in a mechanical way and if we may say so, the order lacks of sense of justice. Sushma Gosain made an application for appointment as Lower Division Clerk as far back in November, 1982. She had then a right to have her case considered for appointment on compassionate ground under the aforesaid Government Memorandum. In 1983, she passed the trade test and the interview conducted by the DGBR. There is absolutely no reason to make her to wait till 1985 when the ban on appointment of ladies was imposed. The denial of appointment is patently arbitrary and cannot be supported in any view of the matter.
9. We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate grounds is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.
11. These observations were taken out of context by some High Courts to justify the direction for appointment on compassionate grounds. This Judgment was brought to the notice of the Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana and Ors. . Realising that there is a misconception as to the criteria as well as the law which is to be followed in grant of appointment on compassionate grounds, the Supreme Court laid down the law as follows:
The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. 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 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 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 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 provision 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 Class-Ill and Class 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 yet 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 dependant of the deceased employee in such posts has a rational nexus with the object sought to be 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.
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.
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 Classes III and IV. We are also dismayed to find that the decision of this Court in Sushma Gosain and Ors. v. Union of India and Ors. (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 Classes III and IV.
12. The aforesaid law laid dawn by the Supreme Court has been reiterated by the Supreme Court in the case of Haryana State Electricity Board v. Naresh Tanwar and Anr. wherein it has been held as follows:
It has been indicated in the decision of Umesh Kumar Nagpal that compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as in exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. In the other decision of this Court in Jagdish Prasad case, it has been also indicated 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.
13. Thereafter in the case of General Manager (D&PB) and Ors. v. Kunti Tewary and Ors. , the Supreme Court reiterated the law laid down in the case of Umesh Kumar Nagpal (supra). In that case the husband of the applicant died on 16th January, 1998 while in employment of the State Bank of India leaving behind the applicant, two sons and a daughter. Pursuant to the Judgment of the Supreme Court in Umesh Nagpal’s case, the Bank had formulated a scheme on 1st January, 1998 providing for compassionate appointment only where the deceased employee left his family in penury and without any means of livelihood. The applicant therein had received the entire terminal benefits. Taking note of the assets and liabilities of the deceased, the Bank came to the conclusion that the family was not penurious. It, therefore, rejected the application for compassionate appointment. The learned single Judge upheld the order of the Bank, which was reversed on appeal by the Division Bench and a direction was issued to the Bank to give employment. In those circumstances, the Supreme Court allowed the appeal of the Bank with the following observation:
7. In adoption of this principle, an office memorandum was circulated to all banks on 7-8-1996 emphasising that the observations of this Court would have to be complied with. The Indian Banks’ Association also adopted the directive of this Court in Umesh Kumar Nagpal’s case in the Scheme which was proposed for appointment of heirs of deceased employees. In that proposal it was recommended that in order to determine the financial condition of the family the following amounts would have to be taken into account:
(a) Family Pension.
(b) Gratuity amount received.
(c) Employee’s/Employers contribution to PF.
(d) Any compensation paid by the Bank or its Welfare Fund.
(e) Proceeds of LIC policy and other investments of the deceased employee.
(f) Income of family from other sources.
(g) Employment of other family members.
(h) Size of the family and liabilities, if any, etc.
8. This recommendation of the Indian Banks’ Association was accepted in the Scheme which was finally formulated on 1-1-1998 where the same criteria for determining the financial condition of the family was laid down. It may be noted that the express language for appointment on compassionate grounds reads as follows:
Appointments in the public services are made strictly on the basis of open invitation of applications and merit. However, exceptions are made in favour of dependants of employees dying in harness and leaving their family in penury arid without any means of livelihood.
9. On the basis of the criteria as recommended by the Indian Banks’ Association and adopted by the appellant Bank, it could not be said that the family of the late K.N. Tiwary had been left in “penury” or “without any means of livelihood”. The particulars of their income have been noted in their application and it certainly could not be said on the basis thereof that the respondents were living hand to mouth. The Division Bench erred in diluting this criteria of penury to one of “not very well-to-do.
14. In the case of Punjab National Bank and Ors. v. Ashwini Kumar Taneja the Supreme Court again reiterated the ratio in the Judgment of Sushma Gosain v. Union of India and observed as follows:
6. In Sushma Gosain v. Union of India it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the Scheme itself envisages specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati v. Union of India and Union of India v. Bhagwan Singh. In Director of Education (Secondary) v. Pushpendra Kumar it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely 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, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground for compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased employee. As it is in the nature of exception to the general provisions, it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision.
15. The Supreme Court also considered the ratio of law as laid down in Kunti Tiwary’s case (supra) and observed as follows:
9. One other thing which needs to be considered is whether the retiral benefits are to be taken into consideration while dealing with prayer for compassionate appointment. The High Court was of the view that the same was not to be taken into consideration. The view is contrary to what has been held recently in G.M. (D&PB) v. Kunti Tiwary. It was categorically held that the amounts have to be taken into consideration.
16. It may here be noticed that the Board of Directors of the petitioner Bank had approved the abovesaid Scheme, which was based upon the guidelines circulated by Indian Bank’s Association to all the public sector banks which in turn are based upon the law laid down by this Hon’ble Court in the case of Umesh Kumar Nagpal v. State of Haryana. The Scheme after approval was circulated vide PDCL 6/97 read with PDCL 11/99 dated 17-4-1999.
17. The Supreme Court further held:
10. Learned Counsel for the respondent stated that in case of similarly situated persons compassionate appointments have been made by the Bank. But the appellants have justified the non consideration of the respondent’s appointment on compassionate grounds on the ground that the other cases related to non-pension able category and unlike the case of the respondent, the other persons who were extended the benefits were not receiving any pension.
18. These observations, in our opinion leave no manner of doubt that the very foundation of a claim for an appointment on grounds of compassion would be the abject poverty of the family which otherwise would not be able to exist from day to day. The criteria cannot be reduced from penury to one of “not very well to do”.
19. The Supreme Court, thereafter, in the case of Union of India and Anr. v. Draupadi Behara (Smt) and Anr. again reiterated the law with regard to the rights of a person to seek appointment on compassionate grounds and also power and jurisdiction of the High Court to give appropriate relief. Justice Arijit Pasayat speaking for the Bench observed as follows:
However, the High Court was clearly in error in directing appointment, without reference to the presence of similarly situated persons who were seeking compassionate appointment. No direction could have been given by the High Court for appointment as such within a time-limit and for asking extension of time to comply with the order, till the respondent concerned was appointed. At the most, the High Court could have asked for consideration of the case of the respondent concerned along with other applicants for compassionate appointment, if any, in terms of the operative scheme.
20. In the present case, the claim of the petitioner has been clearly considered on the basis of the rules. Her claim has been rejected on the ground that the family cannot be said to be without any financial means. That being so, it would appear that the matter was squarely covered by the aforesaid observations of the Supreme Court.
21. Again in the case of State of Jammu & Kashmir and Ors. v. Sajad Ahmed Mir , C.K. Thakker, J. speaking for the Court observed as follows:
We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought ‘compassion’, the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say ‘goodbye’ to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution.
22. These observations are fully applicable in the present case. The petitioner and her family have survived since 10th April, 1988, Therefore, there would be no justification to ignore the normal process of recruitment by advertisement, open competition and merit.
23. Again in the case of State Bank of India and Anr. v. Somvir Singh , the Judgment of the Supreme Court was delivered by B. Sudershan Reddy, J. Considering the entire matter, it was observed as follows:
Article 16(1) of the Constitution of India guarantees to all its citizens equality of opportunity in matters relating to employment or appointment to any office under the State. Article 16(2) protects citizens against discrimination in respect of arty employment or office under the State on grounds only of religion, race, caste, sex and descent. It is so well settled and needs no restatement at our end that appointment on compassionate grounds is an exception carved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. Such appointments are required to be made on the basis of open invitation of applications and merit.
24. Taking note of the aforesaid observations, Justice Reddy has observed:
Dependants of employees died in harness do not have any special or additional claim to public services other than the one conferred, if any, by the employer.
(emphasis supplied).
25. In our opinion, the Judgment of the learned single Judge runs counter to the law laid down by the Supreme Court in a catena of Judgments which we have noticed above and, therefore, cannot be sustained. At best only a direction could have been issued to the respondents for consideration of the claim of the applicant in case her claim had already not been considered. But in the present case it is categorically stated in the affidavit-in-opposition, relevant part of which is extracted above,, that the claim of the petitioner had been considered and rejected on valid grounds. This apart, it is a settled proposition of law that appointment on compassionate grounds can only be granted on a emergent situation to tide over the immediate difficulties that the family may face in case of the death of the sole earning member of the family. It is not meant to be a substitute for a job held by the deceased employee. It is not meant to be an additional source of recruitment to the two known sources of recruitment, viz., by promotion or by direct recruitment. The concept of inheritance or any hidden preference can not be permitted, in public employment. This would run counter to the principle of equality enshrined in Articles 14 and 16 of the Constitution of India.
26. In view of the above, we find merit in the aforesaid appeal. The appeal is allowed. The order of the learned single Judge is set aside.
27. Xerox certified copy of this order, if applied for, be given to the learned Counsel for the parties.
Tapen Sen, J.
28. I agree.