Dr Dhananjaya Y Chandrachud, J.
Leave granted.
The present appeal arises from a judgment of a
Division Bench of the High Court of Himachal Pradesh in a
batch of cases which dealt with the issue of
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
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 applicant.
The 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 case.
In order to appreciate the nature of the controversy,
it would be necessary to advert to the genesis of the
policy of the State Government.
On 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 made.”
Paragraph 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 assistance.”
Paragraph 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 Policy.
Paragraph 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 Rate of gratuity
service
a) Less than 2 times of emoluments.
one year
b) One year 6 times of emoluments.
or more but
less than 5
years
c) 5 years or 12 times of emoluments
more but less
than 20 years
d) 20 years Half of emoluments for
or more 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 2/3rd 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 Scheme.”
The 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 issued.
The 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 cases.”
Subsequently, 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 families.”
Another 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 income.”
The 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 2011.
The 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 employee.
In 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 1 and on two
subsequent decisions in APSRTC,
Musheerabad Vs. Sarvarunnisa Begum 2 and in Canara
Bank Vs. M. Mahesh Kumar 3. 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.
Assailing the view which has been taken by the High
Court, Mr. P.S. Patwalia, learned senior counsel urged
that the terms of the Policy dated 18 January 1990
envisage the grant of employment assistance to dependants
of government servants, where an employee of the State
has died while in service, leaving the family in indigent
circumstances. The submission is that the genesis of
compassionate appointment is that assistance should be
rendered to the family of an employee who dies in harness
in a case where the family is in immediate need of
subsistence and is otherwise left in indigent
circumstances. Learned senior counsel submitted that a
consistent line of authority of this Court establishes
the principle that there is no right to compassionate
appointment, but only an entitlement to be considered in
accordance with the prevailing scheme or the rules framed
by the employer, where such a scheme exists. In the
present case, it was urged that the Policy, as
subsequently amended, categorically requires that whether
the family is in indigent circumstances has to be
determined by taking into account the assets left behind
by the deceased, the income from various sources
including pension and the nature of the liabilities
including the number of dependants. Hence, when terms of
the Policy require that pensionary benefits should be
accounted for, it was urged that the High Court was not
justified in issuing a direction to ignore the Policy.
At the same time, it has been submitted that the State
does not take into account gratuity, leave encashment and
commutation. However, monthly pension, family pension,
dearness relief and interim relief are taken into
consideration. The rationale for excluding one time
payments is that, in the considered view of the State,
these do not enure to the benefit of the family over a
period of time. Be that as it may, it has also been
urged that the decision of the Finance Department to
prescribe an income ceiling or slab cannot be faulted.
Learned senior counsel submitted that the prescription of
an income slab subserves a fair assessment of individual
applications. It reduces the element of discretion and
and obviates a case by case analysis of what should or
should not be an income criterion for deciding the
indigent circumstances of a family. Finally, it was
urged, on the facts of the present case, that the
application which was submitted by the respondent in 2007
was dealt with by requiring the inclusion of the pension
which the family was receiving in the statement of
income. Upon the letter dated 15 January 2008 of the
Additional Secretary, the Writ Petition was filed on 11
May 2015, well over seven years thereafter and nearly ten
years after the death of the deceased employee. Hence,
it was submitted that the ultimate direction issued by
the High Court for consideration of the application is
manifestly misconceived. The purpose of compassionate
appointment is to enable the family of a deceased
employee to tide over an immediate crisis caused by the
death of the employee. Hence, delay of this nature, in
any event, should result in the rejection of the
application as well as the Writ Petition.
On the other hand, it has been submitted on behalf of
the respondent that the issue of delay ought not to come
in the way of the application for compassionate
appointment being considered, having regard to the fact
that Paragraph 8 of the Policy contemplates that where
none of the children of the deceased employee had
attained the age of majority, the time limit for the
submission of an application is extended till the
attainment of the age of twenty one years by the eldest
child. Though the respondent was not a minor on the date
of the death of the deceased employee, it was urged, by
analogy of reasoning, that delay, by itself, ought not to
result in the rejection of the application, particularly
since the upper age of recruitment in the State has been
extended to forty five years. On the aspect of the
inclusion of family pension, reliance was placed on the
decision of the High Court, which in turn is based on
certain judgments of this Court. Finally, on the income
slab, it has been submitted that apart from the
considerations which have weighed with the High Court, it
was not open to the Finance Department to amend the
Policy. Moreover, there is no basis for the income limit
of Rs.1,00,000/-, which was prescribed by the Finance
Department on 29 September 2008 as enhanced to
Rs.1,50,000/-. It was urged that as a result of the
prescription of an unduly low income limit, the benefit
of compassionate appointment will be denied to families
which are indigent and are in need of employment.
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 State.
The 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 family.
In 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. Reversing the view of the High Court, a two-
Judge Bench of this Court held thus:
“6. In our view, it was wholly irrelevant
for the departmental authorities and the
learned Single Judge to take into consideration
the amount which was being paid as family
pension to the widow of the deceased (which
amount, according to the appellant, has now
been reduced to half) and other amounts paid on
account of terminal benefits under the
Rules...”
The decision in Govind Prakash Verma (supra) has been
considered subsequently in several decisions. But,
before we advert to those decisions, it is necessary to
note that the nature of compassionate appointment had
been considered by this Court in Umesh Kumar Nagpal Vs.
State of Haryana 4. The principles which have been laid
down in Umesh Kumar Nagpal (supra) have been subsequently
followed in a consistent line of precedents in this
Court. These principles are encapsulated in the
following extract:
“2. ...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
dependants 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 Classes III and IV
are the lowest posts in non-manual and manual
categories and hence they alone can be offered
on compassionate grounds, the object being to
relieve the family, of the financial
destitution and to help it get over the
emergency. The provision of employment in such
lowest posts by making an exception to the rule
is justifiable and valid since it is not
discriminatory. The favourable treatment given
to such 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.”
Specifically in the context of considering the
financial circumstances of the family of the deceased
employee, several judgments of this Court have elaborated
on the principles to be followed.
The decision in General Manager (D&PB) Vs. Kunti
Tiwary 5 involved an interpretation of an office
memorandum dated 7 August 1996 circulated to all banks in
the light of the decision in Umesh Kumar Nagpal (supra).
The Indian Banks Association adopted the directions of
this Court in the Scheme which was proposed for the
appointment of heirs of deceased employees. The Scheme
contemplated that in order to determine the financial
condition of the family, the following amounts would have
to be taken into account:
“7...(a) Family pension.
(b) Gratuity amount received.
(c) Employee's/employer's contribution to
provident fund.
(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.”
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 taken.
The decision of this Court in Punjab National
Bank Vs. Ashwani Kumar Taneja 6 followed the same
principle. While reiterating the view which was taken in
Kunti Tiwary (supra), this Court held that the Scheme
specified the amounts which were required to be taken
into consideration.
The decision in State Bank of India Vs. Somvir Singh 7
has noticed the scheme for appointment of dependants of
deceased employees on compassionate grounds framed by the
State Bank of India. The Court expressly held that the
authorities were not in error in taking account of the
terminal benefits, investments and the monthly family
income including the family pension paid by the Bank.
The view of this Court finds expression in the following
extract:
“12. The competent authority while
considering the application had taken into
consideration each one of those factors and
accordingly found that the dependants of the
employee who died in harness are not in penury
and without any means of livelihood. The
authority did not commit any error in taking
the terminal benefits and the investments and
the monthly family income including the family
pension paid by the Bank into consideration for
the purposes of deciding as to whether the
family of late Zile Singh had been left in
penury or without any means of livelihood. The
scheme framed by the appellant Bank in fact
mandates the authority to take those factors
into consideration. The authority also did not
commit any error in taking into consideration
the income of the family from other sources
viz. the agricultural land.”
(emphasis supplied)
In 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 allowed.
The judgment of a Bench of two-Judges in Mumtaz Yunus
Mulani Vs. State of Maharashtra 8 has adopted the principle
that appointment on compassionate grounds is not a source
of recruitment, but a means to enable the family of the
deceased to get over a sudden financial crisis. The
financial position of the family would need to be
evaluated on the basis of the provisions contained in the
Scheme. The decision in Govind Prakash Verma (supra) has
been duly considered, but the Court observed that it did
not appear that the earlier binding precedents of this
Court have been taken note of in that case.
In Union of India Vs. Shashank Goswami 9, this Court
considered a circular issued by the Office of the
Comptroller and Auditor General of India in terms of
which the total income of the family from all sources,
including terminal benefits received, was required to be
taken into account. Income limits were specified in the
circular for Group ‘B’, Group ‘C’ and Group ‘D’ posts.
Taking note of the fact that a family pension has been
authorized to the widow of the deceased employee, this
Court held that the case of the dependant did not fall
within the income limits meant for Group ‘C’ posts.
The same principle has been reiterated in another
decision of a Bench of two-Judges of this Court in
State Bank of India Vs. Surya Narain Tripathi 10.
While adverting to a submission of learned counsel based
on the decision in Govind Prakash Verma (supra), this
Court noted thus:
“8. He relied upon the judgment of this
Court in Govind Prakash Verma v. LIC[Govind
Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005
SCC (L&S) 590] where a view has been taken that
the compassionate appointment cannot be refused
on the ground that another member of the family
had received appropriate employment and the
service benefits were adequate. We may humbly
state that this view runs counter to the view
which was taken earlier in Umesh Kumar
Nagpal [Umesh Kumar Nagpal v. State of Haryana,
(1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994)
27 ATC 537] which was not cited before the
Court in Govind Prakash [Govind Prakash
Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC
(L&S) 590] . The subsequent two judgments which
were referred above also take the same view as
in Umesh Kumar Nagpal[Umesh Kumar
Nagpal v. State of Haryana, (1994) 4 SCC 138 :
Vikas Singh has drawn our attention to the
judgment in SBIv. Somvir Singh [SBI v. Somvir
Singh, (2007) 4 SCC 778 : (2007) 2 SCC (L&S)
92] where the 1998 Scheme has been considered.
9. In all the matters of compassionate
appointment it must be noticed that it is
basically a way out for the family which is
financially in difficulties on account of the
death of the breadearner. It is not an avenue
for a regular employment as such. This is in
fact an exception to the provisions under
Article 16 of the Constitution. That being so,
if an employer points out that the financial
arrangement made for the family subsequent to
the death of the employee is adequate, the
members of the family cannot insist that one of
them ought to be provided a comparable
appointment. This being the principle which has
been adopted all throughout, it is difficult
for us to accept the submission made on behalf
of the respondent.”
Now, 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 1993.
Dealing with the applicability of the subsequent
Scheme, a Bench of two-Judges of this Court held,
following the earlier decision in State Bank of India Vs.
Jaspal Kaur 11, that the cause of action to be considered
for compassionate appointment arose when the earlier
Scheme was in force. Hence, the claim could not be
decided on the basis of the subsequent Scheme which
provided only for the payment of ex gratia. Moreover, as
a matter of fact, the subsequent scheme was superseded in
2014 by reviving the Scheme for the provision of
Hence, 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
Learned senior counsel appearing on behalf of the
appellants has sought to distinguish the above
observations, in the judgment in Canara Bank (supra), by
submitting that it is not the case of the State of
Himachal Pradesh that mere receipt of family pension
would disable an applicant from submitting an application
for compassionate appointment or preclude consideration
of the claim. On the contrary, the submission which is
urged is that the Scheme requires consideration of all
relevant sources of income and hence, receipt of family
pension would be one of the criteria which would be taken
into consideration in determining as to whether the
family of the deceased employee is in indigent
circumstances.
We 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
implemented.
For 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 account.
That 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 advised.
Insofar as the individual facts pertaining to the
respondent are concerned, it has emerged from the record
that the Writ Petition before the High Court was
instituted on 11 May 2015. The application for
compassionate appointment was submitted on 8 May 2007.
On 15 January 2008 the Additional Secretary had required
that the amount realized by way of pension be included in
the income statement of the family. The respondent
waited thereafter for a period in excess of seven years
to move a petition under Article 226 of the Constitution.
In Umesh Kumar Nagpal (supra), this Court has emphasized
that the basis of a scheme of compassionate appointment
lies in the need of providing immediate assistance to the
family of the deceased employee. This sense of immediacy
is evidently lost by the delay on the part of the
dependant in seeking compassionate appointment.
We 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. This aspect of delay has been
dealt with in other decisions of this Court, including
State of J&K Vs. Sajad Ahmed Mir 12 and Local
Administration Department Vs. M. Selvanayagam13.
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.
In the circumstances, we allow the appeal in the
following terms:
12 (2006) 5 SCC 766, para 11 13 (2011) 13 SCC 42, para 11, 12 and 13
(i) The Writ Petition (CWP No.3652 of 2015) filed by
the respondent before the High Court shall stand
dismissed and the direction of the High Court for
reconsideration of the application for compassionate
appointment shall stand set aside;
(ii) The direction issued by the High Court to the
appellants to desist from taking into account the family
pension and other terminal benefits is unsustainable in
law and is accordingly set aside;
(iii) While we confirm the decision of the State
Government to fix income limits in order to satisfy the
terms of eligibility for compassionate appointment, we
expect that the State Government shall, in compliance
with the Policy, revisit the income limits at intervals
of three years or earlier and consider whether a revision
is warranted having regard to the cost of living,
inflation and other relevant facts and circumstances.
The appeal is disposed of in the above terms. No
costs.