Dr Dhananjaya Y Chandrachud, J.
Leave granted.
This appeal arises from a judgment of a Divison Bench
of the High Court dated 6 October 2015.
The father of the respondent who was working as a
Peon in the Revenue Department of the State, died on 4
January 1997, while in service. On the date of the death
of his father, the respondent was a minor. He attained
the age of majority on 17 November 2002. The policy of
compassionate appointment framed by the State of Himachal
Pradesh, inter alia, contains a stipulation that where
none of the children of a deceased government employee
have attained the age of majority at the time of the
death of the employee, an application can be submitted
on the attainment of the age of twenty one years by the
eldest child. This provision is contained in paragraph 8
of the policy dated 18 January 1990. The application
submitted by the respondent upon attaining the age of
majority was processed, but was eventually rejected on 25
April 2008 on the ground that the brother of the
respondent is already in the service of the Himachal
Pradesh Electricity Board. The fact that the brother of
the respondent is employed with a State undertaking is
not in dispute.
In the writ petition before the High Court, the
respondent urged that his brother was living separately
and relied on a ration card and a certificate issued by
the Pradhan of the Gram Panchayat. The fact that the
brother was residing separately for seventeen years was
admitted in the Writ Petition in the following terms:
“...Because the elder brother of the
petitioner was living separately and no family
member of the petitioner is in Govt./Semi Govt.
service, which fact is clear from the
certificate issued by the competent authority,
copy of which is annexed herewith as Annexure-
P7. The ration card of the family of the
petitioner clearly shows that the elder brother
of the petitioner is not residing with the
petitioner, copy of ration card is annexed
herewith as Annexure-P8. The Pradhan concerned
has also certified that the elder brother of
the petitioner is residing separately for the
last 17 years, which fact is clear from the
certificate, copy of which is annexed herewith
as Annexure-P9.”
The respondent, in the reliefs which were sought in
the petition under Article 226 of the Constitution,
sought a direction for setting aside the letter of
rejection dated 25 April 2008 and for his appointment as
a Peon on compassionate grounds.
The Policy framed by the State Government contains
the following conditions of eligibility in paragrah 5(c):
“In all cases where one or more members of
the family are already in government service or
in employment of autonomous bodies/bodies/
boards/corporations etc. of the State/Central
Government, employment assistance should not
under any circumstances be provided to the
second or third member of the family. In cases,
however, where the widow of the deceased
government servant represents or claims that
her employed sons/daughters are not supporting
her, the request of employment assistance
should be considered only in respect of the
widow. Even for allowing compassionate
appointment to the widow in such cases the
opinion of the department of personnel, and
Finance Department should specifically be
sought and the matter finally decided by the
Council of Ministers.”
In the batch of cases which has been disposed of by
the High Court, one of the issues which were framed for
decision was as follows:
“(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?”
The policy contains a stipulation that where one or
more persons of the family are already in the employment
of the State Government or of autonomous bodies, Boards,
Corporations, etc. of the State or the Central
Government, employment assistance should not be provided
to another member of the family. However, an exception
is carved out in the case of the widow of the deceased
government employee, if she claims that her employed
children are not supporting her. Before allowing
compassionate appointment, the opinion of the Department
of Personnel and Finance Department is required to be
sought and the matter is left to the ultimate decision of
the Council of Ministers.
The High Court while deciding issue (ix) has relied
upon the decision of this Court in Govind Prakash
Verma Vs. Life Insurance Corporation of India 1 more
specifically on the observation that the mere fact that
the elder brother of the applicant was engaged in
agricultural work and was also doing the work of a casual
painter, would not be construed as gainful employment.
This finding in Govind Prakash Verma is purely on the
facts of that case and cannot be construed to be of any
relevance to the present case.
The High Court has observed that the State should
consider cases for appointment on compassionate basis by
dealing with the applications submitted by sons, or as
the case may be, daughters of deceased government
employees, even though, one member of the family is
engaged in the service of the government or an autonomous
board or corporation. This direction of the judgment of
the High Court virtually amounts to a mandamus to the
State Government to disregard the terms which have been
stipulated in paragraph 5(c) of its policy dated 18
January 1990. The policy contains a limited exception
which is available only to a widow of a deceased employee
1 (2005) 10 SCC289
who seeks compassionate appointment even though one of
the children of the deceased employee is gainfully
employed with the State. The basis for this exception is
to deal with cases where the widow is not being supported
financially by her children.
In the exercise of judicial review under Article 226
of the Constitution, it was not open to the High Court to
re-write the terms of the policy. It is well-settled
that compassionate appointment is not a matter of right,
but must be governed by the terms on which the State lays
down the policy of offering employment assistance to a
member of the family of a deceased government employee.
[Umesh Kumar Nagpal Vs. State of Haryana 2, General Manager
(D&PB) Vs. Kunti Tiwary 3,Punjab National Bank Vs. Ashwani
Kumar Teneja 4, State Bank of India Vs. Somvir Singh 5,
Mumtaz Yunus Mulani Vs. State of Maharashtra 6,Union of
India Vs. Shashank Goswami 7, State Bank of India Vs.
Surya Narain Tripathi 8 and Canara Bank Vs. M. Mahesh
Kumar 9]
For the above reasons, we are of the view that the
judgment of the High Court is unsustainable. The High
Court has virtually re-written the terms of the policy
and has issued a direction to the State to consider
applications which do not fulfill the terms of the
policy. This is impermissible.
That apart, we find from the record that the father
of the respondent died on 4 January 1997. Though the
respondent applied on attaining majority, as permissible
under the policy, the application was rejected on 25
April 2008. The Writ Petition was filed nearly two years
and six months thereafter. Apart from stating that the
elder brother of the respondent who was engaged in
government service was living separately, there were no
factual averments in support of the plea. In any event,
as we have already held, the High Court was not justified
in issuing a direction which would breach the policy
framed by the State.
For these reasons, we allow the appeal and set aside
the directions issued by the High Court in its impugned
judgment and order, as noted earlier. In consequence,
the Writ Petition filed by the respondent shall stand
rejected. No costs.