Delhi High Court (JULY 19, 2001) 2001 (TLS)125262 2001-DLT-94-746 :: 2001-AD (Del)-6-799 MUNICIPAL CORPORATION OF DELHI Vs. Vir Mohammad VIKRAMJIT SEN ( 1 ) SINCE the question that,has arisen in the above entitled cases centres around the controversy of compassionate appointment, both the writ petitions shall be disposed off by this common judgment. All interim applications stand disposed off in conformity with this judgment. ( 2 ) ARTICLE 16 of the Constitution of India assures to all citizens of. India equality of opportunity in the matter of employment or appointment to any office under the State. The Respondent. State Bank of India (hereinafter referred to as the SBI ) uncontrovertedly falls within the sweep of Article 12, and therefore employment therein tantamounts to employment or appointment to any. office under the State . The dilution of the right of equality of opportunity is found in Article 16 itself, but compassionate appointment does not so feature. Every statute or rule or order must meticulously measure with Chapter III of the Constitution and the equality assurances contained and guaranteed therein. The Petitioner s plea for compassionate employment must perforce conform in every respect with Article ,16, In our country where unemployment is rampant, and the securing of a job with the State similar to manna from heaven, the grant of a job on individual consideration is a deleterious deprivation of the rights of the citizens at large. We witness that with painful regularity a large section of our society is compelled to adopt a nomadic and migratory life, seeking temporary and seasonal employment from place to place. Their children cannot even dream of education. Ill-health and malnutrition is their reality. Can law ignore these wretched of the earth and bestow its attention to a party/family who has already benefited from state employment. Furthermore, legislation has now been passed for payment of compensation in those cases where a person has suffered fatal or other injury, while on duty. These considerations cannot but be kept in mind while deciding the present petition. Hardship, destitution and penury are differently understood within society. St. Francis narrated the case of a person lamenting that he had no shoes, until he found a person who had no feet. when a claim for largesse is put forward, the relativity of poverty should not be ignored. Hardship, destitution and penury are differently understood within society. St. Francis narrated the case of a person lamenting that he had no shoes, until he found a person who had no feet. when a claim for largesse is put forward, the relativity of poverty should not be ignored. ( 3 ) THE Scheme for compassionate appointment of the dependants of deceased in CWP 422/2000 has been annexed with the Petition, the salient features of which are as follows :- "financial condition of the family 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 dependents of employees dying in harness and leaving their; family in penury and without any means of livelihood. Determining the financial condition of the family is, therefore, an important criterion for determining the eligibility for compassionate appointment. The following factors should be taken , into account for determining the financial condition of the family: 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 policies and other investments of the deceased employee f) Income for family from other sources. g) Income of other family members from employment or otherwise. h) Size of the family and liabilities, if any. " ( 4 ) THE Petitioner s (Nagendra Sahni) father, after retiring from the Indian Army, obtained employment with the SBI as a Guard and was allegedly, straying by himself at Trilok Puri, Delhi. A verbal assertion by Counsel for the SBI that this property belongs to the family of the Petitioner has correspondingly, been orally controverted by Learned Counsel for the Petitioner. It appears that on the night intervening between 28/9/1996 and 29/9/1996, the Petitioner s father suffered a cardiac attack arid died while on duty. The assertion of the Petitioner is that his deceased father was compelled to perform the night duty even though he had done the first shift from 8 A. M. to 2 P. M. The contention on behalf of the SBI is that there was no compulsion and that the Petitioner s father had volunteered to perform the night shift also as he would have become entitled to receive overtime. Since the question is only of the petitioner s entitlement for consideration for compassionate employment, I do not think it relevant to delve into this controversy. The Petitioner applied for employment within a month of his father s demise, i. e. on 30/10/1996 At that time the Petitioner was already married, a remarkable event for a person pleading penury. His elder brother is in service and is living separately at Andrews, Ganj. New Delhi. The petitioner s mother and younger brother are living on their ancestral land in Bihar which is being farmed by the younger brother. Significantly, the extent of this agricultural land has not been disclosed. In my view, this is a material suppression and the presumption must therefore be that it is a remunerative holding. If this was not so, there is little room for doubt that the petitioner would have explicitly mentioned the size of the land and the nature of its occupation. The respondent has stated that the Petitioner s mother/family had received Gratuity of approximately rs. 1,74,000. 00 the widow/mother is receiving monthly pension of Rs. 900. 00 from the Army and in addition thereto is : entitled to a further monthly pension from the SBI of approximately Rs. 2000. 00 per month. The income of the elder brother is approximately Rs. 4000. 00 per month. Mr. Gupta, Learned Counsel for the SBI mentions that the SBI is perhaps the only Public Sector undertaking which pays both Provident Fund as well as pension to its employees. In response to this barrage of figures of family income, Learne d counsel for the petitioner has stated that the Petitioner s elder brother has to all intents and purposes severed relations with his family after his employment and marriage. This fact has been controverted by Learned counsel; for the Respondent by pointing out that the petitioner has himself pleaded that his father had resided in his elder brother s home at Andrews Ganj, New delhi on the fateful day, between the, first and the last shift. Even ifthe factum of the Petitioner s elder brother s earnings are ignored, in a reality where an overwhelming section of our society does not even receive minimum wages, the concept of penury should be strictly construed against a person/whose family has such income, even if it is stated not to. Even ifthe factum of the Petitioner s elder brother s earnings are ignored, in a reality where an overwhelming section of our society does not even receive minimum wages, the concept of penury should be strictly construed against a person/whose family has such income, even if it is stated not to. be available to that particular party, Even if the elder brother s salary is discounted, the funds and income available to the mother of the Petitioner, and the family s owning land in Bihar, would place the Petitioner if not in the middle income bracket, well above the poverty line. ( 5 ) IN order to counter these arguments, Learned counsel for the Petitioner had relied on the decision in balbir Kaur and Another vs. Steel Authority of India ltd. and others, (2000) 6 Supreme. C6urt Cases 493. It is remarkable that although this question was not res integra, inasmuch as it had engaged the attention of the apex Court, none of the previous decisions had been cited by Counsel appearing for the parties. The Court did not have the benefit of the views recorded by it previously in Jagdish Prasad vs. State of Bihar and anotber, (1996) 1 Supreme Court Cases 301; Life insrance Corporation of India vs. Smt Asha ramachandra Ambekar and another, AIR 1994 Supreme Court 2148; Umesh Kumar Nagpal vs. State of Haryana and others, (1994) 4 Supreme Court Cases 138; and Director of Education (Secondary) and Another vs. Pushpendra kuma and Others, (1998) 5 Supreme Court Cases 192. On a careful reading of Balbir Kaur s case (supra ) it is clearly of little assistance to the Petitioner. The contention raised therein, on behalf of the employer company, was that if the family of the deceased had availed of the Family Benefit. Scheme, by depositing the lump sum Provident Fund and. Gratuity amounts, the management would in lieu thereof make monthly payments. It is in this context that, the Hoh ble supreme Court observed as follows :- "adverting to the Provident Fund, be it noted that the same is payable to an employee under the provisions of a statute and this statutory obligation cannot possibly by deferred in the event of an untimely death of a worker or an employee. It is in this context that, the Hoh ble supreme Court observed as follows :- "adverting to the Provident Fund, be it noted that the same is payable to an employee under the provisions of a statute and this statutory obligation cannot possibly by deferred in the event of an untimely death of a worker or an employee. As noticed above, the family heeds the, money in lump-sum and availability of this amount is the only insulating factor in such a grief stricken family. The amount is payable in one lump and as a matter of fact it acts as a buffer to the retirement of or on the death of an employee. Situations are not difficult to conceive when the family needs some lump-sum amount but in the event of deposit of the same with the employer; the heirs of the deceased employee could be pout into the same problems of realities of life, even though, if this money would have been made available to them the situation could have been otherwise. In any event as appears in the contextual facts, the NJCS. Agreement being a Tripartite Agreement expressly preserves the 1982 circular to the effect that any benefit conferred by the earlier circular shallicontinue to be effective and on the wake of the same we do not see any reason to deny the petitioner the relief sought for in the writ petition. On the wake of the aforesaid, we do feel it convenient to record that the option should have been made available either to have a compassionate appointment provided, however, the deceased employee s representative is otherwise competent to hold the post or the adaptation of the family pension fund by way of deposit of provident fund and gratuity amounts. In fact, however there was no option taken from the employees, at least no record have been produced therefor, neither any submissions made in that regard. Mr. Bhasme, further pointed out that though, the present appeals related to two individual cases but any interpretation contrary to the one canvassed by the respondent "is likely to open a pandora s box" since in the huge "empire" of the respondent, several such cases would be existing which would have to be reconsidered. Mr. Bhasme, further pointed out that though, the present appeals related to two individual cases but any interpretation contrary to the one canvassed by the respondent "is likely to open a pandora s box" since in the huge "empire" of the respondent, several such cases would be existing which would have to be reconsidered. " ( 6 ) RELIANCE was also placed on Smt. Sushma Gosain and others vs. Union of India and Others, J. T. 1989 ( 3 ) S. C. 570, but it does not contain a;ny discussion on, the circumstances in which a person is entitled to compassionate employment,. The Court had "stated unequivocally that in all claims for appointment on compassionate grounds there should not be any delay in appointment. " This very case was extensively considered by the Apex Court in the case of Umesh Kumar. . . . . . . . . . . . . Nagpal (Supra) and the position was clarified thus:- "2 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 dependants of an employee dying in harness arid 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 crises. The object is not to give a member of such. . The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crises. The object is not to give a member of such. family a post much less a post for post held by the deceased. What is further, mere death of an employee 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 crises 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 off 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 unturned. 6. . . . . . . . . . . , the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. 6. . . . . . . . . . . , the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial Crises which it faces at- the time of the deathof the sole breadwinner, the compassionate employment cannot be claimed and offered wherever the lapse of time and after the crises is over. " ( 7 ) IN Pushpendra Kumar s case the practice of granting compassionate appointment against a particular post had been assailed. The Bench comprising three Learned Judges, other than those who decided Umesh kumar Nagpal s case (supra), expressed the following view which in actual fact re,iterated their earlier stand: "the object underlying a provision for grant of compassionate. employment is to enable the family of the deceased. employee to tide over the sudden crises resulting due to death of the bread-earner which has left the. family in penury and without any means of livelihood. Out of pure 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, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment. on the post by following"a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly,interfere with the right of other persons who are eligible for appointment to seek employment, against, the post Which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee. " ( 8 ) IN the Life Insurance Corporation of India s case (supra), the Supreme Court found the decision not to give employment to the son of the deceased quite in order. The facts are uncomfortably similar to those obtaining in the present C. w. P. No. 7694/1999. A distillation of the views of the Apex Court in all these cases is that compassionate appointment intrinsically goes against the grain of the equality clause and should be carefully and sparingly employed . As I see it, it should be- made available strictly where penury and destitution is glaringly obvious, where the deceased employee dies in harness, shortly before his services would have come to a cessation by superannuation, granting compassionate employment to his kin would militate against the constitutional guarantees provided to all citizens of India under Articles 14. and 16. The facts in C. w. P. No. 7694/99 are that the petitioner s father died on 6/4/1983 while he was still in service. At that point of time the widow, that is, the mother of the Petitioner was offered compassionate employment. But she declined it in preference to her son s appointment. However, the Petitioner at that point of time had not attained majority and hence could not be considered for employment. Five years later, in 1988, the Petitioner sought compassionate appointment since he had by then attained the age of 18 years. . This was declined. At the present moment the Petitioner would be around thirty years of age. ( 9 ) A Reference was made. to the Industrial tribunal-11 who held in favour of the Petitioner, relying on the decision of the Patha High Court in brajendra Prasad poddar v. The State and others, 1991 Labour and Industrial. Cases 959 The impugned Award is to the effect that the Petitioner -is entitled to be appointed in M. C. D. as a Mali on compassionate grounds and he would be deemed to have been so appointed from the date of this Award becoming enforceable. The decision of the Patna High Court. must fall in line with the ratio of,the decisions of the supreme Court, which unfortunately-were not brought to the notice of the Industrial Tribunal. The decision of the Patna High Court. must fall in line with the ratio of,the decisions of the supreme Court, which unfortunately-were not brought to the notice of the Industrial Tribunal. Even on facts, in Brajendra Prasad s case (supra) the Court had noted, that at the time when the first application was made the petitioner was aged 17 years and a few months. He had filed the second application after attaining majority, soon thereafter. In the case in hand, the mother of the petitioner would have taken appointment had the family been destitute. Instead the preference, was to obtain/procure employment, out of turn on "compassion , for the Petitioner who would benefit for his whole lifetime. This falls beyond Article 16 of the constitution and cannot constitute an intelligible differentia. Furthermore, in ,ordering "deemed appointment", the Tribunal appears ,to have exceeded its jurisdiction as observed in the Life insurance corporation. s cas. e (supra), in which it had been observed that "the Court should not have directed the appointment on compassionate grounds. The jurisdiction under mandamus cannot be exercised in that fashion. It should have merely directed consideration of the claim of the 2nd respondent. To straightaway direct the appointment would only put the Appellant Corporation in a piquant situation. The disobedience of this direction will entail contempt notwithstanding the fact that the appointment may not be warranted. " It was argued before me that the powers of the Industrial Tribunal are wider than those of the writ Court. I do not propose to go into this question for the reason that the impugned award must be set aside even on other and different grounds. ( 10 ) UNFORTUNATELY there is no room for relief available to the Petitioner, because of the Order in jagdish Prasad s (supra), wherein it was stated as follows: "it is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that, therefore, the court is required, to examine whether the appointment should be made on compassionate grounds, we are afraid, we cannot accede,to the contention. The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earing member of the family. The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earing member of the family. Since the death occurred way back in1971, in which year the appellant was four years old, it cannot be said. that he is entitled to be appointed after he attained majority long thereafter. in other words, if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased government servant which cannot be. encouraged, de hors the recruitment rules. " ( 11 ) THE Supreme Court has pronounced against entitlement for appointment on compassionate grounds as a right. Such employment has a specific purpose, that is, to tide over a sudden tragedy, where an application is filed five years after the death, the. suddenness of the demise disappears and hence there is no warrant or justification for violating the equalities. guaranteed under Articles 14 and 16 of the Constitution, Quite obviously, if the family could;have subsisted for five years it could continue to do so in the future also. It is necessary to appreciate the distinction between a delayed ,application by the Petitioner, which in view of the observations of the Apex Court, would defeat a request; and a claim or demand for compassionate appointment, which is unjustified in law; and a timely application that has been kept pending for a very long time. where the request is otherwise justified in that the death was sudden and early in the career of the deceased and the bereaved family is, in a penurious state, a delay in deciding the application would not defeat the request. In fact Courts should be quick to direct the Managements to take a. decision on all applications expeditiously. Since the Petitioner s request for compassionate appointment had been "deferred at the Petitioner s request with the purpose of enabling him to attain majority, it had become stale as held in jagdish prasad s case (supra)In these circumstances the impugned Award is contrary to law and must, therefore, be set aside. The Award is accordingly set aside. The C. w. P. No. 7694/99, stands, allowed accordingly. ( 12 ) IN C. w. P. 422/2000 the family income was such as would place the Petitioner and the. family-,. . The Award is accordingly set aside. The C. w. P. No. 7694/99, stands, allowed accordingly. ( 12 ) IN C. w. P. 422/2000 the family income was such as would place the Petitioner and the. family-,. . of -the deceased well above the poverty line. The Scheme, reproduced above, correctly requires -eight considerations to be fully considered, before compassionate appointment can be granted. All these considerations are legally valid and salutary, and in conformity with the pronouncements of the Supreme Court. , since compassionate appointment runs counter to the equality of employment guaranteed to all citizens, the management, appears to have taken the correct decision in declining the request of the Petitioner keeping the family income and assets in perspective. It is also significant that the deceased-father. of the Petitioner died shortly before he would have otherwise superannuated. The claim for compassionate appointment is, therefore, wholly unjustified. ( 13 ) ON facts as well as in law Nagendra Sahni s case is meritless. I feel compelled to impose atleast nominal costs in the hope of discouraging unjustified litigation, if not in the sanguine hope of arresting avarice. , C. w. P. No. 422/2000 is dismissed with costs quantified at Rs. 1000. 00. I desist from awarding these costs to the S. 8. I. because of its financial strength. The costs be deposited in favour of the Delhi Legal services Authority, Patiala House, New delhi within four weeks. --- *** --- .