Compassionate Appointment cannot be Denied on Hyper Technical Grounds

One of the duties of government is to be a 'welfare state'.

The application for Compassionate was received in 2009 and kept pending for four years and then rejected in 2013 on the ground that the application was not filed within one year of the death of the deceased government servant.

The high court reminded the government that: One of the duties of government is to be a 'welfare state', and to act fairly in the implementation of beneficial legislation.

The HC bench decided that: Once an application is already pending, the respondent state cannot be permitted to reject the claim on hyper technical ground.

It is expected of a welfare state to act fairly in the implementation of beneficial legislation and ordered the government to reconsider the claim of the petitioner within three months.

Based on the principles of equality of opportunity: The welfare state is a concept of government, in which, the state , plays a key role in the protection and promotion of the social and economic well-being of its citizens. It also focuses on the governmental responsibility for those who are unable to avail themselves of the minimal provisions of a good life.

Post Independence: India is a welfare state.

Two specific provisions have been made, in The Constitution: one in the form of Fundamental Rights and the other as Directive Principles of State Policy. The Fundamental Rights embodied in Part III of the Indian Constitution act as a guarantee that all Indian citizens can and will enjoy civil liberties and basic rights. These civil liberties take precedence over any other law of the land. This was not enough.

Indian citizens also needed opportunities for economic and social development. That is why Part IV on Directive Principles of State Policy was included in the Indian Constitution.

All executive agencies have to be guided by these principles. Even the judiciary has to keep them in mind while deciding cases.

The state should ensure for its people adequate means of livelihood.

The state should ensure to the people (a) the right to work (b) the right to education (c) the right to state assistance in cases of unemployment, old age, sickness and disablement.

THE CONSTITUTION OF INDIA

Right to Equality: Equality before law.

Article:14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Equality of opportunity in matters of public employment.

Article:16. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State

Power of High Courts to issue certain writs.

Article:226: (2) The power conferred ( On High Courts)  by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power

Dated: 4 May, 1994

The main object sought to be achieved by the policy of compassionate appointment/ex-gratia employment is to relieve the family of the deceased employee of the grave financial hardship caused to it due to the sudden loss of the bread winner. It is intended to provide immediate succour to the family of the deceased employee. Favourable treatment given to such dependents of deceased employee as a rational nexus with object sought to be achieved, viz. relief against destitution.

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 crisis which it faces at the time of the death of the sole breadwinner.

7. It is needless to emphasize that the provisions for compassionate employment have necessarily to be made by the rules or by the executive instructions issued by the Government or the public authority concerned. The employment cannot be offered by an individual functionary on an ad hoc basis.

Supreme Court of India
Umesh Kumar Nagpal vs State Of Haryana (Sawant, J.) on 4 May, 1994
Author: P Sawant
Bench: Sawant, P.B.

On the basis of the judgment of Apex Court I case of Umesh Kumar Nagpal v. State of Haryana, the state of Punjab framed Policy for grant of employment in State services on compassionate grounds was framed and mainly contained in circular letter No.11/27/94-2PPI/2364 Dated.05.02.1996 and further emended by circular letter No.11/105/98-4PPII/14420 Dated.20.11.2002 and further amended on 3.7.2008

Dated: April 20, 2012

In our considered view date of death of an employee is an important factor to be taken into consideration as schemes for compassionate appointment are floated with a view to provide immediate relief to families of deceased employees to meet the financial crisis they face on death of sole bread winner. Travails of the family begin immediately thereafter. In that context, date of death assumes significance. Purpose of providing compassionate appointment is to mitigate the hardship at that time. Thus policy applicable on the date of death needs to be invoked to provide immediate relief.

Application seeking compassionate appointment should be moved promptly thereafter by his dependent and considered by the employer without undue delay.

IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH.

CWP No.4303 of 2009 & connected writ petitions (O&M)

Date of decision: April 20, 2012
Krishna Kumari ... Versus State of Haryana & others
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE RAJAN GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA

Dated: March 3, 2017

1. The challenge in the present writ petition is to the order dated 31.05.2013 (Annexure P14), whereby the claim of the petitioner seeking compassionate appointment on the basis of the death of his mother has been declined.

2. In brief, the facts are that the mother of the petitioner was working as Pharmacist at ESI Dispensary at Verka, Amritsar and expired on 25.01.2002 while in service. The petitioner along with with his father and sister were the only legal heirs of late Smt. Saroj Kumari. At the time of the death of his mother, the petitioner was 13 years old. The father of the petitioner submitted an application on 10.06.2002 requesting therein to reserve a post for his son Pradeep Kumar on compassionate grounds. On attaining the age of majority, the petitioner submitted an application along with his educational qualification and also submitted an indemnity bond. When the petitioner was not given appointment, he again submitted an application dated 31.10.2011, which was rejected on the ground that the application seeking compassionate appointment had not been preferred within the statutory period of one year from the date of the death of the government employee.

3. Mrs. Anu Chathrath, learned Senior Counsel appearing on behalf of the petitioner, argues that the petitioner was a minor when his mother expired on 25.01.2002 and, therefore, was not in a position to take up a job immediately. In fact, the natural guardian of the petitioner, his father, had requested, vide letter dated 10.6.2002, that a post on prior priority basis be reserved for his minor son Pradeep Kumar, the petitioner herein, as he was only 13 years old.

4. Per contra, Mr. Pankaj Mulwani, appearing on behalf of the respondents, submits that the claim of the petitioner has been rejected on the ground that the petitioner did not apply for compassionate appointment within one year of his mother's death, as per the government instructions of 2002.

7. The policy, as relied upon by the respondents, is not applicable in the case of the petitioner. It is the Policy of 1996 that will be applicable to the petitioner since the policy of 2002 only came into existence after the death of the employee, namely the mother of the petitioner. A Full Bench of this Court in CWP No. 4303 of 2009 decided on 20.04.2012 in Krishna Kumari versus State of Haryana and others has held that it is the rules applicable on the date of death/incapacitation of an employee that need to be followed.

8. The petitioner's mother expired on 25.1. 2002 on which date the policy of 8.8.1996 was prevalent. This policy was subsequently amended on 21.11.2002 . In paragraph 2 of the policy of 1996 it was stipulated “that in cases where no dependent member in the family of the deceased government employee becomes eligible for compassionate appointment within the prescribed period of 2 years from the date of death due to their being underage, the request for compassionate appointment in such cases can be made within a period of 6 months after any of the dependent member in the family becomes eligible for compassionate appointment.”

9. Even otherwise, policy regarding compassionate appointment framed in the year 21.11.2002 was subsequently amended on 3.7.2008 by adding para 13( a), which reads as under; – “Provided that in the case where the deceased government employee leaves behind his/her minor children, who are studying at that time of death of the employee and are not qualified for an employment in the government and the spouse is not in a position to join the government job, a dependent child may be allowed to apply for compassionate appointment by the competent authority, within a period of one year from the date of attaining the age and educational qualifications for a C or D appointment in government'. The benefit of these instructions were also extended and made applicable as a one-time measure to old cases. It was also decided that an application for employment could be made within 6 months from the date of issue of these instructions, if not already made.(emphasis added).

10. A conjoint reading of the above said provisions would lead to the conclusion that a dependant child could apply for compassionate appointment to the competent authority, within a period of one year from the date of attaining the age and educational qualifications in government and such a benefit was also extended to those person who apply within 6 months of the amendment made to the 2002 policy i.e. by 2.2.2009. On humanitarian grounds, a direction was issued to consider all cases where application was received within 6 months, if not already received.

11. Once an application is already pending, the respondent State cannot be permitted to reject the claim on hyper technical ground.

 It is expected of a welfare state to act fairly in the implementation of beneficial legislation.

12. Accordingly, the impugned order dated 31.5.2013 (Annexure P14) is not liable to be sustained and is hereby quashed. The respondents are directed to reconsider the case of the petitioner for compassionate appointment within a period of 3 months from receipt of certified copy of this order.

13. Writ petition stands allowed accordingly.

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

CWP No. 25385 of 2013 (O&M)
Date of decision: March 3, 2017
Pardeep Kumar ...Petitioner Versus State of Punjab and another ...Respondents
CORAM:- HON'BLE MS. JUSTICE JAISHREE THAKUR

 

Kumar Doab 
on 07 March 2017
Published in Labour & Service Law
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