compassionate appointment

Case BriefsHigh Courts

Jharkhand High Court: Dr S. N. Pathak J. allowed a writ petition and directed the respondents to consider the circular of a later date to be a reference point for rejection or otherwise, subject to its applicability, if any.

The factual matrix of the case is that the father of the petitioner was working under Road Construction Department and died in harness on a fateful day subsequent to which the petitioner represented before the respondents for consideration of his case for appointment, but on rejection of the same filed a writ petition which was disposed off directing respondents to consider the case of the petitioner vide an office order dated 04-03-1983 issued by the Superintending Engineer, Road Construction Division, Jamshedpur. In compliance of the order the case of the petitioner was considered and rejected by the respondents on the ground that petitioner does not fulfill the requisite qualification. Aggrieved by the same, the petitioner approached the present Court for a direction upon the respondent to consider the case of the petitioner for compassionate appointment.

Shekhar Prasad Sinha, the counsel for the petitioner submitted that a circular dated 01-12-2015 having Clause 9 says that even if the requisite qualification of 10th pass was lacking by the petitioner, it was incumbent upon the respondents to consider the same, subject to confirmation of obtaining the requisite qualification within stipulated time. He further submitted that the case of the petitioner has been rejected in view of the Circular of the Finance Department dated 02-09-2011 whereas it should be considered in view of circular dated 01-12-2015. Hence the rejection was on illegal ground and is not tenable in the eyes of law.

The counsel for the respondents, Prashant Kr. Singh opposed the petitioner saying that the petitioner does not fulfil the requisite qualification as per the Circular of Finance Department 02-09-2011 and as such, same has been rejected.

The Court, in view of the facts and arguments, observed that since the petitioner is relying on the circular dated 01-12-2015 and petitioner’s case was rejected on 21-11-2016, which is after coming into force of Circular dated 01-12-2015 and as such, it was incumbent upon the respondents to consider the latest Circular of the Government, subject to applicability. The Court further directed the respondents to consider the case of the petitioner in view of Circular dated 01-12-2015, subject to applicability.

In view of the above, writ petition was disposed of. [Fagu Charan Gope v. State of Jharkhand, 2020 SCC OnLine Jhar 254, decided on 27-02-2020]

Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of Aparesh Kumar Singh and Kailash Prasad Deo, JJ. dismissed the writ petition being devoid of merits.

Brief facts of the case are that the father of the applicant died on 24.08.2009. After which his mother filed an application dated 13.04.2010 for grant of compassionate appointment in his favour as the deceased employee died leaving behind a widow, two sons and one married daughter. The name of the applicant was at serial number 30 out of 73 persons and 19 out of 59 candidates in 2012 and 2013 respectively. 

Now by the impugned order dated 21.05.2015, the cases of applicants got rejected because they have been considered five and they could not find place in the list of deserving candidates, either in view of non-availability of vacancies or more deserving persons listed above. The Tribunal rejected the arguments of the applicants and held the applicant has received due consideration along with others and no case of discrimination holds ground. 

The applicant being aggrieved by an order passed by Central Administrative Tribunal, seeking quashing of the order of rejection of compassionate appointment dated 21.05.2015 has preferred this writ petition.

The counsel for the petitioner, Ajay Kumar Pathak, submitted that the claim of compassionate appointment has been rejected on arbitrary grounds. Proper evaluation of the claim as per the defined yardstick has not been made. Learned Tribunal should have accorded sympathetic consideration since the father of the applicant had died on 24.08.2009 in harness.

The counsel for the respondent, Laxman Kumar, has opposed the prayer. He submitted that applicant’s claim was considered as per the uniform defined criteria on five occasions, one after the other on applications made for reconsideration. The previous orders of rejection were not challenged.

The Court observed that in the matter of compassionate appointment, vacancies are limited for a particular year out of the total post in the cadre i.e., 5%. Applicant’s claim was considered four times earlier and each time he did not find place amongst the candidates falling within the vacancies for that year against the quota of compassionate appointment. Applicant has not been able to show that he had a better claim then the other candidates above in the list. Moreover, the earlier orders of rejection were also not challenged and had become stale.

In view of the above, the Court decided not to interfere in the impugned order passed by the learned CAT and dismissed the writ petition. [Mukesh Kumar Das v. Union of India, 2020 SCC OnLine Jhar 231, decided on 02-03-2020 ]

Case BriefsHigh Courts

Punjab and Haryana High Court: Ritu Bahri, J. partly allowed the petition with the directions that the petitioner was entitled to compensation when their plea for the compassionate appointment was rejected by the respondents.  

The husband of the petitioner was working with Haryana Police as Head Constable. He expired on 22.7.1998. His son was a minor at the time of his death. After attaining the age of majority in 2005, his son made an application for compassionate appointment and submitted all the relevant documents along with application. This claim was rejected on the ground that as per Instructions dated 28.2.2003 regarding Ex-gratia Appointment Rules, 2003 as per Clause 6(1) (b) the same had become time barred. 

The petitioner relied on the new policy dated 30.11.2005 “Haryana Compassionate Assistance to the Dependents of Deceased Govt. Employees Rules, 2005” and the notification dated 01.8.2006, whereby new rules known as Haryana Compassionate Appointment to the Dependents of Deceased Government Employee Rules 2006 was published by the State Government. The petitioner served a legal notice for grant of compassionate appointment as well as financial assistance. The Department in their reply to the said legal notice rejected the claim by saying that a compassionate appointment could not be given since any post could not be kept reserved for any minor child of a deceased employee. The petitioner also relied on Instructions dated 16.3.2011, whereby Chief Secretary to Government of Haryana as a one time measure had given relaxation for applying for ex gratia compensation in cases before 01.08.2006. As per these Instructions, a decision was taken that the Government was to reconsider all the old cases where the family of the deceased under Rule 4 (2) and 6(1)(c) of Rules 2003 and under Rule 4(2) and 6(4) of the Rules 2005 of the Ex-gratia Scheme could not exercise option within time due to lack of requisite knowledge and other reasons and because of which the family of the deceased could not avail the benefit under Ex-gratia Scheme as it became time barred.

The respondents stated that they had offered the petitioner some financial assistance, which the petitioner refused to accept and urged for the appointment of her son. While rejecting the case of the petitioner for ex-gratia appointment, reference was made to Clause 6 (1) (c) of Rules 2003. A perusal of these Rules showed that the Head of the concerned Department had to prepare the list of dependents which were valid for three years and appointments were to be given by the Department strictly in accordance with seniority so maintained. 

The only benefit that the petitioner could get was the payment of ex-gratia amount offered with regard to the Ex-gratia Appointment Rules 2003, as per Clause 6(1)(b) the same has become time-barred. Therefore, the question of grant of appointment on compassionate grounds did not arise. 

In view of the above-noted facts, the instant petition was partly allowed with the direction that it was the duty of the State Government after rejecting the case of compassionate appointment of petitioner, to give them Rs 2.5 lacs and that the petitioners were entitled for interest @ 6% interest per annum on the financial assistance from 01.12.2004 till the payment was made.[Asha Rani v. State of Haryana, CWP No. 2838 of 2017, decided on 14-12-2019]

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Allahabad High Court: Rajesh Singh Chauhan, J. while allowing the writ petition issued a writ in the nature of mandamus so as to command the opposite parties to reconsider the claim of the petitioner.

In the instant case, Nikhat Jahan, the petitioner’s request for appointment under Dying-in-Harness Rules was denied for the reason that she is a ‘divorced daughter’. Her father died on 19-6-2016.

She submitted that earlier her claim was rejected on 7-2-2017 for the reason that ‘divorced daughter’ does not come within the definition of “family” but such order was set aside by this Court vide judgment and order on 9-2-2018 in Service Single No.4418 of 2017 with the direction to the competent authority to consider the case of the petitioner afresh in view of the settled proposition of law, which was settled recently.

When the petitioner produced a certified copy of the aforesaid order, her claim was rejected in view of the dictum of the Supreme Court of 29-7-2016 passed in a special leave to appeal. To this, the petitioner submitted that the aforesaid dictum does not apply to the instant case.

The Court referred to Kusum Devi v. State of U.P., 2009 SCC OnLine All 1941  It was held that a divorced daughter is entitled to compassionate appointment. “A divorced daughter, if dependent upon her father, cannot be excluded and has to be included within the meaning of the word ”family’ since such a ”divorced daughter’, is dependent upon her father, has to be treated at par with an unmarried daughter or widowed daughter as all of them continue to be the liability of their father as member of the family of their ”father’.” The same was held in State of U.P. v. Jayanti Devi, passed in Special Appeal Defective No. 1298 of 2017.

In the instant case expression “Unmarried” used in Rule 2(c) of U.P. Recruitment of Dependant of Government Servants Dying in Harness Rules, 1974, was considered. Normal and common meaning of expression “Unmarried” is “not married” or “Single”. In the Wharton’s Law Lexicon 15th Edition, the expression “Unmarried” has been defined as: – “Unmarried, is a term of flexible meaning; prima facie it means ‘never having been married’.

As per Merriam Webster’s Collegiate Dictionary, 11th edition, “unmarried” means ‘not now or previously married’ or ‘being divorced or widowed’. In Stroud’s Judicial Dictionary of Words and Phrases, 7th edition, the primary meaning of ‘unmarried’ is ‘never having been married’ or ‘without ever having been married’ and the secondary meaning is ‘having no spouse living at the material time’. It is a word of flexible meaning, and slight circumstances could be sufficient to give the word its secondary meaning.

From the above explanations, it is clear that the term ‘Unmarried’ has flexibility in its meaning and it does not only mean “not married” or “single” or “never married”, it also means “not married on relevant date “or “widow” or “widower” or “divorcee”.

In context of the present case, the Court observed that a widow remains to be part of her husband’s family even after the death of such husband, whereas upon the marriage being dissolved, the divorcee daughter does not continue to be a part of the family of her divorced husband and would continue to remain single unless she remarries.

Further, under Rule 2(c) of Rules of 1974, there is no express exclusion that a “divorced daughter” is not entitled to appointment under the Rules.

Therefore, the Court directed the opposite parties to reconsider the claim of the petitioner for compassionate appointment strictly in terms of judgment and order of 03.01.2019 passed by this Court in Special Appeal Defective No. 673 of 2018; State of U.P. v. Noopur Srivastava, with the expedition, preferably within a period of one month from the date of production of a certified copy of the order.[Nikhat Jahan v. State of U.P., 2019 SCC OnLine All 3036, decided on 21-08-2019]

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Patna High Court: Ashutosh Kumar, J. dismissed the petition saying that there was no merit in the petition and the case could not be considered afresh.

The petitioner filed a petition to for directions to be made to the respondent authorities to appoint him as a  Class-IV employee on compassionate grounds , as his father had died working as a

Chowkidar, in the year 1995.  After the death of the petitioner’s father, an application was filed for compassionate appointment by his elder brother, which was allowed but later, the petitioner’s brother did not pursue the matter any further. An application was then filed after seven long years by the petitioner’s brother that in his place, his younger brother i.e., the petitioner be considered for appointment.

The counsel for the State contended that considering the condition of the family, help was offered to them in the form of compassionate appointment to one of the dependents of the deceased employee, and the department had recommended the appointment of the elder son of the deceased employee. It was the duty of the elder son to have reported to the authorities he was not capable of discharging the aforesaid responsibility. The act of approaching the authorities in the year 2010 and this Court of law in the year 2019 denotes that the family was not in need of any help in the form of compassionate appointment.

The Court held that grant of compassionate appointment is not a mode of appointment but only a concession to the family of the deceased employee in order to bail it out from the financial distress. Such compassionate appointment was given in terms of the scheme framed in the department for grant of such employment and the department cannot sway from the rules as it was not a regular case of appointment. The dominant purpose behind the grant of such appointment is to alleviate the immediate difficulty of the family of the employee who died in harness, leaving the family on the brink of starvation/destitution.

Since the death took place in the year 1995 and the matter was not pursued despite a recommendation for the petitioner’s brother by the department for being considered, the case of the petitioner cannot now be considered afresh.

In view of the above-noted facts, the instant petition was dismissed. [Ajay Kumar Yadav v. State of Bihar, 2019 SCC OnLine Pat 1434, decided on 19-08-2019]

Case BriefsHigh Courts

Patna High Court: Ashutosh Kumar, J. directed the petitioner to make a representation before the municipal corporation to be considered for appointment on compassionate ground.

The petitioner was the daughter of a man who was working as Pump Khalasi with the Municipal Corporation of Munger. Her father, the employee, died on 09-10-2014. The wife of the deceased employee made an application for being considered for the compassionate appointment but no order was passed in this regard as the corporation kept on seeking directions and guidelines for providing appointment on compassionate ground. In the meantime, the petitioner, who was married to a poor person, became a widow and during the lifetime of the deceased employee, she became dependent on him. The brother of the petitioner, who was in government service, was also not affording any help to the family of the deceased employee. Sometime later, her mother also passed away.

The petitioner was absolutely dependent on her father, and therefore sought compassionate appointment in place of her deceased father.

The Court was of the opinion that since there was no other claimant for being considered for appointment on compassionate ground, it directed the petitioner to make a representation before the Municipal Commissioner, for them to consider her for being appointed on compassionate ground on any Class-IV post, subject to the scheme of such compassionate appointment which may be prevalent in the corporation. The Court directed the Municipal Commissioner of Munger to look into the case of the petitioner in the right perspective and the law which has developed with regard to grant of compassionate appointment in order to provide succour to the family of the deceased employee.[Moti Devi v. State of Bihar, 2019 SCC OnLine Pat 1372, decided on 07-08-2019]

Case BriefsHigh Courts

Karnataka High Court: R. Devdas, J. allowed a writ petition under Articles 226 and 227 of Constitution of India, and quashed the order passed by Bengaluru Development Authority, denying compassionate appointment to the petitioner.

In the instant case, the petitioner filed an application before the Bengaluru Development Authority (respondent), seeking appointment on compassionate ground. It was rejected by the respondent on the ground that petitioner was born out of the second marriage of his father who was an employee of the respondent-Authority. Thereby, the petitioner filed a writ petition before the High Court to quash the said order.

The learned counsel of the petitioner, Sri Shanmukhappa, submitted that the impugned order was passed by the respondent keeping in mind the Circular dated 27-08-2015 wherein it was stated that the children born out of second marriage of a government servant or an employee could not seek appointment on compassionate ground, which was offensive to the constitutional guarantee against discrimination. For this he relied on the judgment of the Supreme Court in Union of India v. V.R. Tripathi, 2018 SCC OnLine SC 3097, where it was held that “Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment.”

In the view of the above, the Court allowed the petition and ordered to quash the impugned order dated 12-03-2018. It also directed the respondent to reconsider the application of the petitioner, and pass the order in accordance with law within a period of two months.[Lohit Gowda V. v. State of Karnataka, 2019 SCC OnLine Kar 562, decided on 25-04-2019]

Case BriefsHigh Courts

Patna High Court: The Three-Judge Bench of Ashwani Kumar Singh, Birendra Kumar and Anil Kumar Upadhyay, JJ. disposed of an appeal arising out of a reference made by the Division Bench of this Court, in view of conflicting judgments on the aspect of maintainability of a claim for compassionate appointment of a child born from the second marriage of deceased employee, while the first marriage is subsisting.

A circular issued in 2005 under by the Personnel and Administrative Reforms Department of Government of Bihar declared that if a government servant marries while earlier marriage is subsisting, without the permission of the government, then such spouse and the ward of such spouse would be disentitled for appointment on compassionate ground. In a petition filed before this Court, the learned Single Judge quashed the said circular and directed the petitioner authority to appoint minor-respondent herein (whose father died in harness and who was the son of deceased’s second wife) on compassionate grounds. 

The Court relied on Union of India v. V.R. Tripathi, 2018 SCC OnLine SC 3097 where the right to compassionate appointment to child of second marriage was acknowledged under Section 16(1) and 16(3) of the Hindu Marriage Act, 1955 (HMA); and where it was held that while designing a policy of compassionate appointment, State can prescribe the terms on which it can be granted. However, while making a scheme/ rule, State could not lay down conditions inconsistent with Article 14 of the Constitution of India.

It was opined that once Section 16 of HMA regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, the State could not exclude such a child from seeking the benefit of compassionate appointment. An employer, who is amenable to Part III of the Constitution, could not deny the benefit of compassionate appointment available to other legitimate children. Such a condition of exclusion would be arbitrary and ultra vires as it would bring out unconstitutional discrimination between legitimate children, who form one class.

If a government servant performs the second marriage, it would amount to misconduct committed in service. In such a case, if he is proceeded against for such misconduct while in service and misconduct is proved, the government may be free to take any action against such employee and the same may be a relevant consideration for denying the prayer for compassionate appointment of dependents of the deceased employee. However, if no disciplinary proceeding is initiated for any misconduct against an employee while in service; after his death, his dependents cannot be denied compassionate appointment on the ground that while in service, the employee had been guilty of misconduct.

It was observed that appointment on compassionate ground is not a source of recruitment but an exception to the general rule, the purpose of which is to prevent destitution and penury in the family of a deceased employee. Application for compassionate appointment must be decided on facts of each individual case. Therefore, the impugned order was modified and the subject circular was quashed to the extent it prevented children of the second wife from being considered for appointment on the compassionate ground; with a direction to the appellant to consider the claim of the respondent for appointment on compassionate ground on merit.[Bihar State Electricity Board v. Chadra Shekhar Paswan, 2019 SCC OnLine Pat 562, decided on 18-04-2019]

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Patna High Court: The Division Bench of Amreshwar Pratap Sahi and Anjana Mishra, JJ. rejected a petition assailing the order delivered by Central Administrative Tribunal, on the ground of inordinate delay in filing the petition.

In the instant case, an employee had died in harness in the year 1992. The matter for compassionate appointment in place of the deceased employee was taken up by the Central Administrative Tribunal where it was, ultimately, disposed of in 2008. The instant petition was filed challenging the order of the said Tribunal.

The Court noted that the present petition had been filed after an inordinate delay of almost ten years and the explanation sought to be given for the delay did not appear to be convincing. It was opined that the petition was heavily barred by laches, more so, as the subject matter related to that of compassionate appointment.

In view of the above, the Court declined to interfere on the ground of laches. [Ravi Shankar Kumar v. Union of India, 2019 SCC OnLine Pat 255, Order dated 27-02-2019]

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Meghalaya High Court: Yaqoob Mir, CJ dismissed a petition for compassionate appointment holding it to be without merits.

Petitioner’s father was in Meghalaya Police who died in harness in the year 1999 while debuted for operational duty at Shillong, West Khasi Hills District. In 2017, after a lapse of 18 years, petitioner applied for the compassionate appointment. His application was considered and rejected stating that in terms of the relevant Department Order, the application for appointment on compassionate grounds had to be filed within 1 year from the date of death of the Government servant or from the date of acquiring a necessary educational qualification. Therefore, petitioner’s claim was rejected as time-barred.

R. Sharon, Advocate for the petitioner admitted that he acquired the necessary qualification in 2011 but applied only in the year 2017.

The High Court found favour with submissions of Advocate General A. Kumar. It observed, “Compassionate appointment admittedly is a departure from normal rules of appointment but same has laudable object of saving the deceased’s family from crisis and financial complications. Here in the instant case, the family has survived for 18 years.” Petitioner failed to show any rule which would provide for considering his application and resultantly, the petition was dismissed. [Ravi Koch v. State of Meghalaya, 2019 SCC OnLine Megh 4, dated 04-02-2019]

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Patna High Court: A Single Judge Bench comprising of Shivaji Pandey, J. dismissed a petition as the denial of compassionate appointment was justified on the part of the respondents.

The petitioners challenged an order wherein their services were terminated on the ground that their family members were already in service when they were appointed on compassionate ground. It was contended by their counsel Md. Shahnawaz Ali that one of the family members shall be given the benefit of compassionate appointment when the only bread earner of the family dies.

The Court placed reliance on the fact that when the family members of the petitioners were working in the Corporation, the question of their appointment on compassionate appointment does not arise and thus termination of the petitioners was not erred on the part of the respondents.

Accordingly, the petition was dismissed but if an advertisement was published in future, the respondents shall be at liberty to consider the case of the petitioners on sympathetic grounds. [Pradeep Kumar Ram v. State of Bihar, 2018 SCC OnLine Pat 2268, decided on 21-12-2018]

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Jharkhand High Court: A Single Judge bench comprising of Aparesh Kumar Singh, J. while dealing with a civil writ petition rejected the petitioner’s claim for compassionate appointment in place of his father’s legally married wife.

Facts of the case were that the petitioner’s father – Laldo Turi – had two wives, first one Baso Devi and the second being the petitioner’s biological mother Jagni Devi. Baso Devi died while working as Piece Rated Worker in one of the projects of the respondent. The petitioner claimed compassionate appointment in lieu of Baso Devi’s death which was rejected on the ground that he was not the natural son of deceased employee but her step son. Petitioner claimed that even as a son of the second wife, he was entitled to compassionate appointment since Baso Devi’s service excerpts mentioned him as her son, and also because a family certificate issued by the Circle Officer showed Jagni Devi as the co-wife of his father Laldeo Turi and him as their son.

The legal issue to be decided was as to whether the petitioner would be covered under the expression ‘son’ and/ or ‘legally adopted son’ under Clause 9.3.3 of Social Security chapter of National Coal Wage Agreement-VII (NCWA-VII), to seek compassionate appointment.

Clause 9.3.3 of NCWA- VII provides for employment to the dependent of a deceased employee dying in harness who fall in the category of wife/ husband/unmarried daughter/son/legally adopted son.

The Court noted that for the purposes of the said clause, a dependent would mean wife/ husband, unmarried daughter, son and legally adopted son. If no such direct dependent is available for employment, brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the deceased and almost wholly dependent on the earnings of the deceased, may be considered to be the dependent of the deceased. It was noted that the categories of dependents included in the clause are those who have a valid and legal relationship with the employee.

Having regard to the aforesaid noting, the High Court observed that the petitioner was not a legally adopted son of the deceased employee Baso Devi. Moreover, the fact that the deceased employee is not his biological mother was revealed by him much later. Holding that the petitioner did not fall under any of the categories stated above, the writ petition was dismissed. [Nageshwar Turi v Central Coalfields Limited,2018 SCC OnLine Jhar 1207, Order dated 19-09-2018]

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Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., allowed a writ petition filed against the order of the respondent authorities, rejecting petitioner’s claim for compassionate appointment on the ground that compassionate appointment cannot be granted in cases of deemed death or civil death.

The main issue for consideration, in this case, was whether the respondent authorities were justified in rejecting petitioner’s claim on the ground that compassionate appointment cannot be granted in cases of deemed death.

The Court observed that there is no distinction between civil death or deemed death and natural death. The Court referred to its own decisions including Bijay Kumar Pradhan v. State of Jharkhand, 2013 SCC OnLine Jhar 1417 and Sunil Kumar v. State of Jharkhand, 2015 SCC OnLine Jhar 2308. In both these cases the Court had held that there is no difference between civil and natural death, hence compassionate appointment cannot be denied in cases of civil death.

The Court held that as per Section 108 of the Indian Evidence Act, 1872 “if a person has not been heard of for 7 years by those who could naturally have heard of him if he has been alive, then the burden of proof that he is alive is shifted on the person who affirms it.” In this case, the petitioner and her mother successfully proved that they have not heard of the petitioner’s father for more than last 7 years and the respondents have themselves admitted that petitioner’s father has met with civil death. On these grounds the Court allowed the petition and quashed the order of respondent authorities, directing them to consider petitioner for compassionate appointment.[Praveen Kumar Singh v. State of Jharkhand,2018 SCC OnLine Jhar 753, Order dated 25-07-2018]

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Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., allowed a writ petition filed against the order of Respondent-authority whereby petitioner’s claim for compassionate appointment after the death of his mother was rejected.

The main issue, in this case, was whether the respondent authorities can come up with a new ground for rejection of petitioner’s application in subsequent proceedings.

The Court, in this case, observed that initially the claim of petitioner was rejected by the respondents on the ground that the petitioner ought to have applied for a compassionate appointment within six months from the death of his mother. The Court had then rejected the plea of the respondent and had directed them to reconsider the case of petitioner, however the same was again rejected on the ground that the petitioner was below fifteen years of age at the time of death of his mother and hence he could not have been kept on live-roaster for compassionate appointment.

This plea was not raised by the respondent authorities previously and the respondents had come up with this new contention only after the matter was once directed to be re-considered. Hence, the Court held that if this is allowed then it would lead to a never-ending series of litigation and the contention of the respondents was rejected. Accordingly, the petition was allowed and the order of the respondent authorities was quashed by the Court.[Budhu Oraon v. Central Coal Fields Limited,2018 SCC OnLine Jhar 640, dated 12-07-2018]

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Jammu and Kashmir High Court: A Single Judge Bench comprising of Ali Mohammad Magrey, J., dismissed a petition filed by the petitioner seeking the benefit of SRO 43 of 1994 [Jammu & Kashmir (Compassionate Appointment) Rules, 1994].

The petitioner was an adopted son whose father was killed in an encounter between Army and militants. The petitioner sought compassionate appointment against the death of his father.

The Court, in this case, referred to various Rules of SRO 43 of 1994 including Rule-2 wherein applicability of the said rules has been laid down which includes adopted sons and daughters as well within its ambit. The Court then referred to SRO 177 which amended certain rules of SRO 43 of 1994 and observed that as per the amendment to clause (d) of Rule 2, the benefit of SRO 43 of 1994 shall be given to the adopted sons or daughters only if the personal law of the community to which the beneficiary/adoptee belongs, allows the process of adoption.

The Court concluded by holding that the petitioner was not entitled to the benefit of SRO 43 of 1994 since his community does not permit the process of adoption and hence the petition was dismissed. [Mohammad Rafiq Wagay v. State of J&K,2018 SCC OnLine J&K 470, order dated 26-07-2018]

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Gauhati High Court: The Single Judge Bench comprising of Ajit Singh, C.J., decided a petition filed under Section 227 of the Constitution. The petitioners had hired the deceased Sri Dimeswar Hira who died in harness, after his death, they hired his son on compassionate grounds and unfortunately he also died that is when respondent submitted an application to be hired on compassionate grounds to the petitioners for which the petitioners deputed the Welfare Inspector for the actual position of the daughter. After the due verification by the Welfare Inspector, the recommendations made were of appointment of the unmarried and unemployed daughter of the deceased on compassionate grounds.

The petitioners ignored the report of Welfare Inspector by declining the case of respondent for her compassionate appointment. The petitioners stated that respondent had failed to establish the fact that she was dependent on the deceased. The respondent went in appeal to the administrative tribunal against the decision of the petitioner’s which was allowed. Aggrieved by the same, the petitioner’s were before the High Court.

Dismissing the petition, the Court concluded that, the petitioners ignored the facts established by the Welfare Inspector about the respondent being the unmarried and unemployed daughter of the deceased and no proof of her dependency on her late father can be expected and even more so when the petitioners failed to rebut the stated presumption. [Union of India v. Himani Hira, 2018 SCC OnLine Gau 393, order dated 11-05-2018]

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Delhi High Court: Recently before the Delhi High Court, a case regarding compassionate employment to a second wife of the deceased husband came up. Champa Devi- the second wife and the appellant pleaded that she was the legally wedded wife of the deceased as the late husband and employee (government) of GTB Hospital had sworn and declared on affidavit in 1990 that the petitioner was his lawful wife. However, the first wife of the petitioner was still alive at the time he sworn in the affidavit. It was only in 1994 that the first wife passed away.

The High Court noted that it was only in 2013 while she had the opportunity to state so when she applied for succession certificate or sough appointment on compassionate grounds, the petitioner claimed before the Court that she married the deceased as per Hindu rites in 1994 after the death of his first wife, but couldn’t present enough evidence to prove it. The same was not mentioned even in the certificate of marriage issued by Gram Panchayat of their village. Ever since the inception of the suit, her contention had been that she married the deceased by way of execution of a marriage deed and an affidavit.

On this, the Court went on to observe that under Hindu Law, marriage is a sacrament and not a contract which can be entered into by execution of a marriage deed.  She never even disputed the fact that at that time, he had a living spouse. She even contended that as she was the only wife alive at the death of her husband and therefore, she must be entitled to all the benefits. All these contentions were rejected by the Court and it upheld the judgment of the courts below observing that the appellant can not claim the status of a legally-wedded life and relied on the reasons stated above. [Champa Devi v. Lt. Governor of Delhi, 2017 SCC OnLine Del 6562, decided on January 17, 2017]

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Rajasthan High Court: While deciding a case concerning compassionate appointment of child of a deceased employee of United Corporate Bank the Divisional Bench of Deepak Maheshwari and Sangeet Lodha, JJ. held that compassionate appointment is just to help the family in harness to get over the immediate crisis by the loss of sole breadwinner. This category of appointment cannot be claimed as a right after a lapse of the period when the crisis is over. Financial status of the family is also to be looked into as per the scheme framed by the employer while giving compassionate appointment and such appointment cannot be conferred contrary to the scheme.

In the present case, death of father of the petitioner took place 17 year ago, hence the Court held that the period of crisis for the  family is over. Further, the condition of the family was not found to be penurious as required under the parameters of the scheme of the employer Bank applicable at the time of deciding the application for compassionate appointment.

The  Court relied on the judgement of the Supreme Court in  State Bank of India v. Somvir Singh, (2007) 4 SCC 778 and observed that it is within the domain of the employer to calculate the income of the family of the deceased employee and the Court should not disturb the finding arrived at by the employer. [UCO Bank (United Commercial Bank) v. Devi Kishan Harijan, 2016 SCC OnLine Raj 8299 , decided on 21.12.2016]

Case BriefsHigh Courts

Madras High Court: Deciding an appeal filed against the impugned judgment of the writ court wherein the claim for compassionate appointment of the petitioner was accepted and the rejection order of the appellants was set aside, the division bench of S. Manikumar and G. Chockalingam held that the request of the petitioner for appointment on compassionate grounds cannot be entertained, as on the date of application, he was minor. The Court further observed that employment assistance on compassionate appointment, is only a concession, extended to an eligible member of the family, to apply for a suitable post, in the service, in which, the employee/Government servant died in harness and it is not a right, which can be exercised by a minor on attainment of majority.

In the instant case the mother of the petitioner was working as a sweeper in Central Prison, Tiruchirappalli. On 30.03.1998, she died in harness. At that time, the writ petitioner was a minor. The appellants submitted that at the time of the death of petitioner’s mother, the petitioner was a minor, aged 12 years. It was further submitted that there is no provision to reserve any post as vacant, till the writ petitioner attains the age of majority. Per Contra S.K.Mani, learned counsel for the writ petitioner submitted that the scheme of compassionate appointment is to tide over the financial constraint of the bereaved family of a Government servant and it should be extended, even after several years, from the date of death of the Government servant, when there is no improvement in the economic status of the family.

After careful perusal of the facts and law, the Court highlighted that the scheme of employment assistance on compassionate grounds and modified by various Government orders issued from time to time, makes it clear that though indigent circumstance is one of the factors to be considered, while examining the eligibility of an applicant to seek for employment assistance, equally, the other requirement under the Government orders issued from time to time, that the application should be submitted within three years from the date of death, cannot be ignored. Moreover, entry into any service in the State, the minimum age is 18 years, and no minor can be appointed to any service. Therefore, he cannot make any application for appointment to any post in service and no post can be kept vacant for him, till he attains majority, the Court held. [The Inspector General of Prisons v. P.Marimuthu, 2016 SCC OnLine Mad 2501, decided 22.04.2016]