Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3597 OF 2009
(Arising out of SLP(C) No. 18396 of 2007)
M/s Eastern Coalfields Ltd. ……….Appellant
Versus
Anil Badyakar & Ors. …….Respondents
O R D E R
H.L. Dattu,J.
Leave granted.
2) Challenge in this appeal is to the judgment of a Division Bench of
High Court of Calcutta rejecting the appeals filed by the appellant and
thereby confirming the order passed by learned Single Judge in Writ
Petition No. 16515 of 1994 dated 14.8.2003.
3) The issue that would arise for our consideration is, whether or not in
the facts and circumstances of the case, the appointment made in
respect of respondent, who is the son-in-law of the deceased after 12
years, would negates the very object of compassionate appointment.
4) The facts in brief are :-
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One Kalo Dome, the father-in-law of the petitioner, while he was
in service of Samla Colliery, ECL, under coal India Limited, died on
st
31 December, 1981. After the death of said Kalo Dome, his wife
submitted an application for employment on compassionate grounds.
Subsequently, on March 7, 1983, the elder daughter of Kalo Dome
also made an application for compassionate appointment. Ultimately,
the dispute among the heirs was settled and all the heirs of Kalo Dome
submitted “No Objection” in favour of the respondent for
employment on compassionate grounds. It was not out of place to
mention that the respondent is the husband of the second daughter of
Kalo Dome. After the submission of such “No Objection”, the
personal manager of the Company started processing the file for
employment on compassionate grounds and the respondent complied
with such requirements. The matter was referred to the
Superintendent of Police, Burdwan, for verification, and after
compliance of all the formalities a letter of appointment on
th
compassionate grounds was issued in favour of the petitioner on 10
May, 1993, by Personal Manager of the Company. Pursuant to such
appointment letter, the respondent joined service, but after four
rd
months, the Director (P) vide his order dated 23 September, 1993
cancelled the provisional letter of appointment issued, on the ground
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that such appointment was a belated one having been given after a
lapse of 12 years from the date of death of Kalo Dome.
5) Being dissatisfied with the order, the respondent had filed writ
petition before the High Court. The learned Single Judge has allowed
the writ petition and has directed the appellants to allow the
respondent to join service pursuant to provisional order of
appointment. The appeal filed by the appellants is rejected by the
Division Bench.
6) So far as the question of nature and object of appointment on
compassionate ground, it is relevant to take note of what is stated by
this court in the case of Umesh Kumar Nagpal vs. State of Haryana,
(1994) 4 SCC 138 : -
“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, the compassionate employment
cannot be claimed and offered whatever the lapse of time
and after the crisis is over.” (Para 6)
7) In the case of Jagdish Prasad vs. State of Bihar, (1996) 1 SCC 301, it
was observed that :-
“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
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family by sudden demise of the earning member of the
family.” (Para 3)
8) In MMTC Ltd. vs. Pramoda Dei, (1997) 11 SCC 390, it is observed
by the court :-
“As pointed out by this Court, the object of
compassionate appointment is to enable the penurious
family of the deceased employee to tide over the sudden
financial crisis and not to provide employment and that
mere death of an employee does not entitle his family to
compassionate appointment.” (Para 4)
9) In the case of S. Mohan vs. Government of T.N., (1998) 9 SCC 485,
the court stated that :-
“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, the compassionate employment
cannot be claimed and offered whatever the lapse of time
and after the crisis is over.” (Para 4)
10) This court has observed in Director of Education (Secondary) vs.
Pushpendra Kumar, (1998) 5 SCC 192 :-
“The object underlying a provision for grant of
compassionate employment is to enable the family of the
deceased employee to tide over the sudden crisis
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.
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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. In Umesh Kumar Nagpal v. State of Haryana
this Court has taken note of the object underlying the
rules providing for appointment on compassionate
grounds and has held that 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.” (Para 8)
11) In the case of Sanjay Kumar vs. State of Bihar, (2000) 7 SCC 192, the
court has stated that :-
“This Court has held in a number of cases that
compassionate appointment is intended to enable the
family of the deceased employee to tide over sudden
crisis resulting due to death of the breadearner who had
left the family in penury and without any means of
livelihood.” (Para 3)
12) In the case of Punjab National Bank vs. Ashwini Kumar Taneja,
(2004) 7 SCC 265, it was observed by the court that :-
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“It is to be seen that the appointment on compassionate
ground is not a source of recruitment but merely an
exception to the requirement regarding appointments
being made on open invitation of application on merits.
Basic intention is that on the death of the employee
concerned his family is not deprived of the means of
livelihood. The object is to enable the family to get over
sudden financial crisis.” (Para 4)
13) In so far as delay in approaching the authorities for such appointment
is considered by this court in the case of Union of India vs. Bhagwan
Singh, (1995) 6 SCC 436, it was held as follows :
“It is evident, that the facts in this case point out, that the
plea for compassionate employment is not to enable the
family to tide over the sudden crisis or distress which
resulted as early as September 1972. At the time Ram
Singh died on 12-9-1972 there were two major sons and
the mother of the children who were apparently capable
of meeting the needs in the family and so they did not
apply for any job on compassionate grounds. For nearly
20 years, the family has pulled on, apparently without
any difficulty. In this background, we are of the view that
the Central Administrative Tribunal acted illegally and
wholly without jurisdiction in directing the Authorities to
consider the case of the respondent for appointment on
compassionate grounds and to provide him with an
appointment, if he is found suitable.” (Para 8)
14) In the case of Haryana State Electricity Board vs. Naresh Tanwar,
(1996) 8 SCC 23, it was stated that :-
“It has been indicated in the decision of Umesh Kumar
Nagpal that compassionate appointment cannot be
granted after a long lapse of reasonable period and the
very purpose of compassionate appointment, as an
exception to the general rule of open recruitment, is
intended to meet the immediate financial problem being
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suffered by the members of the family of the deceased
employee. In the other decision of this Court in Jagdish
Prasad case, it has been also indicated that the very object
of appointment of dependent of deceased employee who
died in harness is to relieve immediate hardship and
distress caused to the family by sudden demise of the
earning member of the family and such consideration
cannot be kept binding for years.” (Para 9)
15) In the case of State of U.P. vs. Paras Nath, (1998) 2 SCC 412, the
court has held that :-
“The purpose of providing employment to a dependant of
a government servant dying in harness in preference to
anybody else, is to mitigate the hardship caused to the
family of the employee on account of his unexpected
death while still in service. To alleviate the distress of the
family, such appointments are permissible on
compassionate grounds provided there are Rules
providing for such appointment. The purpose is to
provide immediate financial assistance to the family of a
deceased government servant. None of these
considerations can operate when the application is made
after a long period of time such as seventeen years in the
present case.” (Para 5)
16) In the case of aryana SEB vs. Krishna Devi, (2002) 10 SCC 246,
H
the court has observed that :-
“As the application for employment of her son on
compassionate ground was made by the respondent after
eight years of death of her husband, we are of the opinion
that it was not to meet the immediate financial need of
the family. The High Court did not consider the position
of law and allowed the writ petition relying on an earlier
decision of the High Court.” (Para 7)
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17) In the case of National Hydroelectric Power Corpn. vs. Nanak Chand,
(2004) 12 SCC 487, the court has stated that :-
“It is to be seen that the appointment on compassionate
ground is not a source of recruitment but merely an
exception to the requirement regarding appointments
being made on open invitation of application on merits.
Basic intention is that on the death of the employee
concerned his family is not deprived of the means of
livelihood. The object is to enable the family to get over
sudden financial crises.” (Para 5)
18) In the case of State of J&K vs. Sajad Ahmed Mir, (2006) 5 SCC 766,
the court has held that :-
“Normally, an employment in the Government or other
public sectors should be open to all eligible candidates
who can come forward to apply and compete with each
other. It is in consonance with Article 14 of the
Constitution. On the basis of competitive merits, an
appointment should be made to public office. This
general rule should not be departed from except where
compelling circumstances demand, such as, death of the
sole breadwinner and likelihood of the family suffering
because of the setback. Once it is proved that in spite of
the death of the breadwinner, the family survived and
substantial period is over, there is no necessity to say
“goodbye” to the normal rule of appointment and to show
favour to one at the cost of the interests of several others
ignoring the mandate of Article 14 of the Constitution.”
(Para 11)
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19) The principles indicated above would give a clear indication that the
compassionate appointment is not a vested right which can be
exercised at any time in future. The compassionate employment
cannot be claimed and offered after a lapse of time and after the crisis
is over. In the instant case the employee died in harness in the year
1981 and after a long squabble by the dependents of the deceased,
they arrived at a settlement that the son-in-law of the second daughter
who is unemployed may request for appointment on compassionate
grounds. The request so made was accepted by the Personal Manager
of the Company subject to the approval of the Director of the
Company. The Director (P) , who is the competent authority for post
facto approval, keeping in view the object and purpose of providing
compassionate appointment has cancelled the provisional appointment
on the ground that nearly after 12 years from the date of death of the
employee such an appointment could not have been offered to the so
called dependent of the deceased employee. In our considered view,
the decision of the employer was in consonance with Umesh Kumar
Nagpal’s case and the same should not have been interfered with by
the High Court.
20) Accordingly, we allow this appeal and set aside the orders passed by
the High Court. There will be no order as to costs.
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…………………………………J.
[TARUN CHATTERJEE]
…………………………………J.
[ H.L. DATTU ]
New Delhi,
May 15, 2009.
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