Andhra HC (Pre-Telangana)
A. Ksheera Sagar vs A.P. Dairy Development Co-Op. ... on 2 May, 1997
Equivalent citations: 1997(3)ALT751
JUDGMENT P.S. Mishra, C.J.
1. Tell-tale facts of the case and the principles which shall govern compassionate appointments prompt us to narrate in brief the facts and state the law which the Courts are expected to apply in all cases of compassionate appointments. It is not in dispute that the father of the petitioner-appellant was an employee of the respondent-Co-operative Society and died in harness on 17-12-1995. Petitioner-appellant being a dependent of his father, who died in harness, made representation to the second respondent and requested that he be provided with appointment to a suitable post on compassionate grounds under the scheme then prevailing. The General Manager of the second respondent-Co-operative Society has issued the impugned proceedings dated 15-4-1996 which is extracted in full in the order of the learned single Judge, which is impugned before us and which, inter alia, states that the Board of the Society in its meeting held on 26-10-1995 has resolved to provide monetary package to the dependents of the deceased employees after 1-9-1994 in lieu of appointment and that in the Board's meeting dated 19-2-1996, it is decided that the cases of the dependents of the deceased employees whose applications were pending from 1-9-1994 onwards would be considered for the monetary package. It is clear from the facts stated above that on 17-12-1995 there was a scheme to give to a dependent of an employee, who died in harness, 15 compassionate appointment, which scheme was sought to be altered with retrospective effect and made applicable by the respondent-Society to all cases of employees who died, but the dependents were not given compassionate appointment and their applications were pending from 1-9-1994. Learned single Judge has referred to a judgment rendered by him in A. Radhika Thirunalni v. General Manager, HAL, and commented that the right to be considered for appointment on compassionate grounds is neither a common law right nor a constitutional right and unless a statute or a policy embodied in administrative instructions provide for the same, a dependent of the deceased could not seek such appointment as a matter of right. He has, however, on the said basis commented, "Even before the death of the petitioner's father, the appointments on compassionate grounds were provided only under the administrative instructions issued by the Federation and those appointments were not governed by any statutory regulations. On the happening of the death of the petitioner's father on 17-12-1995 what was vested in the petitioner was only a right to make an application seeking appointment on compassionate ground under those administrative directions. The event of death of the deceased employee did not vest a ripe right in the petitioner to claim appointment on compassionate ground as a matter of right. When the application filed by the petitioner seeking appointment on compassionate grounds came before the 2nd respondent, there was already a changed policy providing for additional pecuniary benefits in lieu of compassionate appointment. The Society is entitled to change the policy and the Court cannot compel it to stick on to the old policy."
2. The principles governing compassionate appointments are stated and reiterated by the various Courts in India, including the Supreme Court and the landmark judgments on the subject are - Yogender Pal Singh v. Union of India, ; Sushma Gosain v. Union of India, ; Smt. Phoolwati v. Union of India, ; Advocate General of India and Ors. v. O.A. Rajeshwar Rao, 1994 (2) LLJ 812 (SC); Life Insurance Corporation of India v. Asha Ramachander Ambekar, (D.N.); State of Haryana v. Naresh Kumar Bali, and Umesh Kumar Nagpal v. State of Haryana and Ors., (D.N.). Learned single Judge has, however, taken notice of the judgment by another learned Judge of this Court in Writ Petition No. 12503 of 1995 and the judgment in Writ Appeal No. 357 of 1996, which, while affirming the judgment of the learned single Judge, has mentioned the principles, which have to be applied in the situation like the above, in these words, "The appellant seeks to take shelter under an executive order of some sort of a monetary packing for the loss of the bread winner to the dependents of the deceased employees which has been issued after this Court has issued the mandamus. No executive order can be made applicable retrospectively. If at all there is any such schemes it shall apply to the cases in future and not to the cases which have already been ordered by the Court. Even the genuineness and the validity of the cash package in lieu of compensatory appointment be legal or not shall have to be examined in an appropriate case."
3. The Division Bench in the said case dealt with the offer of monetary package in lieu of compassionate appointment, after the Court in the writ petition had issued the mandamus and before the appeal was finally disposed of. A Bench of this Court in General Manager, District Central Co-operative Bank Ltd. v. S. Vasudeva Reddy, (D.B.) has made a survey of the law on the subject and based on the authoritative pronouncements of the Supreme Court culled out the principles which govern compassionate, appointments in these words, "(1) Appointment on compassionate ground is an exception to the general rule of equality enshrined in Articles 14 and 16 of Constitution of India. That too, only, in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means.
(2) The employment on compassionate ground can be made only to Classes III and IV posts notwithstanding the higher qualifications of the dependent or the post held by the deceased employee.
(3) The consideration for employment in post on compassionate ground is not a vested right which can be exercised at any time or offered after whatever lapse of time.
(4) Compassionate employment has necessarily to be made in accordance with rules or executive instructions issued by the Government or public authority concerned.
(5) And above all, such appointment should be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumery post should be created to accommodate the applicant. Denial of appointment of dependent on compassionate ground on account of any ban imposed for fresh appointments would be arbitrary."
4. The above principles clearly indicate that compassion has entered the rule under Article 14 of the Constitution of India to carve out an area exceptional for the dependents of an employee who has been the bread winner until he died in harness. Such executive instructions under which the promise to give compassionate appointment exists and in response to which the petitioner-appellant applied cannot be withdrawn by a later executive fiat which has tried to undo the promise which the respondent-management was required to fulfil. While it is true, as stated in the impugned judgment, that employer/ competent authority can change the policy, redesign the same or even can totally give up, it is equally true that the Courts in India has held that any executive action has to be applied only prospectively and cannot be retrospective. In the case of the petitioner/appellant although decision admittedly is taken on 26-10-1995 and 19-2-1996, the promise under which the petitioner-appellant claimed entitlement for compassionate appointment is sought to be denied in respect of applications which were pending consideration from 1-9-1994 onwards. We clearly see that the petitioner-appellant's case and the cases of others, who became eligible for compassionate appointment before 26-10-1995, are such that withdrawal of the instruction to give compassionate appointment to them is highly discriminatory and arbitrary. The retrospective operation as envisaged under the above order of the policy to extend monetary benefits in lieu of compassionate appointment is violative of Article 14 of the Constitution of India. In view of the above, the impugned judgment is set aside. The Writ Appeal is allowed to the extent that the respondents are directed to consider the case of the petitioner under the scheme prevailing on the date he applied for compassionate appointment and not under the scheme as envisaged under the resolution of the Board of the respondent-employer dated 26-10-1995 and/or 19-2-1996.