Delhi High Court
Rajpal Kumar & Anr. vs Food Corporation Of India on 16 August, 2010
Author: Dipak Misra
Bench: Chief Justice, Manmohan
* HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 09th August, 2010
% Judgment Pronounced on: 16th August, 2010
+ LPA 181/2010
RAJPAL KUMAR & ANR. ..... Appellants
Through: Dr. Manmohan Sharma, Adv.
versus
FOOD CORPORATION OF INDIA ..... Respondent
Through: Ms. Neelam Singh, Adv.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether reporters of the local papers be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
The present intra court appeal preferred under Clause 10 of the
Letters Patent is directed against the order dated 20th January, 2010 passed
by the learned Single Judge in WP(C) No.7284/2008.
2. The writ petitioners (hereinafter referred to as the „appellants‟) are
the sons of ex-employees of the Food Corporation of India (for short „ the
FCI‟). Their respective fathers sought voluntary retirement inspired by
the circular of the FCI dated 3rd July, 1996. It is not in dispute that the
fathers had sought voluntary retirement on medical grounds as a promise
was held out to them that consequent upon their such retirement, their
LPA 181/2010 Page 1 of 21
dependents would be given compassionate appointments in their place.
In their letters, they had requested that their sons should be provided jobs
in their place. They were sent for medical check-up and eventually, their
request for retirement on medical grounds was accepted and they were
relieved from their posts on 3rd July, 2003, 12th March, 2003 and 5th June,
2003 respectively but the request to provide employment to their sons was
not accepted. Because of such denial, the appellants invoked the
extraordinary jurisdiction of this Court for issuing a command to the
respondent to give them the benefit of compassionate appointment.
3. The respondent-FCI resisted the stand put forth in the writ petition
and contended, inter alia, that though the fathers of the appellants had
sought retirement on medical grounds, yet they were not entitled to
compassionate employment as certain conditions had to be satisfied and
there were no vacancies. It was also highlighted that after the fathers of
the appellants sent their letters seeking voluntary retirement and before
the same were accepted, another circular bearing No. 5/2003 dated 4th
March, 2003 had come into force which had laid down that only 5% of
the vacancies at the entry level would be filled up by direct recruitment on
compassionate ground. Regard being had to the consequent circular and
keeping in view the 5% quota which was set apart for compassionate
appointment, the cases of the appellants could not be considered as the
vacancies were filled up. Before the learned Single Judge, it was not
disputed that the basic circular was dated 3rd July, 1996 which stipulated
LPA 181/2010 Page 2 of 21
certain conditions and, most importantly, the availability of vacancies. It
had also laid a postulate that employment on compassionate ground is not
a matter of right but purely at the discretion of the competent authority.
The subsequent circular dated 4th March, 2003 fixed a ceiling of 5% at the
entry level and there was no vacancy in the said category against which
the appellants could be appointed.
4. The learned Single Judge posed a question to the effect whether the
ceiling of 5% for compassionate appointment as laid down by the circular
dated 4th March, 2003 could also apply to those applicants who had sent
their papers for voluntary retirement prior to coming into force of the said
circular. While answering the said issue, the learned Single Judge
referred to the decision in Food Corporation of India and another v.
Food Corporation of India Workers Union (LPA No.1672/2005 decided
on 30th January, 2006) wherein it has been held that the application for
compassionate appointment made whether before or after 4 th March, 2003
would be subject to the ceiling limit of 5%.
5. It is worth noting that before the learned Single Judge, reliance was
placed on the decision in Food Corporation of India and another v. Ram
Kesh Yadav and another, 2007 (3) AWC 2857 (SC). The same was
distinguished by the learned Single Judge on the ground that the fathers of
the petitioners had not put any condition while seeking voluntary
retirement and only made a request that on their retirement, their sons
may be provided jobs. That apart, the learned Single Judge also opined
LPA 181/2010 Page 3 of 21
that in the case of Ram Kesh Yadav and another (supra), the FCI had
advanced a technical plea that when the petitioner therein had applied for
voluntary retirement, he had crossed the age of 55 years and hence, not
covered by the circular but in the case at hand, there is no vacancy
available within the 5% quota reserved for compassionate appointment at
the entry level.
6. We have heard Dr. Manmohan Sharma, learned counsel for the
appellants, and Ms. Neelam Singh, learned counsel for the respondent.
7. Dr. Sharma, learned counsel for the appellant, has raised the
following contentions:-
(a) The learned Single Judge has flawed by distinguishing the decision
rendered in Ram Kesh Yadav and another (supra) though the ratio
laid down therein is clearly applicable to the case at hand.
(b) When the fathers of the appellants had applied for voluntary
retirement, the circular that was in vogue was to be implemented
inasmuch as they had a right at that time and, therefore, they cannot
be governed by the subsequent scheme. The circular which was in
force at the time of submission of the applications has to be made
applicable and not the circular at the time of consideration of the
applications and when the original circular is made applicable to
their cases for compassionate appointment, the question of
attracting the concept of ceiling which is a facet of the subsequent
circular cannot be taken recourse to. The learned counsel, to
LPA 181/2010 Page 4 of 21
bolster the aforesaid contention, has placed reliance on Maharani
Devi and another v. Union of India and others, (2009) 2
SCC(L&S) 323.
8. Ms. Neelam Singh, learned counsel for the respondent, while
resisting the aforesaid submissions, has canvassed as follows:-
(i) The learned Single Judge has correctly distinguished the
decision in Ram Kesh Yadav and another (supra) as the factual
matrix is totally different and further the said decision has
already been distinguished by the Apex Court in Food
Corporation of India v.Nizamuddin and another, (2010) 4 SCC
546.
(ii) The decision rendered in Maharani Devi and other (supra) is
not a precedent for the proposition that the circular, policy or
scheme which is in vogue at the time of submission of the
application would apply as the Apex Court had remanded the
matter to the High Court for consideration on the said issue.
(iii) The order passed in the case of Food Corporation of India
Workers Union (supra) by the Division Bench in LPA
No.1672/2005 is a binding precedent and, hence, the order
passed by the learned Single Judge is absolutely defensible.
9. First, we shall deal with the facet whether the decision rendered in
Ram Kesh Yadav and another (supra) has been correctly distinguished by
LPA 181/2010 Page 5 of 21
the learned Single Judge. In Ram Kesh Yadav and another (supra), their
Lordships have held as follows:-
"9. There is no doubt that an employer cannot be
directed to act contrary to the terms of its policy
governing compassionate appointments. Nor can
compassionate appointment be directed de hors the
policy. In Life Insurance Corporation of India v. Asha
Ramchandra Ambedkar, (1994) 2 SCC 718 this Court
stressed the need to examine the terms of the
rules/scheme governing compassionate appointments
and ensure that the claim satisfied the requirements
before directing compassionate appointment. In this
case, the scheme clearly bars compassionate
appointment to the dependant of an employee who seeks
voluntary retirement on medical grounds, after attaining
the age of 55 years. There is a logical and valid object in
providing that the benefit of compassionate appointment
for a dependant of an employee voluntarily retiring on
medical grounds, will be available only where the
employee seeks such retirement before completing 55
years. But for such a condition, there will be a tendency
on the part of employees nearing the age of
superannuation to take advantage of the scheme and
seek voluntary retirement at the fag end of their service
on medical grounds and thereby virtually creating
employment by "succession". It is not permissible for
the court to relax the said condition relating to age of the
employee. Whenever a cut-off date or age is prescribed,
it is bound to cause hardship in marginal cases, but that
is no ground to hold the provision as directory and not
mandatory.
10. As rightly contended by FCI, the issue of voluntary
retirement of an employee on medical grounds and the
issue of compassionate appointment to a dependent of
such retired employee are independent and distinct
issues. An application for voluntary retirement has to be
made first. Only when it is accepted and the employee
is retired, an application for appointment of a dependant
on compassionate grounds can be made. Compassionate
appointment of a dependant is not an automatic
consequence of acceptance of voluntary retirement.
Firstly, all the conditions prescribed in the Scheme dated
3-7-1996 should be fulfilled. Even if all conditions as
LPA 181/2010 Page 6 of 21
per guidelines are fulfilled, there is no "right" to
appointment. It is still a matter of discretion of the
competent authority, who may reject the request if there
is no vacancy or if the circumstances and conditions of
the family of the medically retired worker do not
warrant grant of compassionate appointment to a
dependant. Therefore, the observation of the High
Court in Nizamuddin1 that allowing the request of the
employee for voluntary retirement on medical grounds
and rejecting the application of the dependant for
compassionate appointment on the ground of non-
fulfilment of conditions of scheme would amount to
taking inconsistent stands, is clearly erroneous."
10. After so stating, their Lordships proceeded to hold as follows:-
"11. But on facts, this case is different. The second
respondent's application dated 26-4-1999 was a
composite application for conditional voluntary
retirement on medical grounds, subject to appointment
of his son in his place. The application specifically
stated that he desired to go on retirement on medical
grounds if his son was provided with employment in his
place. The second Respondent had thus clearly indicated
that if employment on compassionate ground was not
provided to his son, he was not interested in pursuing his
request for retirement on medical grounds. FCI ought to
have informed the employee that he could not make
such a conditional offer of retirement contrary to the
scheme. But for reasons best known to itself, FCI did
not choose to reject the conditional offer, but
unconditionally accepted the conditional offer. There
lies the catch.
12. When an offer is conditional, the offeree has the
choice of either accepting the conditional offer, or
rejecting the conditional offer, or making a counter-
offer. But what the offeree cannot do, when an offer is
conditional, is to accept a part of the offer which results
in performance by the offeror and then reject the
condition subject to which the offer is made."
LPA 181/2010 Page 7 of 21
11. In the case at hand, the fathers of the appellants had not put any
condition while seeking voluntary retirement. We think it apt to
reproduce one such application:-
"Sub: on the basis of Medical Unfit and replace of
Service with relation.
..... I am Birbal Mehto S/o Late Sh. Kratik Mehto
employed of the post at F.C.I. Maya Puri Depot in Gang
No.14 on handling workers in these I am physically and
medically unfit due to this region I am not capable to do
work at your firm. I requesting you to provide the
service Raj Pal who is my son because I am not
physically fit due to this medical region provide job him
because they promise me to provide help on my family
support whole life and I have not any other person
excepted Raj Pal. With provide the service and help
whole life...."
12. On a perusal of the said letter, it is clear as noonday that the offer
was not a conditional offer which was so in the case of Ram Kesh Yadav
and another. At this juncture, we may refer with profit to the decision in
Nizamuddin and another (supra) wherein a two-Judge Bench of the Apex
Court considered a similar application and referred to the decision in Ram
Kesh Yadav and another (supra) and held that keeping in view the
peculiar wording of the letter, this Court had held that the aforesaid
general principle would not apply. Their Lordships referred to paragraph
14 of the decision in Ram Kesh Yadav (supra) wherefrom it was evident
that the FCI had accepted the offer unconditionally. After referring to the
said paragraph, their Lordships proceeded to express thus:
"12. In this case the offer of voluntary
appointment in the application was neither conditional
nor interlinked. The words used are "I therefore request
LPA 181/2010 Page 8 of 21
that the management may kindly retire me on medical
grounds and at the same time give appointment to my
son." It merely contains two requests (that is,
permission to retire voluntarily on medical grounds and
request for appointment for his son), without any
interlinking. Nor was the voluntary retirement
conditional upon giving employment to his son.
Therefore, Ram kesh Yadav1 will not apply. Each
request had to be considered on its own merits with
reference to the rules/scheme applicable. When so done
it is clear that the first respondent will not be entitled to
compassionate appointment."
13. In view of the aforesaid pronouncement of law, in our considered
opinion, the learned Single Judge has correctly distinguished the decision
in Ram Kesh Yadav and Another (supra).
14. The second aspect that requires to be dwelled upon is whether the
circular that is in vogue at the time of submission of the application or the
scheme or circular which comes into operation at the time of dealing with
the application would be applicable. The learned Single Judge has
referred to the circular dated 3rd July, 1996 which deals with the
recruitment procedure for appointment of next kin of departmental
workers who seek retirement on medical grounds at their own request in
relaxation of the procedure of getting sponsored from employment
exchange. In the said circular, there was a condition which stipulated that
notwithstanding anything contained in the circular, the compassionate
ground appointment is not a matter of right but purely at the discretion of
the competent authority taking into account the circumstances and
conditions of the family of the medically retired workers and also subject
to the availability of vacancies. The submission of the learned counsel for
LPA 181/2010 Page 9 of 21
the appellants is that when the applications were submitted, there were
number of vacancies but thereafter, by the circular dated 4th March, 2003,
it has been restricted to 5% of the vacancies. In the case of Food
Corporation of India Workers Union (supra), a Division bench of this
Court has held thus:-
"9. In our opinion, there is an obvious reason for
putting the ceiling of 5% because in this country,
experience has shown that there was a great
abuse of the rule regarding compassionate
appointment. A compassionate appointment is really a
back door appointments. Prima facie it violates Article
16 of the Constitution. However, it is permitted in
exceptional cases, but such exceptional cases must be
strictly construed. What has been actually happening,
as experience shows from a large number of cases in
various High Courts that there was gross abuse of
the rule for compassionate appointment. Fake claims
were being made under such rules including claim of
being adopted etc., for getting back door appointments.
10. Moreover, if the submission of learned counsel
for the respondent is accepted, it will mean that even
100% vacancies may have to be filled by
compassionate appointment if that the applications were
made before 4.3.2003.
11. It must be understood that ordinarily an
appointment is made on merit so that a suitable person
can be appointed. Under the compassionate
appointment scheme even persons who are not
meritorious are appointed. Obviously, a limit should be
set to the number of such non-meritorious candidates
otherwise the department may not be able to function.
12. In view of the above, the order passed in CM
10560/2004 in WP(C) No. 3362/2004 is set aside and it
is made clear that the applications for compassionate
appointment made whether before or after 4.3.2003 will
be subject to the ceiling limit of 5%."
LPA 181/2010 Page 10 of 21
15. The learned counsel for the appellants submitted that the decision
rendered in Food Corporation of India Workers Union (supra) does not
lay down the law correctly in view of the decision rendered by the Apex
Court in Maharani Devi and another (supra). In Maharani Devi and
another, a two-Judge Bench of the Apex Court was dealing with the case
of a widow who had claimed compassionate appointment in the railways.
The claim of the appellant therein was rejected by the respondents on the
ground that she had received family pension on account of the death of
her husband. Being grieved, she had approached the tribunal and the
tribunal held that the office circular on which the appellant had relied and
which was in force on the date of death of her husband was not available
at the time of submission of the application on which date the amended
circular was in force and, accordingly, held that the amended circular
would be applicable to the facts of the case. Being of this view, the
tribunal negatived the prayer of the widow. Being dissatisfied with the
said order, the appellant preferred a writ petition which was dismissed in
limine. Before the Apex Court, reliance was placed by the appellant on
Railway Board v. C.R. Rangadhamaiah, (1997) 6SCC 623 and a
contention was canvassed that the amended circular could not be
retrospective inasmuch as the right for being considered for
compassionate appointment had accrued on the date of death of the
employee and that was the only relevant date. Their Lordships took note
LPA 181/2010 Page 11 of 21
of the fact that the High Court had not expressed any opinion on the said
score. After stating, their Lordships directed thus:-
"22. However, in our view the question posed by
us as to what would be the relevant date for
consideration, whether it would be the date of death of
the employee or whether it would be the date of making
the representation? That has not been considered by the
High Court. We, therefore, remand this matter to the
High Court with a request to the High Court to decide
the same. We request the High Court to dispose of the
matter within six months of the writ reaching the High
Court as the matter pertains to the rights of a poor
widow."
16. On a perusal of the aforesaid decision, we are of the view that the
same does not decide the issue as there is a remit to the High Court on the
said score. In this context, we may refer with profit to the decision in
Ambica Quarry Works v. State of Gujarat, AIR 1987 SC 1073 wherein it
has been held thus:-
"18. The ratio of any decision must be understood in the
background of the facts of that case. It has been said
long time ago that a case is only an authority for what it
actually decides, and not what logically follows from
it."
17. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2
SCC 579, the Apex Court has observed thus:-
"59...... It is also well settled that a little difference in
facts or additional facts may make a lot of difference in
the precedential value of a decision."
18. In Bharat Petroleum Corporation Ltd. V. N.R. Vairamani,
2004(8) SCC 579, the Apex Court has ruled thus:-
LPA 181/2010 Page 12 of 21
"9. Courts should not place reliance on decisions
without discussing as to how the factual situation fits in
with the fact situation of the decision on which reliance
is placed. Observations of Courts are neither to be read
as Euclid's theorems nor as provisions of the statute and
that too taken out of their context. These observations
must be read in the context in which they appear to have
been stated. Judgments of Courts are not to be construed
as statutes. To interpret words, phrases and provisions of
a statute, it may become necessary for judges to embark
into lengthy discussions but the discussion is meant to
explain and not to define. Judges interpret statutes, they
do not interpret judgments. They interpret words of
statutes; their words are not to be interpreted as statutes.
In London Graving Dock Co. Ltd. vs. Horton 1951 AC
737, Lord MacDermott observed (All ER p. 14 C-D):
"The matter cannot, of course, be settled
merely by treating the ipsissima verba of
Willes, J as though they were part of an Act
of Parliament and applying the rules of
interpretation appropriate thereto. This is
not to detract from the great weight to be
given to the language actually used by that
most distinguished judge,..."
10. In Home Office V. Dorset Yacht Co. Ltd, 1970 AC
1004, Lord Reid said,
„Lord Atkin's speech.....is not to be treated
as if it were a statutory definition. It will
require qualification in new circumstances.
(All ER p. 297g)‟
Megarry, J in Shepherd Homes Ltd. v. Sandham
(NO.2) (1971) 1 WLR 1062 observed (All ER p.
1274d):
„One must not, of course, construe even a
reserved judgment of even Russell, L.J. as if
it were an Act of Parliament;‟
And, in British Railways Board v. Herrington, 1972
AC 877, Lord Morris said (All ER p. 761c)
„There is always peril in treating the words
of a speech or a judgment as though they are
LPA 181/2010 Page 13 of 21
words in a legislative enactment, and it is to
be remembered that judicial utterances made
in the setting of the facts of a particular
case.‟
11. Circumstantial flexibility, one additional or different
fact may make a world of difference between
conclusions in two cases. Disposal of cases by blindly
placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter
of applying precedents have become locus classicus:
„Each case depends on its own facts and a
close similarity between one case and
another is not enough because even a single
significant detail may alter the entire aspect.
In deciding such cases, one should avoid the
temptation to decide cases (as said by
Cordozo) by matching the colour of one
case against the colour of another. To decide
therefore, on which side of the line a case
falls, the broad resemblance to another case
is not at all decisive.‟
* * * * * * *
Precedent should be followed only so
far as it marks the path of justice, but you
must cut the dead wood and trim off the side
branches else you will find yourself lost in
thickets and branches. My plea is to keep
the path to justice clear of obstructions
which could impede it.‟"
19. In Oriental Insurance Company Ltd. V. Smt. Raj Kumari and
Others, AIR 2008 SC 403, the following principle has been laid down:-
".... A decision is an authority for what it actually
decides. What is of the essence in a decision is its ration
and not every observation found therein nor what
logically flows from the various observations made in
the judgment. The enunciation of the reason or
principle on which a question before a Court has been
decided is alone binding as a precedent. Observations
LPA 181/2010 Page 14 of 21
of courts are neither to be read as Euclid‟s Theorems nor
as provisions of the statute and that too taken out of their
context."
20. In Sarva Shramik Sanghatana (KV), Mumbai v. State of
Maharashtra and others, (2008) 1 SCC 494, the Apex Court referred to
certain observations made by Lord Halsbury which are as follows:
"14. On the subject of precedents Lord Halsbury, L.C.,
said in Quinn v. Leathem, 1901 AC 495: (All ER p.7G-I)
„Before discussing Allen v. Flood, 1898
AC 1, and what was decided therein, there are
two observations of a general character which I
wish to make; and one is to repeat what I have
very often said before - that every judgment
must be read as applicable to the particular facts
proved or assumed to be proved, since the
generality of the expressions which may be
found there are not intended to be expositions of
the whole law, but are governed and qualified
by the particular facts of the case in which such
expressions are to be found. The other is that a
case is only an authority for what it actually
decides. I entirely deny that it can be quoted for
a proposition that may seem to follow logically
from it. Such a mode of reasoning assumed that
the law is necessarily a logical code, whereas
every lawyer must acknowledge that the law is
not always logical at all."
21. Yet in another decision in Rajbir Singh Dalal (Dr.) v. Chaudhari
Devi Lal University, Sirsa and Another, (2008) 9 SCC 284, their
Lordships have expressed thus:-
"34. The decision of a Court is a precedent if it lays
down some principle of law supported by reasons. Mere
casual observations or directions without laying down
any principle of law and without giving reasons does not
amount to a precedent.
LPA 181/2010 Page 15 of 21
35. In State of Punjab Vs. Baldev Singh, (1999) 6 SCC
172 , a Constitution Bench of this Court observed (vide
SCC para 43) that a decision is an authority for what it
decides (i.e. the principle of law it lays down) and not
that everything said therein constitutes a precedent.
36. In Karnataka SRTC s. Mahadeva Shetty, (2003) 7
SCC 197, (Vide SCC para 23) this Court observed that
the only thing binding as an authority upon a subsequent
Judge is the principle upon which the case was decided.
37. As observed by this Court in State of Orissa v.
Sudhansu Sekhar Misra, AIR 1968 SC 467, (vide AIR
para 13) : (AIR pp. 651-52, para 13):
„13. .... A decision is only an
authority for what it actually decides. What
is of the essence in a decision is its ratio and
not every observation found therein nor
what logically follows from the various
observations made in it....."
22. In view of the aforesaid enunciation of law, there cannot be scintilla
of doubt that the decision in Maharani Devi and another (supra) is not a
precedent on the proposition canvassed by the learned counsel for the
appellants. We are disposed to think so as their Lordships have not
answered the issue, though raised, but have remanded the matter to the
High Court to decide.
23. Presently coming to the case at hand whether the date of
submission of the application or the date of consideration of the
application would be the relevant date, we may state that compassionate
appointment is fundamentally an exception to the normal rule for
appointment to public service. The appointment to public service has to
be through open invitation and on merits. In Haryana State Electricity
LPA 181/2010 Page 16 of 21
Board and another v. Hakim Singh, (1997) 8 SCC 85, it has been held
that an appointment on compassionate basis is to fulfil the object of
providing ameliorating relief to a family whose breadwinner has died in
harness.
24. In Director of Education (Secondary) and Another v. Pushpendra
Kumar and Others, (1998) 5 SCC 192, it has been opined that a scheme
for compassionate appointment is an exception and 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. It has been further observed therein that 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 of the dependent of a deceased employee being made on
compassionate grounds.
25. In Commissioner of Public Instructions and Others v. K.R.
Vishwanath, (2005) 7 SCC 206, after taking note of the principles laid
down earlier, their Lordships have held thus:-
"9. As was observed in State of Haryana v. Rani Devi
((1996) 5 SCC 308: 1996 SCC (L&S) 1162: AIR 1996
SC 2445), it need not be pointed out that the claim of
person concerned for appointment on compassionate
LPA 181/2010 Page 17 of 21
ground is based on the premises that he was dependant
on the deceased employee. Strictly this claim cannot be
upheld on the touchstone of Articles 14 or 16 of the
Constitution. However, such claim is considered as
reasonable and permissible on the basis of sudden crisis
occurring in the family of such employee who has
served the State and dies while in service. That is why it
is necessary for the authorities to frame rules,
regulations or to issue such administrative orders which
can stand the test of Articles 14 and 16. Appointment
on compassionate ground cannot be claimed as a matter
of right. Die-in-harness scheme cannot be made
applicable to all types of posts irrespective of the nature
of service rendered by the deceased employees. In Rani
Devi case ((1996) 5 SCC 308: 1996 SCC (L&S) 1162:
AIR 1996 SC 2445) it was held that scheme regarding
appointment on compassionate ground it extended to all
types of casual or ad hoc employees including those
who worked as apprentices cannot be justified on
constitutional grounds. In LIC of India v. Asha
Ramchhandra Ambekar ((1994) 2 SCC 718: 1994 SCC
(L&S) 737: (1994) 27 ATC 174) it was pointed out that
High Courts and Administrative Tribunals cannot confer
benediction impelled by sympathetic considerations to
make appointments on compassionate grounds when the
regulations framed in respect thereof do not cover and
contemplates such appointments. It was noted in Umesh
Kumar Nagpal v. State of Haryana (1994) 4 SCC 138:
1994 SCC (L&S) 930 : (1994) 27 ATC 537) that as a
rule in public service appointment should be made
strictly on the basis of open invitation of applications
and merit. The appointment on compassionate ground is
not another source of recruitment but merely an
exception to the aforesaid requirement taking into
consideration the fact of the death of employee while in
service leaving his family without any means of
livelihood. In such cases the object is to enable the
family to get over sudden financial crisis. But such
appointments on compassionate ground have to be made
in accordance with the rules, regulations or
administrative instructions taking into consideration the
financial conditions of th family of the deceased."
26. In State of J&K and Others v. Sajad Ahmed Mir, (2006) 5 SCC
766, their Lordships have opined thus:-
LPA 181/2010 Page 18 of 21
"11. We may also observe that when the Division Bench
of the High Court was considering the case of the
applicant holding that he had sought 'compassion', the
Bench ought to have considered the larger issue as well
and it is that such an appointment is an exception to the
general rule. Normally, an employment in 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 except where
compelling circumstances demand, such as, death of
sole bread earner and likelihood of the family suffering
because of the set back. Once it is proved that in spite of
death of bread earner, the family survived and
substantial period is over, there is no necessity to say
'goodbye' to normal rule of appointment and to show
favour to one at the cost of interests of several others
ignoring the mandate of Article 14 of the Constitution.
12. In State of Haryana and Ors. v. Rani Devi and Anr.
[(1996) 5 SCC 308 : AIR 1996 SC 2445], it was held
that the claim of applicant for appointment on
compassionate ground is based on the premise that he
was dependant on the deceased-employee. Strictly this
claim cannot be upheld on the touchstone of Article 14
or 16 of the Constitution. However, such claim is
considered reasonable as also allowable on the basis of
sudden crisis occurring in the family of the employee
who had served the State and died while in service. That
is why it is necessary for the authorities to frame rules,
regulations or to issue such administrative instructions
which can stand the test of Articles 14 and 16.
Appointment on compassionate ground cannot be
claimed as a matter of right."
(Emphasis supplied)
27. In I.G. (Karnik) and Others v. Prahalad Mani Tripathi, (2007) 6
SCC 162, the constitutional scheme of equality as envisaged under
Articles 14 and 16 of the Constitution was adverted to and after adverting
to the same, their Lordships have held thus:-
LPA 181/2010 Page 19 of 21
"7. Public employment is considered to be a wealth. It
in terms of the constitutional scheme cannot be given on
descent. When such an exception has been carved out
by this Court, the same must be strictly complied with.
Appointment on compassionate ground is given only for
meeting the immediate hardship which is faced by the
family by reason of the death of the bread earner. When
an appointment is made on compassionate ground, it
should be kept confined only to the purpose it seeks to
achieve, the idea being not to provide for endless
compassion."
28. In National Institute of Technology v. Niraj Kumar Singh, 2007
(1) SCC (L&S)668, it has been ruled by the Apex Court that all public
appointments should be in consonance with Article 16 of the Constitution
of India.
29. In Punjab National Bank and another v. R. Latha [W.A. (MD)
No.411/2006 and W.A.M.P. (MD) No.1/2006 dated 8th January, 2007),
the Madras High Court has held that the right to compassionate
appointment is neither a fundamental right nor a legal right. It is only an
exception to the general rule and that being so, the same has to be decided
as per the scheme which is prevalent at the time of consideration and not
on the basis of the earlier scheme.
30. In view of the aforesaid pronouncement of law, it can safely be
concluded that compassionate appointment cannot be treated as a vested
right. It cannot be construed as a hereditary right and definitely it cannot
be bequeathed. Thus, the submission of the learned counsel for the
appellants that their cases were to be considered in terms of the circular
which was prevalent at the time of submission of the applications and not
LPA 181/2010 Page 20 of 21
the circular which was in vogue at the time of consideration of the
applications is unacceptable.
31. In the case at hand, as is discernible from the order of the learned
Single Judge and the material brought on record, there is no vacancy at
present. The filling up of a post on compassionate ground is restricted to
5%. The respondent has considered the applications of the appellants and
has rejected the same on the ground that there was no vacancy. Thus, we
do not perceive any error in the said rejection and the affirmation of the
same by the learned Single Judge cannot be found fault with.
31. Consequently, we find no merit in this appeal and, accordingly, the
same is dismissed without any order as to costs.
CHIEF JUSTICE
MANMOHAN, J.
AUGUST 16, 2010 vk LPA 181/2010 Page 21 of 21