@JUDGMENTTAG-ORDER
R.P. Sethi, C.J.@mdashCompassionate appointments cannot be equated with compensatory, substituted or in lieu of deceased employee''s services. Compassionate appointment is conferred on account of fellow-feeling or sorrow for the suffering of another, as pity or mercy. Such appointments are re sorted to in exceptional circumstances of personal reasons in a given case. This Court and the Administrative Tribunals cannot confer benediction impelled by only sympathetic consideration. Law is acknowledged to be the embodiment of all wisdom, and justice according to law is a principle as old as the seas on the earth. The Apex Court in
"A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not".
In
2. In the background of what is noted herein above we are called upon to decide in this petition, "the question whether the dependent member of the family of a deceased employee is entitled for an appointment on compassionate grounds in spite of two other major members who are living separately are employed either with the same employer or anywhere else".
This question of law has been referred to us in view of the two different decisions of the Single Bench of this Court. One being
In Susheela B. Bhakta''s case, supra it was held :
"Keeping in view the law as now laid down by the Supreme Court, in my opinion, the respondents could not have refused the request of the petitioners for appointment on compassionate ground merely because one of the sons of the deceased is already in employment of the Corporation, who according to the petitioners had separated from the family long before the death of the deceased employee. For appropriately dealing with an application for grant of appointment on compassionate ground it is incumbent upon the authorities to ascertain by holding an appropriate enquiry as to whether the family comprised of the dependents of the deceased employee had any income from any source to sustain their livelihood, and if it is found that but for a job being offered to one of the eligible dependents their family cannot tide over the crisis, compassionate employment should be given to the eligible dependent. Mere employment of one of the sons of the deceased cannot clinch the issue of granting compassionate appointment, if on facts it is found that he had separated from the family of the deceased even during his life time, because in such a situation it cannot be said that he was still a helping hand to the family".
And in Srikanth''s case, supra it was held :
"..... It is evident that compassionate appointment is given to one of the members of the deceased family to tide over the sudden economic crisis facing the family on the sudden demise of the bread-winner in the belief that he would look after the family which was being done by the deceased and not as a hereditary right. If one or more members of the family are already employed, it cannot be said that the family is penurious. In that view of the matter, the fact that two brothers of the petitioner got employment during the life time of the deceased father and that they are residing separate makes no difference and disentitles the petitioner from claiming appointment on compassionate grounds .......
3. The facts which necessitated the authoritative pronouncement by this Bench are after the death of his father viz., Ugrappa, the petitioner herein prayed for his appointment as junior assistant on compassionate grounds. At the time of his death the said Ugrappa was in the service of the respondent-Board as mechanic Grade-II and died due to brain tumor on 9-12-1991. The said Sri Ugrappa left behind his wife Smt. Gowramma and three sons, the third being the petitioner. It is submitted that at the time of his death the father of the petitioner was the only bread earner of the family. After his death the family came to a state of starvation without any source of livelihood. It was further contended that the two other brothers of the petitioner who are admittedly in service, had allegedly separated from the family about ten years before the death of his father. The application for compassionate appointment was rejected by the respondent-Board against which the petitioner filed W.P. No. 10910 of 1993 which was disposed of on 11-11-1993, directing the respondent-Board to consider petitioner''s request for appointment on compassionate grounds. The Board again by its endorsement dated 20-7-1995, Annexure-G rejected the claim of the petitioner on the ground that the family had sufficient means and source of living. The petitioner contended that the Board had under similar circumstances granted employment to the petitioners in W.P. Nos. 28042 to 28045 of 1991. It is contended that the petitioner was fully qualified and eligible for appointment on compassionate ground and did not suffer from any disqualification. It is alleged that the Board was not justified in holding that the income of the, family of the petitioner was sufficient because they have wrongly included the income of the two brothers of the petitioner who were stated to have been living separately during the life time of petitioner''s father.
4. As noted earlier compassionate appointments cannot be sought as a matter of right. The Supreme Court in Life Insurance Corporation of India''s case, supra, held that appointment on compassionate grounds could not be made contrary to the instructions issued for such appointments. In that case it was held that as the relevant instructions did not contemplate appointment when one of the members of the deceased family was gainfully employed, the Court could not direct the appointment to be made contrary to such instructions.
5. In
"..... As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. However, to this general rule there are some exceptions carved out in the interests of justice and ... One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood .... The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. 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. The posts in Class Ill and IV are the lowest posts in no manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly up-turned."
6. In
"The question that arises for consideration is whether the High Court is right in giving directions to appoint them afresh or give them promotion ? It is not in dispute that there is no right vested in the candidates for particular appointment on compassionate grounds. The State had taken policy decision to appoint all the candidates irrespective of the qualifications as Class IV post and, therefore, the committee consisting of the Secretary, Additional Secretary and the Registrar met and decided the principle that all the available posts in Class IV should be made available to the candidates in the awaiting list for appointment on compassionate grounds. 12 posts available in Class III were reserved for appointment by promotion to the Class IV candidates who were entitled thereto as per the rules. The principle adopted by the Government cannot be said to be unjustified or illegal. Undoubtedly, some candidates had gone to the Court and obtained orders and in compliance thereof, at pain of contempt petition, the Government, instead of appointing them to Class IV posts since by then the Class III posts were not available upgraded Class IV posts as Class III post and confirmed them as Class III employees. That order which was wrongly made by the High Court cannot be a base to issue directions. In other words, if the directions are complied with all the Class IV posts would be converted into Class Ill posts which is against the discipline of the service. The High Court, therefore, was not justified in issuing directions in all the cases for appointment to Class III posts".
7. In Susheela''s case, supra, this Court after referring to various judgments of the Apex Court held that for appropriately dealing with an application for grant of appointment on compassionate ground it was incumbent upon the authorities to ascertain as to whether the family comprised of the dependents of deceased employee had any income from any source to sustain their livelihood and if it was found that but for a job offered to one of the eligible dependents their family could not tide over the crisis, compassionate employment be given to the eligible dependent and in that event mere employment of the sons of the deceased could not clinch the issue of not granting compassionate appointment, if on facts it was found that such son had separated from the family of the deceased during his lifetime.
8. In Srikanth''s case, supra, it was held that the purpose of compassionate appointment was to assist the family at'' the time of crisis due to the death of the bread-winner. Referring to the relevant instructions applicable in the case the learned Judge held :
"It is evident that compassionate appointment is given to one of the members of the deceased family to tide over the sudden economic crisis facing the family on the sudden demise of the bread-winner in the belief that he would look after the family which was being done by the deceased and not as a hereditary right. If one or more members of the family are already employed, it cannot be said that the family is penurious. In that view of the matter, the fact that two brothers of the petitioner got employment during the lifetime of the deceased father and that they are residing separate makes no difference and disentitles the petitioner from claiming appointment on compassionate grounds".
9. After referring to various pronouncements made by the Apex Court and this Court, it can be concluded that :
(1) All appointments in the public service should be made strictly on the basis of open invitation of applications on merit, however, subject to the exceptions carved out in the interest of justice;
(2) One of such exceptions may be the appointments on compassionate grounds as a measure of sympathy, as pity or mercy or sorrow for the suffering of another;
(3) Such appointment should be made with the object to enable the family to tide over the sudden crisis. Such an appointment is not intended to give a member of the family a job in lieu of the post held by the deceased;
(4) Compassionate appointments have to be made strictly in accordance with the rules applicable, policy decision of the employer or the Government instructions issued in that behalf;
(5) In the absence of statutory rules, policy or the order regarding compassionate appointments, the concerned authorities are required to ascertain by holding appropriate summary enquiry, the position of the family keeping in view the financial position of the dependents of the deceased employee. Under such circumstances the compassionate appointment could not be declined merely on the ground that one of the sons of the deceased was already in employment provided it is shown that such employed-son of the deceased was not living jointly with the deceased at the time of his death and was not in any way contributory or sharing to the economic burden of the family, as the dominant object of compassionate appointment is to relieve the family of the distress of the sudden financial crisis or destitution.
(6) In deciding the financial position and strain on the family, the appropriate authority may take into consideration the monthly income of the dependent members of the family and the other monetary benefits conferred upon the family on account of the death of the deceased employee and compassionate employment should not be offered after the financial crisis in the family is over.
10. In view of this settled position of law as we have noted herein above there is no necessity of specifically laying-down as to which of the two judgments of this Court i.e., Susheela''s case, supra and Srikanth''s case, supra, has laid down the correct law. In both the cases the learned Judges have taken note of various pronouncements of the Apex Court and decided the cases in the light of the peculiar facts and circumstances.
11. In the instant case the appointment on compassionate grounds are admittedly governed by the policy of the respondent-Board circulated vide communication dated 25-6-1990. The Board is stated to have evolved a definite policy by prescribing guidelines in the matter of providing appointment to the widows/son/unmarried daughter/near relatives of a Board employee who dies while in service. According to aforesaid policy the financial condition of the family is the main criteria for determining the eligibility for compassionate appointment. The appointment cannot be refused merely on the ground of the petitioner''s brothers being in service despite the fact that they had separated before the death of the deceased employee. After the directions were issued by this Court in W.P. No. 10910 of 1993, the respondent-Board is stated to have held an enquiry on facts and found (Annexure-G).
"In obedience to the decision of the Hon''ble High Court of Karnataka in W.P. No. 10910 of 1993, Board has reconsidered the application of Sri R. V. Krishnappa, S/o Ugrappa, for compassionate appointments in the light of the scheme governing compassionate appointments and the law laid down.
Sri Ugrappa, who was working as a Mechanic Gr. II in Madhugiri died on 9-12-1991. Sri Ugrappa (late) has left behind a widow and 3 sons.
Out of three sons, two are working and their salaries are as follows :
Sriyuths Income p.m 1. R. V. Narasimha Murthy, Rs. 3,680.00 Station Attendant Gr. II, KEB, Shilapura 2. R. V. Lakshminarayana, Rs. 2,317,00 Mechanic in KSRTC
A.D.C.R.G. of Rs. 97,984/- has been given to the wife of late Sri Ugrappa and she is getting a monthly pension of Rs. 1200/-.
The scheme of compassionate appointment has been introduced in the Board to provide immediate relief to the bereaved family from the difficulties faced by the sudden death of the employee.
The details of income of the members of the bereaved family as said above show that the family has sufficient means and source of living and this is not a case where compassionate appointment be given to a third member of the family.
Taking into consideration of all facts and circumstances of the case, Board has come to the conclusion that Sri R. V. Krishnappa need not be provided with compassionate appointment.
Accordingly his application is rejected".
12. It is therefore clear that the claim of the compassionate appointment of the petitioner has been rejected strictly in accordance with the relevant policy and after holding enquiry with respect to the financial position of the family of the deceased employee.
13. There is no merit in this petition, which is accordingly dismissed. Rule discharged.
