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Supervisor : By :
Dr. Rakesh Kumar Singh Sudhir Kumar
Associate Professor Research Scholar
Faculty of Law, Faculty of Law,
University of Lucknow, University of Lucknow,
Lucknow Lucknow
FACULTY OF LAW
UNIVERSITY OF LUCKNOW,
LUCKNOW, U.P. (INDIA)
2014
Certificate
Annexure 238-310
Acknowledgment
Date :
ABBREVIATION
All. = Allahabad
Cal. = Calcutta
i.e. = That is
Infra = Below
Supp. = Supplementary
Supra. = Above
Introduction
The Preamble of the Constitution of India resolves to secure social
political and economic justice, various liberties, equality of status and of
opportunity assuring the dignity of individual and the unity and integrity of
nation. The Directive Principles of State Policy and various Fundamental
Rights try to implement all such resolves contained in the Preamble.
It has been held time and again that appointment to any public post
must be absolutely transparent and fair and must be in accordance with the
prescribed procedure. Even ad-hoc appointment should not be encouraged
as far as possible and should be adhered only when public exigencies
require and appointment in accordance with the prescribed procedure
would take a fairly long time and non-filling up of the post would be
against the public interest.
only to children but also to brothers and sisters and their children as well.
Family allowance benefits cover only those who are below a particular
income ceiling. Even though United States did not have this scheme,
recently they have enacted a legislation that provides allowance to
dependent parents.
Nordic countries like Sweden, Finland etc are the most advanced
countries in the world as far as social security is concerned. But the only
thing is that a sizeable portion of the salary of employees has to be
contributed to the social security funds.
(a) that the citizens, men and women equally, have the right to an
adequate means of livelihood;
(b) that the ownership and control of the material resources of the
Community are so distributed as best to sub serve the common
good; (c) that the operation of the economic system does not result
in the concentration of wealth and means of production to the
common detriment;
(c) that there is equal pay for equal work for both men and women;
(d) that the health and strength of workers, men and women, and the
tender age of children are not abused and the citizens are not forced
by economic necessity to enter avocations unsuited to their age or
7
strength;
(e) that childhood and youth are protected against exploitation and
against moral and material abandonment.
welfare, and the only worthwhile yard stick we can employ is the happi-
ness of our people.
But wiggeries of life are such that with advent of fast life,
urbanization, new technology in manufacture and services, the unfortunate
lot among the workers/employees is there, may be in fraction.
Now wage being highest security for family besides the other
schemes as they come in frillwork, it matters most for the family to have a
bread winner for them to provide shelter and maintain standard in their
lives.
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.
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 can not subsumes the main provision to which it is an exception
and there by 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 appointment, 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 see employment
against the post which would had been available to them.
2 Ibid.
3 (1994) 2 SCC 718.
4 (1994) 4 SCC 138.
5 (1989) 4 SCC 468.
12
In State of U.P. and others v. Paras Nath,9 it was held that the
purpose of providing employment to the dependant of a Government
There have been some objections against the scheme apart from the
Constitutional prohibitions of allowing appointment on the ground of
‘descent’. It has been said that compassionate appointments lead to surplus
staff, only the least employable in the family apply for such appointment
and earmarking large portion of the recruitment in clerical and sub-staff
cadres for compassionate appointment adversely affects the quality of man
power. It has been suggested that instead of giving appointment, financial
assistance for next five to ten years should be extended to the unfortunate
14
family.
15
Chapter – II
Historical Background
"Law is not an abstract thing, it is a living organism since it
is applied on living human beings".
Australia
implemented very early in Australia. Each territory has its own legislation
and its own governing body.
Canada
Germany
The law paid indemnity to all private wage earners and apprentices,
including those who work in the agricultural and horticultural sectors and
marine industries, family helpers and students with work-related injuries,
for up to 13 weeks. Workers who are totally disabled get continued
benefits at 67% after 13 weeks, paid by the accident funds, financed
entirely by employers.
2 An Act for Insurance Against Accidents, 6 July 1884, translated and reprinted in
F.W. Taussig, Workmen's Insurance in Germany, 2 Q. J. ECON. 111 p. at 121–28
(1887).
3 US Dept. of Labor, The Job Safety Law of 1970: Its Passage Was Perilous.
Holborn, Hajo: A History of Modern Germany – 1840–1945: Princeton University
Press; 1969; p. 291–93.
4 Munich Re – History of workers' compensation insurance in Germany, 1884.
5 washburnlaw.edu, Compensation for Personal Injuries in a Comparative
Perspective.
21
Mexico
United Kingdom
1880 Act.). 8
In the United States, the first state such worker's compensation law
was passed in Maryland in 1902, and the first law covering federal
employees was passed in 1906.9 (See: FELA, 1908; FECA, 1916; Kern,
1918.) By 1949, all states had enacted some kind of workers' compensation
regime.10 Such schemes were originally known as "workman's
compensation."
India
This Act provides a scheme under which the employer and the
employee must contribute a certain percentage of the monthly wage to the
Insurance Corporation that runs dispensaries and hospitals in working class
localities. It facilitates both outpatient and in-patient care and freely
dispenses medicines and covers hospitalisation needs and costs. Leave
certificates for health reasons are forwarded to the employer who is obliged
to honour them. Employment injury, including occupational disease is
8 lawphil.net "The Employers' Liability Act of Alabama, first enacted in 1855 (Civil
Code 1907, Ch. 80, sec. 3910), is a substantial, if not an exact copy, of the English
Act of 1880."
9 The Federal Employers Liability Law of 1906.The 1906 law was declared
unconstitutional by the Supreme Court; re-worked by Congress in 1908
10 eh.net Fishback Includes extended data tables.
23
Legislations like Industrial Disputes Act, 1947. Factories Act, 1948 etc.
when the cruel Practice of Hire and Fire was prevalent, the big business
houses have started few welfare measures on their own like distribution of
incentives to its workmen on the eve of festival's & one such provision for
the welfare of workers was to provide compassionate appointment to the
son/ dependant of retiring workman or on the death of it's workmen.
dearness allowance from time to time and part of that was treated as pay
for calculation of pension. No real benefit could be got by pensioners up to
1945. The First Pay Commission was appointed in 1946. The P&T
Pensioners Association tried its best to bring the problem of pensioners
into the orbit of the pay commission but in vain. The Commission clarified
that the pensioner's problems could not be examined as the same were not
'referred to'.
Even though the retirement benefits were being given by the Govt.
from time to time, they were not incorporated in Fundamental Rules made
effective from 1-1-1992. It was later decided by the govt. to make revised
pension rule governing the cases of post-1938 entrants. These rules were
actually out only in 1945 giving rise to many problems.
Article 41 is more explicit when it says that the State which the
limits of its economic capacity and development, make effective provision
for securing the right to work, to education and public assistance in case of
unemployment, old age, sickness and disablement and in other case of
undeserved want.
(3) Nothing in the article shall prevent Parliament from making any law
prescribing, in regard to a class or classes of employment or
appointment to an office under the Government of, or any local or
other authority within, a State or union territory, any requirement as
to residence within that State or Union
(4) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favor any
backward class of citizen which, in opinion of the State, is not
adequately represented in the service under the State
(5) Nothing in this article shall effect the operation of any law which
provides that the incumbent of an office in connection with the
affairs of any religious or denominational institution or any member
of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.
Descent
opposite:
Chapter – III
to some extent so that the family may survive. The Rules, no doubt, are a
social pieces of legislation giving protection to the family of the deceased
whose children may be small or may be unemployed and the widow may
also not be working and thus the entire family may not be having any other
source of livelihood. The State being the protector and guardian of its
citizens and being under a mandate under Article 21 of the Constitution has
to provide for basic needs subject to its economic capacity. The purpose of
the Rules is that their family should not be left as destitute and the children
may not go astray for want of financial assistance. Keeping in mind the
above Constitutional obligations a special set of Rules in which the scheme
of appointment to one of the members of the deceased Government
servant's family has been provided. The overall idea and concept of these
Rules is to keep the family in main streamline of the society for which
economic security and social status is to be provided by the State
Government.
a considerable period, i.e., even after the period of five years, as compared
to those who have to seek employment of these Rules.
employee who died in harness. In that situation there are two courses open.
Either a post is created or such other post, which may be available, is
offered and it is accepted by the family member of the deceased employee.
"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."
livelihood. The object is to enable the family to get over sudden financial
crisis.'
In the case of State of J&K v. Sajad Ahmed Mir11 the Supreme Court
has held that:
In the case of M/s Eastern Coalfields Ltd. v. Anil Badyakar & Ors.13
The Apex Court has observed that it can not be offered after crises are
over. 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.
The Court further observed that the object of the provisions should
not be forgotten that it is to give succor to the family to tide over the
sudden financial crisis befallen the dependants on account of the untimely
demise of its sole earning member.
In the present case, the additional monetary benefit has been given
to the widow apart from the benefits available to the widow after the death
of her husband to get over the financial constraints on account of sudden
death of her husband and, thus, as a matter of right, she was not entitled to
claim the compassionate appointment and that too when it had not been
brought to the notice of the Court that any vacancy was available where the
respondent could have been accommodated by giving her a compassionate
appointment. That apart, the Division Bench of the High Court has
committed an error in modifying the direction of the Single Judge by
49
"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."
On the first question, therefore, the Tribunal found the case against
the appellants. On the second question, however, the Tribunal held that the
employment on compassionate grounds could not be denied on the ground
of financial service benefits received by the widow and children of the
deceased Government employee were sufficient to meet their needs. In
support of this proposition, the Tribunal relied on the decision of Balbir
Kaur and Ors. v. Steel Authority of India.22
In the case of Sanjay Kumar v. State of Bihar,25 the court has stated that:
In the case of State of U.P. v. Paras Nath,28 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, the court observed.
In Dhalla Ram v. Union of India,30 it was held that the very object
of making appointment on compassionate grounds is to rehabilitate the
family of the deceased employee who dies in harness. There should be no
difficulty to consider an eligible candidate for providing immediate
sustenance to the members of the deceased employee. In this case the
appellant had applied on July 15, 1987 and the application was rejected on
July 14, 1988 He filed the OA on July 12, 1993. The court held: “In view
of the long delay, after the refusal by the Government, in filing the
application, the same cannot be entertained. The appointment on
compassionate grounds is not a method of recruitment but is a facility to
provide for immediate rehabilitation of the family in distress for relieving
the dependent family members of the deceased employee for destitution.”
Chapter – IV
duty to secure a just social order. Thus Article 381 lays down that “the state
shall strive to promote the welfare of the people by securing and protecting
as effectively as it may a social order in which justice, social, economic
and political shall inform all institutions of national life”. Article 392 says
that the State shall direct its policy in such a manner as to secure that all
man and women have the right to and adequate means of livelihood, that
the ownership and control of the material resources of the community are
so distributed as best to sub-serve the common good, that there is equal pay
for equal work for both men and women, that the health and strength of
workers : men and women, and the tender age of children are not abused,
that citizens are not forced by economic necessity to enter avocation
unsuited to their age or strength and the childhood and youth are protected
against exploitation. Article 413 seeks within the limits of the states’s
economic capacity and development, to make effective provision for
securing the work, education and public assistance in the event of
unemployment, old ages, sickens and disablement or other cases of
underserved want.
1 Article 38 : State to secure a social order for the postulates of welfare of the
people.
2 Article 39 : Certain Principle of policy followed by the state.
3 Article 41 : Right to work to education and to public assistance in certain cases.
58
Under clause (1) and (2) of Article 16, all citizen of India are
guaranteed equality of opportunity in matters relating to employment or
9 Chapter 33 (Article 308-314) Services under the Union & the States.
10 The rules made by the President / Governor are subject to the provision of the
Constitution of India e.g. Article 14, 15, 15, 19, 21, 310 and 311.
60
persons group together from those left out the group and such differential
attributes must bear a just relation to the object and rational relation to the
object sought to be achieved.
It need not to pointed out that the claim of the person concerned for
appointment on compassionate ground is based on the ground that he was a
dependant employee. Strictly this claim cannot be upheld on the touchstone
of Article 14 and 16 of the Constitution of India. But the Supreme Court
upheld this claim as reasonable and permissible on the basis of sudden
crises occurring in the family of such employee who has served the State
66
and dies while in service. That is why it is necessary for the authorities to
frame rules, regulations or to issue such administrative order which can
stand the test of Article 14 and 16.
As such hence there should be a proper check & balance. The High
Court & the Administrative Tribunals cannot issue directions on
'Sympathetic Considerations’ to make appointments on compassionate
grounds when the regulations framed in respect thereof do not ever
contemplate such appointments.
Gopaiah,26 a full bench of the Andhra Pradesh High Court noticing the
aforementioned judgment and opined :
the taken over projects, landless persons and so on and so forth. A person
can obtain appointment in terms of aforementioned schemes or on contract
basis, on political pressures, on demand on of trade unions, as also on the
pressures of the non-governmental organization. The long and short of the
matter is that unless there is somebody to push his case, an employment
cannot ordinarily be obtained by a citizen in terms of Article 14 and 16 of
the Constitution of India. The majority of the population faces of paradox
of articulated programmes for obtaining employment. The schemes for
grant of compassionate appointment on medical invalidation, as noticed
hereinbefore, had been made wider and wider. The State has for one reason
or the other compromised with the basic principles underlying grant of
public employment and has deviated from the Constitutional norms;
sometimes it widened the scope and ambit of grant of appointment on
compassionate ground to such an extent that it had to backtrack its steps.
The State's policy-decision in this regard had never been of firm root. They
took different steps at different times depending on the whims and caprice
of the concerned officers or acted on pressure of the Employee's Union.
The law interpreting Article 14 and 16 of the Constitution of India in this
regard has also undergone ups and downs." Moreover, any appointment in
violation of the Constitutional scheme would also be rendered a nullity. 27
27 Secretary, State of Karnataka and Ors. v. Umadevi and Ors., (2006) 4 SCC 1;
Indian Drugs and Pharmaceuticals Ltd. v. Workman, Indiian Drugs and
Pharmaceuticals Ltd, (2006) 12 SCALE 1; Municipal Corporation, Jabalpur v.
Om Prakash Dubey, (2006) 13 Scale 266; National Fertilizers Ltd. and Ors. v.
Somvir Singh (2006) 6 SCALE 101.
28 1994 (1) SCC 192.
76
only in the case of sons and daughters, but also near relatives of a
Government servant who died in harness. The scheme further provided that
in deserving cases even where there is an earning member in the family,
compassionate appointment to another member was permissible. Dealing
with the memorandum containing the said scheme. The Court held, "A
reading of these various clauses in the Memorandum discloses that the
appointment on compassionate grounds would not only be to a son,
daughter or widow but also to a near relative which was vague or
undefined. A person who dies in harness and whose members of the family
need immediate relief of providing appointment to relieve economic
distress from the loss of the bread-winner of the family need
compassionate treatment. But all possible eventualities have been
enumerated to become a rule to avoid regular recruitment. It would appear
that these enumerated eventualities would be breeding ground for misuse
of appointments on compassionate grounds. Articles 16(3) to 16(5)
provided exceptions. Further exceptions must be on Constitutionally valid
and permissible grounds. Therefore, the High Court is right in holding that
the appointment on grounds of descent clearly violates Article 16(2) of the
Constitution. But, however, it is made clear that if the appointments are
confined to the son/daughter or widow of the deceased government
employee who died in harness and who need immediate appointment on
grounds of immediate need of assistance in the event of there being no
other earning member in the family to supplement the loss of income from
the bread-winner to relieve the economic distress of the members of the
family, it is unexceptionable."
concern of the court is to see that the rule of law is respected and to ensure
that the executive acts fairly and gives a fair deal to its employees
consistent with the requirement of Article 14 and 16 of the Constitution.
The State being a model employer should not exploit the employees nor
take advantage of the helplessness and misery of either the unemployed
person or the person concerned, as the case may be... Where a temporary or
ad hoc appointment is continued for long, the court presumes that there is
regular need for his service on a regular post and accordingly considers.
as a matter of right. It must be provided for in the rules. The criteria laid
down therefore viz. that the death of the sole bread earner of the family,
must be established. It is meant to provide for a minimum relief. When
such contentions are raised, the Constitutional philosophy of equality
behind making such a scheme is taken into consideration. Articles 14 and
16 of the Constitution of India mandate that all eligible candidates should
be considered for appointment in the posts which have fallen vacant.
Appointment on compassionate ground offered to a dependant of a
deceased employee is an exception to the said rule. It is a concession, not a
right."34
34 General Manager, State Bank of India & Ors. v. Anju Jain, (2008) 8 SCC 475.
35 (2008) 13 SCC 730.
36 2002 (5) AWC 3708.
82
In State of J & K v. Sajad Ahmed Mir,40 the law was laid down in
the following terms:
"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 the Government or other public sectors
should be open to all eligible candidates who 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."
facts of the case and their objective finding arrived on the appreciation of
the full fact should not be disturbed. Learned Single Judge and the Division
Bench by directing appointment has fettered the discretion of the
appointing and selecting authorities the Bank had considered the
application of the respondent in terms of the statutory scheme framed by
the Bank for such appointment. After that even though the Bank found the
respondent ineligible for appointment to its service, the High Court has
found him eligible and has ordered his appointment. This is against the law
laid down by the apex Court. It is settled law that the principles regarding
compassionate appointment that compassionate appointment being an
exception to the general rule the appointment has to be exercised only in
warranting situations and circumstances existing in granting appointment
and guiding factors should be financial condition of the family. The
respondent was held not entitled to claim relief under the new scheme
because the financial status of the family is much above the Criterion fixed
in the new scheme.
In the result, the appeal was allowed and the orders passed by the
learned Single Judge and of the Division Bench were set aside.
Bhawani Prasad Sonkar v. Union of India,44 the court held that now,
it is well settled that compassionate employment is given solely on
humanitarian grounds with the sole object to provide immediate relief to
the employee's family to tide over the sudden financial crisis and cannot be
claimed as a matter of right. Appointment based solely on descent is
inimical to our Constitutional scheme, and ordinarily public employment
must be strictly on the basis of open invitation of applications and
comparative merit, in consonance with Articles 14 and 16 of the
The text and context of the entire provisions must be looked into
while interpreting any of the provision of the Statute. The Court must look
to the object which the Statute seeks to achieve while interpreting the
previsions of the Act/ Rules / Regulations. A purposive approach for
interpreting the provision is necessary.
summarized thus :
Chapter – V
Eligibilities of Person and Post/Job in Compassionate
Appointment under Dying in Harness Rules
Eligibilities of Person
A Division Bench of the Patna High Court4 has held that the word
“dependent” occurring in the concerned Government circular would
include a husband of a deceased female Government servant who died in
harness.
Where the rules provided that only one dependent of the deceased
can be given employment, then in the case of rival claims between the
dependent sons and dependent’ unmarried daughter the authorities would
be acting lawfully, if it appointed the unmarried daughter was found
suitable keeping in view her physical and educational qualifications.
However a scheme of compassionate appointment which excludes a
married daughter from the category of beneficiaries has been held to be
not discriminatory.5 The rule relating to compassionate appointment may
validly create a distinction between death or disability occurring in the
course of employment and such a distinction will not be discriminatory.
3 Rekha v. M.D. , A.P. Schedule Castes Co-operative Finance Corporation, 1992 (1)
SLR 560.
4 Haarendra Pandey v. State of Bihar, 1995 Lab IC 985 (Pat.).
5 Surendra Singh Gaur v. State of U.P. , 1992 Lab IC 1474.
93
with a calamity where the sole bread earner dies. The overall idea and
concept of these rules is to keep the family in main streamline of the
society for which economic security and social status is to be provided by
the State Government.
(ii) Sons
1. Wife or husband
2. Son
(3) Every appointment made under sub rule (1) shall be subject to
the condition that the person appointed under sub-rule (1) shall maintain
other members of the family of deceased Government Servant, who were
dependent on the deceased Government servant immediately before his
death and are unable to maintain themselves.
(4) Where the person appointed under sub-rule (1) neglects or refuse
to maintain a person to whom he is liable to maintain under sub-rule (3),
his service may be terminated in accordance with the Uttar Pradesh
Government Servant (Discipline and Appeal) Rules, 1999 as amended
from time to time.
7 Section 3
8 Section 6 (The explanation of this section says ‘minor’ includes a child in the
womb)
9 Section 20: Right of the child in womb
10 Section 13 and 20
11 Elliot v. Lord Joicy 1935 AC 209; Wingfield (1903) 2 Ch. 11
12 Mathew v. Talrak Land Board 1979 KLT 601 (SC)
13 Auditor General of India v. Ananta Rajeswara Rao, AIR 1994 SC 1521 .
96
(I) The person adopting has the capacity, and also the right, to take in
adoption;
It may be clarified that under Section 6, the law does not recognize
an adoption by a Hindu of any person other than Hindu.
(iii) He or she has not been married, unless there is a custom or usage
applicable to the parties which permits person who are married
being taken in adoption;
(iv) He or she has not completed the age of fifteen years, unless there
99
Provided that-
(a) The child cannot marry any person whom he or she could not have
married if he or she had continued in the family of his or her birth.
(b) Any property which vested in the adopted child before the adoption
shall continue to vest in such person subject to the obligations, if
any, attaching to the ownership of such property; including the
obligation to maintain relative in the family of his or her birth;
(c) The adopted child shall not divest any person of any estate which
vested in him or her before the adoption.
In the present case, the factum of adoption has not been disputed in
the impugned order. The adoption of the petitioner has been made by a
registered deed, which cannot be said to be bad or against the provisions of
Hindu Law and as such the petitioner is entitled for all the benefits which
are available to the natural born sons.
For the reasons stated above, the writ petition was allowed and the
impugned order dated 21.04.2007 passed by the opposite party no. 2 was
thereby quashed. The respondents were directed to consider afresh the
application for appointment of the petitioner commensurate to his
qualification, in their department, within three months, in light of
19 Ibid.
101
The respondent claimed that he was the adopted son on the basis of
a deed of adoption dated 28.02.1989. It is said to have been executed seven
months before the deceased died. In the impugned judgment, the High
Court appears to have proceeded on the basis of a presumption relating to
the validity of the adoption deed under Section 16 of the Hindu Adoptions
and Maintenance Act, 1956. Under Section 16 of the Act, any document
registered under any law for the time being in force is produced before any
court purporting to record the adoption made signed by any person giving
the child in adoption. The copy which is produced before the court did not
indicate that was a registered deed of adoption. Therefore, no presumption
under Section 16 could have been drawn relating to the validity of the
adoption. There were no facts on record showing whether on the date of
adoption, the respondent was under the age of 15 years. There were also no
facts on record to show adoption would have had to be made by the
husband with the consent of the deceased. In the absence of any material,
the court, therefore, refrained from pronouncing on the validity or
The appellants had also contended that looking to the fact that the
respondent was adopted only on 28.02.1989, and the alleged adoptive
mother died on 06.09.1989, it could not be said that the respondents was
wholly dependent on his mother at the time of her death. Looking to all
the facts and circumstances, the Single judge of the High Court had rightly
held that the respondent was not eligible for appointment on compassionate
grounds. The High Court ought not to have set aside the order of the Single
Judge. Therefore, the approval was allowed by setting aside the judgment
of the High Court and restoring the judgment of the Single judge.
The situation arose in the case of Aprna Narendr Zambre and others
v. Collector, Sangli and others, 24. where a very effective judgement got
passed by Hon’ble Bombay High Court dated 1 st August 2011. In this case
father of petitioner was a Government employee who died during service in
an unfortunate event. The deceased had a living wife and two unmarried
daughters. In the year 2004, one of the daughters applied for the
compassionate appointment to the Departmental Head who forwarded the
application to District Collector, the name of unmarried daughter
(petitioner no.1) was registered in the waiting list for appointment for any
Court has said in this judgment that “the fact that, in the present
case, the application for appointment of petitioner no. 1 on compassionate
ground was made on 29 th July, 2004 is indisputable. That was well within
time. At the relevant time, the petitioner No. 1 was unmarried. It is also
common ground that the name of petitioner No. 1 was included in the Wait
List on 22nd August , 2005. This event is also crucial to determine the
eligibility of the incumbent. Even at that time she was unmarried. She got
married only on 11th July, 2007. Thus, applying the legal position, the date
of application and, at any rate, the date of inclusion of her name in the Wait
List ought to be reckoned for considering the claim of petitioner no. 1. As
she was “unmarried” on that date, She fulfilled the requirements of clause
3(a) of the Government Resolution. The fortuitous circumstance of her
marriage on 11 th July 2007, while her name remained on the Wait List
since 2005 on account of non availability of vacancy against which she
could be appointed, cannot be the basis to deny her the connection
provided to the family members of deceased Government employee for
105
Striking a blow for gender equality, the Bombay High Court has
held that a married daughter too is eligible for a job on compassionate
grounds in place of her father, after his demise. To allow only an unmarried
daughter but deny a married one of the chance to be given a government
job on compassionate grounds is in violation of right to equality right to
public employment and even right to life, said the High Court. Such
discrimination is “not expected from a welfare state” the court said.
parent.
government informed her that it dropped her name from the list as she
married after 1994. She pointed out that she married in 2008, four years
after applying for the job. As the government did not relent, she moved
court. Since the aim of the policy was to ensure the family does not suffer
due to the sudden loss of income.
25
(2013) SCC 132
108
Therefore, he said, “In the case of death of the parents, there cannot
be any unequal treatment among the children based on sex. There cannot be
discrimination between sons and daughters in giving compassionate
appointment. He said judgement squarely applies to the facts of this case.”
26 (1995) 6 SCC 61
109
others constituted the family of the Government servant and not a major
brother and consequently a major brother cannot be treated to be the
member of the family of the deceased Government employees to become
eligible for compassionate appointment. It was sought to be urged that
when previously the Government appointed the major brothers of the
deceased employees on compassionate ground the Government was
stopped from refusing the claim of the respondent to claim compassionate
appointment. The Supreme Court held that it might be that some
department had wrongly given the benefit but such wrong action cannot
become right in the face of the unambiguous language of the rules defining
“family” in the Rule 20 in view of State of Haryana v. Dhan Singh.31
33 P.S. Geeta v. Central Bank of India, Bombay, 1978 Lab IC 1271: (1978) 2LLN
353: (1978) 2 SLR 856 (AP) ; Sushma Gosain (Smt.) v. Union of India, (1989) 4
SCC 468: 1989 SCC (L&S) 662: AIR 1989SC 1976; Kamala Gaind (Smt.) State
of Punjab, 990 Supp SCC 800 : 1991 SCC (L&S) 637: (1991) 16 ATC 513
Limited.
113
The only question that arose for decision was whether the
Memorandum is violative of Article 16(2) of the Constitution? Article 14
genus provides equality of opportunity and equal protection of the laws and
it prohibits discrimination Article 16(2) species prohibits discriminations.
The petitioner’s father was employed with the Uttar Pradesh Power
Corporation (“the Corporation”). He did not have any children from his
first marriage and applied for permission to marry again. The Executive
Engineer granted permission on the basis of an agreement between the
employee and his wife as well as on the medical report confirming that
they could not have any children. There was even a caveat in the
permission that in case any child was born from the first wife then his
relation with second wife would come to an end.
The petitioner was born form the second marriage. When the
petitioner’s father died, there was an agreement between the two widows
by which the first wife was entitled to receive the post retirement benefits
and the petitioner would be entitled for compassionate appointment.
single judge on the ground that even though Section 16(3) of the Hindu
Marriage Act, 1955 provides inheritance to children from void marriages
over the property of their parents, the right to compassionate appointment
was not a right to property of deceased.
Under Section 5 of the Hindu Marriage Act, the first condition for a
valid marriage is that neither party should have a spouse living at the time
of marriage. The Court underlined that Rule 29 of the UP Conduct Rules
was subject to the Hindu Marriage Act. It does not envisage the grant of
permission to a Hindu to marry a second time during the lifetime of the
first spouse as it would be contrary to Section 5(i) read with Section 11 of
the Hindu Marriage Act, In case it empowers the government to grant such
permission, it would contravene these sections of the Hindu Marriage Act.
The scope of Rule 29(1) the UP Conducts Rule has to be limited to person
belonging to those faiths where the personal law permits a second marriage
during the lifetime of the first spouse. Since the deceased was a Hindu, the
115
Court concluded that no permission could have been granted under Rule 29
(1) of the UP Conduct Rules and therefore, the permission granted was
invalid.
To conclude, although the Court said that the petitioner had a right
to have his application considered on merits, since enforcing such a right
through the Court would amount to granting recognition to an invalid act,
his rights could not be enforced through a writ. This may seem a little
convoluted at first glance, but if one looks this conclusion in the
background of equitable origins of writ remedies, the stand of the Court
becomes more justified.
35 Sanjay Kr. Panda v. State of W.B., 1993 (2) SLR 604 (Cal.)
36 Motia Devi v. Life Insurance Corporation of India 1993 (3) SLR 68 (DB).
37 Prakash Chand Jain v. State of Rajasthan 1992 (5) SLR 680.
38 Jethi Devi v. Bhakr Beas Management Board , (1995) 6 SCC 61
117
i. Who had less than two years to retire on the date from which
he has been missing; or
The CAT, Principle Bench, New Delhi has directed that a common
list should be prepared for all compassionate appointment cases relating to
posts located at Delhi and appointments should be made against the quota
for compassionate grounds from the common list.
In a very significant judgment, the Supreme Court has held that the
absence of extant rule of instructions at the time of death and of the
employment, there can be no claim for compassionate appointment.41 Such
appointments cannot be made dehors any statutory policy. Such
appointments cannot be made dehors any statutory policy.
41 Haryana State Electricity Board v. Naresh Tanwar, JT 1996 (2) SC 542 : (1996) 8
SCC 23 : 1996 (2) SLR 11 : for an extreme example of a sympathetical decision;
Prem Kanwar v. R.S.T.C.
42 1989 (4) SLR 327: JT 1989 (3) SC 570: (1989) 4 SCC 468 : AIR 1989 SC 1976
43 Haryana State Electricity Board v. Naresh Tomary, JT 1996 (2) SC 542 : (1996) 8
SCC 23 : 996 (2) SLR 11
44 Srikanth v. Chief Engineer, Karnataka Electricity Board, 1996 (1) SLR 18.
45 Ashok Kumar Kumar Maiti v. State of W.B. , 1995 Lab IC 2175
46 Director of Education (Secondary) v. Pushpendra Kumar, (1998) 5 SCC 192: AIR
1998 SC 2330.
122
once one of the post applied for is offered and accepted e.g. where the
deceased’s ward applies for appointment ether as Sub Inspector or lower
division clerk and is offered the post of lower division clerk which is
accepted, cannot thereafter claim to appointed as Sub Inspector.47
Dependants, if gainfully employed, cannot be considered.48 The aspirant
cannot insist upon for appointment to a particular post particularly when
the post insisted upon is not available.49
The principle is applied when any employee was missing and had
not been herd of for more than seven years based on the presumption of
death.50
47 State of Rajasthan v. Umrao Singh (1994) 6 SCC 560: 1995 SCC (L&S) 10.
48 (1998) 5 SCC 452 : 1998 SCC (185) 1371
49 Director of Education (Secondary) v. Pushpendra Kumar (1998) SCC 192: AIR
1998 SC 2230.
50 Chief Engineer, Central Zone, APSEB v. K. Naga Hema (1996) 1 LLJ 1121.
51 (2000) 6 SCC 493 : AIR 2000 SC 1596 : (2000) 2 LLJ 1.
52 (1994) 2 SCC 18 : AIR 1994 SC 2148 : (1994) II LLJ 173.
123
But there has been a shift in the approach. The LIC case, was
decided on 28 February 1994. There months later in Umesh Kr. Nagpal v.
State of Haryana,53 Sawant J. laid down the principles relating to
compassionate appointment in clear and emphatic language. He said:
53 Umesh Kr. Nagpal v. State of Haryana (1995) 1 LLJ 798 (SC) : (1994) 4 SCC
(L&S) 930.
124
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 the 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 III and IV are the lowest posts in non –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 post
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 post 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 service rendered
by him and the legitimate expectations, and the change in the
status and affairs, of the family engendered by the erstwhile
125
Where a ceiling has been fixed for such appointment and that ceiling
has been exhausted, the question as to whether the ceiling should be
relaxed is entirely a matter of administrative discretion and the courts
cannot direct the authorities to relax the ceiling.59
54 S. Mohan v. Government of T.N. (1998) 9 SCC 485 : 998 SCC (L&S) 1231
55 Jagdish Prasad v. State of Bihar (1996) 1 SCC 301 : JT 1995 (9) SC 31; Illa
Sarkar v. State of W.B. (199) II LLJ 1122 : 100 CWN 483; State of U.P. v. Paras
Nath, (998) 2 SCC 412 : AIR 1998 SC 2612
56 P.C. John v. Managing Director , KSRTC , 1992 Lab IC 2594 (Ker.).
57 Umesh Kr. Nagpal v. State of Haryana (1995) 1 LLJ 798 (SC) : (1994) 4 SCC
(L&S) 930.
58 Life Insurance Corporation of India v. Asha Ramchandra Ambekar (1994) 2 SCC
718 : AIR 1994 SC 2148; Umesh Kr. Nagpal v. State of Haranaya, (1994) 4 SCC
138 : (1995) I LLJ 798 (SC) : 1994 SCC (L&S) 930.
59 Union of India v. Joginder Sharma (2002) 8 SCC 65 : 2002 SCC (L&S) 111
126
60 Auditor General of India v. G. Ananta Rajeswara Rao, (1994) II LLJ 812 (SC) :
(1994) 1 SCC 192 : AIR 1994 SC 1521
127
61 Id at 1533.
62 1989 (4) SLR 327 : JT 1989 (3) SC 570 : (1989) 4 SCC 468 : AIR 1989 SC 1976
63 Dinesh Rai v. District Inspector of Schools, (1992) 1 LLJ 123
64 Puspa Rani v. State of Punjab, 1992 (6 ) SLR 90
65 Bagwanji Monabhani Khatana v. State of Gujarat, 1995 (5) SLR 34.
66 State of Haryana v. Surjeet Singh, JT 1996 (7) SC 202: (1996) 5 SCC 478
128
for a public project,67 who have become medically unfit or who have been
the beneficiaries of judicial compassion.68 If the eligibility in laid down as
“Nakara” which meant “of no use” and an employee is declared unfit to
perform even light duty will not make him “Nakara” which is the context
meant total disability.69
But in a more recent case the Supreme Court has rejected the
argument that in the case of persons whose lands had been acquired for a
public purpose namely a public project like Rourkela Steel Plant, there was
no obligation on the part of he Government to give employment to
members of the family whose land had been acquired over and above the
compensation paid to them under the Land Acquisition Act. The Court not
only negatived the argument of the land losers based on Art. 21 of the
Constitution but observed that the acceptance of the claim would be against
Art. 14.
67 Calcutta Port Trust v. Deba Prasad Bag, 1995 Supp (1) SCC 454
68 Buttu Prasad v. Steel Autholrity of India Ltd., 1995 (2) SLR 451 (SC) : 1995 Supp
(2) SCC 225.
69 Lal Chand v. State of Haryana (1999) 6 SCC 760
70 G.S. Suresh Kumar v. State of Kerala , 1992 Lab IC 2349
71 Auditor General of India v. G. Anantha Rajeshwara Rao, (1994) II LLJ 812
129
It has been also pointed out by the Supreme Court that exercise of
extraordinary jurisdiction, constitutionally conferred on the Supreme Court
under Art. 142 (1) of the Constitution, could be of no guidance on the
scope of Art. 226. It does not appear from the judgment that any argument
was advanced in support of such a power in the High Court and the clear
implication of these observations appear to be that although the Supreme
Court could give such direction for direct appointment, the High Court
have no jurisdiction to do so in exercise of power under Art. 226 of the
Constitution. Long delay (e.g. 17 years) may be a valid basis for not
making compassionate appointment.
75 Budhi Sagar Dubey v . Dt. Inspector of Schools, (1993) I LLJ 798 (All).
Chapter VI
For the past more than four decades, Bank managements had been
considering compassionate ground appointments of the dependents /
132
1 1994 (4) SCC 138. The Honble Supreme Court, vide its judgement dated 4.5.1994
133
(iv) Compassionate appointment can only be offered in Class III & Class
IV posts.
Obviously, this Scheme was not in conformity with the spirit and rulings
of Supreme Court judgement in Nagpal case which did allow
compassionate ground appointments based on some rules.
The IBA Model Scheme has been faithfully adopted by the Banks
during 2004 and 2005 and all compassionate appointments were banned.
Even cases involving death of employees while on duty were not
considered. It appeared as though the Bank managements were waiting for
an opportunity to stop compassionate appointments.
Even past cases prior to this Model Scheme and which were duly
processed and approved by the managements including the Board of
Directors and were in the process of issuing appointment orders were
stopped. In a glaring example, a widow appointed by the Bank on
compassionate ground after due approval of the Board and who joined the
Bank was terminated on the plea that the approval was given before the
Model Scheme and date of joining was after the Model Scheme. .
(d) Ex-gratia Scheme’s benefit did not benefit majority of the families
of deceased employees. Rather, their cases were mostly declined.
The IBA did not come forward to discuss the issue stating that
compassionate appointment is not a service condition or part of any
Bipartite Settlement.
While the U.K. Nagpal case of the Supreme Court pertain to 1994,
subsequently in the year 2000, the same Supreme Court in a landmark
judgement in the case of Balbir Kaur vs SAIL Ltd.2 has elaborately held
that compassionate appointments can be given. The salient features of the
judgement are as under:
In this judgement the Supreme Court has also relied on the fact that
already there was a compassionate appointment scheme and that cannot be
taken away. In the banking sector also right from 1978 as per Government
guidelines, in every Bank schemes were worked out for extending
compassionate appointments. Subsequently, based on U.K. Nagpal case all
the banks have been keeping the judgement in mind while extending
compassionate appointments. Hence, total denial of compassionate
appointments is unjustified, unfair and is also beyond the judgement of the
Supreme Court.
The Supreme Court in its judgement dated April 8, 1993 in the case
of Auditor General of India and others v. G Ananta Rajeswara Rao3 has
held that appointment on grounds of descent clearly violates Articles 16 (2)
of the Constitution; but if the appointment is confined to the son or
daughter or widow of the Government servant who died in harness and
who needs immediate appointment on grounds of immediate need of
assistance in the event of there being no other earning member in the
family to supplement the loss of income from the bread winner to relieve
the economic distress of the members of the family, it is unexceptionable.
Thus, Supreme Court has not banned or prohibited compassionate
appointments.
The Supreme Court has held in its judgement in the case of State of
Haryana and others v. Rani Devi and others6 on July 15, 1996 that if the
scheme regarding appointment on compassionate ground is extended to all
sorts of casual, ad-hoc employees including those who are working as
Apprentices, then such scheme cannot be justified on Constitutional
grounds.
The brief facts of this appeal are that the one B.P. Tripathi the father
of the first respondent was working in the State Bank of India from
27.12.1969 and he died while in service on 19.1.1998 after completing
more than 28 years of service. At that time he was working as Assistant
Manager. The respondent No.1 who is his son applied for a job on
compassionate basis and his application was turned down by the Bank
which led to the writ petition. The writ petition was allowed by the learned
Single Judge and the appeal of the Bank there from was dismissed.
for appellants that earlier in the year 1979 there was a different scheme
which was prevalent in the matter of compassionate appointment, and
amongst others there was a provision for an interview under clause 7.5(f)
of the Hand Book on Staff Matters. wherein it was laid down that the
object of compassionate appointment is meant to enable the bereaved
family of the deceased employee to face the sudden financial crisis and not
to provide employment as such. This led the Bank to frame another policy
in the year 1998. This judgment is referred in the new policy and it is
provided therein as an objective that when the Bank is satisfied that the
financial condition of the family is such that it requires employment that
compassionate appointment will be offered.8
This was apart from the family pension of Rs.4208+Admissible D.A. The
Bank, therefore, took the view that the circumstances do not warrant the
compassionate appointment for the respondent which was applied for.
As stated earlier, the deceased left behind a large family. The fact
however, remains that by now 15 years have gone since then. Besides the
Bank has made appropriate financial provision at par with similar
arrangement that was noted by this Court in the case of M.T. Latheesh
(supra). Therefore it is not possible for us to say that the Court could have
directed the Bank to consider compassionate appointment. In the
circumstances, the appeal is allowed. The judgment rendered by the
learned Single Judge as well as by the Division Bench is set aside. The writ
petition No.5045 of 1999 filed by the respondent shall stand dismissed.
Although the apex court allowing this appeal, and observed that looking
at the difficulties of the deceased family, and that the respondent was
required to go through the litigation up to the Supreme Court, the Court
In this case the short question that arises for consideration is whether
the Memorandum of Agreement with the National Joint Committee for the
Steel Industry (for short "Memorandum of Agreement") for compassionate
appointment evolved by the Steel Authority of India Ltd. (for short
"SAIL") permits for an appointment on the death of an employee to one of
the dependents of the deceased employee if some other dependent of the
deceased employee is already in service.
The High Court appears to have taken the view that the language
used in the Memorandum of Agreement is not susceptible of that
construction and therefore even if the dependent of the deceased may be in
service that would not debar any other dependent from claiming such
compassionate appointment and would require the employer to give such
appointment. SAIL, therefore, assails the aforesaid view of the High Court.
12 Ibid.
149
(i) ……
(ii) ……….
There was also a circular of 1987 and cl. 4 of that circular provided:
Thereafter, the second respondent who was the son of the deceased
made representations that he be given employment on compassionate
ground. LIC by its letter dated 21st October 1991 turned down the
representation of the son and stated :
The Supreme Court referring to this letter observed that the son’s
request for appointment on compassionate ground did not give any reason
as to how his claim was in any way, inconsistent with the Staff Instructions
150
[No. E (NG) II/81/RC-1/251 dated 06.02.1982 & 24.05.82 and No. E (NG)
II/81/RC-1/251 dated 27.12.1983]
(iii) A clear certificate should be forthcoming from the widow that the
“near relative” will act as the bread-winner of the family.
(iv) If the family certifies at a later date that the “near relative”, who
was appointed on compassionate grounds, refuses to support the
family, the services of that employee are liable to be terminated.
(iii) The legal adoption process has been completed and has become
valid before the date of death/medical decategorisation medical
incapacitation (as the case may be) of the ex-employee.
(ii) The case should not be more than ten years old as reckoned from
the date of death.
(iii) The widow of the deceased employee should not have remarried.
(vi) The reasons for relaxing the time limit should be placed on record.
(ii) Such a person will not be confirmed in service till he acquires the
158
qualification.
(iii) He will not be eligible for promotion till such time he acquires the
qualification.
(c) However, if in any rare and exceptional case, where the circum-
stances are particularly distressing and fixation of pay at a higher
stage than that normally admissible under the Rules is considered
justified, the Railway may approach Railway Board giving full
details in the prescribed proforma for approval. In no case should
pay be fixed at any higher stage in such case without Board’s prior
approval.
TO WHOM APPLICABLE
the Central Civil Service Regulations before attaining the age of 55 years
(57 years for Group ‘D’ Government servants); or (c) is retired
on medical grounds under Rule 38 of the CCS(Pension) Rules, 1972 or the
corresponding provision in the Central Civil Service Regulations before
attaining the age of 55 years (57 years for Group ‘D’ Government
servants); or
(a) spouse; or
In its related judgment, The Madras high court has directed the
government to issue directions to the heads of departments to ensure that
compassionate appointments are done fairly. The HC bench also sought
necessary amendments in relevant government orders so that female
members of deceased government servant are not denied compassionate
appointment. The directive was made while hearing a case filed by a
married women, K Mahalakshmi, who sought compassionate appointment
after her father's death. Justice R Mahadevan who heard the case also set
aside a 2012 order of Ramanathapuram district collector denying
Mahalakshmi job. He directed the collector to give her government
employment on compassionate ground within four weeks from the receipt
of the court order. Judge said the order denying job to the woman has
thrown light upon social attitudes.
said.14
In a latest judgment of the same High Court, the Madras high court
wants to know from the Tamil Nadu government whether there is any
scheme available with the government to provide employment under
compassionate grounds for children of military personnel who die in
service. The court directed the state chief secretary and additional
government pleader P Sanjai Gandhi to inform the court by June 23, 2014
whether there is any scheme for the dependents of military personnel.
14 http://timesofindia.indiatimes.com/city/madurai/Compassionate-appointments-
should-be-fair-to-female-kin-HC/articleshow/36981131.cms
163
Justice Nagamuthu, noting that Maria Luis lost his life while in service for
the country, adjourned the matter to June 23, 2014 for further proceedings.
Chapter – VII
No Delay
other Public Sectors should be open to all eligible candidates who can
come forward to apply & 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 expect where compelling circumstances demands such as,
death of the sole bread earner & likelihood of the family suffering because
of the set back.
In Phoolwati v. Union of India,4 the Court has said that the fact that
ward was a minor at the time of death of his father is no ground unless the
scheme itself specifically envisages otherwise, to the state that as and when
such minor become a manor he can be appointed without any time
consciousness or limit.
In State Bank of India & others v. Jaspal Kaur,7 the question was
whether deceased left family in penury & without any means of livelihood.
Competent authority took the view that deceased's family was not in
penurious condition & accordingly declined compassionate appointment. It
was held that the court should not disturb the objective finding of the
competent authority specifically constituted for that purpose.
Rejecting the said plea, the court held that Article 14 could not be
extended to legalize illegal order notwithstanding that in certain stray cases
such orders had been passed earlier i.e.,
In Jagdish Prasad v. State of Bihar & others,14 the Apex Court held
that the very object of appointment of a dependant of the deceased
employee who die in harness is to relieve unexpected immediate hardship
& distress caused to the family by sudden demise of the earning member of
the family. In the instant case since the death occurred way back in 1971,
in which year the appellant was four year old, it cannot he said that he is
entitled to be appointed after he attained majority long thereafter.
The Court held that the Respondent has no right to any particular
post of his choice; he can only claim to be considered for the post. It would
ultimately be for the authority to decide.
In Jagpal v. D.I.OS., Basti & others,17 in this case, the brief facts
was petitioner appointed on promotional post the senior most class IV
employee, duly qualified and eligible claimed appointment on the post of
Assistant clerk, a promotional post – instead of deciding the claim of the
petitioner fifth respondent was granted compassionate appointment on the
said post.
In Suman Kumari v. State of U.P. & Others,18 the brief facts was
father died-in-harness-subsequently petitioner's mother was given
appointment under dying –in-harness rules. There was a rule under U.P.
Recruitment of Dependants of Government Servants (Dying –in-Harness)
Rules, 1974, Section -5. The mother of the petitioner also died in harness
the petitioner, who was minor at the time of death of his mother, applied
for compassionate appointment within five years of death of his mother.
Allowing the writ of the petitioner, matter remitted back for fresh
order on the ground that all the facilities are also admissible to
compassionate appointee on her being a Government Servant. As such the
petitioner was held entitled to be given appointment under Dying-in-
Harness Rule.
The court held that, once the petitioner's mother is appointed under
the Dying in-Harness Rules, she became a Government employee & all
matters relating to the employment which would include salary, increment
promotion, leave, gratuity, pension, including appointments to her heirs
under the dying-in-harness rule would become applicable.
20 Id. at 151.
21 (1998) 5 SCC 192
176
"If marriage is not a bar in the case of son (to be employed under
Under both the government orders, the petitioner was not entitled to be
employed under compassionate grounds, the Collector’s counsel
182
contended.
was called for the written test and later on for interview. She was said to
have passed the trade test. But nonetheless she was not appointed.
Whenever she approached DGBR, she was told that her case was under
consideration.
"An affidavit has been filed on behalf of the respondents setting out all the
relevant facts and the attempts made by them to provide employment to the
petitioner. It is apparent from the said affidavit that it has not been possible
to do anything for the petitioner."
Counsel for the petitioner has told to Supreme Court that her client
is not able to provide the name of a male relation to whom employment
could be offered. In these circumstances, even this alternative is not
184
possible, and the apex Court cannot give any relief to the petitioner, this
petition is dismissed. After that the appellants filed appeal before the
Supreme Court.
Supreme Court heard counsel on both sides and gave our anxious
consideration to the Problem presented. It seems to us that the High Court
has made the order in a mechanical way and if we may say so, the order
lacks the sense of justice. Sushma Gosain made an application for
appointment as Lower Division Clerk as far back in November 1982. She
had then a right to have her case considered for appointment on
compassionate ground under the aforesaid Government Memorandum. In
1983, she passed the trade test and the interview conducted by the DGBR.
There is absolutely no reason to make her to wait till 1985 when the ban on
appointment of ladies was imposed. The denial of appointment is patently
arbitrary and cannot be supported in any view of the matter.
In the result, the Supreme Court allow the appeal and in reversal of
the order of the High Court, the Supreme Court direct respondent No. 2 to
appoint Sushma Gosain - appellant No. 1 in the post to which she has
already qualified. the Supreme Court further direct that she shall be
appointed in an appropriate place in Delhi itself.
185
Patwaris, however, the Supreme Court did not approve the verdict of the
High Court and has been held that the claim for compassionate
appointment was based on the ground that the claimant was a dependant of
a deceased employee, even though strictly this claim cannot be upheld on
the touchstone of the Articles 14 and 16 of the Constitution, but the
Supreme Court has upheld this claim 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 and that is why, it is necessary
for the authorities to frame rules, regulations or to issue such administrative
order which can stand the test of Articles 14 and 16 of the Constitution,
however, the Supreme Court has construed the Government Order dated
31st October, 1985 and has held that the said order extends the benefit of
the appointment to one of the dependants of the deceased employee, but
such expression does not conceive casual or purely ad hoc employee or
apprentice. The Supreme Court has also found that the expression
'employee' in the Punjab Civil Service Rules as in force in the State of
Haryana, does not include the casual or purely ad hoc employee or
apprentice and consequently the High Court should not have directed the
appointment of the respondent widows on compassionate ground when
admittedly the respective husbands of the respondents were working as
apprentice Canal Patwaris. The Supreme Court has also pointed out if the
scheme of compassionate appointment of the State Government is
extended to all sorts of casual or ad hoc employee including those who are
working as apprentice, then such scheme cannot be justified on the
constitutional ground.
187
granted after a long lapse of reasonable period and very purpose is intended
to meet the immediate financial problem being suffered by the members of
the deceased family and such consideration cannot be kept pending for
years. Allowing the appeal of the State Electricity Board and setting aside
the order of the High Court, the Supreme Court has, however, observed
that the claimants are not precluded from making representation for
consideration of their cases giving full details of the circumstances and
economic conditions of the family.
work-force was being reduced and the incentives were offered for
voluntary retirement. In view of the above position, the Supreme Court has
held that the order of the High Court to consider the candidature of the
respondent and to give her an appointment by creating a supernumerary
post is improper. The Supreme Court has observed that when there is a ban
on recruitment and no vacancy was available, it was not proper for the
High Court to direct the authorities to give the respondent's appointment by
creating a supernumerary post.
that a person is qualified to be appointed to a post under the "kith and kin"
policy, the Tribunal should give a direction to the appropriate authority to
consider the case of the particular applicant in the light of the relevant rules
and subject to the availability of the post and that it is not open to the
Tribunal either to direct the appointment to any person to a post or direct
the authorities concerned to create a supernumerary post and then appoint a
person to such post.
A policy has been framed by the State of Bihar to appoint all the
candidates seeking appointment on the compassionate ground to appoint
them in Class IV posts irrespective of their qualifications and twelve posts
have been made available in Class III as reserved for appointment by
promotion from the Class IV candidates who are entitled thereto as per the
rules. But several dependants of the deceased employee challenged such
policy decision and moved the High Court under Article 226 of the
Constitution forwarding the claim to give them appointment to Class III
posts as they had the requisite qualifications for the same. The High Court
passed an order directing them to be appointed in Class III posts. The State
Government has moved the Supreme Court in appeal by special leave. The
Supreme Court has set aside the order of the High Court. It is held that
there is no right vested in the candidates for particular appointment on
compassionate ground, that the State had taken a policy decision to appoint
appoint the respondent to the post of Inspector within three months when
direct recruitment is not available. The Supreme Court has held that the
High Court can only direct consideration of the writ petitioner's claim to
compassionate appointment in accordance with the rules and cannot itself
direct the appointment, more so, when the post in question was exclusively
a promotional one.
The Full Bench of the Allahabad High Court in the case of Pawan
Kumar Yadav v. State of U.P.,46 was called upon to solve this vexed issue.
The main problem arose due to the definition of ‘Government servant’
provided in the U.P. Recruitment of Dependants of Government Servant
(Dying in Harness) Rules, 1974 promulgated under Article 309 of the
Constitution of India, 1950, as follows:
The Supreme Court has ruled that a candidate must satisfy minimum
eligibility criteria even for compassionate employment, thus, denying a
"A person who does not possess the requisite qualification cannot
even apply for recruitment for the reason that his appointment would be
contrary to the statutory rules and would, therefore, be void in law," said a
bench of Justices B S Chauhan and F M I Kalifulla while allowing an
appeal by Gujarat government.
But the Gujarat High Court asked the police department to consider
Tiwari's appointment on compassionate grounds. The state appealed
against the order in the SC. The bench of Justices Chauhan and Kalifulla
said, "Compassionate appointment cannot be claimed as a matter of right.
It is simply not another method of recruitment. A claim to be appointed on
such a ground has to be considered in accordance with the rules,
regulations or administrative instructions governing the subject, taking into
consideration the financial condition of the family of the deceased.
Singh's father, who was working as a Class III employee with the
Bank, had died on April 19, 2006 while in harness. Singh had applied for
compassionate appointment on May 12, 2006. The bench set aside the
judgments of the High Court, saying, "The reasoning given by the single
judge as well as by the division bench is not sustainable in the eyes of law."
It also said that "an ameliorating relief should not be taken as opening an
alternative mode of recruitment to public employment". The bench said
compassionate employment cannot be claimed as a "matter of right, as it is
not a vested right". It also said that every appointment to public office must
be made by strictly adhering to the mandatory requirements of Articles 14
and 16 of the Constitution. "An exception by providing employment on
compassionate grounds has been carved out in order to remove the
financial constraints on the bereaved family, which has lost its bread
earner," the bench said.
This contention was rejected by the High Court which said the cause
of action, i.e. death of the employee, had arisen prior to the commencement
of the new scheme and, therefore, the case was to be considered as per the
then existing scheme which provided for compassionate appointment and
not for grant of ex-gratia payment. The apex bench also said that Singh
may apply for consideration of his case under the new scheme and the
Bank should consider his case in accordance with the rules of the scheme
within a period of three months from the date of receiving application.
occurring in the family of such employee who has served the State while in
service.
"In such case 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 instruction taking
into considerations the financial condition of the family of the
deceased."
(1) Umesh Kr. Nagpal v. State of Haryana,59 (2) G.M. (D& PB) v.
Kunti Tiwary,60 (3) Punjab National Bank v. Ashwini Kr. Taneja,61
filed, the rejection cannot be supported before the higher authority or in the
court on the ground that application was non est as the same was not in
prescribed form.
In the same breath, the Supreme Court has held that claim for
compassionate appointment have to be within time prescribed irrespective
of availability or non availability of vacancy because appointment is to
made irrespective of availability or not of vacancy. 72
72 ibid, para 15
73 ibid, para 11, 12
74 Hindustan Times, New Delhi Dated 17.12.2012.
211
into consideration the fact of the death of the employee while in service,
leaving his family without any means of livelihood,” the bench said.
However, the top court allowed the Centre’s appeal, saying the
claim for appointment on compassionate grounds was based on the
premises that the applicant is dependent on the deceased employee.
“In such cases the object is to enable the family to get over
sudden financial crisis and not to confer a status on the
212
The court said the rules stipulated that to get the job on
compassionate grounds, the total income of the family from all sources
including terminal benefits after death, excluding GPF, should not
exceed Rs. 3 lakh.
In this case, the total income of the family stood at R4.40 lakh,
besides an additional family pension of Rs.3,100 every month, received by
deceased’s widow Rashmi Gautam for a period of seven years and
another Rs. 1,860 a month as admissible relief on pension.
“In view of the fact that, in the instant case the terminal
benefits have been received by the family exceeding Rs. 3
lakhs, respondent Shashank is not eligible to be considered
for the Group ‘C’ post,” the court said.75
In several other cases the Supreme Court has decried the practice of
High Courts and/or Administrative Tribunal whereby they direct for
appointment of claimant by passing the lack in qualification and/or long
delay.77 It is also necessary that there must exist some post.78
82 Phoolwati v. Union of India, (1991) Supp (2) SCC 689 and Union of India v.
Bhagwan Singh, (1995) 6 SCC 476.
83 Mohan Mahato v. Central Coal Field Ltd., AIR 2008 SC 39.
84 AIR 2003 SC 3797.
216
Belated appointments
In several cases the application by claimant has been filed after long
delays, in several cases, the claimant are minors and thus they cannot apply
till they achieve majority because before that they cannot be appointed.
85. AIR 2011 SC 1880; see also Eastern Coal Fields v. Anil, AIR 2009 SC 2534
217
services and posts until provision in that behalf is made by or under an Act
of the appropriate legislature under that Article. The rules made in exercise
of this power have the effect subject to the provisions of any such act
passed by the appropriate legislature.
the fact that unless some source of livelihood is provided the family would
not be able to make both ends meet, provisions are made for giving
appointment to one of the dependents of the deceased who may eligible for
appointment. Thus, it is submitted that due care, has to be taken that
provision for ground of compassionate appointment which is in the nature
of exception to the general provisions does not unduly interfere with the
right of those other person who are eligible for appointment to seek
appointment against the post which would have been available.
person other than those for whose benefit the exception has been carved
out.
Further Supreme Court has shown strong objections over the way in
which different States have given relaxation under the rule. The State has
for one reason or the other compromised with the basic principles
underlying grant of public employment and has deviated from the
Constitutional norms; sometimes it widened the scope and ambit of grant
of appointment on compassionate ground to such an extent that it had to
backtrack its steps. The State's policy-decision in this regard had never
been of firm root. They took different steps at different times depending on
the whims and caprice of the concerned officers or acted on pressure of the
Employee's Union. The Supreme Court has also cautioned by saying 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. The Supreme Court further observed that
when such contentions are raised, the Constitutional philosophy of equality
behind making such a scheme is taken into consideration. Articles 14 and
16 of the Constitution of India mandate that all eligible candidates should
be considered for appointment in the posts which have fallen vacant.
Appointment on compassionate ground offered to a dependant of a
deceased employee is an exception to the said rule. It is a concession, not a
right.
The Supreme Court has to strain all its nerve to solve some tricky
issues related to compassionate appointment and the Supreme Court has
tried to make balance between the rights and compassion. Some important
issues among them are as follows:
224
SUGGESTIONS
and money cannot renew a physique frame that has been better and
shattered. Object is to, provide means to place claimant-family of an
employee Dying-in-Harness is to place the fame as far as possible in
the same position financially as it was before the death of the bread
earner.
10. The State, like ours is free to wed to 'solemn object' to serve the
society at large, purely according to the mandate under Constitution
of India. State cannot be allowed to look after 'welfare' of its own
employees and their families alone.
11. In this context one may refer to "The Uttar Pradesh Benevolent
Fund Scheme, 1997" which was floated with identical Aim, Object
and purpose as the Compassionate Appointment Rules. Members of
the scheme are provided financial assistance, subject to terms and
conditions contained in the said Rule, including grant of advance by
way of financial assistance to a member in case of permanent
disability resulting in discontinuance of service of an employee.
230
15. There is one more aspect. For illustration, there may be a family in
'Distress' when the 'bread earner' who happened to be an Employee
of the Government, etc. died in harness but here is no eligible
person/s as his dependant (say all are minor). How the Rules
contemplating Compassionate appointment shall achieve the object
and family shall remain in distress. There is need to think about it.
24. We cannot lose sight of the fact that there can be no mechanism to
ensure that a family of 'Government employee' will never be in
distress. For example, financial assistance of a family of a
Government employee, who has attained the age of superannuation
and eligible for pension, may be as bad as another employee Dying-
in-harness. There is no reason why a citizen who is similar situated
or even worst is deprived of public employment and a dependant of
an employee dying-in-harness be given appointment on preferential
basis de hors statutory Rules of regular and normal appointment.
'Compassionate Appointments' in the State have become a virtual
scam. Suitability is rarely assessed under Dying-in-Harness Rules.
25. There are hundreds of cases coming before Court on the ground of
234
It is not out of place to mention that it is also now settled that what
was 'legal' in the past, may by passage of time, in the context of changed
circumstances in future become 'illegal'.
Journals
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Indian Bar Review
Supreme Court Cases
Labour Law Journal
Labour and Industrial Cases
Journal of Indian Law Institute
Delhi Law Review
Allahabad Law Journal
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Journal of Consitutional and Parliamentary Studies
Articles
An Article posted by Vipul Kharbanda , Advocate, Allahabad
High Court, April 27, 2011 my law net.com.
Reports
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Annexure – 1
SCHEME FOR COMPASSIONATE APPOINTMENT
F.No.14014/02/2012--Estt. (D)
Government of India
Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel & Training)
North Block,
New Delhi
Dated the 16th January, 2013
OFFICE MEMORANDUM
(Virender Singh)
Under Secretary to the Government of India
Tel. No. 2309 3804
To,
All Ministries/Departments of Government of India
Copy to:
(Virenderi Singh)
Under Secretary to the Government of India
Tel. No. 2309 3804
240
1. OBJECT
The object of the Scheme is to grant appointment on compassionate
grounds to a dependent family member of a Government servant dying in harness
or who is retired on medical grounds, thereby leaving his family in penury and
without any means of livelihood, to relieve the family of the Government servant
concerned from financial destitution and to help it get over the emergency.
2. TO WHOM APPLICABLE
To a dependent family member –-
(a) spouse; or
(b) son (including adopted son); or
(c) daughter (including adopted daughter); or
(d) brother or sister in the case of unmarried Government servant or
(e) member of the Armed Forces referred to in (A) or (B) of this para, -- who
was wholly dependent on the Government servant/ member of the Armed
Forces at the time of his death in harness or retirement on medical
grounds, as the case may be.
Note III "Confirmed work-charged staff" will also be covered by the term
‘Government servant’ mentioned in Note III above.
241
5. ELIGIBILITY
(a) The family is indigent and deserves immediate assistance for relief from
financial destitution; and
(b) Applicant for compassionate appointment should be eligible and suitable
for the post in all respects under the provisions of the relevant
Recruitment Rules.
6. A. EXEMPTIONS
Compassionate appointments are exempted from observance of the
following requirements:-
(a) Recruitment procedure i.e. without the agency of the Staff Selection
Commission or the Employment Exchange.
(b) Clearance from the Surplus Cell of the Department of Personnel and
Training/Directorate General of Employment and Training.
(c) The ban orders on filling up of posts issued by the Ministry of Finance
(Department of Expenditure).
B. RELAXATIONS
(a) Upper age limit could be relaxed wherever found to be necessary. The
lower age limit should, however, in no case be relaxed below 18 years of
age.
(c) In the matter of exemption from the requirement of passing the typing test
those appointed on compassionate grounds to the post of Lower Division
Clerk will be governed by the general orders issued in this regard:-
7. DETERMINATION/AVAILABILITY OF VACANCIES
(a) Appointment on compassionate grounds should be made only on
regular basis and that too only if regular vacancies meant for that
purpose are available.
(b) Compassionate appointments can be made upto a maximum of 5%
of vacancies falling under direct recruitment quota in any Group
‘C’ post. The appointing authority may hold back upto 5% of
vacancies in the aforesaid categories to be filled by direct
recruitment through Staff Selection Commission or otherwise so
as to fill such vacancies by appointment on compassionate
grounds. A person selected for appointment on compassionate
grounds should be adjusted in the recruitment roster against the
appropriate category viz SC/ST/ OBC/General depending upon
the category to which he belongs. For example, if he belongs to
SC category he will be adjusted against the SC reservation point,
if he is ST/OBC he will be adjusted against ST/OBC point and if
he belongs to General category he will be adjusted against the
vacancy point meant for General category.
(c) While the ceiling of 5% for making compassionate appointment
against regular vacancies should not be circumvented by making
appointment of dependent family member of Government servant
on casual/daily wage/ad-hoc/contract basis against regular
vacancies, there is no bar to considering him for such appointment
if he is eligible as per the normal rules/orders governing such
appointments
(d) The ceiling of 5% of direct recruitment vacancies for making
compassionate appointment should not be exceeded by utilising
any other vacancy e.g. sports quota vacancy.
(e) The Committee constituted for considering a request for
appointment on compassionate grounds should limit its
recommendation to appointment on compassionate grounds only
in a really deserving case and only if vacancy meant for
appointment on compassionate grounds will be available within a
year in the concerned administrative Ministry/department/Office,
that too within the ceiling of 5% of vacancies falling under DR
quota in Group ‘C’ posts. (O.M.No.14014/18/2000-Estt.(D) dated
22.06.2001)
(f) Calculation of vacancies by grouping of posts for small
offices/cadres -Grouping of posts in small Offices/Cadres for the
purpose of calculation of vacancies for appointment on
compassionate grounds is allowed. Consequently, Group ‘C’
posts in which there are less than 20 direct recruitment vacancies
in a recruitment year may be grouped together and out of the total
number of vacancies 5% may be filled on compassionate grounds
subject to the condition that appointment on compassionate
244
grounds in any such post should not exceed one. For the purpose
of calculation of vacancies for compassionate appointment,
fraction of a vacancy either half or exceeding half but less than
one may be taken as one vacancy. (Para 2 and 3 of O.M. No.
14014/24/1999-Estt.(D) dated 28.12.1999)
(g) Liberalized method of calculation of vacancies for small
Ministries/Departments -The small Ministries/Departments may
apply a more liberalized method of calculation of vacancies under
5% quota for compassionate appointment. The small
Ministries/Departments, for the purpose of these instructions, are
defined as organizations where no vacancy for compassionate
appointment could be located under 5% quota for the last 3 years.
Such small Ministries/Departments may add up the total of DR
vacancies in Group ‘C’ and erstwhile Group ‘D’ posts (excluding
technical posts) arising in each year for 3 or more preceding years
and calculate 5% of vacancies with reference to the grand total of
vacancies of such years, for locating one vacancy for
compassionate appointment. This is subject to the condition that
no compassionate appointment was/has been made by the
Ministries/Departments during 3 years or number of years taken
over and above 3 years for locating one vacancy under 5%
quota.(Para 4 of O.M. No. 14014/3/2005Estt.(D) dated
09.10.2006
(h) The compassionate appointment can also be made against
technical ‘posts’ at Group ‘C’ and erstwhile Group ‘D’ level. The
5% quota of vacancies will be calculated on the basis of total DR
vacancies arising in a year in the technical posts. (Para 2 of O.M.
No. 14014/3/2005Estt(D) dated 19.01.2007.
13. PROCEDURE
(a) The proforma as in Annexure may be used by Ministries/Departments/
Offices for ascertaining necessary information and processing the cases
of compassionate appointment.
(b) The Welfare Officer in each Ministry/Department/Office should meet the
members of the family of the Government servant in question
immediately after his death to advise and assist them in getting
appointment on compassionate grounds. The applicant should be called
in person at the very first stage and advised in person about the
requirements and formalities to be completed by him.
(c) An application for appointment on compassionate grounds should be
considered in the light of the instructions issued from time to time by the
Department of Personnel and Training (Establishment Division) on the
subject by a committee of officers consisting of three officers – one
Chairman and two Members – of the rank of Deputy Secretary/ Director
in the Ministry/Department and officers of equivalent rank in the case of
attached and subordinate offices. The Welfare Officer may also be made
one of the Members/Chairman of the committee depending upon his
rank. The committee may meet during the second week of every month
to consider cases received during the previous month. The applicant may
247
16. SENIORITY
A person appointed on compassionate ground in a particular year may be
placed at the bottom of all the candidates recruited/appointed through
direct recruitment, promotion etc. in that year, irrespective of the date of
joining of the candidate on compassionate ground. (Para 4.8 of O.M. No.
No.20011/1/2008-Estt.(D) dated 11.11.2010)
In order to check its misuse, it has also been decided that this power of
termination of services for non-compliance of the condition(s) in the offer
of compassionate appointment should vest only with the Secretary in the
concerned administrative Ministry/Department not only in respect of
persons working in the Ministry/Department proper but also in respect of
Attached/Sub-ordinate offices under that Ministry/Department.(O.M. No.
14014/19/2000-Estt(D) dated 24.11. 2000).
18. GENERAL
(a) Appointments made on grounds of compassion should be done in such a
way that persons appointed to the post do have the essential educational
and technical qualifications and experience required for the post
consistent with the requirement of maintenance of efficiency of
administration.
(b) It is not the intention to restrict employment of a family member of the
deceased or medically retired (erstwhile) Group ‘D’ Government servant
to a erstwhile Group ‘D’ post only. As such, a family member of such
erstwhile Group ‘D’ Government servant can be appointed to a Group ‘C’
post for which he/she is educationally qualified, provided a vacancy in
Group ‘C’ post exists for this purpose.
(c) The Scheme of compassionate appointments was conceived as far back as
1958. Since then a number of welfare measures have been introduced by
the Government which have made a significant difference in the financial
position of the families of the Government servants dying in
harness/retired on medical grounds. An application for compassionate
appointment should, however, not be rejected merely on the ground that
the family of the Government servant has received the benefits under the
various welfare schemes. While considering a request for appointment on
compassionate ground a balanced and objective assessment of the
financial condition of the family has to be made taking into account its
assets and liabilities (including the benefits received under the various
welfare schemes mentioned above) and all other relevant factors such as
the presence of an earning member, size of the family, ages of the
children and the essential needs of the family, etc.
(d) Compassionate appointment should not be denied or delayed merely on
the ground that there is reorganisation in the Ministry/Department/
Office. It should be made available to the person concerned if there is a
vacancy meant for compassionate appointment and he or she is found
eligible and suitable under the scheme.
249
Name:-________________
Address:-_______________
Shri/Smt/Kum_________________________________________________is known
to and the facts mentioned by him/her are correct. Date: Signature of permanent
Government servant.
Name: ______________________
Address:- ____________________
______________________
I have verified that the facts mentioned above by the candidate are correct.
Name:______________________
Address:-____________________
______________________
254
PART-B
(TO BE FILLED IN BY OFFICE IN WHICH EMPLOYMENT IS PROPOSED)
1. Short title and commencement – (1) These rules may be called the Uttar
Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules,
1974.
(2) They shall be deemed to have come into force with effect from December
21, 1973.
2. Definitions – In these rules, unless the context otherwise requires :
(a) "Government servant" means a Government servant employed in connection whit
he affairs of Uttar Pradesh, who –
(i) was permanent in such employment; or
(ii) though temporary had been regularly appointed in such employment;
or
(iii) though not regularly appointed, had put in three years continuous
service in regular vacancy in such employment.
Explanation – "Regularly appointed" means appointed in accordance with the
procedure laid down for recruitment to the post or services, as the case may be :
(b) "deceased Government servant" means a Government servant who dies while
in service;
(c) "family" shall include the following relations of the deceased Government
servant:
(i) Wife or husband;
(ii) Sons ;
(iii) Unmarried and widowed daughters;
(iv) If the deceased was unmarried Government servant, brother,
unmarried sister and widowed mother dependant on the deceased
Government servant);
“[Provided that if a person belonging to any of the ad-hoc
mentioned relations of the deceased Government Servant is not
256
Torture in Police Custody Results in the Death of Kartik Mehto: Bihar (Case No.
8903/95-96)
The Commission received a complaint from Smt. Munuwa Devi alleging that
her husband, Kartik Mehto, had been illegally detained by the police on 27 September
1995, brutally tortured and that this led to his death in police custody on 4 October
1995.
In response to a notice from the Commission, the report of the police admitted
to the death of the Kartik Mehto in police custody. It added that a case had been
registered against a Sub Inspector under section 302 IPC. The Sub Inspector had
surrendered before a Court and was being dealt with in accordance with law.
In the light of the report received, the Commission directed the Government of
Bihar to pay immediate interim compensation of Rs. 2 lakhs to the family of the
deceased and to recover this amount from the accused. The Commission also
recommended that employment be given to one of the members of the family of the
deceased, in accordance with his/her educational qualifications. Of the total amount of
the compensation awarded, the Commission directed that 50 per cent be kept in a
fixed deposit in the name of the widow of the deceased, who may be allowed to draw
on the interest every quarter.
In this case the Commission had, by its order dated 28 January 2000 directed
the State of Bihar to pay a compensation of Rs.2 lakhs to the family of the deceased
and employment to one of the members of the family.
In compliance, the State Government of Bihar issued a sanction dated 10 June
2000 in respect of the payment of Rs.2 lakhs, subject to its recovery from the
delinquent public servant. As regards the second recommendation of the Commission,
it has stated that employment will be considered in accordance with the guidelines
issued by the State Government for making appointments on compassionate grounds.
The final action taken report is awaited despite reminders.
Alleged custodial death of Shri Shanskhem Kharsaiot followed by death of two
persons in police firing in Meghalaya (Year 1993-94)
The Commission took notice of an item broadcast over A.I.R. on 5 November
1993 that two persons had died as a result of police firing on a violent crowd gathered
outside Sohra Police Station in Cherrapunjee in Meghalaya State.. It was reported that
people had gathered outside the Police Station to protest against the alleged custodial
death of Shri Shamskhem Kharsaiot. The Commission immediately called for a report
from the Chief Secretary, Meghalaya. On 19 November 1993, the State Government
sent an interim report stating that in regard to the incident of alleged custodial death,
Magisterial Inquiry had been ordered, and that in regard to the incident of police
firing, a retired High Court Judge was being requested to investigate the matter. It was
260
further reported that the next of kin of the deceased had been given Rs. 25000/- to
meet funeral expenses etc.
Upon perusing the interim report, the Commission called for a further report
on the action taken and the State Government sent such a report on 15 January 1994..
With regard to the custodial death, it stated that the Magisterial Inquiry had prima
facie indicated the Police Officer concerned. Criminal cases had been registered
against him. It was further reported that ex-gratia assistance of Rs. 50000/- had been
given to the next kin of the deceased and a near relative of the deceased had been
given an appointment in Government on compassionate grounds.
With regard to the deaths resulting from the police firing, it was reported that
an inquiry by a retired High Court Judge was continuing.
On perusing the report, the Commission on 17 January 1994, observed that in
view of the several steps taken by the State Government, there appeared to be no
necessity of the Commission pursuing the matter any further. The Commission placed
on record its appreciation on the prompt responses by the State Government
Custodial death of Atal Bihari Mishra - Uttar Pradesh Year 1997-98
A reference to the case was made in the annual report of the Commission for
the year 1996-97. It was mentioned that a number of police personnel were charge-
sheeted in this case, consequent to intervention by the Commission.
Thereafter, Shri Umesh Chander Mishra, the elder brother of the deceased
made a supplementary prayer that as the investigations had established that Atal
Bihari Mishra was killed by the police, the Commission should award Rs. 25 lakhs by
way of compensation. He also sought protection for the family and employment to
one of its members on compassionate grounds.
As there was prima facie material to hold that Atal Bihari Mishra died as a
result of police violence, the Commission issued notice to the Chief Secretary,
Government of Uttar Pradesh, to show cause why a reasonable interim-compensation
should not be awarded to the members of the family of the deceased. As the State
Government did not avail itself of the opportunity to show cause, the Commission
proceeded on the assumption that the State of Uttar Pradesh had no cause to show
against the claim of interim compensation by the members of the deceased family;
and recommended that:
i) the State of Uttar Pradesh do pay to Shri Suresh Mishra, resident of Village
Prem Raja, Police Station Bhimpura, District Balia, the father of the deceased, a sum
of Rs. 5,00,000/- by way of interim compensation, to be paid within one month from
the date of order, subject to the private law rights of the dependents to bring an
appropriate legal action for damages in which event the sum awarded by way of
interim compensation was adjustable;
ii) appropriate protection to the family of Shri Suresh Mishra be accorded
depending on the security and threat perceptions of the situation having regard to the
fact that the family could legitimately apprehend retaliatory attitudes from the police
officers and personnel against whom the accusation has been made; and
iii) the Government of Uttar Pradesh should sympathetically consider the
prayer of the family for an appointment at an appropriate level, having regard to the
261
interim relief’ could only be at the end of the day, after the guilt of the
offending public servant is established in a criminal trial on the
standards of criminal evidence would nullify the great humanism the
Statute seeks to enshrine. The Commission only hopes that the
Government of Uttar Pradesh is an ally of those values and will
respond in a way which accords with the message and philosophy of
the law and its obligation as a Welfare State."
"The Chief Secretary of Uttar Pradesh shall accordingly be
written to by the Secretary-General enclosing a copy of these
proceedings and informing the Chief Secretary that Government of
Uttar Pradesh cannot seek to avoid the Commission’s
recommendations in this case on the ground that establishment of
culpability of a public-servant is a condition precedent to the arising of
the liability under Section 18(3). The State Government be urged that
its persistence in such untenable stand would expose it to avoidable
legal hassles and litigation."
The Commission considered the matter on 1.8.98 when it had ordered as
under:-
"The State Govt. of UP has sent a report stating that a sum of Rs. 5
lakhs as recommended by the Commission has already been sanctioned
in favour of Shri Suresh Mishra father of Shri Atal Bihari Mishra.
However, Govt. has expressed its inability to provide employment to a
family member of the deceased on compassionate grounds on the
premise that under the existing rules, compassionate appointment is
permissible only to dependents of Government servants dying in
harness. The report of the State Government is taken on record.
Commission hopes that as a special case the State Government would
yet sympathetically consider the question of appointment of a family
member of the deceased in Government employment on compassionate
grounds in view of the fact that the family of the victim has been
devastated by the high handed criminal acts of public servants. With
these observations the case is closed."
Annexure – 4
March 3, 2008
To
The Chairman,
Indian Banks Association,
WTC Buildings,
6th Floor, Centre I Building,
Cuffe Parade, Mumbai 400 005
Dear Sir,
This has reference to the minutes of understandings dated 25.2.2008, signed between
IBA and UFBU based on which our strike action and other agitational programmes
were not proceeded with.
Accordingly, further to the discussions held on this issue between us on 18.3.2008 &
25.3.2008, we submit herein our detailed views and suggestions.
For the past more than four decades, Bank managements had been considering
compassionate ground appointments of the dependents / spouse upon the unfortunate
death of an employee while in service. In 1978, the Government of India, vide
Banking Division, Ministry of Finance guidelines dated 12.9.1978 had given the
scheme under which compassionate appointments should be made in the Banks.
265
Under Section 13 (a) of Banking Service Commission Act 1975, as well as Banking
Service Commission Act of 1984, it was clearly provided that while the commission
was given the power to conduct examinations for appointments and filling up of
vacancies in clerical and officer cadre, appointments under compassionate grounds
can be made under a scheme framed by the Bank as per Government guidelines and
such appointments could be made without consulting the Commission.
Thus, it was clearly envisaged that notwithstanding the normal recruitment rules,
Compassionate appointments can be considered under a scheme by the Banks which
has not been considered as conflicting with Article 14 and 16 of the constitution.
Based on these views views, the Government suggested to IBA that IBA may suggest
on alternative scheme of ex-gratia payment in lieu of compassionate appointments.
Accordingly, IBA submitted the proposal to the Government.
1. Earmarking a large portion of the recruitment in clerical and Substaff cadres for
compassionate appointments will affect the quality of manpower in Banks.
2. Help to the family of the deceased can be achieved by extending financial
assistance.
3. Financial compensation scheme to be implemented by working out a uniform basis.
This Government’s advice was said to be in pursuance of Nagpal case. But Supreme
Court did not ban or prohibit compassionate appointments in their said judgement
and only wanted a proper rule or scheme to be worked out based on the financial
condition of the family.
267
Obviously, this Scheme was not in conformity with the spirit and rulings of Supreme
Court judgement in Nagpal case which did allow compassionate ground appointments
based on some rules.
Eligibility
1. Employees dying due to injury sustained while performing official duty.
2. Employees dying due to dacoity, robbery, terrorist attack.
3. Employees dying in harness (other than under (a) and (b)
4. Employees seeking premature retirement due to incapacitation before the age of
55.
Eligible Amount
Ex-Gratia compensation will be granted if the monthly income of the family FROM
ALL SOURCES is less than 60% of the last drawn salary of the deceased employee.
(2) Liabilities
Loans taken from Bank and/or other financial
Institutions with the prior approval of the Bank ----------------
If the total monthly income of the family arrived at as above is less than 60% of the
last drawn gross salary (net of taxes) of the employee, ex-gratia amount as under will
be payable.
(b) In case the monthly income of the family as calculated above is less than 60%
of the last drawn gross salary (net of taxes) of the employee, an ex-gratia
amount calculated at 60% of the last drawn gross salary (net of taxes) for each
month of remaining service of the employees (i.e. up to the age of
superannuation in terms of extant service rules/conditions) at
the time of his death / incapacitation subject to the cadre-wise ceiling of “Maximum
Amount” mentioned under (i) above, will be payable.
(c) In case of death of an employee performing official duty within or outside the
office premises (excluding travel from residence to place of work and back)
due to dacoity / robbery / terrorist attack, the family is also eligible to receive,
additionally, the one-time monetary compensation in terms of extant
Government guidelines depending on the cadre of the employee.
The IBA Model Scheme has been faithfully adopted by the Banks during 2004 and
2005 and all compassionate appointments were banned. Even cases involving death of
employees while on duty were not considered. It appeared as though the Bank
managements were waiting for an opportunity to stop compassionate appointments.
269
Even past cases prior to this Model Scheme and which were duly processed and
approved by the managements including the Board of Directors and were in the
process of issuing appointment orders were stopped. In a glaring example, a widow
appointed by the Bank on compassionate ground after due approval of the Board and
who joined the Bank was terminated on the plea that the approval was given before
the Model Scheme and date of joining was after the Model Scheme.
(a) After Nagpal case, Banks were extending compassionate appointments duly
taking into account the Supreme Court judgement.
(b) Supreme Court’s observations and Judgement was / is applicable to all but in
Central Government / RBI / LIC / Railways, etc., Compassionate
appointments still continued.
(c) Ex-Gratia Scheme, the ceilings, the procedure of calculations, etc. were totally
unilateral.
(d) Ex-gratia Scheme’s benefit did not benefit majority of the families of deceased
employees. Rather, their cases were mostly declined.
(e) Nagpal judgement did not ban compassionate appointments.
In view of this, the UFBU gave a call for Strike on 9.3.2006 exclusively on this issue
and demanded reconsideration of the Scheme to provide for compassionate
appointments.
The IBA did not come forward to discuss the issue stating that compassionate
appointment is not a service condition or part of any Bipartite Settlement.
During the conciliation meeting, it was pointed out that while compassionate
appointments scheme have been in vogue in Banks for almost 4 decades, even Nagpal
Judgement of 1994 did not prohibit compassionate appointments.
UFBU further pointed out other subsequent judgments like Balbir Kaur Vs SAIL
dated 5.5.2000 and few other judgments have also opined that compassionate
appointments can be given and that Ex-gratia can never be an alternative in all cases.
He advised both IBA and UFBU to sit together and work out a mutually acceptable
scheme. Since IBA agreed to the same, the Strike was deferred.
Consequently, discussions were held on 9.5.2006 and 15.6.2006 on the issue when
our suggestions as well as improvements were discussed. IBA agreed to place our
views in their Managing Committee meeting and then forward the same to the
government for their consideration.
The IBA also referred to the Government the demand of the UFBU for compassionate
appointments to the spouse of an employee dying at a relatively young age provided
he / she has the requisite qualifications.
Though the issue was referred to the Government in August 2006, there was no
outcome from the Government. Hence, UFBU gave a call for 3 days strike on 28, 29,
30 March 2007 and Indefinite Strike from 3.5.2007, along with other demands like
Pension option, etc.
The Deputy Chief Labour Commissioner (Central), Mumbai and Chief Labour
Commissioner (Central), Delhi held conciliation meeting and IBA did not come
forward to resolve the issue.
The UFBU met the Hon’ble Prime Minister Dr.Manmohan Singh on 19.3.2007 and
submitted a Memorandum reiterating UFBU’s suggestions to IBA as under:
On 21.3.2007, UFBU met the Hon’ble Finance Minister and submitted all our Strike
demands. He suggested that he would advice IBA to hold discussions with UFBU on
these demands to find a solution.
MOU WITH IBA ON 21.3.2007
In this background of our meeting with Prime Minister and Finance Minister, IBA
held a round of discussions with UFBU and consequently the Strike was deferred with
the signing of an MoU.
The Government did not agree for any other suggestion of the UFBU or IBA
including the recommendations of IBA on modified Ex-gratia formula.
Based on the above guidelines of the Government, IBA vide their circular No.1549
dt.19.7.2007 advised all Public Sector Banks to adopt the modified scheme
incorporating the above guidelines of Government.
Accordingly, the Banks have adopted this revised Scheme.
Since the above modifications were again unilateral and did not meet with our
demands, the UFBU wrote a letter to the IBA Chairman on 2.8.2007 as under:
There is virtually no employee within the age of 30 years and hence in effect the
scheme would not apply to any of the present employees or officers. Further there is
no change in the financial compensation scheme which is in total disregard to the
bilateral discussions held between IBA & UFBU on the advice of the Chief Labour
Commissioner. Hence, on this issue also, we appear to be back in square one. ”
Since there was no response from the IBA or the Government, the UFBU from its
meeting held on 22.8.2007 gave a call for an All India Strike on 12.9.2007 Arising out
of this Strike Notice, once again the Chief Labour Commissioner held conciliation
meeting on 3.9.2007 and 10.9.2007. During this discussion IBA agreed to the advise
of the CLC for holding discussions with the UFBU within a fortnight to find amicable
solution based on the MoU dt.21.3.2007. Hence, the Strike was deferred.
Even though one round of discussions took place with the IBA on 3.10.2007 on the
issue of Pension Option, the IBA did not honour its commitments to hold further
discussions on the various demands including on Compassionate appointments on the
plea that compassionate appointments are based on Government guidelines and IBA
cannot do anything on its own. Hence, the issue remains unresolved.
273
Since the IBA or the Government did not come forward to resolve the various issues
contained in the MoU dt.21.3.2007 the UFBU gave a call for strike on 25.1.2008. In
the conciliation meeting held on 23.1.2008, the IBA regretted their inability to make
any improvements in the Compassionate Appointment scheme since their suggestions
have not been accepted by the Government. In view of this and other issues also
remaining unresolved the UFBU observed one day protest Strike on 25.1.2008.
UFBU’S CALL FOR TWO DAYS STRIKE ON 25. 2. 2008 & 26. 2. 2008
In view of the negative approach of the IBA and Government, the UFBU gave a call
for 2 days Strike on 25 / 26.2.2008.
We informed him that even deaths during the performance of duties are not fully
included in the revised scheme except cases relating to dacoity / robbery.
We also informed him that the understanding between IBA and UFBU on Ex Gratia
has been declined in toto by the Government and virtually neither compassionate
appointments are given nor Ex Gratia is paid.
We also pointed out that the number of cases of death during service is very- very
negligible. We further pointed out that the Banks would be needing additional
manpower, compassionate appointments can be given in the Banking sector also if the
dependents possess necessary qualifications.
The FM assured to advise the IBA to receive the suggestions of the UFBU in this
regard whereafter the matter could be reviewed by the Government.
MOU WITH IBA ON 25.2.2008
In this background, discussions were held before the CLC ( C ) and later with the IBA
and an MoU was signed between UFBU and IBA on 25.2.2008 on various issues
including on compassionate appointments which reads as under:
274
Based on the MoU as above, discussions were held with UFBU on 18.3.2008 and
25.3.2008 wherein the UFBU explained its suggestions for improvements and
modifications in the compassionate appointment scheme. It was agreed that UFBU
would submit its detailed views and suggestions to the IBA. Hence this
memorandum containing our views and suggestions.
Before recording the suggestions, the UFBU wishes to draw the attention of the
IBA/Government to the following:
Para 4.1 : After going through the judgements cited above, the Committee has an
inference that Supreme Court also upholds the relevance of the policy in the PSUs and
Government Departments. The Committee acknowledges that the court in its
judgements tried to ensure implementation of the policy in a logical manner. The
Committee is however constrained to note that many of the PSUs / Banks construed
the judgements otherwise and thereby restricted the implementation of the policy of
appointment on compassionate ground. While interacting with PSUs and Banks, the
Committee came across such arguments. The Committee feels that the judgements
particularly the Nagpal case was very often misquoted and misrepresented as if the
Supreme Court banned the appointment on compassionate ground.
Para 6.5 – The Committee strongly feels that the Judgement given / delivered by the
Hon’ble Supreme Court in Shri Umesh Kumar Nagpal vs State of Haryana and others
does not totally ban employment on compassionate grounds, rather it has been
misquoted / misinterpreted / misunderstood that the Hon’ble Supreme Court has
totally banned the compassionate employment. The Committee feels that the
Government should not put a blanket ban on providing compassionate appointment to
the family members of the deceased employees in the public sector banks, rather
should find ways and means for giving employment under compassionate grounds in
275
Para 9.5 – The Committee feels that in a welfare state like ours it is obligatory on the
part of the government to provide the social security net to the employees and
appointments on compassionate ground is one such measure. It gives a sense of being
part and parcel of the organisation amongst its employees who feels that in case of
falling victim at the hands of cruel destiny the organisation would take care of their
families. The umbrella of protection certainly boosts the morale of not only the
employees but also their families. The Committee therefore recommends that the
policy of compassionate appointments should continue in the government, its PSUs,
organisations, Trusts, etc. as a measure of Social Security Net and also consider
offering the package on the lines of Chennai Petroleum Corporation Ltd. so that the
family of the deceased employees survive the sudden void and crisis created by the
cruel destiny. (Full Report given as Annexure)
124.37 Our recommendations – We have considered the suggestions and taken note of
the fact that the scheme of compassionate appointments envisages appointment of
applicants only if they are eligible and suitable for a post in all respects under the
276
provisions of the relevant recruitment rules, and such applicants are given relaxation
only in recruitment procedure and age limit. The Scheme itself takes adequate care
that appointments made are consistent with the requirements of maintenance of
efficiency of administration. We are, therefore, of the view that the existing practice
of making appointments on compassionate grounds in deserving cases needs to be
continued. As regards removal of ceiling on the percentage of posts which can be
filled by compassionate appointments, we are of the view that removal of the ceiling
would reduce the number of posts available to candidates coming through direct
recruitment which is not desirable. The existing ceiling of 5% in respect
of compassionate appointments, therefore, needs to be maintained and followed
strictly.
124.39 Our recommendations – The scope of the scheme providing for appointment
on compassionate grounds has already been narrowed by deleting near relatives from
the scheme by the Government. In view of the fact that existing provisions in the
scheme are in conformity with the observations of the Supreme Court, inclusion of
other relatives within the scope of the scheme or exclusion of son/daughter therefrom
would not be appropriate.
124.42 Time-limit for belated requests – Suggestions have been made that the time
lag in compassionate appointments should be reduced and the appointment made
within a reasonable period of the demise of the Government servant and not
postponed for unduly long periods on the ground that dependent children have not
attained majority.
received normally within a period of one year from the date of demise of the
Government servant and delay does not take place on any other ground. The scheme
of compassionate appointments having largely been related to the need for immediate
assistance to the family on the passing away of the Government servant in harness, we
are of the view that compassionate appointments should be made within a reasonable
period of time after the demise of the Government servant and not postponed for
unduly longer periods. The very fact that the family has been able to manage
somehow all these years should normally be adequate proof to show that the family
had some dependable means of subsistence. We have also taken note of the present
safeguard that belated requests can be considered at the level of Secretary alone,
which we feel is salutary in nature. We are of the view that appointments on
compassionate grounds shall be made at the most within five years of the date of
demise, and even such belated appointments should made only in the case of minor
children who could not have been appointed because of their age being less than the
minimum age of recruitment to Government service.
Provided
Maximum: Total emoluments for remaining period of service
Minimum: Not less than notional value of pension commutation
4. Waiver of Loans
Outstanding of housing loan and other loans taken from the Bank by the deceased
employee will be waived if the spouses do not opt for Compassionate Appointment
Maximum Waiver
a) Class IV Rs.2.50 Lacs
b) Class III Rs.3.00 Lacs
c) Officer Grade A, B, C Rs.3.50 Lacs
d) Officer Grade D Rs.4.00 Lacs
278
Note: If the deceased employee had not availed Housing Loan, additional 6 months
emoluments will be paid to the spouse / dependent.
Even after the Supreme Court judgement in U.K. Nagpal case, various state
Governments have been extending Compassionate Appointments
Tamilnadu (12.3.2007)
1. Conditions of Supreme Court to be strictly followed.
2. Dependent will be given the job.
3. Appointments will be in Class III & Class IV only
4. Appointing Authority will examine the financial condition of the family.
Tahsildar certificate for indigency will be obtained.
5. Family Pension of the deceased employee and immovable property like living
house of the employee need not be taken for calculating the income of the
family.
6. Application should be received within 3 years
7. Appointment will be given out against actual vacancy and not in
supernumerary post.
8. Since there was a ban on recruitment from 29.11.2001 to 21.2.2006, family of
employees who died during this period can now apply within 3 months.
MAHARASHTRA:
Recently, there have been reports that the Government of Maharashtra has decided to
release 19,000 cases of compassionate ground appointments pending with them since
1997 since the Government is going to fill up the various unfilled vacancies.
While Compassionate Appointment are banned in Public Sector Banks, the same is
continued in Public Sector Companies.
For example, it is learnt that Compassionate Appointments are still given in GAIL,
STC, Container Corporation of India, Bharat Dynamics, Neyveli Lignite Corporation,
Cochin Port Trust, Bharat Petroleum, Chennai Port Trust, etc.
Minimum Maximum
Sub-staff 2.00 Lacs 6.00 Lacs
Clerical 3.00 Lacs 7.00 Lacs
Officers 4.00 Lacs 8.00 Lacs
Bank of India
In the Private Sector Banks like Karnataka Bank, ING Vysya Bank, Lakshmi Vilas
Bank, Federal Bank, etc, the managements continue to extend Compassionate Ground
appointments upon the death of employees while in service. There are even
agreements to this effect which continue even today.
281
18. It is also a fact that bank employees being middle-class employees resort to
loans and borrowings to make both ends meet. These loans are not only from
the Banks but sometimes from other recognized sources also. When an
employee suddenly dies while in services, the savings or terminal dues go to
liquidate these loans and the family is facing difficulties.
19. Further, in these days of changed economic conditions, after the death of the
bread-winner, the widow is needed to take care of the education of the
children and marriage of the daughters which sucks a substantial portion of
whatever the family gets as terminal benefits:
20. To sum up:
UFBU submits that compassionate appointments can be given in the Banks
since:
a. Supreme Court has not banned compassionate appointments.
b. Banks’ scheme on compassionate appointment is based on
Government guidelines only.
c. Compassionate grounds appointments are available in Central
Government, State Government, Public Sector, RBI, LIC, Railways,
Private Sector, etc. and denial of the same only to Banks appears to be
discriminative.
d. No. of deaths of employees in service is marginal.
e. Banks require a lot of additional staff in the coming years.
f. If prescribed qualification for normal recruitment is ensured in
compassionate appointments also, it will not create any problem
relating to quality.
g. Compassionate ground appointments may be given in the banks
without violating the guidelines of Supreme Court judgements.
UFBU’S SUGGESTIONS
From the above submissions and details provided hereinabove, it will be clear that the
present ban / restrictions on compassionate appointment is totally unjustified. Having
regard to the developments and justifications mentioned above and without prejudice
to our contentions and claims on our demand for compassionate appointments and
having regard the need for working out a mutually acceptable formula to deal with
situations arising out of unfortunate death of an employee or officer while in service,
and further having regard to the observations of the Supreme Court, we submit the
following suggestions:
d) MISSING EMPLOYEES:
Wife of an employee who has been missing and not traceable for more than 2 years to
be considered for compassionate appointment.
EX-GRATIA SCHEME:
In all other cases not covered under (a) and (g) above, ex-gratia payment should be
made to the dependent / family based on 80% of the last drawn emoluments for the
remaining years of service with a ceiling of Rs. 9 lacs for subordinate staff, Rs. 10.50
lacs for Clerical staff and Rs. 12 lacs for officer staff with suitable minimum
compensation amount.
We are sure that the Government and the Indian Banks Association will appreciate the
sensitivity of the issue involved, understand the genuineness of our demand and
having regard to the justifications, suggestions and submissions made hereinabove
and further having regard to the fact that compassionate appointment schemes are
available in Central / State Governments, Public Sector, RBI, LIC, Railway, etc. as
well as the fact that Supreme Court has not banned or prohibited such compassionate
appointments, reconsider the matter and revise the Scheme accordingly to provide for
compassionate appointments in the Banks.
Thanking you,
Yours faithfully,
C.H. VENKATACHALAM
GENERAL SECRETARY - AIBEA
and CONVENER, UFBU
G.D. NADAF
GENERAL SECRETARY - AIBOC
V.K. GUPTA
GENERAL SECRETARY – NCBE
R.J. SRIDHARAN
GENERAL SECRETARY - AIBOA
285
PRADIP BISWAS
GENERAL SECRETARY - BEFI
SUBHASH S. SAWANT
GENERAL SECRETARY – INBEF
K.K. NAIR
GENERAL SECRETARY - INBOC
ASHWANI RANA
GENERAL SECRETARY – NOBW
S.N. JOSHI
GENERAL SECRETARY - NOBO
Annexure – 5
SCHEME FOR PAYMENT OF EX-GRATIA AMOUNT
IN LIEU OF APPOINTMENT ON COMPASSIONATE GROUNDS
(REF NO. EST / 36 / 2004 -05 DT.04.10.2004.)
1. Background
A Scheme for appointment of dependents of deceased employees on compassionate
grounds to be uniformly implemented by public sector banks was advised by the
banking Division, Government of India, on 12.9.1978. Appointments could be made
against specific existing vacancies or in expectation of vacancies. Written tests
prescribed for regular recruitment to such posts were waived, in these cases. The
Government has modified / relaxed the provisions of the Scheme from time-to-time.
In May 1982, Government permitted banks to modify the Scheme so as to extend the
benefit of compassionate appointment even to the dependents of those who demit
office on medical grounds subject to certain provisions in this regard.
The Supreme Court of India in a landmark judgment concerning Shri. Umesh Kumar
Nagpal Vs State of Haryana and others (JT 1994(3) SC 525) has laid down the
following principles:
“....As a rule, appointment in the public services should be made strictly on the
basis of open invitations of applications and merit. However, to this general rule,
there are some exceptions carved out in the interest of justice and one such
exception is in favour of the dependents 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 candidate 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 of the deceased will not be able to meet
the crisis, that a job is to be offered to the eligible member of the family.”
Compassionate employment can only be offered in posts in Class III and IV.
Compassionate employment cannot be granted after a lapse of a reasonable period
which must be specified in the Rules.
A Guide to Your Duties and Rights A Guide to Your Duties and Rights - 2011
The Government has advised all the public sector banks in August 1996 to keep the
above principles in view while deciding compassionate appointments in the banks.
Notwithstanding the objective of the Scheme, over a period of time, banks have been
facing several difficulties in administering the Scheme, some of which are mentioned
here below:
287
2. Objective
In the light of the principles laid down by the Supreme Court in its judgement
concerning Shri. U.K. Nagpal Vs State of Haryana and others, it may be observed that
the Court while stating that the object is not to give a member of such family a post,
much less a post for a post held by the deceased, was laying stress on the need to
provide relief to the family of a deceased employee to tide over the sudden crisis
brought about by his / her premature death. The relief envisaged could be of a nature
which would provide the distressed family immediate succour and financial assistance
to recover from the unexpected deprivation of the income of the sole bread-winner of
the family.
Keeping this in perspective and with a view to bring about a balance between the
business objectives of banks and their social obligations towards the families of
employees dying in harness, a Scheme is being proposed for grant of ex- gratia
amount to the family of the deceased employee in lieu of appointment on
compassionate grounds.
3. For the purpose of the proposed Scheme, “employee” would mean and include
only a confirmed regular employee who was serving full time or part-time on
scale wages, at the time of death / premature retirement and does not include
any one engaged on contract / temporary / casual / part-time on consolidated
wages or any person who is paid on commission basis.
5. In the above cases, ex-gratia amount will be paid to the family of the employee
if eligible and if requested for within twelve months from the date of the death
of the employee.
“Family” for this purpose would mean and include spouse, wholly dependent
children (son, including legally adopted son/unmarried daughter including
legally adopted unmarried daughter). In case of unmarried employee, parents
who are wholly dependent on the employee will constitute “family”.
6. Ex-gratia may be granted to the family of the employee in the manner and
subject to the ceilings specified below, if the monthly income of the family from
all sources is less than 60% of the last drawn salary (net of taxes) of the
employee.
(2) Liabilities
Loans taken from bank and / or other financial
institutions with the prior approval of the bank
Sub-total (B) ________________
(4) Investments
Deposits NSCs PPF
LIC Policies
Others
Sub-total (D)_______________
(5) Details of movable property, if any, held and monthly income derived
therefrom.
(6) Details of immovable property, if any, held and monthly income therefrom.
(7) Monthly income of the family from all sources(
i) Monthly interest at the bank’s maximum term deposit
rate on the net corpus of terminal benefits (C)
(ii) Monthly income from investments (D)
(iii) Monthly income from movable and Immovable
property
(iv) Monthly income of dependent family Members
excluding major children
289
7. If the total monthly income of the family arrived at as above is less than 60% of
the last drawn gross salary (net of taxes) of the employee, ex-gratia amount as
under will be payable.
(i) The cadre wise ceiling on ex-gratia amount payable will be as follows:
(ii) In case the monthly income of the family as calculated above is less than 60%
of the last drawn gross salary (net of taxes) of the employee, an ex- gratia
amount calculated @ 60% of the last drawn gross salary (net of taxes) for each
month of remaining service of the employee (i.e. up to the age of
superannuation in terms of extant service rules / conditions) at the time of his
death / incapacitation subject to the cadre-wise ceiling of “Maximum Amount”
mentioned under (i) above, will be payable.
(iii) In case of death of an employee performing official duty within or outside the
office premises (excluding travel from residence to place of work and back)
due to dacoity / robbery / terrorist attack, the family is also eligible to receive,
additionally, the one-time monetary compensation in terms of extant
government guidelines depending on the cadre of the employee.
8. In case of an employee seeking premature retirement due to total incapacitation
for work, the ex-gratia is payable only if all the extant provisions for such
retirement are fully satisfied and the retirement has been approved by the
competent authority specified therefor.
9. While dealing with proposals for grant of ex-gratia as above, in cases where
disciplinary action has been taken / was pending against the employee dying in
harness or the deceased employee was involved in financial irregularities,
embezzlement of funds, committing frauds etc., banks will continue to abide the
guidelines issued by the Government of India requiring consideration and
decision in each case by the Board of the bank.
10. The ex-gratia amount in eligible cases will be paid within 3 months of receipt of
application, complete in all respects.
11. The ex-gratia relief under the above scheme is not an entitlement but may be
granted at the sole discretion of the Bank looking into the financial conditions of
the family and in deserving and eligible cases only.
12. The Board of the bank reserves its right to substitute, amend or vary from time-
to-time any provision of the Scheme mentioned above.
13. The new scheme approved by the board comes into effect immediately.
However, all pending applications (which are under various stages of
processing) of such of those cases where the deaths of the employees have taken
place on or before 31.03.2004 will be dealt with, in accordance with the existing
compassionate appointment norms.
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(Legal heirship certificate issued by Revenue Authorities not below the rank of
Tahsildar to be enclosed)
Place :
iv. PF
vi. PPF
vii. VCPF
viii. Deposits
ix. Gratuity
x. Compassionate Gratuity
xi. Group Insurance
xii. Accident Insurance
xiii. Income from Movable Property
xiv. Income from Immovable Property
xv. Any other Income
1. The employee was not proceeded against in any manner during his service.
2. No disciplinary proceedings were pending or were being contemplated at the time
of the death/retirement of the employee under Vigilance angle/IR angle.
3. The member has not remained on absence/leave/on loss of pay during the last one
year.
Date : Deputy Chief Officer/Chief Officer
RECOMMENDATIONS
1. The ex-gratia relief under the above Scheme is not an entitlement but may be
granted at the sole discretion of the Bank having regard to the financial
conditions of the family and in deserving and eligible cases only.
2. The Scheme will be applicable in the following cases of employees:
i. Employee dying in harness (other than due to injury while performing official
duty).
ii. Employee dying due to injury sustained while performing official duty within or
outside office premises (excluding travel from residence to place of work and
back).
iii. Employee dying while performing official duty within or outside the office
premises (excluding travel from residence to place of work and back) due to
dacoity/ robbery/terrorist attack.
iv. Employee seeking premature retirement due to incapacitation before reaching
the age of 55 years.
3. Ex-gratia amount will be paid to the family of the deceased if eligible and if
requested for within six months from the date of the death of the employee.
4. Family for this purpose would mean and include spouse, wholly dependent
children (son, including legally adopted son/unmarried daughter including
legally adopted unmarried daughter). In case of unmarried employee, parents
who are wholly dependent on the employee will constitute “family”.
5. Affidavit duly notarised as per annexure II (format enclosed) has to be
submitted by the claimant of deceased employee.
6. Death Certificate to be enclosed.
7. Proof for cause of death to be enclosed.
8. Legal Heirship Certificate from the appropriate revenue authority to be
submitted.
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1. DEATH CERTIFICATE
2. APPLICATION FORM
AFFIDAVIT
Place : 1.
Date :
(Claimant)
Government of India, vide its letter dated 19.06.2007 has made modifications to the
existing Scheme for payment of ex-gratia , by providing for Compassionate
appointment in exceptional cases where an Officer :
a) Dies while performing his official duty as result of violence, terrorism, robbery
or decoity ; OR
b) Dies within five years of his first appointment or before he/she reaches the age
of 30 years, whichever is later, leaving a dependent spouse / or minor children.
1. Applicant (the legal heir) should submit his request in the prescribed application
form only, duly filling all the columns with required details.
2. Outstanding under all the loan accounts of the deceased Officer, at the time of
death, even if the loan account/s is/are closed out of terminal benefits at the time
of applying.
3. Full particulars of NSC in the name of the deceased Officer Viz. Face value,
Maturity value, Maturity date, outstanding under NSC loan, if availed, should
be furnished.
4. Number of Bank Shared held.
5. LIC claim amount settled or to be settled to the family of the deceased out of
policy/ ies held in the name of the deceased Officer.
6. INDIVIDUAL DECLARATION LETTER FROM ALL MAJOR LEGAL
HEIRS, with regard to their present employment details.
7. Notarised Consent Letter ( IN NON-JUDICIAL STAMP PAPER) from all legal
heirs (in the case of minor legal heir/s Guardian has to sign) to appropriate the
terminal benefits of the deceased Officer towards outstanding liabilities / bank
dues , if any, Further consent to pay the dues to the bank over and above
terminal benefits, if any.
(Xerox copy is not acceptable)
8. Latest (i.e. last) Pay Slip of the deceased officer.
9. Leave encashment payment (Not LFC encashment) details paid/to be paid to the
family of the deceased Officer.
10. Receipt for House Rent paid, if any.
11. Death certificate of the deceased Officer.
12. Original Legal Heirship Certificate from the Competent Authority (NOT BELOW
THE RANKOF THASILDAR) to be submitted.
13. Affidavit in original to be submitted ( Xerox copy not acceptable)
14. Latest (last) Form 16 issued by the bank of the deceased Officer to be
submitted.
15. Salary arrears (gross arrears) received, if any, and tax recovered on arrears.
16. Permanent address of the legal heir with pin code and also telephone number
with STD code ( landline and mobile)
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17. If the spouse has opted for pension under second option, the amount remitted
for the same.
18. Respective Regional Office of the branch where the deceased Officer worked
last has to submit their clearance with CRM/SRM recommendations.
19. EXGRATIAAPPLICATION TO BE SUBMITTED WITHIN 12 MONTHS
FROM THE DATE OF DEMISE OF THE OFFICER.
No.41013/1/2013-Estt. (D)
Government of India
Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel 8v Training)
North Block,
New Delhi
Dated: the 25th March, 2013
OFFICE MEMORANDUM
The undersigned is directed to refer to para 9.3 of the 23rd Report on Government
Policy on Compassionate Ground given by Department Related Parliamentary
Standing Committee on Personnel, Public Grievances, Law and Justice, Rajya Sabha.
The Committee inter-alia recommended as under:
Sd/-
(Virender Singh)
Under Secretary to the Government of India
Annexure No. – 7
Frequently Asked Questions (FAQs) on Compassionate
Appointment
Allowance.
49 Admissibility of New Pension Yes. As allowed to a regular government
Scheme servant in the pre-revised pay scale of Rs. 4440-
7440/- without grade pay
50 Whether dependent of a Yes.
Trainee appointed on
compassionate grounds
entitled to compassionate
appointment.
Miscellaneous
51 Which administrative Welfare Officer of the concerned
authority is responsible for Ministry/Department/Office is responsible for
informing the dependents of appropriate counselling and facilitating the
deceased government process of compassionate appointment of the
employee or a medically dependent of a deceased or medically retired
retired official about the Government employee.
scheme for compassionate
appointment?
52 Whether maintenance of the Yes. A person appointed on compassionate
family of the deceased grounds under the scheme has to give an
employee is responsibility of undertaking in writing that he/she will maintain
person appointed on properly the other family members who were
compassionate ground? dependent on the Government servant/member
of the Armed Forces in question and in case it is
proved subsequently (at any time) that the
family members are being neglected or are not
being maintained properly by him/her, his/her
appointment may be terminated forthwith.
53 Once a person has been No. When a person has been appointed on
appointed on compassionate compassionate grounds to a particular post, the
ground, can be considered set of circumstances, which led to such
eligible for consideration for appointment, should be deemed to have ceased
appointment on to exist and he/she should strive in his/her
compassionate ground against career like his/her colleagues for future
another post? advancement and any request for appointment
to any higher post on considerations of
compassion should invariably be rejected.
54 Can an appointment on Appointment made on compassionate grounds
compassionate ground be cannot be transferred to any other person and
transferred from one person to any request for the same on considerations of
another person? compassion is invariably to be rejected.
55. How is the seniority of a A person appointed on compassionate ground in
person appointed on a particular recruitment year may be placed at
compassionate ground to be the bottom of all the candidates
determined? recruited/appointed through direct recruitment,
promotion etc. in that year, irrespective of the
date of joining of the candidate on
compassionate ground.
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(Mukta Goel)
Director (E.!)
Tele: 23092479