Arun Gopal v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 14[TH] DAY OF AUGUST 2023 / 23RD SRAVANA, 1945** **WP(C) NO. 5965 OF 2015** ## **PETITIONER/S:** ARUN GOPAL S/O.LATE GOPALAKRISHNA PILLAI UDC, EXGS-65617, RESIDING AT GOKULAM, PAVUMBA PO, VIA MANAPPALLY NORTH, KOLLAM DISTRICT. BY ADVS. BALAGANGADGARAN UNIKKAT R.PRADEEP KUMAR(K/000710/2017) ## **RESPONDENT/S:** |1|THE UNION OF INDIA| |---|---| ||REP. BY THE SECRETARY, MINISTRY OF DEFENCE, SENA| ||BHAVAN, NEW DELHI-110 001.| |2|THE DIRECTOR GENERAL BOARDER ROADS| ||SEEMS SADAK BHAWAN, RING ROAD, DELHI CANTT, NEW DELHI-| ||110 001.| |3|THE COMMANDANT GREF CENTRE| ||DIGHI CAMP, PUNE-15.| |4|THE OFFICER COMMANDING| ||95 RCC (GREF) C/O.56 APO.| ||BY ADV SRI.SUVIN R.MENON, CGC| THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 5965 OF 2015** **2** ## JUDGMENT 1. Petitioner is the son of late Gopalakrishna Pillai, who died in harness while performing his duties as UD Clerk on 3.6.1986 in the high altitudes in the snow-clad mountains of Himalayas. The senior officers of the department offered appointment for the petitioner on compassionate ground. At that time of the death of his father was minor. On attaining the majority with a qualification of graduation and MBA dispatched application for compassionate appointments to the respondents but the respondent did not take any action despite repeated reminders. The respondents have rejected the case of the petitioner for compassionate appointment which was assailed in W.P.(C) No.15506 of 2004. This Court vide judgment set aside those order and directed the respondent No.3 to reconsider the petitioner's claim, in accordance with law on the basis of the application filed as far as back on 12.5.1998 and well before the new policy of compassionate appointment. In compliance of the judgment dated 18.2.2005 respondent passed a detailed order dated 26.5.2005 Ext.P2 almost on identical ground; rejected the case of the petitioner. **WP(C) NO. 5965 OF 2015** **3** 2. The aforementioned order Ext.P2 was assailed in this Court vide W.P.(C) NO.26106 of 2005. Respondents contested the matter through counter affidavit but by the time, the consolidated scheme for compassionate appointment, with effect from 16.1.2013, was already in vogue. Consolidated instructions on compassionate appointment were also issued. The record from 2002 was directed to be produced. As per the speaking order, it was found that the name of the petitioner was included at Sl.No.77 among the list of 390 persons and on the basis of the statement this Court closed the matter vide Ext.P4. 3. Learned counsel appearing on behalf of the petitioner submitted that despite the lapse of time, no appointment was offered to the petitioner despite repeated requests. As per the office memorandum dated 16.1.2013 of Government of India, Ministry of Personnel Public Grievances and Pensions (Department of Personnel and Training) under the head 'Determination/Availability of Vacancies' specified the procedure for calculation of vacancies for appointment on compassionate grounds to be made against technical post on Group 'C' and erstwhile Group 'D' posts to the extent of 5% of quota vacancy and sought the indulgence of this Court with the fowling prayer: **WP(C) NO. 5965 OF 2015** **4** Issue a writ of mandamus or other appropriate writ order or direction commanding the respondents to appoint the petitioner as expeditiously as possible the anywhere in the territory of India in any Group 'C' or 'D' post as a sequel to Ext.P4 judgment. 4. Respondent contested the claim of the petitioner on the following grounds: a). After the round of two litigation the name of the petitioner kept as Sl.No.77 amongst the 390 candidates by passing a speaking order. The merit list of the candidates awaiting compassionate appointment from time to time updated every month based on the fresh DD form received during the month and recommendation of the board of officers. The name of the petitioner at the time of filing counter stood as 164 out of 656 recommended cases as on 31.12.2015. The compassionate appointment was considered by this department strictly in the order of merit subject to the availability of vacancies meant for the very purpose in accordance with the instructions being issued by Government of India, Department of P&T from time to time. b) As per the revised policy, the name of the petitioner was to be maintained for a period of 5 years ie., upto 30.9.2018 for consideration of compassionate appointment in the order of merit subject to availability of vacancies. Number of vacancies released for compassionate appointment were very meager corresponding **WP(C) NO. 5965 OF 2015** **5** to the mortality rate of the department. Thus it was not feasible to offer appointment to all the dependents of deceased Govt employees died in harness/retired on medical grounds. As per procedure, in vogue, seniority as per merit is to be maintained from the date of the recommendation of the case by Board of Officers. Only 22 vacancies were available for the year 2013. The petitioner's name did not come up in the merit list for issue of call for appointment as his name was positioned as Sl.No.77 in the merit list. Hon'ble Supreme Court in the judgment Umesh Kumar Nagpal v. State of Haryana and others (JT 1994 (3) SC 525) in paragraph No.7 held that only dependents of an employee dying in harness leaving family in penury and without any means of livelihood can be appointed on compassionate ground. Group 'C' and 'D' (formerly Class III and IV) are the lowest posts in nonmanual and manual categories and hence they alone can be offered on compassionate grounds and not other post ie., in the Group 'A' or Group 'B' category. The whole objects of granting compassionate appointment is to enable the family to tide over the sudden crisis. Offering compassionate appointment was a matter of course irrespective of the financial condition of the family of the deceased. Compassionate appointment could not be granted after lapse of a reasonable period as it does not have a vested right. **WP(C) NO. 5965 OF 2015** **6** c). Learned Government Pleader has relied upon the judgment in the State of West Bengal v. Debabrata Tiwari and Ors. (AIR 2023 SC 1467) wherein it was held that the whole purpose of compassionate appointment was to take into consideration immediacy, once the same is diluted and lost, the right cannot be stretched. This Court was handed over the consolidated instructions on compassionate appointment dated 16.1.2013. Clause 9 dealing with the belated requests for compassionate appointment was referred to on the premise that the father died on 3.6.1986 and the application of the petitioner thus would be kept alive only for 5 (five) years, which has already expired. 5. I have heard the learned counsel for the parties and appraised the paper book. Paragraph 7, 7.1, 7.2, 7.3, 7.4 and 7.5 of the judgment Umesh Kumar Nagpal, supra reads as under: 7. The majesty of death is that it is a great leveller for, it makes no distinction between the young and the old or the rich and the poor. Death being as a consequence of birth at some point of time is inevitable for every being. Thus, while death is certain, its timing is uncertain. Further, a deceased employee does not always leave behind valuable assets; he may at times leave behind poverty to be faced by the immediate members of his family. Therefore, what should be done to ensure that death of an individual does not mean economic death for his family? The State’s obligation in this regard, confined to its employees who die in harness, has given rise to schemes and rules providing for compassionate appointment of an eligible member of his family as an instance of providing immediate succour to such a family. Support for such a provision has been derived from the provisions of Part **WP(C) NO. 5965 OF 2015** **7** IV of the Constitution of India, i.e., Article 39 of the Directive Principles of State Policy. 7.1. It may be apposite to refer to the following decisions of this Court, on the rationale behind a policy or scheme for compassionate appointment and the considerations that ought to guide determination of claims for compassionate appointment. i. In Sushma Gosain vs. Union of India, (1989) 4 SCC 468, this Court observed that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. That the purpose of providing appointment on compassionate grounds is to mitigate the hardship caused due to the death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. ii. In Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138, this Court observed that the object of granting compassionate employment is to enable the family of a deceased government employee to tide over the sudden crisis by providing gainful employment to one of the dependants of the deceased who is eligible for such employment. That mere death of an employee in harness does not entitle his family to such source of livelihood; the Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied that, but for the provision of employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family, provided a scheme or rules provide for the same. This Court further clarified in the said case that compassionate appointment is not a vested right which can be exercised at any time after the death of a government servant. That the object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, compassionate employment cannot be claimed and offered after lapse of considerable amount of time and after the crisis is overcome. iii. In Haryana State Electricity Board vs. Hakim Singh, (1997) 8 SCC 85, (“Hakim Singh”) this Court placed much emphasis on the need for immediacy in the manner in which claims for compassionate appointment are made by the dependants and decided by the concerned authority. This Court cautioned that it should not be forgotten that the object of compassionate appointment is to give succour to the family to tide over the **WP(C) NO. 5965 OF 2015** **8** sudden financial crisis that has befallen the dependants on account of the untimely demise of its sole earning member. Therefore, this Court held that it would not be justified in directing appointment for the claimants therein on compassionate grounds, fourteen years after the death of the government employee. That such a direction would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession. iv. This Court in State of Haryana vs. Ankur Gupta, AIR 2003 SC 3797 held that in order for a claim for compassionate appointment to be considered reasonable and permissible, it must be shown that a sudden crisis occurred in the family of the deceased as a result of death of an employee who had served the State and died while in service. It was further observed that appointment on compassionate grounds cannot be claimed as a matter of right and cannot be made available to all types of posts irrespective of the nature of service rendered by the deceased employee. v. There is a consistent line of authority of this Court on the principle that appointment on compassionate grounds is given only for meeting the immediate unexpected hardship which is faced by the family by reason of the death of the bread earner vide Jagdish Prasad vs. State of Bihar, (1996) 1 SCC 301. When an appointment is made on compassionate grounds, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion, vide I.G. (Karmik) vs. Prahalad Mani Tripathi, (2007) 6 SCC 162. In the same vein is the decision of this Court in Mumtaz Yunus Mulani vs. State of Maharashtra, (2008) 11 SCC 384, wherein it was declared that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. vi. In State of Jammu and Kashmir vs. Sajad Ahmed Mir, AIR 2006 SC 2743, the facts before this Court were that the government employee (father of the applicant therein) died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was dismissed by the learned Single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. This Court remarked that the said facts were relevant and material as they would demonstrate that the family survived in spite of death of the employee. Therefore, **WP(C) NO. 5965 OF 2015** **9** this Court held that granting compassionate appointment after a lapse of a considerable amount of time after the death of the government employee, would not be in furtherance of the object of a scheme for compassionate appointment. vii. In Shashi Kumar, this Court speaking through Dr. D.Y. Chandrachud, J. (as His Lordship then was) observed that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. That the basis of the policy is that it recognizes that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. That it is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. The pertinent observations of this Court have been extracted as under: “41. Insofar as the individual facts pertaining to the Respondent are concerned, it has emerged from the record that the Writ Petition before the High Court was instituted on 11 May 2015. The application for compassionate appointment was submitted on 8 May 2007. On 15 January 2008 the Additional Secretary had required that the amount realized by way of pension be included in the income statement of the family. The Respondent waited thereafter for a period in excess of seven years to move a petition Under Article 226 of the Constitution. In Umesh Kumar Nagpal (supra), this Court has emphasized that the basis of a scheme of compassionate appointment lies in the need of providing immediate assistance to the family of the deceased employee. This sense of immediacy is evidently lost by the delay on the part of the dependant in seeking compassionate appointment.” 7.2. On consideration of the aforesaid decisions of this Court, the following principles emerge: i. That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. 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 and must be resorted to only in order to achieve the stated objectives, i.e., to enable the family of the deceased to get over the sudden **WP(C) NO. 5965 OF 2015** **10** financial crisis. ii. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis. iii. Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate employment cannot be claimed or offered after a lapse of time and after the crisis is over. iv. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years. v. In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source. 7.3. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis due to the death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be in a position 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. Having regard to such an object, it would be of no avail to grant compassionate appointment to the dependants of the deceased employee, after the crisis which arose on account of death of a bread-winner, has been overcome. Thus, there is also a compelling need to act with a sense of immediacy in matters concerning compassionate appointment because on failure to do so, the object of the scheme of compassionate would be frustrated. Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and thus lose its significance and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out for consideration. **WP(C) NO. 5965 OF 2015** **11** 7.4. As noted above, the sine qua non for entertaining a claim for compassionate appointment is that the family of the deceased employee would be unable to make two ends meet without one of the dependants of the deceased employee being employed on compassionate grounds. The financial condition of the family of the deceased, at the time of the death of the deceased, is the primary consideration that ought to guide the authorities’ decision in the matter. 7.5. Considering the second question referred to above, in the first instance, regarding whether applications for compassionate appointment could be considered after a delay of several years, we are of the view that, in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Further, the financial circumstances of the family of the deceased, may have changed, for the better, since the time of the death of the government employee. In such circumstances, Courts or other relevant authorities are to be guided by the fact that for such prolonged period of delay, the family of the deceased was able to sustain themselves, most probably by availing gainful employment from some other source. Granting compassionate appointment in such a case, as noted by this Court in Hakim Singh would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession which is contrary to the Constitution. Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee. 6. This Court in the second round of litigation, considered and by speaking the matter and order of the 3[rd] respondent, Ext.P3 dated 18.7.2013, whereby, name of the petitioner was positioned at 77 out of 390 candidates. The department considered the case of **WP(C) NO. 5965 OF 2015** **12** the compassionate appointment strictly in the order of merits subject to availability of the vacancy. Sufficient vacancies did not arise entitling the petitioner appointment on the basis of compassionate ground. As per the aforementioned clause 9, the name of the petitioner can be only maintained for five years ie., upto 30.9.2018 by taking the date of speaking order dated 18.7.2013, Ext.P3, which is already over. Even the petitioner had chosen to file present writ petition much later. Owing to the delay and latches and lapse of time, keeping the list alive for 12 years, the vacancy could not occur, therefore, the case of the compassionate appointment cannot be permitted to remain alive for infinite period. For the reason aforementioned, the writ petition sans merit and is accordingly dismissed. sab SD/AMIT RAWAL JUDGE **WP(C) NO. 5965 OF 2015** **13** ## **APPENDIX OF WP(C) 5965/2015** PETITIONER EXHIBITS EXT P1 : TRUE COPY OF THE JUDGMENT DATED 18-02-2005 IN WP(C).NO.15506/2004 OF THIS HON'BLE COURT. EXT P2 : TRUE COPY OF THE ORDER DATED 2605-2005 OF THE 3RD RESPONDENT. EXT P3 : TRUE COPY OF THE SPEAKING ORDER DATED 18-07-2013 OF THE 3RD RESPONDENT. EXT P4 : TRUE COPY OF THE JUDGMENT DATED 17-10-2013 IN WP(C).NO.26106/2005 OF THIS HON'BLE COURT. ## RESPONDENT'S EXHIBITS: Exhibit R1(a): True copy of the letter No. 1118/580/ GBF dated 01 07.1986 of the GREF Centre, Pune Exhibit R1(b) True copy of the application dated 12.05.1998 to the GREF Centre, Pune Exhibit R1(c): True copy of the letter No. ExGS-65617/ NER/21/(F/P) dated 31.05.1998 of the GREF Centre Exhibit R1(d): True copy of the letter No. 1455/07/ 127/E1R dated 20.08.1998 of the GREF Centre Exhibit R1(e): True copy of the letter No BRDB ID No. BRDB/03/22/98/GEI dated 23.04.2002 Of the Border Roads Development Board, GE-I Exhibit R1(f). True copy of the Letter No. 12701/ EMP/POL/DGBR/64/EG2 dated 08 07 2002 Of the Joint Director (Admn), Dir Gen Boarder Roads Exhibit R1(g): True copy of the OM No F.No. 14014/02/2012-Esst (D) dated 16.01.2013 Of Ministry of Personnel, Public Grievances And Pensions (Department of Personnel & Training) **WP(C) NO. 5965 OF 2015** **14** Exhibit R1(h): True copy of the letter No. 1456/ 07/159/E1R dated 13.08.2002 of the GREF Centre Exhibit R1(1): True copy of the order in W.P.(C) No. 15506 of 2004 dated 18.02.2005 of this Hon'ble Court. Exhibit R1j) True copy of the Letter No. 1469-A/Arun Gopal/ 30/E 1R dated 26.05.2005 of the GREF Centre Exhibit R1(k) True copy of the order in WP (C) No 26106/2005 dated 18.07.2013 of this Hon'ble Court Exhibit R1(1): True copy of the letter No. 1456/ 867/(2013)/65617/GP/01/DD Cell dated 08.08.2013 Of the GREF Centre Exhibit R1(m): True copy of the letter No. 1469-A/ Arun Gopal/77/CC DD Cell dated 08.09.2013 Of the GREF Centre Exhibit R1(n): True copy of the letter ID No. 19(4)/ 324-99/1998-D/Lab dated 09.03.2001 issued by Ministry of Defence Exhibit R1(o): True copy the letter F.No. 19(3)/2009D (Lab) dated 22.01.2010 issued by Ministry of Defence Exhibit R1(p): True copy of the letter No. 1456/667 (2013) 65617/GP/11/DD cell dated 07.10.2013 of GRFE Centre Exhibit R1(q): True copy the letter ID No. 9(1)/ 2000-D/(Lab) dated 12.02.2001 of the Ministry Of Defence