Compassionate appointment is an appointment which is granted to a dependant family member of a government servant who has died in harness i.e. while on duty or before retirement or who is retired on medical grounds, as a result leaving his family in penury and without any means of livelihood so that the family of the concerned Government servant can be relieved from the financial destitution and get over the emergency. Compassionate appointments should be done in such a way that people appointed via this scheme should have the required experience and qualifications for the post so that the efficient maintenance of administration could be ensured. To be eligible for the appointment on compassionate grounds the family should be indigent and deserve immediate assistance. Also, the applicant should be suitable and eligible in all respects for the post under the provisions of relevant recruitment rules. The lower age limit to be eligible for compassionate appointment should be 18 years, however, the upper age limit could be relaxed according to the necessity. In addition, it must be noted that age eligibility shall be determined according to the date of application and not the date of appointment. Compassionate appointments should be made only on a regular basis and only when vacancies meant for this purpose are available.[1]
COMPASSIONATE APPOINTMENT: A RIGHT OR CONCESSION?
In the case of Fertilizers and Chemicals Travancore Ltd. & Ors. v. Anusree K.B.[2], the Supreme Court set aside the judgement of the Kerala High Court that directed the Fertilisers and Chemical Travancore Ltd. and others to consider the case of the woman for compassionate appointment. The Supreme Court said that the object of granting such employment is to enable the family from a sudden crisis and is a concession, not a right. A bench of Justices MR Shah and Krishna Murarai noted that the father died while on duty in April 1995 and his wife was serving at that time, thus making that woman ineligible for compassionate appointment. Also, after a period of 24 years from the death of the deceased employee, the respondent shall not be entitled to a compassionate appointment. According to the law laid down by Supreme Court on compassionate appointment, equal opportunity for all government vacancies should be provided to all aspirants as mandated under Article 14 and Article 16 of the Constitution. However, a compassionate appointment is an exception to the said norms and is a concession, not a right. [3]
CAN CLAIM FOR A COMPASSIONATE APPOINTMENT BE MADE BY A MARRIED OR DIVORCED DAUGHTER?
“ Once a Daughter Always a Daughter”
Recently, the Punjab and Haryana High Court in the judgement of the State of Punjab v. Amarjit Kaur[4] held that excluding married daughters from the benefit of compassionate appointment upon the death of their fathers would be discriminatory and violative of Articles 14 and 15 of the Constitution of India since, in contradiction to this, a similarly situated sibling like the son who may be married and living separately would come in the zone of consideration. The Court said:
“A married daughter is shut out from even applying as she would not come within the zone of consideration whether she is dependent or not but exclusion is only on account of gender and it would be patently discriminatory. The deceased Government employee might have only been blessed with daughters and a widow who is not in a position to take up employment. Merely because the daughters are married would not exclude them from the zone of consideration.”[5]
The Allahabad High Court in the case of State of U.P. v. Noopur Srivastava [6]referred to the judgment of Kusum Devi v. State of U.P. [7]and held that a divorced daughter is entitled to compassionate appointment. “A divorced daughter, if dependent upon her father, cannot be excluded and has to be included within the meaning of the word ‘family’ since such a ‘ divorced daughter’, is dependent upon her father, has to be treated at par with an unmarried daughter or widowed daughter as all of them continue to be the liability of their father as member of the family of their ‘father’.”…. In the context of the present case, the court observed that a widow remains to be part of her husband’s family even after the death of such husband. However, when the marriage gets dissolved, the divorcee daughter does not continue to be a part of the family of her divorced husband and would continue to remain single unless she remarries. [8]
COMPASSIONATE APPOINTMENT IN THE CASE OF WIDOW
A widow shall be given preference in the matter of consideration for compassionate appointment provided she is eligible and interested. However, if the widow is not interested and more than one family members apply, the recommendation of the widow shall be taken into consideration in such cases for compassionate appointment. In case the widow is not alive and there are claims from more than one surviving dependant, such a person’s request would be considered for an appointment who in the opinion of Hon’ble CJI, will be in the larger interest and welfare of family members[9]. If a widow appointed on compassionate grounds gets remarried will be allowed to continue in service even after re-marriage.[10]
ARE CHILDREN BORN OUT OF SECOND MARRIAGE ENTITLED TO COMPASSIONATE APPOINTMENT?
The Hon’ble Supreme Court in the case of Mukesh Kumar v. Union of India [11]held that the condition imposed by the Railway Board circular that the compassionate appointment cannot be granted to children born from the second wife as discriminatory and an applicant cannot be denied consideration under the compassionate appointment scheme only because he is the son of the second wife of his father. The scheme and rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage still subsisting as legitimate and if the policy or rule excludes such a child from the benefit of compassionate appointment.
“Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimant’s legitimacy as their child. The policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant.”…[12]
COMPASSIONATE APPOINTMENT IF THERE IS EARNING MEMBER IN THE FAMILY?
If there is already an earning member in the family, a dependent family member may be considered for appointment on compassionate grounds in deserving cases with the prior approval of the Secretary of the Department/Ministry concerned. The grant of compassionate appointment in these cases has to be justified in regards to the number of assets, liabilities and dependants left by the government servant. Income and the liabilities of the earning member are also taken into consideration along with the fact that the earning member is residing with the family of the Government servant and whether he should not be a source of support to other members of the family. Extreme caution has to be observed in determining the economic distress of the family so that the grant of appointment on compassionate grounds is not misused.[13]
COMPASSIONATE APPOINTMENT IF GOVERNMENT SERVANT IS MISSING
The scheme of compassionate appointment also covers the cases of missing Government servants. However, its request can be taken into consideration only after a lapse of at least 2 years from the date from which the Government servant is missing. However, certain conditions have to be satisfied for claiming compassionate appointment under such cases that an FIR has been lodged with the police, the missing person is not traceable and the competent authority feels that the case is genuine. The benefit will not be provided in case the Government servant missing had less than two years to retire on the date from which he has been missing or who is suspected to have gone abroad, or suspected to have joined any terrorist organisation or suspected to have committed fraud. Compassionate appointments in these cases will be subject to the fulfilment of all the conditions, including the availability of vacancies. A decision on such a request should be taken only at the level of the Secretary of the Ministry/Department concerned. The police investigation results should also be taken into account while considering such requests. [14]
CAN THE CLAIM FOR A COMPASSIONATE APPOINTMENT BE MADE AFTER THE LAPSE OF REASONABLE TIME?
Recently, in the case of State of West Bengal v. Debabarta Tiwari & Ors.[15], the Hon’ble Supreme Court bench comprising of Justice Krishna Murari and Justice BV Nagarathna held that since compassionate appointment is not a vested right. A claim for compassionate appointment by the dependant of the deceased employee may not be entertained after a lapse of a considerable period since the death. The court also held that the operation of the scheme of compassionate appointment is based on the consideration of immediacy. There has to be a sense of immediacy not only in the manner in which the applications are processed by the concerned authorities but also in the conduct of the applicant in pursuing his case. Applications for compassionate appointments which were made in the year 2006 cannot be considered and decided in 2023, further, when the applicants were not diligently pursuing their claims. The reason behind making a scheme of compassionate appointment by the State or public sector undertaking is to make sure that the dependants of the deceased are not deprived of the means of livelihood and are able to get over the sudden financial crisis. It is not a source of recruitment. If there is considerable delay in claiming the claim, the sense of immediacy in such cases is lost. In such cases, the Court or the other relevant authority are required to take into consideration the fact that during the period of delay, the dependents were able to sustain themselves. [16]
CONCLUSION
The scheme of Compassionate Appointment is a great step towards ensuring that the family of the deceased Government servant does not have to suffer because of the sudden loss and that they are provided with a source of livelihood and are able to cope with the emergency. It has to be taken into consideration that the grant of compassionate appointment is for the sole purpose of ensuring the welfare of the dependants who suffer because of the immediate loss. It is a concession and cannot be claimed as right. It has to be ensured that people are not discriminated on any ground while granting the appointment on compassionate grounds. However, it has to be made sure that all the procedures and essential requirements are fulfilled before the grant of compassionate appointment so that the scheme is not misused by society and its true purpose is achieved.
[1] Government of India, “Scheme for Compassionate Appointment” (Ministry of Personnel, Public Grievances and Pension, 1998)
[2] CIVIL APPEAL NO. 6958 OF 2022
[3] Appointment on compassionate ground concession not a right: SC, available at: https://theprint.in/india/appointment-on-compassionate-ground-concession-not-a-right-sc/1152673/ (visited on August 12, 2023)
[4] LPA-462-2021 (O&M)
[5] ‘Once A Daughter Always A Daughter’: High Court Says Punjab Policy Excluding Married Daughters From Compassionate Appointment Violates Articles 14 & 15, available at:
https://www.livelaw.in/news-updates/punjab-haryana-high-court-compassionate-appointment-married-daughter-article-14-15-discrimination-220630 (visited on August 13, 2023)
[6] SPECIAL LEAVE DEFECTIVE NO. -673 OF 2018
[7] 2009 SCC OnLine AII 1941
[8] All HC | Divorced daughter entitled to get benefit of compassionate appointment under Dying-in-Harness Rules, available at: https://www.scconline.com/blog/post/2019/08/28/all-hc-divorced-daughter-entitled-to-get-benefit-of-compassionate-appointment-under-dying-in-harness-rules/ (visited on August 13, 2023)
[9] Supreme Court of India, “Scheme for Compassionate Appointment” (2006)
[10] Supra pt. 9 at p.no. 5
[11] 2022 SCC OnLine SC 229
[12] Compassionate Appointment cannot be denied to children born from the second wife of a deceased employee: SC, available at: https://www.scconline.com/blog/post/2022/02/25/compassionate-appointment-cannot-be-denied-to-children-born-from-the-second-wife-of-a-deceased-employee-sc/ (visited at August 13, 2023)
[13] Supra pt. 10 at p.no. 6
[14] Supra pt. 11 at p.no. 6 & 7
[15] CIVIL APPEAL NOS. 8842-8855 OF 2022
[16] Compassionate Appointment: Supreme Court Summarises Principles, available at: https://www.livelaw.in/top-stories/compassionate-appointment-supreme-court-summarises-principles-223350?infinitescroll=1 (visited at August 13, 2023)
Author: Saummya Malhotra
Juris Centre 