2003 JTR(SC) 820
2003 12 AIC 133 ; 2003 AIR(SC) 3794 ; 2003 AIR(SCW) 4339 ; 2004 1 AWC 143 ; 2004 1 BBCJ(SC) 30 ; 2004 1 CalLJ(SC) 22 ; 2003 103 FJR 834 ; 2003 99 FLR 337 ; 2005 2 GauLT 11 ; 2003 4 JLJR(SC) 88 ; 2003 8 JT 57 ; 2003 9 JT 493 ; 2003 LIC 3148 ; 2003 4 LLN 40 ; 2004 1 MPWN 189 ; 2003 4 PLJR(SC) 119 ; 2003 4 RSJ 598 ; 2003 6 Scale 796 ; 2003 7 SCC 511 ; 2003 SCC(L&S) 1070 ; 2003 SCR 107 ; 2003 4 SCT 242 ; 2003 6 SLR 696 ; 2003 UD 351 ; 2004 1 UPLBEC 221 ; 2004 1 WBLR 6 ; 2003 KHC 1556 ; 2003 6 Supreme 256
2003(6) Supreme 256
SUPREME COURT OF INDIA
(From Gauhati High Court)
State of Manipur -Appellant
versus
Md. Rajaodin -Respondent
Civil Appeal No. 6797 of 2003
(Arising out of SLP (C) No. 8460 of 2002)
Decided on 28-8-2003
Counsel for the Parties :
For the Appellant : Khwairakpam Nobin Singh, Advocate.
For the Respondent : S.J. Bhattacharya and L.K. Paonam, Advocates.
IMPORTANT POINT
Appointment on compassionate ground cannot be claimed as a matter of right and such appointment has to be made in accordance with rules, regulations or administration instructions taking into consideration the financial condition of family of deceased.
Act Referred :SERVICE LAW : .
(A) The relevant statutory framework referred to in this judgment pertains to service law, specifically the die-in-harness scheme and associated rules governing compassionate appointments for dependents of government servants who die while in service. The scheme, framed under administrative orders such as the Office Memorandum dated 2nd May 1984, operates as an exception to the general merit-based recruitment principles enshrined under service law, allowing appointments on compassionate grounds only where there is a sudden financial crisis caused by the in-harness death of an employee. The scheme mandates that any such appointment must be cleared by the appropriate government department and cannot be claimed as a matter of right, especially where significant delays are involved and the post is not required to be kept reserved for such exceptional cases.
(B) The core legal principles include that appointments under the die-in-harness scheme are an exception to the general rule of recruitment on merit and must be made expeditiously to mitigate hardship; delay in application, particularly over several years, defeats the claim; and the scheme does not confer a legal right if the requisite administrative clearances are absent or if the application is belated, regardless of the applicant's minority at the time of the employee's death.
Facts of the case:
The respondent's father died in harness in 1980. The respondent, then a minor, applied for appointment under the die-in-harness scheme in 1981 and received a letter in 1999, but the State withheld appointment citing delay and lack of clearance, and a ban on fresh appointments under the scheme. The High Court directed the State to appoint the respondent, leading to this appeal.
Findings of Court:
The court found the application to be highly belated, contrary to the object of compassionate appointments, and noted that the scheme required clearance from the Personnel Division and was subject to an operational ban at the relevant time. It held that the learned Single Judge was not justified in directing appointment, as the respondent had no legal right to the same after such a long delay.
Issues:
Whether an appointment under the die-in-harness scheme can be claimed after a long lapse of time, and whether a mere letter issued years after the event, without administrative clearance, confers a legal right to appointment.
Ratio Decidendi:
Appointments under the die-in-harness scheme are permissible only to alleviate sudden financial hardship and must be made without unreasonable delay; a claim barred by excessive delay and lack of statutory clearance cannot be sustained even on compassionate grounds.
Result:
The appeal is allowed and the directions for appointment are set aside.
(A) The relevant statutory framework referred to in this judgment pertains to service law, specifically the die-in-harness scheme and associated rules governing compassionate appointments for dependents of government servants who die while in service. The scheme, framed under administrative orders such as the Office Memorandum dated 2nd May 1984, operates as an exception to the general merit-based recruitment principles enshrined under service law, allowing appointments on compassionate grounds only where there is a sudden financial crisis caused by the in-harness death of an employee. The scheme mandates that any such appointment must be cleared by the appropriate government department and cannot be claimed as a matter of right, especially where significant delays are involved and the post is not required to be kept reserved for such exceptional cases.
(B) The core legal principles include that appointments under the die-in-harness scheme are an exception to the general rule of recruitment on merit and must be made expeditiously to mitigate hardship; delay in application, particularly over several years, defeats the claim; and the scheme does not confer a legal right if the requisite administrative clearances are absent or if the application is belated, regardless of the applicant's minority at the time of the employee's death.
Facts of the case:
The respondent's father died in harness in 1980. The respondent, then a minor, applied for appointment under the die-in-harness scheme in 1981 and received a letter in 1999, but the State withheld appointment citing delay and lack of clearance, and a ban on fresh appointments under the scheme. The High Court directed the State to appoint the respondent, leading to this appeal.
Findings of Court:
The court found the application to be highly belated, contrary to the object of compassionate appointments, and noted that the scheme required clearance from the Personnel Division and was subject to an operational ban at the relevant time. It held that the learned Single Judge was not justified in directing appointment, as the respondent had no legal right to the same after such a long delay.
Issues:
Whether an appointment under the die-in-harness scheme can be claimed after a long lapse of time, and whether a mere letter issued years after the event, without administrative clearance, confers a legal right to appointment.
Ratio Decidendi:
Appointments under the die-in-harness scheme are permissible only to alleviate sudden financial hardship and must be made without unreasonable delay; a claim barred by excessive delay and lack of statutory clearance cannot be sustained even on compassionate grounds.
Result:
The appeal is allowed and the directions for appointment are set aside.
JUDGMENT
Arijit Pasayat, J.-Leave granted.
2. Respondent was found to be entitled for appointment under the die-in-harness scheme, by a learned Single Judge of the Guwahati High Court at Imphal Bench, whose view was endorsed by the Division Bench. The State of Manipur is in appeal.
3. There is practically no controversy so far as the factual aspects are concerned and, therefore, need to be noted in brief.
4. Respondent s father died in harness on 19.7.1980. A writ petition (W.P. (C) No. 1202/2001) was filed in the year 2001 by the respondent who pleaded that he was initially offered Grade-IV post by order dated 15.12.1999, but no appointment was made. The writ application was filed for direction to the concerned authorities for giving appointment under the die-in-harness scheme. The State resisted the claim on the ground that not only was the claim belated but also in view of the ban imposed on appointments, the question of making any appointment did not arise. Further the letter issued was inconsequential as there was a clear stipulation in the scheme itself about concurrence of Government in the Department of Personnel and Administrative Reforms (Personnel Division).
5. Learned Single Judge of the High Court found that after having issued the letter in 1999, the belated approach by the respondent cannot be a ground for denying appointment under die-in-harness scheme and direction was given to the State to forthwith appoint the respondent. Appeal by the State before the Division Bench suffered dismissal.
6. In support of the appeal, learned counsel for the appellant-State submitted that the respondent s father died on 19.7.1980. The respondent applied for a post on 25.7.1997. The scheme itself provides the time period within which an application has to be filed. The letter dated 15.12.1999 does not confer any right on the respondent as the scheme itself provided that the appointment will be made by the appointing authority concerned after clearance from Government of Manipur, Department of Personnel and Administrative Reforms (Personnel Division). Admittedly, when no approval has been given by the concerned department, the mere issuance of letter does not confer any right particularly when the stipulation is contained in the scheme itself, and there was a ban operating in respect of appointments.
7. In response, learned counsel for the respondent submitted that within the time period stipulated an application was filed in the year 1981, but there was no response. Finding no other alternative the respondent who was a minor at the time of his father s death applied afresh and State cannot take plea that the benefit cannot be extended.
8. The Government of Manipur, Department of Personnel and Administrative Reforms (Personnel Division) issued Office Memorandum dated 2nd of May, 1984. Said office Memorandum deals with appointment of son/daughter/real brother/real sister/wife/husband of Government servants who died in harness leaving behind his/her family in indignant circumstances.
9. Admittedly, the respondent s father died before the Office Memorandum came into operation. In the memorandum a time period is stipulated. Since the scheme itself was not in operation when the respondent s father died, the time stipulation as provided in the scheme would not be strictly applicable to the case of the respondent and any one seeking for relief thereunder has to at least move within the time stipulated commencing from the date of the order. Nevertheless, keeping in view at any rate the object for which such appointments which are also compassionate appointments are made the minimum requirement is that the request for appointment should be made as expeditiously as the circumstances warrant. It could not be brought to our notice whether there was any scheme in operation prior to the scheme of 1984 referred to above. As the appointments of such nature envisaged under the said scheme are made to tide over immediate difficulties, there is an inbuilt requirement of urgency in making the application. Though it was contended that the respondent was a minor at the time of his father s death, it is to be noted that he was of 10 years of age in 1980 when his father died. Even if a reasonable period after he attained majority is taken, certainly the application on 25.7.1997 seeking appointment was highly belated.
10. As was observed in State of Haryana & Ors. v. Rani Devi & Anr. (JT 1996(6) SCC 646), it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in harness scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi s case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of India v. Asha Ramchhandra Ambekar (Mrs.) and Anr. (1994(2) SCC 718) it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana & Ors. (1994 (4) SCC 138) that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.
11. In Smt. Sushma Gosain and Ors. v. Union of India and Ors. (1989 (4) SCC 468) it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was re-iterated in Phoolwati (Smt.) v. Union of India & Ors. (1991 Supp. (2) SCC 689) and Union of India and Ors. v. Bhagwan Singh (1995 (6) SCC 476). In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. (1998(5) SCC 192) it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to 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 dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependent of the deceased employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thererby nullify the main provision by taking away completely the right conferred by the main provision.
12. In State of U.P. and Ors. v. Paras Nath (1998(2) SCC 412) it was held that the purpose of providing employment to the dependant of a government servant dying-in harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments. None of these considerations can operate when the application is made after a long period of time. In that case also the delay was 17 years.
13. When case of the respondent is considered in the panorama of aforesaid legal principles, the inevitable conclusion is that he was not entitled for appointment. Even after 1984 scheme came into force, the application was filed after a long lapse of time. He, therefore, had no right much less a legal right to ask for an appointment. Learned Single Judge of the High Court was not justified in directing the appellant to give appointment. It is also on record that there was a ban on direct recruitment under Die-in-harness scheme as is evidenced by Office Memorandum dated 24th July, 2001. The scheme itself provided for a clearance from the Government in the Department of Personnel and Administrative Reforms (Personnel Division).
14. We, therefore, set aside the orders of the Learned Single Judge and the Division Bench. The appeal is allowed. However, this judgment shall not stand on the way of the appellant at its discretion giving effect to the orders dated 15th December, 1999 at and from a future point of time, if permissible, in accordance with law. Costs are made easy.
Appeal allowed.
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