Supreme Court: Delay to Decide Claims for Compassionate Appointment Frustrates Object of Scheme

Supreme Court: Delay to Decide Claims for Compassionate Appointment Frustrates Object of Scheme

The Supreme Court of India by its division bench comprising of Justices Krishna Murari and BV Nagarathna while reversing an order passed by the division bench of Calcutta High Court with respect to Compassionate Appointment laid down various principles.

The Apex Court observed that delay on the part of the authorities of the State to decide claims for compassionate appointment would no doubt frustrate the very object of a scheme of compassionate appointment. Government officials are to act with a sense of utmost proactiveness and immediacy while deciding claims of compassionate appointment to ensure that the wholesome object of such a scheme is fulfilled.

The brief background of the case is that in 2006, applications were made by the heirs of the deceased employees of Burdwan Municipality in West Bengal. The Municipality directed an enquiry by a three-member committee comprising of the Chairman of Burdwan Municipality (Respondent No. 6); the Executive Officer of the Burdwan Municipality (Respondent No. 7) and the Deputy Director of Local Bodies, Burdwan Division, to determine whether the respondents were entitled to the appointment on compassionate grounds.

Later, the Chairman of the Burdwan Municipality vide Memo dated 12th June, 2013, forwarded a list approved by a resolution passed in the meeting of the Board of Councilors on 30th May, 2013, along with an inspection/enquiry report and other testimonials to the Director of Local Bodies, Government of West Bengal (Respondent No. 4), for approval of appointment on compassionate grounds. However, no further action was taken by the Director of Local Bodies. Consequently, in 2015, a petition was filed before the Calcutta High Court by one of the eligible candidates, seeking appointment on compassionate grounds.

The High Court asked the Director of Local Bodies, Government of West Bengal to take a decision on the recommendation of the Chairman of the Municipality within a period of ten weeks from the date of communication of the said Order and to communicate such decision to the Chairman of the Municipality within a week thereafter.

In continuation of the direction of the High Court, the Director of Local Bodies, Government of West Bengal, on 16th October, 2015 passed an Order wherein it was stated that the Director of Local Bodies had no authority to consider the appointments under compassionate grounds in Urban Local Bodies, unless the policy in the matter was laid down by the State Government. It was therefore observed by the Director of Local Bodies that as soon as the State Government extends such policy for consideration of appointment of the employees of the Urban Local Bodies, under compassionate grounds, in the die-in-harness category, the prayer of Respondent No. 1 would be considered.

Being aggrieved by the order passed by the Director of Local Bodies, Government of West Bengal on 16th October, 2015, Respondent No. 1 preferred a Writ Petition before the High Court of Calcutta.

The High Court heard and disposed of a batch of petitions pertaining to the same issue. The Single Judge noted that in absence of a sanctioned scheme for compassionate appointment in the Municipality.

The order of the Single Judge was challenged before a Division Bench that allowed the petition. Identifying the scheme under which the appointments can be considered, the Division Bench directed the concerned authorities to consider the applications for compassionate appointments.

Aggrieved by the said directions of the High Court and the findings as to the eligibility of the Respondents-Writ Petitioners to sought appointment on compassionate grounds, the appeals were filed by the State of West Bengal before the Apex Court.

The primary question was whether there existed any scheme in the State of West Bengal, governing compassionate appointment governing municipal employees dying in harness.

The Apex Court stated that 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 succor to such a family. Support for such a provision has been derived from the provisions of Part IV of the Constitution of India, i.e., Article 39 of the Directive Principles of State Policy. The Court while referring to catena of judgments on compassionate appointments, proceeded to lay down the following principles-

1. 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 financial crisis.

2. 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 dependents 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.

3. 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.

4. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.

5. 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.

“….it would be of no avail to grant compassionate appointment to the dependents 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,” the Court observed.

The Court noted that the sine qua non for allowing a claim of compassionate appointment is that the family of the deceased employee would be unable to make ends meet if one of their dependents is not employed on the compassionate ground.

Considering the second question, whether applications for compassionate appointment could be considered after a delay of several years, Court was 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.

In this regard the Court referred the decision passed in Haryana State Electricity Board vs. Hakim Singh, where granting compassionate appointment in such a case 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.

The Court held that the Respondents-Writ Petitioners, upon submitting their applications in the year 2006- 2005 did nothing further to pursue the matter, till the year 2015 i.e., for a period of ten years. Notwithstanding the tardy approach of the authorities of the Appellant-State in dealing with their applications, the Respondent-Writ Petitioners delayed approaching the High Court seeking a writ in the nature of a mandamus against the authorities of the State.

The Court asserted that such prolonged delay in approaching the High Court, may even be regarded as a waiver of a remedy, as discernible by the conduct of the Respondents-Writ Petitioners. Such a delay disentitled the Respondents-Writ Petitioners to the discretionary relief under Article 226 of the Constitution.

Further, the Court observed that by way of a Circular issued in 2007, the original Circular was clarified to state that the benefit of compassionate appointment would not extend to the employees of local authorities. As per trite law, the effect of clarificatory note would relate back to the date of the original notification and since the applications were made in 2006, both the Circulars would be applicable.

In fine, the present appeals succeeded on two counts: first, there was no policy existing to govern compassionate appointment to posts under local authorities in the State of West Bengal and hence, in the absence of such a policy, compassionate appointment cannot be granted; second, assuming that there was such a policy, it would not be of redeeming purpose to direct that the applications for appointment on compassionate grounds be considered and decided several years after they were filed.