1. Father of the petitioner worked as Head Constable in Khammam II Town Police Station, Khammam. He submitted application dated 08.01.2011 seeking permission to retire from service on medical invalidation grounds as he was suffering with Brain Hemorrhage. He has also requested to provide appointment on compassionate grounds to the petitioner. By order dated 15.02.2012, father of the petitioner was permitted to retire from service on medical invalidation grounds w.e.f. 29.02.2012. However, appointment on compassionate ground is not provided in spite of several representations made by the petitioner and his father. In response to the representations made on 30.01.2016 and 30.08.2017, vide Memorandum dated 13.09.2017, the 2nd respondent directed the 4th respondent to provide employment to the petitioner, but so far no decision is taken. In this writ petition, petitioner is challenging paragraph-17 of G.O.Ms.No.661 General Administration (SER.G) Department, dated 23.10.2008, where under 5% of the vacancies meant to be filled up by direct recruitment is reserved to provide employment to dependent of employee retired on medical invalidation grounds. Though no reasons are assigned in the writ petition why the challenge is made to validity of paragraph-17 of said G.O., it appears from the averments made in the affidavit filed in support of the writ petitioner, petitioner’s claim to provide employment is not acceded as 5% quota was filled, and there was no vacancy available to accommodate the petitioner.
2. According to the learned counsel for petitioner, once a scheme is introduced providing employment to a person who is dependent of an employee retired compulsorily much prior to the actual date of retirement on the ground of medical invalidation, the claim of retired employee and his dependents cannot be confined to a fixed quota/ceiling and such claim has to be considered based on the merit of the claim. She would submit that the validity of the scheme of compassionate appointment on medical invalidation grounds was upheld by the Hon’ble Supreme Court in V.Siva Murthy Vs. State of Andhra Pradesh (2008) 13 SCC 730). Consequent to the judgment of the Hon’ble Supreme Court, the scheme is reintroduced. She would therefore submit that prescribing 5% ceiling is ex facie illegal, arbitrary and unconstitutional.
3. Learned counsel for petitioner submits that before retirement of father of petitioner, this fact was not informed. So far no decision is communicated to the petitioner. Petitioner and his family members are made to suffer for eight long years for not fault of them. In support of her contention, learned counsel placed reliance on the decisions of the Division Bench of this Court in W.P.No.5437 of 2017 and in W.P.No.40326 of 2017.
4. Two issues arise for consideration in this writ petition:
(1) whether claim of petitioner for provision of employment on compassionate grounds after eight years of the date of incident till subsists?; and (2) whether clause-17 of G.O.Ms.No.661 dated 23.10.2008 restricting provision of employment to dependent of employee retired from service on medical invalidation grounds to 5% of the vacancies meant to be filled by direct recruitment is valid and legal?
The Scheme of compassionate appointment:
5. To appreciate the contentions of learned counsel for petitioner, it is necessary to dwell into the purpose and object of the scheme. First, appointment to public post whether it is in State/Central service or service in the public sector undertakings has to be in accordance with the Rules/Regulations governing the service. Such recruitment should be open to all eligible candidates and selections are to be made in transparent manner and should stand the test of Articles 14 and 16 of the Constitution of India. Certain exceptions are carved out to this constitutional norm to make recruitment and one such exception is “appointment on compassionate grounds”. In Public employment most of the employers notified the scheme to provide employment on compassionate grounds. This scheme of compassionate appointment is in recognition of the employer’s commitment to look after the members of the family of the employee who had premature death/forced to retire from service on him/her being declared as medically unfit, much before he/she would attain the age of superannuation leaving the family members in the lurch. The scheme is intended to give a kind of protection to the members of the deceased family on account of loss of breadwinner in the family or premature retirement of bread winner on health grounds upsetting the family financial calculations.
6. Ordinarily such scheme envisages provision of appointment to posts classified as Class-III and Class-IV which are at the bottom of hierarchical structure of any organization. Such appointment is extended to wife or children of the deceased employee/retired on medical invalidation and appointment should be provided soon after the occurrence of event. In case of death, ordinarily a ceiling of one year is imposed to make a claim for such appointment with relaxation of one more year in case the children are minors and would attain majority within two years from the date of demise. Some employers prescribe ceiling on consideration of such claims and some employers provide financial package in lieu of such appointment.
7. The scheme of compassionate appointment is an exception carved out to meet a specific contingency, i.e., to provide succour in the form of employment to dependents of ex-employee who were suddenly deprived of an earning member and the death/medical invalidation would lead them to penury unless employment is provided. It is intended to tide over the sudden crisis engulfing the family. It is something akin to fire fighting mechanism. This crisis cannot be treated as continuous.
8. Consideration of claim for compassionate appointment depends on various factors, such as, the nature of employment of former employee; the financial strength of the family; the number of dependents of Ex-employee; status of the family members; and date of submission of application. The foremost factor for consideration by employer is destitute circumstances prevailing in the family requiring such employment. Thus, proximity to occurrence of event is very significant. If family has survived the calamity and sustained for reasonable time without the financial support in the form of salary of the earlier bread winner / has over come the financial constraints due to continuous ill health of former employee, it is presumed that the family is not in destitute circumstances requiring such appointment.
9. Having regard to the purpose and object of the scheme, it is wrong to assume that a right is vested in the dependent of ex-employee to seek employment at any time irrespective of date of demise/retirement on medical grounds and irrespective of the financial status of the family and after long lapse of time. It being an exception to normal mode of recruitment to public service, it has to receive strict and narrow interpretation.
10. Normally, certain percentage of posts, in specified cadres, is earmarked for such recruitment. Even if claim for compassionate appointment is valid, securing employment depends on the availability of vacancies. If there is less number of posts than the persons claiming employment on compassionate grounds under the scheme, the competent authority should adopt a transparent selection process to select more deserving candidate from among the claimants for appointment, contingent upon fulfilment of above aspects.
11. Thus, such appointment should be made within the percentage of posts reserved for this mode and as it is intended to alleviate the suffering of the family due to sudden loss of earnings by the breadwinner due to his sickness, it must be claimed and provided within reasonable time, soon after the incident. Thus, it is not as a matter of course an appointment is provided under the scheme.
12. On the two issues, we are not in virgin territory. The path is well laid down in the precedent decisions rendered by the Hon’ble Supreme Court.
13. If claim is belated, the very fact that family has survived for a long time without such employment would militate against such claim. It is to be borne in mind that there are millions of Indians who need succour and their families are also in dire need of employment. Highly educated people are driven to seek low paid class-IV employment out of desperation.
14. In the long line of precedent decisions the aspect of delay in making a claim and securing employment proximity to the occurrence of event has come up for consideration before the Hon’ble Supreme Court. The whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. It cannot be granted after a lapse of a reasonable period. The consideration for such employment is not a vested right which can be exercised at any time in future. Delay in seeking such a claim is an antithesis and contradictory to the object sought to be achieved by such scheme. [Umesh Kumar Nagpal v. State of Haryana (1994) 4 SCC 138); CCE & Customs v. Prabhat Singh (2012) 13 SCC 412); Eastern Coalfields Ltd. v. Anil Badyakar (2009) 13 SCC 112]. An exception cannot subsume the primary mode of recruitment to public employment and thereby nullify the main provision and therefore grant of compassionate employment should not unduly interfere with the right of other persons who are eligible to seek employment. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve. [Director of Education (Secondary) v. Pushpendra Kumar (1998) 5 SCC 192); Bhawani Prasad Sonkar v. Union of India (2011) 4 SCC 209]. An application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated. (MGB Gramin Bank v. Chakrawarti Singh (2014) 13 SCC 583).
15. In CCE & Customs v. Prabhat Singh (2012) 13 SCC 412), the Hon’ble Supreme Court cautioned the High Courts in dealing with claims for compassionate appointments. Supreme Court observed:
“19. The courts and tribunals should not fall prey to any sympathy syndrome, so as to issue directions for compassionate appointments, without reference to the prescribed norms. The courts are not supposed to carry Santa Claus’s big bag on Christmas eve to disburse the gift of compassionate appointment to all those who seek a court’s intervention. The courts and tribunals must understand that every such act of sympathy, compassion and discretion wherein directions are issued for appointment on compassionate grounds could deprive a really needy family requiring financial support, and thereby, push into penury a truly indigent, destitute and impoverished family. Discretion is therefore ruled out. So are misplaced sympathy and compassion.”
16. Further, the writ remedy is discretionary remedy. Though no limitation is prescribed to entertain a writ petition under Article 226 of the Constitution of India and no fetters are imposed on writ Court to entertain a writ petition, the principle of law is well settled that a person, who seeks intervention of the High Court under Article 226 of Constitution of India, should invoke the jurisdiction of this Court immediately after cause of action arises and at any rate within a reasonable time. Ordinarily, the reasonable time in prosecuting the writ remedy is the time available to prosecute civil law remedy. Anything beyond that cannot be said as reasonable for prosecuting the writ remedy. Whenever, there is delay in filing writ petition, detailed reasons must be assigned with supporting material. The burden is heavy on petitioner to explain the delay in filing the writ petition when such delay is unreasonably long. The court exercising public law jurisdiction does not encourage agitation of stale claims. (Shiba Shankar Mohapatra Vs State Of Orissa (2010) 12 SCC 471).
17. In City Industrial Development Corporation V Dosu Aardeshir Bhiwandiwala and Others (AIR 2009 SC 571), the Supreme Court held as under :
“A writ of Mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a writ is an adequate ground for refusing a writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum.”
18. Father of the petitioner retired from service on 29.02.2012. Applications made to provide appointment under the scheme were not acted on favourably. This writ petition is filed now praying to direct to provide employment. There is no satisfactory explanation for filing this writ petition after seven years. Merely because, petitioner submits reminders is no ground to file this writ petition after seven years. Having regard to purpose and object of the scheme, it cannot be said that family is still in indigent circumstances to entertain the writ petition and to grant the relief. Delay in filing the writ petition defects such claim at the threshold.
19. After the judgment of the Hon’ble Supreme Court in V.Sivamurthy, Government issued G.O.Ms.No.661, General Administration (Ser.G) Department dated 23.10.2008 re-notifying the scheme of compassionate appointment to dependents of employee retired on medical invalidation grounds. Paragraph-14 prescribes guidelines to consider the claims. In paragraph-17 (The compassionate appointments on medical invalidation shall be limited to 5% of Direct Recruitment vacancies in a unit of appointment.), Government fixed time limit of 5% of vacancies to be filled up by direct recruitment. As seen from paragraph-14 more stringent conditions are stipulated to consider the claims under this scheme compared to the scheme governing appointments of dependents of employee who died while in service. As per paragraph-14.1 (After careful consideration, Government issued the following orders on reviving the scheme of compassionate appoints on medical invalidation of Government employee. (1) This concession of compassionate appointment shall be allowed only in exceptional cases where the appointing authority is satisfied that the condition of the family is indigent and in great distress and when there is no other earning member in the family. The word “family” consists of the members as defined in sub-rule 12 (b) of Rule 50 of A.P. Revised Pension Rules, 1980)to grant appointment person must satisfy that family is in ‘indigent circumstances’ and in ‘great distress’.
20. Petitioner is challenging the restriction imposed in paragraph-17 of the G.O. In support of her contentions, she placed reliance on two decisions of the Division Benches of this Court.
21. It is seen from these judgments that in W.P.No.5437 of 2017 there was no challenge to the 5% limit imposed for such employment. The Division Bench went into the merits of the decision of the Postal Department rejecting petitioner’s claim and issued directions. The Division Bench has not expressed any opinion on the percentage of reservation. In W.P.No.40326 of 2017, another Division Bench followed the decision in W.P.No.5437 of 2017 and granted the relief. In both cases there is no challenge to restriction of consideration only to 5% of the vacancies meant for direct recruitment.
22. In Union of India vs. Joginder Singh (2002) 8 SCC 65) holding that 5% posts meant by direct recruitment in Group-‘C’ and ‘D’ cadres. The Central Administrative Tribunal directed the Union of India to consider relaxing the limit or ceiling of 5% in the scheme and to consider appointing the respondent. The said direction was affirmed by the High Court. The Hon’ble Supreme Court held,
“4. ……If under the Scheme in force any such claim for compassionate appointment can be countenanced only as against a specified number of vacancies arising, in this case 5 per cent, which ceiling it is claimed came to be imposed in view of certain observations emanating from this Court in an earlier decision, the Tribunal or the High Court cannot compel the department concerned to relax the ceiling and appoint a person. Since this method of appointment is in deviation of the normal recruitment process under the rules, where people are waiting in the queue indefinitely, the policy laid down by the Government regarding such appointment should not be departed from by the courts/tribunals by issuing directions for relaxations, merely on account of sympathetic considerations or hardships of the person concerned.”
23. In LIC of India vs. Asha Ramchandra Ambedkar (1994) 2 SCC 718), Hon’ble Supreme Court came down heavily against Courts giving directions to appoint a person on compassionate grounds contrary to the scheme governing such appointments and that courts cannot confer benediction impelled by sympathetic consideration. Supreme Court observed :
“10. Yielding to instinct will tend to ignore the cold logic of law. It should be remembered that “law is the embodiment of all Wisdom”. Justice according to law is a principle as old as the hills. The courts are to administer law as they find it, however, inconvenient it may be.
11. At this juncture we may usefully refer to Martin Burn Ltd. v. Corporation of Calcutta [AIR 1966 SC 529, 535 : (1966) 1 SCR 543] . At page 535 of the Report the following observations are found:
“A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not.”
The courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, it should never be done.”
24. In V.Sivamurthy vs. State of Andhra Pradesh (2008) 13 SCC 730), the Hon’ble Supreme Court upheld the decision of Government to provide appointment to dependent of an employee retired from service on the ground of medical invalidation. In paragraph-18 of the judgment, Hon’ble Supreme Court summarized the principles relating to compassionate appointments. To the extent relevant to this case, they read as under:
“18. The principles relating to compassionate appointments may be summarised thus:
(a) & (b) xx
(c) Compassionate appointment can neither be claimed,
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nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies.” 25. In paragraph-35, Supreme Court dealt with the terms of policy. Hon’ble Supreme Court held that, ‘a policy is not open to interfence merely because the court feels that it is not practical or less advantageous for Government servants for whose benefit the policy is made or because it considers that a more fairer alternative is possible. Compassionate appointment being an exception to the general rule of appointment, can only be claimed strictly in accordance with the terms of scheme and not by seeking relaxation of the terms of the scheme’. 26. Appointment on compassionate grounds is given only for meeting the immediate hardship and not to provide for endless compassion. [I.G. (Karmik) Vs. Prahalad Mani Tripathi = (2007) 6 SCC 162]. Even if all conditions of scheme are fulfilled, there is no right to appointment, but would still within the discretion of the competent authority to reject the request if there is no vacancy. [Food Corporation of India and another vs. Ram Kesh Yadav and another (2007) 9 SCC 531]. 27. Thus, having regard to purpose and object of the scheme of compassionate appointment to dependants of employee retired on medical invalidation grounds and that such appointment is an exception to the normal method of recruitment, whereunder no right is vested in a person to seek employment as a matter of course, restricting consideration of such claims only to 5% of the vacancies earmarked for direct recruitment cannot be said as arbitrary, discriminatory and unconstitutional. When the scheme stipulates certain conditions to grant the benefit of appointment, deviating from normal method of recruitment, it must be strictly applied and no interference is called from the Court. No case is made out to invalidate such limit. 28. The writ petition fails and is accordingly dismissed. Pending miscellaneous petitions shall stand closed.