Dhirubhai Naranbhai Patel, J. - (1.) THIS Letters Patent Appeal has been preferred against the judgment and order passed by the learned Single Judge in W.P. (S) No. 266 of 2013 dated 10th February, 2014, whereby, the prayer of the appellant for getting compassionate appointment was not accepted because of long time gap between the date of death of husband of the appellant, who expired on 6th July, 1999 and the writ petition was preferred in June 2013. On this ground alone that the very purpose of compassionate appointment has been frustrated by now, the writ petition was dismissed by the learned Single Judge and, therefore, the appellant (original petitioner) has preferred this Letters Patent Appeal.
(2.) HAVING heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that: "(i) The appellant is an original petitioner. The husband of the appellant got the job on probation with the respondents on 30th March, 1999 because the mother of the appellant's husband took voluntary retirement from the services of the respondents. (ii) After getting job on 30th March, 1999, the appellant's husband expired on 6th July, 1999 when he was on probation on consolidated pay/stipend of Rs. 2,500/ - per month. (iii) It further appears from the facts of the case that after lapse of approximately 14 years, a writ petition was preferred by the appellant (original petitioner) in the month of June 2013 to get compassionate appointment. (iv) The very purpose of compassionate appointment has been frustrated by now. Compassionate appointment cannot be given as a matter of right, at any time, during the life time of legal heirs of the deceased employee. There is no such law that legal heirs of the deceased employee can be given compassionate appointment, even after one decade. In fact, compassionate appointment is given as an exception to Articles 14 and 16 of the Constitution of India without any advertisement and without allowing the public at large to compete for the post. Compassionate appointment is only given on sympathy and only to give immediate financial support to the family members of the deceased employee. Compassionate appointment is not a longer mode of employment, which can be given at any time during life time of the legal heirs of the deceased employee. (v) It has been held by the Hon'ble Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana and others, reported in : (1994) 4 SCC 138 in paragraphs 2 to 6, which read as under: "2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, 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. The posts in Classes III and IV are the lowest posts in non -manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible.
(3.) IT is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even directed compassionate employment either as a matter of course or in posts above Classes III and IV. We are also dismayed to find that the decision of this Court in Sushma Gosain v. Union of India has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above Classes III and IV. In the present case, the High Court has rightly pointed out that the State Government's instructions in question did not justify compassionate employment in Class II posts. However, it appears from the judgment that the State Government had made at least one exception and provided compassionate employment in Class II post on the specious ground that the person concerned had technical qualifications such as M.B.B.S., B.E., B. Tech. etc. Such exception, as pointed out above, is illegal, since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the penurious condition of the deceased's family. Neither the qualifications of his dependant nor the post which he held is relevant. It is for this reason that we are unable to understand the following observations of the High Court in the impugned judgment: "We are of the view that the extraordinary situations require extraordinary remedies and it is open to the Government in real hard cases to deviate from the letter and spirit of the instructions and to provide relief in cases where it is so warranted. To hold as a matter of law that the Government cannot deviate even minutely from the policy of providing appointment only against Class III and Class IV posts, would be to ignore the reality of life these days. It would be ridiculous to expect that a dependant of a deceased Class I Officer, should be offered appointment against a Class III or IV post. While we leave it to the Government to exercise its discretion judiciously in making appointments to Class I or II posts on compassionate grounds, yet a word of caution needs to be struck. It is to be noted that such appointments should be ordered in the rarest of rare cases, and in very exceptional circumstances. As a matter of fact, we would recommend that the Government should frame a policy even for such appointments.";