Compassionate Appointment in Service Laws: Overview

Profile of the author: Sejal Tayal is a law student at MAIMS (School of Law) and has a keen interest in contemporary legal issues

Introduction

The object of the scheme of Compassionate Appointment is to grant appointment on compassionate grounds to the dependent family member of a Government servant dying in harness or who has retired on the medical grounds thereby, leaving the family in penury and helplessness, without any livelihood [1]. The reason behind a provision for grant of compassionate employment is to enable the family of the deceased to tide over the sudden crisis resulting from the death of the bread-earner. This is done to ensure that the death of an individual does not become economic death of his family.

Exception

Appointment on compassionate ground is an exception to the general rule that recruitment to public services should be on the basis of merit. It is to be construed as violation of Articles 14 and 16 of the Constitution of India and is only in the nature of concession and therefore, does not create a vested right in favour of the claimant. A compassionate appointment scheme is a non-statutory scheme and is in the form of a concession and it cannot be claimed as a matter of right by the claimant to be enforced through a writ proceeding. A compassionate appointment is justified when it is granted to provide immediate succor to the deceased employee. Mere death of a Government employee in his harness does not entitle the family to claim compassionate employment. The competent authority has to examine the financial condition of the family of the deceased employee and only if it is satisfied that without providing employment, the family will not be able to meet the crisis, then a job is to be offered to the eligible member of the family of the deceased employee.[2]

Essential to show that candidate has better claim

It is pertinent to note the fact that in a liberalized world as of today, there are plenty of avenues of employment available to the general public. Most of the people are not entirely dependent on the income of a single member of the family. Keeping this new social structure in mind, it would be seemingly right for the Courts to ensure that there is no abuse of the scheme of compassionate appointment either by the employer or by the applicant/claimant.

In the case of Mukesh Kumar Das v. Union of India[3], the Court observed that in the matter of compassionate appointment, vacancies are limited for a particular year out of the total post in the cadre i.e., 5%. Applicant’s claim was considered four times earlier and each time he did not find place amongst the candidates falling within the vacancies for that year against the quota of compassionate appointment. Applicant has not been able to show that he had a better claim than the other candidates above in the list. Moreover, the earlier orders of rejection were also not challenged and had become stale.

To whom applicable

(A) Kith or Kin of a Government servant who –

(a) Dies while in service (including death by suicide)

(b) is retired on medical grounds under Rule 2 of the CCS (Medical Examination) Rules 1957 or the corresponding provision in the Central Civil Service Regulations before attaining the age of 55 years (57 years for Group ‘D’ Government servants)

(c) is retired on medical grounds under Rule 38 of the CCS (Pension) Rules, 1972 or the corresponding provision in the Central Civil Service Regulations before attaining the age of 55 years (57 years for Group ‘D’ Government servants)

(B) of a member of the Armed Forces who – (a) dies during service; or (b) is killed in action or (c) is medically boarded out and is unfit for civil employment.

"Dependent Family Member" means: (a) spouse (b) son (including adopted son) (c) daughter (including adopted daughter) (d) brother or sister in the case of unmarried Government servant (e) member of the Armed Forces who was wholly dependent on the Government servant/ member of the Armed Forces.[4]

It was held in the case of Kusum Devi v. State of U.P.[5], 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 this case of State of Gujarat v. Arvindkumar T. Tiwari, the Court held that a person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules, and would therefore, be void in law.

Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. Clause 9 of regulations, provides that no relaxation in educational qualification(s) for the purpose of giving compassionate appointment to the dependant(s) of a deceased employee, would be permissible. However, such relaxation can be granted if there exists some requirement of minimum qualification(s) with respect to the said post.

Conclusion

With the meagre pension benefits, a family will not be able to sustain in the present day when cost of living is going up consistently. Of course, there is a provision for providing employment to eligible dependent member of the immediate family of the Government servant on compassionate grounds. But it has been observed that the employment is refused on flimsy grounds or the family is made to run from pillar to post to get employment. Sometimes, employment is also refused on the ground that quota fixed for such appointments is already over or none of the family members was found eligible for appointment in Government service. Only in very few cases, compassionate employment is provided to immediate family members of the Government servants. In order to mitigate the sufferings of the family members of the Government servants, it seeks to provide for compulsory employment to dependent family members of the Government servant on compassionate grounds within a given time frame. This will go a long way in mitigating the sufferings of the family members of the Government servants. Moreover, the Supreme Court has, in a judgement, ordered that compassionate appointments can be mandatory but can only be given in certain circumstances. As a result, many of the families are suffering.

Compassionate appointment constitutes a major segment of service law jurisprudence and at the same time it is intrinsically related to basic human right to life.

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[1] THE GOVERNMENT SERVICES (REGULATION OF COMPASSIONATE APPOINTMENTS) BILL, 2014

[2] P.Balasubramanian vs The Commissioner, W.P.(MD) No.20872 of 2013

[3] 2020 SCC OnLine Jhar 231

[4] http://cbn.nic.in/html/Compass7.pdf

[5] 2009 SCC OnLine All 1941