Compassionate Employment is not a matter of right but given on humanitarian Ground: An Overview

Female dependent eligible for compassionate employment: In Mamni Pradhan v. South Eastern Coalfields Pvt. Ltd. & Ors [Writ Petition (S) No. 4712 of 2018] , clause 9.5.0(iii) of the National Coal Wage Agreement – VI was challenged on the ground of being violative of Articles 14, 15, 16, and 21 of the Constitution of India as it allowed only a male dependent aged more than 12 years to be kept in the live roster for compassionate appointment but not a female dependent. The High Court of Chattisgarh, Bilaspur interpreted that the said clause should be read to include a female dependent aged 12 years in the live roster.

Compassionate Appointments

It is an obscure fact that even after the development of comprehensive jurisprudence on ‘compassionate appointments’, the expression has not been defined by any legislation. At present, the ‘Scheme for Compassionate Appointment under Central Government’ regulates the matters pertaining to compassionate appointments. The object, as stated by the scheme, is to make an appointment on compassionate grounds to a family member dependent on a government servant who died in harness or retired due to medical grounds, and thereby, the family of such government servant is left without any means of livelihood. Upon fulfilment of certain conditions, the case of a missing government servant can also be covered under the scheme. The procedural requirements to be followed for ordinary recruitment are exempted by the scheme.

In The Secretary to Govt. Department of Education (Primary) & Ors. v. Bheemesh Alias Bheemappa [Civil Appeal No. 7752 of 2021], the Supreme Court held that there exists no vested right to claim appointment merely on compassionate grounds. The appointment on compassionate grounds should be made only after due consideration to factors such as the economic dependence of the family on the deceased employee, financial condition of the family, and the occupation of other family members. It was further observed that the Rule, as it stood on the date of death of the employee, shall be applicable instead of the date of consideration of claims.

A Bench comprising of Justices D.Y. Chandrachud and A.S. Bopanna in December 2021 judgment said the compassionate employment scheme was intended to enable a bereaved family tide over financial crisis caused by the untimely death of a breadwinner while in service. “Compassionate appointment is not a matter of right, but is to enable the family to tide over an immediate crisis which may result from the death of the employee,” the court noted. The court was hearing an appeal filed by the Union government against a Madras High Court judgment which upheld a Central Administrative Tribunal direction to consider the compassionate appointment of the widow of a sergeant in the Air Force, who had died of cancer in 2008. The Supreme Court has held in an order that compassionate employment is not a vested right.

Dependent Family Members

The scheme qualifies the following relations to be considered as ‘dependent family members’:

1. Spouse, or
2. Son including an adopted son, or
3. Daughter including an adopted daughter, or
4. Brother/sister in case of an unmarried government servant.

The scheme expressly provides that out of all dependent family members, the widow is to be given preference.

Lately, the list of dependent family members was extended by the ruling of Smt. Peddisetti Anitha Sree @ Yenepalli Anitha Sree v. State of Andhra Pradesh [W.P. No. 28931 of 2021]. In the instant case, the Court placed heavy reliance on the decision rendered by Karnataka High Court in Bhuvaneswari v. Puranik and observed that a married daughter may be considered to be a dependent family member if the circumstances are such and is, therefore, entitled to be considered for compassionate appointment.

Further, in State of U.P. through Principal Secretary, Basic Education Dept. & Ors. v. Noopur Srivastava [Allahabad High Court, C.M. Application No. 146871 of 2018], the Allahabad High Court held that a ‘divorced daughter’ is included in the expression ‘unmarried daughter’ and entitled to the appointment on compassionate grounds if the following conditions are satisfied:

1. She was dependent on the date of death of her father or mother (employee),
2. Her marriage was dissolved prior to or after the date of death of the employee, and
3. She remains ‘unmarried’ at the time of appointment.

Eligibility criteria

The scheme states that the following criteria should be fulfilled to obtain the benefit of the welfare scheme:

1. The family is indigent and needs immediate financial assistance for relief from financial distress, and
2. The applicant should be qualified and suitable for posts under relevant Recruitment Rules. (Only Group ‘C’ or Group ‘D’ posts are considered where direct recruitment quota is permissible.)

In the matter of National Legal Services Authority v. Union of India, reported in (2014) 5 SCC 438, the Supreme Court recognized that gender identity is an integral part of sex within the meaning of Articles 15 and 16 of the Constitution of India and no citizen can be discriminated on the ground of gender. The Supreme Court observed as follows:

“We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.”

Latest Position

Pay scale: In State of U.P. v. Aishwarya Pandey [Supreme Court, SLP(C) No. 19255 of 2021], the respondent was appointed as Officer on Special Duty on compassionate grounds but placed in a pay scale lower than what was applicable to the said post. The Supreme Court observed that once a person is appointed to a post, such a person is entitled to the pay scale of that post irrespective of the appointment being made on compassionate grounds. Therefore, the State cannot have different pay scales for an employee appointed on compassionate grounds and an employee recruited in the ordinary manner.

Suitable post: In State of U.P. & Ors. v. Premlata [Supreme Court, Civil Appeal No. 6003 of 2021], the respondent, being aggrieved by the rejection of her application for compassionate appointment on the ground of non-fulfilment of eligibility criteria, filed an appeal. The Supreme Court held that the High Court misinterpreted Rule 5 of the Dying-in Harness Rules 1974. It observed that if the expression ‘suitable post’ is interpreted as a post suitable to the educational qualification of the dependent would defeat the object and purpose of compassionate appointment.

A bench of Justices MR Shah and AS Bopanna in a matter adjudicated on October 5, 2021 said that as per law laid down by the apex court in several decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of dependent of deceased and is in favour of dependent of deceased dying in harness and leaving his family in penury and without any means of livelihood. Compassionate ground is a concession and not a matter of right. This was a matter of appeal heard by bench in 2021 from a judgment passed by the Allahabad High Court.  The bench also observed that the dependent applicant is not eligible to seek appointment on compassionate ground at such higher level then that held by deceased on the ground that she is fulfilling the criteria of higher post.

Compassionate appointment is an exception not a rule in public service to take care of the loss of bread earner in time of financial stress in times of loved ones. The changing dynamics of society are also reflected in law and judgments as the later caters to the former. The present expansion of compassionate employment includes the female dependent as protagnist for the compassionate employment as well. The law is just provided as concession nor as a matter of right to the eligible family and is only exception to the fundamental right when applied.

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