DYING IN HARNESS : LAW OF COMPASSIONATE APPOINTMENTS

Author(s): Tirlok Nath Arora

Source: Journal of the Indian Law Institute , January-March 1996, Vol. 38, No. 1
(January-March 1996), pp. 38-57
Published by: Indian Law Institute

Stable URL: http://www.jstor.com/stable/43951622

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

Indian Law Institute is collaborating with JSTOR to digitize, preserve and extend access to
Journal of the Indian Law Institute

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
38

DYING IN HARNESS : LAW OF COMPASSIONATE

APPOINTMENTS

Tirlok Nath Arora*

I Introduction

HUNGER AND death are two hard realities of life. The majesty of death is i
equality for it makes no discrimination between the young and the old, the ri
and the poor and the king and the beggar. So does hunger. Death of an individ
brings his hunger to an end while his kith and kin may find themselves to be
red - more so when the deceased was the sole earning member of his family.
dead man does not always leave behind property; he may at times leave behin
poverty. Therefore what should be done to see that death of an individual does not
become economic death for his family? There is no denying the fact that in
welfare state ensuring bread to the family of dead, let alone living persons, is
obligation of the state. The state's obligation in this regard confined to
employees who die in harness as well as those who become medically unfit duri
service is the focus of this paper. The purpose of this paper is to critically examin
the law of compassionate appointments with the help of judicial pronouncemen
on point.
State and many of its instrumentalities have framed Schemes or Rules1 for
providing compassionate appointments to the dependents of those employees who
die in harness. These schemes and rules framed for the benefit of dependents of
the deceased employees dying in harness have been held social welfare in nature
for which support has been derived from the provisions of Part IV of the Indian
Constitution, viz., Directive Principles of State Policy.2

II Mode of compassionate appointments - an exception

The mode of compassionate appointments is an exception to the general rule

of appointment because no applications are invited while making such appoint-
ments. This exception is judicially recognised. Thus, it has been observed that as
a rule, appointments in the public services should be made strictly on the basis of

* LL.M., Ph.D (Delhi), Assistant Editor, Supreme Court Reports, Supreme Court of India, New
Delhi.
1. E.g., scheme of compassionate appointments under the Central Government contained in O.M.
No. 14014/5/86 Estt. (D) dated 30 June 1987 read with O.M. dated 17 Feb. 1988, 22 Sept. 1992, 28 Sept.
1992 and 25 January 1993 issued by Ministry of Personnel, Public Grievances and Pensions (Deptt. of
Personnel and Training) Referred to in All India Services L. J., vol. 2, 41,(1994).
2. Basavraj Fakirappa Manavi v. Managing Director K.S.R. T., 1994 (7) S.L.R. 342, 345-46. Also
see, Prakash Chand Jaine v. State of Rajasthan, 1992(5) S.L.R. 680, 683 stating that Rules providing
for compassionate appointments are welfare legislation intended to benefit a class of persons, namely
the dependents of the deceased employee.

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
1 996] DYING IN HARNESS : LA W OF COMPASSIONA TE APPOINTMENTS 39

open invitation of applications and merit. No other mode of appointment nor

other consideration is permissible. Neither the government nor the public aut
ties are at liberty to follow any other procedure or relax the qualification
down by the rules for the post. However, to this general rule which is
followed strictly in every case, there are some exceptions carved out in
interests of justice and to meet certain contingencies. One such exception
favour of the dependents of an employee dying in harness and leaving his fam
in penury and without any means of livelihood. In such cases, out of
humanitarian consideration taking into account the fact that unless some
of livelihood is provided, the family would not be able to make both ends
a provision is made in the rules to provide gainful employment to one o
dependents of the deceased who may be eligible for such employment.3

Ill Basis and validity of exception

Just as pension is given to an employee in consideration of the serv

rendered by him, the provision for making compassionate appointments h
been related with services rendered by him. Consequently, it has been hel
the exception to the rule made in favour of the family of the deceased em
is in consideration of the services rendered by him and the legitimate expecta
and the change in the status and affairs of the family engendered by the erst
employment which are suddenly upturned.4 The provision for making co
sionate appointment as an exception to the general rule of recruitment b
inviting open applications and selecting candidates on merit is not discriminat
and is valid and justifiable. The favourable treatment given to the depend
a deceased employee has a rational nexus with the object sought to be ach
viz., relief against destitution.5

IV Object of compassionate appointments

The whole object of granting compassionate employment is to enable

family of the deceased employee to tide over the sudden crisis. The object
to give a member of such family a post much less a post for post held
deceased.6 The purpose is to mitigate the hardship due to the death of the
winner of the family.7 Giving appointment on compassionate grounds is to in
confidence in an indirect way in the mind of the members of the family
deceased so that they can lead a peaceful life. Any amount of compensat
received in terms of money does not console the separated party, partic

3. Umesh Kumar Nagpal v. State of Haryana , 1994 (2) S.L.R. 677 at 678.
4. Ibid.
5. Ibid. Also see, Auditor General of India v. G. Anantha Rajeshwara Rao , 1994 (1) S.C.C. 192.
(Holding that compassionate appointments are valid as they are not based on the ground of descent
simpliciter).
6. Supra note 3 at 678.
7. Sushma Gosain v. Union of India , 1989 (4) S.L.R. 327, 329. Also see, Dhanlakshmi v. Diovil.
Manager, A.P.S.R.T.C. 1994 (5) S.L.R. 128, 131 (Stating that the object is to render immediate relief to
the family which is in distress that is to say without the income of the bread earner the family is exposed
to wear and tear and thereby inconvenience is caused to the members dependent).

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
40 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 38 : 1

when the dependent is educated and unemployed, the void

of a spouse will definitely affect the mind of the other and t
such a person is put in action and is kept busy. This can be do
appointment.8

V Nature of right in compassionate appointmen

Common law does not oblige an employer to provide a
dependents of a deceased employee. Even the Constitutio
specifically oblige any employer to provide compassionate
legal heirs or dependents of the deceased employee. In other w
of an employee who dies in harness can claim compassion
matter of right unless a scheme is framed by the concerned e
a statute or in exercise of its executive power providing
However, in consonance with the welfare state, in recent
both in public and private sectors have evolved schemes p
sionate appointments to the dependents of the deceased em
hardship that may be caused to such dependents on accoun
an employee in harness.10 Thus it has been stated that per
department, if he was the only bread earner and dies while o
certainly hopefully look at the concerned department for
being appointed on compassionate ground in token of re
service rendered to it. Such humanistic appointments on
should not be taken as some mercy shown to some beggar, ra
concerned department to see that the heirs are not let down
in absence of the deceased.11 On the question as to what is
compassionate appointments different views have been e
Courts.12 The Supreme Court has held that the mere dea
harness does not entitle his family to a source of livelihoo
the public authority concerned has to examine the finan
family of the deceased, and it is only if it is satisfied, that b

8 M. Usha Ramprasad v. India Trade Promotion Organisation , 1994 (

9. A. Radhika v. G.M. Hindustan Aeronautics Ltd., 1995 (6) S.L.R. 691
10 .Ibid.
1 1. P. Jeram Sindhalv. G.S.R.TC. , 1994 (3) S.L.R. 213 at 216.
12. See, Som Nath v . State of Haryana, 1994 (8) S.L.R. 738, (stating that where the state government
has adopted a scheme, which is administrative in character, which accepts in principle that the depen-
dents of the deceased employee will be given employment it can legitimately be said that a legal right
has come to vest in the petitioner to be appointed).
But see, Indian Bank v. K. Usha , 1993 (4) S.L.R. 331, 335, (stating that the expression 'on
compassionate grounds' indicates beyond doubt that any legal heir of an employee dying in harness is
not entitled as of right to get appointed); Lalit Kumar v. State of Haryana, 1994 (2) S.L.R. 751, 753.
(Holding that instructions issued by Government of Haryana regarding compassionate appointments are
policy decision in nature and policy decision does not confer any legal right on the heirs of the deceased
government employee); Niranjan Ghosh v. M.D. Durgapur Steel Plants, 1993 (2) S.L.R. 659, 660.
(Stating that employment on compassionate ground on the basis of memorandum as entered into
between the parties does not confer any right to get employment as a matter of right and it is absolutely
at the discretion of the employer to give such an appointment).

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
1 996] DYING IN HARNESS : LA W OF COMPASSIONA TE APPOINTMENTS 4 1

of employment, the family will not be able to meet the crisis that a job is
offered to the eligible member of the family.13 Thus it can be said that appoin
ments which should be offered on compassionate ground are need based.

VI No right to a particular post

An applicant seeking compassionate appointment has no right to any particu

lar post of his choice, he can only claim to be considered for that post.14 W
the son of a deceased constable applied for the post of a Sub-inspector but
offered the post of a lower division clerk and on his petition the tribunal direc
appointment as inspector on the ground that in another case appointment
given as inspector, it was held that it is ultimately for the authorities conce
to decide if some common principle was involved in the two cases. If a mis
was committed in an earlier case that cannot be a ground for directing the
to perpetuate the error for all times to come.15

VII What posts can be offered on compassionate ground?

In case of compassionate appointment is it necessary that the dependent of t
deceased employee should be offered a post keeping his qualifications in vie
the status of the deceased employee? It has been held that the post in Class III an
IV are the lowest posts in non manual and manual categories and hence they alon
can be offered on compassionate ground, the object being to relieve the family
the financial destitution and to help it get over the emergency.16 In fact
Supreme Court was so emphatic on this point that it observed that neither
qualifications of the dependent of the deceased employee nor the post which
deceased held is relevant.17 If the dependent of the deceased employee find
below his dignity to accept the post offered, he is free not to do so. The po
offered not to cater to his status but to see the family through the econo
calamity.18 Thus where the state government's instructions in question did
justify compassionate employment in Class II posts but the government mad
exception and provided compassionate employment on the specious ground
the person concerned had technical qualifications such as MBBS, BE, B Tec
etc., such an exception was held illegal.19 In fact offering posts on compassi
ground as a matter of course and even in post above Classes III and IV has b
a subject of judicial deprecation. Thus, it has been observed that unmindful of t
legal position, some government and public authorities have been offering
passionate employment as a matter of course irrespective of financial condi
of the family of the deceased and sometimes even in posts above Classes III
IV. That is legally impermissible,20 However, cases are not unknown where unde

13. Supra note 3 at 678.

14. State of M.P. v. Rakesh Kumar Sharma , 1995 (6) S.L.R. 63.
15 .Ibid.
16. Supra note 3 at 678.
17. Id. at 679.
18 .Ibid.
19 .Ibid.
20. Id. at 678. Also see, State of Bihar, v. Samsuz Zoha , 1996 (4) SCALE 100.

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
42 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 38:1

the rules posts in higher classes have been offered. In f

been expressed in this regard by observing that the obje
by state for providing compassionate appointment is not to
offering a very lower post. Logic behind such instructions
the deceased employee is provided with a source of live
a respectable living, which can only be if posts in conso
qualifications are offered.21

VIII Persons eligible for appointment

Persons eligible for appointment on compassionate g

specified in the rules or schemes framed by the employer.
from sons or daughters of the deceased employee to their
validity of these provisions it has been held that the appoin
or a widow of a deceased government employee is not
of the Constitution but its vagueful extension to 'near
article 16(2). Thus where the instructions22 for compass
provision not only for son, daughter or widow of the d
extended the benefit to near relative in vagueful manner,
to the later category was held violative of article 16(2).
However, the purpose of relieving the family of the dec
economic distress would be defeated if rigid approach i
Thus where the sole bread earner of the family, an unm
behind his mother and sister who were living in absolute p
ment instructions provided that only a son or daughter
employee was entitled to employment it was held that the
relax the instructions and consider appointment in fav
also.24

Married daughter

Rules and schemes providing for compassionate appo

clude married daughters from the eligibility zone. Where t
a deceased employee, who was deserted by her ment
sought compassionate appointment but the same was rej
she was married such a rejection has been held to be vi
15 of the Constitution.25 In fact such an exclusion has invi
: 'that though women have equal rights in law, tradition an
Indian women in enjoying equal rights with men. Wit
structure and life style and the social norms nothing is so

21. See, Shanti Devi v. State of Haryana , 1992 (6) S.L.R. 320.
22. See, O.M. No. 1401 4/1 /77/Estt(D) dated 25 Nov. 1978. Referred t
v. G. Anantha Rajeshwara Rao , supra note 5.
23. ibid. Also see, State of Haryana v. Dhan Singh, 1996 (1) SCALE 6
whether brother of the deceased employee is entitled to compassionate
24. Rekha Kumari v. Managing Director A. P. SC/ST Co-op Financ
25. R. Jayamma v. K.S.E.B. Bangalore, 1993 (1) S.L.R. 356.

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
1996] DYING IN HARNESS : LAW OF COMPASSIONATE APPOINTMENTS 43

as a blind adherence to outworn forms ànd obsolete social customs which surv
because of inertia. This discrimination in refusing compassionate appoi
only on the ground that a woman is married is violative of Constitutio
guarantee. It is out of keeping with the trend of times when men and w
compete on equal terms in all areas.26
Where there was no restriction in the Rules27 to the nomination of a mar
daughter and the widow of the deceased employee, who herself was phy
incapable of rendering service, nominated her married daughter, the court or
the authorities to pass necessary order for appointment.28

IX Dependents of deceased temporary, casual, ad hoc or dismissed

employees - whether entitled to compassionate appointments?
Compassionate appointment cannot be denied on the ground that at th
of death the services of the deceased employee had not been regularise
where a casual gangman in Railway had eighteen years of service which w
regularised and he died in harness it was held that feasibility of giving a
ment should be considered on the premises that the services of the dec
employee had been regularised.29
Where the deceased employee was a casual labourer and his wife was
employed on casual basis on compassionate ground, her claim for régular
of appointment was upheld by holding that appointment had all the trapp
compassionate appointment.30 Instructions issued for compassionate ap
ment31 have been held applicable equally to ad-hoc employees.32 Howev
wife of a deceased officer who was dismissed has no right to get employm
compassionate ground.33

X Period within which compassionate appointment should be claimed

Compassionate employment cannot be granted after lapse of a reaso

period which must be specified in the rules. It is not a right which can be ex
at any time in future. It cannot be claimed and offered whatever the lapse of
and after the crisis is over.34 It has been held that normally all appointm
compassionate grounds should be made within a period of five years from th

26. Id. at 358. Cf. Savita Samvedi v. Union of India, 1996(1) SCALE 598 (Holding constitu
invalid a Circular issued by Railway Board which provided that a railway quarter held by
employee cannot be regularised in favour of married daughter of the employee).
27. Rajasthan Recruitment of the Dependents of the Govt. Servants Dying while in Serv
1975.

28. Raj Rani v. Collector, 1994 (8) S.L.R. 334.

29. See, Natumnala Makal v. Union of India , 1993 (3) S.L.R. 244.
Also see, State of Manipur v. Thingujam Brojen Meetai, 1996 (4) SCALE 553. (Holding that the
dependents of a work charged employee cannot claim the benefit of compassionate appointment).
30. Chameli Devi v. Dy. General Railway Manager, 1991 (7) S.L.R. 17.
31. Policy instruction issued by State of Haryana. See, K. Chandra v. State of Haryana , 1992 (2)
S.L.R. 646.
32. Ibid.
33. Shashi Mittal v. Union of India , 1991 (3) S.L.R. 75.
34. Supra note 3 at 679.

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
44 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 38:1

of occurrence of the event entitling the eligible persons to be

the employee died leaving behind two major sons and mother
were apparently capable of meeting the needs of the family an
on for nearly twenty years apparently without any difficulty
for appointment after twenty years, the direction given by t
such a claim was held wholly illegal and without jurisdict
limitation prescribed cannot be made applicable in each a
the rules provided for a period of three years it was held that
where an employee would die leaving behind infants. In su
be any occasion for making any application for appointmen
It is natural that minor dependents would acquire qual
employment which would obviously take long years from
bread winner died. The limitation period is to be construed in
be made applicable in each and every case.37 If delay in mak
been on account of slumber or negligence of applicant in s
be denied the relief unless laches are unexhorable and une

XI Where any member of the family of deceased employ

whether compassionate appointment can be made

Though the object of the compassionate appointment is t

of the deceased employee from financial hardship yet the
its dependents is by itself no bar for providing relief to othe
the scheme nowhere provided for denial of relief if one of
employment at the time of death of the employee, the denial
son of the deceased on the ground that one son was emp
justified.39 It was held that the expression 'family' under
defined ordinarily to mean and include a unit as consisti
servant, his wife and dependent children including depende
is major, employed and living with his family separately, he c
to be a member of the family of the deceased employee dying
a situation the question has got to be considered in the li
prevailing in the family that the dependents, i.e., the w
children definitely would require economic assistance to meet

35. Union of India v. B. Singh , 1995 (6) S.C.C. 476.

36. Ibid. Also see, Jagdish Prasad v. State of Bihar, 1996 (1) S.C.C. 301
the petitioner for compassionate appointment who was four years old in 19
filed the claim after attaining majority in 1994); H.S.E.B. v. N. Tamvan,
37. Chandro Devi v. State of Haryana , 1993 (5) S.L.R. 623 at 625.
38. B.F. Manavi v. M.D., K.S.R.T.C. 1994 (7) S.L.R. 342 at 347.
39. Ibid. Also see, Motia Devi v. Life Insurance Corporation, 1993 (3
appointment could not be denied on the ground that other son of the dece
in employment).
Chandro Devi v. State of Haryana , supra note 37. (Quoting with approval
ate appointment could not be denied simply on the ground that one son of
got the employment).

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
1 996] DYING IN HARNESS : LA W OF COMPASSIONA TE APPOINTMENTS 45

by sudden death of the employee.40 Thus if the rule making authority has itself
chosen to restrict the scope of the rule to cases where any one member of t
family is already in employment it is not possible to read such an impl
restriction in rules.41 But where the Regulations do not contemplate appointment
on compassionate grounds when one of the members of the deceased is gainfu
employed, the court cannot issue direction for appointment as no mandamus
be issued against the law.42 However, while interpreting rules a rigid and technica
approach should not be adopted and keeping in view the object of compassion
appointment a sympathetic and humanistic approach is desirable. If some of t
wards of the late employee were in employment but did not contribute anyth
to removal of hardship to the family of the deceased it would not be rationa
reject the request on the basis of employment of such persons who would be
no use to the family. It is not the employment of any ward of the late emplo
that is relevant, but what is relevant is whether such employment has the re
of removing the immediate pressing need of the family of the deceased em
ployee.43 Where a female employee died leaving behind her daughter, son
husband and the husband who was also employed remarried and was liv
separately without looking after the daughter and son, the claim of daughter for
compassionate appointment was held maintainable.44 Where the employee di
leaving behind his old parents, one unmarried sister and one married old brot
living separately and not supporting the family, the claim of unmarried sister fo
appointment was held valid.45

XII Receipt of retirai financial benefits by family of deceased

employee - whether a bar for compassionate appointment ?

Financial benefits which the family members of the deceased employee a

legitimately entitled to receive on the death of the employee is not a ground
reject claim of compassionate appointment.46 Where the family of the decea
employee was in a position to earn income of Rs. 1,000 p.m. inclusive of fam
pension it was held that the income was meagre and the application for empl
ment on compassionate ground cannot be rejected on the basis of such level
income.47 Keeping in view the object of providing compassionate appointmen
would be desirable to assess the situation in an objective manner as to the financia
position of the family of the deceased employee and in doing so the only fac
of receipt of retirai benefits should not be made a basis for deciding the cla
Thus it has rightly been decided that the application for compassionate appoi
ment should not be rejected merely on the ground that family of the decea

40. B.F. Manavi v. M.D., K.S.R.T.C. , supra note 38.

41. Prakash C hand Jain v. State of Rajasthan, 1992 (5) S.L.R. 680.
42. See, L.I.C. v. Asha Ramachandra Ambekar, 1994 (2) S.L.R., 1.
43. Muniammal v. Engr.-in-charge Army Hqrs, 1992 (8) S.L.R. 808 at 809.
44. T. Angel Rebeelal v. Govt, of T.N. , 1994 (6) S.L.R. 210.
45. Miss Chabbi Sood v. Chairman Himachal Gramin Bank , 1994 (4) S.L.R. 134.
46. M. Usha Ram Prasad v. India Trade Promotion Orgn ., supra note 8.
47. Muniammal v. Engr-in-Chief Army Hqrs., 1992 (8) S.L.R. 808. But See, Gian Devi v. Unio
India , 1991 (8) S.L.R. 593. Surjit Kaur v. Union of India. 1992 (7) S.L.R. 224.

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
46 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol .38:1

employee has received the benefits under the various we

these benefits should be taken into account, the financial cond
has to be assessed taking into account, (/) its liabilities and
such as the number of earning members, and (//) size of
balanced and objective assessment of the financial condition of
while considering the claim of compassionate appointment

XIII Age bar and compassionate appointment

When the appointment is being made on the compassion

that the petitioner is over-age should not stand in the way of
the rules for compassionate appointment50 were given over
the rules, the age prescribed for recruitment to the post of s
service rules51 was held inapplicable in case of compassion

XI Qualification exemption and compassionate app

Where an employee was murdered while in service and
dependent upon the deceased employee was to be given immed
Rehabilitation scheme of the employer, it was held that one f
be immediately provided with a job suitable to his qualifica
even by relaxing the requisite qualifications in case depen
income other than that of the deceased employee.53

XV Compassionate appointments during ban on recr

Law laid down by the Supreme Court54 to the effect that i

post for compassionate appointment, supernumerary post
accommodate the applicant is a judgment in rem}5 Therefore,
a ban on recruitment cannot be a valid and good ground to
the claim for compassionate appointment.56 Hence even if
has been imposed by a company it is a legal obligation on
the Constitution to act in the enforcement of law. In car
obligation if an authority has to violate its own executiv
instructions, it should do so and if it does so no one can take

48. See, O.M. No. 14014/1 4/9 1 /Estt. (D) dated 28-9-1992 issued by Minist
Grievances and Pension, Department of Personnel and Training, Cited in 19
J . 43.
49. Pushpa Rani v. State of Punjab. 1992 (6) S.L.R. 90.
50. See, rule 4 of the Rajasthan Recruitment of the Dependents of Government servants Dying while
in Service Rules 1975.
51. See, Rajasthan Police Subordinate Service Rules 1989.
52. State of Rajasthan v. Chander Narain Vanna, 1993 (4) S.L.R. 773.
53. Ch. Dhanlaxmi v. Divi. Manager A.P.S.R.T.C., 1994 (5) S.L.R. 128.
54. See, Sushma Gosain v. Union of India , supra note 7.
55. A. Radhika v. G.M. Hindustan Aeronautics, 1995 (6) S.L.R. 691, 698-700.
56. Id. at 701.

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
1 996] D YING IN HARNESS : LA W OF COMPASSIONA TE APPOINTMENTS 47

an action.57 The government of India has also decided that compassionate appoint-
ments are exempted from the ban of filling up the posts.58 This view tak
judicially and administratively is in tune with the object of filling up the posts in
case of compassionate appointments.

XVI Employers9 province : some do's and don'ts

Though compassionate appointment cannot be claimed as a matter of right yet

while considering such a claim the employer must act fairly, reasonably an
objectively. What are the factors it should take into account and what are
limitations on the power of the employer in this regard? Some of the do's a
don'ts, based on judicial pronouncements, for the employer are discussed bel

(1) Assessing pecuniary conditions of family of deceased

While considering a claim for compassionate appointment it is the duty of th

employer to assess the financial condition of the family of the deceased employee
Therefore, before the grant of compassionate appointment the competent author
ity has to satisfy himself that the claim is justified having regard to, (/) the numb
of dependents; (//) the assets; (iii) liabilities left by the deceased employee; as
(iv) the income of the family.59 However, each case has to be decided on the b
of its facts. Thus, whether a family is indigent or not is a matter to be decided o
facts. Indigence is a relative expression depending on the prevailing economic
social conditions. Though a scheme for compassionate appointment is intende
reach succour to the needy yet it cannot be converted into monopoly. Dive
considerations must guide the decision.60 Ignorance of this factor has been
subject of judicial deprecation : 'unmindful of the legal position, some gover
ments and public authorities have been offering compassionate employment
matter of course irrespective of the financial condition of the family of t
deceased. This is legally impermissible.'61

(2) No delay in consideration of claim for compassionate appointment

It is imperative on the part of the employer to consider the claim of depe

dents of the deceased employee within a reasonable time. Inaction on the par
the management is arbitrary, unreasonable and violative of article 14 of th
Constitution.62 In such a case petitioner is entitled to a writ of mandamus from
court for a direction to consider his case within a specified time.63 Since t

57. Id. at 700.

58. See, O.M. No. 14014/22/92/Estt(D) Dt. 25-1-1993 Ministry of Personnel, Personnel Grievances
Pensions (Department of Personnel and Training) Referred to in 1994 (2) All India Services L.J. 43.
59. Chintamani Debi v. E.S.I. Corporation , 1991 (5) S.L.R. 404 at 405.
60. Pyari Devi v. Director Geni C.S.I.R. , 1994 (7) S.L.R. 711,712-13. Also See, T. Angel Rebeelal
v. Govt, of T.N. , 1994 (6) S.L.R. 210. (Referring to Tamil Nadu Govt's order G.O. No. 155, Labour and
Employment dated 16-7-93 giving guidelines with regard to appointments on compassionate ground
and defining as to what is called 'indigent circumstance' of the family).
61 . Umesh Kumar Nagpal v. State of Haryana, supra note 3 at 678.
62. A. Radhika v. G.M. Hindustan Aeronautics, supra note 9 at 699-700.
63. Ibid.

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
48 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 38:1

purpose of providing appointment on compassionate gr

hardship due to death of the bread-winner in the family s
therefore be provided immediately to redeem the family i
a case pending over years in substance would amount to
the deceased employee destitute and helpless.64 The ver
ate appointment would be frustrated if the dependents
upon to wait for indefinitely long period.65 The cour
emphasised the necessity of expeditious disposal of th
appointment as a dependant of the deceased government
the functionaries of a welfare state who are entrusted with
ing the welfare legislation to give effect to the objects. Re
not ordinarily be required in this regard.66 The Suprem
equivocally that in all claims for appointment on comp
should be no delay. Such appointments should therefore
to redeem the family in distress.67 Where the dependen
was eligible for appointment but the government delay
ground that the family members of the deceased employee
quarter allotted to the deceased employee the court or
pointment and permission to stay in the quarter.68

(3) No discrimination

While making compassionate appointments no discrimination can be made

between similarly situated persons. Thus, where under a scheme framed for
providing a job to one of the members of the family of the public officer killed
by terrorists the dependent son of a deceased additional district and sessions judge
was offered class II post on the executive side while in two other similar cases
dependents of public servants killed were given class 1 posts, it was held that there
was no justification for discriminatory treatment.69

(4) Rejection of claim and duty to give reasons

Though it is true that while deciding a case for employment on compassionate

ground a bank does not exercise a quasi-judicial function, yet being a public
authority it is bound to give some cogent reasons for rejecting the claim and the
total absence of reasons is sufficient to draw the inference of arbitrariness.70

64. S.U. Pathan v. Supdt. Engr. Guj. Elee. Board, 1994 (5) S.L.R. 138 at 141.
65. Ibid.
66. Raj Rani v. Collector. 1994 (8) S.L.R. 334 at 336.
67. See, Sushma G osa in v. Union of India , supra note 7.
Also see, G.S. R.T.C, v. D.M. Panchal, 1995 (6) S.L.R. 517. (Stating that where the family of the
deceased is under duress and the family condition of the employee is pitiable there should hardly be any
delay in considering the case).
68. Phoolwati v. Union of India , 1991 Suppl (2) S.C.C. 689.
69. Kamal Gaindv. State of Punjab , 1990 Suppl. S.C.C. 800.
70. Santosh Tuli v. Union of India , 1995 (6) S.L.R. 138. Also see, Chhabi Sood v. Chairman
Himachal Gramin Bank , supra note 45 (Suggesting that reasons should be given while rejecting the
claim for compassionate appointment).

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
1 996] DYING IN HARNESS : LA W OF COMPASSIONA TE APPOINTMENTS 49

(5) No dislodging after compassionate appointment except according to l

A person appointed under the rules71 and when there is no illegality in
appointment, cannot be dislodged from the post except in accordance with
In order to accommodate a person on compassionate appointment the emp
cannot terminate the services of another regularly recruited person unde
rules.72

(6) Dislodging on the ground of remarriage of widow

Where the widow of a deceased employee was appointed on compassionate

grounds and she started living with her brother-in-law (husband's brother), with-
out solemnising the marriage, her termination on the ground that she had con-
cealed the factum of marriage was held not correct on the ground that no legally
solemnised marriage existed.73

(7) No appointment on ad hoc basis

The provisions for compassionate employment have necessarily to be made

by the rules or executive instructions issued by the government or the public
authority concerned. The employment cannot be offered by an individual func-
tionary on an ad hoc basis.74

(8) Consumation of compassion

Once the dependent of a deceased employee accepts the post offered his right
to be considered for compassionate appointment gets perfected and thereafter any
claim for a higher post is not maintainable. Where the dependent of a deceased
employee accepted the post of lower division clerk but later filed a writ petition
seeking a higher post of sub-inspector and the High Court directed the employer
to consider his candidature, it was held by the Supreme Court that the High Court
was not legally justified in directing a further consideration for the higher posta-
it was held that once the post of lower division clerk was accepted the right to be
considered for compassionate appointment was consumated. No further consider-
ation on compassionate grounds would ever arise as otherwise it would become
a case of endless compassion.76
The rule77 itself may not envisage further appointment to a higher post when
another vacancy in a higher post occurs. A person having accepted appointment
to a particular post cannot claim further right of appointment under the same rules
on the ground that he should have been appointed to some higher post on the basis

71. See, UP Sewakal Men Mrityu Sarkari Sewakon ke Ashrilon ki libarti Niyamawali 1974.
72. L K. Jhu v. I'.C. Sampurnand Univ.. i 993 (4) S.L.R. 144.
72 a. Kamesinvar Choudhary v. Union of India . 1991 (5) S.L.R. 408.
73. Ji'ihi Devi v. Bhakra Beas Management Board . 1995 (6) S.C.C. 61.
74. Uniesh Kumar Xa<¿pa! v. Slate of Haryana. supra note 3 at 679
75. State of Raja st han v. Unirai Singh , .IT. 1 994 (6) S.C. 373 at 375.
76. Id. at 374.

77. See. UP Recruitment of Dependents of Govt. Servants dying in Harness Rules 1 974 - discussed
i Manager Committee of Monagcmei.t v. Mahendra Kumar Shukla, 1994 Í8) S.L.R. 518 al 522

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
50 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol . 3* : 1

of his qualifications and the appointment which was of

suitable to him. The mere fact that the employee was qua
some higher post is itself not a criteria for holding that pos
was not suitable.78 Where the employee who was interme
post his subsequent claim for appointment as clerk was held
the dependent of a deceased employee was offered the po
not object to his appointment his subsequent claim for
inspector was held not maintainable.80 Where the de
employee accepted the post of Kanungo but on attaining h
lapse of five years he made a claim for a higher post of
was held not permissible.81

XVII Compassionate appointments and scope of ju

(1) Power to direct employer to frame scheme for co

appointment
Primarily it is for the employer to frame scheme or r
appointment. However, if the court feels justified it may
frame a scheme.82

(2) Power to direct consideration of claim

In case the court is satisfied that a claim for compassi
justified it can direct the employer to consider his c
employer is bound to consider the claim. But can the employ
ground that there is no suitable vacancy though the ap
appointment?

(3) Power to direct creation of post

Normally objections are put forth saying that posts are not available or no
posts are sanctioned. In such circumstances courts have directed creation of
supernumerary posts.83 Where the claim for compassionate appointment of a

78. Manager , Committee of Management v. Mahendra Kumar Shukla, id. at 523.

79. Ibid.
80. State of Haryana v. Naresh Kumar Bali , 1994 (4) S.L.R. 1.
81. Lalit Kumar v. State of Haryana , 1994 (2) S.L.R. 751.
82. Asha Devi Srivastava v. Union of India, 1991 (7) S.L.R. 672, 674. (Stating that there is increase
of death cases in Govt, of India Press and consequent claims of compassionate appointments; as only
1% posts were earmarked for such appointments under executive instructions the Court directed Union
of India to frame appropriate scheme in this regard).
83. M. Usha Ram Prasad v. India Trade Promotion Organisation, supra note 8. Also see, BF Manavi
v. M.D. S. R.T.C. , supra note 38 (Stating that there should be no excuse for the department to say that
there are no posts available and if necessary supernumerary posts may be cxreated( Dinesh Rai v.Dist.
Inspector of Schools, 1991 (7) S.L.R. 78. (Stating that even if no post is there it is mandatory on the part
of the State Government to create the post). For other cases where Courts have directed creation of
supernumerary posts see, P.S. Seethalakshmi v. Chairman Vishakhapatnam Port Trust , 1992 (4) S.L.R.
571 ; V. Savithri v. Directorate of Printing , 1991 (7) S.L.R. 295; S.U. Pathan v. Supdt. Engr G. S.E.B. ,
supra note 64; P. Jeram v. G. S.E.B. , supra note 1 1.

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
1 996] D YING IN HARNESS : LA W OF COMPASSIONA TE APPOINTMENTS 5 1

widow of a deceased storekeeper of the Department of Border Road was resist

by the government on the ground that appointment of ladies in the establishment
was prohibited, the court directed that if there is no suitable post for appointmen
supernumerary post should be created to accommodate the applicant.84

(4) Power to direct appointment

Can the court direct the employer to appoint the applicant instead of consid-
eration of claim? It has been held by the Supreme Court that it cannot dire
appointment. It can merely direct consideration of the claim of the employe
dependent.85 Even if the court reaches the conclusion that the applicant has made
out a case, all that the court or administrative tribunal can do is only to direct th
authority concerned to consider the claim of the applicant in accordance wi
relevant rules or law, if any.86

(5) Distinction between powers of High Court and Supreme Court

On the question as to whether the court can direct appointment a distincti

has been made between powers of the Supreme Court and High Courts. It has been
held by the Supreme Court that while exercising powers under article 226 wh
can be directed by the High Court is only to consider the claim of the depend
of the deceased employee and it cannot direct the employer to give appointme
However, in exercise of its power under article 142(1) the Supreme Court can
a deserving case direct appointment instead of directing only consideration
claim. But the exercise of the extraordinary jurisdiction constitutionally conferred
on the apex court under article 142(1) of the Constitution is of no guidance on the
scope of article 226. 87

(6) Emerging view that High Court can also exercise power exercised by
Supreme Court
It is necessary to note two things in this regard. First, cases are not unknown
where the High Courts have directed appointments instead of directing consid
ation.88 Second, the Supreme Court itself has expressed a view that even in t
absence of a specific provision conferring powers on the High Court to do
complete justice between the parties the High Court can exercise powers co
ferred on the Supreme Court under article 142. 89

84. See, Sushma Gosain v. Union of India , supra note 7.

85. Life Insurance Corporation of India v. Mrs. Asha Ramachandran Ambekar, supra note 42.
86. Union of India v. Bhagwan Singh, 1995 (6) S.C.C. 476, 480. Also see, State of Haryana
Naresh Kumar Bali , Supra note 80. Himachal Pradesh Board Transport Corporation v. Dinesh Kumar
1996 (4) SCALE 395.
87. State of Haryana v. Naresh Kumar Bali , Ibid.
88. Ch. Dhanlaxmi v. Divi. Manager, A. P.S. R.T.C. , supra note 53; Som Nath v. State of Haryana
Supra note 12; Phoolwati v. Union of India , Supra note 68; Chhabi Sood v. Chairman Himac
Gramin Bank , Supra note 45; Sanjay Kumar Panda v. State of West Bengal , 1993 (2) S.L.R. 604.
89. See, B.C. Chaturvedi v. Union of India, 1995 (6) S.C.C. 749 (per B.L. Hansaria J.).

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
52 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol . 3 8 : 1

(7) Power to impose costs

If the authorities have failed to discharge their obligation of providing

suitable job on compassionate basis to one of the dependents of the employee
dying in harness the court can impose heavy costs for this failure on their part.90
Where the case of the applicant was tossed from one department to another for a
number of years and because of technical objections raised by department the
applicant was not appointed on priority basis on compassionate grounds, the court
allowed the writ with costs.91

(8) No directions against law - no mandamus against law

In considering a claim of compassionate appointment the court should

endeavour to find out whether a particular case in which sympathetic consider-
ations are to be weighed falls within the scope of lawf Disregard of law, however
hard the case may be, should never be done. It is true that there may be pitiable
situations but on that score, the statutory provisions cannot be put aside.92 Thus
where the statutory regulations provided that where any member of the family is
employed, no appointment on compassionate ground may be made, and the High
Court directed appointment in disregard of it, the Supreme Court held that the
direction given by the court was not a correct judicial approach. It was held that
the employer cannot be directed by means of a mandamus to do something which
is per se illegal. No mandamus can be issued directing to do that which is
forbidden by law.93 It is one thing to say that a family member of the deceased
employee is entitled to appointment on compassionate ground but it is altogether
a different thing to say that his appointment should be made regardless of the
rules.94

(9) Need for anodynous judicial approach - rules neither to

be defied nor to be deified

It is true that no mandamus can be issued in disregard of law, i.e., in violat

of rules but at the same time it should be kept in mind that in view of the ob
of providing compassionate appointment it is imperative that there is nee
anodynous judicial approach in this regard. Albeit, rules should not be defi
at the same time they should not be deified too, i.e., they should not be ex
to the status of a deity. Consequently a pedantic and technical approach sho
avoided while interpreting rules for compassionate appointment. In fact
approach has been judicially recognised. It has been held that under the pr
and technicalities of some rules being complied with undue weightage to
should not be given which run counter to the humanistic spirit and poli
sustaining life of members of a deceased employee. Thus when the court finds

90. Ch. Dhanlakshmi v. Divi. Manager A. P. S. R.T.C. , Supra note 53.

91. Neelam Kumari v. State of Punjab , 1993 (1) S.L.R. 666, 670.
92. Life Insurance Corpn. v. Asha R. Ambekar , 1994 (2) S.L.R. 1 at 3.
93. Ibid.
94. State of Rajasthan v. Chandra Narain Verma, 1994 (2) S.C.C. 752.

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
1 996] D YJNG IN HARNESS : LA W OF COMPASSIONA TE A PPOINTMENTS 53

such rules hinder more than help and are more or less an unnecessary noose round
the neck of a person who cannot be otherwise denied the benefit under the
compassionate scheme, then the same has to be either liberally construed, and
not, may require to be cut and scrapped to save their bright sides from being
eclipsed by inconsistent rules.95
It has rightly been observed that whenever any department is faced with
situation, viz., the philosophy and spirit of employing dependent of the sole bread
winner on compassionate ground as against the technical pedantic approach o
taking too narrow and shallow view of the matter while interpreting rules, th
guiding principle should be, not to be swayed by form, by way of technicalitie
but rather the substance of providing bread and butter, otherwise what happens is
that lofty policy in substance remains where it is, and technicalities take th
driver's seat and deny all benefits of the said policy to deserving families. In such
cases, the scale of justice should tilt towards the humanistic approach rather than
the technical one.96
Thus, while interpreting rules it should be kept in mind that by adopting
technical and pedantic approach the object of compassionate appointment is no
defeated.

XVIII Compassionate appointments in case of physical

invalidation and medical unfitness during service

The need for compassionate appointments is not only felt in cases where an
employee dies in harness but also in other cases where he becomes physically
invalidated or medically unfit during service. On the importance of need for relief
in such cases one cannot express a better view than the apex court has expressed
itself. It observed :

The workmen are not denizens of an animal farm to be eliminated

ruthlessly the moment they become useless to the establishment. They
have not only to live for the rest of their life but also to maintain the
members of their family and other dependents and to educate and bring
up their children. They may no longer be of use to the Corporation for the
job for which they were employed, but the need of their patronage to
others intensifies with the growth in their family responsibilities.97

(1) Medical unfitness and compassionate appointments

The need for providing alternative employment to those employees w

become physically invalid or to their wards has been realised both at admini
tive and judicial levels. Railway Board vide its letter dated 24-6-1984 has fra
a scheme of compassionate appointments for the wards of those Railway em

95. P. Jeram Sindhal v. Gujarat State Road Transport Corporation , supra note 1 1.
96. Id. at 21 7.
97. Anand Behari v. Rajasthan State Road Tpt. Corpn ., 1991 (1) S.C.C. 731, 741.

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
54 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 38 : 1

ees who retire on medical grounds.98 It has also issued a cir

who would remain loyal and would stick to their respec
intimidation and violence during strike by the railway
rewarded including offering of compassionate appointm
of the drivers of a Road Transport Corporation were termi
their defective or subnormal eyesight developed during the
ment, the court held that although it was not retrench
termination per se cannot be faulted on the ground of brea
Act, yet it considered the question whether in the back
provisions of the Constitution the action of the corporatio
and justified.100 In view of helpness shown by it the court
scheme for providing alternative jobs and in case they w
compensation should be provided to the drivers propor
service rendered by them.101 Further it has been held that
not take recourse only to payment of compensation w
whether alternative jobs could be provided.102 The judicial
ment of physically invalidated persons rather than to prov
is in tune with the judicial trend of expanding the scope of
in article 21. Thus it has been held that this article wh
livelihood is an integral facet of right to life. When an em
an unfortunate disease due to which he is unable to perform
he was holding the employer must make every endeavou
which would be suitable for him to discharge the duti
employee working as sub-station attendant was operated
his right arm was completely amputated as a result of whi
to perform his duties the court ordered to provide him th
division clerk.104

98. Upendra Nath Malik v. Union of India, 1991 (3) S.L.R. 376.
99. Anil Kumar Sarkar v. Union of India, 1991 (7) S.L.R. 573.
100. Supra note 97 at 739.
1 0 1 . Id. at 742-43; Also see, State of Haryana v. Hawa Singh, 1 995 S
Das v. State of Haryana , 1995 (3) S.C.C. 285.
Cf National Federation of Blind v. Union Public Service Comm
(Directing Government of India and UPSC to permit blind and partia
compete and write Civil Services examinations in Braille script or with
But see, Nitish Kumar Kundu v. Union of India, 1993 (4) S.L.R. 771
appointment cannot be considred when a person becomes unfit for serv
unless there is strong reason for that).
102. Rameshwar Das v. State of Haryana, ibid.
103. Narendra Kumar Chandia v. State of Haryana, J.T. 1994 (2) S
Cf. Valsamma Paul v. Cochin University, J.T. 1996 (1) S.C. 57; M
Pandu , J.T. 1995 (3) S.C. 563; R. Chandravarappa v . State of Karnata
that economic empowerment is a fundamental right of poor and the st
opportunities); Surjeet Singh v. State of Punjab , J.T. 1996 (2) S.C. 29 (S
a right concomitant to right to life).
104. Narendra Kumar Chandia , ibid.

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
1 996] D YJNG IN HARNESS : LA W OF COMPASSIONA TE APPOINTMENTS 55

(2) Compassionate appointment in case of missing employee

Where the wife of an employee became destitute with no financial assistan

from any side as her husband having about three-four years of service disappeared
and the case was closed by police as untraceable, rejection of her case fo
compassionate appointment on the ground that under section 108 of the Indi
Evidence Act a person cannot be treated as dead unless seven years elapsed fro
his disappearance, it was held that the tribunal was not bound by strict rules
evidence. Accordingly, the government was directed to consider the case fo
compassionate appointment.105

XIX Epilogue
In a welfare state ensuring bread to the family of dead, let alone living
persons, is a state obligation. Employers both in public and private sector hav
framed schemes, rules or regulations making provisions for compassionate ap
pointments for dependents of the employees dying in harness. For these schem
which are welfare in nature support has been drawn from part IV of the Indi
Constitution. The mode of compassionate appointment is an exception to th
general rule of appointment and is constitutionally valid.
The object of compassionate appointments is to mitigate the hardship due
death of the bread earner of the family. In spite of the fact that common law doe
not oblige the employer to provide employment to dependents of the decease
employees, schemes for such appointments have been framed as a welfare me
sures. Though employment on compassionate ground is not a vested right yet
employer should not take it as mercy shown to a beggar as it is provided in
consideration of the services rendered by the deceased employee and thus it is
legitimate expectation of the dependents of the deceased employee. Further
though not a vested right yet the employer must consider the case of eligi
dependents and non-consideration is violative of article 14 of the Constitutio
In view of the object of compassionate appointment there is no right to
particular post. Subject to rules posts in class III and class IV can be offered o
compassionate grounds. Persons eligible for appointment on compassionate grounds
are normally specified in the rules and schemes, viz., sons, daughters, spouses
the deceased employees. However, vagueful extension of these categories to 'ne
relatives' has been held unconstitutional. Exclusion of married daughter from
eligible category has been judicially deprecated.
Dependents of temporary, ad hoc and casual employees too are eligible f
compassionate appointments but not the dependents of dismissed employee
Claim for compassionate appointment should be made within a reasonable tim
and it cannot be made whatever the lapse of time or after the crisis is over. Recei
of retirai benefits by the family of the deceased employee or employment of one
of its members is not by itself a ground to reject the claim for compassiona
appointment. In this regard an overall assessment of the pecuniary conditions
the family of the deceased should be made.

105. S. Rajeshwari v. Controller of Accounts, 1992 (8) S.L.R. 485.

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
56 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 38 : 1

A ban on recruitment is not a valid ground for rejecting the claim as

compassionate appointments are exempted from the ban of filling up the posts.
While considering a claim for compassionate appointment employer should
objectively assess the pecuniary conditions of the family of the deceased em-
ployee. It should consider the claim without any delay lest it defeats the very
object of providing compassionate appointment. Reminders of court should not
ordinarily be required in this regard. Further while making such appointments the
employer cannot discriminate between similarly situated persons. Reasons for
rejection of claim for compassionate appointment should be given. A person
appointed on compassionate ground cannot be dislodged by the employer except
for a valid reason or in accordance with law. It is necessary to ensure that a claim
for compassion does not become a case for endless compassion. Therefore
acceptance of a post results in perfection of claim of the dependents of the
deceased employee and a further claim to a higher post on the basis of higher
qualifications is not permissible.
Courts can direct employer to frame a scheme, to consider the claim of an
eligible person or even to create a supernumerary post. Court can also impose
heavy costs for non-consideration of a case.
On the question whether the court can direct the employer to appoint a person
on compassionate grounds instead of directing consideration of his claim, a
distinction has been made between the powers of the High Court and Supreme
Court with reference to power to do complete justice under article 142(1) of the
Constitution. It has been held that exercise of the extraordinary jurisdiction
conferred on the apex court under article 142(1) is of no guidance on the scope
of article 226. However, for two reasons it would not be incorrect to suggest that
like the Supreme Court, High Courts can also direct appointment instead of
consideration in a deserving case. First , in view of the law laid down by the
Supreme Court, High Courts too have directed creation of supernumerary posts for
compassionate appointments. If they can direct creation of supernumerary posts
there is no reason to deny them power to direct appointment instead of consider-
ation of claim. Second , the apex court itself has expressed a view that even the
High Court can exercise the power to do complete justice though there is no
specific provision conferring such a power on the High Court.
However, there is a limitation on the judicial power in this regard, viz., that
it cannot direct consideration of compassionate appointment in disregard of rules
and regulations as no mandamus can be issued in violation of law. Nonetheless to
ensure that the object of compassionate appointment is not defeated it must be
kept in mind that while interpreting rules and regulations or schemes of compas-
sionate appointments a pedantic or technical approach is avoided. Ableit, rules
should not be defied but they should also not be deified too lest it gives an
impression that the said schemes are nothing but a kind of recluse law. Conse-
quently every effort should be made to see thàt a lofty policy is not relegated back
paving the way for technicalities to take the driver's seat.
The need for compassionate appointments has also been felt in cases where
the employees become medically unfit during service. Dismissal of employees on
medical grounds, i.e., unfitness developed during employment which cannot per

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms
1996] DYING IN HARNESS : LAW OF COMPASSIONATE APPOINTMENTS 57

se be faulted under industrial law has been tested in the background

constitutional provisions. The Supreme Court has not only directed for alte
employment and additional compensation to those employees who beco
cally unfit during service, but has also held that recourse to compensat
be resorted to only after examining the possibility of providing alte
employment to the employees or their wards.
The judicial trend on the question of providing alternative employm
those who become medically unfit during service is in tune with the judici
of expanding the scope of right to life under article 21 of the Constitu
right to livelihood, right to self preservation and right to economic empow
are integrated facet of right to life under article 21 of the Constitution.

This content downloaded from

220.158.168.35 on Wed, 22 Feb 2023 12:04:47 UTC
All use subject to https://about.jstor.org/terms