In LPA No.160 of 2021 (O&M)- PUNJ HC- Appointment on compassionate grounds can’t be used as source of appointment, is only an exception: P&H HC Justices G.S. Sandhawalia and Vikas Suri[22-03-2022]

Read Order: Tinku v. State of Haryana and others

LE Correspondent

New Delhi, April 8, 2022: While dealing with a Letters Patent Appeal against the decision of the Single Judge Bench dismissing the petitioner’s claim for his appointment on compassionate grounds in Haryana Police, the Punjab and Haryana High Court has held that an appointment on compassionate grounds cannot be used as a source of appointment and it is only an exception. 

In response to the appellant’s plea of parity with other appointees and his resultant claim of violation of Article 14 of the Indian Constitution, the Division Bench of Justices G.S. Sandhawalia and Vikas Suri also reiterated the settled legal position which is to the effect that Article 14 is a positive concept and not a negative concept and it has been time and again observed as such. 

The facts which led to the writ petition before the Single Judge Bench were such that on the death of the appellant’s father (working as a constable with Haryana Police) on November 22, 1997, a claim was made for the compassionate appointment for his minor son (the appellant). 

At that point in time, the Policy dated May 8, 1995, was in force, which provided for the confinement of ex-gratiaemployment to Class-III and Class-IV posts only and it was for one step lower than of the deceased employee. This policy, by virtue of Clause-2 (v), required the filing of an application for such an appointment within 3 years of the death of the employee. 

Upon direction of the DGP on April 15, 1998, the name of the appellant (aged 7-years) in the minors register was added. The Policy of 1995 was modified on August 31, 1995, which provided that a seniority list of pending ex-gratia cases was to be maintained by every Head of the Department till the time an appointment was offered against a vacancy either in that department or some other department. The one-step lower employment clause still remained in force and the appointing authority was given the discretion to grant relaxation in age for appointment under ex-gratia scheme. 

Upon attaining majority (in 2009), an application was filed seeking the appellant’s appointment as a Constable in the Haryana Police (in the same post as the appellant’s father). This application was rejected on the ground that the job under ex-gratia scheme can be provided if the dependent is minor at the time of the death and he can be offered a job provided he becomes major in age during the time limit of 3 years. 

Hence, the appellant filed a writ petition before the Single Judge Bench of the High Court. The same was dismissed. Aggrieved, the appellant filed the instant Letters Patent Appeal impugning the Single Judge Bench decision. 

The case of the appellant’s counsel was that the appellant’s application for appointment should have been considered by keeping in mind the date of death (November 1997) and the policy that was in vogue in 1995 (as modified in August 1995). It was argued that once the appellant’s name was entered in the minors register, the respondents were ‘estopped’ from taking a contrary stand. Lastly, seeking parity with other similarly situated persons who were appointed, the Counsel argued that Article 14 of the Constitution of India was violated in the case of the appellant.

Per Contra, the State Counsel placed reliance on Umesh Kumar Nagpal Vs. State of Haryana to argue that the compassionate appointment is given only to get over the death of the bread earner at that point in time and at this belated stage the benefit is not likely to be granted. It was argued that there was a right of consideration that was duly considered and appointment under the head of compassion is only an exception as per the settled law and it is not a normal mode of recruitment. 

After considering these rival submissions, the Court opined that the employee died in 1997 and at that time the appellant was only 7 years old; the mother (wife of deceased) did not opt for a compassionate appointment at the time of the death for the reasons best known to her. Thus, considering this fact, the Court drew an adverse inference that the family was not suffering from penury and extreme financial distress and it left open its right as such for consideration for more than 10 years and then started agitating for their legal redressal. 

Therefore, considering this factual scenario, the Court opined that the compassionate appointment cannot be used as a source of appointment and is only an exception. Applying this legal proposition to the present case, the Court was of the considered opinion that the claim for an appointment at that belated stage was not justified.

Further, the Court opined that on all accounts including the issue of delay and the fact that the wife of the deceased never applied for an appointment and after a decade, there was no vested right as such to claim an appointment. It was also observed that the right could have been enforced within three years of the death of the Government employee and that the purpose is only to tide over the extreme exigencies at the time of death of an employee and there is no vested right which shall carry on for all times to come. 

Also, regarding the appellant’s argument of parity with other appointees (on the compassionate ground) in terms of Article 14 of the Constitution of India, it was opined that the same would not carry much weight. Even otherwise, the Court added, it is the settled principle that Article 14 is a positive concept and not a negative concept and it has been time and again observed as such. 

Thus, finding the appeal devoid of any merits, the same was dismissed.