DIRECTOR GENERAL OF POSTS & ORS.versusK. CHANDRASHEKAR RAO

                   [2012] 12 S.C.R. 795


       DIRECTOR GENERAL OF POSTS & ORS.                        A
                                        •
                             v.
               K. CHANDRASHEKAR RAO
           (Civil Appeal No. 9049 of 2012 etc.)
                   DECEMBER 13, 2012
            [SWATANTER KUMAR AND
       SUDHANSU JYOTI MUKHOPADHAYA, JJ.]

    Service Law:

     Compassionate Appointment Scheme of 1998 -
                                                               c
Candidates appointed in 2002 - Some of them found in
excess of quota in January 2005, in terms of O.M. dated
16.5.2001, as clarified subsequently- Accordingly, notice for
termination of their services issued - Held: From the Scheme
and Office Memorandum, it is clear that, on the one hand, D
Government had formulated a welfare scheme for
compassionate. appointments, on the other, because of
limitations of its financial resources it decided to take
economic measures by reducing the extent of appointment
by direct recruitment from the financial year 2001-2002- Both E
these matters falling in the domain of the Government and
being matters of policy, do not call for any judicial interference
- However, the instructions which specifically dealt with
compassionate appointments were issued by Office
Memorandum dated 4-7-2002 - Office Memorandums dated F
 16-05-2001and 04-07-2002 were expected to operate
prospectively and thus the rights which had been settled could
not be re-settled - There is some ambiguity created by
 issuance of Office Memorandums dated 16-05-2001 and 14-
 06-2006 and the enforcement of the former by Office G
 Memorandum dated 04-07-2002 in relation to the
 implementation of Compassionate Appointment Scheme of
  1998 - Thus, it is not only desirable but also necessary that

                             795                                H
    796      SUPREME COURT REPORTS                [2012] 12 S.C.R.


A the competent authority should issue comprehensive
  guidelines squarely covering the issue - However, the
  authorities cannot tamper with the existing rights of the
  appointees - Appointments of respondents will not be
  interfered with on the basis of 0. M. dated 04. 07. 2002 - Further
8 directions issued - Administrative Law - Policy decision -
  Judicial review.

        In terms of the Compassionate Appointment Scheme
    of 1998, issued by the Government of India, 69 names
   were approved on 13-15 of March, 2002 for
C compassionate appointment to fill up 5% of the existing
   vacancies occurring in the years 2000, 2001 and 2002. On
   06-08-2002, the respondent in C.A. No. 9049 of 2012 was
   communicated the approval of his name for appointment
   and he joined a Group D post on 22-08-2002. On 04-07-
D 2002, the DoPT issued a clarificatory Memorandum that
   5% quota for compassionate appointment was to be
   calculated not on the basis of the total vacancies, but on
   the basis of direct recruit~ent vacancies finally cleared
   by the Screening Committee in terms of DoPT Office
E Memorandum dated 16-05-2001, according to which
  direct recruitment was not to exceed 1% of total strength
  of the department. On 12-01-2005, it was noticed that out
  of the candidates whose names had been cleared for
  compassionate appointment on 13-15 of March, 2002,
F names 48 such appointees were in excess of quota and,
  as all such candidates were still temporary, a notice
  under r. 5 of the Central Civil Services (Temporary
  Services) Rules, 1965 was issued terminating their
  services. The appointees, including the respondent,
G approached the Central Administrative Tribunal, which
  upheld their appointments. The High Court having upheld
  the order of the Tribunal, the department filed the appeals.

       Dismissing the appeals, the Court

H      HELD: 1.1. The Ministry of Personnel, Public
    DIRECTOR GENERAL OF POSTS & ORS. v.               797
          K. CHANDRASHEKAR RAO
Grievances and Pension, Government of India had issued A
a circular on 09-10-1998 declaring its policy in the form
of a Scheme for Compassionate appointment under the
Central Government. The compassionate appointments
can be made upto a maximum of 5% of vacancies falling
under direct recruitment quota in any group 'C' or 'D' B
post. The appointing authority may hold back upto 5%
of the vacancies in the aforesaid categories to be filled
by direct recruitment through Staff Selection Commission
or otherwise so as to fill such vacancies by appointment
on compassionate grounds. The Scheme of 1998 for c
compassionate appointment is a welfare activity carried
out by the Government of India. It is a benevolent and a
voluntary act of generosity on the part of the State. The
generosity once extended in the form of exercise of a
subordinate legislative power by formulating the said 0
Scheme, will have the force of law. It is enforceable to its
 limited extent and within its prescribed parameters. The
 purpose of the 1998 Scheme was to provide employment
 and preferably as part of the regular cadre subject to
 availability of vacancies. [Para 13, 17 and 19) [808-C-D; E
 811-B-C; 811-E-G]

     1.2. Office Memorandum dated 16-05-2001 did not
refer to the circular of 1998 as such. However, in
furtherance to Memorandum dated 16-05-2001, the
Government of India, DoPT issued a clarification on the F
guidelines for compassionate appointment to Group 'C'
and 'D' posts on 04-07-2002, clarifying that 5 per cent
quota for compassionate appointment is to be worked out
with reference to DR vacancies in each recruitment year
finally approved for filling up by the Screening Committee G
under the optimisation policy of the Government
contained in Office Memorandum dated 16-05-2001.
Finally on 14-06-2006, 'Scheme for Compassionate
Appointment under the Central Government
 Determination'bf Vacancies' was clarified. In light of this, H
    798         SUPREME COURT REPORTS        [2012] 12 S.C.R.

A the earlier instructions including the instructions dated
  09-10-1998 stood modified to the extent mentioned
  therein. [Paras 19-21] [811-H; 812-D-G; 813-A]
       1.3. From the Scheme and Office Memorandum, it is
  clear that, on the one hand, the State had formulated a
8
  welfare scheme for compassionate appointments, on the
  other, because of limitations of its financial resources it
  decided to take economic measures by reducing the
  extent of appointment by direct recruitment from the
C financial year 2001-2002. Both these matters falling in the
  domain of the Government and being matters of policy, do
  not call for any judicial interference. [Paras 22] [813-B-D]

       1.4. The respondents were admittedly appointed
   during the period of 2001-2003. The instructions which
D specifically dealt with the compassionate appointments
   were issued by office memorandum dated 04-07-2002.
   Neither the Memorandum dated 16-05-2001 nor
   Memorandum dated 04-07-2002 stated that the
   restrictions sought to be imposed were applicable
E retrospectively or even retroactively. The rights of these
  persons had been settled, the respondent and others had
  been appointed to the posts and they had already
  worked in their respective posts before the notice of
  termination were issued to them at the end of year 2004.
F No data or material has been placed by the government
  even to support the contention that under the effect of
  the instructions of the year 1998, these persons were
  appointed in excess of the posts provided under the
  Scheme. Both these Office Memorandums were expected
G to operate prospectively and thus the rights which had
  been settled could not be re-settled. It is also undisputed
  that the appointments of the respondents were made on
  the basis of the vacancies existing against the year 2000
  when the instructions of 1998 were in operation, free of
H any restriction. [Para 23] [813-G-H; 814-A-D]



           .,   ~ ·' ;'.   .__ .
    DIRECTOR GENERAL OF POSTS & ORS. v.                  799
          K. CHANDRASHEKAR RAO
     1.5. Further, it will be a contradictory stand, if on the A
one hand, the appellants are permitted to treat office
memorandums including office memorandum dated 16-
05-2001 as retrospective while, on the other, they treat
office memorandum dated 14-06-006 as prospectively.
The High Court in the operative part of its judgment has B
clearly observed that the authorities have to reconsider
the matter in the light of instructions issued in the
memorandum dated 14-06-2006. There is no error of
jurisdiction or otherwise in the said finding returned by
the High Court. The spirit of the Scheme was to provide c
relief to the family members of the deceased persons and
thus on the yardstick of social justice, such relief cannot
be withdrawn on the ground of some alleged
 discrepancy which has not been supported by any data,
 is unreasonable and, therefore, even unsustainable. The
                                                               0
 appellants must state appropriate reasons and provide
 the expected data on record if they expect the court to
 come to a different conclusion. The appellants have
 miserably failed to place any such data on the basis of
 the Memorandum dated 14-06-2006. [Para 24.and 29] [814- E
 F-H; 816-G-H; 817-A]

     Balbir Kaur and Anr. v. Steel Authority of India Ltd. And
                                      =
Others etc. etc. 2000 (3) SCR 1053 (2000) 6 sec 493 -
relied on.
                                                                 F
     Union of India and Others v. K. P. Tiwari (2003) 9 SCC
 129 - referred to.
     1.6. In the instant case, there is some ambiguity
 created by issuance of Office Memorandums dated 16-
 05-2001 and 14-06-2006 and the enforcement of the G
 former by Office Memorandum dated 04-07-2002 in
 relation to the implementation of Compassionate
 Appointment Scheme of 1998. Thus, it Is not only
 desirable but necessary that the competent authority
 should issue comprehensive guidelines squarely H
     800         SUPREME COURT REPORTS           (2012] 12 S.C.R.


A   covering the issue. However, the authorities cannot
    tamper with the existing rights of the appointees. It is,
    therefore, directed:

           (A)    The appointments of the respondents will not
                  be interfered with by the appellants on the
B
                  strength of the memorandum dated 04-07-
                  2002.

           (B)    Office Memorandums dated 16-05-2001, 14-06-
                  2006 and 04-07-2002 have in relation to the
c                 1998 Scheme for Compassionate Appointment
                  caused some confusion on the one hand and
                  while on the other they have prejudicially
                  affected the rights of large number of heirs of
                  the employees who died in harness. Thus, the
D                 appellants will issue comprehensive, certain
                  and unambiguous directions which shall put
                  an end to such unnecessary controversies.
                  [Paras 25 and 30) [815-C-D; 817-B-D]

·     CIVIL APPELLATE JURISDICTION : Civil Appeal No.
E 9049 of 2012.

         From the Judgment & Order dated 01.09.2008 of the High
    Court of Judicature at Hyderabad in Writ Petition No. 20655
    of 2008.
F
                                 WITH
    C.A. No. 9050, 9051, 9053, 9054, 9055, 9056, 9057, 9058,
    9059, 9060 and 9061 of 2012.
G       Rakesh Khanna, ASG, J.S. Attri, R.K .. Rathore, Vikas
    Bansal, D.S. Mahra, Priyanka Bharihoke {for Arvind Kumar
    Sharma) for the Appellants.
      Satya Siddiqui, S.K. Mishra, Sarafraz A. Siddiqui, D.S.
H Mahra, S. Udaya Kumar Sagar, Bina Madhavan, Anindita Pujari
    DIRECTOR GENERAL OF POSTS & ORS. v.                       801
           K. CHANDRASHEKAR RAO
(for Lawyer's Knit & Co.) Sridhar Potaraju, Gaichangpou                A
Gangmei, Abhishek R. Shkula, A. Subba Rao, Naveen R. Nath
for the Respondent.

    The Judgment of the Court was delivered by

   SWATANTER KUMAR, J. 1. Leave granted in all the                     B
SLPs.

      2. By this common judgment we shall dispose of all the
above mentioned appeals which are directed against the
judgments of the High Court of Andhra Pradesh at Hyderabad             C
passed on different dates vide which the Court, while relying
upon its judgment dated 23rd July, 2008 passed in Writ Petition
(C) No. 15820/2008, has dismissed the writ petitions filed by
 the concerned government authority.
                                                                       D
     3. Thus, it is not necessary for us to notice the facts of each
appeal separately. Though, the judgments are of different dates,
they are primarily based upon the judgment of the High Court
dated 23rdJuly, 2008. For the purpose of convenience, we
would be referring to the facts of SLP(C) No.19871/2009.
                                                                       E
FACTS:

      4. The Department of Personnel and Training (for short
'DoPT'), Ministry of Personnel, Public Grievances and Pension,
Government of India, issued a memorandum dated 9th October,            F
1998 containing the scheme for compassionate appointment
with an object to give a source of employment to the dependent
family members of the government servant dying in harness or
one who has retired on medical grounds. This scheme was
declared on 9th October, 1998. The scheme stipulated that the          G
compassionate aRpoihtment could be made upto a maximum
 of 5 per cent of the vacancies falling under Direct Recruitment
 Quota in Group 'C' or 'D' post.

     5. According to the appellants, the scheme of
                                                                       H
     802     SUPREME COURT REPORTS                [2012] 12 S.C.R.

A compassionate appointment is always treated as an exception
  to the general rule of recruitment.
        6. The father of the respondent was employed with the
    appellants in a Group 'D' post. Unfortunately, the father of the
    respondent died on 19th April, 2000.
8
         7. On 16th May, 2001, the DoPT issued an office
   memorandum in view of the policy of the Government of India
   that fresh recruitment should be limited to one per cent of the
   total strength of civilian staff. The basis for the same appeared
C to be that about three per cent of the staff retired every year
   and thus, the reduction in manpower would reduce to 2% p.a.
   if fresh recruitment is limited to 1% p.a. This would achieve a
   deduction of ten percent in five years. It was decided that each
   Ministry and Department would formulate an Annual Direct
D Recruitment Plan through the mechanism of Screening
   Committee. Para 2.2 of this memorandum provided that while
   preparing the Annual Recruitment Plan, the concerned
   Screening Committee was to ensure that the direct recruitment
  did not exceed one per cent of the total sanctioned strength of
E the Department. Since three per cent of the staff retired every
  year, this would translate only to one-third of the Direct
  Recruitment vacancies occurring in each year being filled. Thus,
  the recruitment would b~ limited to filling one-third of the
  vacancies of Direct Recruitment arising in the year, subject to
F a further ceiling, that it does not exceed one percent of the total
  sanctioned strength of the Department. In terms of Para 2.4 of
  the memorandum, it was further stated that the vacancies so
  cleared by the Screening Committee will be filled up by
  applying rules for reservation, handicapped, compassionate
G quota therein.
       8. However, the Special Circle Relaxation Committee,
  approved the names of the candidates in the category of
  compassionate appointment on the basis of 5 per cent of the
  existing vacancies occurring in the year 2000, 2001 and 2002.
H In face of the memorandum dated 16thMay, 2001, on or about
     DIRECTOR GENERAL OF POSTS & ORS. v.    803
 K. CHANDRASHEKAR RAO [SWATANTER KUMAR, J.]
13th March, 2002, 69 names were approved. On 4th July, 2002, A
the DoPT issued a clarificatory memorandum that the five per
cent quota for compassionate appointment was to be
calculated on the basis of direct recruitment vacancies finally
cleared by the Screening Committee and not on the basis of
the total vacancies occurring in the Department. The B
respondent, on 6th August, 2002 was communicated the
intimation with regard to the approval of his name for
appointment to Group 'D' post, which he joined on 22nd August,
2002.

     9. It is the case of the appellants now that the mistake of    C
appointment in excess of the prescribed quota was detected
and vide letter dated 12th March, 2003 it was communicated
that it was not possible to adjust the candidates who were
recommended in excess of the quota because the
recommendation for compassionate appointment was to be              D
made on the basis of five per cent of the approved vacancies
cleared by the Screening Committee. In furtherance to this, a
decision was taken on 17th May, 2004 to select only the most
indigent persons against the available vacancies within the
prescribed ceiling of 5 per cent of the vacancies finally cleared   E
by the Screening Committee. In furtherance to the decision
taken by the competent authority, a meeting of the Special
Circle Relaxation Committee was convened and appointment
of total 21 candidates on the basis of five per cent approved
vacancies cleared by the Screening Committee was approved.          F
The .remaining 48 candidates were terminated/not permitted to
 continue/dropped on 12th October, 2004. On 12th January,
 2005, the appellants noticed that the candidates, whose names
 had been cle,,ared for compassionate appointment on 13-15th
 March, 2002 or in the year 2002 were still temporary servants.     G
 48 names were in excess of the quota, therefore, a notice of
 termination under Rule 5 of the Central Civil Services
 (Temporary Services) Rules, 1965 was issued and as already
 noticed, the services of the 48 persons, whose names were
 recommended in excess of the quota, were terminated. These         H
    804      SUPREME COURT REPORTS                 [2012] 12 S.C.R.


A appointees, including the respondent in the present appeal,
  challenged the said order of termination before the Central
  Administrative Tribunal (for short 'CAT'). The CAT granted an
  interim stay during the pendency of the hearing of the
  application vide its order dated 8th February, 2005. The
B present appellants also point out that two other applications,
  being OA No. 434/2005 and OA No. 761/2005 filed by similarly
  situated employees, came to be dismissed vide orders of the
  CAT dated 20th October, 2005 and 19th April, 2007
  respectively.
c       10. The application filed by the present resp~ndent came
  up before the CAT for hearing on 31st October, 2007. While
  allowing the application of the respondent, the CAT held that
  the appointment of the respondent-applicant before it, was not
  liable to be terminated inter alia, but primarily for the following
D reasons:-

         "17. Therefore, it has been proved and established that the
         instructions dated 16.05.2001 in so far as it relates to
         compassionate appointment, frustrate the very object of the
E        scheme for compassionate appointment. The scheme for
         compassionate appointment is a rehabilitation scheme.
         Therefore, the subsequent instructions, the application/
         operation of which frustrates the very object of the scheme
         or make the scheme not practically applicable, cannot be
F        said to be valid instruction(s). Therefore, even if there had
         been any instructions of 2001 to consider the cases for
        compassionate appointment to the extent of 5% of the
        approved vacancies cleared by the screening committee
        (which could not be produced by the respondents before
        us), any appointment made without following such
G
        instructions cannot be said to be irregular appointment.
        More over, the administration should be more particular
        while considering the cases of compassionate
        appointment so that the persons appointed will not be
        terminated for any irregularity in the appointment. In no
H       case, the family which has been provided with
    DIRECTOR GENERAL OF POSTS & ORS. v.                   805
K. CHANDRASHEKAR RAO [SWATANTER KUMAR, J.]

  compassionate appointment to enable the family to meet . A
  with the indigent conditions caused due to the death of the
  employee would be put to distress again due to the fault
  of the administration. We may, at the cost of repetition,
  mention that (i) when the very instruction dated 16.05.2001
  in so far as it relates to compassionate appointment, has B
  been proved to be frustrating the very object of the scheme
  which is a rehabilitation scheme, even if any appointment
  is made without following such instruction, cannot or does       ..
   not make the appointment irregular. (ii) The applicants who
   have been given appointment against 2000 vacanCies              c
   following the instructions/scheme of 1998, their
   appointments do not, in any way, come within the purview
   of the DOPT instructions of 2001. Therefore, their
   appointments can in no way be terminated by applying the
   instructions of 2001. (iii) All the applicants who were
                                                               0
   considered and approved and were given compassionate
   appointments in 2002 cannot be terminated after they
    have worked for a considerable period. More particularly,
    when the scheme is a rehabilitation scheme and the 2001
    instructions in so far it relates to compassionate
    appointments frustrates the very object of the scheme and E
    make the scheme practically inapplicable as mentioned
    vide instructions cannot be said to be valid. For the
    reasons mentioned above, it will not be out of place to
    mention that in the case of Union of India and Others vs.
    K.P. Tiwari [2003 SCC (L&S) 1233] Hon'ble Supreme F
    Court declined to interfere with the appointment made 5
    years back and said that:

          "It is unnecessary in the present case to examine
          either questions of law or fact arising in the matter.   G
          Suffice to say that the respondent was appointment
          and has been in service for more than five years. It
          would not be appropriate to disturb that state of
          affairs by making any other order resulting in
          uprooting the respondent from his livelihood."           H
     806       SUPREME COURT REPORTS               [2012) 12 S.C.R.

A          Since the appropriate instructions dated 14.06.2006 have
           already been issued to consider the cases for
           compassionate appointment to the extent of 5% of total
           vacancies against the direct recruitment quota, no further
           order is necessary to that effect. Therefore, such
B          appointment which is made without following the said
           instructions cannot be terminated for the reasons
           mentioned above.

          18. Therefore, in view of the above discussion, we hold
         that the respondents are not justified in issuing the
c        impugned notice of termination/order of notice to delete
         the names of the applicants from the list of approved
         candidates. The applicants are entitled to continue in
         service on the strength of the appointment given to them.
         We, therefore, quash and set aside the impugned orders/
D        notices issued by the respondents in all the applications.
         Interim order granted by this Tribunal stands absolute."

        11. Being aggrieved from the judgment of the Tribunal, the
   appellant filed a writ petition, being W.P.(C) No. 20655/2008
E before the High Court. The High Court by that time had already
  disposed of Writ Petition (C) No. 15820 of 2008 filed by the
  Government Department entitled Superintendent of Post
   Offices, Anantpur Division, Anantpur vs. R.S. Madan Lal vide
  its judgment dated 23rd July, 2008, the subject matter in
F SLP(C) No. 19872/2009 which is also listed along with the
  present bunch of matters. While the High Court upheld the order
  of the CAT, it not only accepted its reasoning but in addition
  thereto held as under:-
        "We do not find any error in the above reasoning adopted
G       by the Tribunal. The respondent and others who were given
        appointments against vacancies arising in 2000 ignoring
        the scheme-1998 cannot be removed from service,
        pursuant to the instructions issued in 2001. Therefore, the
        candidates who were considered and given
H       compassionate appointment in 2002 cannot be removed
    DIRECTOR GENERAL OF POSTS & ORS. v.                   807
K. CHANDRASHEKAR RAO [SWATANTER KUMAR, J.]
  from service. At this stage, it is pat (sic-apt) to note that   A
  the Government taking into consideration the difficulties
  being faced by various Ministries in implementing the
  scheme for compassionate appointment issued certain
  instructions in memo dated, 14.6.2006. Para-3 of the said
   instructions reads thus:                                       B
         "On a demand raised by Staff Side in the Standing
         Committee of the National Council (JCM) for review
         of the compassionate appointment policy, the
         matter has been carefully examined and taking into C
         account the fact that the reduction in the number of
         vacancies for Group 'C' and 'D' posts (excluding
         technical pots) that have arisen in the year. Total
         vacancies available for making direct recruitment
         would be calculated by deducting the vacancies to
          be filled on the basis of compassionate D
          appointment form the vacancies available for direct
          recruitment in terms of existing orders on
          optimization."
   From the above, it is clear that the vacancies meant for E
   direct recruitment shall have to be calculated only after
   earmarking the vacancies required for compassionate
   appointment. In words, the direct recruitment vacancies
   shall have to be arrived at only after deducting the
   vacancies required for compassionate appointment under F
   the scheme. The Tribunal while allowing the OAs, has also
   taken into consideration, the aforementioned instructions
   issued by the Government of India.
         Admittedly, the notice of termination was issued on
   24.11.2005, i.e., prior to the instructions of the Government G
   of India, dated 14.6.2006. Therefore, the authorities have
   to reconsider the matter in the light of the in"tructions
   issued I memo, dated 14.5.2006. The Tribunal on a careful
   consideration of the relevant material on record has rightly
   come to the conclusion that the persons appointment in the H
     808        SUPREME COURT REPORTS                [2012] 12 S.C.R.


A          year 2002 cannot be terminated from service. We find no
           error in the order of the Tribunal warranting interference by
           this Court in exercise of power of judicial review under
           Article 226 of the Constitution of India.

                 The writ petition fails and the same is accordingly
8
           dismissed, at the admission stage. No costs."

       12. As is clear from the above factual matrix of the case
  that the issue revolves around the scope, interpretation and
  applicability of the office memorandums issued by the DoPT
C and other concerned authorities from time to time.

         13. The Ministry of Personnel, Public Grievances and
   Pension, Government of India had issued a circular on 9th
   October, 1998 declaring its policy in the form of a Scheme for
0 Compassionate appointment under the Central Government.
  This Scheme provided that the policy shall be applicable to the
  family members of a government servant who dies while in
  service including death by suicide or is retired on medical
  grounds, but subject to fulfilment of the conditions stated therein.
E It is not necessary for us to go into other clauses of this Scheme
  inasmuch as there is no dispute to other clauses except the
  clause relating to prescription of percentage in relation to direct
  recruitment for the purposes of compassionate appointment. It
  may be noticed that this Scheme of Compassionate
  Appointment can be applied only to the following;
F
         (i) The post should be falling in Group 'C' and 'D' posts,

        (ii) It should be in relation to direct recruitment as
    specified.
G        14. The Scheme provided for power of relaxation with the
    authorities in regard to age etc. Clause 7 of the Scheme is the
    relevant clause with which we are concerned. The same reads
    as under:-

H
    DIRECTOR GENERAL OF POSTS & ORS. v.                   809
K. CHANDRASHEKAR RAO [SWATANTER KUMAR, J.]

  "7. Determination/Availability of Vacancies                     A
   @).     Appointment on compassionate grounds should
          be made only on regular basis and that too only if
          regular vacancies meant for that purpose are
          available.
                                                                  B
   (b)    Compassionate appointments can be made upto
          a maximum of 5% of vacancies falling under direct
          recruitment quota in any Group 'C' or 'D' post. The
          appointing authority may hold back upto 5% of
          vacancies in the aforesaid categories to be filled
          by direct recruitment through Staff Selection
                                                                  c
          Commission or otherwise so as to fill such
          vacancies by appointment on compassionate
          grounds. A person selected for appointment on
          compassionate grounds should be adjusted in the
          recruitment roster against the appropriate category     D
          viz. SC/ST/OBC/General depending upon the
          category to which he belongs. For example, if he
          belongs to SC category he will be adjusted against
          the SC reservation point, if he is ST/OBC he will
          be adjusted against ST/OBC point and if he              E
          belongs to General category he will be adjusted
          against the vacancy point meant for General
          category.
   (c)    While the ceiling of 5% for making compassionate
          appointment against regular vacancies should not        F
          be circumvented by making appointment of
          dependent family member of Government servant
          on casual/daily wage/ad-hoc/contract basis against
          regular vacancies, there is no bar to considering
          him for such appointment if he is eligible as per the   G
          normal rules/orders governing such appointments.
    (d)   The ceiling of 5% of direct recruitment vacancies
          for making compassionate appointment should not         •
          be exceeded by (sic) any other vacancy e.g. sports
                                                                  H
          quota vacancy.
    810         SUPREME COURT REPORTS              [2012] 12 S.C.R.


A         (e)    Employment under the scheme is not confined to
                 the Ministry/Department/Office in which deceased/
                 medically retired Government servant had been
                 working. Such an appointment can be given
                 anywhere under the Government of India depending
B                upon availability of a suitable vacancy meant for the
                 purpose of compassionate appointment.

          (f)    If sufficient vacancies are not available in any
                 particular office to accommodate the persons in the
                 waiting list for compassionate appointment, it is
c                open to the administrative Ministry/Department/
                 Office to take up the matter with other Ministries/
                 Departments/ Offices of the Government of India to
                 provide at any early date appointment on
                 compassionate grounds to those in the waiting list."
D
        15. Before, we proceed to analyse the above clause as
  well as examine its impact in view of the amended OMs of the
  Government of India, we must notice that under clause 16(c)
  of this Scheme, it was specifically noticed that Scheme of
E Compassionate Appointment was conceived by the
  Government of India as far back as 1958. Since then, a number
  of welfare schemes have been introduced by the Government
  which has made a significant difference in the financial position
  of the families of the government servants dying in harness/
F retired on medical grounds.

        16. Clause 16(d) further provides that a compassionate
  appointment should not be denied or delayed merely on the
  ground that there is re-organisation in the office of the Ministry.
  The post should be made available to the person concerned if
G there is a vacancy meant for compassionate appointment and
  he or she is found eligible and suitable under the Scheme. Not
  only this, under clause 16(f), a compassionate appointment will
  have precedence on absorption of surplus employees and
  reorganisation of daily wage/casual worker with or without
H temporary status.
     DIRECTOR GENERAL OF POSTS & ORS. v.    811
 K. CHANDRASHEKAR RAO [SWATANTER KUMAR, J.]
    17. Reverting to clause 7 of the Scheme, it is stipulated A
under the Scheme that appointment on compassionate grounds
should be made only on regular basis and that too if regular
vacancies meant for that purpose are available. The
compassionate appointments can be made upto a maximum
of 5% of vacancies falling under direct recruitment quota in any B
group 'C' or 'D' post. The appointing authority may hold back
upto 5% of the vacancies in the aforesaid categories to be filled
by direct recruitment through Staff Selection Commission or
otherwise so as to fill such vacancies by appointment on
compassionate grounds.                                            c
     18. Clause 7(f) needs to be emphasised as it
contemplates that even if sufficient vacancies are not available
in any particular office to accommodate the persons in the
waiting list for compassionate appointment, it is open to the
administrative Ministry/Department/Office to take up the matter    D
with other Ministries/Departments/Offices of the Government of
India to provide at an early date appointment on compassionate
grounds to those in the waiting list.
     19. The above clauses clearly show that the Scheme of E
1998 for compassionate appointment is a welfare activity
carried out by the Government of India. It is a benevolent act
on the part of the State. Keeping in view the dire economic and
social crisis to which the family of a deceased government
employee in Class 'C' or 'D' is exposed, the government F
through this Scheme offers a helping hand. This is a voluntary
act of generosity on the part of the State. The generosity once
extended in the form of exercise of a subordinate legislative
power by formulating the said Scheme, will have the force of
law. It is enforceable to its limited extent and within its G
prescribed parameters. The purpose of the 1998 Scheme was
to provide employment and preferably as part of the regular
 cadre subject to availability of vacancies. Then the Central
 Government issued Office Memorandum dated 16th May,
 2001. This Memorandum did not refer to the circular of 1998 H
 as such, however, the essence of this memorandum was that
     812       SUPREME COURT REPORTS                [2012] 12 S.C.R.


. A while. presenting the Budget for the year 2001-2002, the
     Finance Minister stated that "all requirements of recruitmentwill
     be scrutinized to ensure that fresh recruitment is limited to 1
    per cent of total civil staff strength. As about 3 per cent of the
    staff retire every year, this will reduce the manpower by 2 per
  B cent per annum achieving a deduction of 10 per cent in five
    yeaPS as announced by the Prime Minister." Under clause 2.2
    of this Memorandum, it was further stated that while preparing
    the Annual Recruitment Plans, the concerned screening
    committees would ensure that direct recruitment does not in any
  c case exceed 1 per cent of the sanctioned strength of the
    department and accordingly direct recruitment would be limited
    to 1/3rd of the direct recruitment vacancies arising in the year
    subject to further restriction that this will not exceed 1 per cent
    of the total sanctioned strength of the department.

 D      20. In furtherance to this Memorandum, the Government of
  India, DoPT issued a clarification on the guidelines for
  compassionate appointment to Group 'C' and 'D' posts on 4th
  July, 2002. It clarified that 5 per cent quota for compassionate
  appointment is to be worked out with reference to DR
E vacancies in each recruitment year finally approved for filling
  up by the Screening Committee under the optimisation policy
  of the Government contained in Office Memorandum dated
  16th May, 2001. In other words, this Memorandum merely
  reiterated the applicability of the Office Memorandum dated
F 16th May, 2001.

        21. Finally on 14th June, 2006, 'Scheme for
  Compassionate Appointment under the Central Government
  Determination of Vacancies' was clarified. In this Office
  Memorandum, an attempt was made to clarify the optimisation
G of direct recruitment to civilian posts as contained in the Office
  Memorandum dated 16th May, 2001 to say that the recruitment
  does not'exceed 1% of the total sanctioned strength of the
  department. It noticed that there had been a continuous
  reduction in the number of vacancies for direct recruitment, thus,
H
      DIRECTOR GENERAL OF POSTS & ORS. v.    813
  K. CHANDRASHEKAR RAO [SWATANTER KUMAR, J.]

very few vacancies or, in fact, no vacancies were available for   A
compassionate appointment. In light of this, the earlier
instructions including the instructions dated 9th October, 1998
stood modified to the extent mentioned therein.

       22. From the above Scheme and Office Memorandum, it 8
is clear that where on the one hand, the State had formulated
a welfare scheme for compassionate appointments, there on
the other, because of limitations of its financial resources it
decided to take economic measures by reducing the extent of
appointment by direct recruitment from the financial year 2001- C
2002. Both these matters falling in the domain of the
 Government and being matters of policy, the Court is hardly
 called upon to comment upon either of them. These are the acts
 which fall in the domain of the State and do not call for any
 judicial interference. All that we propose to hold is that State
 has to abide by the Scheme it has floated for compassionate D
 appointment. The 1998 Scheme floated by the Government
 should receive a liberal construction and application as it is
 stated to be a social welfare scheme and largely tilted in favour
  of the members of the family of the deceased employee. The
  purpose appears to be to provide them with recruitment on a E
  regular basis rather than circumvent the same by adopting any
  other measure. That is the reason why the Government
  specifically states in its Scheme that efforts should be made.
  to appoint the members of a distressed family to the post
  provided he/she satisfies the other parameters stated in the F
  Scheme.

      23. The appellant was admittedly appointed to the post,
 in furtherance to the 1998 Scheme, in the year 2002 (while
 other appellants were appointed during the period of 2001-       G
 2003). The instructions which specifically dealt with the
 compassionate appointments were issued by office
  memorandum dated 4th July, 2002. Neither the Memorandum
  dated 16th May, 2001 nor Memorandum dated 4th July, 2002
  stated that the restrictions sought to be imposed were          H
     814      SUPREME COURT REPORTS                 [2012] 12 S.C.R.

A applicable retrospectively or even retroactively. The rights of
  these persons had been settled, the respondent and others had
  been appointed to the posts and they had already worked in
  their respective posts before the notice of termination were
  issued to them at the end of year 2004. No data or material
B has been placed by the government before us even to support
  the contention that under the effect of the instructions of the year
  1998, these persons were appointed in excess of the posts
  provided under the Scheme. Both these office memorandums
  were expected to operate prospectively and thus the rights
c which had been settled could not be re-settled. The stand of
  the appellant that it was a discrepancy or an error does not
  stand to any reason and must be rejected. It is also undisputed
  before us that the appointments of the respondent and others
  were made on the basis of the vacancies existing against the
  year 2000 when the instructions of 1998 were in operation, free
0
  of any restriction.

        24. In the meanwhile and as already noticed, another office
   memorandum came to be issued on 14th June, 2006 amending
   the restrictions placed by the office memorandum dated 16th
   May, 2001. The memorandum of 14th June, 2006 in fact
   requires as to how the vacancies available for making direct
   recruitment are to be calculated. It is not even the case of the
   appellants before us that in face of the memorandums, this
   exercise in terms of this memorandum was ever undertaken by
F the appellants. It will be a contradictory stand, if on the one hand,
  the appellants are permitted to treat office memorandums
  including office memorandum dated 16th May, 2001 as
  retrospective while on the other they treat office memorandum
  dated 14th June, 2006 as prospectively. The High Court in the
G operative part of its judgment has clearly observed that the
  authorities have to reconsider the matter in the light of
  instructions issued in the memorandum dated 14th June, 2006.
  We are unable to find any error of jurisdiction or otherwise in
  the said finding returned by the High Court.                            -
H
                                                                          -
     DIRECTOR GENERAL OF POSTS & ORS. v.                    815
 K. CHANDRASHEKAR RAO [SWATANTER KUMAR, J.)
      25. Despite the fact that the judgment of the Central A
Administrative Tribunal (for short "the Tribunal") has been upheld
by the High Court, we are unable to contribute and sustain the
view taken by the Tribunal that the Memorandum dated 16th
May, 2001 frustrated the very object of the Scheme for
Compassionate Appointment and on that ground alone, it was B
liable to be declared invalid. As already noticed, both the
matters are policy matters of the State and for valid and proper
reasons, without infringing the spirit of Article 14 and 16 of the
Constitution. The State can frame its policy, where it is for
economic reasons, least such decision would be open to c
judicial review to that extent. In the present case, there is some
ambiguity created by issuance of office memorandums dated
 16th May, 2001 and 14th June, 2006 and the enforcement of
 the former vide office memorandum dated 4th July, 2002 in
 relation to the implementation of Compassionate Appointment
                                                                   0
 Scheme of 1998. Thus, it is not only desirable but necessary
 that the competent authority should issue comprehensive
 guidelines squarely covering the issue, but they cannot tamper
 with the existing rights of the appointees.

     26. To contend that the existing status should not be           E
disturbed by this Court, the learned counsel appearing for the
respondent heavily relied upon the judgment of this Court in
Union of India and Others v. K.P. Tiwari [(2003) 9 SCC 129],
where the Court noticed in para 4 of the judgment that "it is
unnecessary in this case to examine either questions of law or       F
fact arising in the matter. Suffice to say that the respondent has
been appointed now and has been in service for more than five
years. We do not think, it would be appropriate to disturb that
state of affairs by making any other order resulting in uprooting
the respondent from his livelihood".                                 G
      27. As is evident from this judgment, no law has been
 stated by the Court, however it was stated that in the facts of
 that case, it was not appropriate to disturb the appointment at
 that stage. We may usefully refer to another judgment of this       H
    816       SUPREME COURT REPORTS                 [2012] 12 S.C.R.


A Court in the case of Balbir Kaur and Anr. v. Steel Authority of
  India Ltd. and Others etc. etc. [(2000) 6 SCC 493], where this
  Court held as under:-

           "19. Mr Bhasme further contended that family members of
          a large number of the employees have already availed of
B
          the Family Benefit Scheme and as such it would be taken
          to be otherwise more beneficial to the employee
          concerned. We are not called upon to assess the situation
          but the fact remains that having due regard to the
          constitutional philosophy to decry a compassionate
c         employment opportunity would neither be fair nor
          reasonable. The concept of social justice is the yardstick
        , to the justice administration system or the legal justice and
          as Roscoe Pound pointed out the greatest virtue of law is
          in its adaptability and flexibility and thus it would be
D         otherwise an obligation for the law courts also to apply the
          law depending upon the situation since the law is made
          for the society and whatever is beneficial for the society,
          the endeavour of the law court would be to administer
         justice having due regard in that direction."
E
         28. In the above case, the Court has placed emphasis
    upon the concept of socio-economic justice and granted relief
    to the appellant and, in addition, directed employment of one
    of the family members.
F       29. In view of the above settled position of law and the fact
  that the memorandums could not be given retrospective effect,
  we do not consider it appropriate to interfere with the judgment
  of the High Court. The spirit of the Scheme was to provide relief
  to the family members of the deceased persons and thus on
G the yardstick of social justice, such relief cannot be withdrawn
  on the ground of some alleged discrepancy which has not been
  supported by any data, is unreasonable and therefore, even
  unsustainable. The appellants must state appropriate reasons
  and provide the expected data on record if they expect the
H Court to come to a different conclusion. As already noticed, the
     DIRECTOR GENERAL OF POSTS & ORS. v.                    817
 K. CHANDRASHEKAR RAO [SWATANTER KUMAR, J.)
appellants have miserably failed to place any such data on the      A
basis of the Memorandum dated 14th June, 2006.

    30. For the reasons afore-stated, we dismiss all these
appeals and further issue the following directions;
       (A)    The appointments of the respondents will not be       8
             interfered with by the appellants on the strength of
             the memorandum dated 4th July, 2002.

       (B)   The Office Memorandum dated 16th May, 2001,
             14th June, 2006 and 4th July, 2002 have in relation C
             to the 1998 Scheme for Compassionate
             Appointment caused some confusion on the one
             hand and while on the other they have prejudicially
             affected the rights of large number of heirs of the
             employees who died in harness. Thus, we direct the o
             appellants to issue comprehensive, certain and
              unambiguous directions which shall put an end to
              such unnecessary controversies.
       31. However, there shall be no orders as to costs.
                                                                    E
R.P.                                        Appeals dismissed.