Holding

Appointment on compassionate ground is an exception to open competition and must be made in accordance with the applicable rules; it cannot be claimed belatedly, rendering the High Court’s order unsustainable.

Summary

The father of the respondent, Shakti Prasad, died while employed in a government hydro‑electric project that was later transferred to the National Hydro‑Electric Power Corporation. After attaining majority, the respondent applied for a compassionate appointment, but the corporation rejected it on the ground that the application was filed ten years after the death and beyond the six‑month limit prescribed in its guidelines. The Himachal Pradesh High Court directed the corporation to appoint the respondent, a decision which was appealed before the Supreme Court. The Court held that appointment on compassionate grounds is an exception to the general rule of open competition and must be made in accordance with applicable rules; it cannot be claimed after an unreasonable delay. Consequently, the High Court’s order was set aside, although the Court noted that the respondent’s case could be considered sympathetically under any lawful scheme. The appeal was allowed without costs.

Issues considered

Can a compassionate appointment be granted when the application is made after a prolonged period beyond the prescribed time limit?
Do the corporation's own guidelines override the Central Government's instructions on compassionate appointments?
Is appointment on compassionate grounds a source of recruitment or merely an exception to merit‑based open competition?
Does the High Court's direction for appointment violate the principles of open competition and statutory rules?

Subjects

compassionate appointmentpublic service recruitmenttime limitadministrative instructionsgovernment servicehumanitarian considerationbelated applicationSupreme Court

Judgment

A NATIONAL HYDROELECTRIC POWER CORPORATION AND ANR.
v.
NANAK CHAND AND ANR.

OCTOBER 15, 2004

B [ARIJITPASAYAT ANDC.K. THAKKER,JJ.]

Service Law:

Application for appointment on compassionate ground-Rejected ·by
C authorities on ground that the application was made belatedly-Challenged
by incumbent after a lapse of seven years-Allowed by High Court-On
appeal, Held: Appointment on compassionate ground is not a source of
recruitment but an exception to the appointment by an open competition-
It enables the bereaved family to get over sudden financial crisis-However,
D compassion~te appointment cannot be claimed belatedly/beyond the time
limit prescribed to that effect-Hence, Judgment of the High Court not
sustainable-However, .the case of the applicant could be considered
sympathetically under any scheme/adminis.trative decision in accordance
with law.

E Father of the respondent was working in a Hydroelectric project of the
Government of India. He died_ while in service. Later the Project was
transferred to the appellant-Corporation. Respondent, after attaining the age
of majority, filed an application for appointment on compassionate ground,
which was rejected on the ground that it was made 10 years after the death of
F his father. Later, the Corporation laid down guidelines indicating time limit
for applying for such appointment Respondent filed a writ petition challenging
rejection of his application by the Corporation. High Court directed the
Corporation/Government of India to appoint the respondent Hence the present
appeal·

It was contended for the appellant-Corporation that since the purpose
G
of appointment on compassionate ground is to meet the sudden unforeseen
financial constraints, no direction for such appointment should have been
given on the application made belatedly; and that since they hne their own
administrative instruction on the subject, the instructions of the Central
Government were not applicable.
H 596
NATIONAL HYDROELECTRIC POWER CORPN. v. NANAK CHAND 597
Allowing the appeal, the Court A
HELD: 1.1. The appointment on compassionate ground is not a source
of recruitment but merely an exception to the requirement regarding
appointments being made on open invitation of application on merits. Basic
intention is that on the death of the employee concerned his family is not
deprived of the means of livelihood. The object is to enable the family to get · B
over sudden financial crisis. [599-G-Hl

1.2. Public service appointment should be made strictly on the basis of
open invitation of applications and merit The appointment on compassionate
ground is not another source of recruitment but merely an exception to the
aforesaid requirement taking into consideration. the fact of the death of C
employee while in service leaving his family without any means of livelihood.
In such cases the object is to enable the family to get over sudden financial
.. crisis. But such appointments on compassionate ground have to be made in
accordance with the rules, regulations or administrative instructions taking
into consideration the financial condition of the family of the deceased. D
[60C-E-F)

State of Haryana and Ors. v. Rani Devi and Anr., JT (1996) 6 SCC 646;
Life Insurance Corporation of India v. Asha Ramchhandra Ambekar (Mrs.)
and Anr., [19941 2 SCC 718; Umesh Kumar Nagpal v. State of Haryana and
Ors., [1994) 4SCC 138; Smt. Sushma Gosain and Ors. v. Union ofIndia and E
Ors.. (1989) 4 SCC 468; Phoolwati (Smt.) v. Union ofIndia and Ors., [1991)
Supp. 2 SCC 689; Union ofIndia and Ors. v. Bhagwan Singh, [1995) 6 SCC
476 and Director of Education (Secondary) and Anr. v. Pushpendra Kumar
and Ors.. (1998) 5 SCC 192, relied on.
>
1.3. To alleviate the distress of the family, such appointme~ts are F
permissible on compassionate grounds provided there are Rules providing
for such appointments. None of these considerations can operate when the
application is made after a long period of time. (600-E-F)

State of UP. and Ors. v. Paras Nath, [199812 SCC 412; State ofManipur
v. Md Rajaodin, [2003) 7 SCC 511 State of Haryana and Anr. v. Ankur Gupta, G
[2003) 7 SCC 704; Haryana State Electricity Board v. Naresh Tanwar, (1996)
8 SCC 23; Haryana State Electricity Board v. Hakim Singh. [19971 8 SCC
85 and Punjab National Bank and Ors. v. Ashwini Kumar Taneja, (C.A.No.5256
of2004 decided by Supreme Court on 16.8.2004), referred to.
H
598 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 1.4. In the light of the settled position of law, the judgment of the High
Court is unsustainable. However, this judgment would not stand in the way of
the respondent's case being considered sympathetically under any scheme
or by any administrative decision in accordance with law. (602-A-B)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5185 of2002.
B
From the Judgment and Order dated 2.7.2002 of the Himachal Pradesh
High Court in C.W.P. No. 161 of 1993.

Shiv Mangat Sharma, Pawan Upadhayay and S.B. Upadhyay for the

c
Appellants. •
Ravi Bakshi and Yash Pal Dhingra for the Respondents.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Challenge in this appeal is to the legality of
D judgment rendered by a Division Bench of the Himachal Pradesh High Court
directing that Nanak Chand (respondent herein) be given compassionate
appointment by the Union of India through the Secretary, Power, Government
of India, either by directing National Hydroelectric Power Corporation
(hereinafter referred to as the 'Corporation' appellant no. I herein) or in any
E of its projects/establishments, Corporations appropriately. It was further
directed that in case the present appellant shows reluctance in spite of being
asked by the Union of India to give appointment, then the Union of India
would be duty bound to engage him and if that contingency arises the
respondent herein would be entitled to back wages from February I, 1993 i.e.
the date of filing of the writ petition provided he was not gainfully employed. (.

F
Factual background which is almost undisputed is as follows:

Father ofrespondent one Shri Shakti Prasad was working under Baira
Siu! Hydroelectric Project of the Government of India. While so working he
died on 10.12.1976. The said Shakti Prasad was survived by his widow and
G three children. In full and final settlement of her claim the widow received
Rs.19,200 as per the existing rules. On 20.1.1978 the said Baira Siul
Hydroelectric Project was handed over to the appellant-Corporation by
. Government of India by virtue of a deed of transfer. After attaining majority
in 1986 the respondent filed an application for appointment on compassionate
ground. The application was rejected on the ground that application has been
H made after IO years of the death of his father and also that the Corporation
NATIONAL HYDROELECTRIC POWER CORPN. v. NANAK CHAND [PASA YAT, J.] 599

had already surplus staff. On 9.5.1989 the Chainnan-cum-Managing Director A
of the Corporation laid down guidelines to the effect that request for
compassionate appointment has to be made within six months of the occurrence
of death. Respondent was infonned by the authorities of the Corporation
about the rejection of his application. On 30.6.1992 the respondent approached
the Deputy Commissioner, Chamba for compassionate appointment in the B
aforesaid Baira Siul Project. By letter dated 30.6.1992 the Deputy Commissioner
infonned the respondent that since his claim for appointment had already
been rejected, there was no scope for any further consideration. Sometimes
in the year 1993 i.e. after about 7 years of initial rejection of the request,
respondent filed a writ petition CWP No. 161 of 1993 before the Himachal
Pradesh High Court. The writ petition was contested on several grounds by C 1

the present appellants. It was the primary stand that it was a highly belated
approach for compassionate appointment and in any event the Corporation
was not required to deal with the matter. The respondent's father was not an
employee of the Corporation and when he died he was employed by the
Central Government. The High Court referred to instructions issued by D
Government of India as contained in Swamy's Complete Manual and
Establishment and Administration, 5th Edition, Chapter XXIX and held that
respondent was entitled to the directions.

Learned counsel for the Corporation submitted that the directions given
for appointment on compassionate grounds were clearly erroneous. The E
instructions of the Government as contained in Swamy's Manuals are not
applicable to the Corporation which had its own administrative instructions.
The highly belated application should have been thrown out at the threshold
by the High Court. The purpose of compassionate appointment is to meet
unforeseen financial constraints and therefore no direction should have been
given for appointment as done by the High Court. F
In response, learned counsel for the respondent no. I submitted that
keeping in view the ground realities the High Court has given the direction
and this is not a fit case where any interference should be done by this Court.

It is to be seen that the appointment on compassionate ground is not G
a source of recruitment but merdy an exception to the requirement regarding
appointments being made on open _invitation of application on merits. Basic
intention is that on the death of the employee concerned his family is not
deprived of the means of livelihood. The object is to enable the family to get
over sudden financial crises.
H
600 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A As was observed in State of Haryana and Ors. v. Rani Devi and Anr.,
.
..;

JT [ 1996] 6 sec 646, it need not be pointed out that the claim of person
concerned for appointment on compassionate ground is based on the premises
that he was dependant on the deceased employee. Strictly this claim cannot
be upheld on the touchstone of Articles 14 or 16 of the Constitution of India.
B However, such claim is considered as reasonable and permissible on the basis
of sudden crisis occurring in the family of such employee who has served the
State and dies while in service. That is why it is necessary for the authorities
to frame rules, regulations or to issue such administrative orders which can
stand the test of Articles 14 and 16. Appointment on compassionate ground
cannot be claimed as a matter ofright. Die-in-harness scheme cannot be made
C applicable to all types of posts irrespective of the nature of service rendered
by the deceased employee. In Rani Devi's case (supra) it was held that
scheme regarding app<:>intment on compassionate ground if extended to all
types of casual or ad hoc employees including those who worked as
apprentices cannot be justified on constitutional grounds. In Life Insurance
Corporation ofIndia v. Asha Ramchhandra Ambekar (Mrs.) and Anr., (1994]
D 2 SCC 718 it was pointed out that High Courts and Administrative Tribunals
cannot confer benediction impelled by sympathetic considerations to make
appointments on compassionate grounds when the regulations framed in
respect thereof do not cover and contemplates such appointments. It was
noted in Umesh Kumar Nagpal v. State of Haryana and Ors., (1994] 4 SCC
E 138 that as a rule in public service appointment should be made strictly on
the basis of open invitation of applications and merit. The appointment on
compassionate ground is not another source of recruitment but merely an
exception to the aforesaid requirement taking into consideration the fact of
the death of employee while in service leaving his family without any means
of livelihood. In such cases the object is to enable the family to get over
F sudden financial crisis. But such appointments on compassionate ground
have to be made in accordance with the rules, regulations or administrative
instructions taking into consideration the financial condition of the family of
the deceased.

G In Smt. Sushma Gosain and Ors. v. Union of India and Ors., (1989] 4
sec 468 it was observed that in all claims of appointment on compassionate
grounds, there should not be any delay in appointment. The purpose of
providing appointment on compassionate ground is to mitigate the hardship
due to death of the bread-earner in the family. Such appointments should,
therefore, be provided immediately to redeem the family in distress. The fact
H that the ward was a minor at the time of death of his father is no ground,
NATIONALHYDROELECTRICPOWERCORPN. v. NANAKCHAND [PASAYAT,J.] 601

unless the scheme itself envisage specifically otherwise, to state that as r.nd A
when such minor becomes a major he can be appointed without any time
consciousness or limit. The above view was re-iterated in Phoolwati (Smt.)
v. Union of India and Ors., [1991) Supp. 2 SCC 689 and Union of India and
Ors. v. Bhagwan Singh, [1995) 6 SCC 476. In Director of Education
(Secondary) and Anr. v. Pushpendra Kumar and Ors., [199~] 5 SCC 192; it
was observed that in matter of compassionate appointment there cannot be B
insistence for a particular post. Out of purely humanitarian consideration and
having regard to the fact that unless some source of livelihood is provided
the family would not be able to make both ends meet, provisions are made
for giving appointment to one of the dependants of the deceased who may
be eligible for appointment. Care has, however, to be taken that provision for C
ground of compassionate employment which is in the nature of an exception
to the general provisions does not unduly interfere with the right of those
other persons who are eligible for appointment to seek appointment against
the post which would have been available, but for the provision enabling
appointment being made on compassionate grounds of the dependant of the
deceased employee. As it is in the nature of exception to the general provisions D
it cannot substitute the provision to which it is an exception and thereby
nullify the main provision by taking away completely the right conferred by
the main provision .

• In State of UP. and Ors. v. Paras Nath, [1998] 2 SCC 412 it was held
that the purpose of providing employment to the dependant of a government
E
servant dying-in harness in preference to anybody else is to mitigate hardship
caused to the family of the deceased on account of his unexpected death
. while in service. To alleviate the distress of the family, such appointments are
permissible on compassionate grounds provided there are Rules providing for
such appointments. None of these considerations can operate when the F·
application is made after a long period of time. In that case also the delay was
17 years.

These aspects were highlighted in State of Manipur v. Md. Rajaodin,
(2003) 7 SCC 511, State of Haryana and Anr. v. Ankur Gupta, (200317 SCC
704, Haryana State Electricity Board v. Naresh Tanwar, (1996] 8 SCC 23 and G
Haryana State Electricity Board v. Hakim Singh, [ 1997] 8 SCC 85 and Punjab
National Bank and Ors. v. Ashwini Kumar Taneja (Civil Appeal No. 5256 of
2004 decided on 16.8.2004)

Above being the position, we find the judgment of the High Court to H
602 SUPREME COURT REPORTS (2004) SlJ1 . .,, S.L.K.

A be unsustainable. The same is, therefore, set aside.
Our judgment, however, will not stand in the way of the respondent's
case being considered sympathetically under any scheme or by any
administrative decision in accordance with law.

B The appeal is allowed with no orders as to costs.

S.K.S. Appeal allowed.

•