Holding

Indigence of the dependents is a prerequisite for compassionate appointment and the respondent, being non‑indigent and beyond superannuation age, was not eligible; the High Court order was set aside.

Summary

The respondent's wife, a government employee, died in service, after which he received her death-cum-terminal benefits and applied for a compassionate appointment. The department rejected his application on the ground that he was not indigent, a decision upheld by the Central Administrative Tribunal. The Madras High Court reversed that decision, holding that indigence was not a requisite and directing his inclusion in the compassionate appointment list. On appeal, the Supreme Court examined the 1998 Office Memorandum governing compassionate appointments and held that indigence of the dependents is the primary eligibility condition, and that the scheme is intended to aid families in destitution, consistent with Articles 14 and 16. The Court also noted that the respondent was beyond the age of superannuation, further disqualifying him. Consequently, the High Court order was set aside and the appeal was allowed.

Issues considered

Whether indigence of the deceased employee's dependents is a mandatory eligibility criterion for compassionate appointment under the 1998 Office Memorandum.
Whether a person beyond the age of superannuation can be appointed on compassionate grounds.
Whether the High Court erred in directing the inclusion of the respondent's name in the compassionate appointment list.
Whether the scheme of compassionate appointments must conform to the equality principles of Articles 14 and 16 of the Constitution.

Subjects

compassionate appointmentindigenceservice lawArticles 14 and 16equalitysuperannuationCentral Administrative Tribunalwrit petition

Judgment

(2011) 5 S.C.R. 719

UNION OF INDIA AND ANR. A
v.
8. KISHORE
(Civil Appeal No. 1045 of 2006)
APRIL 6, 2011
B
[AFTAB ALAM AND R.M. LODHA, JJ.]

Service Law - Appointment - Compassionate
appointment - Entitlement to - Respondent's wife died while
she was in service - Respondent obtained death-cum- C
terminal benefits of his wife from her department -
Subsequently he made application for compassionate
appointment - Department rejected the application of
respondent on the ground that he was not considered to be
in 'indigent circumstances' - Decision upheld by Tribunal - D
Respondent filed writ petition - High Court allowed the writ
petition holding that the scheme of compassionate
appointment does not lay emphasis on indigency as a
criterion for withholding or offering compassionate
appointment and directed the appellants to include the name E
of respondent in the list of candidates waiting for appointment
on compassionate basis - Justification of - Held: Not justified
- Contrary to the High Court's observation, indigence of the
dependents of the deceased employee is the first pre-
condition to bring the case under the scheme of F
"compassionate appointment" - If the element of indigence
and the need to provide immediate assistance for relief from
financial deprivation is taken out from the scheme of
compassionate appointments, it would turn. out to be a
reservation in favour of the dependents .of an employee who
died while in service which would be directly in conflict with G
the ideal of equality guaranteed under Articles 14 and 16 of
the Constitution - Respondent went abroad in search of
employment and stayed there for four years before filing
application for compassionate appointment - Though he
719 H
720 SUPREME COURT REPORTS [2011] 5 S.C.R.

A might have been struggling for financial upliftment, he
certainly cannot be described as an indigent or destitute -
Case of respondent therefore did not come under the scheme
of compassionate appointments as envisaged under Office
Memorandum dated October 9, 1998 - Even otherwise and
s without any reference to the said Office Memorandum, case
of the respondent does not meet or satisfy the basic object
and purpose of appointment on compassionate grounds -
Further, respondent has already attained the age of
superannuation and there is no question of his appointment
c on compassionate ground or on any other ground -
Constitution of India, 1950 - Articles 14 and 16.

The wife of the respondent died while giving birth to
their second child. At that time she was working as a
Senior Accountant in the Office of the Directorate of
D Postal Accounts. The respondent made an application for
payment of her death-cum-terminal dues and
subsequently also made request for compassionate
appointment. After payment of monetary dues to the
respondent, the claim of respondent for appointment on
E compassionate basis was taken up. The respondent was
informed that he was not found entitled to appointment
on compassionate grounds because he was not
considered to be "in indigent circumstances".
Challenging the said decision, the respondent filed O.A.
F before the Tribunal. The Tribunal dismissed the O.A.
Respondent filed writ petition.

The High Court, however, allowed the writ petition
inter a/ia holding that the Scheme of compassionate
appointment does not lay emphasis on indigency as a
G criterion for withholding or offering compassionate
appointment and that compassionate appointment is to
be made as a result of the death of the deceased official
and when his/her family is in immediate need of
assistance. The High Court held that in the instant case
H
UNION OF INDIA AND ANR. v. 8. KISHORE 721

there was a young son to be looked after and brought A
up and it cannot, therefore, be said that the family (of
respondent) was not in need of income and thereafter
directed the appellants to include the name of respondent
in the list of candidates waiting for appointment on
compassionate basis. Hence the present appeal. B

Allowing the appeal, the Court

HELD:1.1. On going through the judgment passed by
the High Court, it is evident that it is based on a complete
misconception about the scheme of compassionate C
appointments. Contrary to the High Court's observation,
indigence of the dependents of the deceased employee
is the first pre-condition to bring the case under the
scheme of "compassionate appointment". The very
purpose and object of the· scheme is to provide D
immediate succour to the family of an employee that, on
his death, may suddenly find itself in a state of destitution.
If the element of indigence and the need to provide
immediate assistance for relief from financial deprivation
is taken out from the scheme of compassionate E
appointments, it would turn out to be a reservation in
favour of the dependents of an employee who· died while
in service which would be directly in conflict with the
ideal of equality guaranteed under Articles 14 and 16 of
the Constitution. [Para 5] [725-E-H; 726-A] F

1.2. The Central Government had issued revised and
consolidated instructions in connection with the scheme
of compassionate appointments vide Office
Memorandum dated October 9, 1998, that had come into
force when the case of respondent came up for G
consideration before the High Court. Clause 1 of the
Office Memorandum describes the object of.the Scheme
as to grant appointment on· compassionate grounds to
a dependent family member of a Government servant
H
722 SUPREME COURT REPORTS [2011) 5 S.C.R.

A dying in harness or who is retired on medical grounds,
thereby leaving his family in penury and without any
means of livelihood to relieve the family of the
Government servant concerned from financial destitution
and to help it get over the emergency. Clause 5 of the said
B Office Memorandum lays down the eligibility criterion and
requires that the family is indigent and deserves
immediate assistance for relief from financial destitution.
[Paras 7) [726-G-H; 727-A-B]

C 1.3. In the writ petition filed by the respondent before
the High Court it was stated that he was unemployed. It
was further stated that in August, 1988, one of his friends
took him to Singapore in search of employment. But there
too the respondent was unable to find a "lucrative job".
He came back to India after staying there for about four
D years in 1992. From the writ petition it appears that though
the respondent might have been struggling for financial
upliftment, he certainly cannot be described as an
indigent or destitute. [Para 8) [727-G-H; 728-A]

E 1.4. The case of the respondent clearly did not come
under the Office Memorandum dated October 9, 1998.
Even otherwise and without any reference to the Office
Memorandum dated October 9, 1998, the case of the
respondent does not meet or satisfy the basic object and
F purpose of appointment on compassionate grounds.
[Para 9) [728-B-C]

State Bank of India v. Raj Kumar (2010) 11 SCC 661 -
relied on.
G 2. An important and relevant fact was completely
missed out in considering the respondent's claim for
appointment on compassionate basis. From the records
it appears that in the verification appended to his OA
before the Tribunal he gave his _age as 58 years in June,
H
UNION OF INDIA AND ANR. v. B. KISHORE 723

1998. Unless his age is wrongly stated in the verification A
to the OA, he would be 54 years of age when he made
the application for compassionate appointment and 61
years old when the High Court allowed his Writ Petition.
In other words, he was already beyond the age of
superannuation and there was no question of h.is B
appointment on compassionate ground or on any other
grounds. [Para 11] [728-D-F]
Case Law Reference:
(201 o) 11 sec 661 relied on Para 6 c
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1045 of 2006.

From the Judgment & Order dated 1.8.2001 of the High
Court of Madras in W.P. No. 1225 of 1998 an dated 24.11.2000 D
in W.P. No. 25135 in W.P. No. 12225 .of 2003 in W.P .. No.
12225 of 1998. · ·

Shweta Verma, Mukesh Kumar (for V.K. Verma) for the
~~llan~. · E

The Judgment of the Court was delivered by

AFTAB ALAM, J. 1. This appeal by special leave is
directed against the judgment of the Division Bench of the
Madras High Court. By the judgment and order coming under F
appeal, the High Court directed the appellants to include the
name of the respondent in the list of candidates waiting for
appointment under the scheme of "compassionate
appointments".
G
2. The wife of the respondent K. Janaki died on
September 1, 1993, while giving birth to their second child. At
that time she was working as a Senior Accountant in the Office
of the Directorate of Postal Accounts, Madras. On September

H
724 SUPREME COURT REPORTS [2011} 5 S.C.R.

A 21, 1993, the respondent made an application for payment of
her death-cum-terminal dues. A rival claim was raised by the
mother of the deceased but the respondent was able to obtain
the succession certificate and on that basis he got payment of
a sum of Rs. 71,000/- as death-cum-retirement gratuity of his
B deceased wife, in addition to a sum of Rs.2,998/- per month
as family pension.

3. On January 11, 1994, the respondent made the request
for compassionate appointment but he was informed by the
concerned departmental authorities that his claim for
C compassionate appointment would be considered only after the
settlement of the rival claims for payment of the death-cum-
terminal dues of K. Janaki. After payment of the monetary dues
to the respondent, his claim for appointment on compassionate
basis was taken up and he was asked to submit proof of
D passing the S.S.L.C. examination. On July 9, 1996, the
respondent made another representation for appointment on
compassionate grounds. His case was finally considered by the
Circle Selection Committee and he was informed by letter
dated February 26, 1998, that he was not found entitled to
E appointment on compassionate grounds because he was not
considered to be "in indigent circumstances".

4. The respondent challenged the decision of the Circle
Selection Committee before the Central Administrative Tribunal,
F Madras Bench in O.A. No.610/1998. The Tribunal dismissed
the O.A. by order dated July 16, 1998. Against the order passed
by the Tribunal, the respondent went to the Madras High Court
in Writ Petition No.12225/1998. A Division Bench of the High
Court allowed the Writ Petition with the direction to the
G appellants to include his name in the list of candidates waiting
for appointment on compassionate basis. The High Court in the
judgment coming under appeal observed as follows:-

"ln deserving cases even when there is an earning
member in the family, compassionate appointment may be
H
! UNION OF INDIA AND 'ANR.' ~- B. KISHORE 725
[AFTAB ALAM, J.]
offered, if the family is found to be in distress, with the prior A
approval of the Secretary of the Department concerned."

ltwent on to say: . .) .' . I ',.l,... ~ ·~ :.:~ '::,.

"The Scheme, therefore, does not lay emphasise on
the· indigency as a.criterion for withholding or offering B
· compassionate appointment. :· Compassionate
. ' c appointment is to 'be made 'as a result 'ot the death of the

deceased official and when hisJtier family l~ in Immediate
need of assistarfoe'. ~ · '" · · -·· " · · "'- ,. ·• ·· · ·
I ' ~ ,~ I . ~ ' ; ""·

c
·l · · · . {emphasis ad~ed)
... l '~' ., '~ ~ '

-It further said: ., .- · . ; .
, . •• "'>f<' . r '<i 1' . . ··.' r. ,,

· "Admittedly, there is a young son has to l;>e l_ooked
..after and brought up. It cannot, ther~fore, be said that the D
family is not in need
·.
of ,_..income.
. .·The fact
.
that. the family
' ' ,,

. receives pension also no ground to decline appointment
nowhere provides that in ·case where the. family Js paid
pension." · " . · ·. : · ,, ..
{ • ~-, ~ ".\I ' ~ • ,_ "' ' 'f ~' ,. '

5. On going through the _judgment passed by the High
Co1.frt, it is'evident that it is based on a complete misconception
about the scheme of compassionate appointments. Contrary
to the High Court's observation, indigence of the dependents
of the deceased employee is the first pre-condition to bring the
F
case under the scheme of "compassionate appointment". The
very purpose and object of the scheme is to provide Immediate
succour to the family of an employee that, on his death, may,
suddenly find itself in a state. of destitution. If the element.of
indigence and the need to provide immeaiate assistance for
relief from financial deprivation is taken out fro'!! the scheme G
of compassionate appointments, it would turn out to be a
reservation in favour of the dependents of an employee who .
died while in service which would be directly in conflict with the
ideal of equality guaranteed under Articles 14 and 16 of the
H
726 SUPREME COURT REPORTS [2011) 5 S.C.R.

A Constitution.

6. In State Bank of India v. Raj Kumar, (2010) 11 SCC
661, elucidating the nature of the scheme of compassionate
appointments this Court observed:
B "It is now well settled that appointment on
compassionate grounds is not a source of recruitment. On
· the other. hand it is an exception to the general rule that
recruitment to public services should be on the basis of
merit, by an open invitation providing equal opportunity to
c all eligible persons to participate in the selection process.
The dependants of employees, who die in harness, do not
have any special claim or right to employment, except by
way of the concession that may be extended by the
employer under the rules or by a separate scheme, to
D enable the family of the deceased to get over the sudden
.. financial crisis. The claim for compassionate appointment
is therefore traceable only to the scheme framed by the
employer for such employment and there is no right
whatsoever outside such scheme. An appointment under
E the scheme can be made only if the scheme is in force
and not after it is abolished/withdrawn. It follows therefore
that when a scheme is abolished, any pending application
seeking appointment under the scheme will also cease to
exist, unless saved.The mere fact that an application was
F made when the scheme was in force, will not by itself
create a right in favour of the applicant."

7. The Central Government issued revised and
consolidated instructions in connection with the scheme of
compassionate appointments under the Central Government
G vide Office Memorandum dated October 9, 1998. Clause 1 of
the Office Memorandum describes the object of the Scheme
as under:-

"The object of the Scheme is to grant appointment on
H compassionate grounds to a dependent family member of
UNION OF INDIA AND ANR. v. B. KISHORE 727
[AFTAB ALAM, J.]
a Government servant dying in harness or who 1is retired A
on medical grounds, thereby leaving his family in penury
and without any means of livelihood to relieve the family
of the Government servant concerned from financial
destitution and to help it get over .the emergency,"
B
(emph~sis added)

Clause 5 lays down the eligibility criterion and provides as
follows:-

"(a) The family is indigent ahd deserves immediate c
assistance for relief from financial destitution; and ·
(b) Applicant for compassionate appointment shall
be eligible and suitable for the post in all respects under
the provisions of the relevant Recruitment Rules."
D
(emphasis added)
Clause 7 deals with availability of vacancies and sub-
clause (b) provides as follows:-
E
"(b) Compassionate appointments can be made upto ~
maximum of 5% of vacancies falling under 'direct recruitment
quota in any Group 'C' or 'D' post. The appointing authority may
hold back 5% of 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 F
compassionate grounds." ·

8. In the writ petition filed by the respondent before the High
Court it was stated that he was unemployed. It was further stated
that in August, 1988, one of his friends took him to Singapore G
in search of employment. But there too the respondent was ·
unable to find a "lucrative job". He came back to India after
staying there for about four years in 1992. From the writ petition
it appears that though the respondent might have been
struggling for financial upliftment, he certainly ca~not be · H
728 SUPREME COURT REPORTS [2011) 5 S.C.R.

A described as an indigent or destitute.

9. The case of the respondent clearly did not come under
the revised and consolidated scheme formulated by Office
Memorandum dated October 9, 1998, that had come into force
when his case came up for consideration before the High Court.
8
Even otherwise and without any reference to the Office
Memorandum dated October 9, 1998, the case of the
respondent does not meet or satisfy the basic object and
purpose of appointment on compassionate grounds.

C 10~ The High Court was, therefore, in error in passing the
impugned order.

11. It further appears that an important and relevant fact
was completely missed out in considering the respondent's
0 claim for appointment on compassionate basis. From the
records it appears that in the verification appended to his OA
before the Tribunal he gave his age as 58 years in June, 1998.
Unless his age is wrongly stated in the verification to the OA,
he would be 54 years of age when he made the application
E for compassionate appointment and 61 years old when the
High Court allowed his Writ Petition. In other words, he was
already beyond the age of superannuation and there was no
question of his appointment on compassionate ground or on
any other grounds.

F 12. In light of the discussions made above, the order
coming under appeal is wholly unsustainable. It is set aside.
The appeal is allowed but with no order as to costs.

B.B.B. Appeal allowed.