Holding

The compassionate appointment scheme, including for medically invalidated servants and the five‑year eligibility period counted from the retirement order, is constitutionally valid under Article 16.

Summary

The Supreme Court examined Andhra Pradesh's scheme of compassionate appointments for dependents of government servants who retire on medical invalidation. The petitioners argued that the scheme was unconstitutional under Article 16 and that the five‑year "left‑over service" period should be counted from the date of application, not the retirement order. The Court held that compassionate appointments are an accepted exception to the general merit‑based rule and are permissible for both death‑in‑harness and medical invalidation cases. It affirmed that the scheme’s terms, including the five‑year cut‑off calculated from the retirement order, are clear, reasonable and not arbitrary. The Court also ruled that the High Court could consider the vires of the scheme even though it was not the specific issue raised in the writ petitions. Consequently, the appeals were allowed, the High Court and Tribunal orders set aside, and the scheme upheld as constitutional.

Issues considered

Whether compassionate appointment of dependents of government servants who retire on medical invalidation violates Article 16 of the Constitution.
Whether the High Court erred in deciding a question not expressly raised in the writ petitions.
Whether the Government's clarification that the five‑year "left over service" period be reckoned from the date of retirement order is unreasonable or arbitrary.

Legislation cited

Constitution of Indias. Art.1, s. Art.14, s. Art.16

Subjects

compassionate appointmentmedical invalidationArticle 16discriminationservice lawjudicial revieweligibility criteriaadministrative policy

Judgment

[2008] 11S.C.R.1201

V. SIVAMURTHY A
v.
STATE OF ANDHRA PRADESH. AND ORS.
(Civil Appeal No. 4210 _of. 2003)
AUGUST 12, 2008
B
[R.V. RAVEENDRAN AND LOKESHWAR SINGH
PANTA, JJ.]

Service Law:
Appointment - Compassionate appointment - Principle C
relating to - Summarized and re-iterated.
Appointment - Compassionate appointment - For de-
pendant family members of Government servants retiring on
medical invalidation - High Court held the. compassionate
0
appointment scheme as unconstitutional, being violative of
o
Article 1 of the Constitution - On appeal, held: Compassion-
ate appointment is not restricted to only one contingency of
death in harness - For the very reasons for which compas-
sionate appointment to a dependant of a government servant
.who· dies in harness is held to be valid and permissible, com- E
passionate appointments to dependant of a. medically invali-
dated government servant has to be held to be valid and per-
mfr~sible - Compassionate appointiment scheme in question
therefore held valid and permissible, more so when stringent
safeguards were built into the scheme to prevent its misuse - .F
Constitution of India, 1950 - Art. 16.
Appointment - Compassionate appointment - For de-
pendant family members of Government servants retiring on
medical invalidation - Benefit of the compassionate appoint- G
ment scheme restricted to cases where Government servants
retired on medical invalidatio_n, at least five years before at-
taining age ·of superannuation - Period of five years of such
'left over service' reckoned from date of issue of the order of
1201 H
1202 SUPREME COURT REPORTS [2008) 11 S.C.R.
)i..

A retirement on medical invalidation - Scheme challenged as
arbitrary and unreasonable on ground that even when a gov-
ernment servant filed application for retirement on medical
invalidation when 'left over period' was more than five years, if
there was delay in processing of the application, the 'left over
B period' may get reduced to less than five years thereby mak-
ing his dependant ineligible for benefit of compassionate ap-
pointment - Consequent plea that period of five years of 'left
over service' be reckoned from date of application for retire-
ment on medical invalidation - Held: Compassionate appoint-
C ment can only be claimed strictly in accordance with the terms
of scheme and not by seeking relaxation of the terms of the
scheme - The fact that on account of certain delays in pro-
cessing the application, a government servant may lose ben-
efit of the scheme, is no ground to relax the terms of the
scheme - A policy is not open to interference merely because
0
the Court feels that it is not practical or less advantageous for
government servants for whose benefit the policy is made or
because it considers that a more fairer alternative is possible
- Administrative Law - Policy decision - Judicial review -
Scope of.
E
Constitution of India, 1950 - Art. 226 - Writ petitions -
Order passed by High Court - Challenge to, on ground that it
was decided on a non-issue - On facts, held, not sustainable,
since the issue considered and decided by High Court was
F not wholly unconnected to the subject matter of the writ peti-
tions.
By GO dated 30-7-1980, the State Government for-
mulated a scheme for providing compassionate appoint-
ment to dependents (spouse/son/daughter) of Govern-
G ment servants retiring on medical invalidation. By GO
dated 4-7-1985, benefit of the scheme was restricted to
cases where the Government servants retired on medi-
cal invalidation, at least five years before attaining the age
of superannuation. To prevent misuse of the scheme, the
H State Government issued GO dated 9-6-1998, prescribing
V. SIVAMURTHY v. STATE OF ANDHRA 1203
PRADESH & ORS.

suitable safeguards and procedures by constituting Medi- A
cal Boards, District/State Level Committees to examine
and recommend the applications for compassionate ap-
pointment on ground of medical invalidation.
Clarification was subsequently issued by Govern-
.... ment Memo (GM) dated 25-6-1999, that the period of five B
years of "left over service" was to be reckoned from the
date of issue of orders of retirement on medical invalida-
tion. The clarification led to considerable grievance
amongst the government servants who contended that
even when a government servant made an application for c
medical invalidation when the 'left over period' was more
than five years, if there was delay on the part of Medical
Board and/or the District Level or State Level Committee
in processing and making the recommendations, the 'left
over period' may get reduced to less than five years D
... thereby making his dependant ineligible for the benefit of
compassionate appointment; that when a government
servant gave application when the 'left over period of ser-
vice' was more than five years, he should not be penal-
ized by denial of compassionate appointment to a family E
member, for reasons of delay on the part of the Medical
Board, or District/State Level Committee or the Govern-
ment, which are beyond his control and therefore the five
year period prior to superannuation should be calculated
with reference to the date of application for retirement on F
~ medical invalidation. The matter came up before the Ad-
ministrative Tribunal which upheld the contention raised
by the government servants and rejected the clarification
in GM dated 25-6-1999. Aggrieved, the State Government
field several writ petitions. Though the only issue in the
G
writ petitions was whether the 'five years left over service'
should be reckoned from the date of application by the
~ government servant or from the date of sanction of retire-
ment by the State Government, the High Court went on to
consider the vires of the scheme for compassionate ap-
H
1204 SUPREME COURT REPORTS [2008] 11 S.C.R.

A pointment on medical invalidation and thereafter held that
th~recould be no appointment on compassionate
grounds in cases other than death of a government ser-
vant in h.arness, and any scheme for co"1passionate ap-
pointment on medical invalidatipn of a government ser-
B vant, was unconstitutional, being violative of Article 16 of
the Constitution.
In appeals to this Court, the questions which aro~e
for consideration were (i) whether compassionate ap-
p·ointment of sons/daughters/spouse of government. ser-
e vants who retired on medical invalidation was unconsti-
tutional and invalid; (ii) whether the High Court erred in
considerihg and deciding .an issue which was not the
subject matter of the writ petitions and (iii) whether the
clarificatory order dated 25-6-1999 stating that the left over
D period of five years should be reckoned from the date of
issue of order of retirement on medical invalidation,. was
unreasonable and arbitrary.
Allowing the appeals, and also setting aside the or-
E ders of the Tribunal though on different grounds, the
Court
HELD:1.1. Article 16 of the Constitution bars discrimi-
nation in employment on the 'ground only of descent. If
the service rules or any scheme of government providles
F that whenever a government ser.vant retires from service,
one of his depend~rnts should be given employment in ~
his place, or provides that children of government ser-
vants will have preference in employment, that would
squarely fly in the face of .prohibition on the ground of
G descent. Employment should not be hereditary or by· suc-
cession. But where the policy provides for compassion-
ate appointment in the case of an employee who dies in
harness or an employee who is medically invalidated, ,.
such a provision is based on a classification which is not
only on the ground 0f descent. The classification is based
H
V. SIVAMURTHY v. STATE OF ANDHRA 1205
PRADESH & ORS.

on another condition in addition to descent : that Is death A
of the employee in harness, or medical invalidation of the
employee while in service. [Para 7] [1216-D,E,F & G]
1.2. The principles relating to compassionate appoint-
ments may be summarized thus : (a) Compassionate ap-
pointment based only on descent is impermissible. Ap- B
pointments in public service should be made strictly on
the basis of open invitation of applications and compara-
tive merit, having regard to Articles 14 and 16 of the Con-
stitutiory. Though no other mode of appointment is per-
missible, appointments on compassionate grounds are C
well recognised exception to the said general rule, carved
out in the interest of justice to meet certain contingen-
cies. (b) Two well recognized contingencies which are
carved out as exceptions to the general rule are: (i} ap-
pointment on compassionate grounds to meet the sud- D
den crisis occurring in a family on account of the death of
the bread-winner while in service. (ii} appointment on com-
passionate ground to meet the crisis in a family on ac-
count of medical invalidation of the bread winner. Another
contingency, though less recognized, is where land hold- E
ers lose their entire land for a public project, the scheme
provides for compassionate appointment to members of
the families of project affected persons. (Particularly
where the law under which the acquisition is made does
provide for market value and solatium, as compensation); F
(c) Compassionate appointment can neither be claimed,
. nor be granted, unless the rules governing the service
permit such appointments. Such appointments shall be
strictly in accordance with the scheme governing such
appointments and against existing vacancies; (d} Com- G
l!f . passionate appointments are permissible only in the case
of a dependant member of family of the employee con-
cerned, that is spouse, son or daughter and not other rela-
tives. Such appointments should be only to posts in the
iower category, that is, class Ill and IV posts and the cri-
H
1206 SUPREME COURT REPORTS [2008] 11 S.C.R.

A sis cannot be permitted to be converted into a boon by
seeking employment in Class I or II posts. [Para 9] [1221-
C to H; 1222 -A.8.C & D]
1.3. The exceptions to the general rule (that employ-
ment should be by open invitation and on merit) by way
B of compassionate appointment is not restricted to only
one contingency of death in harness. There can be ex-
ceptions in other extreme cases of sudden deprivation of
means of livelihood. The assumption by the High Court,
that compassionate appointments can be only in death-
C in-harness cases and not in retirement on medical invali-
dation c.ases, is not sound. As an incidental reason for
holding that compassionate appointments are not permis-
sible in cases of medical invalidation, the High Court ob-
served that death stands on a "higher footing" when com-
D pared to sickness, but what it lost sight of, was the fact
that when an employee is totally incapacitated (as for ex-
ample when he is permanently bed ridden due to paraly-
sis or becoming a paraplegic due to an accident or be-
coming blind) and the services of such an employee is
E terminated on the ground of medical invalidation, it is not
a case of mere sickness. In such cases, the conse-
quences on his family may be ~uch more serious than
the consequences of an employee dying in harness.
When an employee dies in harness, his family is thrown
into penury and sudden distress on account of stoppage
F of income. But where a person is permanently incapaci-
tated due to serious illness or accident, and his services
are consequently terminated, the family is thrown into
greater financial hardship, because not only the income
stops, but at the same time there is considerable addi-
G tional expenditure by way of medical treatment as also
the need for an attendant to constantly look after him.
Therefore, the consequences in case of an employee be-
ing medically invalidated on account of a serious
illness/accident, will be no less, in fact far more than the
H consequences of death in harness. Though generally
V. SIVAMURTHY v. STATE OF ANDHRA 1207
PRADESH & ORS.

/
' death stands on a higher footing than sickness, it cannot A
be gainsaid that the misery and hardship can be more in
cases of medical inVi. lidation involving total blindness,
paraplegia serious incapacitating illness etc. [Paras 12,
13] [1225- D & E; 1226-A,B,D,E,F,G,H; 1227-A]
1.4. Another observation made by the High Court in B
~
support of its conclusion was that "while considering the
cases of sick employees, the Court cannot lose sight of
cases of sick unemployed." What the High Court appar-
ently meant was that if an exception is made for compas-
sionate appointments in the case of an employee medi- c
cally invalidated, it may ac·count to hostile discrimination,
as compassionate appointment is not extended in the
case of others who are equally sick but are not employ-
ees of the government. But the same logic is applicable
to death in harness cases also. It can equally be said that D
"while considering the cases of death of employees in
service, the court cannot lose sight of cases of death of
other unemployed poor". Members of the family of a de-
ceased are thrown into penury and hardship not only
where the deceased is a government servant, but also E
where they belong to weaker or poorer sections of the
society. In fact. in the case of death of government ser-
vants, there is at least family pension and terminal ben-
efits. But in the case of death of anyone belonging to poor
and weaker sections, there is nothing at all to support their F
families. The issue as to whether compassionate appoint-
' ;..
ments be therefore stopped even in death in harness case
also is complex. Comparison with non-employed is nei-
ther logical nor sound. [Para 14] [1227-B,C,D & E]
1.5. When compassionate appointment of a depen- G
dant of a government servant who dies in harness is ac-
cepted to be an exception to the general rule, there is no
reason or justification to hold that an offer of compassion-
ate appointment to the dependant of a government ser-
vant who is medically invalidated, is not an exception to H
;..;:.
1208 SUPREME COURT REPORTS [2008] 11 S.C. R.

'
A the .general rule. In fact, refusing compassionate appoint- /
..._
ment in the case of medical invalidation while granting
compassionate appointment in the case of death in har-
ness, may itself amount to hostile discrimination. Though
too many exceptions may dilute the efficacy of Article 16
B and make it unworkable, the c~se of dependants of medi-
cally invalidated employees stands on an equal footing
to that of dependants of employees who die in harness ""
for purpose of making an exception to the rule. For the
very reasons for which compassionate appointments to
c a dependant of a government servant who dies in har-
ness are held to be valid and permissible, compassion-
ate appointments to a dependant of a medically invali-
dated government servant have to be held to be valid and
permissible. [Para 15] [1227-F,G,H; 1228-A & B]
D 1.6. There are of course safeguards to be taken to
ensure the scheme is not misused. One is to ensure that
mere medical unfitness to continue in a post is not treated
,&
as medical invalidation for. purposes of compassionate
appointment. A government servant should totally cease
E to be employable and become a burden on his family; to
warrant compassionate appointment to a member of his
family. Another i~ barring compassionate appointments
to dependants of an employee who seeks voluntary re-
tirement on medical grounds on the verge of superannua-
F tion. In the present case stringent safeguards were in fact
built into the scheme on both counts by GMs dated
·4.7.1985 and 9.6.1998. [Para 16] [1228-C,D,G & H] ·<I

Auditor General of India v. G. Ananta Rajeswara Rao
(1994) 1 sec 192 - distinguished.
G
Yogender Pal Singh v. Union of India (1987) 1 SCC 631; <...
l)mesh Kumar Nagpal v. State of Haryana (1994) 4 SCC 138
and Haryana State Electricity Board v. Hakim Singh (19.97) 8
sec 85 - relied on.
H Gazula Dasaratha Rama Rao v. State of Andhra Pradesh

;,
V. SIVAMURTHY v. STATE OF ANDHRA 1209
PRADESH & ORS.
~
(1961) 2 SCR 931; Director of Education (Secondary) v. A
Pushpendra Kumar (1998) 5 SCC 192; State of Haryana v.
Ankur Gupta (2003) 7 SCC 704; Food Corporation of India v.
Ram Kesh Yadav (2007) 9 SCC 531; WB. State Electricity
Board vs. Samir K. Sarkar (1999) 7 SCC 672 and Food Car-
poration of India vs. Ram Kesh Yadav (2007) 9 SCC 531 - B
,,, referred to.
2. It is true that the State Government had challenged
the orders of the Tribunal only with reference to the inter-
pretation of a provision of an existing scheme, as to the
date of commencement of the five year left over period c·
~
prior to superannuation. But if during hearing, the ques-
tion about the validity of the scheme was raised and there-
fore the matter was placed before a Full Bench of the High
Court having regard to the importance of the issue, the
appellants cannot have any grievance so long as they D
were heard. In the present case, the issue considered was
not wholly unconnected to the subject matter of the writ
petitions and consequently the contention that the deci-
sion of the High Court should be interfered, on the ground
that it was a decision on a non-issue, is liable to be re- E
jected. [Para 18] [1229-E,F,H; 1230-A]
M.Purandara v. Mahadesh S. [2005 (6) SCC 791] and
Som Mittal v. State of Kamataka [2008 (2) SCALE 717] - re-
ferred to.
F
~ 3. The term~ of the scheme in question are clear. The
• benefit of compassionate appointment is available to a
son/daughter/spouse of a government servant who re-
tires from service on medical invalidation five years be-
fore attaining the age of superannuation. Under the
-' ...... G
scheme therefore, the five year cut off period commences
from the date of retirement from service on medical in·
.. validation and not from the date of application by the gov-
ernment servant for retirement on medical invalidation~
This was also clarified in the G.M dated 25.6.1999 which
H
1210 SUPREME COURT REPORTS [2008] 11 S.C.R.

A forms part of the scheme. The issue is not what is most
advantageous to the government servant, but what is the
actual term of the scheme. The question is not whether
an interpretation which is more advantageous or benefi-
cial to the Government servant should be adopted. The
B question is whether the policy as it stands which is clear
and unambiguous, is so unreasonable or arbitrary or ab-
surd as to invite an interpretation other than the normal
and usuai meaning. Matters of policy are within the do-
main of the executive. A policy is not open to interference
C merely because the court feels that it is not practical or
less ·advantageous for government servants for whose
benefit the policy is made or because it considers that a
more fairer alternative is possible. Compassionate ap-
pointment being an exception to the general rule of ap-
pointment, can only be claimed strictly in accordance with
D the terms ·of scheme and not by seeking relaxation of the
terms of the scheme. The fact that on account of certain
delays in processing the application, a government ser- •
vant may lose the benefit of the scheme, is no ground to ·
relax the terms of the scheme. If in a particular case, the
· E processing of an application is deliberately delayed to
deny the benefit to ~he governme-nt servarit, the inaction
may be challenged on the ground of want of bona tides
or ulterior motives. But where the time taken to process
the application (through medical Board, local/State level
F Committee and the government) is reasonable, the gov-
ernment servant cannot contend that relief should be ex-
. tended, even if the left over period is less than five years.
These are matters of policy and courts will .not interfere
with the terms of a policy, unless it is opposed to any con-
-G, _stitutional or statutory provision or suffers from manifest
arbitrariness and unreasonableness. [Para 20] [1230,..
F,G,H; 1231-A,B,C,D,E,F,H; 1232-A]
4. The validity of the compassionate appointment
scheme (contained in the GO dated 30.7.1980, 4.7.1985
• H and 9.. 6.1998 as clarified by Memo dated 25.6.1999) pro-
V. SIVAMURTHY v. STATE OF ANDHRA 1211
... PRADESH & ORS .

viding that the period of five years. of 'left over service' A
should be reckoned from the date of issue of the order of
retirement on medical invalidation and not from the date
of application for retirement on medical invalidation is
upheld. As the scheme was withdrawn by GM dated
27.4.2002 to give effect to the impugned decision of the B
'!'
High Court, the State Government is at liberty to revive
the scheme with or without modifications. [Paras 21, 22]
[1232-B,C & D]
Case Law Reference
(1961) 2 SCR 931 referred to Para 8.1
c
(1987) 1 sec 631 relied on Para 8.2
_{1994) 4 sec 138 relied on Para 8.3
(1997) 8 sec 85 relied on Para 8.4
D
(1998) 5 sec 192 referred to Para 8.5
... (2003) 1 sec 704 referred to Para 8.6
(2001) 9 sec 531 referred to Para 8.7
(1994) 1 sec 192 distinguished Para 10
E
(1999) 7 sec 672 referred to Para 12
(2007) 9 sec 531 referred to Para 12
[2005 (6) sec 7911 referred to Para 17
[2008 (2) SCALE 717] referred to Para 17
F
1' CIVILAPPELLATE JURISDICTION: CivilAppeal No. 4210
of 2003
From the final Judgment and Order dated 12.10.2001 of
the High Court of Judicature, Andhra Pradesh at Hyderabad in.
W.P. Nos. 12253, 12897 and 12862 of 2001 G

WITH
..I

C.A. Nos. 4208~4209, 4213 and 4226 of 2003
Ill"

Dr. K.P. Kylasanatha Pillay, Ch. Leela Sarveswar, Pandey, H
1212 SUPREME COURT REPORTS [2008] 11 S.C.R.
')....

A C.S.N. Mohan Rao, Santhanam Krishna, D. Mahesh Babu,
Pavan Kumar, G. Ramakrishna Prasad, Suyodhan Byrapaneni
and Siddharth Patnaik for the Appellants.
Anoop G. Chaudhary, June Chaudhary, Manoj Saxena,
Rajneesh Kumar Singh, Rahul Shukla, Prabhat Kumar Rai, T.V.
B ..,..
George and D. Bharathi Reddy for the Respondents.
The Judgment C?f the Court was delivered by
R. V. RAVEENDRAN, J. 1. These appeals by special
leave challenge the judgment dated 12.10.2001 of a Full Bench
c of Andhra Pradesh High Court holding that there can be no ap-
pointment on compassionate grounds in cases other than death >
of a government servant in harness, and that any scheme for
compassionate appointment on medical invalidation of a gov-
ernment servant, is unconstitutional, being violative of Article
D
16 of the Constitution of India.
.ilr
2. By GO dated 30.7.1980, the government of Andhra
Pradesh formulated a scheme for providing compassionate
appointment to the dependents (spouse/son/daughter) of Gov-
E ernment servants who retired on medical invalidation. By a fur-
ther GO dated 4. 7 .1985, the benefit of the scheme was restricted
to cases where the Government servants retired on medical
invalidation, at least five years before attaining the age of su-
perannuation. To prevent misuse of the scheme, the State Gov-
~\..
F ernment issued GO dated 9.6.1998, prescribing suitable safe-
guards and procedures by constituting Medical Bt•ards, Dis- "' ';-
trict/State Level Committees to examine and recommend the (
applications for compassionate appointment on ground of ,.
,__
medical invalidation. It provided that as and when a ·government
G servant sought retirement on medical grounds, the concerned
appointing authority should refer the case to the Medical Board;
that on receiving the medical opinion, he should refer the mat-
ter to the District Level Committee (or the State Level Commit-
..
tee in respect of employees in the Secretariat); and that the ....
H
~

V. SIVAMURTHY v. STATE OF ANDHRA 1213
PRADESH & ORS. [R. V. RAVEENDRAN, J.]

said Committee would scrutinize the proposals for compassion- A
ate appointment in accordance with the guidelines and make
its recommendations to the State Government which would take
the final decision.
3. The following clarification was issued by Government B
Memo ('GM' for short) dated 25.6.1999, as to the date with ref-
erence to which the five year period prior to superannuation
should be reckoned:
"It is. hereby clarified that the benefit of compassionate
appointment will be applicable only to those government C
employees who retire on Medical Invalidation Five (5) years
before they attain the age of superannuation. Therefore,
the required period of five (5) years of left over service is
to be reckoned from the date of issue of orders of
retirement on medical invalidation. It is further clarified D
that in cases where the Government employees do not
have five (5) years of service before the employees attain
the age of superannuation at the time of considering such
cases by the State Level Committee or District Level
Committees, the respective Committees after scrutiny of E
Medical invalidation certificates in those cases may
recommend only for retirement of such government
employees on medical invalidation as per the certificate
issued by the Medical Board."
F
The said clarification led to considerable grievance. The
government servants felt that the clarification was not just. They
contended that even when a government servant made an ap-
plication for medical invalidation when the 'left over period' was
more than five years, if there was delay on the part of Medical G
Board and/or the District Level or State Level Committee in pro-
cessing and making the recommendations, the 'left over pe-
riod' may get reduced to less than five years thereby making
his dependant ineligible for the benefit of compassionate ap-
pointment. For example, if an application for medical invalida- H
•
1214 SUPREME COURT REPORTS [2008] 11 S.C.R.

A tion was made six years prior to the due date of superannua-
tfon, but the process of verification by the Medical Board, the
process of recommendation by the District/State Level Com-
mittee and the process of sanctioning of retirement, took more
than one year, and as a consequence the sanction for retire-
s ment is given on a date when the 'left over period of service' is
less than five years, for no fault of the government servant, the
benefit of compassionate appointment to his depe"ndant family
member will be denied. Anot~e~ example is where the applica-
tion is made five and half years prior to the due date of super-
C annuation, and the decision of the Medical Board and the rec-
ommendations of the District/State Level Committee is given
within three months leaving a clear left over period of five years
and three months, but the state government takes four months
and the actual sanction is given on a date which falls within five.
D years before the due date of superannuation, the dependant of
the government servant would be denied the benefit of com-
passionate appointment for no fault of the government servant
or his dependant. They contended that when a government ser-
vant gave the application when the 'left over period of service'
E was more than five years, he should not be penalized by denial
of compassionate appointment to a family member, for rea-
sons of delay on the part of the Medical Board, or District/State
Level Committee or the Government, which are beyond his con-
trol. They therefore contended that the five year period prior to
F superannuation should be calculated with reference to the rlate
of application for medical invalidation.
4. Many of the government servants and/or their children/
spouses who were denied the benefit of the scheme, on the
G ground that by the date of retirement on medical invalidation,
'the left over period of service' was less than five years, ap-
proached the AP Administrative Tribunal. The Tribunal in sev-
eral cases including the cases of respondents, took the view
that the five year period shou_ld be calculated with reference to
H . the date of application by the government servant for retirement
V. SIVAMURTHY v. STATE OF ANDHRA 1215
~ PRADESH & ORS. [R. V. RAVEENDRAN, J.]

on medical invalidation and rejected the clarification in the GM A
dated 25.6.1999. These orders were challenged by the State
Government in several writ petitions before the High Court on
the ground that its policy decision contained in GM dated
25.6.1999 was not open to interference. The said writ petitions
., were disposed of by a Full Bench by the impugned order dated B
12.10.2001. Though the only issue in the writ petitions was
whether the 'five years left over service' should be reckoned
from the date of application by the government servant or from
the date of sanction of retirement by the state .government, the
Full Bench neither addressed nor answered that question. On c
the other hand, it took up for consideration the following ques-
tion: "whether compassionate appointments on the ground of
medical invalidation, were permissible having regard to Article
16 of the Constitution of India?" The. Full Bench observed in the
course of its judgment that though the question of vires of the """'
D
scheme was not raised in the writ petitions, it had heard the
14,
parties at length on the said question. But the fact was that nei-
ther the State Government nor the employees were interested
in raising such a question. Nor did they want a decision on such
a question. Nevertheless, the Full Bench went into the constitu-
tion validity of the policy and held that the policy offering ap- E
pointment to a dependant on compassionate grounds on medi-
cal invalidation of the government servant, did not satisfy the
requirements of Article 16. The said judgment is challenged by
the government servants or the applicants for compassionate
~ . appointment; in these appeals by special leave. F

5. We may refer to a development in pursuance of the im-
pugned judgment of the High Court. In view of the declaration
by the Full Bench that the scheme for compassionate appoint-
ment on medical invalidatioh was invalid and unconstitutional,
G
the State Government by GM dated 27.4.2002 dispensed with
the scheme ofcompassionate appointments on medical invali-
~
dation. By a further GM dated 17. 7.2002, the State Government
directed that appointments cannot be made even in cases pend-
ing as on 12.10.2001.
H
1216 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 6. On the contentions raised the following questions arise
for our consideration:
(i) Whether compassionate appointment of sons/
daughters/spouses of government servants who retire
on medical invalidation is unconstitutional and invalid?
B
(ii) Whether the High Court could have considered and
decided an issue which was not the subject matter
of the writ petitions, particularly when neither party
had raised it or canvassed it?
c (iii) Whether the Government was justified in issuing
clarificatory order dated 25.6.1999 that the left over
period of five years should be reckoned from the
date of issue of order of retirement on medical
invalidation, is unreasonable and arbitrary?
D
Re: Question No. (i):
7. Article 16 of the Constitution bars discrimination in em-
ployment on the ground only of descent. If the service rules or
E any scheme of government provides that whenever a govern-
ment servant retires from service, one of his dependants should
be given employment in his place, or provides that children of
government servants will have preference in employment, that
would squarely fly in the face of prohibition on the ground of
F descent. Employment should not be hereditary or by succes-
sion. But where the policy provides for compassionate appoint-
ment in the case of an employee who dies in harness or an
employee who is medically invalidated, such a provision is based
on a classification which is not only on the ground of descent.
G The classification is based on another condition in addition to
descent : that is death of the employee in harness, or medical
invalidation of the employee while in service.
-·
8. This Court had occasion to consider the difference be-
tween conferment of a preferential right to appointment to a family
H member of a government servant, merely on the ground that he
- )
V. SIVAMURTHY v. STATE OF ANDHRA 1217
,.I, PRADESH & ORS. [R. V. RAVEENDRAN, J.]

happens to be a family member, and schemes relating to A
compassionate appointment of dependant family members of
government servants who die while in service or who are inca-
pacitated while in service.
8.1) In Gazula Oasaratha Rama Rao vs. State of Andhra
Pradesh [1961 (2) SCR 931] dealing with section 6(1) of the
B
Madras hereditary Village-Offices Act, 1895, this Court observed
thus:
"It would thus appearthatArticle 14 guarantees the general
right of equality; Articles 15 and 16 are instances of the c
same right in favour of citizens in some special
circumstances. Articles 15 is more general than Article
16, the latter being confined to matters relating to
employment or appointment to any office under the State.
It is also worthy of note that Article 15 does not mention D
'descent' as one of the prohibited grounds of
_j.
discrimination, whereas Article 16 does ..... There can be
no doubt that Section 6(1) of the Act does embody a
principle of discrimination on the ground of descent only.
It says that in choosing the person to fill the new offices,
the Collector shall select the persons whom he may
E
consider the best qualified from among the families of the
last holders of the offices which have been abolished.
This, in our opinion, is discrimination on the ground of
descent only and is in contravention of Article 16(2) of the
Constitution." F
;.
8.2) In Yogender Pal Singh vs. Union of India [1987 (1)
SCC 631], this Court held :
"While it may be permissible to appoint a person who is
._ the son of a police officer who dies in service or who is G
incapacitated while rendering service in the Police
./ Department, a provision which confers a preferential right
to appointment on the children or wards or other relatives
of the police officers either in service or retired merely
because they happen to be children or wards or other H
t
1218 SUPREME COURT REPORTS [2008] 11 S.C.R.
)...

.. A relatives of such police officers would be contrary to Article
· 16 of the Constitution. Opportunity to get into public s.ervice
should be extended to all the citizens equally and should
not be confined to any extent to the descendants or relatives
of a person already in the service of the State or who has
8 retired from the service ........... Any preference shown in
the matter of public employment on the ground of descent "'
only has to be declared as unconstitutional ....
. [emphasis supplied]

c 8.3) In Umesh Kumar Nagpal v. State of Haryana [1994
(4) SCC 138] this Court held:
"As a rule, appointments in the public services ~h9uld be
·• made strictly on the basis of open invitation of applications
andmerit. No other· mode ·of appointment nor ·any other
o· consideration is permissible. Neither the Governments
nor the public authorities are at liberty fo follow any other
A..
procedure or relax the qualifications laid down by the rules·
for the post. However, to this general rule which is to be
followed strictly in every case, there are some exceptions
E carved out in the interests of justice and to meet certain
contingencies. One such exception is in (avouf of the
dependants of an employee dying in harm:,.ss and leaving·
his family in penury and without any means of livelihood.
In such cases, out of pure humanitarian consideration
F taking into consideration the fact that unless some so.urce
of livelihood is provided, the family would not be able to ~
make both ends meet, a provision is made in the rules to
provide gainful employment to one of the dependants of
the deceased who may be eligible for such employment.
The whole object of granting compassionate employment
G
is thus to enable the family to tide over the sudden
crisis .... The posts in class Ill and IV are the lowest posts
in non-manual and manual categories and hence they ,..
alone can be offered on compassionate grounds."

H (emphasis supplied)
V. SIVAMURTHY v. STATE OF ANDHRA 1219
PRADESH & ORS. [R. V. RAVEENDRAN, J.]
-'-!
8.4) In Haryana State Electricity Board v. Hakim Singh A
[1997 (8) SCC 85] this Court reiterated the object of compas-
sionate appointments, thus:
"The rule of appointments to public se.rvice is that they
should be on merits and through open invitation. It is the
B
normal route through which one can get into a public
employment. However, as every rule cari have exceptions,
there are a few exceptions to the said rule also which
have been evolved to meet certain contingencies. As
per one s~ch exception relief is provided to the bereaved
family of a deceased employee by accommodating one
c
of his dependants in a vacancy· The object is to give
succour to the family which has been suddenly plunged
into penury due to the untimely death of its sole
breadwinner. This Court has· observed time and again
D
that the object of providing such ameliorating relief should
not be taken as opening an alternative mode of
recruitment tO public employment."
[emphasis supplied]
E
. 8.5) In Director of Education (Secondary) v. Pushpendra
Kumar [1998 (5) SCC 192], this Court considered the nature
and object of compassionate appointments, in particular, in case
of death in-harness cases:

"The object underlying a provision for grant of F
compassionate employment is to enable the family of the
deceased employee to tide over the sudden crisis resulting
due to death of the bread-earner which has left the family
in penury and without any means of livelihood. Out of pure
humanitarian consideration and having regard to the fact G
" that unless some source of livelihood is provided, the family
would not be able to make both ends meet, a provision is
made for giving gainful appointment to one of the
dependants of the deceased who may be eligible for such
appointment. Such a provision makes a departure from H
1220 SUPREME COURT REPORTS [2008] 11 S.C.R.
~
A the general provisions providing for appointment on the
post by following a particular procedure. Since such a
provision enables appointment being made without
following the said procedure, it is in the nature of an
exception to the general provisions."
B
(emphasis supplied)

8.6) In State of Haryana v. Ankur Gupta [2003 (7) SCC
704], this Court observed :

"As was observed in State of Haryana v. Rani Devi (1996)
c 5 sec 308 it need not be pointed out that the claim of the \
person concerned for appointment on compassionate
ground is based on the premise that he was dependent
on the deceased employee. Strictly, this claim cannot be
upheld on the touchstone of Article 14 or 16 of the
D
Constitution of India. However, st1ch 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
E
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 of right.. .. .The
appointment on compassionate ground is not another
source of recru!tment but merely an exception to the
F r./
aforesaid requirement taking into consideration the fact -~~ ~
of the death of the 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
G '
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." lit

8.7) In Food Corporation of India v. Ram Kesh Yadav
H [2007 (9) SCC 531], this Court observed :
V. SIVAMURTHY v. STATE OF ANDHRA 1221
PRADESH & ORS. [R. V. RAVEENDRAN, J.]
.,..\

'There is no doubt that an employer cannot be directed to A
act contrary to the terms of its policy governing
compassionate appointments. Nor can compassionate
appointment be directed dehors the policy. In UC v. Asha
Ramchhandra Ambekar (1994) 2 SCC 718 this Court
stressed the need to examine the terms of the rules/ 8
~
scheme governing compassionate appointments and
ensure that the claim satisfied the requirements before
directing compassionate appointment."

9. The principles relating to compassionate appointments
tnay be summarized thus :
c
(a) Compassionate appointment based only on descent
is impermissible. Appointments in public service
should be made strictly on the basis of open invitation
of applications and comparative merit, having regard D
to Articles 14 and 16 of the Constitution of India.
> Though no other mode of appointment is permissible,
appointments on compassionate grounds are well
recognised exception to the said general rule, carved
out in the interest of justice to meet certain E
contingencies.
(b) Two well recognized contingencies which are carved
out as exceptions to the general rule are :

(i) appointment on compassionate grounds to F
meet the sudden crisis occurring in a family on
account of the death of the bread-winner while
in service.

(ii) appointment on compassionate ground to meet
G
the crisis in a family on account of medical
invalidation of the bread winner.
. ,. Another contingency, though less recognized, is where
land holders lose their entire land for a public project, the
scheme provides for compassionate appointment to H
1222 SUPREME COURT REPORTS [2008] 11 S.C.R.
;..._

A members of the families of project affected persons.
)
(Particularly where the law under which the acquisition is
made does provide for market value and solatium, as
compensation).
(c) Compassionate appointment can neither be claimed,
B ~
nor be granted, unless the rules governing the service
permit such appointments. Such appointments shall
be strictly in accordance with the scheme governing
such appointments and against existing vacancies.
-
c (d) Compassionate appointments are permissible only
in the case of a dependant member of family of the
employee concerned, that is spouse, son or daughter
and not other relatives. Such appointments should
be only to posts in the lower category, that is, class
D Ill and IV posts and the crises cannot be permitted to
be conv~rted into a boon by seeking employment in
.A
Class I or II posts.

10. The High Court referred to the various decisions deal-
ing with compassionate appointments and culled out the prin-
E
ciples relating to compassionate appointment. Then it referred
to the decision of this Court in Auditor General of India v.
G.Ananta Rajeswara Rao [1994 (1) SCC 192] and inferred
therefrom a proposition that there can be no compassionate
appointment in cases other than death in harness cases. On
F
that basis, it proceeded to hold that appointments on .compas- ,j

sionate grounds on medical invalidation were contrary to the
principles underlying Article 16 and therefore, unconstitutional.
Firstly, this Court in Ananta Rajeswara Rao, nowhere laid down
·G a proposition that compassionate appointment can be only in
cases of death in harness and not in cases of medical invalida- .._,.
tion or other contingencies. Secondly, the.High Court overlooked
the fact that the principles underlying ArticJe 16 were violated., ,....
not only in cases of compassionate appointments as a conse-
quence of medical invalidation, but also in cases of compas-
H
V. SIVAMURTHY v. STATE OF ANDHRA 1223
PRADESH & ORS. [R, V. RAVEENDRAN, J.]
• .if
sionate appointments as a consequence of death in harness. A
But both are saved as they are considered to be exceptions to
the rule contained in Article 16, carved out to meet special con-
tingences in the interests of justice.
11. In Ananta Rajeswara Rao (supra), this Court was con-
B
sidering the validity of a scheme which contemplated appoint-
ments on compassionate grounds being made not only in the
case of sons and daughters, but also near relatives of a Gov-
ernment servant who died in harness. The scheme further pro-
vided that in deserving cases even where there is an earning
c
member in the family, compassionate appointment to another
member was permissible. Dealing with the memorandum con-
taining the said scheme, this Court held :
"A reading of these various clauses in the Memorandum
discloses that the appointment on compassionate grounds D
would not only be to a son, daughter or widow but also to
J. a near relative which was vague or undefined. A person
who dies in harness and whose members of the family
need immediate relief of providing appointment to relieve
economic distress from the loss of the bread-winner of E
the family need compassionate treatment. But all possible
eventualities have been enumerated to become a rule to
avoid regular recruitment. It would appear that these
enumerated eventualities would be breeding ground for
misuse of appointments on compassionate grounds. F
Articles 16(3) to 16(5) provided exceptions. Further
exceptjons must be on constitutionally valid and permissible
grounds. Therefore, the High Court is right in holding
· that the appointment on g; 3unds of descent clearly
violates Article 16(2) of the Constitution. But, however, it G
rt is made clear that if the appomtments are confined to
the son/daughter or widow of the deceased government
-4 employee who died in harness and who needs
immediate appointment on grounds of immediate need
of assistance in the event of there being no other earning H
1224 SUPREME COURT REPORTS [2008) 11 S.C.R. '
•
~
A member in the family to supplement the loss of income
from the bread-winner to relieve the economic distress of
the members of the family, it is unexceptionable."
[emphasis supplied] \_

B The observations in Ananta Rajeswara Rao (supra) that
compassionate appointments should be confined to the son/ •
daughter or widow of the deceased government employee who
dies in harness, was not made in contradistinction from the
position relating to compassionate appointments in medical
c invalidation cases. In fact, this Court had no occasion to con-
sider the other several contingencies in which compassionate
appointments could be made. In particular it did not at all con-
sider whether compassionate appointment could be granted in
cases of medical invalidation. Nor did it lay down that only in the
D case of government employee dying in harness, compassion-
ate appointment is available. The questions that was consid-
ered were : (i) where there is a scheme for compassionate ap-
pointment in the case of a government employee dying in har-
ness, whether employment can be offered only to a son/daugh-
E ter/widow or whether it can be offered to any other near rela-
tives of the deceased; and (ii) whether compassionate appoint-
ment can be offered even if there is already another earning
member in the family of the deceased. It is in that context this
Court said that compassionate appointment should be confined
F only to a son/daughter/ widow of the deceased government
employee who dies in harness and whose family did not have
another earning member. When this Court said that compas-
sionate appointment should be restricted only to the son/daugh-
ter/wife of a governmenl~iservant dying in harness, what was
G excluded was compassionate appointments of near relatives
~
of the deceased dying in harness as also compassionate ap- '>
pointments to anyone where the family of the employee dying-
in-harness had already another earning member. This Court ~
neither considered nor excluded compassionate appointment ~

H on medical invalidation or other grounds. vis a vis compassion- '
V. SIVAMURTHY v. STATE OF ANDHRA 1225
PRADESH & ORS. [R. V. RAVEENDRAN, J.]

ate appointment in the case of employees dying in harness. A

12. In fact several decisions of this Court make it clear
that compassionate appointment is not restricted to death in
harness cases only. As noticed above, in Umesh Kumar Nagpal
(supra) this Court observed that the general rule that appoint-
B
ments in public service should be strictly on the basis of open
invitation of applications and merit, is subject to "some excep-
tions carved out in the interest of justice and to meet certain
contingencies." To the same effect are the observations of this
Court in Hakim Singh (supra) where this Court again said that
the rule of appointments to public service is that they should be
c
on merit and through open invitation, but there are a few excep-
tions to the said rule which have been evolved to meet certain
contingencies. The use of the words "few exceptions" and "to
meet certain contingencies", in the above decisions, make it
D
clear that the exceptions to the general rule (that employment
A, should be by open invitation and on merit) by way of compas-
sionate appointment is not restricted to only one contingency of
death in harness. The decisions make it clear that exceptions
to the rule, may relate to several contingencies, one of which is
E
employee dying in harness. There can be exceptions in other
extreme cases of sudden deprivation of means of livelihood. If
the intention was to restrict compassionate appointments only
to cases of death in harness, these two decisions would have
obviously used the words 'exception' and 'contingency' instead
F
of 'exceptions' and 'contingencies'. Further in Yogendra Pal
Singh (supra), this Court made it clear that while appointment
only on the criterion of descent would be unconstitutional, ap-
pointment of a dependant is permissible both when the gov-
emment servant dies in ,service or is incapacitated while ren-
G
dering service. We may also notice that this Court dealt with
provisions relating to compassionate appointments on medi-
I. cal invalidation in several cases, but did not hold that such ap-
pointments were violative of Article 16. Reference may be made
to W B. State Electricity Board vs. Samir K. Sarkar - 1999 (7)
H
"""""

1226 SUPREME COURT REPORTS [2008] 11 S.C.R.
;
>
~
A SCC 672, and Food Corporation of India vs. Ram Kesh Yadav
- 2007 (9) SCC 531. Be that as it may. The assumption by the
High Court, that this Court had held that compassionate ap-
pointments can be only in death-in-harness cases and not in
retirement on medical invalidation cases, is not sound.
B
13. As an incidental reason for holding that compassion- ~-

ate appointments are not permissible in cases of medical in-
validation, the High Court has observed that death stands on a
"higher footing" when compared to sickness. The inference is
compassionate appointment in case of medical invalidation
c cannot be equated with death in harness cases, as medical
invalidation is not of the same degree of importance or gravity
as that of death; and that as medical invalidation is not as seri-
ous as death in harness, exception can be made only in cases
of employees dying in harness. But what is lost sight of is the
D
fact that when an employee is totally incapacitated (as for ex-
ample when he is permanently bed ridden due to paralysis or
)..
becoming a paraplegic due to an accident or becoming blind)
and the services of such an employee is terminated on the •,
ground of medical invalidation, it is not a case of mere sick-
E
ness. In such cases, the consequences on his family, may be
much more serious than the consequences of an employee
dying in harness. When an employee dies in harness, his family '.

is thrown into penury and sudden distress on account of stop-
page of income. But where a person is permanently incapaci-
F
tated due to serious illness or accident, and his services are
conseque.ntly terminated, the family is thrown into greater fin an- ...
cial hardship, because not only the income stops, but at the
same time there is considerable additional expenditure by way
of medical treatment as also the need for an attendant to con-
G
stantly look after him. Therefore, the consequences in case of
an employee being medically invalidated on account of a seri-
ous illness/accident, will be no less, in fact far more than the
~-
consequences of death in harness. Though generally death
stands on a higher footing than sickness, it cannot be gainsaid
H
V. SIVAMURTHY v. STATE OF ANDHRA 1227
PRADESH & ORS. [R. V. RAVEENDRAN, J.J

that the misery and hardship can be more in cases of medical A
invalidation involving total blindness, paraplegia serious inca-
pacitating illness etc.
14. Another observation made by the High Court in sup-
port of its conclusion is that "while considering the cases of sick
~
B
employees, the court cannot lose sight of cases of sick unem-
ployed." What the High Court apparently means is that if an ex-
ception is made for compassionate appointments in the case
of an employee medically invalidated, it may account to hostile ·
discrimination, as compassionate appointment is not extended
in the case others who are equally sick but are not employees
c
of the government. But the same logic is applicable to death in
harness cases also. It can equally be said that "while consider-
ing the cases of death of employees in service, the court can-
not lose sight of cases of death of other unemployed poor".
D
Members of the family of a deceased are thrown into penury
... and hardship not only where the deceased is a government
servant, but also where they belong to weaker or poorer sec-
tions of the society. In fact in the case of death of government
servants, there is at least family pension and terminal benefits.
E
But in the case of death of anyone belonging to poor and weaker
sections, there is nothing at all to support their families. Should
compassionate appointments be therefore stopped even in
death in harness case also? The issue is complex. Compari-
son with non-employed is neither logical nor sound.
F
)..
15. When compassionate appointment of a dependant of
a government servant who dies in harness is accepted to be an
exception to the general rule, there is no reason or justification
to hold that an offer of compassionate appointment to the de-
pendant of a government servant who is medically invalidated, G
is not an exception to the general rule. In fact, refusing compas-
sionate appointment in the case of medical invalidation while
-' granting compassionate appointment in the case of death in
harness, may itself amount to hostile discrimination. While be-
ing conscious that too many exceptions may dilute the efficacy H
1228 SUPREME COURT REPORTS 1o [2008] 11 S.CR.

~
A of Article 16 and make it unworkable, we are of the considered
view that the case of dependants of medically invalidated em- ..
ployees stands on an equal footing to that of dependants of
employees who die in harness for purpose of making an ex-
ception to the rule. For the very reasons for which compassion-
B ate appointments to a dependant of a government servant who
i
dies in harness are held to be valid and permissible, compas-
sionate appointments to a dependant of a medically invalidated
government servant have to be held to be valid and permis-
Sible.
c 16. There are of course safeguards to be taken to ensure
the scheme is not misused. One is to ensure that mere medical
unfitness to continue in a post is not treated as medical invali-
dation for purposes of compassionate appointment. A govern-
ment servant should totally cease to be employable and be-
D
come a burden on his family, to 1111arrant compassionate ap-
pointment to a member of his family. Another is barring com- ).

passionate appointments to dependants of an employee who
seeks voluntary retirement on medical grounds on the verge of
superannuation. This Court observed in Ram Kesh Yadav (su-
E
pra) as follows :

"But for such a condition, there will be a tendency on the
part of employees nearing the age of superannuation to
take advantage of the scheme and seek voluntary
F retirement at the fag end of their service on medical
grounds and thereby virtually creating employment by
"succession". It is not permissible for the court to relax the
said condition relating to age of the employee. Whenever
a cut-off date or age is prescribed, it is bound to cause
G hardship in marginal cases, but that is no ground to hold
the provision as directory and not mandatory."

We find that in this case stringent safeguards were in fact -.._
built into the scheme on both counts by GMs dated 4.7.1S8~
and 9.6.1998.
H
V. SIVAMURTHY v. STATE OF ANDHRA 1229
.. PRADESH & ORS. [R. V. RAVEENDRAN, J.]

Re : Question No. (ii) : A

17. The learned counsel for appellants submitted that ra-
tional classification is not prohibited by either Article 14 and 16
and that unless someone is aggrieved by a classification, and
challenges it on the ground of hostile discrimination or denial of
y
B
equal opportunity, there is no occasion for a court to suo motu
consider whether a policy relating to an affirmative action is valid
or not. Reliance was placed on observations of this Court in
M.Purandara v. Mahadesh S. [2005 (6) SCC 791] and Som
Mittal v. State of Karnataka [2008 (2) Scale 717]. In Puranaara,
c
this Court observed that where an issue was not before the court
and none had raised the question, adjudication on such issue
is not proper; and that issues in question alone, and not matters
at large, could be considered. In Som Mittal, this Court observed
that while rendering judgments, courts should only deal with the
D
subject matter of the case and the issues involved therein, and
courts should desist from issuing directions affecting executive
or legislative policy, or general directions unconnected with the
subject matter of the case.

18. We are however of the view that the appellants' griev- E
ance is unwarranted. It is true that the State Government had
challenged the orders of the Tribunal only with reference to the
interpretation of a provision of an existing scheme, as to the
date of commencement of the five year left over period prior to
superannuation. B.ut if during hearing, the question about the F
validity of the scheme was raised and therefore the matter was
placed before a Full Bench having regard to the importance of
the issue, the appellants cannot have any grievance so long as
they were heard. We find that the Full Bench has noted the rea-
son as to why the issue was examined thus: "Although the ques- G
tion of vires of the Scheme was not specifically raised in the
writ petitions, but having regard to the importance thereof, the
said question was permitted to be raised by the learned Coun-
sel appearing for the parties. In this regard, we have heard the
learned Counsel for the parties in great detail." The issue con- H
1230 SUPREME COURT REPORTS [2008] 11 S.C.R.
..
A sidered was not wholly unconnected to the subject matter of the .t:-:
writ petitions. We therefore reject the contention that the deci-
sion of the High Court should be interfered, on the ground that it
was a decision on a non-issue.

Re : Point No. (iii) :
B
19. The 'five year left over period' is capable of being com-
menced with reference to any one of the following dates : (i) the
date of application by the Government servant for medical in-
validation; (ii) the date of report of the Medical Board certifying
c that the Government servant required to be medically invali-
dated; (iii) the date of recommendation by the State/District
'
Level Committee in regard to medical invalidation; and (iv) the
date of issue of orders of retirement on medical invalidation.
20. The contention of the appellants is that once an appli-
D
cation is made by a government servant at a poirif of time when
the left over period of service is more than five years, the medi- ).

cal examination by the Medical Board, recommending process
by the District/State Level Committees and consideration and
decision by the state government, are not in the hands of the
E
Government servant and therefore neither he nor his depen-
dant should be punished by denying compassionate appoint-
ment on account of delays on the part of the authorities. The
appellants therefore contend that the eligibility should be deter-
mined with reference to date of application and not with. refer-
F
ence to date of sanction. But the terms of the scheme are clear.
The benefit of compassionate appointment is available to a son/
daughter/spouse of a government servant who retires from ser-
vice on medical invalidation five years before attaining the
age of superannuation. Under the scheme therefore, the five
G
year cut off period commences from the date of retirement from
service on medical invalidation and not from the date of appli-
cation by the government servant for retirement on medical in-
validation. This was also clarified in the G.M dated 25.6.1999
which forms part of the scheme. The issue is not what is most
H
........
V. SIVAMURTHY v. STATE OF ANDHRA 1231
PRADESH & ORS. [R. V. RAVEENDRAN, J.]

advantageous to the government servant, but what is the actual A
,.. ~

term of the scheme. The question is not whether an interpreta-
tion which is more advantageous or beneficial to the Govern-
ment servant should be adopted. The question is whether the
policy as it stands which is clear and unambiguous, is so un-
reasonable or arbitrary or absurd as to invite an interpretation B
other than the normal and usual meaning. Matiers of policy are
within the domain of the executive. A policy is not open to inter-
ference merely because the court feels that it is not practical or
less advantageous for government servants for whose benefit
the policy is made or becaus~ it considers that a more fairer c
alternative is possible. Compassionate appointment being an
exception to the general rule of appointment, can only be
claimed strictly in accordance with tile terms of scheme and not
by seeking relaxation of the terms of the scheme. The fact that
on account of certain delays in processing the application, a D
government servant may lose the benefit of the scheme, is no
ground to relax the terms of the scheme. If in a particular case
" the processing of an application is deliberately delayed to deny
the benefit to the government servant, the inaction may be chal-
lenged on the ground of want of bona fides or ulterior motives. E
But where the time taken to process the application (through
medical Board, local/State level Committee and the govern-
ment) is reasonable, the government servant cannot contend
that relief should be extended, even if the left over period is less
than five years. Let us give an example. If an application for F
~
compassionate appointment on the ground of medical invali-
dation is given five years and one week before the date of su-
perannuation, obviously the Government servant cannot expect
the entire process of scrutiny, medication examination, recom-
mendation and consideration at three levels should be com- G
pleted in one week. He cannot contend that when he had made
the application the left over period was more than five years
and therefore his dependant is entitled to appointment. As stated
above these are matters of policy and courts will not interfere
with the terms of a poiicy, unless it is opposed to any constitu- H
·~

1232 SUPREME COURT REPORTS [2008] 11 S.C.R.

A tional or statutory provision or suffers from manifest arbitrari-
ness and unreasonableness.
Conclusion
·-
21. We therefore allow these appeals, set aside the judg-
8 ment of the High Court. We also set aside the orders of the
Tribunal though on different grounds. We uphold the validity of
the compassionate appointment scheme (contained in the GO
dated 30.7.1980, 4.7.1985 and 9.6.1998 as clarified by Memo
dated 25.6.1999) providing that the period of five years of 'left
C over service' should be reckoned from the date of issue of the
order of retirement on medical invalidation and not from the date
of application for retirement on medical invalidation.
22. As the scheme was withdrawn by GM dated 27.4.2002
to give effect to the impugned decision of the High Court, the
0
state government is at liberty to revive the scheme with or with-
out modifications.
B.B.B. Appeals allowed. 'J_
4ml

c

'
(
\( .
I
"

'.