STATE OF HIMACHAL PRADESH AND ANR. versus PARKASH CHAND

[2019] 1 S.C.R. 533

STATE OF HIMACHAL PRADESH AND ANR.

PARKASH CHAND

(Civil Appeal No. 977 of 2019)

JANUARY 17, 2019

[DR. D.Y. CHANDRACHUD AND HEMANT GUPTA, JJ.]

Service Law – Compassionate appointment – Benefit of –Death of respondent’s father while in service – Respondent uponattaining majority applied for compassionate appointment –Rejection of, on the ground that the elder brother of the respondentis already employed with the State undertaking – Writ petition bythe respondent seeking setting aside of the rejection letter and hisappointment on compassionate grounds – Issuance of direction bythe High Court to the State to consider cases for appointment oncompassionate basis by sons or daughters of deceased governmentemployees, even though, one member of the family is engaged inthe service of the government or an autonomous board orcorporation – On appeal, held: Policy as regards compassionateappointment contained stipulation that where one or more personsof the family are already in the employment of the State Governmentor of autonomous bodies, Boards, Corporations, etc. of the State orthe Central Government, employment assistance should not beprovided to another member of the family – Limited exception isavailable only to widow of deceased employee who seekscompassionate appointment where the widow is not being supportedfinancially by her employed children – Direction by the High Courtvirtually amounts to mandamus to the State Government todisregard the terms stipulated in its policy – In the exercise of judicialreview u/Art. 226, it was not open to the High Court to re-write theterms of the policy – Compassionate appointment is not matter ofright, but must be governed by the terms on which the State laysdown the policy of offering employment assistance to member ofthe family of deceased government employee – Issuance of directionto the State to consider applications which do not fulfill the terms ofthe policy, not permissible – Moreso, the writ petition was filed nearlytwo years and six months thereafter – Apart from stating that the

Aelder brother of the respondent who was engaged in governmentservice was living separately, there were no factual averments insupport of the plea – Thus, the directions issued by the High Courtset aside – Constitution of India – Art. 226 – Judicial review.

Govind Prakash Verma v. Life Insurance CorporationBof India (2005) 10 SCC 289 – held inapplicable.Umesh Kumar Nagpal v. State of Haryana (1994) 4SCC 138; General Manager (D&PB) v. Kunti Tiwary(2004) 7 SCC 271; Punjab National Bank v. AshwaniKumar Teneja (2004) 7 SCC 265 : [2004] 3 Suppl.CSCR 597; State Bank of India v. Somvir Singh (2007) 4SCC 778 : [2007] 2 SCR 509; Mumtaz Yunus Mulaniv. State of Maharashtra (2008) 11 SCC 384 : [2008] 5SCR 241; Union of India v. Shashank Goswami (2012)11 SCC 307 : [2012] 6 SCR 98; State Bank of India v.Surya Narain Tripathi (2014) 15 SCC 739; CanaraDBank v. M. Mahesh Kumar (2015) 7 SCC 412 : [2015]9 SCR 724 – referred to.

Case Law Reference

From the Judgment and Order dated 06.10.2015 of the High Courtof Himachal Pradesh at Shimla in CWP No. 6547 of 2010.

Vikas Mahajan, AAG, P.S. Patwalia, Sr. Adv., Aakash Verma,Anil Kumar, Abhinav Mukerji, Ms. Bihu Sharma, Ms. Purnima Krishna,Ms. Pratishtha Vij, Ajay Marwah, Atul Kumar, Ishan Dewan, PlakBagchi, Abhimanyu Sharma, Ishan Dewan, S. K. Verma, SuryanarayanaSingh, Ms. Pragati Neekhra, Ms. Kaveri Vats, Varinder Kumar Sharma,Ms. Radhika Gautam, Rajul Shrivastav, K. Krishna Kumar, VikrantNarayan Vasudeva, Ashwani Kumar, Ms. Iti Sharma, Jay Kr. Bhardwaj,Ravinder Nain, Puneet Sharma, Jogy Scaria, Reegan S. Bali, Ms. BeenaVictor, Ravi Homod, Veeranjaneyvilu K.L.N.V., Anil Nag, Ravi Bakshi,Aditya Dhawan, Ms. Kiran Dhawan, Shashank Kumar, Chander ShekharAshri, Jayant Mohan, Sunil Kumar Jain, Abhishek Jain, Ms. AnushaAgarwal, Punya Garg, Abhishek Jain, Srilok Nath Rath, Y.P. Singh,Sharan Thakur, Mahesh Thakur, Vijay Kumar Pardesi, Dr. SushilBalwada, Karan Chauhan, Ms. Manjeet Chawla, Ms. Bharti Tyagi, Ms.Divya Jyoti Singh, Vinod Sharma, Pawan Reley, Gopal Prasad, SatishKumar, Aravindh S., A. Lakshmi Narayan, Mrs. Nanita Sharma, VivekSharma, Bajrang Lal Jat, Baldev Singh, D.S. Patial, Binay Kumar Das,Yogesh Kumar Mathur, Ms. Amita Singh Kalkal, M. C. Dhingra, PiyushKant Roy, Ms. Indira Kanora, Gaurav Dhingra, Ms. Shobha Gupta,Ashwani Kr. Gupta, Vikrant Yadav, P. N. Puri, Reeta Dewan Puri,Abhishek Puri, Dhiraj, Parmanand Gaur, Ekansh Bansal, Yash PalDhingra, Baldev Singh, D.S. Patial, Vinay Kumar Das,, Advs. for theappearing parties.

The Judgment of the Court was delivered by

DR DHANANJAYA Y CHANDRACHUD, J. 1. Leavegranted.

2. This appeal arises from judgment of Divison Bench of theHigh Court dated 6 October 2015.

3. The father of the respondent who was working as Peon inthe Revenue Department of the State, died on 4 January 1997, while inservice. On the date of the death of his father, the respondent was aminor. He attained the age of majority on 17 November 2002. Thepolicy of compassionate appointment framed by the State of HimachalPradesh, inter alia, contains stipulation that where none of the childrenof deceased government employee have attained the age of majorityat the time of the death of the employee, an application can be submittedon the attainment of the age of twenty one years by the eldest child.

AThis provision is contained in paragraph 8 of the policy dated 18 January1990. The application submitted by the respondent upon attaining theage of majority was processed, but was eventually rejected on 25 April2008 on the ground that the brother of the respondent is already in theservice of the Himachal Pradesh Electricity Board. The fact that thebrother of the respondent is employed with State undertaking is not inBdispute.

4. In the writ petition before the High Court, the respondent urgedthat his brother was living separately and relied on ration card and acertificate issued by the Pradhan of the Gram Panchayat. The fact thatthe brother was residing separately for seventeen years was admitted inCthe Writ Petition in the following terms:

“...Because the elder brother of the petitioner was living separatelyand no family member of the petitioner is in Govt./Semi Govt.service, which fact is clear from the certificate issued by thecompetent authority, copy of which is annexed herewith asDAnnexure-P7. The ration card of the family of the petitionerclearly shows that the elder brother of the petitioner is not residingwith the petitioner, copy of ration card is annexed herewith asAnnexure-P8. The Pradhan concerned has also certified that theelder brother of the petitioner is residing separately for the last 17Eyears, which fact is clear from the certificate, copy of which isannexed herewith as Annexure-P9.”5. The respondent, in the reliefs which were sought in the petitionunder Article 226 of the Constitution, sought direction for setting asidethe letter of rejection dated 25 April 2008 and for his appointment as aFPeon on compassionate grounds.

6. The Policy framed by the State Government contains thefollowing conditions of eligibility in paragrah 5(c):

“In all cases where one or more members of the family are alreadyin government service or in employment of autonomous bodies/Gbodies/ boards/corporations etc. of the State/Central Government,employment assistance should not under any circumstances beprovided to the second or third member of the family. In cases,however, where the widow of the deceased government servantrepresents or claims that her employed sons/daughters are not

supporting her, the request of employment assistance should beconsidered only in respect of the widow. Even for allowingcompassionate appointment to the widow in such cases the opinionof the department of personnel, and Finance Department shouldspecifically be sought and the matter finally decided by the Councilof Ministers.”

7. In the batch of cases which has been disposed of by the HighCourt, one of the issues which were framed for decision was as follows:

“(ix) In case one or more dependants of deceased-employee is/are in service, though living separately, whether that can be madea ground to deny compassionate appointment to the otherdependant of the deceased-employee?”

8. The policy contains stipulation that where one or more personsof the family are already in the employment of the State Government orof autonomous bodies, Boards, Corporations, etc. of the State or theCentral Government, employment assistance should not be provided toanother member of the family. However, an exception is carved out inthe case of the widow of the deceased government employee, if sheclaims that her employed children are not supporting her. Before allowingcompassionate appointment, the opinion of the Department of Personneland Finance Department is required to be sought and the matter is left tothe ultimate decision of the Council of Ministers.

9. The High Court while deciding issue (ix) has relied upon thedecision of this Court in Govind Prakash VermaVs.Life InsuranceCorporation of India1more specifically on the observation that the merefact that the elder brother of the applicant was engaged in agriculturalwork and was also doing the work of casual painter, would not beconstrued as gainful employment. This finding in Govind Prakash Vermais purely on the facts of that case and cannot be construed to be of anyrelevance to the present case.

10. The High Court has observed that the State should considercases for appointment on compassionate basis by dealing with theapplications submitted by sons, or as the case may be, daughters ofdeceased government employees, even though, one member of the familyis engaged in the service of the government or an autonomous board orcorporation. This direction of the judgment of the High Court virtually 1 (2005) 10 SCC 289

Aamounts to mandamus to the State Government to disregard the termswhich have been stipulated in paragraph 5(c) of its policy dated 18 January1990. The policy contains limited exception which is available only toa widow of deceased employee who seeks compassionate appointmenteven though one of the children of the deceased employee is gainfullyemployed with the State. The basis for this exception is to deal withBcases where the widow is not being supported financially by her children.

11. In the exercise of judicial review under Article 226 of theConstitution, it was not open to the High Court to re-write the terms ofthe policy. It is well-settled that compassionate appointment is not amatter of right, but must be governed by the terms on which the StateClays down the policy of offering employment assistance to member ofthe family of deceased government employee. [Umesh Kumar NagpalVs. State of Haryana2,General Manager (D&PB)Vs. KuntiTiwary3,Punjab National BankVs. Ashwani Kumar Teneja4,State Bankof IndiaVs. Somvir Singh5,Mumtaz Yunus MulaniVs. State ofDMaharashtra6,Union of IndiaVs. Shashank Goswami7,State Bank of India Vs. Surya Narain Tripathi8and Canara Bank Vs. M. MaheshKumar9]

12. For the above reasons, we are of the view that the judgmentof the High Court is unsustainable. The High Court has virtually re-Ewritten the terms of the policy and has issued direction to the State toconsider applications which do not fulfill the terms of the policy. This isimpermissible.

13. That apart, we find from the record that the father of therespondent died on 4 January 1997. Though the respondent applied onFattaining majority, as permissible under the policy, the application wasrejected on 25 April 2008. The Writ Petition was filed nearly two yearsand six months thereafter. Apart from stating that the elder brother ofthe respondent who was engaged in government service was livingseparately, there were no factual averments in support of the plea. In

2 (1994) 4 SCC 138G 3 (2004) 7 SCC 271 4 (2004) 7 SCC 265 5 (2007) 4 SCC 778 6 (2008) 11 SCC 384

7 (2012) 11 SCC 307

8 (2014) 15 SCC 739

9 (2015) 7 SCC 412

any event, as we have already held, the High Court was not justified inissuing direction which would breach the policy framed by the State.

14. For these reasons, we allow the appeal and set aside thedirections issued by the High Court in its impugned judgment and order,as noted earlier. In consequence, the Writ Petition filed by the respondentshall stand rejected. No costs.

Nidhi Jain

Appeal allowed.