2018 (10) TMI 1963 - HC - Indian Laws

Right for consideration of compassionate appointment - vested right or not - consideration of case of compassionate appointment pursuant to death of deceased employee - whether policy prevailing at the time of death of employee or the policy prevailing at the time of application for compassionate appointment would be applicable? HELD THAT - In order to consider the issue that whether the right for consideration of compassionate appointment is a 'vested right' it is apposite to refer the various judgments of the apex Court. In the case of Umesh Kumar Nagpa v. State of Haryana and others 1994 (5) TMI 279 - SUPREME COURT , Steel Authority of India Ltd. v. Madhusudan Das 2008 (10) TMI 724 - SUPREME COURT , Union of India and another v. B. Kishan 2011 (4) TMI 1540 - SUPREME COURT , State of Haryana v. Naresh Kumar Bali 1994 (5) TMI 272 - SUPREME COURT , SBI and others v. Jaspal Kaur 2007 (2) TMI 581 - SUPREME COURT and State Bank of India and another v. Raj Kumar 2010 (2) TMI 1311 - SUPREME COURT the apex Court has been pleased to held that the consideration for appointment of compassionate ground is contrary to the Articles 14 and 16 of the Constitution of India and it is only in the nature of concession and, therefore, it does not create a vested right in favour of the claimant. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian ground. Such appointment should, therefore, be provided immediately to redeem the family in distress. The Apex Court in the case of State Bank of India and another v. Raj Kumar 2010 (2) TMI 1311 - SUPREME COURT had an occasion to discuss the object of the compassionate appointment scheme and clarified the judgment in the case of Jaspal Kaur 2007 (2) TMI 581 - SUPREME COURT . It was held that the appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. The mere fact that an application was made when the scheme was in force will not by itself create a right in favour of the applicant. It was further held that there is no vested right for compassionate appointment and therefore, the policy enforce at the time of consideration of application would apply and not the scheme enforce earlier to the said scheme. The reference is answered that compassionate appointment cannot be claimed as a matter of right as it is not a vested right and the policy prevailing at the time of consideration of the application for compassionate appointment would be applicable. The matter be placed before the appropriate Bench for orders as per roster.

Summary

Issues:
1. Whether the right for consideration of compassionate appointment is a vested right?
2. In the case of consideration of compassionate appointment, should the policy prevailing at the time of death of the employee or the policy prevailing at the time of application for compassionate appointment be applicable?

Analysis:

Issue 1:
The judgment discusses whether the right for consideration of compassionate appointment constitutes a 'vested right.' Various apex Court judgments, such as Umesh Kumar Nagpa v. State of Haryana and others, Steel Authority of India Ltd. v. Madhusudan Das, and others, have established that compassionate appointment is a concession granted under specific circumstances and does not create a vested right for the claimant. The appointment is provided to alleviate the distress of the deceased employee's family. The Court emphasized that the provision should not be stretched beyond permissible limits on humanitarian grounds. The appointment is not an automatic entitlement but depends on eligibility and financial conditions of the family.

Issue 2:
Regarding the policy applicable for compassionate appointment consideration, the judgment clarifies that the policy in force at the time of application submission should govern the decision, not the policy prevailing at the time of the employee's death. The Court highlighted that compassionate appointment is granted under a special scheme distinct from normal recruitment procedures. It emphasized that the employer has the discretion to evolve a scheme for such appointments, and consideration should align with the prevailing policy at the time of application submission. The judgment overruled previous decisions that suggested otherwise and emphasized the employer's obligation to promptly handle compassionate appointment applications to address the family's distress lawfully.

The judgment aligns with the Full Bench's ruling in Bank of Maharashtra v. Menoj Kumar Dehria, emphasizing that compassionate appointment is not a vested right and that the policy in place at the time of application consideration should apply. The Court's decision underscores the exceptional nature of compassionate appointments and the importance of adhering to the prevailing policy at the time of application submission to address the family's distress effectively.