Compassionate Appointment – Analysis in the Light of Judgments

By | May 26, 2022
Compassionate Appointment – Analysis in the Light of Judgments

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The Article ‘Compassionate Appointment – Analysis in the Light of Judgments’ by A. Niharica is a thorough study on the compassionate appointment with the help of relevant case laws. Compassionate appointment is a scheme by the Government provided to the dependent of the deceased as in the absence of the deceased the family lives in the state of penury. Even the Supreme Court in one of its judgments stated that this appointment should be done for daughters also which would include even married daughters too.

The Supreme Court also gave the verdict that parents can be illegitimate but children cannot be illegitimate and so the children born out of second marriage are also entitled to get the privilege of compassionate appointment.

It is true to say that time and again our judiciary has played a vital role as such fundamental rights of citizens are also protected with their stern steps. This article tries to analyze the judgments and their repercussions on the impacted people. 

A Brief Introduction: Compassionate Appointment

Compassionate appointment is a scheme by the Government, which provides jobs on a compassionate basis to a dependent family member of a government employee who dies while in service or retires because of medical reasons. The rationale behind the scheme is to provide financial bolster to the concerned economically affected family of the employee.

A right is an aspect of the law that talks either about freedom or entitlement. In the context of a compassionate appointment, it would mean an entitlement. In the view of the Supreme Court in the case of the Secretary to Govt. Department of Education (Primary) & Ors. v. Bheemesh Alias Bheemappa[1],

it could be seen that the court categorically held that compassionate appointment is not a right. Still, this scheme acts as an umbrella for the family of the deceased, while struck in a heavy downpour.

Lately many cases involving the interpretation of this scheme have come before various courts in the country and consequent judgments were passed.

Compassionate appointment and financial status of the family

A recent case Union of India v. Amrita Sinha[2] pertains to the appointment sought by the wife of a deceased Sargent in the Indian Air Force. The Sargent here died due to cancer. The tribunal which took up the case (concerning compassionate appointment) observed that

“since the deceased employee died due to terminal illness, the family might be in debt and might have sold the property for his treatment” and at the same time it added that it would not go into these topics.”

Later on, neither the High court nor the Supreme Court delved into the financial status of the family.

This overlooking by the judicial body contradicts the intention of the scheme i.e. to protect the deceased servant’s family from the immediate financial crisis as a failure to evaluate the financial status would not give a lucid picture of the scenario. With such a hazy view, it’s hard to decide if the family is eligible for a compassionate appointment or not i.e. if the family is hit by an immediate financial crisis or not.

Resorting to the anatomization of the related prevalent circumstances (debts or so) and the monetary standing of the concerned family would answer the impact of death or retirement of the employee on the household. This would make the task of the authorities, and courts easy to determine if a family is entitled to the scheme or not, easy.

Compassionate appointment and daughters

Daughters also come under the ambit of ‘eligible persons’ with respect to compassionate appointments. But the vacillation occurs when the word ‘daughter’ has to be interpreted. The Supreme Court in the case of State of Karnataka v. C.N. Apporva Shree & Anr. has held –

the marital status of a daughter doesn’t affect her eligibility for an appointment. It stated that even a married daughter would be eligible.

In the Director of Treasuries  in Karnataka & Anr  v. Somyashree[3] case,

‘Daughter’ has been elucidated by the apex court in such a way as to exclude divorced daughters from the term vis-a-vis Karnataka Civil Services (Appointment on Compassionate Grounds) Rules 1996. Only in 2021 were the divorced women brought under the ambit of this act after making an amendment. The court was submissive to this act of the legislature.

This decision of the court has a snag. A divorced woman is legally considered an unmarried woman and would have all the rights of an unmarried woman (right to remarry). Furthermore, a divorced woman, having been parted from her family would require more financial help when compared to a married woman or a widowed one. A divorced woman should also have been considered on par with married and widowed once. Otherwise, such women who sought aid before the amendment would become vulnerable.

Compassionate employment and the applicable scheme

The question as to which scheme would be applicable with respect to an application made for a compassionate appointment came up before the Supreme Court. The apex court made varying observations regarding this. In Seema Kausar v. the State of Maharashtra[4], it was held-

the policy prevailing either during the time of death of the employee or during application would be applicable.

In the case of the State of Madhya Pradesh & Ors. v. Ashish Awasthi[5] it was observed that

the scheme prevailing only during the death of an employee, not a subsequent one would be applicable (not even the scheme during application).

There were differing observations made with a few weeks of a gap between them. If the latter judgment is to be followed then one cannot make a request based their reliance on the scheme which was prevalent on the day of application. This variation in the stance taken by the apex court would push the applicants into turmoil.

Compassionate employment and Bigamy

Bigamy is an offence under section 494 of IPC. There are also certain circumstances whose presence makes a marriage legally void. So what about the children born out of such marriages? Are they eligible for compassionate appointments?

In the case of Arpula Ganesh v. the State Of Telangana, the High Court was of the view-

even the children of the illegitimate marriage are eligible for compassionate employment and that there may be illegitimate parents, but no illegitimate children”. 

This case was decided by referring to the apex court judgment in Union of India v. V.R. Tripathi.

But recently Madras High Court took a different stance. When it was argued by the advocates that children of illegitimate marriage should also be considered for compassionate appointment as Hindu personal law recognizes them as coparcenary with respect to succession, the court repudiated this argument by stating 3 grounds:

  • The kind of interpretation ( exclusion of children from illegitimate marriage) would encourage monogamy
  • Policy denying appointment to descendants of the second wife not barred by law. (Irrespective of personal law, bigamy is criminalized under IPC)
  • Compassionate appointments can’t be equated with inheritance.

The court was correct in making these observations. Bringing descendants of illegitimate marriage into the compass of the scheme would most probably lead to friction between the descendants of the deceased. Deciding as to the children of which wife would be eligible would be a tough task for the court. In that case, an already affected family (with the demise of a family member) will have to go through an unfamiliar, complex legal procedure of the courts. This would further increase the burden on the judiciary also.

In the case of Mukesh Kumar v. Union of India[6], the Supreme Court observed,

denying compassionate appointment to children born from the second wife of a deceased employee is violative of Articles 14 and 16(2)of the Constitution of India.

Thus, the judiciary to its best possible extent has passed judgments fair enough in the compassionate appointment so that the losses of family in terms of financial issues can be solved. This step of the judiciary is appreciable and even in one of the cases related to compassionate appointments, Justice D. Y. Chandrachud observed that time is of the essence in the cases of  Compassionate appointments.


References:

[1] Civil Appeal No. 7752 of 2021

[2] Civil Appeal Nos 7640-7641 o 2021

[3] 2021 SCC OnLine SC 704

[4] Special Leave to Appeal (C) No(s). 19252/2018

[5] LL 2021 SC 659

[6] SLP(C) N0. 18571/2018


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Author: A. Niharica

Sultan-Ul-Uloom College of Law

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