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HEMANT KUMAR MISHRA versus LIFE INSURANCE CORPORATION & ANOTHER

High Court of Judicature at Allahabad

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Hemant Kumar Mishra v. Life Insurance Corporation & Another - WRIT - A No. 16031 of 1997 [2004] RD-AH 198 (6 April 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR/ Reserved

Civil Misc. Writ Petition No. 16031 of 1997

Hemant Kumar Mishra...............................................  Petitioner.

Versus

Life Insurance Corporation, through the

Regional Manager, Kanpur and another...........................  Respondents.

Hon'ble R. B. Misra, J.

Heard Sri P. N. Saxena, learned Senior Counsel, along with Sri Amit Saxema, learned Counsel for the petitioner and Sri Manish Goyal, learned Counsel for the respondents.

(1) In this petition prayer has been made for issuance of writ of mandamus commanding the respondents to appoint the petitioner as Assistant in Life Insurance Corporation (hereinafter in short called as 'Corporation') on compassionate grounds under the Dying in Harness Rules applicable to the corporation.

(2) The facts necessary for adjudication of the present writ petition are that the petitioner's father Sri Mahendra Mishra was an Assistant Administrative Officer in the Corporation and while posted at Branch Office I, Deoria of Corporation died on 24.8.1994 leaving behind two sons including petitioner, one unmarried daughter and mother of the petitioner. Thereafter, the petitioner submitted an application dated 7.11.1994 (Annexure-1 to the writ petition) for appointment on compassionate ground claiming that the petitioner, his mother and unmarried sister were dependent upon late Sri Mahendra Mishra, while elder brother of the petitioner Sri Arvind Mishra was married and was in service and was not depend on the deceased employee. In the application of the petitioner for compassionate appointment in column-7 it was mentioned no dependant member of the family was in service. This application was forwarded on 7.12.1994 (Annexure No.2 to the writ petition) by the Branch Manager, Deoria of the Corporation to the Manager, Regional Office, Gorakhpur, however, the claim of the petitioner was rejected by the Corporation on 17/19/4/1995 (Annexure-3 to the writ petition). The petitioner's mother i.e. widow of the deceased employee made a representation (Annexure-4 to the writ petition) to the Senior Regional Manager of the Corporation, which too was rejected on 11.3.1997 (Annexure-7 to the writ petition). In these circumstances the present writ petition has been filed.

(3) Counter affidavit has been filed indicating that the Corporation has framed regulation known as Life Insurance Corporation of India (Staff) Regulations, 1960 (hereinafter in short called as the 'Regulation,1960'). In exercise of powers vested under Regulation-4 of the Regulation, 1960 the Chairman has issued instructions called as 'Life Insurance Corporation of India (Recruitment of Class-III and Class-IV Staff) Instructions, 1979' (hereinafter in short called as the 'Instructions, 1979') indicating the mode of appointment on compassionate grounds. Clause 21 of the Instructions, 1979 provides as under:-

"RELAXATION IN FAVOUR OF NEAR RELATIVES OF AN EMPLOYEE WHO DIES WHILE IN SERVICE OR RETIRES AT LEAST 5 YEARS PRIOR TO THE DATE OF SUPERANUATION:

(i) There shall be relaxation in upper age limits and educational qualifications in favour of near relatives as defined in (ii) below, of an employee who dies while in service as prescribed in Annexure-III hereto.

While an employee is retired prematurely under Regulations 19(3) of the (Staff) Regulations, on health grounds or on being incapacitated for continuous service at least five years before the date of his superannuation, compassionate appointments may be made of one of the relatives mentioned in (ii) below subject to the candidate satisfying all the requirements as prescribed for appointments in the event of death while in service, such appointment may also be made where an employee is retired prematurely at least five years before the date of his superannuation not for any misconduct but for poor performance.

(ii) Such relaxations shall be admissible only in favour of a spouse, son or unmarried daughter of the employee.

(iii) The relaxations shall be admissible only where none of the members of the family spouse, son or unmarried daughter is gainfully employed. However, if the widow is already employed elsewhere in private sector she will be allowed to take up a job in the Corporation in Class-III or Class-IV cadre commensurate with her qualifications if she opts for the same.

(iv) The relaxations shall be admissible either to the spouse or to one of the children as specified.

(v) The relaxations shall be admissible only if a request is received from the relative who satisfies the conditions of minimum educational qualifications, age etc. as prescribed, within a period of one year from the date of death of the employee or early retirement as specified.

Provided that the time limit on one year may be extended in the cases satisfied below:

a) A widow may be allowed upto 5 years from the date of death of her husband to secure the prescribed qualification for appointment to class-III post in the Corporation.

b) A major son or unmarried daughter who satisfies the qualification for appointment to class IV post, maybe allowed upto two years from the date of death to secure prescribed qualification for a class III post if he/she so desires.  

c) Upto three years from the date of death where all the children are minor."

In reference to the provisions and instructions provided under 'Instructions, 1979', it has been pleaded on behalf of Corporation that since one son of the deceased employee was admittedly employed, therefore, under Instruction -21 (iii) the petitioner was not entitled to be given appointment on compassionate ground.

(4) A reference of the Circular dated 29.12.2001 is indicated as below: -

"Circular No. MPPR7R Desk/ZD/3/2001) 29th December, 2001.

ALL ZONAL MANAGER AND

SR. DIVISIONAL MANAGERS IN-CHARGE.

Re: Employment on compassionate ground Amendment to Clause21(iii) of LIC of India (Recruitment of Class-III and IV Staff) Instruction, 1993.  

Clause 21 of LIC of India Recruitment (of Class III and Class IV Staff) Instructions, 1993 lays down conditions for appointment on compassionate ground to spouse, son or unmarried daughter in case of death of an employee while in service, allowing certain relaxations as stipulated in the said instructions, in respect of age, educational qualification etc. such appointment is considered only when none of the dependants of the deceased employee's family is gainfully employed, as per Clause 21(iii) of the Instructions.

There have been instances where some employees have been killed by miscreants/ criminals during the course of their performing Official duties like carrying cash to the bank or safeguarding, as security personnel, the property of the Corporation As a token recognition for such employees' act of dedication and commitment to the corporation, in such instances, it has been decided to amend Clause 21 (iii) of the LIC of India Recruitment (of Class II and IV Staff) Instructions as follows to allow appointment on compassionate grounds to one of the dependent family members, defined therein, waiving the condition that none of the dependent family members should be gainfully employed.

"The relaxations shall be admissible only where none of the members of the family i.e. spouse, son or unmarried daughter is gainfully employed. However, if the widow is already employed elsewhere in the Private Sector, she will be allowed to take up a job in the Corporation in Class III or IV commensurate with her qualification if she opts for the same.

Further provided that the condition regarding gainful employment shall not be applicable where it is established by documentary evidence that the death of the employee is caused by acts of miscreants/ criminals while performing his/ her official duties or during the course of his/ her employment.

Provided further that this provision is meant only to recognize the act of courage and bravery displayed by such an employee."

Note of this amendment may be taken for dealing such appointment in future at your end.

Executive Director (Personnel)"

This circular has not been challenged and the circular has been issued to supplement the rules, as it has binding effect like rules as contended by the respondents.

(5) It has been argued on behalf of the petitioner that the petitioner is fully qualified for appointment to the post of Assistant in the Corporation and the mother being a widow of the deceased employee since declined to make any claim for appointment on compassionate ground and one brother already in service is separately living and has no connection with the petitioner and by virtue of many of the appointments of dependants of deceased employees in similar circumstances made by the Corporation, the petitioner in reference to the provisions of articles 14 and 16 of the Constitution is entitled for compassionate appointment.

(6) It has further been argued on behalf of the petitioner: -

(a) The instructions 21(III) as a whole, only means that if the member of the family of the deceased employee spouse, sons or unmarried daughter applying for appointment on compassionate ground, one shall be entitled to such employment, however, an exception has been made in the case of widow to the extent that if she is employed in 'Private Sector', she may be allowed to take up the job on compassionate ground, if she so opts.

(b) Employment of one member of family of the deceased shall not debar for employment of another member on compassionate ground as the first clause of this instruction is qualified by the second clause, which starts with the word, however, thus the second clause explains the first clause and the entire instruction is to be read as a whole and word 'members' of the family should be read as dependant members of the family of the deceased employee.

( c) Not giving employment to the unemployed dependant of the deceased employee shall frustrate the spirit and provisions for compassionate appointment.

(d) The provisions of the compassionate appointment of the corporation is so interpreted, so that, the purpose of provisions may be achieved in reference to J. T. 1996 (6) SC 268 (S. Gopal Reddy Vs. State of Andhra Pradesh).

(e) If the word capable of two meanings, the capable of being interpreted or giving two meanings in respect of beneficial legislation or statute, one, which is in favour of the petitioner, is to be treated and recorded as the principle preposition and interpretation in reference to J.T. 1995 (9) SC 644 (Union of India and another Vs. Pradeep Kumari and others) and J. T. 1996 (4) SC 656 (Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and others Vs. K. Devi and others).

(f) In U.P. Act No. 13 of 1972 U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1971 provides definition of family in section 3(g) of the Act, as under:-

"Family in relation to a landlord or tenant of a building means, his or her:-

(i) Spouse.

(ii) Male Lineal Descendant.

(iii) Such Parents, Grand Parents and any unmarried or widowed or divorced or judicially separated daughter of male lineal descendants, as may have been normally residing with him or her,

And includes in relation to a landlord any female having a legal right of residence in that building.

(g) This definition of family in U.P. Act No. 13 of 1972 does not include other relations like younger brother dependent on the landlord or tenant, a widowed Bhabhi, a dependent mother-in-law or father-in-law of tenant or landlord or any other relation but this Court as well as the Supreme Court while considering the need of the landlord or tenant has successively held that inspite of the definition given in the 'Act', the word family is to be given a meaning, which advances the purpose of the 'Act' and held that need for accommodation for the Bhabhi of the landlord or other members of his family in general sense shall also be treated as member of family of the landlord and the accommodation under tenancy could be released for their need. Under definition of 'Family' in Act No. 13 of 1971, the daughter-in-law of the tenant is not a member of the family though she may be residing with her husband as the member of the family of the tenant, the definition also does not include any female relation having a legal right of residence in the building so far as the tenant is concerned, yet this Court has treated them as members of the family and their needs have also been held to be the need of landlord or tenant as the case may be. In view of the above as contended on behalf of the petitioner that a word or expression in a statute is to be interpreted in the context or purpose for which the statute is framed.

(h) According to the petitioner if in instruction 21(III) the word 'Family' is interpreted to include all sons, unmarried daughters of the deceased, whether dependent on him or not and if one of such members who was not dependent on the deceased was employed, the dependants shall stand excluded and the purpose of the compassionate appointment shall stand defeated, thus the word the members of the family have to be interpreted as members of the family dependant upon the deceased and in case none of the dependent members of the deceased is gainfully employed only then one of the dependent shall be given compassionate appointment shall be reasonable interpretation, which shall advance the purpose of this statutory provision for compassionate ground.

(i) It has been asserted on behalf of the petitioner that Sri Ashwini Kumar Srivastava while working as an Administrative Officer in the Corporation at Faizabad Branch, Lucknow expired in June, 2001 and his elder son Sri Abhijit Srivastava was though already in service in the Intelligence Bureau under the Central Government, his younger son Sri Tushar Srivastava was given appointment on compassionate ground as an Assistant in the Corporation at Faizabad in February, 2002.

(7) According to the respondents the real brother of the petitioner Sri Arvind Mishra, another son of deceased employee Sri Mahendra Mishra, comes within the terms of member of family and is already in employment with the Corporation itself at his Branch Office, Deoria to the post of Higher Grade Assistant and the corporation is bound by the instructions indicated in the circular dated 20th January, 1987 as the same is statutory in nature and not appointing another member in the circumstances explained in the circular dated 20.1.1987 is not arbitrary. As the Corporation was constituted under the Life Insurance Corporation Act, 1956 (in short called as the Act, 1956) and amendment was carried out in the said Act and in reference to Section 49 of the Act, the Corporation was given power to frame its own regulations. Consequent upon the Regulation, 1960 was framed and in reference to Regulation-4 the instructions and directions were issued by the Chairman to carry out the provisions of regulation in order to secure the effective control over the staff employed in the Corporation, and the Chairman in exercise of powers conferred to him under Regulation-4 of 'Regulation, 1960' issued 'Instructions, 1979'.  These instructions contained relaxation for appointment of near relatives of an employee, who died while in service. From time to time various circulars were issued and on 20.1.1987, the current instructions have been issued (Annexure-CA-1 to the counter affidavit).The instructions, which have been so issued, have the force of law and are statutory in character and hence the Corporation is bound by these instructions. Thus, the appointment to be made by the Corporation cannot go beyond these instructions in the matter of providing compassionate appointment. The Supreme Court had the occasion to interpret these very instructions in the case of  L.I.C. of India Vs. Asha Ram Chhandra Ambekar (Mrs.) and another reported in 194 (2) SCC 718. The relevant observations of the Supreme Court as contained in the said judgement are as follows:-

"These instructions are statutory in character. Therefore, they have the force of law."

Further in paragraph 11 of the said judgement, the Supreme Court has observed as follows:-

"The appellant Corporation being statutory Corporation is bound by the Life Insurance Corporation Act as well as the statutory regulations and instructions. They cannot be put aside the compassionate appointment be ordered."

(8) It has been contended on behalf of the respondents that no compassionate appointment can be provided, where member of the family is already employed. For appreciating this argument, it will be necessary to refer to the meaning of the term 'Family' and the meaning of the term 'Employee'. 'Family' has not been defined either in the Life Insurance corporation Act or under the Regulations, 1960. Thus, the meaning of the term has to be understood in the context in which it is to be applied. The circular restricts its application specifically to widows, sons and unmarried daughters and contains a specific clause that it will not consider compassionate appointment of any other near relative. Thus, the possibility of any other near relative for getting an appointment on compassionate ground has been specifically left out from the scope of this instruction. Thereafter, Clause-4 says that where any member of the family is employed no appointment can be made on compassionate ground. The meaning is to be understood in relation to Clause-1, which restricts the categories to whom the appointment on compassionate ground could be provided. Thus, the member of the family necessarily implies widows, sons and unmarried daughters only. In case, if any other near relative is to be included as member of the family then this will disturb the application of the circular dated 20.1.1987 and will result in inconsistency, which may be termed as arbitrary act on the part of the Corporation. Discretion to be exercised by the Corporation in providing appointment on compassionate ground has been restricted to only widows, sons and unmarried daughters.

(9) The term 'Family' has been defined in the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974 (in short called 'Rules, 1974') The definition is contained under Rule 2(4) and provides that family means; (i) wife of husband as the case may be, (ii) sons, (iii) unmarried daughters and widowed daughters.

(10) As submitted on behalf of the respondents, the Supreme Court had the occasion to consider the office memorandum issued by the Government of India dated 25.11.1978, which was in respect of providing appointment on compassionate ground. The Supreme Court has considered and observed in Accountant General of India Vs. G. Ananta Rajeswara Rao, 1994 (1) SCC 192, paragraph 5;

" A reading of these various clauses in the Memorandum discloses that the appointment on compassionate grounds would not only be to a son, daughter or widow but also to a near relative, which was vague or undefined..........Therefore, the High Court is right in holding that the appointment on grounds of descent clearly violates Article 16(2) of the Constitution. But, however, it is made clear that if the appointments are confined to the son/ daughter or widow of the deceased government 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 member in the family in supplement the loss of income from the bread winner to relieve the economic distress of the members of the family, it is unexceptionable."

(11) The Privy Council in the case of Gyanendra Nath Das in 1921 (61) Indian Cases 323, while considering the definition of the word 'family' in relation to a Will held as follows:

"The word "family" is elastic and is capable of different interpretations, but in the present will their Lordships see no reason why it should be extended to include people other than those existing when the testator died."

(12) This Court in the case of Santosh Kumar Pandey Vs. State of U.P., 1992 (3) Allahabad Weekly Cases, 1675, while considering the definition of the word family as provided under 'Rules, 1974' rejected the writ petition filed by the petitioner, who was not falling within any of the three clauses mentioned the word family as defined under Rule 2(c).

(13) In Black's Law VI Edition Dictionary, the term 'employed' has been defined at page 525 as follows: -

"Act of employing or state of being employed; that which engages or occupies; that which consumes time or attention; also an occupation, profession, trade, post or business."

Further in Black's Law Dictionary VI Edition on page 678, the term 'gainful employment' has been defined as follows: -

"Gainful employment or occupation. In general any calling occupation, profession or work which one may or is able to profitably pursue. Within disability clause of policy, term means ordinary employment of particular insured, or such other employment, if any, as insured may fairly be expected to follow."

In Stroud Judicial Dictionary V Edition 831,'employed person' have been defined as follows: -

" A person whose expenses exceeded his remuneration was held to be an "employed person"."

On behalf of the respondents reliance has also been placed in 1954 (2) All England Law Reports 723 and 1960 (2) All England Law Reports 851.    

(14) There is yet another aspect of the matter and it is that under Article 16 of the Constitution a citizen cannot be provided employment or offered job under the State on the ground of descent. The compassionate appointment rules are an exception to Article 16 (2) and the exception is only to be limited to the extent it has been permitted. It is evident from the instructions issued by the Corporation dated 20.1.1987, the exception is to be limited only in the case of the immediate members of the deceased employee and in order to do away with any sort of confusion the nucleus have been specified as widow, son and unmarried daughters. However, in case if any of them is having an employment, which means any kind of employment, the law raised a presumption that the family is not in immediate need or is in distress. This presumption is a valid presumption for the reason that in a Welfare State there may be other situation where a family is in great distress as there was no other earning member in the family. This is where the rules are to be applied and a consideration is to be done on this rational basis. To do away with any arbitrary decision making the discretion has to be exercised in a manner so that if one of the members of the family is employed which means any kind of employment then that case will not be considered and in case where the application discloses no employment will be considered. This criteria is always subject to fulfilling of the other necessary qualifications, which form part of the instructions. It is on the basis of this criteria the action of the respondent Corporation has been upheld from time to time by various High Courts including this Court as well as the Supreme Court in the light of the decisions made in: -

(i) 1994 (2) SCC 718, L.I.C. of India Vs. Asha Ram Chhandra Ambekar & others.

(ii) 1999 (3) A.W.C. 2167, Mukesh Kumar Sharma Vs. Senior Divisional Manager, L.I.C. of India, Agra and another.

(iii) 1998 (2) S.L.R. 27, Andhra Pradesh Division Bench, P. Renuka (Smt.)and others Vs. Senior Divisional Manager, L.I.C., Divisional Office, Hyaderabad and another.

(15) According to the respondents the action of the Corporation is neither arbitrary nor illegal in not providing appointment on compassionate ground to the petitioner. The Corporation is to follow the Executive Instructions, which have been issued from time to time by the Chairman. The discretion to be exercised by the Corporation has to be in consonance with these instructions, which have been issued. In the present case, the petitioner himself makes an application and disclosed that the son of the deceased employee Arvind Mishra is already employed and further specified the income of Arvind Mishra as Rs. 3468/-, this application nowhere mentions the fact that Sri Arvind Mishra does not form part of the family and he may not be considered as a member of the family, who is employed or he cannot be termed as son of the deceased employee. Thus, in view of the circular the action was taken by the Corporation in refusing the appointment to the petitioner. This discretion cannot be termed as an arbitrary decision because the decision making body is not to decide the respective family dispute and it is not the job of Life Insurance Corporation to consider as to whether a particular family member is supporting the family or not? If such considerations are to weigh with the respondent Corporation, then the decision making process of the respondent corporation will become unreasonable as today a member may support the family for getting a job with the respondent corporation, but after getting the job one may not support the family, thereby, leaving the family in the same position as it was. Thus, whether a person is supporting a family or not cannot be a relevant criteria for providing the appointment on compassionate ground. In these circumstances, the action of the respondent Corporation cannot be termed either as arbitrary or illegal.

(16) It has also been submitted on behalf of the respondents that compassionate appointment of dependant of Sri Ashwini Kumar Srivastava, who was shot dead in the hand of the miscreants, the petitioner has submitted that one family member of late Sri Ashwini Kumar Srivastava was already in gainful deployment, therefore, in reference to same circular brought only for the purpose to give appointment to another unemployed family member of deceased Ashwini Kumar Srivastava, is absolutely devoid of merits. In case of the object of compassionate appointment and relief to the bereaved family, the discrimination between the families of a deceased, who died at the hands of the miscreants, on one hand and the family of the deceased, who died during the course of his service not at the hands of miscreants, is absolutely illogical, arbitrary and violative of mandate of Article 14 of the Constitution. In this respect the Corporation has indicated in para 4 of the counter affidavit that the circular dated 29.12.2001 specifically to deal such eventuality was promulgated as late Sri Ashwini Kumar Srivastava had died due to the act of miscreants while performing official duties, and the facts and circumstances, which were in reference to circular, cannot be compared with the circumstances available to the petitioner.

(17) In Pepsu Road Transport Corporation Vs. Satinder Kumar, 1995 Supp. (4) SCC 597, the Supreme Court has also held that the High Court should not compel the appointing authorities to appoint a person to a particular post possessing merely a minimum qualification and should only direct the authority to consider the appointment of the candidate to the post commensurate with his qualification, therefore, when in that case, the high Court directed the Corporation to appoint the respondent to the post of clerk only on the ground that he possessed the minimum qualification for eligibility, namely, Matriculation, the Supreme Court has modified the order of the High Court in appeal by special leave. It was held that such order directing the Corporation to appoint the respondent to the post of clerk only because he possessed the minimum qualification was not proper and the order of the High Court has been substituted by the Supreme Court directing the appellant Corporation to consider the case of the respondent for appointment on compassionate ground commensurate with his qualification.

(18) In Sushma Gosain Vs Union of India & ors., AIR 1989 SC 1976, the Supreme Court held as under:-

" It can be stated unequivocally that in all claims for appointment on compassionate ground, there should not be any delay in appointment.   The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family.  Such appointment should, therefore, be provided immediately to redeem the family in distress.   It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant."

(19) Aforesaid judgment was approved and the principle laid down therein was reiterated by the Hon'ble Supreme Court in Smt. Phoolwati Vs. Union of India & ors, AIR 1991 SC 469.

(20) In Umesh Kumar Nagpal Vs. State of Haryana & ors., (1994) 4 SCC 138, the Hon'ble Supreme Court has considered the nature of the right, which a dependant can claim while seeking employment on compassionate ground. The Court has observed as under:-

" It appears that there has been a good deal of obfuscation on the issue.  As a rule, appointment in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible.  Neither the Governments nor the public authorities are at liberty to follow any other 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 carved out in the interest of justice and to meet certain contingencies.  One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood.   In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source 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 is, thus, to enable the family to tide over the sudden crisis.  The object is not to give a member of such family a post must less a post for post held by the deceased.   What is further, mere death of an employee in harness does not entitle his family to such source of livelihood.  The Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family......

......The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. relief against destitution.   No other posts are expected or required to be given by the public authorities for the purpose, it must be remembered in this connection that as against the destitute family of the deceased, there are millions of other families which are equally, if not more, destitute.   The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned....  Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased..... The decision does not justify compassionate employment either as a matter of course....   The only ground which can justify compassionate employment is the penurious condition for such employment is not a vested right....   The object being to enable the family to get over the financial crisis."

(21) The same view has been reiterated in Jagdish Prasad Vs. State of Bihar, (1996) 1 SCC 301; State of Bihar Vs. Samsuz Zoha, AIR 1996 SC 1961; Himachal Road Transport Corporation Vs. Dinesh Kumar, (1996) 4 SCC 560; and Hindustan Aeronautics Ltd. Vs. A Radhika Thirumalai,           (1996) 6 SCC 394. It has categorically been held that compassionate employment cannot be claimed as a matter of course not being a vested right.

(22) In Haryana State Electricity Board & Anr. Vs. Hakim Singh, JT 1997 (8) SC 332, the Hon'ble Supreme Court placed reliance upon the judgements referred to above and observed that the object of providing for compassionate employment is only to relieve the family from financial hardship, therefore, an ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment.

(23) Similarly, in Haryana State Electricity Board Vs. Naresh Tanwar & Anr., (1996) 8 SCC 23, the Hon'ble Supreme Court reiterated and followed the law laid down in Umesh Nagpal's case (supra) and directed the applicants involved therein to apply for employment on compassionate ground " by giving full details of the family circumstances and the economic conditions".

(24) In Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & ors., (1998) 5 SCC 192, the Supreme Court has observed as under:-

"  The object underlying a provision for grant of 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 that unless some source of a livelihood is provided, the family would not be able to make both the 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 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. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provision, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds for the dependant of a deceased employee."

(25) In Chairman, Bihar Rajya Vidyut Board Vs. Chhathu Ram, (1999) 5 SCC 673, the Hon'ble Supreme Court held that in absence of the statutory provisions, an adopted son can not claim appointment on compassionate ground.  Similarly, in General Secretary, American Express Bank Union Vs. American Express Bank Ltd., (1999) SCC (L&S) 1235, the Hon'ble Supreme Court held that mere adoption of recruitment policy in pursuance of a Settlement between the union and the employer for compassionate employment of the specified categories of relations of employees on their retirement, death or incapitation, cannot be enforced unless adopted by the employer by bringing the Standing Order/Statutory Rule.  Similarly, in West Bengal State Electricity Board Vs. Sameer Kumar Sarkar, (1999) 7 SCC 672, the Hon'ble Supreme Court held that embargo on compassionate employment in case of death of employee within two years prior to reaching the age of superannuation, was not invalid.

(26) Undoubtedly, in Balbir Kaur Vs. Steel Authority of India & ors. (2000) 6 SCC 493, the Hon'ble Supreme Court held that appointment on compassionate ground is not a vested right but it should not be denied in deserving cases for the reason that it would be tantamount to denial of economical and social justice as enshrined in the Constitution and law must be, in its adaptability and flexibility, applied depending upon a situation for the benefit of the society.

(27) In Sanjay Kumar Vs. State of Bihar, JT 2000 (10) SC 156, the Hon'ble Supreme Court again reiterated that the purpose of the rules providing for compassionate employment is only to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread-earner who had left the family in puniary and without any means of livelihood, but such an appointment cannot be held as if a reservation for the dependants of the deceased Government servant who died in harness.   In Regional Manager, A.P.S.R.T., Nellore Vs. C.M. Pawana Kumari, 2001 AIR SCW 4779, the Supreme Court held that direction cannot be issued to appoint a person on compassionate ground dehores the scheme framed by the employer nor the court has a power to modify the scheme or rules framed in this regard. Similar view has been reiterated in the Divisional Manager, A.P.S.R.T.C. Vs. K. Radha Krishna, 2001 AIR SCW 5190 while deciding a case of appointment on compassionate ground under Re-employment Children Quota provided under the Circular issued by the Corporation.

(28) In Surya Kant Kadam Vs. State of Karnataka & ors., AIR 2001 SC 3145, the Supreme Court held that in absence of any statutory rules, appointment on compassionate ground can be governed by the executive instructions and in spite of the fact that the said instructions may not have a statutory force, the same are bound to be observed by the employer.

(29) In State of Haryana & ors. Vs. Vipin Kumar, AIR 2002 SC 2867, the Supreme Court held that compassionate employment is not given to offer a status on a family and no person can claim to have the same post and if rules/executive instructions provide that appointment shall be made on one stage below, it can be made not only next below post but to any other lower post as the rules provide only that the appointment may be offered at least one step below the post the deceased Government was holding and there can be no bar in offering still a lower post for the reason that the purpose of appointment on compassionate ground is to redeem the family from financial constrains and not to confer any other benefit or status.

(30) In Steel Authority of India Ltd. Vs. Awadhesh Singh (2001) 10 SCC 621, the Hon'ble Supreme Court held that if rule prohibits an appointment on compassionate ground if any other member of the family is already in service, the said rule is valid and no direction can be issued against such scheme.

(31) While reiterating the purpose of making appointment on compassionate ground, the Hon'ble Supreme Court in Haryana State Electricity Board Vs. Krishna Devi, 2002 (2) LLJ 773 held that the main object behind giving such employment is to provide immediate financial help to the family of the deceased employee. Such appointment cannot be made in absence of Rules or Instructions. Application for such employment must be made within the period prescribed by the Rules/Instructions.   Application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated.

(32) Thus, it is evident that such employment cannot be claimed as a vested right. The concept of vested right has been explained by the Supreme Court in Bibi Sayeeda Vs. State of Bihar, AIR 1996 SC 1936, wherein it has been described as under: -

" The word ' vested ' is defined in Black's Law Dictionary (6th  Edition) at page 1563, as 'vested', Fixed;, accrued;, settled;, absolute;, complete.  Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent'.  Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights. In Webster's Comprehensive Dictionary (International Edition) at page 1397, 'vested' is defined as Law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest."

Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned.  Vested right can arise from contract, statute or by operation of law.

Thus in view of the above, as the time is an essential factor in a case like this as the purpose of providing the compassionate employment is to feed the starving family, no application should be entertained after expiry of 15 years and petition is liable to be rejected only on this sole ground.

(33) The text and context of the entire provisions must be looked into while interpreting any of the provision of the Statute. The Court must look to the object, which the Statute seeks to achieve while interpreting the provisions of the Act/ Rules/ Regulations. A purposive approach for interpreting the provision is necessary.

(34) It is also settled principle of interpretation of law that any interpretation, which leads to hardship and complication, should be avoided.  In Administrator, Municipal Corporation, Bilaspur Vs. Dattatraya Dahankar Anr., AIR 1992 SC 1846, the Hon'ble Apex Court has held that "the mechanical approach to construction is altogether out of play with the modern positive approach. The modern positive, i.e., to effectuate the object and purpose of the Act".

(35) In Colour-Chem. Ltd. Vs. A. L. Alaspurkar, (1998) 3 SCC 192, the Supreme Court held that the provisions of welfare legislation should be construed in a way to give benefit to the persons for whose benefit the Rules have been enacted and the Court must examine the policy and object of the Act and must advance the cause of enactment.

(36) In Durga Oil Company & Anr. Vs. State of U.P. & ors. (1998) 6 SCC 299, the Hon'ble Supreme Court held that while interpreting the provisions of a Statute or Rules, the purposive interpretation should always be borne in mind. Similar view has been taken by the Hon'ble Supreme Court in Forest Range Officer Vs. P. Mohd. Ali, 1993 (Suppl.) 3 SCC 627. In Municipal Corporation of Greater Bombay Vs. Indian Oil Corporation Ltd., AIR 1991 SC 686, the Supreme Court observed as under: -

" The language of a statutory provision is not static vehicle of ideas and concepts and as ideas and change, as they are bound to do in any country like ours with the establishment of a democratic structure based on egalitarian values and aggressive developmental strategies, so must the meaning and content of the statutory provision undergo a change. It is elementary that law does not operate in a vacuum. It is not an antique to be taken down, dusted, admired and put back on the shelf, but rather it is a powerful instrument fashioned by society for the purpose of adjusting conflicts and tensions which arise by reason of clash between conflicting interest. It is therefore, intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate."

(37) In S. P. Jain Vs. Krishna Mohan Gupta, AIR 1987 SC 222, the Hon'ble Supreme Court had held that law should take a pragmatic view of the matter and response to the purpose for which is was made and also take cognizance of the current capabilities and life-style of the community. It is well settled that the purpose of law provides a good guide to the interpretation of meaning of the Act. The legislative futility is to be ruled-out so long as the legislative policy permits.

(38) In Daily Pratap Vs. Regional Provident Fund Commissioner, (1998) 8 SCC 90, the Hon'ble Supreme Court held that the Court must always keep in view the beneficial and social welfare aspect of the statute. Same view has been taken by the Hon'ble Supreme Court in Dinkar Anna Patil Vs. State of Maharastha & ors., (1999) 1 SCC 354; Regional Provident Fund Commissioner Vs. S.D. College, Hoshiarpur, (1997) 1 SCC 241; and Bharat Petroleum Corporation Ltd. Vs. Maharashtra General Kamgar Union & ors., (1999) 1 SCC 626. In Vaijanath & ors. Vs. Guramma & Anr., (1999) 1 SCC 292, the Hon'ble Supreme Court held that remedial Act should be given beneficial interpretation.

(39) However, in Employees' State Insurance Corporation Vs. M.M. Suri & Associates (P) Ltd., (1998) 8 SCC 111, the Hon'ble Supreme Court held that even if the statute is beneficial, the Courts should not stretch it too far.  The Supreme Court relied upon its earlier judgements in Regional Director E.S.I. Corporation Vs. Ramanuja Match Industries, (1985) 1 SCC 218, wherein the Court observed as under: -

" Counsel for the appellant emphasised on the feature that the statute is a beneficial one and the Court should not interpret a provision occurring therein in such a way that the benefit would be withheld from the employees. We do not doubt that the beneficial legislation should have liberal construction with a view to implement the legislative intent but where such beneficial legislation has a scheme of its own, there is no warrant for the Court to travel beyond the scheme and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered by the scheme."

(40) An employment on compassionate ground should be provided strictly in accordance with the Rules and the Court cannot take a view as to make it violative of Article 14 and 16 of the Constitution of India. (Vide Cochin Dock Labour Board Vs. Leenamma Samuel and others, (1998) 9 SCC-87.   The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. (Vide U.P.S.R.T.C. Vs. Pukhraj Singh and others, (1999) 1 SCC 190; and Andhra Pradesh State Road Transport Corporation Vs. P. Pochaiah and another, (1999) 1 SCC 191.  

(41) The issue involved herein requires consideration in the light of the settled legal principles discussed hereinabove. The Rules have been carved out as an exception to the Service Jurisprudence, which mandatorily require that any appointment in public office is to be made in consonance to the mandate of Articles 14 and 16 of the Constitution as any appointment, even on temporary or ad-hoc basis, if found to be violative of the said provisions of the Constitution would remain unenforceable being invalid. [Vide State of Haryana Vs. Piara Singh, AIR 1992 SC 2130; Prabhat Kumar Sharma Vs. State of U.P., (1996) 10 SCC 62; and Thomas Chandy Vs. Rajasthan Financial Corporation, 1998 (2) RLW 1356].  However, the Rules have been framed to mitigate the financial hardship of the aggrieved family, which has lost its bread-earner, as an exception to the provisions of Article 14 and 16 of the Constitution of India. It is settled principle of law that an exceptional Clause/rule has to be construed strictly. (Vide Satnam Singh Vs. Punjab & Haryana High Court, AIR 1997 SC 983; State Level Committee Vs. M/s Morgardshammar Indian Ltd., AIR 1996 SC 524; and Puri Municipal Council Vs. Indian Tabacco Co. Ltd., AIR 1996 SC 534).

(42) Since the 'Instruction 79' of Corporation and 'Clause-21' have specifically been provided in respect of relaxation in favour of relatives of deceased employee, who dies in harness, the entire instructions of any provision are to be read as a whole and since one major son, namely Arvind Mishra, of deceased Sri Mahendra Mishra has already been employed with the 'Corporation', therefore, the petitioner is to be excluded from the purview of being given appointment on the compassionate ground as the appointment on compassionate ground could be given in consonance to the provisions and statutory rules. In absence of those, the same could be governed by the executive instructions irrespective of the fact that instructions might not having statutory force, however, the same are bound to be observed by the employer as observed by the Supreme Court in Surya Kant Kadam (supra). If the rules or executive orders or instructions of the 'Corporation' prohibits some category of person for appointment on compassionate ground in view of the fact that any other member of the family is already in service, such executive instruction is valid and no direction by this Court could be issued in derogation to such instruction or circular or scheme in the light of the observations made in Steel Authority of India (supra). This Court has to desist to invoke its power in exercise of extraordinary discretionary jurisdiction under Article 226 of the Constitution to make a judicial review of specific scheme or executive instruction if the Life Insurance Corporation has modified the Clause-21 of 'Instructions, 1979' by promulgating a Circular dated 29.12.2001, in the light of which if in the peculiar facts and circumstances a dependant of Sri Ashwini Kumar Srivastava was adjusted and was given deployment by the respondent 'Corporation', such action of the respondent Corporation could not be said to be arbitrary or in derogation to the provisions of Article 14 of the Constitution. In these circumstances, I find force in the contentions and submissions of the respondent/ Corporation, therefore, no relief as prayed for can be given to the petitioner.

  In view of the above observations, writ petition is dismissed.

Dated:6.4.2004

SKT/-


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