Compassionate Appointment : Supreme Court Summarises Principles

The Supreme Court, recently, held that since compassionate appointment is not a vested right. A claim for compassionate appointment by the dependent of the deceased employee may not be entertained after a lapse of a considerable period since the death. The Court opined -

“...the operation of a policy/scheme for compassionate appointment is founded on considerations of immediacy. A sense of immediacy is called for not only in the manner in which the applications are processed by the concerned authorities but also in the conduct of the applicant in pursuing his case, before the authorities and if needed before the Courts.”

A Bench comprising Justice Krishna Murari and Justice BV Nagarathna reversed an order passed by the Division Bench of the Calcutta High Court granting compassionate appointment to the deceased employees of the local authorities. It restored the order of the Single Judge rejecting the claims on two ground grounds -

1. no policy existing to govern compassionate appointment to posts under local authorities in the State of West Bengal - existence of a State policy is sine qua non for making compassionate appointments ;
2. applications for compassionate appointment, which were made in the year 2006 cannot be considered and decided in 2023, moreso when the applicants were not diligently pursuing their claims .

Factual Background

In 2006, applications were made by the heirs of the deceased employees of Burdwan Municipality in West Bengal. The Municipality directed an enquiry by a three-member committee comprising the Chairperson, the Executive Officer and the Deputy Director of Local Bodies, Burdwan Division to determine if the applicants were entitled for compassionate appointment. Subsequently, in 2013, the Chairperson forwarded a memo for approval of appointment on compassionate grounds. The proposed list of eligible candidates was forwarded to the Director of Local Bodies. However, no further action was taken by the Director of Local Bodies. Consequently, in 2015, a petition was filed before the Calcutta High Court by one of the eligible candidates, seeking appointment on compassionate grounds. The High Court asked the local bodies to take a decision within a period of ten weeks and communicate the decision to the Chairperson within a week thereafter. The Director of Local Bodies passed an order stating that they had no authority to consider the appointments under compassionate grounds in Urban Local Bodies. Assailing the said order, a writ petition was filed before the High Court. The High Court heard and disposed of a batch of petitions pertaining to the same issue. The Single Judge noted that in absence of a sanctioned scheme for compassionate appointment in the Municipality. The order of the Single Judge was challenged before a Division Bench that allowed the petition. Identifying the scheme under which the appointments can be considered, the Division Bench directed the concerned authorities to consider the applications for compassionate appointments.

Analysis by the Supreme Court

Citing a catena of judgments on compassionate appointments, which has its origin in Article 39 of the Directive Principles of State Policy, the Court summarised the well-settled principles as under -

1. That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. 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 and must be resorted to only in order to achieve the stated objectives, i.e., to enable the family of the deceased to get over the sudden financial crisis.
2. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependents of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis.
3. Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate employment cannot be claimed or offered after a lapse of time and after the crisis is over.
4. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.
5. In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source.

The Court noted that the sine qua non for allowing a claim of compassionate appointment is that the family of the deceased employee would be unable to make ends meet if one of their dependents is not employed on the compassionate ground. It observed -

“The financial condition of the family of the deceased, at the time of the death of the deceased, is the primary consideration that ought to guide the authorities’ decision in the matter.”

Noting the considerable delay in claiming/deciding the claim, the Court opined that in such cases the sense of immediacy is lost. It was of the view that in such cases the Court or the relevant authority are required to take into consideration the fact that during the period of delay, the dependents were able to sustain themselves. It observed that granting compassionate appointment in such a situation would amount to treating the claim as a matter of inheritance based on a line of succession which is contrary to the Constitution.

“Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee.”

In the facts of the present case, the Court expressed its opinion that though the application was filed in the year 2006, the eligible candidates had not pursued the matter further for a period of almost ten years. It noted that such a long delay in approaching the High Court could be regarded as a waiver of the remedy, disentitling the petitioners from relief under Article 226. The Court also condemned the authorities for their lackadaisical attitude in dealing with the claims for compassionate appointment.

“Delay on the part of the authorities of the State to decide claims for compassionate appointment would no doubt frustrate the very object of a scheme of compassionate appointment. Government officials are to act with a sense of utmost proactiveness and immediacy while deciding claims of compassionate appointment so as to ensure that the wholesome object of such a scheme is fulfilled.”

Further, the Court observed that by way of a Circular issued in 2007, the original Circular was clarified to state that the benefit of compassionate appointment would not extend to the employees of local authorities. As per trite law, the effect of clarificatory note would relate back to the date of the original notification and since the applications were made in 2006, both the Circulars would be applicable. The Court noted that -

“The existence of a policy issued by the State Government is a sine qua non for making appointments on compassionate basis The appointments must follow the stipulations made in the policy. It is therefore a no-brainer that in the absence of a policy governing compassionate appointment to posts under a local authority, no appointment could be made to such an authority on compassionate grounds.”

Case details

State of West Bengal v. Debabrata Tiwari And Ors. Etc.| 2023 LiveLaw (SC) 175    | Civil Appeal Nos. 8842-8855 of 2022 of 2023| 3rd March, 2023| Justice Krishna Murari and Justice B.V. Nagarathna

Compassionate Appointment - Principles summarized- Para 7.2

Compassionate Appointment - Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee - Para 7.5

Compassionate Appointment - Delay on the part of the authorities of the State to decide claims for compassionate appointment would no doubt frustrate the very object of a scheme of compassionate appointment. Government officials are to act with a sense of utmost proactiveness and immediacy while deciding claims of compassionate appointment so as to ensure that the wholesome object of such a scheme is fulfilled - Para 14