No Retrospective Application Of A Prospective Compassionate Appointment Scheme: Allahabad High Court

The Allahabad High Court has held that compassionate appointment cannot be granted to the deceased employee's family retrospectively, if no such scheme existed on the date of death of the employee. The Court has set aside the order of a Single Judge, whereby the Insurance Company was directed to consider the claim of deceased employee's wife, even when the employee expired prior to the cut-off date of the compassionate employment scheme. 

While allowing a special appeal, the Bench comprising of Justice Saumitra Dayal Singh and Justice Vinod Diwakar has held that the grant of compassionate appointment is not a fundamental right. "In fact concession exists by way of an exception to the fundamental right to equality in employment. Being an exception, it has to be construed strictly in terms of the scheme under which that exception has been created.”

BACKGROUND FACTS

The Petitioner's husband was an Assistant in the Oriental Insurance Company Ltd. ("Insurance Company") and had died in harness on 06.09.2014. On the said date, there existed a scheme to provide Ex-gratia payment to the family of the deceased-employee. The Scheme for Compassionate Appointment which earlier existed was discontinued with effect from 01.06.2002. Thereafter, it was re-introduced on 07.08.2014 by the Ministry of Finance, Government of India. The re-introduced Scheme was applicable prospectively on deaths which may occur on or after 01.11.2014 ("Cut-off date") as per Clause 8 of the said Scheme.

On 12.12.2014, the Petitioner moved an application seeking compassionate appointment but the same was rejected as the death had taken place prior to the cut-off date. Subsequently, the Petitioner filed a writ petition before the High Court, wherein the Single Judge directed the Insurance Company to consider the Petitioner's claim and ignored the cut-off date. The Insurance Company filed a Special Appeal against the Single Judge's decision. 

HIGH COURT VERDICT

The Court observed that the Scheme for Compassionate Appointment clearly states that an exception to the rule of equality in employment may be granted only in cases where death may occur on or after 01.11.2014. "Therefore, in the first place, it never became open to the learned single-judge to confer any right to claim compassionate appointment on any person who may not have been eligible owing to that stipulation of the cut-off date."

Further, since the Petitioner had not challenged the cut-off date or Clause 8 of the Scheme in the writ petition, it was not open for the Single Judge to read the cut-off date as arbitrary. The grant of compassionate appointment is not a fundamental right. 

"In absence of any challenge raised to Clause 8 of that Scheme, it remains well settled in law that grant of compassionate appointment is not a fundamental right. In fact, that concession exists by way of an exception to the fundamental right to equality in employment. Being an exception, it has to be construed strictly in terms of the scheme under which that exception has been created....Matters of constitutional validity are to be considered only in deserving cases, where necessary facts are first pleaded and specific challenge is raised on such pleadings. The Writ Court may never entertain such a challenge or enter into that exercise in a cavalier manner. A presumption as to validity of the law pre-exists under our jurisprudence."

The Court noted that in the matter of State Bank of India Vs. Sheo Shankar Tewari, (2007) 9 SCC 571, the High Court had directed the Bank to consider the application of the deceased employee's wife under the new scheme of compassionate employment. The Supreme Court reversed the decision. The matter has been referred to a larger bench and is pending adjudication. The Court has held that the Petitioner's husband having expired prior to the cut-off date, there was no scheme for compassionate employment at that point in time and hence, no claim would succeed. 

"We are also aware that the reference made to Larger Bench of the Supreme Court in State Bank of India Vs. Sheo Shankar Tewari is still pending before that Court. However, in view of the discussion made above as to the law laid down by the Supreme Court, since the occurrence of that reference vide order dated 08.02.2012 we do not find any doubt exists as to the law to be applied in matters of compassionate appointments, in the meanwhile. For that reason as well, since on the date of occurrence of death of Sri Surendra Kumar Agrawal, on 06.9.2014, there did not exist any scheme for grant of compassionate appointment, the claim made by the petitioner would fail."

The Court has set aside the Single Judge's order. The Special Appeal has been disposed of. 

Case Title: Oriental Insurance Company Limited vs. Priyanka Agarwal 2023 LiveLaw (AB) 256

Case Citation: 2023 LiveLaw (AB) 256

Case No.: Special Appeal No. - 309 of 2019

Counsel for Appellant: Amaresh Sinha and Anubhav Sinha.

Counsel for Respondent: Vijay Prakash Jaiswal

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