Supreme Court of India
MUMTAZ YUNUS MULANIversusSTATE OF MAHARASHTRA & ORS.
- Citation
- 2008 INSC 381
- Decided
- 14 March 2008
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
Compassionate appointment depends on the scheme in force, and the appellant did not satisfy its criteria; therefore, no appointment is warranted.
Summary
The appellant, a widow of a peon who died in service of a charitable aided institution in 1996, applied for a compassionate appointment but was denied. She received family pension and retrial benefits, while the vacancy was filled by another employee in 1997. The High Court dismissed her writ petition, and she appealed to the Supreme Court alleging that the denial was unjust because of the pension and her family’s financial needs. The Court held that compassionate appointments are governed by the specific scheme operative at the relevant time and are not a source of recruitment; the appellant failed to meet the scheme’s income ceiling and the vacancy had already been filled. Consequently, no ground existed for exercising discretionary jurisdiction under Article 136, and the appeal was dismissed.
Issues considered
- Whether the appellant is entitled to a compassionate appointment under the scheme applicable at the time of her husband's death
- Whether receipt of family pension and other benefits disqualifies a dependent from compassionate appointment
- Whether the vacancy already filled and the lapse of time affect eligibility
- Whether the Supreme Court can entertain the appeal under Article 136 of the Constitution
Legislation cited
- Constitution of Indias. Article 136
Subjects
compassionate appointmentfamily pensionservice lawcharitable aided institutionscheme eligibilityArticle 136discretionary jurisdictionpublic sector recruitment
Judgment
[2008] 5 S.C.R. 241
-I MUMTAZ YUNUS MULANI A
v.
STATE OF MAHARASHTRA & ORS.
(Civil Appeal No. 2002 of 2008)
MARCH 14, 2008
B
"1 (S.B. SINHA AND V.S. SIRPURKAR, JJ.)
Service Law:
Appointment on compassionate ground ..:.. Husband of
applicant died while in service of a charitable and aided c
educational institution - Applicant receiving retrial benefits of
her husband and family pension - Meanwhile another person
appointed in place of deceased - Appointment declined to
applicant inview of Scheme - HELD: Right to get appointment
on compassionate ground would depend upon the Scheme D
operating in the field - On facts, High Court has recorded a
-· finding that in view of the Scheme operative at relevant point
of time applicant did not fulfill the criteria - No case made out
to exercise discretionary jurisdiction under Article 136 of the
Constitution - Constitution of India, 1950 - Article 136 - E
Government of Maharashtra Order dated 31.12.2002.
The husband of the appellant died on 6.9.1996 while
in service of the respondent, an aided educational
institution. Since the application of the appellant for
compassionate appointment was declined by the F
institution, she filed a writ petition which was dismissed
by the High Court.
In the instant appeal filed by the wife of the deceased
employee, ~twas contended for the respondent-institution
G
that the appellant had received the retrial benefits upon
death of her husband and she was also receiving the
family pension. It was further submitted that upon death
..,.... -!
of appellant's husband another person had been
241 H
242 SUPREME COURT l~EPORTS (2008) 5 S.C.R.
A appoil")ted in his place and it was not possible to remove
him from the service to acc:ommodate the appellant.
Dismissing the appeal,, the Court
HELD: 1.1 Appointment on compassionate ground
B can only be granted to tide over the sudden crisis of the
family of the deceased. The~ right to get appointment on
compassionate ground would depend upon the scheme
operating in the field. It ma)I be true that in a given case,
appointment on compassionate ground cannot be denied
c only because the dependents of the deceased had been
receiving some amount lby way of family pension.
However, it is now a well settled principle of law that
appointment on compassionate ground is not a source
of recruitment. The reason for making such a benevolent
scheme is to see that the dependents of the deceased
D
are not deprived of the means of livelihood. It only enables
the family of the deceased to get over the sudden financial -,~-
crisis. [para 8-1 O] [245-F, 2461-A, B, C]
Punjab National Bank v. Ashwini Kumar Taneja (2004) 7
E SCC 265; Smt. Sushma Gosain & Ors. v. Union of India &
Ors. (1989 (4) SCC 468; State of J & K & Ors. v. Sajad Ahmed
Mir (2006) 5 SCC 766; Umesh Kumar Nagpal v. State of
Haryana & Ors. (1994) 4 SCC 138; National Institute of
Technology & Ors. v. Niraj Kumar Singh 2007 (2) SCALE 525;
F and I. G. (Karmik) & Ors. v. Prahalad Mani Tripathi (2007) 6
sec 162 - relied on.
General Manager (D&PB) & Ors. v. Kunti Tiwary & Anr.
[{2004) 7 SCC 271; Govind Prakash Varma v. Life Insurance
Corporation of India & Ors. [(2005) 10 SCC 289 - referred to.
G
1.2 In the instant case, the respondent is a charitable
institution. It is run on Government aid. It cannot afford to
appoint persons in a post which has not been sanctioned.
It h~s not been denied or disputed that one person has ~~
already been appointed in place of the deceased husband
H
MUMTAZ YUNUS MULANI v. STATE OF MAHARASHTRA 243
& ORS. [S.B. SINHA, J.]
-I of the appellant. Besides, since appellant's husband died A
as far back as onr16.9.1996 and the vacancy was filled up
in the year 1997, appellant's case could not have been
considered on the basis of the policy decision contained
in the Government Order dated 31st December 2002. The
High Court also in its judgment noticed that the scheme B
-r which was operative at the relevant point of time was that
appointment on compassionate ground should not be
given if the monthly income exceeds Rs.5,00/-. Evidently,
the appellant did not fulfill the said criteria. Furthermore,
about 12 years have passed.Appellant's son is aged about
20 years and daughter is aged about 16 years. Therefore, c
they have become major. Keeping in view the fact situation
obtaining in the case, no case has been made out for
exercising discretionary jurisdiction under Article 136 of
the Constitution of India. [para 9,15-17] [245-G, H; 246-A;
249-G; 250-A-D] D
-· CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2002
of 2008.
From the final Judgment and Order dated 19.08.2006 of
the High Court of Judicature at Bombay in Writ Petition No. 7369 E
of 1999.
Makarand D. Adkar and Vishwajit Singh for the Appellant.
Sudhanshu S. Choudhari, Naresh Kumar and 'V.N.
Raghupathy for the Respondents.
F
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
2. Whether compassionate appointment of the appellant
is warranted in the facts and circumstances of this case is the G
question involved herein.
3. Appellant is the widow of one Yunus Dastagir Mulani.
> ....,, He was a Peon witking in the respondent, a vocational institution.
It is a public charitable trust. Appellant's husband expired on
6.9.1996. She filed an application for appointment on H
244 SUPREME COURT REPo'RTS (2008] 5 $.C.R.
A compassionate ground. As no response thereto was received, I-
she made representations.
4. Second Respondent, however, declined to give any
appointment on compassionate ground to the appellant. She
filed a writ petition before the High Court. By reason bf the
B impugned judgment the said petition has been dismissed.
..
5. Mr. Makarand D. Adkar, learned counsel appearing on
behalf of the appellant, would submit that the reason for depriving
the appellant of the right to be appointed on compassionate
c ground, being payment of family pension, the impugned
judgment cannot be sustained. It was contended that the
appellant has a large family to maintain which includes her two
grown up children. The family pension received by her being
only Rs.1, 100/- per month, the respondent should be directed
to offer appointment on compassionate ground to her even at .
0
that stage.
6. Learned counsel appearing on behalf of the respondents, -f ~
on the other hand, would contend that imm~diately upon the
death of the appellant's husband, the respondents supported
E the case of the appellant in assisting her to get the retrial benefits
of her husband. However, in the year 1997, another person
being Mr. Arun Uttereshwar having been appointed, it is not
possible to dismiss him from service so as to accommodate
the appellant.
F 7. Appellant's husband was appointed in a Class IV post.
The school is an aided institution. The State, although instructed
the respondent to appoint the appellant on compassionate
ground, it appears, such an instruction had been issued in view
of the scheme for appointment on compassionate ground as
G contained in the Government Order dated 31 51 December, 2002.
The said resolution, inter alia, reads as under :
"1) Re!garding giving appointment on compassionate
principle, the abovH scheme will be applicable to all +- . .
teachers and employees other than teachers of
H
MUMTAZ YUNUS MULANI v. STATE OF MAHARASHTRA .245
& ORS. [S.8. SINHA, J.]
~
private, primary, secondary and higher middle as A
well as training schools for teachers.
2) Rules rel,ating to absorption of relatives of employees
deceased or retired because of medical reason, are
given in the enclosed Annexure "A".
8
3) Information about application to be made for service
by the concerned relatives of employees and
documents to be submitted along with it will be as
mentioned in Annexure "8".
4) If the decision is taken prior to implementation of this c
scheme in respect of giving/refusing to give
appointment on compassionate principle, those
cases should not be taken into consideration for
review. However, those employees who are
deceased or those employees who are prematurely D
~y
retired because of incurable illness after 1 January,
2001, in case if persons from such family have applied
for appointment on compassionate principle, and if
in case their application has been turned down, such
relatives can submit their application again afresh in E
this scheme."
7. The fact that the appellant has been receiving family
pension is not in dispute. It has furthermore been averred in the
counter affidavit that she has income from the immoveable
properties in regard whereto, there is no denial or dispute. F
8. Appointment on compassionate ground can only be
granted to tide over the sudden crisis of the family of the
deceased. The right to get appointment on compassionate
ground would depend upon the scheme operating in the field.
G
[See Umesh Kumar Nagpal v. State of Haryana & Ors. [(1994)
4 SCC 138]; and National Institute of Technology & Ors. v.
Niraj Kumar Singh [2007 (2) SCALE 525]
> -+
9. The High Court in its judgment had noticed that the ·
scheme which was operative at the relevant point of time was H
246 SUPREME COURT REPORTS [2008] 5 S.C.R.
A that appointment on compas~;ionate ground should not be given
ifthe monthly income exceeds Rs.5,00/-. Evidently, the appellant
did not fulfill the said criteria. It may be true that in a given case,
appointment on compassionate ground cannot be denied only
because the dependent of tlhe deceased had been receiving
s some amount by way of family pension.
10. However, it is now a well settled principle of law that
appointment on compassionate ground 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
C 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. {see I. G (Karrnik) & Ors. v. Prahalad
Mani Tripathi [(2007) 6 SCC: 162]}.
11. In General Manager (D&PB) & Ors. v. Kunti Tiwary &
0
Anr. [(2004) 7 SCC 271], this Court laid down the law as under:
"8. This recommendation of the Indian Banks' Association
was accepted in the Scheme which was finally formulated
on 1-1-1998 where the same criteria for determining the
E financial condition of the family was laid down. It may be
noted that the express language for appointment on
compassionate grounds reads as follows :
"Appointments in the public services are made strictly
on the basis of open invitation of applications and
F merit. However, exceptions are made in favour of
dependants of employees dying in harness and
leaving their family in penury and without any means
of livelihood."
G 12. However, we may notice that in PunjabNational Bank
v. Ashwini Kumar Taneja [(2004) 7 SCC 265], this Court relying
on the decision of Smt. Sushma Gosain & Ors. v. Union of
India & Ors. [(1989 (4) SCC 468] held : .f- ~.
"9. One other thing which needs to be considered is
H whether the retiral benefits are to be taken into
MUMTAZ YUNUS MULANI v. STATE OF MAHARASHTRA 247
& ORS. [S.B. SINHA, J.]
consideration while dealing with prayer for compassionate A
~ appointment. The High Court was of the view that the same
was not to be taken into consideration. The view is contrary
to what has been held recently in GM. (D&PB) v. Kunti
Tiwary. It was categorically held that the amounts have to
be taken into consideration. In the instant case, there was B
a scheme called "Scheme for Employment of the
Dependants of the Employees Who Die While in the
Service of the Bank - Service on Compassionate
Grounds" (in short "the Scheme") operating in Appellant 1
Bank which categorically provides as follows: c
"Financial condition of the family
The dependants of an employee dying in harness
may be considered for compassionate appointment
provided the family is without sufficient means of
D
livelihood, specifically keeping in view the following:
~,.
(a) Family pension.
(b) Gratuity amount received.
(c) Employee's/Employer's contribution to PF. E
(d) Any compensation paid by the Bank or its
Welfare Fund.
(e) Proceeds of LIC policy and other investments
of the deceased employee. F
(~ income of family from other sources. .
)..
(g) Employment of other family members.
(h) Size of the family and liabilities, if any, etc.
G
It is most respectfully submitted that the Board of
Directors of the petitioner Bank had approved the
abovesaid Scheme, which was based upon the
> ~
guidelines circulated by Indian Banks' Association
to all the public sector banks which in turn are based
H
248 SUPREME COURT HEPORTS [2008] 5 S.C.R.
A upon the law laid down by this Hon'ble Court in the
case of Umesh Kumar Nagpal v. State of Haryana.
The Scheme after approval was circulated vide PDCL
6197 read with PDCL 11/99 dated 17-4-1999."
13. The question came up for consideration yet again in
B Govind Prakash Varma v. Lifo Insurance Corporation of India
>-
& Ors. [(2005) 10 SCC 289], wherein it was held :
"6.ln our view, it was wholly irrelevant for the departmental
authorities and the learned Single Judge to take into
c consideration the amount which was being paid ·as family
pension to the widow O•f the deceased (which amount,
according to the appellant, has now been reduced to half) ·
and· other amounts paid on account of terminal benefits
under the Rules. Thia scheme of compassionate
appointment is over and above whatever is admissible to
D
the legal representatives of the deceased employee as
benefits of service whic:h one gets on the death of the y •
employ,ee. Therefore, compassionate appointment cannot
be refused on the ground that any member of the family
received the amounts admissible under the Rules. So far
E as the question of gainful employment of the elder brother
is concerned, we find that it had been given out that he
has been engaged in cultivation. We hardly find that it
could be considered as gainful employment. if the family
owns a piece of land and one of the members of the family
F cultivates the field. This statement is said to have been
contradicted when it is said that the elder brother had
stated that he works as a painter. This would not necessarily
be a contradiction much less leading to the inference drawn
that he was gainfully employed somewhere as a painter.
G He might be working in his field and might casually be
getting work as painter also. Nothing has been indicated
in the enquiry report as to where he was employed as a
regular painter. The other aspects, on which the officer f-- ..
was required to make enquiries, have been conveniently
H omitted and not a whisper is found in the report submitted
MUMTAZ YUNUS MULANI v. STATE OF MAHARASHTRA 249
& ORS. [S.B. SINHA, J.]
by the officer. In the above circumstances, in our view, the A
orders passed by the High Court are not sustainable. The
respondents have wrongly refused compassionate
appointment to the appellant. The inference of gainful
employment of the elder brother could not be acted upon.
The terminal benefits received by the widow and the family B
pension could notbe taken into account."
It, however, does not appear that therein the earlier binding
precedent of this Court had been taken notice of.
14. Yet again in State of J & K & Ors. v. Sajad Ahmed Mir c
[(2006) 5 sec 766], the law was laid down in the following terms :
"11. We may also observe that when the Division Bench
of the High Court was considering the case of the applicant
holding that he had sought "compassion", the Bench ought
to have considered the larger issue as well and it is that D
such an appointment is an exception to the general rule.
-, Normally, an employmentin the Government or other public
sectors should be open to all eligible candidates who can
come forw;ud to apply and compete with each other. It is
in consonance with Article 14 of the Constitution. On the E
basis of competitive merits, an appointment should be
made to public office. This general rule should not be
departed from except where compelling circumstances
demand, such as, death of the sole breadwinner and
'
likelihood of the family suffering because of the setback. F
Once it is proved that in spite of the death of the
breadwinner, the family survived and substantial period is
over, there is no necessity to say "goodbye" to the normal
·rule of appointment and to show favour to one at the cost
of the interests of several others ignoring the mandate of
G
Article 14 of the Constitution."
15. In thfs case, the respondent is a charitable institution.
It is run on Government aid. It cannot afford to appoint persons
·4
in a post which has not been sanctioned. It has not been denied
or disputed that one Arun Uttareshwar has already been H
250 SUPREME COURT REPORTS [2008] 5 S.C.R.
A appointed in place of the decea!>ed husband of the appellant. It •
does not matter as to whether the said appointment has been
approved by the State or not inasmuch as if it had not been
done, on the basis of the policy decision contained its is
resolution dated 31 51 December 2002 the same cannot be
B considered to be of much significance, particularly, in view of
the fact that the appellant's husband died as far back as on
16.9.1996 and the vacancy had been filled up in the year 1997.
16. Furthermore, about 12 years have passed. Appellant's
son is aged about 20 years and daughter is aged about 16
C years. Therefore, they have become major. Appellant herself
would be aged about 38 years now. She cannot be given any
appointment at this age.
17. Keeping in view the fac;t situation obtaining in this case,
.D we are of the opinion that no case has been made out for
exercising our discretionary jurisdiction under Article 136 of the
Constitution of India. This appeal, therefore, is dismissed. No
costs.
R.P. Appeal dismissed.
E
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