1. Whether compassionate appointment under a scheme is permissible if another dependent is already in service. (Para 3 )
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2000 Supreme(SC) 1726
SUPREME COURT OF INDIA
B.N.Agrawal : G.B.Pattanaik
S.A.I.L.
Versus
Awadhesh Singh
Case No. : 6456 , 6457 , 6458 , 6459 of 1998
Date of Decision : 11/2/00
Compassionate appointment is a welfare measure to prevent destitution. If one dependent of a deceased employee is already in service, other dependents are not entitled to priority appointment, as the primary objective of ensuring the family's financial survival is already met.
Headnote:(A) Service Law - Compassionate Appointment - Eligibility - Appointment to a dependent upon the death of an employee - Whether such appointment is permissible if another dependent of the deceased is already in service - The scheme for compassionate appointment evolved by an employer is not a statutory scheme but a welfare measure designed to ensure that dependents are not left destitute - If one dependent of the deceased is already in service, the fundamental purpose of the scheme is fulfilled and other dependents cannot claim appointment on a priority basis. (Paras 3, 6)
(B) Recovery of Salary - In cases where compassionate appointments have already been granted despite another dependent being in service, the employer is not entitled to recover the salary paid to such appointees. (Para 8)
Facts of the case:
An employer provided a Memorandum of Agreement for compassionate appointment to one of the direct dependents of an employee in the event of death or permanent total disablement. A subsequent clarification letter issued by the employer specified that if any dependent (spouse or children) was already employed, no other dependent would be eligible for appointment under the scheme. The High Court held that the presence of one dependent in service would not debar other dependents from claiming compassionate appointment, a view which was subsequently challenged before the Supreme Court.
Findings of Court:
The court observed that the purpose of the scheme is to provide immediate support to avoid destitution of the family. If one dependent is already employed, the family is supported, and the priority basis for such appointment is not applicable. The court found the High Court's interpretation unsustainable as it would frustrate the very purpose of the welfare scheme.
Issues: Whether a dependent of a deceased employee can claim an appointment on compassionate grounds when another dependent is already in service.
Ratio Decidendi: The court ruled that since the compassionate appointment scheme is a non-statutory measure intended to prevent family members from becoming destitutes, the eligibility for such appointment is negated if another dependent is already employed, as the objective of providing financial sustenance is achieved.
Result: The impugned judgments of the High Court stand set aside and these appeals are allowed.
Legal Category Hierarchy
Table of Contents
2. Employer argued bar if dependent employed; respondent argued no bar for other dependents under compassionate scheme. (Para 4 , 5 )
3. Scheme's purpose is to prevent destitution; appointment cannot be claimed if another dependent is already employed. (Para 6 )
4. Compassionate appointment under employer's non-statutory scheme not available if another dependent is already in service. (Para 6 , 7 )
5. Appeals allowed; impugned High Court judgments set aside; no recovery of salary from existing appointees. (Para 7 , 8 )
6. Can a dependent claim compassionate appointment under an employer's scheme if another dependent is already employed?
No, the scheme's purpose to prevent destitution is frustrated if one dependent is already employed, barring further claims. (Para 6 )
7. Is a non-statutory compassionate appointment scheme enforceable under Article 326 of the Constitution?
No, a non-statutory scheme like the Memorandum of Agreement is unenforceable under Article 326. (Para 6 )
8. Can an employer recover salary paid to a compassionate appointee if the appointment is later set aside?
No, the court clarified no recovery of salary paid to such appointees would be made. (Para 8 )
JUDGMENT
G.B.PATTANAIK, J.
(1) LEAVE granted in Special Leave Petition Nos. 6580-6581/1999.
(2) THE respondents in C.A. Nos. 3797-3800/1999 have been set ex-parte as they chose not to appear notwithstanding due service of notice. An I. A. has been filed on their behalf which is taken on Board. The order treating them ex-parte is set aside and they are brought on record.
(3) IN this batch of appeals the short question that arises for our consideration is whether the Memorandum of Agreement with the National Joint Committee for the Steel Industry (for short "Memorandum of Agreement") for compassionate appointment evolved by the Steel Authority of India Ltd. (for short "SAIL") permits for an appointment on the death of an employee to one of the dependents of the deceased employee if some other dependent of the deceased employee 1&. already in service.
(4) UNDER the Memorandum of Agreement it appears the language used is "in case of death or permanent total disablement due to accident arising out of and in course of employment, employment to one of his/her direct dependents (will be provided". The SAIL, on the basis of some agreement, issued a letter on 14/8/1984, clarifying the petition that if any of the dependents (wife/husband or children) of the employee is already employed, no other - dependent would be employed in case of death of the employee under such Memorandum of Agreement. The High Court appears to have taken the view that the language used in Clause 3.4.5.1 of the Memorandum of Agreement is not susceptible of that construction and therefore even if the dependent of the deceased may be in service that would not debar any other dependent from claiming such compassionate appointment and would require the employer to give such appointment. SAIL therefore assails the aforesaid view of the High Court in this batch of appeals.
(5) IT is contended by the counsel appearing for the SAIL that the provision referred to in the Memorandum of Agreement read with the circular letter of the SAIL dated 14/8/1984 makes it explicitly clear that the question of compassionate appointment would arise if none of the dependents of the deceased is already in service. The learned counsel appearing for the respondents, on the other hand, contended that if any of the dependents is already in service on his own merit, that should not be a bar for seeking relief by other dependents of the deceased under the compassionate employment scheme and as such the impugned decision of the High Court would remain unassailable.
(6) HAVING regard to the submissions made by the learned counsel for both parties, the only question that crops up for our consideration is whether under the Memorandum of Agreement it is permissible for a dependent of the deceased to claim an appointment on compassionate ground, even when some other dependent of the deceased is already in service. Be it stated that the Memorandum of Agreement in question is not a statutory scheme and therefore would be unenforceable in an application under Article 326 of the Constitution of India. The Memorandum of Agreement for appointment on compassionate ground had been evolved by the employer so that on the sudden death of an employee his dependents would not be on the roads as destitutes and can maintain themselves if an appointment is given to any one of the dependents of the deceased. Such a scheme cannot at all be conceived if some other dependent of the deceased is already in service. i The very purpose for which such scheme had been evolved would get frustrated if a claim on priority basis is made by a dependent of the deceased notwithstanding the fact that other dependent of the deceased is already in service. i In this view of the matter we are unable to sustain the decision of the Patna High Court in the impugned judgments. It may be stated that a Bench of this Court has already taken a similar view in the case of S. Mohan v. Government
