# Anjesh son of Late Radhey Giri v. F.C.I. & Ors

- **Citation:** (2024) 2 ILRA 814
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-15
- **Case number:** Writ - A No. 8963 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anjesh-son-of-late-radhey-giri-v-f-c-i-ors-51487
- **Pages:** 15

## Headnote

Hari Narayan Singh, Sri Santosh Kumar
Mishra

A. Compassionate Appointment - Dying in
Harness - Date of death relevant - Later
declaration of "dying cadre" irrelevant -
Scheme applicable is one in force on date
of death.
Held: The dependent's right to be considered for
compassionate appointment crystallizes on the
date of death of the employee in harness. The
subsequent declaration of the employee's cadre
as a "dying cadre" cannot extinguish that right.
The relevant scheme is the one in force on the
date of death, not one subsequently introduced
or modified.(Paras 16, 17, 19, 20, 21, 22, 25)

B.
Food
Corporation
of
India
-
Departmental Labour System - Declared
dying cadre w.e.f. 03.01.2020 - Father of
petitioner died in 2009 - Claim already
recommended by Committee in 2010 -
Petitioner's
case
must
be
considered
under scheme applicable on 21.01.2009.

Held: Since the employee died much
before the cadre was declared dying, and
the
Compassionate
Appointment
Committee
had
already
found
the
petitioner's
case
fit
in
2010,
the
declaration of the cadre as dying in 2020
cannot
defeat
petitioner's
claim.
Respondents' refusal on this ground is
unsustainable.(Paras 21, 22, 24, 25, 26)

C. Appointment on Compassionate Ground
-
Object
-
To
provide
immediate
succour to bereaved family - Economic
crisis
relevant
-
Cadre
classification
irrelevant.
Held: The essential object is to relieve sudden
financial hardship of dependents. The fact that
the deceased employee belonged to a cadre
later abolished or declared dying is wholly
irrelevant. What matters is that a scheme for
compassionate appointment was in force at the
time of death. (Paras 17, 19, 20, 26)

RESULT

Writ Petition Allowed - Mandamus
issued
to
respondents
to
consider
petitioner's
case
for
compassionate
appointment
within
six
weeks
in
accordance
with
law
and
guidance
contained in this judgment. No order as
to costs.

List of Cases cited:

## Text

_Characters 0–39,921 of 51,357. This is a partial read: ask again with offset=39921 for what follows._

814 INDIAN LAW REPORTS ALLAHABAD SERIES
forthwith to the competent Authority, who will take
appropriate steps to consider sanctioning medical
reimbursement to the petitioner, bearing in mind the
guidance in this judgment and the stand taken in
Paragraph Nos.9 and 10 of the Principal Secretary's
affidavit dated 16.07.2023. The petitioner's claim
shall be disposed of within a period of one month of
the date that it is submitted by the petitioner to the
Chief Engineer, as directed hereinabove.

17. This writ petition is allowed in
part in terms of the above orders.

18. There shall be no order as to costs.
----------
(2024) 2 ILRA 814
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ - A No. 8963 of 2023

Anjesh son of Late Radhey Giri
 ...Petitioner
Versus
F.C.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pankaj Kumar Asthana, Sri Pradeep
Kumar Srivastava

Counsel for the Respondents:
Hari Narayan Singh, Sri Santosh Kumar
Mishra

A. Compassionate Appointment - Dying in
Harness - Date of death relevant - Later
declaration of "dying cadre" irrelevant -
Scheme applicable is one in force on date
of death.
Held: The dependent's right to be considered for
compassionate appointment crystallizes on the
date of death of the employee in harness. The
subsequent declaration of the employee's cadre
as a "dying cadre" cannot extinguish that right.
The relevant scheme is the one in force on the
date of death, not one subsequently introduced
or modified.(Paras 16, 17, 19, 20, 21, 22, 25)

B.
Food
Corporation
of
India
-
Departmental Labour System - Declared
dying cadre w.e.f. 03.01.2020 - Father of
petitioner died in 2009 - Claim already
recommended by Committee in 2010 -
Petitioner's
case
must
be
considered
under scheme applicable on 21.01.2009.

Held: Since the employee died much
before the cadre was declared dying, and
the
Compassionate
Appointment
Committee
had
already
found
the
petitioner's
case
fit
in
2010,
the
declaration of the cadre as dying in 2020
cannot
defeat
petitioner's
claim.
Respondents' refusal on this ground is
unsustainable.(Paras 21, 22, 24, 25, 26)

C. Appointment on Compassionate Ground
-
Object
-
To
provide
immediate
succour to bereaved family - Economic
crisis
relevant
-
Cadre
classification
irrelevant.
Held: The essential object is to relieve sudden
financial hardship of dependents. The fact that
the deceased employee belonged to a cadre
later abolished or declared dying is wholly
irrelevant. What matters is that a scheme for
compassionate appointment was in force at the
time of death. (Paras 17, 19, 20, 26)

RESULT

Writ Petition Allowed - Mandamus
issued
to
respondents
to
consider
petitioner's
case
for
compassionate
appointment
within
six
weeks
in
accordance
with
law
and
guidance
contained in this judgment. No order as
to costs.

List of Cases cited:

1. Secretary to Government Department of
Education
(Primary)
Vs
Bheemesh
alias
Bheemappa, (2021) 20 SCC 707.

2. Court on its Own Motion Vs U.O.I., (2016) 2
Mah
LJ
647.
2 All. Anjesh son of Late Radhey Giri Vs. F.C.I. & Ors.
815
3. Food Corporation of India Workers Union Vs
U.O.I., SLP (C) No.19218 of 2016, order dated
31.07.2017 (SC).

4. Bina Devi Vs St. of H.P., 2010 SCC OnLine HP
4642.

5. Bechan Giri Vs U.O.I., 2023 SCC OnLine All
441.

6. St. of M.P.Vs Amit Shrivas, (2020) 10 SCC
496.

7. St. of M.P.Vs Ashish Awasthi, AIR Online
2021 SC 1047.

8. Indian Bank Vs Promila, (2020) 2 SCC 729.

9. N.C. Santhosh Vs St. of Karnataka, (2020) 7
SCC 617.

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner, Anjesh is a son of
the late Radhey Giri, an employee of the
Food Corporation of India. Radhey Giri
died in harness on 21.01.2009, leaving
behind him his widow, his son and two
daughters. Upon demise of Radhey Giri,
the petitioner's mother Smt. Sona Devi,
moved an application before the District
Manager, Food Corporation of India,
Allahabad,
seeking
compassionate
appointment for her son on account of the
sudden demise of her husband. The
petitioner himself made an application,
seeking compassionate appointment, to the
General Manager, Food Corporation of
India,
Lucknow
on
15.06.2009.
The
petitioner says that he is a graduate and has
earned his degree of Bachelor of Science in
the year 2014. The petitioner submitted his
claim in the prescribed format in the month
of September, 2009 before the Food
Corporation of India, District Office Agra,
a copy of which is annexed as Annexure
No.5 to the writ petition. The Regional
Manager, Food Corporation of India,
Lucknow, who is respondent No.3 to this
writ petition, by a letter dated 17th
December 2009 directed the petitioner to
get his health certificate from the Chief
Medical Officer, Allahabad. The medical
examination was done on 23.12.2009 and a
certificate of that date issued.

2. The Committee, competent to
assess
the
petitioner's
claim
for
compassionate appointment, examined his
case
and
submitted
a
report
dated
13.01.2010, opining that the family are
living in hardship and a compassionate
appointment is very necessary. It appears
that taking into account the petitioner's
claim,
the
recommendations
of
the
Committee, besides similar claims by
others, a roster was drawn up by the
District Manager, Food Corporation of
India, District Allahabad, placing the
petitioner's name at serial No.15, showing
the date of his application as 25.02.2010.
The roster serial number indicated was 14.
The roster aforesaid was forwarded by the
District Manager to the Assistant General
Manager
(Industrial
Relation),
Food
Corporation
of
India,
Lucknow
for
necessary
action
on
18.06.2013.
A
reminder dated 24.02.2014 was sent by the
District Manager, Food Corporation of
India, Allahabad to the Assistant General
Manager
(Industrial
Relation),
Food
Corporation of India, Lucknow.

3. It is the petitioner's case that vide
letter
dated
20.10.2014,
the
District
Manager, FCI, Allahabad intimated the
Assistant General Manager (Industrial
Relation-Labour), Food Corporation of
India, Lucknow about the roster position of
claims
pending
before
him
for
compassionate appointment. It is averred
that in the office of the District Manager,
Food Corporation of India, Allahabad, no
816 INDIAN LAW REPORTS ALLAHABAD SERIES
compassionate appointment was given to
any candidate. An information was secured
by one Satyapal Singh from the Manager
(IR-L), acting on behalf of the Assistant
General Manager (IR-L), Food Corporation
of India, Regional Office, Lucknow, that
there were two posts available to be filled
up on compassionate ground with the Food
Storage Depot, Naini, Allahabad. At the
same time, vide a letter dated 21.12.2016,
the Manager (IR-L) in the office of the
Assistant
General
Manager
(IR-L)
informed the petitioner that for the present,
there are no posts available to be filled up
on compassionate basis in the Corporation's
depot at Naini, Allahabad.

4. The petitioner has specifically
pleaded in Paragraph No.21 of the writ
petition that on account of his father's
sudden death in harness, the family is in
distress and sent a representation dated
27.12.2016
to
the
Chairman,
Food
Corporation of India, New Delhi, as well as
a representation dated 08.03.2017 to the
Regional Manager, Food Corporation of
India,
Lucknow,
requesting
that
the
petitioner's
case
for
compassionate
appointment be considered. The petitioner
then received a memo dated 11.01.2017
from the Assistant General Manager (IRL), Food Corporation of India, Lucknow,
informing him that for every depot at the
depot level, a roster had been prepared for
compassionate appointment. Out of the
available vacancies, 5% are set apart for
compassionate
appointment,
to
which
appointments are made according to the
roster. The letter also says that at the Naini
depot of the Corporation at Allahabad, the
petitioner's name stands at the 14th place of
the roster. It is also said in the memo that in
the entire State, a roster for compassionate
appointments for the DLS/ DPS labourers
was being drawn up. After the process was
over, the compassionate appointments
would be made according to the new roster
against the available vacancies.

5. The respondent General Manager
(IR-L) reiterated his stand about the
petitioner's roster position at the FSD,
Allahabad by his memo dated 23.03.2017.
The petitioner again received a memo dated
09.08.2017 from the Regional Office of the
Food Corporation of India at Lucknow,
saying that there was a 5% ceiling on the
total number of available posts against
which compassionate appointment could be
made, and that considering the petitioner's
roster position, there was no post available
for him. The petitioner then represented the
matter further to the General Manager (IR)
on 03.04.2023, sending the communication
by registered post with a request that his
case had already been recommended by the
Committee, but no action taken, which may
now be considered. Finding inaction and
the
stand
of
the
respondent,
Food
Corporation of India (for short, 'the
Corporation'), to be destructive of the
purpose of compassionate appointment, the
petitioner instituted the present writ petition
on 16.05.2023, praying that a mandamus be
issued, commanding the respondents to
appoint the petitioner on compassionate
grounds.

6. In the short counter affidavit
that was filed in Court on 12.07.2023, a
stand was taken that the Departmental
Labour System has been abolished, of
which the deceased Radhey Giri was a
member.

7.

This
Court
required
the
respondents to file a detailed counter
affidavit,
which
was
filed
on
19.07.2023. A rejoinder was filed to it
on 30.07.2023.
2 All. Anjesh son of Late Radhey Giri Vs. F.C.I. & Ors.
817

8. The respondents, Corporation have
taken
a
stand
that
compassionate
appointment in their establishment is
governed
by
the
'Scheme
for
Compassionate Appointment' enforced by
the Government of India, Ministry of
Personnel, Public Grievances and Pensions
(Department of Personnel & Training) vide
memorandum,
bearing
F
No.
14014/02/2012--Estt.
(D)
dated
16th
January, 2013. This office memorandum
has been issued by an Under Secretary to
the Government of India. The Scheme for
Compassionate Appointment (for short, 'the
Scheme')
has
been
pleaded
by
the
respondent
Corporation
to
say
that
compassionate appointments can be made
up to a maximum of 5% of the available
vacancies, falling under direct recruitment
quota, in any Group-C posts. The position
in this regard will be considered in moreful
detail with reference to the Scheme during
the course of this judgment.

9. In Paragraph No.5 of the short
counter affidavit, it is said that the Nagpur
Bench of the Bombay High Court had
taken cognizance of a news item, published
in the Times of India, that the Departmental
Labour System workers were being paid
salary, running into more than Rs.4 lacs a
month. The public interest litigation, which
was assigned PIL No.84 of 2014 [Court on
its Own Motion v. Union of India and
others, (2016) 2 Mah LJ 647], was
disposed of by the Nagpur Bench of the
Bombay High Court vide judgment dated
20.11.2015, issuing a slew of directions to
the Government of India to consider
phasing out the Departmental Labour
System in order to spare the public
exchequer of money wasted on the system,
that could 'be utilized for better purposes',
to borrow the words of their Lordships. The
following directions were issued by the
Division Bench to the Government of
India:

"(i) The Government of India is
directed to decide the representation made
by the Food Corporation of India for grant
of exemption under the provisions of
Section 31 of the said Act within a period
of one month from today, in the light of
observations made by us hereinabove
within a period of one month from today.

(ii) The Government of India
shall
decide
the
issue
regarding
denotification of the depots of the Food
Corporation of India, in respect of which
notification is issued u/s.10 of the said Act,
within a period of six months from today,
in the light of observations made by us
hereinabove and the report of M/s.Deloitt
Consultancy and the report of High Level
Committee appointed by the Government
of India itself.

(iii)
We
clarify
that
the
respondent/Food
Corporation
of
India
would be entitled to transfer the services of
departmental labourers from one depot to
another subject to protecting their salary
and all other service conditions.

(iv) We also clarify that the
respondent/ Corporation would be at liberty
to implement its policy of change in the
Scheme of incentives.
 (v) The Government of India
shall also take a decision regarding
abolition
of
system
of
departmental
labourers in a phased manner or absorbing
their services in other establishments as
recommended
by
the
High
Level
Committee."

10. A petition for special leave to
appeal bearing SLP(C) No.19218 of 2016,
Food Corporation of India Workers Union
v. Union of India, was preferred against the
judgment, about which it is said in
818 INDIAN LAW REPORTS ALLAHABAD SERIES
Paragraph No.6 of the short counter
affidavit that it was dismissed by the
Supreme
Court
vide
order
dated
31.07.2017. It is further on pleaded in
Paragraph No.7 of the short counter
affidavit that in compliance with the orders
of the Bombay High Court, the Ministry of
Labour & Employment, Government of
India have granted exemption to the
Corporation from the applicability of the
prohibitory
notifications
issued
under
Section 10 of the Contract Labour
(Regulation and Abolition) Act, 1970, and,
in consequence, permitting the Corporation
to engage contract labour in the notified
depots. The exemption notification is
renewed by the Government after every
two years, as the pleading goes.

11. It is further said that acting on the
judgment of the Bombay High Court, last
mentioned, the Ministry of Labour &
Employment are actively considering denotification of the notified depots of the
Corporation. It is also pleaded that in
compliance with the judgment of the
Bombay High Court, last referred, the
Ministry of Consumer Affairs, Food and
Public Distribution, Government of India
vide O.M. No.18013/2/2018-FC-3 dated
03.01.2020,
have
declared
the
Departmental Labour System a dying
cadre. The Corporation Headquarters had
communicated the said decision to the
Field
Officers
vide
circular
dated
08.01.2020, clearly saying that there shall
be no further employment under the
Departmental Labour System.

12. In Paragraph No.10 of the short
counter affidavit, a specific case has been
pleaded to the effect that in view of
declaration of the Departmental Labour
System, a dying cadre, appointment of
family members of a deceased employee,
who
was
part
of
that
system,
on
compassionate ground, has been placed in
abeyance vide Corporation Headquarters
circular dated 28.09.2020. It is then said
that vide Circular No. IR(L)/4(9)/2021/
dated 28.07.2021, it was clarified by the
Corporation
Headquarters
that
while
appointment on compassionate grounds to
dependents of deceased employees, serving
under the Departmental Labour System,
would continue to be in abeyance, but
appointment on compassionate basis in
regard to Direct Payment System workers
may be considered as per existing policy.
About the petitioner's father, it is said that
he was employed under the Departmental
Labour System and died in the year 2009.
The petitioner's name was registered in the
compassionate appointment roster at the
Divisional Office, Allahabad. However, the
petitioner could not be appointed for want
of vacancies. It is then said that as the
Departmental Labour System has been
declared a dying cadre, there exists no
vacancy in the said system. The workers,
already inducted in the said system, are
functioning on supernumerary posts and the
system will die out or vanish with the
retirement, death or resignation of the
existing workers in course of time. The
Board of Directors of the Corporation have
already approved the voluntary retirement
scheme for workers in the Departmental
Labour System, and the same will be
implemented immediately after receipt of
approval of the Government of India. It is
pleaded that there is no scope for inducting
or appointing any new worker under the
said system, since such an appointment
would mean that the system would never
die out and the object of declaring it a
dying cadre defeated.

13. The stand further taken in
Paragraph No.14 of the short counter
2 All. Anjesh son of Late Radhey Giri Vs. F.C.I. & Ors.
819
affidavit is that the Corporation are
examining the possibility of considering the
pending
applications
of
the
family
members
of
deceased
employees,
functioning under the Departmental Labour
System as on 03.01.2020 under the 'Direct
Payment System' or the 'No Work No Pay
System', subject to fulfillment of necessary
conditions
under
the
policy
for
compassionate
appointment.
The
said
system is also a regular labour system,
which is current in the Corporation, and not
being phased out.

14.

In
the
counter
affidavit
subsequently filed, the basic stand taken is
the same as that in the short counter
affidavit, apart from certain pleadings in
answer to the writ petition, of which due
note would be taken during course of this
judgment.

15. Heard Mr. Pradeep Kumar
Srivastava, Advocate, holding brief of Mr.
Pankaj Kumar Asthana, learned Counsel
for the petitioner and Mr. S. K. Mishra,
learned Counsel appearing on behalf of the
respondents.

16. It is submitted by the learned
Counsel
for
the
petitioner
that
compassionate appointment had to be
considered for him by the Corporation,
according to the rules or the scheme in
force when his father passed away, and not
the scheme or rules that have been later on
introduced. He has placed reliance for the
purpose on the decision of the Supreme
Court
in
Secretary to
Government
Department of Education (Primary) and
others v. Bheemesh alias Bheemappa,
(2021) 20 SCC 707, where it has been held
in the context of the date of applicability of
a scheme for compassionate appointment or
a modified scheme, that it ought to apply
with reference to the date of death of the
employee in harness and not any other date,
like the date when the dependent moves for
consideration
or
the
application
is
considered. It is also argued by the learned
Counsel for the petitioner, Mr. Pradeep
Kumar Srivastava, that the fact that the
deceased employee was a member of the
Departmental Labour System, which has
now been declared a dying cadre, is not at
all relevant to the consideration of his right
to compassionate appointment. He submits
that the petitioner's case for compassionate
appointment has to be considered against
one or the other post in the establishment of
the
Corporation,
suitable
to
his
qualification that is part of a living cadre.
In the submission of the learned Counsel
for the petitioner, it is misconceived on the
respondents' part to relate or identify the
petitioner's
claim
for
compassionate
appointment to the cadre to which his
father belonged and then refuse to consider
it by saying that his father's cadre is a dying
one.

17. The object of compassionate
appointment is to bring immediate relief to
the dependent family members of an
employee, who dies in harness. The fact
that the deceased belonged to a cadre,
which was declared dying, even on the date
of his demise, would not affect the rights of
the dependents under the Dying in Harness
Rules or the scheme in force in the
establishment
to
seek
compassionate
appointment, because the purpose of such
an appointment is quite unreferable to the
fact of abolition of the deceased employee's
cadre.

18. Mr. S.K. Mishra, learned Counsel
for the respondents, on the other hand, has
refuted the submissions advanced by the
learned Counsel for the petitioner and
820 INDIAN LAW REPORTS ALLAHABAD SERIES
submits that his case was considered
according to the scheme after his father's
demise.
He
was
placed
on
the
compassionate appointment roster, but
within the ceiling limit, no posts were
available to appoint him. Later on, the
Departmental Labour System, to which the
petitioner's father belonged, has been
declared a dying cadre, and under the
schemes subsequently declared, dependents
of employees of that cadre, who died in
harness at whatever time, have limited
avenues of consideration for appointment
on compassionate basis. The petitioner can
only be considered, according to the
Corporation's policy for compassionate
appointment, under the Direct Payment
System as he is the dependent of a
deceased employee of the Departmental
Labour System, whose claim was there on
03.01.2020.

19. Upon hearing learned Counsel for
the parties, this Court thinks that there is no
force in the stand taken by the respondents
that because the Departmental Labour
System, of which the petitioner's father was
a member, has now been declared a dying
cadre,
the
petitioner's
case
for
compassionate appointment cannot be
considered for that reason alone. The fact
that the employee, whose dependent claims
appointment, belongs to a dying cadre, is
completely irrelevant to the object of
compassionate appointment, provided there
is in force a scheme for such appointment
on the date of death of the employee in
harness. Why this is so, can be understood
like this. The purpose of compassionate
appointment is to extend an immediate
helping hand to members of a deceased
employee's family, who passes away in
harness, plunging them into an unforeseen
economic crisis. It is a mechanism to
enable the survivors to swim through the
tragedy.

20. The other principle of equal
force is that compassionate appointment is
not an inherent right, but the creature of a
statutory rule or a scheme framed for the
purpose and enforced in the employer's
establishment. Now, if the deceased on the
date of his demise in harness was the
holder of a post that was already a dying
cadre, the deceased would have certainly
survived the abolition of the cadre until the
time of his retirement, resignation from
service or termination of employment in
some other manner known to law. He
would, while a member of a dying cadre,
stay in service until the determination of his
employment. He would continue to support
his dependent family members until he
exited employment. Therefore, the fact that
an employee belonged to a dying cadre,
when he died in harness, is quite irrelevant
to
his
dependents'
right
to
seek
compassionate appointment, provided, of
course, it is there under a scheme framed
for the purpose or rules. In this connection,
reference may be made to a Bench decision
of the Himachal Pradesh in Bina Devi v.
State of H.P. and another, 2010 SCC
OnLine HP 4642. In Bina Devi (supra),
V.K. Ahuja, J., speaking for the Division
Bench, observed:

"2. It appears that the petitioner is
on the third round of litigation. The
application was rejected on the only ground
that the husband of the petitioner was an
employee of Nahan Foundry and the same
had been declared as a dying cadre. For one
thing, it has to be seen that policy regarding
compassionate appointment as promulgated
by the government on 18th January, 1990
and
clarified
thereafter
on
several
occasions, does not make any difference as
2 All. Anjesh son of Late Radhey Giri Vs. F.C.I. & Ors.
821
to whether a government servant is in a
dying cadre or not. The only expression
used in the policy is 'government servant'.
There is no dispute that the husband of the
petitioner was a government servant at the
time of his death. In other words, it is a
case of an employee dying while in
government service. That apart, it is seen
from Annexure P-8, order, dated 23rd
December, 1989 in the matter of taking
over of Nahan Foundry that "The employee
taken over from erstwhile Nahan Foundry
will be integrated in the cadre of
corresponding categories of employees of
PWD/IPH subject to provision of para-7."

21. There is another feature added to
this case, different from one where a
member of a cadre, that is declared dying,
dies in harness, leaving behind an eligible
dependent for compassionate appointment
under a scheme or rule in force in the
establishment. The feature in this case is
that when the petitioner's father died, that is
to say, on 21.01.2009, the Departmental
Labour System was not at all a dying cadre.
It was declared so by the Government of
India O.M. dated 03.01.2020 pursuant to
the judgment of the Bombay High Court in
Court on its Own Motion (supra). The
petitioner
had
claimed
compassionate
appointment promptly and his case was
found
fit
by
the
Compassionate
Appointment Committee by the report
dated 13.01.2010. This was a time when
the Departmental Labour System was not at
all a dying cadre. The petitioner's right, if it
can be called that, to be considered for
compassionate
appointment,
would,
therefore, crystallize on the date of his
father's demise and the date when he was
found fit to be appointed on compassionate
ground by the Compassionate Appointment
Committee. The supervening declaration of
the Departmental Labour System, under
which the petitioner's father was working
when he died, would, therefore, not affect
the petitioner's right at all. Therefore, the
contention put forward on behalf of the
Corporation refuting the petitioner's claim
for
consideration
of
appointment
on
compassionate basis on ground that his
father belonged to the Departmental Labour
System, later on declared a dying cadre, has
to be rejected on double count.

22. Now, the other question that
particularly survives for consideration is: If
the petitioner's case is to be considered
according to the Scheme, that was in force
w.e.f. 16th January, 2013, or one that is
now in force in accordance with the
Corporation Headquarters Circular dated
28.07.2021, which the respondents say
would apply to the petitioner's case; or, the
petitioner's case is to be considered
according to the scheme that was in force
when his father died in harness? There is
absolutely nothing said by parties about the
Scheme that was in force governing
compassionate appointment prior to the one
dated 16th January, 2013. At the same
time, it is not the respondents' case either
that
there
was
no
scheme
for
compassionate appointment in force at the
time when the petitioner's father died. The
question whether the dependent of an
employee, who dies in harness, would be
entitled to have his case considered
according to the scheme or rules in force on
the date when the employee died, or
according to the scheme or rules that are in
force at a later date, say when the
application for appointment is moved by
the dependent, or when it actually comes
up for consideration by the competent
Authority, fell for consideration of this
Court in Bechan Giri v. Union of India
and others, 2023 SCC OnLine All 441. In
Bechan Giri (supra), this Court had the
822 INDIAN LAW REPORTS ALLAHABAD SERIES
guidance
of
the
Supreme
Court
in
Bheemesh alias Bheemappa (supra),
which has clinched this issue. It would
nevertheless be of profit to refer to Bechan
Giri, where I held:

"24. The issue whether the claim
of a dependent under the dying in harness
rules would be considered in accordance
with the Rule or the Scheme in force on the
date of death of the employee in harness or
at a subsequent date, like the one when a
dependent makes an application, or the
application comes up for consideration,
was the subject matter of very elaborate
guidance by their Lordships of the Supreme
Court in Secretary to Govt. Department of
Education (Primary) v. Bheemesh alias
Bheemappa, AIR 2022 SC 402. The facts
giving rise to what was held in Bheemesh
alias Bheemappa (supra) may best be
recounted in their Lordships' words, which
read:

"8. Admittedly, the appointment
on compassionate grounds in the State of
Karnataka is governed by a set of Rules
known
as
Karnataka
Civil
Services
(Appointment on Compassionate grounds)
Rules, 1996, issued in exercise of the
powers conferred by Section 3(1) read with
Section 8 of the Karnataka State Civil
Services Act, 1978. The Rules as they
stood, on the date on which the sister of the
respondent died in harness, did not include
an unmarried brother, within the definition
of the expression "dependant of a deceased
Government servant" under Rule 2(1)(a) of
the said Rules vis-a-vis a deceased female
unmarried Government servant. But it was
only by way of an amendment proposed
under a draft Notification dated 20.06.2012
which was given effect under the final
Notification bearing No. DPAR 55 SCA
2012, Bangalore dated 11.07.2012 that an
unmarried brother of a deceased female
unmarried
Government
servant
was
included within the definition. There is no
dispute about the fact that the sister of the
respondent died as an unmarried female
Government servant, but on 8.12.2010,
before the amendment was made to the
Rules."

25.
In
answering
the
issue
whether the amended rules that came into
force after the death of the government
servant involved, would have retrospective
operation to enure for the benefit of the
dependent
unmarried
brother
of
the
deceased unmarried female government
servant in that case, or the amendment
would apply prospectively with effect from
the date when it came into force, it was
held by their Lordships:

"9. To hold that the amendment
will have retrospective application, the
High Court as well as the Tribunal relied
upon a Judgment of the Division Bench of
the High Court of Karnataka in State of
Karnataka v. Akkamahadevamma, decided
on 18.11.2010 in Writ Petition Nos. 20914
of 2010 etc. : (Reported in (2011) 2 AIR
Kant R 118). But it should be pointed out at
the outset that the Judgment of the High
Court in Akkamahadevamma arose out of
an amendment to the Karnataka Civil
Services
(General
Recruitment)
(57th
Amendment)
Rules,
2000.
By
the
Amendment made on 30.03.2010 to the
said
Rules,
grandson,
unmarried
granddaughter, daughter in law, widowed
daughter and widowed granddaughter were
included within the definition of the
expression "members of the family" under
Explanation-2
of
Rule
9.
But
the
amendment
so
made
on
30.03.2010
expanding the definition of the expression
"members of the family" was triggered by
an Order of the Tribunal which held the
unamended rule to be unconstitutional. It is
in that context that the amendment made on
2 All. Anjesh son of Late Radhey Giri Vs. F.C.I. & Ors.
823
30.03.2010
to
the
Rules
issued
on
23.11.2000 was held by the High Court to
be retrospective in nature. It must also be
remembered that the expanded definition
was with respect to project displaced
persons. The right conferred upon a project
displaced person stands on a different
footing from the entitlement of a person to
seek
appointment
on
compassionate
grounds. In any case an amendment
brought forth, on the basis of a Judgment of
a Court or Tribunal, holding the exclusion
of certain categories of persons to be
violative of Articles 14 and 16 of the
Constitution, may receive an interpretation
such as the one proposed by the High Court
in Akkamahadevamma. But the same may
not be applicable to amendments of the
nature that we are concerned with in this
case.

10. x x x

11. Be that as it may, Sh. Jayanth
Muthraj, learned senior counsel appearing
for the respondent pleaded that there are
two lines of Judgments of this Court, one
taking the view that the Rules/Scheme in
force on the date of death of the
Government servant would govern the field
and the other holding that the Rules/scheme
in force on the date of consideration of the
claim would govern the field. Unable to
reconcile this conflict, a two Member
Bench of this Court, by its Order dated
08.02.2019 in State Bank of India v. Sheo
Shankar Tewari1, has referred the matter
for consideration by a larger Bench. Sh.
Jayanth Muthraj, learned senior counsel
therefore made a request that the present
appeal may either be placed along with the
reference or await a decision on the above
reference.

12. But we do not consider it
necessary to do so. It is no doubt true that
there are, as contended by the learned
senior Counsel for the respondent, two
lines of decisions rendered by Benches of
equal strength. But the apparent conflict
between those two lines of decisions, was
on account of the difference between an
amendment by which an existing benefit
was
withdrawn
or
diluted
and
an
amendment by which the existing benefit
was enhanced. The interpretation adopted
by this Court varied depending upon the
nature of the amendment. This can be seen
by presenting the decisions referred to by
the
learned
senior
counsel
for
the
respondent in a tabular column as follows:

26.
There
is
an
elaborate
tabulated reference to six cases decided by
the Supreme Court, where seemingly
varying views have been expressed on the
issue whether the scheme in force at the
time of death of the deceased employee
would
apply
for
the
purpose
of
consideration of the dependent's claim for
compassionate
appointment
or
the
Rule/Scheme
in
force
subsequently
enforced, after the death of the government
servant, at the time when the application
for compassionate appointment is made or
comes up for consideration. For brevity's
sake, the table set out in Paragraph No. 12
of
the
report
in
Bheemesh
alias
Bheemappa is not being quoted.

27. Two other cases after the
tabulated analysis have been considered in
Bheemesh alias Bheemappa, where it is
observed:

"13. Apart from the aforesaid
decisions, our attention was also drawn to
the decision of the three member Bench in
State of Madhya Pradesh v. Amit Shrivas2.
But that case arose out of a claim made by
the dependant of a deceased Government
servant, who was originally appointed on a
work charged establishment and who later
claimed to have become a permanent
employee. The Court went into the
distinction between an employee with a
824 INDIAN LAW REPORTS ALLAHABAD SERIES
permanent status and an employee with a
regular status. Despite the claim of the
dependant that his father had become a
permanent employee, this Court held in that
case that as per the policy prevailing on the
date of death, a work charged/contingency
fund employee
was
not
entitled
to
compassionate appointment. While holding
so, the Bench reiterated the opinion in
Indian Bank v. Promila.

14. The aforesaid decision in
Amit Shrivas (supra) was followed by a two
member Bench of this Court in the yet to be
reported decision in the State of Madhya
Pradesh v. Ashish Awasthi decided on
18.11.2021 : (Reported in AIR OnLine
2021 SC 1047)."

28.
After
noticing
these
seemingly divergent opinions on the issue,
the Court has proceeded to observe in
Bheemesh alias Bheemappa:

"15. Let us now come to the
reference pending before the larger Bench.
In State Bank of India v. Sheo Shankar
Tewari (supra), a two member Bench of
this Court noted the apparent conflict
between State Bank of India v. Raj Kumar
and MGB Gramin Bank on the one hand
and Canara Bank v. M. Mahesh Kumar on
the other hand and referred the matter for
the consideration of a larger Bench. The
order of reference to a larger Bench was
actually dated 8.02.2019.

16. It was only after the aforesaid
reference to a larger Bench that this Court
decided at least four cases, respectively in
(i) Indian Bank v. Promila; (ii) N.C.
Santhosh v. State of Karnataka; (iii) State
of Madhya Pradesh v. Amit Shrivas; and
(iv) State of Madhya Pradesh v. Ashish
Awasthi. Out of these four decisions, N.C.
Santosh (supra) was by a three member
Bench, which actually took note of the
reference pending before the larger Bench.

17. Keeping the above in mind, if
we critically analyse the way in which this
Court has proceeded to interpret the
applicability of a new or modified Scheme
that comes into force after the death of the
employee, we may notice an interesting
feature. In cases where the benefit under
the existing Scheme was taken away or
substituted with a lesser benefit, this Court
directed the application of the new Scheme.
But in cases where the benefits under an
existing Scheme were enlarged by a
modified Scheme after the death of the
employee, this Court applied only the
Scheme that was in force on the date of
death
of
the
employee.
This
is
fundamentally
due
to
the
fact
that
compassionate appointment was always
considered to be an exception to the normal
method of recruitment and perhaps looked
down upon with lesser compassion for the
individual and greater concern for the rule
of law.

18. If compassionate appointment
is one of the conditions of service and is
made automatic upon the death of an
employee in harness without any kind of
scrutiny whatsoever, the same would be
treated as a vested right in law. But it is not
so. Appointment on compassionate grounds
is not automatic, but subject to strict
scrutiny of various parameters including
the financial position of the family, the
economic dependence of the family upon
the deceased employee and the avocation
of the other members of the family.
Therefore, no one can claim to have a
vested
right
for
appointment
on
compassionate grounds. This is why some
of the decisions which we have tabulated
above appear to have interpreted the
applicability
of
revised
Schemes
differently, leading to conflict of opinion.
Though there is a conflict as to whether the
Scheme in force on the date of death of the
2 All. Anjesh son of Late Radhey Giri Vs. F.C.I. & Ors.
825
employee would apply or the Scheme in
force on the date of consideration of the
application
of
appointment
on
compassionate grounds would apply, there
is certainly no conflict about the underlying
concern reflected in the above decisions.
Wherever the modified Schemes diluted the
existing benefits, this Court applied those
benefits,
but
wherever
the
modified
Scheme granted larger benefits, the old
Scheme was made applicable.

19. The important aspect about
the conflict of opinion is that it revolves
around two dates, namely, (i) date of death
of the employee; and (ii) date of
consideration of the application of the
dependant. Out of these two dates, only
one, namely, the date of death alone is a
fixed factor that does not change. The next
date namely the date of consideration of the
claim, is something that depends upon
many variables such as the date of filing of
application, the date of attaining of
majority of the claimant and the date on
which the file is put up to the competent
authority. There is no principle of statutory
interpretation which permits a decision on
the applicability of a rule, to be based upon
an indeterminate or variable factor. Let us
take for instance a hypothetical case where
2 Government servants die in harness on
January 01, 2020. Let us assume that the
dependants
of
these
2
deceased
Government servants make applications for
appointment on 2 different dates say
29.05.2020 and 02.06.2020 and a modified
Scheme comes into force on June 01, 2020.
If the date of consideration of the claim is
taken to be the criteria for determining
whether the modified Scheme applies or
not, it will lead to two different results, one
in respect of the person who made the
application before June 1, 2020 and another
in respect of the person who applied after
June 01, 2020. In other words, if two
employees die on the same date and the
dependants of those employees apply on
two different dates, one before the modified
Scheme comes into force and another
thereafter, they will come in for differential
treatment if the date of application and the
date of consideration of the same are taken
to be the deciding factor.