GAGANDEEP Vs. STATE OF PUNJAB AND OTHERS

JUDGEMENT

(1.) Compassionate appointments are not bounty. The petitioner is a bounty seeker. His father superannuated from service of the Punjab Government in the Department of Water Supply & Sanitation, Chandigarh. He served as a Pump Operator in the Fazilka Division. He was granted extension in service for a year. He was on his second extension after retirement when he died. The benefit of extension in service is provided to retiring Punjab Government employees by according relaxation by amendment and substitution in Rule 3.26 of Punjab Civil Services Rules, Volume-1, Part-1. The petitioner's father died on October 16, 2014. On his demise the petitioner applied for providing him compassionate appointment. His case has been rejected by return of original file to the Field Office that had sent his case to the superior authority with a favourable recommendation. The rejection is based on the ground that his father was serving during the period of extension of service. A copy of the order dated March 30, 2015 has been endorsed to the petitioner by the Executive Engineer, Water Supply & Sanitation Division, Fazilka. The recommendations made by the field authority have been turned down. Today, his case rests on a specious plea that the father died in harness on October 16, 2014 and Punjab Government issued instructions on October 21, 2014 provide that dependents of deceased employees will not be considered for compassionate appointment if the employee dies during the extended period of service cannot be operated retrospectively while his case fell in the ex gratia policy formulated to accommodate compassionate appointments by relaxation of rule in appropriate cases in terms of the policy.

(2.) The instructions governing the subject of extension of service by one year post retirement have been considered by the Government and policy instructions dated October 08, 2012 in the manner provided. The benefit of promotion during the extended period of service has been granted to retiring employees if a promotional post is available and in case of promotion, an employee would be entitled to salary and fixation of pay in accordance with the prevalent service rules. Right to promotion is maintained in clause (c) of the instructions which are placed at P-8 with the petition. By Government letter dated September 20, 2013 the Governor of Punjab was pleased to accord approval for extension of another one year to employees across board to services in Group A to Group D applicable from November 01, 2013. It is argued that the instructions dated October 21, 2014 are prospective in nature and cannot take away valuable rights available prior thereto. No doubt, the normal rule is that executive instructions operate prospectively if they create rights or take them away. The instructions dated October 08, 2012 and September 20, 2013 refer to substituted Rule 3.26 of the Punjab Civil Services Rules, Volume-1, Part-1 which provide extension in service. This does not mean that those instructions postpone the event of superannuation. It was only a concession given in special circumstances obtaining in the State of Punjab in the year 2012. Merely because promotional rights are conferred during the extended period of service does not a fortiori mean that date of retirement on reaching the age of superannuation is postponed, which remains static. Retirement on superannuation remains at the age 58 years and thereafter relief is concession based and of uniform application in the manner provided. The scope of compassionate appointments are to be read in the light of instructions which govern the subject of compassionate appointments and the case law rendered on the subject by courts of law. Foremost position in law is that compassionate appointments by descent are constitutionally impermissible, see V. Sivamurthy v. State of A.P., 2008 13 SCC 730 though death of government servant or medical invalidation serves as an exception to the general rule as per the scheme of compassionate appointments based on the factum of "sudden crisis" the family is left to face. The 'spoils system' stands on unlawful footing. The law on the subject has been largely explained and laid down by the Supreme Court in numerous rulings including in R holding that compassionate appointments are not a source of recruitment and benefit can be given only to "see the family through the economic calamity." The "penury" and deprivation of "means of livelihood" tests are to be strictly applied to such appointments as they are not to be construed as distribution of largesse, cf. SBI v. Jaspal Kaur, 2007 9 SCC 571 .

(3.) In LIC of India v. Asha Ramchandra Ambekar, 1994 2 SCC 718 the Supreme Court ruled that High Courts and Tribunals cannot confer benediction impelled by sympathetic considerations to make compassionate appointments when the regulations framed in respect thereof do not contemplate such appointments. In the present case as discussed later the Punjab policies on compassionate appointments do not contemplate and never could have, the extraordinary situation created by the amendment to Rule 3.26 of Punjab Civil Services Rules, Volume-1, Part-1. What is not envisaged in executive instructions cannot be read in either by court or the administrator unless government addresses itself to the fresh subject and creates a policy which lies strictly in its domain. Compassionate appointments cannot be given routinely and especially when the event of superannuation is in hindsight by which time an employee is expected to have organized the affairs of his family within his means since the date of retirement is written on the date of appointment.