(1.) Ordinarily recruitment to the public service is made by direct appointment or by promotion or by transfer. For making direct appointment to the service, the employer is under an obligation to adopt a method which is consistent with the doctrine of equality embodied in Articles 14 and 16 of the Constitution. This necessarily implies consideration of the competing claim of all eligible persons. In Union of India and others Vs. N. Hargopal and others, AIR 1987 SC 1227 , the Supreme Court held that recruitment to the public service by sending requisitions to the Court held that recruitment to the public service by sending requisitions to the employment exchange was sufficient to meet the requirement .of the equality clause. However, a slightly different view has been taken in The Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and others, JT 1996(9) SC 638. As per the latest pronouncement of the Supreme Court sending of requisition to the employment exchange is not sufficient to comply with the doctrine of equality and every public employer is under a duty to advertise the posts through newspapers, television, radio, employment bulletins etc. in addition to the sending of requisition to the employment exchange.
(2.) There are some exceptions to the above stated rule, which have been carved out on purely humanitarian considerations. One of such exceptions is the appointment of the dependents of an employee dying in harness. The foundation on which the policy of compassionate appointment rests is that unless some solace is provided to the family of the deceased employee, it would be impossible for the dependents to make both ends meet. With a view to relieve the family of the deceased of the unbearable financial burden to which it is put due to sudden demise of the bread winner and to provide some source of livelihood, provision is made in the rules/instructions to give employment to one of the dependents of the deceased who may be eligible for such employment. It is presumed that such compassionate appointment will enable the family to overcome the sudden crisis. With a view to achieve the object of relieving the family of the unbearable burden the rules/instructions issued for providing compassionate appointment envisages immediate action by the competent authorities. It, however, appears that the policies of compassionate appointment evolved by the governments have been thoroughly misunderstood and the dependents of the family of the deceased have started claiming compassionate appointment as a matter of right de hors its financial status, the source of earning etc. Even those who are well to do crave for compassionate appointment because such appointment is given without any competition and without evaluation of the merit of the dependent. Some of the earliest judgments do give an impression that it is always obligatory for the employer to provide compassionate appointment to one of the dependents of the family of the employee dying while in service. In Sushma Gosain Vs. Union of India, MR 1989 SC 1976, the Supreme Court considered the claim of the appellant who had applied for compassionate appointment in the year 1992 after the death of her husband Shri Ram Kumar. The writ petition filed by the appellant was dismissed by the High Court. The Supreme Court held that the appellant had the right to be considered for appointment on compassionate grounds under the Government memorandum dated 25.11.1978. Their Lordships reversed the order of the High Court and directed the respondent No. 2 to appoint the appellant. At the same time, the Apex Court observed:-
(3.) The same issue again came up for consideration in Umesh Kumar Nagpal Vs. State of Haryana and others, JT 1994 (3) SC 525. In that case the Supreme Court made in-depth examination of the philosophy of compassionate appointment and observed family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Class III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate ground, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a ration nexus with the object sought to be achieved, viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddently upturned.