1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4210 OF 2003
V. Sivamurthy ... Appellants
Vs.
State of Andhra Pradesh & Ors. ...
Respondents
With
CA Nos. 4208-4209, 4213, 4226 of 2003
JUDGMENT
R. V. RAVEENDRAN, J.
These appeals by special leave challenge the judgment dated
12.10.2001 of a Full Bench of Andhra Pradesh High Court holding that
there can be no appointment on compassionate grounds in cases other than
death of a government servant in harness, and that any scheme for
compassionate appointment on medical invalidation of a government
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servant, is unconstitutional, being violative of Article 16 of the Constitution
of India.
2. By GO dated 30.7.1980, the government of Andhra Pradesh
formulated a scheme for providing compassionate appointment to the
dependents (spouse/son/daughter) of Government servants who retired on
medical invalidation. By a further GO dated 4.7.1985, the benefit of the
scheme was restricted to cases where the Government servants retired on
medical invalidation, at least five years before attaining the age of
superannuation. To prevent misuse of the scheme, the State Government
issued GO dated 9.6.1998, prescribing suitable safeguards and procedures
by constituting Medical Boards, District/State Level Committees to examine
and recommend the applications for compassionate appointment on ground
of medical invalidation. It provided that as and when a government servant
sought retirement on medical grounds, the concerned appointing authority
should refer the case to the Medical Board; that on receiving the medical
opinion, he should refer the matter to the District Level Committee (or the
State Level Committee in respect of employees in the Secretariat); and that
the said Committee would scrutinize the proposals for compassionate
appointment in accordance with the guidelines and make its
recommendations to the State Government which would take the final
decision.
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3. The following clarification was issued by Government Memo (`GM'
for short) dated 25.6.1999, as to the date with reference to which the five
year period prior to superannuation should be reckoned:
"It is hereby clarified that the benefit of compassionate appointment will
be applicable only to those government employees who retire on Medical
Invalidation Five (5) years before they attain the age of superannuation.
Therefore, the required period of five (5) years of left over service is to be
reckoned from the date of issue of orders of retirement on medical
invalidation. It is further clarified that in cases where the Government
employees do not have five (5) years of service before the employees
attain the age of superannuation at the time of considering such cases by
the State Level Committee or District Level Committees, the respective
Committees after scrutiny of Medical invalidation certificates in those
cases may recommend only for retirement of such government employees
on medical invalidation as per the certificate issued by the Medical
Board."
The said clarification led to considerable grievance. The government
servants felt that the clarification was not just. They contended that even
when a government servant made an application for medical invalidation
when the `left over period' was more than five years, if there was delay on
the part of Medical Board and/or the District Level or State Level
Committee in processing and making the recommendations, the `left over
period' may get reduced to less than five years thereby making his
dependant ineligible for the benefit of compassionate appointment. For
example, if an application for medical invalidation was made six years prior
to the due date of superannuation, but the process of verification by the
Medical Board, the process of recommendation by the District/State Level
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Committee and the process of sanctioning of retirement, took more than one
year, and as a consequence the sanction for retirement is given on a date
when the `left over period of service' is less than five years, for no fault of
the government servant, the benefit of compassionate appointment to his
dependant family member will be denied. Another example is where the
application is made five and half years prior to the due date of
superannuation, and the decision of the Medical Board and the
recommendations of the District/State Level Committee is given within
three months leaving a clear left over period of five years and three months,
but the state government takes four months and the actual sanction is given
on a date which falls within five years before the due date of
superannuation, the dependant of the government servant would be denied
the benefit of compassionate appointment for no fault of the government
servant or his dependant. They contended that when a government servant
gave the application when the `left over period of service' was more than
five years, he should not be penalized by denial of compassionate
appointment to a family member, for reasons of delay on the part of the
Medical Board, or District/State Level Committee or the Government,
which are beyond his control. They therefore contended that the five year
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period prior to superannuation should be calculated with reference to the
date of application for medical invalidation.
4. Many of the government servants and/or their children/spouses who
were denied the benefit of the scheme, on the ground that by the date of
retirement on medical invalidation, `the left over period of service' was less
than five years, approached the AP Administrative Tribunal. The Tribunal
in several cases including the cases of respondents, took the view that the
five year period should be calculated with reference to the date of
application by the government servant for retirement on medical
invalidation and rejected the clarification in the GM dated 25.6.1999. These
orders were challenged by the State Government in several writ petitions
before the High Court on the ground that its policy decision contained in
GM dated 25.6.1999 was not open to interference. The said writ petitions
were disposed of by a Full Bench by the impugned order dated 12.10.2001.
Though the only issue in the writ petitions was whether the `five years left
over service' should be reckoned from the date of application by the
government servant or from the date of sanction of retirement by the state
government, the Full Bench neither addressed nor answered that question.
On the other hand, it took up for consideration the following question:
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"whether compassionate appointments on the ground of medical
invalidation, were permissible having regard to Article 16 of the
Constitution of India?" The Full Bench observed in the course of its
judgment that though the question of vires of the scheme was not raised in
the writ petitions, it had heard the parties at length on the said question. But
the fact was that neither the State Government nor the employees were
interested in raising such a question. Nor did they want a decision on such a
question. Nevertheless, the Full Bench went into the constitution validity of
the policy and held that the policy offering appointment to a dependant on
compassionate grounds on medical invalidation of the government servant,
did not satisfy the requirements of Article 16. The said judgment is
challenged by the government servants or the applicants for compassionate
appointment, in these appeals by special leave.
5. We may refer to a development in pursuance of the impugned
judgment of the High Court. In view of the declaration by the Full Bench
that the scheme for compassionate appointment on medical invalidation was
invalid and unconstitutional, the State Government by GM dated 27.4.2002
dispensed with the scheme of compassionate appointments on medical
invalidation. By a further GM dated 17.7.2002, the State Government
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directed that appointments cannot be made even in cases pending as on
12.10.2001.
6. On the contentions raised the following questions arise for our
consideration:
(i) Whether compassionate appointment of sons/daughters/spouses of
government servants who retire on medical invalidation is
unconstitutional and invalid?
(ii) Whether the High Court could have considered and decided an issue
which was not the subject matter of the writ petitions, particularly
when neither party had raised it or canvassed it?
(iii) Whether the Government was justified in issuing clarificatory order
dated 25.6.1999 that the left over period of five years should be
reckoned from the date of issue of order of retirement on medical
invalidation, is unreasonable and arbitrary?
Re : Question No. (i):
7. Article 16 of the Constitution bars discrimination in employment on
the ground only of descent. If the service rules or any scheme of
government provides that whenever a government servant retires from
service, one of his dependants should be given employment in his place, or
provides that children of government servants will have preference in
employment, that would squarely fly in the face of prohibition on the
ground of descent. Employment should not be hereditary or by succession.
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But where the policy provides for compassionate appointment in the case of
an employee who dies in harness or an employee who is medically
invalidated, such a provision is based on a classification which is not only
on the ground of descent. The classification is based on another condition in
addition to descent : that is death of the employee in harness, or medical
invalidation of the employee while in service.
8. This Court had occasion to consider the difference between
conferment of a preferential right to appointment to a family member of a
government servant, merely on the ground that he happens to be a family
member, and schemes relating to compassionate appointment of dependant
family members of government servants who die while in service or who are
incapacitated while in service.
8.1) In Gazula Dasaratha Rama Rao vs. State of Andhra Pradesh [1961
(2) SCR 931] dealing with section 6(1) of the Madras hereditary
Village-Offices Act, 1895, this Court observed thus :
"It would thus appear that Article 14 guarantees the general right of
equality; Articles 15 and 16 are instances of the same right in favour of
citizens in some special circumstances. Articles 15 is more general than
Article 16, the latter being confined to matters relating to employment or
appointment to any office under the State. It is also worthy of note that
Article 15 does not mention 'descent' as one of the prohibited grounds of
discrimination, whereas Article 16 does..... There can be no doubt that
Section 6(1) of the Act does embody a principle of discrimination on the
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ground of descent only. It says that in choosing the person to fill the new
offices, the Collector shall select the persons whom he may consider the
best qualified from among the families of the last holders of the offices
which have been abolished. This, in our opinion, is discrimination on the
ground of descent only and is in contravention of Article 16(2) of the
Constitution."
8.2) In Yogender Pal Singh vs. Union of India [1987 (1) SCC 631], this
Court held :
"While it may be permissible to appoint a person who is the son of a
police officer who dies in service or who is incapacitated while rendering
service in the Police Department, a provision which confers a preferential
right to appointment on the children or wards or other relatives of the
police officers either in service or retired merely because they happen to be
children or wards or other relatives of such police officers would be
contrary to Article 16 of the Constitution. Opportunity to get into public
service should be extended to all the citizens equally and should not be
confined to any extent to the descendants or relatives of a person already
in the service of the State or who has retired from the service...... .....Any
preference shown in the matter of public employment on the ground of
descent only has to be declared as unconstitutional...."
[emphasis supplied]
8.3) In Umesh Kumar Nagpal v. State of Haryana [1994 (4) SCC 138] this
Court held :
"As a rule, appointments in the public services should be made strictly on
the basis of open invitation of applications and merit. No other mode of
appointment nor any other consideration is permissible. Neither the
Governments nor the public authorities are at liberty to follow any other
procedure or relax the qualifications laid down by the rules for the post.
However, to this general rule which is to be followed strictly in every case,
there are some exceptions carved out in the interests of justice and to meet
certain contingencies. One such exception is in favour of the dependants
of an employee dying in harness and leaving his family in penury and
without any means of livelihood. In such cases, out of pure humanitarian
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consideration taking into consideration the fact that unless some source of
livelihood is provided, the family would not be able to make both ends
meet, a provision is made in the rules to provide gainful employment to
one of the dependants of the deceased who may be eligible for such
employment. The whole object of granting compassionate employment is
thus to enable the family to tide over the sudden crisis.... 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 grounds."
(emphasis supplied)
8.4) In Haryana State Electricity Board v. Hakim Singh [1997 (8) SCC
85] this Court reiterated the object of compassionate appointments, thus:
"The rule of appointments to public service is that they should be on
merits and through open invitation. It is the normal route through which
one can get into a public employment. However, as every rule can have
exceptions, there are a few exceptions to the said rule also which have
been evolved to meet certain contingencies. As per one such exception
relief is provided to the bereaved family of a deceased employee by
accommodating one of his dependants in a vacancy. The object is to give
succour to the family which has been suddenly plunged into penury due to
the untimely death of its sole breadwinner. This Court has observed time
and again that the object of providing such ameliorating relief should not
be taken as opening an alternative mode of recruitment to public
employment."
[emphasis supplied]
8.5) In Director of Education (Secondary) v. Pushpendra Kumar [1998
(5) SCC 192], this Court considered the nature and object of compassionate
appointments, in particular, in case of death in-harness cases :
"The object underlying a provision for grant of compassionate
employment is to enable the family of the deceased employee to tide over
the sudden crisis resulting due to death of the bread-earner which has left
the family in penury and without any means of livelihood. Out of pure
humanitarian consideration and having regard to the fact that unless some
source of livelihood is provided, the family would not be able to make
both ends meet, a provision is made for giving gainful appointment to one
of the dependants of the deceased who may be eligible for such
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appointment. Such a provision makes a departure from the general
provisions providing for appointment on the post by following a
particular procedure. Since such a provision enables appointment being
made without following the said procedure, it is in the nature of an
exception to the general provisions."
(emphasis supplied)
8.6) In State of Haryana v. Ankur Gupta [2003 (7) SCC 704], this Court
observed :
"As was observed in State of Haryana v. Rani Devi (1996) 5 SCC 308 it
need not be pointed out that the claim of the person concerned for
appointment on compassionate ground is based on the premise that he was
dependent on the deceased employee. Strictly, this claim cannot be upheld
on the touchstone of Article 14 or 16 of the Constitution of India.
However, such claim is considered as reasonable and permissible on the
basis of sudden crisis occurring in the family of such employee who has
served the State and dies while in service. That is why it is necessary for
the authorities to frame rules, regulations or to issue such administrative
orders which can stand the test of Articles 14 and 16. Appointment on
compassionate ground cannot be claimed as a matter of right.....The
appointment on compassionate ground is not another source of recruitment
but merely an exception to the aforesaid requirement taking into
consideration the fact of the death of the employee while in service leaving
his family without any means of livelihood. In such cases the object is to
enable the family to get over sudden financial crisis. But such
appointments on compassionate ground have to be made in accordance
with the rules, regulations or administrative instructions taking into
consideration the financial condition of the family of the deceased."
8.7) In Food Corporation of India v. Ram Kesh Yadav [2007 (9) SCC
531], this Court observed :
"There is no doubt that an employer cannot be directed to act contrary to
the terms of its policy governing compassionate appointments. Nor can
compassionate appointment be directed dehors the policy. In LIC v. Asha
Ramchhandra Ambekar (1994) 2 SCC 718 this Court stressed the need to
examine the terms of the rules/scheme governing compassionate
appointments and ensure that the claim satisfied the requirements before
directing compassionate appointment."
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9. The principles relating to compassionate appointments may be
summarized thus :
(a) Compassionate appointment based only on descent is
impermissible. Appointments in public service should be made
strictly on the basis of open invitation of applications and
comparative merit, having regard to Articles 14 and 16 of the
Constitution of India. Though no other mode of appointment is
permissible, appointments on compassionate grounds are well
recognised exception to the said general rule, carved out in the
interest of justice to meet certain contingencies.
(b) Two well recognized contingencies which are carved out as
exceptions to the general rule are :
(i) appointment on compassionate grounds to meet the
sudden crisis occurring in a family on account of the
death of the bread-winner while in service.
(ii) appointment on compassionate ground to meet the crisis
in a family on account of medical invalidation of the
bread winner.
Another contingency, though less recognized, is where land holders
lose their entire land for a public project, the scheme provides for
compassionate appointment to members of the families of project
affected persons. (Particularly where the law under which the
acquisition is made does provide for market value and solatium, as
compensation).
(c) Compassionate appointment can neither be claimed, nor be
granted, unless the rules governing the service permit such
appointments. Such appointments shall be strictly in accordance with
the scheme governing such appointments and against existing
vacancies.
(d) Compassionate appointments are permissible only in the case
of a dependant member of family of the employee concerned, that is
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spouse, son or daughter and not other relatives. Such appointments
should be only to posts in the lower category, that is, class III and IV
posts and the crises cannot be permitted to be converted into a boon
by seeking employment in Class I or II posts.
10. The High Court referred to the various decisions dealing with
compassionate appointments and culled out the principles relating to
compassionate appointment. Then it referred to the decision of this Court in
Auditor General of India v. G.Ananta Rajeswara Rao [1994 (1) SCC 192]
and inferred therefrom a proposition that there can be no compassionate
appointment in cases other than death in harness cases. On that basis, it
proceeded to hold that appointments on compassionate grounds on medical
invalidation were contrary to the principles underlying Article 16 and
therefore, unconstitutional. Firstly, this Court in Ananta Rajeswara Rao,
nowhere laid down a proposition that compassionate appointment can be
only in cases of death in harness and not in cases of medical invalidation or
other contingencies. Secondly, the High Court overlooked the fact that the
principles underlying Article 16 were violated, not only in cases of
compassionate appointments as a consequence of medical invalidation, but
also in cases of compassionate appointments as a consequence of death in
harness. But both are saved as they are considered to be exceptions to the
rule contained in Article 16, carved out to meet special contingences in the
interests of justice.
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11. In Ananta Rajeswara Rao (supra), this Court was considering the
validity of a scheme which contemplated appointments on compassionate
grounds being made not only in the case of sons and daughters, but also
near relatives of a Government servant who died in harness. The scheme
further provided that in deserving cases even where there is an earning
member in the family, compassionate appointment to another member was
permissible. Dealing with the memorandum containing the said scheme, this
Court held :
"A reading of these various clauses in the Memorandum discloses that the
appointment on compassionate grounds would not only be to a son,
daughter or widow but also to a near relative which was vague or
undefined. A person who dies in harness and whose members of the family
need immediate relief of providing appointment to relieve economic
distress from the loss of the bread-winner of the family need
compassionate treatment. But all possible eventualities have been
enumerated to become a rule to avoid regular recruitment. It would appear
that these enumerated eventualities would be breeding ground for misuse
of appointments on compassionate grounds. Articles 16(3) to 16(5)
provided exceptions. Further exceptions must be on constitutionally valid
and permissible grounds. Therefore, the High Court is right in holding
that the appointment on grounds of descent clearly violates Article 16(2)
of the Constitution. But, however, it is made clear that if the appointments
are confined to the son/daughter or widow of the deceased government
employee who died in harness and who needs immediate appointment on
grounds of immediate need of assistance in the event of there being no
other earning member in the family to supplement the loss of income from
the bread-winner to relieve the economic distress of the members of the
family, it is unexceptionable."
[emphasis supplied]
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The observations in Ananta Rajeswara Rao (supra) that compassionate
appointments should be confined to the son/daughter or widow of the
deceased government employee who dies in harness, was not made in
contradistinction from the position relating to compassionate appointments
in medical invalidation cases. In fact, this Court had no occasion to consider
the other several contingencies in which compassionate appointments could
be made. In particular it did not at all consider whether compassionate
appointment could be granted in cases of medical invalidation. Nor did it
lay down that only in the case of government employee dying in harness,
compassionate appointment is available. The questions that was considered
were : (i) where there is a scheme for compassionate appointment in the
case of a government employee dying in harness, whether employment can
be offered only to a son/daughter/widow or whether it can be offered to any
other near relatives of the deceased; and (ii) whether compassionate
appointment can be offered even if there is already another earning member
in the family of the deceased. It is in that context this Court said that
compassionate appointment should be confined only to a son/daughter/
widow of the deceased government employee who dies in harness and
whose family did not have another earning member. When this Court said
that compassionate appointment should be restricted only to the
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son/daughter/wife of a government servant dying in harness, what was
excluded was compassionate appointments of near relatives of the deceased
dying in harness as also compassionate appointments to anyone where the
family of the employee dying-in-harness had already another earning
member. This Court neither considered nor excluded compassionate
appointment on medical invalidation or other grounds, vis a vis
compassionate appointment in the case of employees dying in harness.
12. In fact several decisions of this Court make it clear that
compassionate appointment is not restricted to death in harness cases only.
As noticed above, in Umesh Kumar Nagpal (supra) this Court observed that
the general rule that appointments in public service should be strictly on the
basis of open invitation of applications and merit, is subject to "some
exceptions carved out in the interest of justice and to meet certain
contingencies." To the same effect are the observations of this Court in
Hakim Singh (supra) where this Court again said that the rule of
appointments to public service is that they should be on merit and through
open invitation, but there are a few exceptions to the said rule which have
been evolved to meet certain contingencies. The use of the words "few
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exceptions" and "to meet certain contingencies", in the above decisions,
make it clear that the exceptions to the general rule (that employment should
be by open invitation and on merit) by way of compassionate appointment is
not restricted to only one contingency of death in harness. The decisions
make it clear that exceptions to the rule, may relate to several contingencies,
one of which is employee dying in harness. There can be exceptions in other
extreme cases of sudden deprivation of means of livelihood. If the intention
was to restrict compassionate appointments only to cases of death in
harness, these two decisions would have obviously used the words
`exception' and `contingency' instead of `exceptions' and `contingencies'.
Further in Yogendra Pal Singh (supra), this Court made it clear that while
appointment only on the criterion of descent would be unconstitutional,
appointment of a dependant is permissible both when the government
servant dies in service or is incapacitated while rendering service. We may
also notice that this Court dealt with provisions relating to compassionate
appointments on medical invalidation in several cases, but did not hold that
such appointments were violative of Article 16. Reference may be made to
W.B. State Electricity Board vs. Samir K. Sarkar - 1999 (7) SCC 672, and
Food Corporation of India vs. Ram Kesh Yadav - 2007 (9) SCC 531. Be
that as it may. The assumption by the High Court, that this Court had held
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that compassionate appointments can be only in death-in-harness cases and
not in retirement on medical invalidation cases, is not sound.
13. As an incidental reason for holding that compassionate appointments
are not permissible in cases of medical invalidation, the High Court has
observed that death stands on a "higher footing" when compared to
sickness. The inference is compassionate appointment in case of medical
invalidation cannot be equated with death in harness cases, as medical
invalidation is not of the same degree of importance or gravity as that of
death; and that as medical invalidation is not as serious as death in harness,
exception can be made only in cases of employees dying in harness. But
what is lost sight of is the fact that when an employee is totally
incapacitated (as for example when he is permanently bed ridden due to
paralysis or becoming a paraplegic due to an accident or becoming blind)
and the services of such an employee is terminated on the ground of medical
invalidation, it is not a case of mere sickness. In such cases, the
consequences on his family, may be much more serious than the
consequences of an employee dying in harness. When an employee dies in
harness, his family is thrown into penury and sudden distress on account of
stoppage of income. But where a person is permanently incapacitated due to
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serious illness or accident, and his services are consequently terminated, the
family is thrown into greater financial hardship, because not only the
income stops, but at the same time there is considerable additional
expenditure by way of medical treatment as also the need for an attendant to
constantly look after him. Therefore, the consequences in case of an
employee being medically invalidated on account of a serious
illness/accident, will be no less, in fact for more than the consequences of
death in harness. Though generally death stands on a higher footing than
sickness, it cannot be gainsaid that the misery and hardship can be more in
cases of medical invalidation involving total blindness, paraplegia serious
incapacitating illness etc.
14. Another observation made by the High Court in support of its
conclusion is that "while considering the cases of sick employees, the court
cannot lose sight of cases of sick unemployed." What the High Court
apparently means is that if an exception is made for compassionate
appointments in the case of an employee medically invalidated, it may
account to hostile discrimination, as compassionate appointment is not
extended in the case others who are equally sick but are not employees of
the government. But the same logic is applicable to death in harness cases
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also. It can equally be said that "while considering the cases of death of
employees in service, the court cannot lose sight of cases of death of other
unemployed poor". Members of the family of a deceased are thrown into
penury and hardship not only where the deceased is a government servant,
but also where they belong to weaker or poorer sections of the society. In
fact in the case of death of government servants, there is at least family
pension and terminal benefits. But in the case of death of anyone belonging
to poor and weaker sections, there is nothing at all to support their families.
Should compassionate appointments be therefore stopped even in death in
harness case also? The issue is complex. Comparison with non-employed is
neither logical nor sound.
15. When compassionate appointment of a dependant of a government
servant who dies in harness is accepted to be an exception to the general
rule, there is no reason or justification to hold that an offer of compassionate
appointment to the dependant of a government servant who is medically
invalidated, is not an exception to the general rule. In fact, refusing
compassionate appointment in the case of medical invalidation while
granting compassionate appointment in the case of death in harness, may
itself amount to hostile discrimination. While being conscious that too many
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exceptions may dilute the efficacy of Article 16 and make it unworkable, we
are of the considered view that the case of dependants of medically
invalidated employees stands on an equal footing to that of dependants of
employees who die in harness for purpose of making an exception to the
rule. For the very reasons for which compassionate appointments to a
dependant of a government servant who dies in harness are held to be valid
and permissible, compassionate appointments to a dependant of a medically
invalidated government servant have to be held to be valid and permissible.
16. There are of course safeguards to be taken to ensure the scheme is not
misused. One is to ensure that mere medical unfitness to continue in a post
is not treated as medical invalidation for purposes of compassionate
appointment. A government servant should totally cease to be employable
and become a burden on his family, to warrant compassionate appointment
to a member of his family. Another is barring compassionate appointments
to dependants of an employee who seeks voluntary retirement on medical
grounds on the verge of superannuation. This Court observed in Ram Kesh
Yadav (supra) as follows :
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"But for such a condition, there will be a tendency on the part of
employees nearing the age of superannuation to take advantage of the
scheme and seek voluntary retirement at the fag end of their service on
medical grounds and thereby virtually creating employment by
"succession". It is not permissible for the court to relax the said condition
relating to age of the employee. Whenever a cut-off date or age is
prescribed, it is bound to cause hardship in marginal cases, but that is no
ground to hold the provision as directory and not mandatory."
We find that in this case stringent safeguards were in fact built into the
scheme on both counts by GMs dated 4.7.1985 and 9.6.1998.
Re : Question No. (ii) :
17. The learned counsel for appellants submitted that rational
classification is not prohibited by either Article 14 and 16 and that unless
someone is aggrieved by a classification, and challenges it on the ground of
hostile discrimination or denial of equal opportunity, there is no occasion
for a court to suo motu consider whether a policy relating to an affirmative
action is valid or not. Reliance was placed on observations of this Court in
M.Purandara v. Mahadesh S. [2005 (6) SCC 791] and Som Mittal v. State
of Karnataka [2008 (2) Scale 717]. In Purandara, this Court observed that
where an issue was not before the court and none had raised the question,
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adjudication on such issue is not proper; and that issues in question alone,
and not matters at large, could be considered. In Som Mittal, this Court
observed that while rendering judgments, courts should only deal with the
subject matter of the case and the issues involved therein, and courts should
desist from issuing directions affecting executive or legislative policy, or
general directions unconnected with the subject matter of the case.
18. We are however of the view that the appellants' grievance is
unwarranted. It is true that the State Government had challenged the orders
of the Tribunal only with reference to the interpretation of a provision of an
existing scheme, as to the date of commencement of the five year left over
period prior to superannuation. But if during hearing, the question about the
validity of the scheme was raised and therefore the matter was placed before
a Full Bench having regard to the importance of the issue, the appellants
cannot have any grievance so long as they were heard. We find that the Full
Bench has noted the reason as to why the issue was examined thus:
"Although the question of vires of the Scheme was not specifically raised in
the writ petitions, but having regard to the importance thereof, the said
question was permitted to be raised by the learned Counsel appearing for
the parties. In this regard, we have heard the learned Counsel for the parties
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in great detail." The issue considered was not wholly unconnected to the
subject matter of the writ petitions. We therefore reject the contention that
the decision of the High Court should be interfered, on the ground that it
was a decision on a non-issue.
Re : Point No. (iii) :
19. The `five year left over period' is capable of being commenced with
reference to any one of the following dates : (i) the date of application by
the Government servant for medical invalidation; (ii) the date of report of
the Medical Board certifying that the Government servant required to be
medically invalidated; (iii) the date of recommendation by the State/District
Level Committee in regard to medical invalidation; and (iv) the date of issue
of orders of retirement on medical invalidation.
20. The contention of the appellants is that once an application is made
by a government servant at a point of time when the left over period of
service is more than five years, the medical examination by the Medical
Board, recommending process by the District/State Level Committees and
consideration and decision by the state government, are not in the hands of
the Government servant and therefore neither he nor his dependant should
25
be punished by denying compassionate appointment on account of delays on
the part of the authorities. The appellants therefore contend that the
eligibility should be determined with reference to date of application and
not with reference to date of sanction. But the terms of the scheme are clear.
The benefit of compassionate appointment is available to a
son/daughter/spouse of a government servant who retires from service on
medical invalidation five years before attaining the age of superannuation.
Under the scheme therefore, the five year cut off period commences from
the date of retirement from service on medical invalidation and not from the
date of application by the government servant for retirement on medical
invalidation. This was also clarified in the G.M dated 25.6.1999 which
forms part of the scheme. The issue is not what is most advantageous to the
government servant, but what is the actual term of the scheme. The question
is not whether an interpretation which is more advantageous or beneficial to
the Government servant should be adopted. The question is whether the
policy as it stands which is clear and unambiguous, is so unreasonable or
arbitrary or absurd as to invite an interpretation other than the normal and
usual meaning. Matters of policy are within the domain of the executive. A
policy is not open to interference merely because the court feels that it is not
practical or less advantageous for government servants for whose benefit
26
the policy is made or because it considers that a more fairer alternative is
possible. Compassionate appointment being an exception to the general rule
of appointment, can only be claimed strictly in accordance with the terms of
scheme and not by seeking relaxation of the terms of the scheme. The fact
that on account of certain delays in processing the application, a
government servant may lose the benefit of the scheme, is no ground to
relax the terms of the scheme. If in a particular case the processing of an
application is deliberately delayed to deny the benefit to the government
servant, the inaction may be challenged on the ground of want of bona fides
or ulterior motives. But where the time taken to process the application
(through medical Board, local/State level Committee and the government) is
reasonable, the government servant cannot contend that relief should be
extended, even if the left over period is less than five years. Let us give an
example. If an application for compassionate appointment on the ground of
medical invalidation is given five years and one week before the date of
superannuation, obviously the Government servant cannot expect the entire
process of scrutiny, medication examination, recommendation and
consideration at three levels should be completed in one week. He cannot
contend that when he had made the application the left over period was
more than five years and therefore his dependant is entitled to appointment.
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As stated above these are matters of policy and courts will not interfere with
the terms of a policy, unless it is opposed to any constitutional or statutory
provision or suffers from manifest arbitrariness and unreasonableness.
Conclusion
21. We therefore allow these appeals, set aside the judgment of the High
Court. We also set aside the orders of the Tribunal though on different
grounds. We uphold the validity of the compassionate appointment scheme
(contained in the GO dated 30.7.1980, 4.7.1985 and 9.6.1998 as clarified by
Memo dated 25.6.1999) providing that the period of five years of `left over
service' should be reckoned from the date of issue of the order of retirement
on medical invalidation and not from the date of application for retirement
on medical invalidation.
22. As the scheme was withdrawn by GM dated 27.4.2002 to give effect
to the impugned decision of the High Court, the state government is at
liberty to revive the scheme with or without modifications.
..............................J
(R. V. Raveendran)
28
New Delhi; ..............................J
August 12, 2008. (Lokeshwar Singh Panta)
29
