Empathetic incorporation

India has some extremely benevolent schemes, depicting its emphatic view towards the realities of life. One of these is Compassionate Appointment. As the name suggests, the scheme is to grant an appointment on compassionate grounds to the dependent family member of an employee dying in harness or, in certain cases, to an employee who retires on medical grounds, thereby leaving his family without any means of livelihood.

Compassionate appointment is not a matter of right and is granted only if there is a policy in place. It is basically to enable the family to tide over an immediate crisis and is rejected if the application is made belatedly. The Supreme Court, in the case of Ramesh Chand (2003), held that even a child born from the second marriage of a person during the subsistence of the first marriage can claim the right to compassionate appointment. It is interesting to note, despite the fact that a second marriage is invalid during the lifetime of the first spouse, Section 16 of the Hindu Marriage Act grants legitimacy to the children born from such a marriage, and they have equal rights as the children born from a valid marriage unless there is a specific exception. In fact, recently in 2022, the Apex Court held conditions imposed by one of the circulars of the Railway Board as discriminatory, according to which compassionate appointment could not be granted to children born from a second wife.

The scheme, if in place, also applies to a divorced daughter. In 2018, in the case of Noopur Sharma, it was held that a "divorced daughter" is assumed in the expression of "unmarried daughter," and the divorced daughter is thus permitted a compassionate appointment if she was supported by the government servant at the time of death, the marriage was lawfully dissolved either before or after the death of the deceased employee, and if she remains unmarried at the time of appointment. In 2021, the Supreme Court rejected such a claim when it was found that the lady conspiratorially annulled her marriage on mutual consent after her mother’s death with the sole aim of gaining the government job.

The concept of compassionate appointments can be found in our Constitution’s Article 39, which is under the Directive Principles of State Policy, which, inter alia, refers to the right to an adequate means of livelihood. Courts have time and again held that appointments on compassionate grounds are not a source of recruitment but merely an exception to the requirement regarding appointments being made on an open invitation of application on merits, and that the basic intention is that on the death of the employee concerned, his family is not deprived of the means of livelihood. The object is to enable the family to get over the sudden financial crisis. The applicant under the scheme should also be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules. All other stipulations, as per policy, need to be fulfilled. The existence of well-defined regulations issued by an organisation is a sine qua non for making appointments on a compassionate basis.

It has also been held that Courts are permitted to give directions to the Competent Authority or the Concerned Departments only for consideration of the claim but are generally not allowed to give directions for appointments on compassionate grounds. Most of the policies are for government servants on a “regular basis” and not on a daily wage, casual, apprentice, ad-hoc, contract, or reemployment basis, etc. In the Armed forces, apart from death and medical incapacity, it is also applicable when killed in action.

Several Public Sector Enterprises now have superannuation schemes in place of policies for compassionate appointments, wherein a grand lump sum amount is granted, and there are specific provisions for granting such amounts to those who die while in service. This is also a fair middle path for entities; moreover, it is also helpful for cases wherein none of the family members could be capable of performing compassionate employment, owing to age, education, or any other such lacunas.

While the government sector has provisions, the private sector in this sphere lags behind. Only a handful of corporates have schemes providing excess funds, apart from statutory benefits such as gratuity, PF, etc. The legislature may consider promulgating optional schemes for private entities, giving them lucrative tax benefits.

The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal