Lately there have been many judgements by various high courts regarding the aspect of compassionate appointment. Compassionate appointment is a scheme by the government, which provides job on compassionate basis to a dependent family member of a government employee who dies while in service or retires because of medical reasons. The rationale behind the scheme is to provide financial bolster to the concerned economically effected family of the employee.
A right is an aspect of law that talks either about freedom or an entitlement. In the context of compassionate appointment it would mean an entitlement. In view of recent judgement of the Supreme Court, it could be seen that the court categorically held that compassionate appointment is not a right. Still this scheme acts like an umbrella to the family of the deceased, while struck in a heavy down pour. Lately many cases involving the interpretation of this scheme have come before various courts in the country and consequent judgements were passed. This article tries to analyse the judgements, its repercussions on the impacted people.
Compassionate appointment and financial status of the family
A recent case Union of India vs. Amrita Sinha , pertains to the appointment sought by the wife of a deceased Sargent in the Indian Air Force. The Sargent here died due to cancer. The tribunal which took up the case (concerning compassionate appointment) observed that “since the deceased employee died due to terminal illness, the family might be in debt and might have sold the property for his treatment” and at the same time it added that it would not go into these topics. Later on, neither the High court nor the Supreme Court delved into the financial status of the family.
This overlooking by the judicial bodies, contradicts
the intention of the scheme I.e. to protect the deceased servant’s family from
immediate financial crisis as failure to evaluate the financial status would
not give a lucid picture of the
scenario. With such a hazy view, it’s hard to decide if the family is eligible
for compassionate appointment or not i.e. if the family is hit by immediate
financial crisis or not.
Resorting to the anatomization of the related prevalent circumstances (debts or so) and the monetary standing of the concerned family would answer the impact of death or retirement of the employee on the household. This would make the task of the authorities, courts easy to determine if a family is entitled for the scheme or not, easy.
Compassionate appointment and daughters
Daughters also come under the ambit of
‘eligible persons’ with respect to compassionate appointment. But the
vacillation occurs when the word ‘daughter’ has to be interpreted. The Supreme
Court has held that the marital status
of a daughter doesn’t affect her eligibility for appointment. It stated that
even a married daughter would be eligible. In another
case
‘Daughter’ has been elucidated by the apex
court in such a way as to exclude divorced daughters from the term via-a-vis
Karnataka Civil Services (Appointment on Compassionate Grounds) Rules 1996.
Only in 2021 were the divorced women brought under the ambit of this act after
making an amendment. The court was submissive to this act of the legislature.
This decision of the court has a snag. A
divorced women is legally considered as an unmarried woman and would have all
the rights of an unmarried woman (right to remarry). Furthermore a divorced
woman, having been parted from her family would be requiring more financial help
when compared to a married woman or a widowed one and as the COVID pandemic has
hit everybody in some or the other way, the participation at work for women
India saw a decline
to 33% in 2022. Only a meagre of 17%
of married woman in India are in
paid works. These statistics convey the need for more help to divorced woman
too.
Divorced woman should also have been considered on par with married and widowed once. Otherwise such woman who sought aid before the amendment would become vulnerable.
Compassionate employment and the applicable scheme
The question as to which scheme would be applicable with respect to an application made for compassionate appointment came up before the Supreme Court. The apex court made varying observations regarding this. In one case it held that the policy prevailing either during the time of death of the employee or during application would be applicable and in other case it observed that the scheme prevailing only during death of employee, not a subsequent one would be applicable (not even the scheme during application). This differing observations were made with few weeks of gap between them. If the latter judgement is to be followed then one cannot make a request basing their reliance on the scheme which was prevalent on the day of application. This variation in the stance taken by the apex court would push the applicants into a turmoil.
Compassionate employment and Bigamy
Bigamy is an offence under section 494 of
IPC. There are also certain circumstances whose presence make a marriage
legally void. So what about the children born out of such marriages? Are they
eligible for compassionate appointment?
In some instances, some
High courts were of the view that
even the children of illegitimate marriage are eligible for compassionate
employment and that “there may be
illegitimate parents, but no illegitimate children”.
But
Madras
High Court took a different stance.
When it was argued by the advocates that children of illegitimate marriage
should also be considered for compassionate appointment as Hindu personal law
recognises them as coparcenary with respect to succession, the court repudiated
this argument by stating 3 grounds:
1. The
kind of interpretation ( exclusion of children from illegitimate marriage) would encourage monogamy
2. Policy
denying appointment to descendants of second wife not barred by law.
(Irrespective of personal law, bigamy is criminalised under IPC)
3. Compassionate
appointment can’t be equated with inheritance.
The court was correct in making these observations. Bringing descendants of illegitimate marriage into the compass of the scheme would most probably lead to friction between the descendants of deceased. Deciding as to the children of which wife would be eligible would be a tough task for the court. In that case an already effected family (with the demise of family member) will have to go through unfamiliar, complex legal procedure of courts. This would further increase the burden on judiciary also.
Conclusion
Scrutinising the financial status of the concerned family should not be disregarded as it is pivotal in judging if the family is eligible for the scheme or not (the scheme intends to help those families that are pushed into immediate financial crisis). The true essence of equality (as thrived by the courts) could be achieved by including (by default) divorced daughters under the ambit of the term ‘daughter’. Excluding the predecessors of illegitimate marriage from the scheme averts unnecessary burden on the judiciary and would dissuade illegitimate marriages. Lastly there should be a consensus regarding what scheme is to be followed (if the one prevalent at the time of application or the one at the time of death/application).
About the Author:
This post is prepared by A. Niharica, Law Student from Sultan-Ul-Uloom College of Law. She can be reached at aniharica@gmail.com
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