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TILL DEATH AND THEREAFTER: A COMPREHENSIVE ANALYSIS ON COMPASSIONATE EMPLOYMENT
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TILL DEATH AND THEREAFTER: A
COMPREHENSIVE ANALYSIS ON COMPASSIONATE EMPLOYMENT
AUTHORED BY - ADVITYAA MAKKAR,
Dr. B.R. Ambedkar National Law University,
Sonipat
ABSTRACT
We adopt
the doctrine of Parens Patriae, making our State a parent to those who are
unable to protect themselves. To offer refuge for the unsheltered in the
manner that a parent would. Compassionate employment is one approach to ensure
that this happens. Simply put, compassionate employment is employment provided
to the dependents of those who are dying in harness (Dying whilst one is still
on active duty) or retiring on medical reasons, leaving the family with no
alternative means of income. However, just as parent is expected to be
fair, we are thus confronted with a concern- How far must the principle be
utilised in taking away employment positions meant for qualified members of
society and distributing those opportunities to individuals in need,
whether qualified or not? This
paper aims to analyse the principles of compassionate employment, laid through
the Constitution of India and the Honourable Apex Court of the Country.
INTRODUCTION
“....An exception cannot subsume the main provision to which
it is an exception and thereby nullify the main provision. Care has, therefor,
to be taken that a provision for grant of compassionate employment, which is in
the nature of an exception to the general provision, does not unduly interfere
with the right of other persons who are eligible for appointment to seek
employment against the post which would have been available to them, but for
the provision enabling appointment being made on compassionate grounds for the
dependant of a deceased employee.”
-Director of Education
(Secondary) and Anr. v. Pashpendra Kumar and Ors.[1]
After years of being shunned from
Administrative aspects of the State, our Forefathers, the drafters of the
Constitution of India, inserted Articles 14[2]
and 16[3] in
Part III of the Constitution, mandating equality of opportunity in public
employment.
For an exception to this rule, to be
constitutionally valid, must be implemented in such a manner that sub-serve the
preliminary object and purpose sought to be achieved through it.
One such exception is Compassionate
Employment. Compassionate employment refers to employment provided to enable
the dependant members of a person dying in harness (dying during the course of
his employment) or retiring on medical reasons.[4]
Such employment is provided in lieu of the fact that the person thus losing his
livelihood was the primary bread-winner for the family and but for his
employment, the family shall be left destitute.
Compassionate employment is not an
inherent entitlement but is instead contingent upon the prevailing norms and
regulations governing such employment, which vary from state to state.[5]
Several principles govern the
provision of compassionate employment. One such principle is that delayed
claims for employment by dependents are less likely to be successful.
Compassionate employment is typically granted promptly, taking into account the
financial situation of the family. This immediacy is crucial in addressing the
urgent needs of the family members left without support due to the loss of a
breadwinner.
Since there is no proper law that
governs the matter of such employment, its scope is largely drawn from the
Constitution of India or the principles laid down by the Judiciary. This paper
seeks to trace the exception that is compassionate employment and explores
various facets as to its implementation, both by Constitutional and Judicial
norms.
IN THE CONSTITUTION,
WE TRUST
The majesty of death is that it is a
great leveller for, it makes no distinction between the young and the old or
the rich and the poor. Death being as a consequence of birth at some point of
time is inevitable for every being. Thus, while death is certain, its timing is
uncertain. Further, a deceased employee does not always leave behind valuable
assets; he may at times leave behind poverty to be faced by the immediate
members of his family. Therefore, what should be done to ensure that death of
an individual does not mean economic death for his family? The State’s
obligation in this regard, confined to its employees who die in harness, has
given rise to schemes and rules providing for compassionate appointment of an
eligible member of his family as an instance of providing immediate succour to
such a family.
-The State of West
Bengal v. Debabrata Tiwari and Ors. Etc. Etc.[6]
The framers of the Constitution included specific articles aimed at
ensuring equality across various aspects of a free India, with few exceptions.
Below, we'll discuss some of these articles in the context of compassionate
employment.
1.1
ARTICLE
14 AND ARTICLE 16
The historical evolution
of the aforesaid Articles in the present Constitution is intriguing.
Article 14, which
currently reads as follows: “The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of
India[7]” was
not a standalone provision when it was drafted. It was included in the
present-day Article 21 of the Constitution of India (Draft Article 15) which
read:
‘Protection of life
and liberty and equality before law – No person shall be deprived of his life
or liberty except according to procedure established by law, nor shall any
person be denied equality before the law or the equal protection of the law
within the territory of India.’[8]
On the 3rd of November
1949, this Article was separated from Draft Article 15 and made Article 14 of
the Constitution of India. [9]
Similarly, Article 16 was
originally Draft Article 10 in the Constitution, calling for equality of
opportunity in all forms of government employment further allowing the State to
make reservations in such employment for the people belonging to the backward
classes.[10]
Three main contentions
were laid before the Assembly when Reservations were discussed under the
Article:
1. An Equality of Opportunity: No one who is qualified for a
particular post should be barred from it on the basis of his race, sex, caste,
religion, descent, place of birth or residence.
2. The principle of equality should be
bereft of any class or community: Everyone must be on equal footing in the contention for the
Public Services.
3. Lastly, in a view shared by even the
Chairman of the Drafting Committee, the State was allowed to make reservations
for certain communities as it was thought that equality was a utopian principle
but there still must be a provision for communities kept outside the
purview of the administration in the past. [11]
How this connects to compassionate employment:
In the case of N.C.
Santhosh v. State of Karnataka and Ors.,[12]
the Court has observed some principles regarding Compassionate Employment which
are as follows:
1. That the appointments to public posts
being made in accordance with Articles 14 and 16 of the Constitution is the
rule and compassionate employment, its exception.
2. Dependants of government employees do
not have a vested right to employment.
3. Such employments are to be made only
in accordance with the norms set by the different State Governments in this
regard.
4. If the State Government’s norms are
amended (as happened in the present case), the Applicant’s appointment will be
considered as part and parcel of the new norms. He is disentitled to seek any
consideration of his application based on the norms applicable on the date of
death of the government employee.
These principles, derived
from the constitutional inquiry regarding Articles 14 and 16, have established
a definitive standard for compassionate employment matters for the foreseeable
future.
2.1
THE
DIRECTIVE PRINCIPLES OF STATE POLICY
Directive Principles of State
Policy are non-justiciable, non-enforceable rights granted under Part IV of the
Constitution of India. Simply put, these are a set of objectives to be kept in
mind by the State before formulating any policy for the citizens.
Article 38 and 39 of the Directive
Principles of State Policy state:
38. (1) The State shall
strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and
political, shall inform all the institutions of the national life.[13]
Similarly, Article 39
provides for an adequate means of livelihood for all. The Policy of
compassionate employment is thus, less a right and more of a scheme formed
under the objectives listed in these Directive Principles.[14]
Thus, it must be noted
that compassionate employment is not mentioned in the Constitution, but has
been carved out as one of the many exceptions to the same.
PARENS PATRIAE: WHAT DOES THE APEX COURT SAY?
Thus, the Constitutional Courts may also act as Parens Patriae so as to
meet the ends of justice.
Over
time, Courts have laid down principles that aid in implementation of the rules
of compassionate employment. It is important to note that there are multiple
facets to the claim of compassionate appointment and this paper seeks to
discuss some note-worthy judgements that have been given by the Courts over the
course of many years.
This
judgement is one of the crucial judgements in the context of compassionate
employment, responsible for initiating a discourse on the rationale behind such
appointments and the criteria for consideration. The Honourable Apex Court held
as follows:
a)
Appointments within public services must
adhere strictly to an open invitation of applications and merit-based
selection. No alternative method of appointment or other considerations are
permissible. Neither governmental bodies nor public authorities have the
discretion to deviate from prescribed procedures or lower the qualifications
set forth for the position.
b)
The primary purpose of offering compassionate
employment is to assist the family in overcoming an unexpected crisis.
c)
The mere demise of an employee during active
service does not automatically qualify their family for compassionate
employment. The relevant government or public authority is required to assess
the financial situation of the deceased employee's family. Only if it
determines that without employment, the family would struggle to overcome the
crisis, can a job be extended to an eligible family member.
d)
The preferential treatment accorded to
dependents of deceased employees in these positions is logically connected to
the intended goal, which is to provide relief from destitution. Public
authorities are not obligated or expected to allocate other positions for this
purpose. It is important to note that while considering the destitute family of
the deceased, there are countless other families equally or even more
destitute.
e)
The exception granted to the family of the
deceased employee is based on the services provided by the employee, their
legitimate expectations, and the significant impact on the family's status and
circumstances resulting from the former employment, which are abruptly altered.
In
the post-N.C. Santhosh[18]
scenario, this judgement holds that The rationale for appointing on
compassionate grounds is to aid the family of a deceased employee who may face
financial challenges due to the employee's untimely demise while in service.
The underlying policy emphasizes providing immediate financial support to such
families following the employee's passing. Authorities must evaluate and decide
on these compassionate appointment applications according to the prevailing
policy within six months of receiving the completed applications.
When
considering compassionate employment on par with family pensions or any other
benefits, the Honourable Apex Court has held the following in a variety of
judgements:
If
the policy mandated considering family pension and death gratuity when
evaluating a family's financial situation, it could be deemed appropriate.
However, this policy did not prevent dependents of a deceased employee from
being eligible for compassionate appointment solely on the basis of receiving
family pension.
The
provision of family pension or terminal benefits should not be seen as a
replacement for offering employment assistance.
Thus,
it can be seen that the receipt of family pensions and other benefits does not
exclude dependants of the employee from the consideration for the grant of
compassionate employment.
On
the delay of application of compassionate employment:
Vigilantibus, non
dormentibus, jura subvenient is a
Latin maxim which means that the law only helps those who are vigilant,
not those who sleep over their rights. When confronted with a delay in
the application of compassionate appointment, the Courts hold thus:
In
the case of Fertilizers and Chemicals Travancore Ltd. and Ors. v. Anusree
K.B.[21], The
respondent's claim for compassionate appointment following her father's death
in 1995 was denied, as it had been 24 years since his passing. Granting
compassionate appointment in such a prolonged timeframe would go against the
intended purpose of this provision, which was to weather immediate financial
crisis.
Furthermore,
in the case of Jagdish Prasad v. State of Bihar[22],
the Court held that a significant delay of 20 years renders any claim for
compassionate appointment invalid, as the purpose of such appointments is to
alleviate immediate financial hardships resulting from the sudden loss of the
family's primary breadwinner. Additionally, in cases where an individual was a
minor at the time of the government servant's death, it cannot be justified to
grant them appointment after they have reached adulthood, as it would
essentially introduce an alternative recruitment method for dependents of
deceased government servants, which is not in line with established practices.
".... in all
claims for appointment on compassionate grounds, there should not be any delay
in appointment the purpose of providing appointment on compassionate grounds is
to mitigate the hardship due to death of the bread earner in the family. Such
appointment should, therefore, be provided immediately to redeem the family in
distress."[24]
Therefore, not only
is unnecessary delay not an encouraged practice for seeking compassionate
employment, the defence of minority at the time of death of the deceased is
also not a sustainable defence in the Court of Law.
The point is to
establish the importance of maintaining fairness by striking a balance between
candidates seeking compassionate employment and others equally qualified for
the same position.
Another key aspect
for consideration that has been laid before the Court has been that whether the
past misconduct of the deceased employee affects the appointment of the
Dependant is discussed in the case of General Manager, State Bank of
India v. Anju Jain[25]. In the present case,
The Supreme Court, in affirming a specific clause within the compassionate
appointment policy, upheld the denial of appointment to dependents of an
employee whose service record included disciplinary actions against them. This
decision reversed the High Court's ruling, which had deemed an employee's past
misconduct irrelevant in considering compassionate appointments for the
deceased employee's dependents.
Thus, an application
for compassionate employment must:
a) Be strictly as per
the prescribed parameters and norms at the time.
b) Be granted to meet
the immediate financial commitments of the family and to alleviate the pain of
the loss of the sole breadwinner
c) Minors may not apply
for compassionate employment as they are then being exposed to an alternative
employment option which goes against the Constitutional Ideals.
d) There should not be
any unnecessary delay in the application, whether it be the submission or the
consideration of the same.
AUTHOR’S ANALYSIS
Compassionate
employment is an approach based on empathy and social welfare concepts that
seeks to reduce the immediate financial burden of a family member's death.
However, like any policy, compassionate employment requires a careful
examination to determine its efficacy, fairness, and unintended repercussions.
One of the
fundamental arguments in favour of compassionate employment is its humanitarian
relevance. Losing a loved one can be emotionally painful, and the
potential monetary burden can worsen the sorrow. The
Government expresses their commitment to aiding families in times of
need by providing job opportunities to eligible family members. This not only
relieves immediate financial constraints, but also improves the general
well-being and stability of afflicted families.
Furthermore,
compassionate employment is frequently viewed as a way to recognise the
departed employee's services. It recognises their efforts to the organisation
and expresses gratitude by assisting their family members with earning a
living. This recognition can increase employee loyalty and organisational
morale, resulting in a more positive work environment.
However,
despite its noble objectives, compassionate employment has certain difficulties
and obstacles. It is frequently argued that the subjective nature of
compassionate appointments may result in unfair practices, with deserving
candidates being disregarded in favour of individuals in need of compassionate
employment. This emphasises the need of a clear and merit-based
selection standards in ensuring justice and equity throughout the process.
Another
issue is the viability of compassionate employment schemes. While providing
immediate aid to families in distress is critical, long-term sustainability and
fiscal discipline must also be considered. The government must establish a
balance between addressing immediate needs and ensuring the viability of their
personnel and financial resources in the long run.
In conclusion, compassionate
employment provides a crucial safety net for families dealing with a loved
one's passing. It provides a lifeline to individuals in need and represents the
values of social justice and compassion. However, ongoing assessment,
transparency, and commitment to merit-based standards are necessary to
guarantee its efficacy and justice. Achieving this balance will enable
compassionate employment to carry out its admirable mission of supporting and
comforting families in their hour of greatest need.
REFERENCES
REFERENCES:
1. Dr.
Rakesh Kumar, Compassionate Appointment in Public Employment: An Analysis in
Present Scenario, Vol.8, EPRA (IJMR), 236, 2022.
2. Chemmalar
S., Compassionate Appointment: An Exclusive Social Security Scheme of
Dependant Benefit in India, SSRN, 1, (2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3813722&download=yes.
3. Tirlok Nath Arora, Dying in Harness: Law
of Compassionate Appointments, Journal of the Indian Law Institute, 38,
(1996).
4. Chirag H.B., Utsav B.C., An Analysis of
the Rights for Appointments in Public Posts on Compassionate Grounds, SSRN,
1, (2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4618495.
5. Constitution
of India, https://www.constitutionofindia.net/articles/article-14-equality-before-law/#:~:text=In%20its%20letter%20to%20the,article%20dealing%20with%20'equality%20before,
(Last Visited May 4, 2024).
6. Constitution
of India, https://www.constitutionofindia.net/articles/article-16-equality-of-opportunity-in-matters-of-public
employment/#:~:text=Draft%20Article%2010%20(Article%2016,or%20residence%20for%20government%20employment,
(Last Visited May 4, 2024).
CASE LAWS REFERRED:
1.
Director
of Education (Secondary) and Anr. v. Pashpendra Kumar and Ors.,(1998) 5 SCC
192.
2.
The State of West Bengal v. Debabrata Tiwari and Ors.
Etc. Etc., [SC] Civil Appeals Nos. 8842-8855 of 2022.
3.
N.C. Santhosh v State of Karnataka and Ors., (2020) 7
SCC 617.
4.
Shafin Jahan v. Asokan K.M. and
Ors., [SC] Criminal Appeal No. 366 of 2018.
5.
Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC
138.
6.
Malaya Nanda Sethy v State of
Orissa and Ors., 2022 SCC OnLine SC 684.
7.
State of Himachal
Pradesh and Ors. v. Shashi Kumar, (2019) 3 SCC 653.
8.
Canara Bank and Ors.
v. M. Mahesh Kumar, (2015) 7 SCC 412.
9.
Fertilizers and
Chemicals Travancore Ltd. and Ors. v. Anusree K.B., AIR 2022 SC 4766.
10.
Jagdish Prasad v.
State of Bihar, (1996) 1 SCC 301.
11.
Sushma Gosain v. Union
of India, (1989) 4 SCC 468.
12.
General Manager, State Bank of India
v. Anju Jain, (2008) 8 SCC 475.
[1] (1998) 5 SCC 192.
[2] India
Const., art. 14.
[3] India
Const., art. 16.
[4] Dr. Rakesh Kumar, Compassionate
Appointment in Public Employment: An Analysis in Present Scenario, Vol.8, EPRA
(IJMR), 236, 236-238, 2022.
[5] Chemmalar S., Compassionate
Appointment: An Exclusive Social Security Scheme of Dependant Benefit in India,
SSRN, 1, 1-6, (2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3813722&download=yes.
[6] Supreme Court, Civil Appeal Nos.
8842-8855 of 2022.
[8] Constitution of India, https://www.constitutionofindia.net/articles/article-14-equality-before-law/#:~:text=In%20its%20letter%20to%20the,article%20dealing%20with%20'equality%20before, (Last Visited May 4, 2024).
[9] Ibid. 8.
[10] Constitution of India, https://www.constitutionofindia.net/articles/article-16-equality-of-opportunity-in-matters-of-public-employment/#:~:text=Draft%20Article%2010%20(Article%2016,or%20residence%20for%20government%20employment, (Last Visited May 4, 2024)
[12] (2020) 7 SCC 617.
[14] India
Const., art. 39.
[15] Supreme Court, Crl. Appeal No. 366
of 2018.
[17] 2022 SCC OnLine SC 684.
[19] (2019) 3 SCC 653.
[20] (2015) 7 SCC 412.
[22] (1996) 1 SCC 301.
[23] (1989) 4 SCC 468.
Article Information
TILL DEATH AND THEREAFTER: A COMPREHENSIVE ANALYSIS ON COMPASSIONATE EMPLOYMENT
Authors: ADVITYAA MAKKAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/15
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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