S.B. Sinha, C.J.

1. How far and to what extent a policy decision as regards grant of compassionate appointment can be implemented is the question involved in this Letters Patent Appeal which has arisen out of a judgment and order dated 19.7.2001 passed by a learned Single Judge in CWP 7694/99.

2. The basic fact of the matter is not in dispute.

3. One Roshan Khan was a regular employee of Municipal Corporation of Delhi in its Horticulture Department. He died on 6.4.1983. The appellant filed an application for appointment on compassionate grounds stating that he had attained the age of 18 years. In fact, however, the appellant was a minor at the relevant time. The said application was rejected. An industrial dispute was raised leading to a reference by the appropriate Government to the Industrial Tribunal in the following terms:

Whether Sh. Veer Mohd. s/o late Sh. Roshan Khan, Mali is entitled to be appointed on a suitable post on compassionate grounds and if so, what directions are necessary in this regard

4. An award dated 11.3.1999 was made by the Industrial Tribunal in favour of the appellant herein terms whereof the respondent was directed to appoint him as Mali on compassionate grounds from the day the award coming into force.

5. A writ petition was filed by the respondent questioning the said award.

6. It is not in dispute that the appellant was minor on 6.4.1983 when his father died.

7. The appellant herein, however, filed an application for appointment on compassionate grounds in 1991 which was rejected as barred by time on 26.12.1991.

8. Learned Tribunal however proceeded on the basis that the management itself had advised the appellant to apply for appointment after he attains the age of 18 years.

9. Learned Single Judge, however, by reason of the impugned judgment set aside the said award holding, inter alia, that the appellant cannot claim as a matter of right an appointment on compassionate grounds after a long time.

10. The learned Counsel for the appellant would urge that having regard to the findings arrived at by the learned Tribunal, the learned Single Judge must be held to have erred in passing the impugned judgment. Learned Counsel would contend that a beneficial scheme like appointment on compassionate grounds to a ward of an employee who has died in harness must be construed liberally. Strong reliance was placed on a decision in Balbir Kaur v. Steel Authority of India Ltd., IV (2000) SLT 706=2000 (4) SCALE 670. [LQ/SC/2000/900] Learned Counsel would also contend that in a case of this nature the principle of social justice should be applied and as a logical corollary thereof it must be held that the Industrial Court can pass an appropriate order creating new rights and obligations between the employer and the workman. Reliance in this connection has been placed on J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. Badri Mali and Ors., 1964 (3) SCR 724 [LQ/SC/1963/157] ; Messrs Crown Aluminium Works v. Their Workmen, 1958 SCR 659; and Union of India v. EID Parry (India) Ltd., I (2000) SLT 602=2000 (2) SCC 224.

11. A compassionate appointment would depend upon the existence of vacancies available at the relevant time. It is well settled principle that appointment on compassionate ground is made only by way of an exception to the constitutional mandate contained in Article 16(2) of the Constitution of India and it cannot be claimed as a matter of right. No individual has a right to claim that he be appointed to a particular post. In this connection, it is appropriate to refer to the decision of the Apex Court in Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 [LQ/SC/1994/497] , wherein the Apex Court dealing with the case of a dependant of a deceased Government servant observed :

The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a 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 grounds, the object being to relieve the family of the financial destitution and to help it get over the emergency...... 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.

12. In a recent judgment, Full Bench of Andhra Pradesh High Court in Government of Andhra Pradesh v. D. Goaiah, Writ Petition No. 13489 of 2000, declared that circulars issued for grant of appointment on compassionate grounds on medical invalidation is violative of Article 16(2) of the Constitution. The Court observed:

On a plain reading Article 16 of the Constitution of India carries no exception. The Apex Court, however, in Yogender Pal Singh v. Union of India, AIR 1967 SC 1015, stated :

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 the children or wards or other relatives to such police officers would be contrary to Article 16 of the Constitution.

The Apex Court referred to its earlier decision in Gazula Dasaratha Rama Rao v. State of Andhra Pradesh, AIR 1961 SC 564 [LQ/SC/1960/316] , and held that grant of public employment only on descent is impermissible. It was opined :

We are of opinion that the claim made by the appellants for the relaxation of the Rules in their case only because they happen to be the wards or children or relatives of the police officers has got to be negatived since their claim is based on descent only and others will thereby be discriminated against as they do not happen to be the sons of police officers. Any preference shown in the matter of public employment on the grounds of descent only has to be declared as unconstitutional. (Emphasis supplied)

The matter relating to grant of compassionate appointment only in limited situation took its root in, public employment. The State and the Central Governments issued several circulars, took various policy decisions and also changed their policy decisions from time to time resulting in spurt in litigation. A close study of the circulars issued by the State as also the pattern, of litigations generating therefrom leads us to take judicial notice about gross abuse of the schemes and inherent lack of safeguards.

A lot of employment is generated through the populist scheme of regularization of services. There are schemes for employment for displaced persons, schemes for taking over the services of the taken over projects, landless persons and so on and so forth. A person can obtain appointment in terms of aforementioned schemes or on contract basis, on political pressures, on demand of trade unions, as also on the pressures of the non-governmental organisations. The long and short of the matter is that unless there is somebody to push his case, an employment cannot ordinarily be obtained by a citizen in terms of Articles 14 and 16 of the Constitution of India. The majority of the population faces the paradox of articulated programmes for obtaining employment.

The State has for one reason or the other compromised with the basic principles underlying grant of public employment and has deviated from the constitutional norms, sometimes it widened the scope and ambit of grant of appointment on, compassionate ground to such an extent that it had to backtrack its steps. The States policy decision in this regard had never been on firm root. They took different steps at different times depending on the whims and caprice of the concerned officer or acted on pressure of the Employees Unions.

The law interpreting Articles 14 and 16 of the Constitution of India in this regard has also undergone ups and downs.

All employees one day or the other have to retire on superannuation on attaining the age prescribed therefor. Some persons may be unfortunately forced to take voluntary retirement on medical grounds. Can sympathy for those few unfortunate permit the State to evolve a scheme which would be violative of Article 16(2) of the Constitution of India Should the society tolerate such schemes, which are observed more in their breach Abuse or misuse of such scheme is for all intent and purport stands admitted.

13. The purpose and object for which such appointment is granted is now well known. Appointment on compassionate grounds is granted when an employee dies in harness leaving his family in penury without any means of livelihood. Grant of appointment on compassionate ground enables the family to tide over sudden crisis. Nobody has any fundamental or statutory right to claim employment on compassionate grounds. It is also well-settled that the right for an appointment on compassionate ground must exist as on the date on which cause of action arose therefor namely at the time when the employee dies in harness.

14. A minor has no right of employment. The appellant was a minor in 1983. He could be appointed upon the death of his father provided he was eligible therefor. If he did not have eligibility, the question of considering his case for appointment on compassionate grounds did not arise.

15. In Durand Didier v. Chief Secretary, U.T. of Goa., JT 1989 (3) SC 507 [LQ/SC/1989/427] , the Apex Court has emphasized that there should not be any delay in appointment. If a family has been able to tide over the crisis for a long time, the question of tiding over the immediate crisis would not arise.

16. In the instant case, the appellant herein prayed for appointment on compassionate grounds in the year 1991 i.e. 8 years after death of his father.

17. It appears from the records that time limit had been fixed by the Central Government for filing of such application, and thus the same was rejected on the ground that the same was barred by limitation. In Umesh Kumar Nagpal v. State of Haryana (supra), it was held that :

The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. 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 interest 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 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, crises. 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 crises that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, 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 rational 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 family 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 suddenly unturned.

6....the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crises which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered wherever the lapse of time and after the crises is over.

(Emphasis supplied)

18. Yet again in Pushpinder Kumar v. Dte of Education, 1998(5) SCC 192, the Apex Court held :

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 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. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, 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 of the dependant of a deceased employee.(Emphasis supplied)

19. The question has also been dealt with in LIC v. Asha Ramchandra Ambekar, AIR 1994 SC 2148 [LQ/SC/1994/286] . In State of Haryana v. Hawa Singh, 1995 Supp. (2) SCC 258, the Apex Court while considering the entitlement of a son of incapacitated father, who retired from service on being found medically unfit for driving heavy vehicles, for compassionate appointment, set aside the direction of the High Court for providing suitable job to one of his sons in a post commensurate with the educational qualifications possessed by the applicant. In Hindustan Aeronautics Ltd. v. A. Radhika Thirumala, AIR 1997 SC 123 [LQ/SC/1996/1687] , the Apex Court held that where no vacancies are available, candidate could not insist that he should be appointed on compassionate ground.

20. Having regard to the fact that the petitioner was a minor at the time of death of his father and furthermore he applied eight years after death of his father, we are of the opinion that the discretion exercised by the learned Single Judge need not be interfered with.

21. It may be true, as submitted by the learned Counsel, that industrial law must be viewed having regard to the concept of justice but social justice cannot be permitted to override the constitutional mandate contained in Clause (2) of Article 16 of the Constitution of India.

22. Appointment on compassionate grounds is, as noted above, an exception to Clause (2) of Article 16 of the Constitution. Exception to a constitutional provision must, it is trite, be strictly construed. Constitutional provision cannot be negated by applying doctrine of social justice. In the aforementioned view of the matter we are of the view that the decision of the Apex Court in J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. Badri Mali and Ors. (supra) and Messrs Crown Aluminium Works v. Their Workmen (supra), which were rendered in different factual matrix and cannot be said to have any application in the instant case.

23. In Balbir Kaurs case (supra), the Apex Court was considering a different fact situation. In that case, the appointment on compassionate grounds was denied on the ground that the family benefit scheme as introduced by NJSC Tripartite Agreement of 1989 Scheme which was held to be not counter to the legislative scheme to allow appointment on compassionate grounds. It was held that the grant of payment of gratuity and family pension scheme have no relevance as regards the scheme of grant of appointment on compassionate grounds. Such is not the position here.

24. In Union of India v. EID Parry (India) Ltd. (supra), the Apex Court has held that the provision of the maternity benefit should be provided to the casual employees. Statutory provisions which is beneficial in nature may be extended to a group of persons who may otherwise be not entitled thereto but the principle of social justice cannot be extended to a constitutional mandate. No case is made out for interference with the impugned judgment.

25. It is dismissed accordingly. But in the facts and circumstances of this case, there shall be no order as to costs.