The Supreme Court has observed that a High Court, in the exercise of judicial review under Article 226 of the Constitution, cannot re-write the terms of the compassionate appointment policy formulated by the state.
The bench comprising¬†Justice Dhananjaya Y Chandrachud and Justice Hemant Gupta¬†was considering state’s appeal against the Himachal Pradesh High Court judgment which held the State should consider cases for appointment on compassionate basis by dealing with the applications submitted by sons, or as the case may be, daughters of deceased government employees, even though, one member of the family is engaged in the service of the government or an autonomous board or corporation.
The state’s policy, formulated in 1990, clearly contained a stipulation that where one or more persons of the family are already in the employment of the State Government or of autonomous bodies, Boards, Corporations, etc. of the State or the Central Government, employment assistance should not be provided to another member of the family. However, it provided an exception in the case of the widow of the deceased government employee, if she claims that her employed children are not supporting her.
The bench, allowing the appeal (State of Himachal Pradesh vs. Shashi Kumar) filed by the state, said: “This direction of the judgment of the High Court virtually amounts to a mandamus to the State Government to disregard the terms which have been stipulated in paragraph 5(c) of its policy dated 18 January 1990. The policy contains a limited exception which is available only to a widow of a deceased employee who seeks compassionate appointment even though one of the children of the deceased employee is gainfully employed with the State. The basis for this exception is to deal with cases where the widow is not being supported financially by her children.”
The same bench had also set aside another judgment of the Himachal Pradesh High Court in which directed the state to desist from taking into account the family pension and other terminal benefits. In the said case, the court observed that policy mandates that the receipt of family pension should be taken into account in considering whether the family has been left in indigent circumstances requiring immediate means of subsistence.
“In view of the clear terms of the Policy, we are of the view that the High Court was in error in issuing a mandamus to the Government to disregard its Policy. Such direction could not have been issued by the High Court.”¬†, the bench said.