Q:My father was employed with a nationalised bank. After his death, the bank completed all the formalities for giving me appointment on compassionate grounds. Subsequently, it sent an offer letter to choose between ex-gratia amount or the appointment. My mother replied opting for the appointment. Seven months later, the bank requested us to apply for the ex-gratia option within a time period. We didn’t take advantage of that. Our financial position is not good. I am a commerce graduate with 56 per cent marks. What legal option is open to me?
Swarup Kumar Das
A:The general rule is that appointment to public service should be on merit and through open invitation. However, in cases where an employee dies in the course of his employment, exceptions may be made by giving employment to a member of the family of the deceased employee. The rationale behind such ‘compassionate appointment’ is to enable the family of the deceased employee to tide over the sudden financial crisis of losing its bread winner. Thus, the surviving members cannot be said to have a vested right to insist on appointment.
This does not mean that such appointments are to be made or refused at the whim or fancy of the employer. The bank in question has certain existing rules and/or notifications on the basis of which it had offered your family the option of employment and you are entitled to insist that the bank adheres to that. It appears that after taking all steps to give effect to such rules, the bank after a long delay is purporting to retract its offer. Thus, if you can demonstrate that the bank has acted arbitrarily, you have the option to apply to the high court under Article 226 of the Constitution to secure its compliance with the rules. You may point out that the object of granting such appointment is to help the family in distress and as such, it is improper for the employer to keep such appointments pending for a long time. Though the court cannot directly grant appointment in your favour, it may, after considering the facts, direct the bank to dispose of or consider your application for appointment in accordance with law within a specific time.
Q:My adoptive father worked as a Group D staff in a government school and died before retirement. Am I entitled to apply for a job in the school by reason of my father’s death? The school authorities are saying there is no provision to accommodate an adopted son.
Niranjan Banik
A: Section 12 of the Hindu Adoptions and Maintenance Act, 1956, provides, inter alia, that an adopted child shall be deemed to be the child of his or her adoptive father or mother “for all purposes” with effect from the date of adoption. Thus, if the rules governing the said school relating to the grant of ‘compassionate appointment’ provide that the school is permitted to grant such appointment in favour of a ‘son of an employee who died in harness’, then you, as an adopted son, are eligible for consideration. It is well settled by the courts that in cases where the definition of ‘family’ expressly excludes adopted sons or daughters, an adopted child is to be considered a member of the ‘family’. This is in consonance with the definitions in the General Clauses Act where the law treats the ‘adopted son’ as a ‘son’. Thus, your claim for appointment on compassionate grounds cannot be rejected outright on the grounds of your being adopted. Of course, the school has to be satisfied that your adoption was valid and the financial condition of your family is such that you deserve that appointment.
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