Sushma Gosain And Others v. Union Of India And Others, Supreme Court Of India, Judgment, Law, casemine.com

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Case Number

Civil Appeal No. 3642 of 1989, decided on August 25, 1989

Disposition

Advocates

Ms C. Ramamurthy, Advocate, for the Appellants;
B. Datta, Additional Solicitor General (Ms Sushma Suri and Hemant Sharma, Advocates, with him), for the Respondents.

Judges

Justice K. Jagannatha Shetty
Justice M.N. Venkatachaliah

Acts

Section 4, Subsections (1) and (4) of the Army Act, 1950

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Smart Summary

Factual and Procedural Background

Ram Kumar, a Storekeeper with the Department of Director General Border Road (DGBR), died in October 1982. His widow, Sushma Gosain (Appellant 1), and their two minor children (Appellants 2 & 3) were left without a breadwinner. In November 1982, Mrs Gosain applied for compassionate appointment as a Lower Division Clerk under Government Memorandum OM No. 14034/1/77-Estt.(D) dated 25-11-1978. She sat for the written, trade and interview tests in 1983 and was declared successful. Despite repeated approaches, DGBR neither appointed her nor gave a definitive answer, consistently stating that her case was “under consideration.”

In September 1985, Mrs Gosain filed a writ petition before the Delhi High Court seeking a mandamus directing DGBR to appoint her. DGBR opposed the petition, citing a Central Government Notification dated 25-01-1985 issued under Section 4 of the Army Act, 1950, which allegedly barred the appointment of women in the establishment. The High Court summarily dismissed the petition, noting (i) the department’s claimed efforts to find her alternative employment, and (ii) the petitioner’s inability to nominate a male relative for the post. Mrs Gosain and her children then appealed to the Supreme Court.

Legal Issues Presented

Whether the DGBR’s refusal to appoint Mrs Gosain on compassionate grounds, despite her qualifying in 1983, was arbitrary and violative of the applicable government memorandum.
Whether a subsequent 1985 government notification prohibiting the appointment of women could lawfully defeat a compassionate-appointment claim that had matured prior to its issuance.
Whether delay in deciding compassionate-appointment requests defeats the object of such schemes and warrants judicial intervention.

Arguments of the Parties

Appellant’s Arguments

Mrs Gosain was fully qualified for the post after passing the requisite tests in 1983 and therefore had an accrued right to appointment under the 1978 government memorandum.
The ban introduced in 1985 could not retrospectively negate her entitlement.
The prolonged delay was unjust, defeating the very purpose of compassionate appointments meant to alleviate immediate family hardship.

Respondent’s (DGBR) Arguments

A 25-01-1985 Central Government notification under the Army Act barred the employment of women in the establishment, making it impossible to appoint Mrs Gosain.
The department made efforts to secure her employment in other organisations but was unsuccessful.
If she nominated a male family member, DGBR would consider him for appointment.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Supreme Court found the High Court’s dismissal “mechanical” and lacking a “sense of justice.” Key points of its analysis include:

Accrued right before the ban: Mrs Gosain had already qualified for compassionate appointment in 1983; hence, the 1985 ban on employing women could not be used retrospectively to defeat her claim.
Purpose of compassionate appointments: Such schemes exist to mitigate the immediate hardship of the bereaved family. Prolonged delays defeat this statutory purpose.
Administrative obligation: Once an applicant qualifies, the department must either offer an existing vacancy or create a supernumerary post. Bureaucratic inaction cannot justify denial.
Arbitrariness: The refusal to appoint for three years, followed by reliance on a later ban, was held to be patently arbitrary and unsustainable.

Holding and Implications

ALLOWED. The Supreme Court set aside the Delhi High Court’s order and directed Respondent 2 (DGBR) to appoint Mrs Gosain to the post for which she had qualified, at an appropriate location in Delhi, within three weeks. Costs of Rs 15,000 were also awarded, payable within the same period.

Implications: The judgment underscores that compassionate-appointment claims must be processed expeditiously; administrative delays or subsequent policy changes cannot retroactively impair accrued rights. While the ruling primarily grants relief to the appellants, the Court’s emphatic observations signal that departments must create supernumerary posts if necessary, thereby reinforcing the immediacy principle behind compassionate appointments.

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Sushma Gosain And Others v. Union Of India And Others

K. Jagannatha Shetty, J.— Special leave granted.

2. We must first express our disapproval of the way in which the department of Director General Border Road (“DGBR”) has behaved in this pitiable case.

3. Ram Kumar was working as Storekeeper in the Department of Director General Border Road (“DGBR”). In October 1982, he died in harness leaving behind the appellants. Appellant 1 — Sushma Gosain is his widow and Appellants 2 and 3 are his minor children.

4. In November 1982, Sushma Gosain sought appointment in DGBR as Lower Division Clerk on compassionate grounds. In January 1983 she was called for the written test and later on for interview. She was said to have passed the trade test. But nonetheless she was not appointed. Whenever she approached DGBR, she was told that her case was under consideration.

5. In September 1985, Sushma Gosain filed writ petition in the High Court of Delhi for a direction against DGBR to appoint her in a suitable post. She was entitled to appointment in terms of Government Memorandum OM No. 14034/1/77.Estt.(d) dated 25-11-1978 issued by the Ministry of Home Affairs. DGBR however, resisted the writ petition with the primary contention that the appointment of ladies in the establishment was prohibited. In support of the contention, DGBR relied upon a Notification dated 25-1-1985 issued by the Central Government under sub-sections (1) and (4) of Section 4 of the Army Act, 1950. The DGBR however, mercifully stated that it approached other departments to get an employment to Sushma Gosain in order to mitigate her hardship, but everyone regretted. Interestingly, it was also stated that if Sushma Gosain nominates a male member of her family, he could be considered for appointment. This was not without the knowledge that she has only a minor son.

6. The High Court dismissed the writ petition by the brief order which reads as under:

“An affidavit has been filed on behalf of the respondents setting out all the relevant facts and the attempts made by them to provide employment to the petitioner. It is apparent from the said affidavit that it has not been possible to do anything for the petitioner.

Counsel for the petitioner has told us that her client is not able to provide the name of a male relation to whom employment could be offered. In these circumstances, even this alternative is not possible.

Since we cannot give any relief to the petitioner, this petition is dismissed.

sd/-

T.P.S Chawla

Chief Justice

sd/-

Y.K Sabharwal

Judge”

7. The appellants appeal to this Court.

8. We heard counsel on both sides and gave our anxious consideration to the problem presented. It seems to us that the High Court has made the order in a mechanical way and if we may say so, the order lacks the sense of justice. Sushma Gosain made an application for appointment as Lower Division Clerk as far back in November 1982. She had then a right to have her case considered for appointment on compassionate ground under the aforesaid government memorandum. In 1983, she passed the trade test and the interview conducted by the DGBR. There is absolutely no reason to make her to wait till 1985 when the ban on appointment of ladies was imposed. The denial of appointment is patently arbitrary and cannot be supported in any view of the matter.

9. We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground 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. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.

10. In the result, we allow the appeal and in reversal of the order of the High Court, we direct Respondent 2 to appoint Sushma Gosain — Appellant 1 in the post to which she has already qualified. We further direct that she shall be appointed in an appropriate place in Delhi itself. The appointment shall be made within three weeks from today.

11. The appellants are entitled to their costs which we quantify at Rs 15,000 and it shall also be paid within three weeks.

Sushma Gosain And Others v. Union Of India And Others

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant’s Arguments

Respondent’s (DGBR) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sushma Gosain And Others v. Union Of India And Others

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