The Judgment of the Court was delivered by

AR. Lakshmanan, J.:— Heard Mr. C.N Radhakrishnan, Special Central Government Standing Counsel for the appellants and Mr. K.P Devrajan for respondents. Hie appeal is directed against the judgment dated 11.7.1996 in O.P 4188/93.

2. The appellants are respondents 1 to 4 in the Original Petition. The first respondent's son by name K. Sudarsanan was employed under the second respondent in the Original Petition in the General Reserve Engineering Force (GREF) with effect from 5.2.1985 as a mason. Sudarsanan was granted 12 days casual leave from 16.12.1989 to 31.12.1989 While he was returning by Gauhati Express to resume his duties he died on 28.12.1989 due to a fall from the moving train. He was unmarried. He died leaving his parents, brother and sister. According to the appellants all the benefits due to the deceased were paid to Thankamma, the mother of the deceased whom Sudarsanan has nominated as his next of kin. On 7.3.1990 the first respondent applied to the appellants 1 and 2 for grant of family pension and also a request for giving appointment to his eldest son by name Babu. Since Babu had completed 30 years of age, the first appellant advised the first respondent herein to nominate any other male defendant whose age is between 18 to 30 in a prescribed proforma. This communication was sent through Ext P2. However, first respondent nominated his daughter Sulekha stating that she was unemployed and there was no other person. Since it was not possible to provide employment in the GREF to female candidates as per rules, Ext. P3 request was sent by the first appellant to the third appellant.

3. It is seen from Ext. P3 that the third respondent was requested to consider the name of the female ward of deceased GREF personnel for compassionate appointment as LDC/any other suitable post as per her qualification in lower formation of the army at an early date and if the said girl is given appointment on compassionate grounds in lower formations for the army, one male dependent of defence service person will be given employment in GREF and that the individual should be of the age group of 18 to 25 years and should most laid down medical standards. The home address of the applicant was also furnished in Ext. P3. The author concluded the said letter by requesting the third respondent to consider the female ward of the deceased for employment in any unit located near to her home town. Copy of the said communication was sent to other departments and also to the female ward of the deceased Sulekha. The first respondent passed Ext. P4 stating that they are unable to absorb the female ward of the deceased in their department in view of the ban of female employees in BRO. However, they had approached the Head Quarters Southern Command to ascertain feasibility of providing employment against vacancies of civilians in Defence in any of the establishment and that the response received was not favourable. Subsequently, the first respondent submitted representations to the first appellant and thereafter filed the Writ Petition contending that the ban on recruitment of female employees is illegal and unsustainable.

4. The appellants filed counter affidavit dated 10.2.1997 highlighting the fact that in view of the ban on employment to female candidates in the GREF the second respondent could not be employed and that the request for family pension could not be acceded to under the Family Pension Rules, 1972. The appellants also contended that all benefits due to the deceased had been paid to the wife of the first respondent herein and that the ban on recruitment of female employees in the Border Roads Organisation is not violative of Arts. 15 and 16 of the Constitution of India.

5. Learned single Judge however disposed of the Writ Petition by observing in para 5 as follows:—

“It is stated that eligibility of the 2nd petitioner is not disputed by the respondents. Only argument is that there is ban for employees in GREF. Such a ban cannot be in respect of all posts. In respect of the posts in ministerial wing, necessarily females can be employed, otherwise it is an act of discrimination. In the above circumstances, Original Petition is allowed directing the 2nd respondent to give employment to the 2nd petitioner in any ministerial post of Clerk or Typist, in any of the establishment under GREF.

6. With the above direction Original Petition is allowed. The direction shall be complied with within four months from the date of receipt of a copy of this judgment.”

7. The learned Judge issued a direction to the second appellant herein to give employment to the second respondent herein in any ministerial post of clerk or typist in any of the establishment under GREF and allowed the O.P on the said ground and also further directed the appellants to comply with the directions within four months from the date of receipt of the copy of the judgment Learned Judge proceeded with the case that a ban cannot be in respect of all posts in GREF and therefore, directed the second appellant to give employment to the second respondent in any ministerial post of clerk or typist in any of the establishment under GREF. Learned Central Government Standing Counsel submitted that the ramifications and impact of such judgment would be at the national level and since larger public policy is involved in the issue the appellants have filed the above appeal. It is also pointed out by the appellants counsel that there is dispute with regard to the eligibility of the second respondent for employment However, the learned Judge has found that there is no dispute by the appellants with regard to the eligibility of the second respondent herein which is not correct According to the learned Central Government Standing Counsel such eligibility has to be determined on the basis of the indigent condition of the family of the respondents and the rulings of the Supreme Court reported in L.I.C of India v. Mrs. Asha Ramachandra Ambekar ((1994) 2 SCC 718 : AIR 1994 SC 2148), Umesh Kumar Nagpal v. State of Haryana (1994) 4 SCC 138), Union of India v. Bhagwan Singh (1996 (1) LLJ 1127) and State of Bihar v. Samsuz Zoha etc. ((1996) 4 SCC 546 : AIR 1996 SC 1961). It has been ruled by the Supreme Court that compassionate employment can be granted only to tide over the immediate financial crisis resulting from the employees death and the same cannot be insisted upon as a matter of course. The object being to enable the family to get over the financial crisis which he face at the time of death of the sole bread winner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.

8. According to the learned counsel this issue has not been considered by the learned single Judge and hence the judgment is not correct At the maximum the learned Judge should have merely directed consideration of the claim of the second respondent in the light of Ext. P3 communication and rulings of the Supreme Court on the issue and that the direction to appoint the second respondent in GREF would only put the appellants herein in piquant situation especially when such appointment is contrary to the statutory provisions which remain unchallenged.

9. We are of the opinion that the direction issued by the learned Judge to appoint the second respondent herein in any of the ministerial post of clerk or typist in any of the establishment under GREF within four months is not correct As pointed out by counsel for the appellants the learned Judge should have merely directed the appellants the consideration of the claim of the second respondent in the light of Ext. P3 communication and the rulings of the Supreme Court and of this Court. The Courts have held that there is no fundamental right or enforceable civil rights in the matter of compassionate appointment especially when the Supreme Court has laid down the law on the issue in L.I.C of India v. Mrs. Asha Ramachandra Ambekar ((1994) 2 SCC 718 : AIR 1994 SC 2148). In this case, the statutory rules and its correctness have not been challenged nor file learned single Judge had the occasion to examine them. A Division Bench of the Madras High Court to which one of us (AR. Lakshmanan, J.) is a party in the judgment reported in Syndicate Bank, rep, by its Chairman & Managing Director, Manipal v. N.S Priya (1997 (1) MLJ 123) held that a right of dependent to get appointment on compassionate basis is not a vestal right and discretion given to the employer to offer appointment on compassionate grounds and such discretion has to be exercised fairly and reasonably having regard to the facts and circumstances of each case. A reading of the statutory rules it is manifestly clear that the appointment of the dependants of the deceased employee on compassionate ground is left to the discretion of the appellants. At the same time, we should not forget that such appointment on compassionate ground is provided to release the economic distress by the unexpected and sudden demise of the sole bread winner of the family. It is on the above basis the problem in question has to be approached. As already noticed the first appellant has no objection for this court in issuing a direction for consideration of the claim of the second respondent herein in the light of Ext. P3 communication and the rulings of the Court on the issue. Under Ext. P3, a request was made by the first appellant to consider the female ward of the deceased GREF personnel for appointment on compassionate basis as LDC/any other suitable post as per her qualification in lower formation of the army at an early date and that the second respondent's name be considered for employment in any unit located near to her home town, namely Quilon, Kerala State. We therefore, modify the direction issued by the learned Judge to the following terms.

10. We therefore, issue a mandamus directing the third appellant herein to consider the name of the second respondent herein for appointment on compassionate ground as LDC or any other suitable post in accordance to her qualification in lower formation of the army at an early date in any unit located in Quilon District, Kerala State. If for any reason no vacancy is available in the said area they may consider her name for appointment in any other nearby area. The second respondent respondent shall make a fresh application in the form prescribed within two weeks from today and the third appellant shall consider and pass final orders in accordance with law within three months thereafter. Writ Appeal is disposed of. C.M.P No. 5463/96 stands dismissed.