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Judgment
This order shall dispose of four writ petitions.
Facts of writ petition No:895 of 1992 are as under.
The petitioner submits that his father died in harness. On account of this happening he applied for getting appointment on compassionate
grounds. According to the petitioner he was entitled to appointment in terms of SRO 194 of 1989 and SRO 283 of 1991. The grievance of the
petitioner is:
(i) That he applied for the post of SubInspector.
(ii) That he was fully eligible for the post.
(iii) That instead of appointing him as SubInspector he was given the job of Excise Guard.
(iv) Similarly situated persons has been appointed as SubInspector. Name of these persons have been indicated as respondents No.5 and 6 in this
petition.
On the basis of above it is submitted that the petitioner should have been appointed as Excise Sub Inspector. It is further submitted that even
though a vacancy was available and even though some recommendations were made, appointment was not made for a period of two years. Later
on he was appointed as Excise Grard. Thus the only grievance of the petitioner, appears to be that he should have been appointed as Excise Sub
Inspector. The appointment given as a Excise Guard is not the proper appointment, As indicated above, he is seeking parity with two persons
whose names have been given as respondents No.5 and 6.
It be seen that so far as allegations are concerned, these find mentioned in para 3(k). There is no specific reply to the aforementioned
paragraphs
Facts of writ petition No.555 of 1998 are as under :
Petitioner who was seeking compassionate appointment has been appointed as a class iv employee. He is seeking appointment to the post of
Junior Assistant.
Circumstances under which this petition has come to be filed in this court be noticed. Father of the petitioner was working as Naib Tehsildar. He
died in the year 1993. At that point of time, the petitioner was studying in part1 (Higher Secondary). He submitted an application. He was
appointed as classIV employee on 29th of January 1998. The petitioner submits that he should have been appointed as Junior Assistant. Reliance
is being placed on SRO 43 of 1994. Particular reliance is being placed on Rules. This provision reads as under: ""3. Appointment under these
Rules:(l) Notwithstanding anything contained in any rule or order for the time being in force regulating the procedure for recruitment in any service
or posts under the Government an eligible family member of a person specified in Rule 2 may be appointed against a vacancy in the lowest rank of
a nongazetted service having qualification above matriculation or to a class IV post if the candidate has read up to Matric.
Facts of writ petition No: 911 of 1998 are as under:
Petitioner sought appointment on compassionate grounds. He is having qualification 10+2(Higher Secondary). Under Rule 3 of 1994, if a person
possess qualification above matriculation, then he is not to be appointed against post of class IV. This has not happened in this case. Petitioner who
has been appointment against class IV post wants appointment against the post of Work Supervisor. He made reprentation in this behalf. These
are pending with the Stateauthorities.
Facts of writ petition No: 269 of 1997 are as under .
Petitioner submits that her son namely Chand Jee Bhat died on account of militant related violence. FIR in this regard was lodged with the
concerned authorites. FIR number is 169/90. The aforementioned Chand Jee Bhat was working in defence service. Petitioner and her husband
wanted their other son Bhushan Lal Bhat to be given appointment on compassionate ground. Application annexures P/3and P/4 were submitted.
Application was also submitted for exgratia relief. In the meanwhile, husband of the petitioner has also died. In these circumstance, she submits that
State should have considered the case of her son for giving compassionate appointment. It is stated that other persons similarly situated were
granted exgratia relief and compassionate appointments were offered to them. Petitioner is seeking appointment of her son in terms of SRO43 of
1994.This petition is pending in this Court for more than a year
Even though opportunities of adjournments have been given. State has not taken any step to file objections. Petition admitted. With the consent
of parties, it is taken up for final disposal.
A plain reading of the aforementioned Rule 3 make it apparent that a person who possesses qualification above matriculation, is to be
appointed against the vacancy in the lowest rank of nongazetted service. If a candidate has acquired qualification up to metric, then he is to be
appointed, against classIV post only, Above is the plain interpretation of the Rule 3 referred to above. If this be the position then the petitioners are
well within their rights to contend that they should be appointed against the post other than classiv post. Some judicial precedents in this regard be
noticed. In Smt Shanti Devi. V. State of Haryana 1992 (6) SLR 320, a Division Bench of Punjab and Haryana High Court has observed that
object of granting compassionate appointment is to see that kith and kin of the deceased are provided with livelihood so that they can live a
respectable life. According to the Division Bench, this object can be achieved only if post off erred is commensurate with the academic
qualification of a person seeking appointment. Appointment to the lowest post would amount to humiliating the person concerned. Relevant
observations are being quoted as under:
Logic behind such instructions being that such kith and kin should be provided with a source of livelihood that they should have respectable living,
which can only sic if posts in consonance with the academic qualification are offered. The object of such instructions is not to humiliate a person by
offering a very lower post.
The Supreme Court of India in case reported as Smt. Kamala Gaind Vs. State of Punjab and others, 1992 (5) SLR 864, observed that even in the
case of compassionate appointment, there has to be some rationale. Son of the Additional District Judge, who was claiming compassionate
appointment, was not given ClassI post whereas others were given. Direction was issued to provide him with a job in Punjab Civil Service
(Executive) Branch.
The object of giving appointment on compassionate grounds is to see that dependents of the deceased's family do not suffer on account of financial
constraint. Even if the post has to be created, that should be done. Such was the view expressed in case reported as Govind Kushwaha Vs. State
of Punjab 1993(4) SCT 342.
In Smt. Darshana Devi V. State of Haryana 1998 (1) Set 481, the husband of the petitioner, died while holding the post of Multipurpose
Health worker in the pay scale of 12002040. Her application for exgratia employment was accepted but she was offered appointment as Class IV
employee in the pay scale of Rs 750940.The Government instructions were that the cases of such persons should be considered for appointment
on a post carrying one scale lower than the post held by the deceased. Taking note of these instructions, directions were given to the State
Government to offer the job carrying one pay scale lower than the scale which the deceased was enjoying. The view of this court is also the same.
In Sajawarjit Sharma versus State of J and K and others SWP No: 142 of 1997, decided on 10th of May 1997, it was observed that job
which is offered should be commensurate with the educational qualifications. What was observed in the aforementioned judgment, is being noticed.
The petitioner being a matriculate and because of the untimely demise of his father could not continue his studies and also because of the
circumstances, he had to accept whatever meagre is offered to him to save himself and his family from starvation but that is not the intent of the
scheme and the rules promulgated to provide appointment on compassionate grounds that may result in harassment. The job offered should be
commensurate to the qualification to lead a respectful life in the society. There was no difficulty or dearth of posts with the respondents to consider
the petitioner for appointment against the post of Jr. Assistant.
In view of the above opinion expressed by the Supreme Court of India, Punjab, and Haryana High Court and this Court, it can safely be
concluded that the job which is to be offered should be commensurate with qualifications of the person seeking appointment. In the present case,
Rule 3 is categorical. Person having qualifications above matriculation is to be given post of Junior Assistant and above.
These petitions are accordingly allowed. Respondents are directed to take notice of the observations made above. Respondents would
process the case for further orders. Let it be done within a period of four months. The period of four months would begin from the date a copy of
order passed by the court alongwith writ petition and annexure thereof is made available by the petitioners to the respondents. If for any practical
reasons it is not possible to take a decision within above mentioned period, respondents would be at liberty to seek extension of time. But in that
eventuality they would have to explain each and every day's delay.
Before parting with this order, reference may also be made to the order passed in SWP No: 488 of 1998 decided on 29.06.98. In the above
case it was concluded as under:
(i) in the matter of making compassionate appointment, the paramount consideration is to see that the members of the deceased family are
provided with relief which would mitigate the financial crisis.
(ii) the word acquire' devotes a conscious act. An effort is made to obtain something. Eligibility on account of death is an event which can never be
acquired.
(iii) the period of six months limitation prescribed in the Rule 3 would apply only to acquisition of eligibility qua educational technical and other
qualifications.
(iv) that the rules of 1994 are not retrospective. This would govern only those cases where death has taken place after 22.02.1994. The old cases
would be continued to be governed by the old Rules.
(v) that the Government is within its rights to relax any of the Rules and if the Government comes to the conclusion that financial crisis is still being
faced by the family and as that is the basic factor which guides the authorities in making compassionate appointment, the Government can still make
appointment notwithstanding the prescription of the period of limitation.
(vi) that in all cases what is required to be seen is that the hardship which the family is required to be mitigated. If the family is not suffering any
hardship then notwithstanding the presence of all other criteria's, the appointment can be denied. If the family is suffering from hardship, then
compassion has to be shown. Rules can be relaxed. State has to show benevolence
The respondents would take notice of the above position and more so while dealing with the writ petition No: 269 of 1997 of the writ petitioner.
All petitions which are admitted and taken up for final disposal with the consent of the parties are disposed of accordingly.