Raj Kumar vs The State of U.P. and Others

V.K. Shukla, J.—Petitioner has rushed to this Court for issuing writ in the nature of mandamus commanding the Respondents to forthwith accord reconsideration to the Petitioner''s appointment as Sub Inspector in Civil Police, pursuant to communication dated 13.6.2009 of Deputy Inspector General of Police (Establishment) U.P. Police Headquarter, Allahabad.

Brief background of the case is that father of the Petitioner Late Raghuveer Singh expired in the year 2005, on 23.3.2005, while he was on duty. On account of the death of father of the Petitioner, the Petitioner became entitled to grant of compassionate appointment in accordance with 1974 Rules, governing grant of compassionate appointment. The Petitioner is Graduate (B.A.). The Petitioner being fully qualified and eligible for appointment, applied for grant of compassionate appointment in Civil Police before the Respondents authorities, the said application was made by the Petitioner on 11.5.2007. The application of the Petitioner for appointment on compassionate ground was forwarded by the then Senior Superintendent of Police, Agra to the Respondent No. 3, the DIG Establishment, U.P. Police Headquarter, Allahabad, for consideration for appointment however the Petitioner was not accorded any consideration for appointment in Civil Police. The Respondent authorities appointed the Petitioner vide order dated 11.10.2008 passed by the DIG Establishment U.P. Police Headquarters, Allahabad communicated vide order dated 12.11.2008, passed by the Senior Superintendent of Police, Agra on the post of Constable, in Civil Police. Petitioner joined thereafter and had been performing and discharging his duties.

Petitioner has tried to contend before this Court that Government Order dated 20.9.2006 and 25.6.2007 which prohibits making compassionate appointment on the post of Sub Inspector was quashed by this Court in Civil Misc. Writ Petition No. 4746 of 2008 on 7.8.2008. Petitioner has stated that in such a situation and in this background he ought to have been offered appointment following the same principle.

Sri Vijay Gautam, Advocate, learned Counsel for the Petitioner contended with vehemence that when two Government Orders have been set aside by this Court, then Petitioner''s claim is liable to be reconsidered on the post of Sub Inspector.

Learned Standing Counsel on the other hand contended that object of compassionate appointment is to save family from crisis and not to provide second opportunity, and Petitioner has availed opportunity, has joined and as such as on date such directives cannot be issued

Before proceeding to consider claim of Petitioner, view point through Judicial pronouncements are being looked into:

Hon''ble Apex Court in the case of State of Rajasthan Vs. Umrao Singh, has taken following view. Relevant para 8 and 9 is being quoted below:

Admittedly the Respondent''s father died in harness while working as Sub -Inspector, CID (Special Branch) on 16.3.1988. The Respondent filed an application on 8.4.1988 for his appointment on compassionate ground as Sub Inspector of L.D.C. According to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 14.12.1989. He accepted the appointment as L.D.C. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of ''endless compassion''. Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case.

Since both the sides relied on Naresh Kumar Bali''s case, we will not refer to the same. We had indicated our mind in that very ruling in paragraph 15 of the said judgment. It reads as under (SCC para 452, para 15)

Though the Respondent claimed that he had applied for the post of a teacher the Subordinate Service Selection Board had not chosen him for the post of teacher because he did not have the requisite qualification. In fact, the Respondent did not object to his appointment as a clerk and his claim for consideration for the post of teacher was one year after his appointment. Thus, the appointment on compassionate ground as per the scheme had been completed.

Therefore, once the right has consummated as we indicated earlier, any further or second consideration for a higher post on the ground of compassion would not arise.

Division Bench of this Court in the case of Pankaj Swami v. Vice Chancellor 2003(3) ESC 1268 has taken following view. Relevant para 2, 3, 4, and 5 are being quoted below:

"Facts and circumstances giving rise to this case are that Petitioner''s father, who was in service of the Respondents died in harness on 223.4.1997. Petitioner made an application for appointment on compassionate ground. He was appointed as a Lab Assistant in the Chemistry Department of Meerut College, Meerut. Subsequently Petitioner joined the said post and now, the present writ petition has been filed by the Petitioner praying that Respondents should be directed to make his appointment suitable to his qualification.

We have heard the learned Counsel for the parties and perused the record of the case.

An identical case was considered by the Hon''ble Apex Court in State of Haryana Vs. Naresh Kumar Bali, and it was held that once the applicant accepts the appointment on compassionate ground he cannot make a further claim for appointment on any other post on any ground whatsoever. It may be for the reason that it cannot be a case of compassion for all time to come. In State of Rajasthan Vs. Umrao Singh, the Hon''ble Supreme Court while rejecting a similar claim held as under:

He accepted the appointment as L.D.C. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of endless compassion. Eligibility to Police is one thing, the process of selection is yet another thing. Therefore, once the right has consummated as we have indicated earlier, any further or second consideration for a higher post on the ground of compassionate would not arise.

As the case stand squarely covered by the aforesaid judgment of the Hon''ble Apex Court, therefore, no relief can be granted to the Petitioner. Petition is accordingly dismissed.

In view of pronouncement of Hon''ble Apex Court, once appointment has been offered and same has been accepted, without raising any objection then opportunity to get compassionate appointment stands consumed and incumbent cannot claim that they be absorbed/offered appointment as matter of right against other post, commensurate to their qualification.

At this juncture, the object of providing compassionate appointment is also being looked, which has been exhaustively dealt with by Hon''ble Apex Court in the case of State of J and K v. Sajjad Ahmad Mir AIR 2006 SCW 3706, where Hon''ble Apex Court has taken the view that compassionate appointment cannot be claimed as matter of right, at the cost of others.

Relevant extract of aforementioned judgment (paragraphs 10, 11, 12, 13, 14 and 15) dated 17.07.2006 is being quoted below:

Having heard the learned Counsel for the parties, in our opinion, the appeal should be allowed. Certain facts are not in dispute. The father of the applicant who was in service, died-in-harness in March, 1987 and for the first time, the application was made by the applicant after more than four years i.e. in September, 1991. The family thus survived for more than four years after the death of the applicant''s father. Event at that time, the applicant, under the relevant guidelines, could not have been appointed and hence relaxation was prayed. It is no doubt true that the case of the applicant was favourably considered by the Departments and recommendation was made, but it is also la fact which has come on record that in March, 1996, a decision was taken by the authorities not to give appointment to the applicant on compassionate ground. From the affidavit-in-reply filed by the authorities in the High Court as also from the finding of the learned single Judge, it is clear that the applicant had knowledge about rejection of his application in 1996 itself. Nothing was done by the applicant against the said decision. Considerable period elapsed and only in 1999, when there was some inter-Departmental communication and Administrative Officer informed the Chief Engineer vide a letter dated 8th June, 1999 that the applicant could not be appointed on compassionate ground that the applicant woke up and filed a writ petition in the High Court. It is also pertinent to note that the letter of19099 itself recites that the case of the applicant for compassionate appointment was considered and the prayer had already been turned down by the Administrative Department and the said fact had been communicated to the office of the Chief Engineer. A copy of the said letter was also annexed to the letter of 1999. In our opinion, there ore, the learned single Judge was right in dismissing the petition on the ground of delay and latches by holding that the applicant had not done anything for a considerable period after March, 1996 when his claim was rejected even though he was informed about the decision and was very much aware of it. The Division Bench, in our view, was not justified in setting aside the said order and in directing the authorities to consider the case of the applicant for compassionate appointment and by giving directions to give other benefits.

We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought'' compassion'', the Bench ought to have considered the large issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the setback. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say ''goodbye'' to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution.

In State of Haryana and Others Vs. Rani Devi and Another, it was held that the claim of applicant for appointment on compassionate ground is based on the premise that he was Dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 and 16 of the Constitution. However, such claim is considered reasonable as also allowable on the basis of sudden crisis occurring in the family of the employee who had served the State and died while in service. That is why it is necessary for the authorities to frame Rules, Regulations or to issue such administrative instructions which can stand the test of Articles 14 and 16 . Appointment on compassionate ground cannot be claimed as a matter or right.

In Life Insurance Corporation of India Vs. Mrs. Asha Ramachandra Ambekar and another, it was indicated that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments.

In Umesh Kumar Nagpal Vs. State of Haryana and Others, it was ruled that public service appointment should be made strictly on the basis of open invitation of applications and on merits. The appointment on compassionate ground cannot be a source of recruitment. It is merely an exception to the requirement of law keeping in view the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases, the object is to enable the family to get over sudden financial crisis. Such appointments on compassionate ground, therefore, have to be made in accordance with Rules, Regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. This favorable treatment to the Dependant of the deceased employee must have clear nexus with the object sought to be achieved thereby, i.e. relief against destitution. At the same time, however, it should not be forgotten that as against the destitute family of the deceased, there are millions and millions of other families which are equally, if not more, destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectation, and the change in the status and affairs of the family engendered by the erstwhile employment, which are suddenly upturned.

In Smt. Sushma Gosain and Others Vs. Union of India (UOI) and Others, it was observed that in claims of appointment on compassionate grounds, there should be no 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 appointments should, therefore, be provided immediately to redeem the family in distress.

Thus inevitable conclusion is that purpose of providing compassionate appointment is to mitigate hardship due to death of bread earner in family, and once said object stands fulfilled by showing compassion and offering appointment, then any further compassion is clearly at the cost of others, who are in the que of job seekers, who can come forward to apply and comptete with each other, when normal rule of appointment would be followed. Further compassion is clearly dehors the mandate of Article 14 and 16 and is not at all permissible under the constitutional scheme, which guarantees of equality in the matter of employment.

Much stress has been laid by the Petitioners on the fact that they have been meted with arbitrary and discriminatory treatment and similarly situated incumbents have been absorbed, as such similar treatment be extended to Petitioners also. In this connection reliance has been placed on the judgment of Hon''ble Apex Court in the case of Surya Kant Kadam Vs. State of Karnataka and Others, has taken the view which is as follows:

It is true that the appointment on compassionate ground in the State of Karnataka is not governed by any statutory rules but by set of administrative instruction and as such is not enforceable in a court of law. But the ground on which the Appellant makes out the case for consideration of his case is the violation of Article 14 and discriminatory treatment meted out to the Appellant. It is undisputed that the date on which the Appellant was given a compassionate appointment as second Division Assistant/Clerk Excise he had the necessary qualification for being appointed as Sub Inspector of Excise. It is also undisputed that Respondents No. 3 and 4 were given appointment initially as Second Division Assistant/Clerk but later than the Appellant. When the State, therefore, though it fit to change the post of Respondent No. 3 and 4 and appointed them to the post of Sub-Inspector of Excise unless there in any justifiable reason existing, there is no reasons as to why the Appellant should be treated with hostile discrimination. In the aforesaid circumstances, we set aside the impugned order of the Tribunal rejecting the prayer of the Appellant for being considered for the post of Sub-Inspector of Excise and we direct that the State Government may consider the case of appointment of the Appellant as Sub-Inspector of Excise.

In the State of Karnataka, compassionate appointments were not governed by any statutory Rules, as is evident from judgment whereas in the State of U.P. compassionate appointments are governed by the Statutory Rules, known as U.P. Dying in Harness Rules, 1974. Said rule do not talk of second opportunity to an incumbent and also does not talk of absorption.

On the parameter of the provision as noted in the present case, this much is accepted that claim of the Petitioner for grant of compassionate appointment was considered and he was offered appointment on 11.10.2008 and he accepted the said appointment has been performing and discharging his duties. Merely because some incumbent had approached this Court and succeeded in getting Government Order quashed on 7.8.2008 in Writ Petition No. 4746 of 2008 of 2008 Mukesh Shukla v. state of U.P., same would ipso-facto not make selection of the Petitioner on compassionate appointment as bad and entitling the Petitioner tor claim better appointment based on the said judgment already rendered earlier. Object of compassionate appointment is to save family from crisis and not to repeat compassion. Once Petitioner has availed compassionate appointment and become member of cadre, then it is not at all open for the Petitioner to make request for re-consideration of his claim as per educational qualification. It is well settled that no directives can be issued for violating the Rules and negative equality can not be claimed. See State of U.P. Vs. Neeraj Awasthi and Others, Even if some persons have been re-appointed illegally, and second chance has been given to them same will not confer any right on Petitioner.

Consequently, present writ petition has no force and same is dismissed