Saraj Singh vs State of Jammu and Kashmir

Facts of the case are these. The father of the petitioner, Late S. Iqbal Singh was a Deputy Superintendent of Police and died in harness. After

the death of his father petitioner applied for appointment on compassionate ground. The Government appointed him Head Constable in the Police

Department by order dated 1.8.1995. However petitioner was not satisfied with this offer because according to him respondents have acted

arbitrarily in the matter of compassionate appointments in as mush as while respondents 4 and 5 were appointed Inspectothers, respondent No.6

was appointed Assistant SubInspector, although they were also similarly placed with the petitioner. The case of the petitioner is that he possesses

similar qualifications as were possessed by respondents 4 and 6 at the time of their appointment. There was thus no justification for appointing him

as Head Constable and is a discrimination between the similarly situated persons thereby offending Article 14 of the constitution. He therefore,

claims that respondents be directed to appoint him atleast Assistant SubInspector of Police if it is not permissible to adjust him on any higher post.

In the objections filed on behalf of official respondents it is stated that petitioner is not similarly situated with the private respondents because his

father died a natural death whereas those of private respondents were killed while fighting militancy in Kashmir.

Mr. Singh appearing for the petitioner argued that respondents have by offering the post of Head Constable humiliated the petitioner so that he

does not join the post. The offer according to him is against the status of the post held by his father at the time of his death. The family background

of the petitioner it is argued does not permit him to accept the offer because his mother, who also died in a bus accident, was a teacher and he is

expected to maintain the same level of standard in the family. He also pointed out that the government cannot discriminate in the matter of

compassionate appointments between similarly situated persons. However according to him it is a wothersed case of discrimination where private

respondents have been appointed on higher post even though at the time of death their father s were also holding the same position as the father of

the petitioner.

Mr.Kapoor appearing for the respondents argued that petitioner has not brought on record the facts indicating how and in what circumstances

private respondents were appointed Assistant SubInspector and Inspectothers of Police after the death of their fathers, in the absence of which it

cannot be said that he has been discriminated. However as a matter of fact respondent No.4 was appointed as Inspector because his father, Late

Shri Nazir Ahmad was killed by the militants while on duty as S.P. Security, New Secretariat, Srinagar. The father of respondent No.5 was also

killed in similar circumstances. The State was thus justified in differentiating between persons, who died while fighting militancy in the Valley and

those who died a natural death, while making appointments of their wards on compassionate grounds. However the letter written by respondent

No.3 to respondent No.2 on 9293 states the facts as under:

The applicant in this office and stated that apart from the death of his father, his mother also died in a Bus accident near Kaluchak during the

floods and he has been left alone. He has got 4 sisters who are married and reside in their in laws.

It is therefore requested that his case may be considered on compassionate ground. The application of the candidates is enclosed for favour of

further necessary action.

As per averments made in the petitioner, mother of the petitioner, who was a teacher died in the year 1990 and his father died soon thereafter.

Whether the petitioner, who has no dependent as all his sisters are married and settled, was entitled to compassionate appointment is a matter

which the respondents did not consider. However it is necessary to point out that object of compassionate appointment is to give succour to family

to tide over sudden financial crisis on account of untimely demise of earning family member as observed in ""Haryana State Electricity Board and

another Vs. Hakim Singh"", AIR 1997 SC 3887, holding that:

If the family members of the deceased employee can manage for fourteen years after his death one of his legal heirs cannot put forward a claim as

though it is a line of succession by virtue of a right of inheritance. The object it is to give succour to the family to tide over the sudden financial crisis

befallen the dependents on account of the untimely demise of its sole earning member.

It is therefore not to maintain a particular level of standard as claimed by the petitioner that he had to be provided employment but only to

provide succour to tide over the financial crises. There is not even a whisper in the petition that the family was plunged into economic crises

because of the death of his father. He in fact claims appointment at the rank of ASI of Police or above as a matter of right and not tiding over the

financial difficulties. In this case the petitioner does not disclose when he applied for appointment on compassionate ground though it appears to

have been processed during 199293, but the fact that he did not accept the offer of appointment made vide order dated 1.8.1995 shows that he is

not in economic distress, the removal of which is the only purpose of such appointments as observed in ""Haryan State Electricity Board Vs.

Naresh Tanwar and another."" (1996) 8

SCC2'3, holding that:

It has been indicated in the decision of Umesh Kumar Nagpal that compassionate appointment cannot be granted after a long lapse of

reasonable period and the very purpose of compassionate appointment, as an exception to the general rule o open recruitment, is intended to meet

the immediate financial problem being suffered by the members of the family of the deceased employee. In the other decision of this court in

Jagdish Prasad case, it has been also indicated that the very object of appointment of dependent of deceased employee who died in harness is to

relieve immediate hardship and distress caused to the family by sudden demise of the earning members of the family and such consideration cannot

be kept binding for years.

The question that a person seeking compassionate appointment has no right to particular post, is no longer resintegra as laid down in state of

Bihar Vs. Samsuz Zoha (AIR 1996 SC1991) Holding that

It is not dispute that there is no right vested in the candidates for particular appointment on compassionate grounds.

Similarly, in Umesh Kumar Nagpal Vs. State of Haryana and others ( (1994) 4 SCC 138), it has been held that

2.....What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the Public

authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of

employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in classes III and

IV are the lowest posts in nonmanual and manual categories and hence they alone can be offered on compassionate grounds, the object being to

relieve the family, of the financial destitution and to help if get over the emergency. The provision of employment in such dependent of the deceased

employee in such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz, relief against

destitution. No other posts are expected to required to be given by the public authorities for the purpose. It must be remembered in this connection

that as against the destitute family of the deceased there are 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 expectations, and

the change in the status and affairs, of the family engendered by die erstwhile employment which are suddenly upturned.

It was next argued that the appointment of the petitioner as Head Constable is humiliating as his status being the son who was a gazetted officer

and mother, a respected teacher has been ignored. If it is true that post has been offered to him ignoring his status which includes financial status,

he is not entitled to compassionate appointment. In view of the law laid down in Nagpal's case (1994) 4 SCC 138). Rejecting a similar argument in

Nagpal's case (supra) that the appointment offered was humiliating and below the status. Their Lordships further held that;

It is obvious from the above observations that the High Court endotherses the policy of the State Government to make compassionate

appointment in posts equivalent to the posts held by the deceased employees and above Classes III and IV. It is unnecessary to reiterate that these

observations are contrary to law. If the dependent of the deceased employee finds it below his dignity to accept the post offered, he is free not to

do so. The post is not offered to cater to his status but to see the family through the economic calamity.

So, die petitioner cannot seek compassionate appointment to maintain his status. Moreover, the petitioner has been appointed Head Constable

which is higher than Class III post and the law of the land is that only posts in Class III and IV can be offered on compassionate grounds that too

after examining the financial condition as held in Nagpal's case(Supra) which reads as under:

Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment a sometimes as a

matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and Iv. That is

legally impermissible.

Since the petitioner has no vested right to be appointed on compassionate ground, he cannot ask for a particular post. Further, it is wrong to

suggest that such appointments should be made without considering the financial condition and the antecedents of the candidate seeking

appointment because it is only a person in distress who has to be shown compassion and not a person who seeks appointment to gain an official

status. Moreover, the petitioner has not pleaded the circumstances in which the private respondent were appointed against higher post on

compassionate grounds, in the absence of which it is not possible to make a comparison.

However, as noticed above, any appointment to a post higher than Class III post is illegal because it offends Article 14 and 16 of the

Constitution as laid down in Nagpal's case(Supra), but since their appointments have not been challenged and instead similar treatment is being

claimed, therefore, it is not necessary to decide the circumstances in which they appointed. However, if the private respondents have been wrongly

appointed and their appointments have not been challenged, that will not be a ground to commit another wrong as laid down in M/S Fandabad Ct.

Scan centre V.D.G. Health Services and others (AIR 1997 SC 3801) which reads as under:

We fail to see how Art. 14 can be attracted in cases where wrong order are issued in favour of others. Wrong orders cannot be perpetuated

with the help of Art. 14 on the basis that such wrong orders. Were earlier passed in favour of some other persons and, therefore, there will be

discrimination against others if correct orders are passed against them. In fact, in the case of Union of India (Railway Board) and others V.J.V.

Subhaiah 1996(2)SCC 258: (1996 AIR SCW 705) the same learned Judge in his Judgment has observed in para 21 that the principle of equality

enshrined under Art. 14 does not apply when the order relied upon is unsustainable in law and is illegal. Such an order cannot form the basis for

holding that the other employees are discriminated against under Art. 14.....

In view of the above, there is thus no merit in this petition. It is dismissed accordingly.