Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6003 OF 2021
THE STATE OF UTTAR PRADESH & ORS. ..APPELLANT(S)
VERSUS
PREMLATA ..RESPONDENT(S)
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 14.09.2018 passed by the High
Court of Judicature at Allahabad in Special Appeal Defective
(SAD) No.620 of 2018, by which the Division Bench of the
High Court has allowed the said appeal and quashed and set
aside the judgment and order dated 31.07.2018 passed by
the learned Single Judge and consequently has directed the
appellants – original respondents to consider the candidature
of the respondent herein – original appellant for appointment
Signature Not Verified
on compassionate ground in GradeIII service, the State of
Digitally signed by R
Natarajan
Date: 2021.10.05
16:49:56 IST
Reason:
U.P. has preferred the present appeal.
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2. The facts leading to the present appeal in nutshell are as
under:
2.1
That the deceased employee at the time of his death was
posted and serving as Messenger in Police Radio Department
of Uttar Pradesh (ClassIV) died on 07.11.2014. The
respondent herein being widow of the deceased – government
servant submitted an application dated 05.12.2014 for
appointment on the post of Assistant Operator in Police
Radio Department on compassionate ground which was
rejected on the ground that she is not fulfilling the requisite
eligibility criteria for the said post. That thereafter the
respondent submitted another application before the U.P.
Police Radio Headquarter, Lucknow for appointment on the
post of Workshop Hand on compassionate ground. However
as she failed to clear the physical fitness examination
conducted on 28.01.2018 for the selection of Workshop
employee, her application for appointment as Workshop
employee on compassionate ground came to be rejected. Due
to unsuccessful in the physical eligibility test on the post of
Workshop Hand/Workshop employee, vide letter dated
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23.02.2018 of the Police Radio Headquarter, U.P., Lucknow,
the respondent herein was offered the post below the rank of
Workshop Hand i.e. Messenger in Radio Department. Instead
of accepting the said post the respondent filed the writ
petition before the High Court claiming the appointment on
the post of Workshop Hand (Karmshala Karmchari) in Police
Radio Department under the provisions of DyingInHarness
Rules 1974 (hereinafter referred to as the Rules 1974) on
compassionate ground and to direct the appellants to appoint
her on the post of Workshop Hand (Karmshala Karmchari) or
the post suitable for her in similar cadre.
2.2
By the judgment and order dated 31.07.2018, learned Single
Judge of the High Court dismissed the said writ petition on
the ground that as the deceased employee was ClassIV
employee and she has also been offered appointment on a
ClassIV post, she cannot claim the appointment on
compassionate ground on the post of Workshop Hand or on
any other suitable ClassIII post.
2.3
Feeling aggrieved and dissatisfied with the judgment and
order passed by the learned Single Judge, the respondent
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herein preferred the appeal before the Division Bench of the
High Court and by the impugned judgment and order the
Division Bench of the High Court has set aside the order
passed by the learned Single Judge and has allowed the
appeal and has directed the appellants to consider the
candidature of the respondent herein for appointment on
compassionate ground in GradeIII service and same be
accorded to her if she otherwise does not suffer any
ineligibility. By the impugned judgment and order the
Division Bench of the High Court has observed that a bare
perusal of Rule 5 of the Rules 1974 makes it crystal clear
that appointment under Rule 5 is required to be given on a
“suitable post” and the term ‘suitable’ in Rule 5 pertains to
suitability of the person who desires for appointment and it
has nothing to do with the post held by the deceased
government servant. The Division Bench also observed that
the suitability of the aspirant is required to be assessed on
the basis of the educational qualification and other
eligibilities so possessed by such person. The Division Bench
noted that in the case in hand, respondent is having the
qualification of Bachelors Degree in Arts as well as Bachelors
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Degree in Education and therefore qualified for appointment
on a post in GradeIII.
3.
Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the Division Bench of the High
Court, the State of U.P. and others have preferred the present
appeal.
4. Ms. Ruchira Goel, learned Advocate appearing on behalf of
the appellants has vehemently submitted that in the facts
and circumstances of the case, the Division Bench of the
High Court has misinterpreted the Rule 5 of the Rules 1974
by observing that the respondent shall be entitled to
appointment on compassionate ground on ‘suitable post’
considering the educational qualification and irrespective of
the fact that the deceased employee was working on ClassIV
post. It is submitted that the Division Bench of the High
Court has not properly appreciated the fact that the
appellant sought appointment on compassionate ground
which cannot be equated with regular post/regular
recruitment.
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4.1 It is submitted that ‘suitable post’ is required to be linked to
the object and purpose of appointment on compassionate
ground.
4.2 It is submitted that the object and purpose of providing the
appointment on compassionate ground is to meet out the
difficulties created on account of sudden death of the sole
bread earner and cannot be equated with the regular
recruitment/appointment. It is further submitted that
‘suitable post’ is to be considered considering the post held
by deceased employee and it cannot be a higher post.
4.3
It is submitted that ‘suitable post’ mentioned in Rule 5 of
Rules 1974 has to be construed considering the educational
qualification of dependent visàvis the post held by the
deceased employee.
4.4
It is submitted that in the present case earlier the respondent
applied for the post of SubInspector for which the
respondent was not possessing the requisite qualification of
ITI. It is submitted that even subsequently when she applied
for the appointment on compassionate ground on the post of
Workshop Hand she did not clear the physical examination
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test which was required to be cleared as per Uttar Pradesh
Radio Adhinasth Sewa Second Amendment Niyamawali,
2005. It is submitted that therefore the respondent was
offered next lower post i.e. Messenger, which the respondent
refused to accept.
4.5
It is submitted that even as per the Circular dated
24.11.2015, only one opportunity was required to be given
for appointment on any post to the dependent of the
deceased. It is submitted that in the present case, the
respondent failed to avail the opportunity twice.
4.6
It is submitted that the Division Bench of the High Court has
erred in holding that the ‘suitable post’ under Rule 5 of the
Rules 1974, would mean any post suitable to the
qualification of the candidates.
4.7 Making the above submissions, it is prayed to allow the
present appeal.
5.
The present appeal is vehemently opposed by Shri Shashank
Singh, learned Advocate appearing on behalf of the
respondent. It is submitted that in the facts and
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circumstances of the case, the Division Bench of the High
Court has rightly interpreted Rule 5 of the Rules 1974, would
mean any post suitable to the qualification of the candidate.
5.1 It is submitted that in the present case the Division Bench of
the High Court has not directed to appoint the respondent as
Workshop Hand, but has directed to consider the case on
any other suitable post as GradeIII looking to the
qualification of the respondent.
5.2 It is vehemently submitted that as such Circular dated
24.11.2015, issued by the DGP, Uttar Pradesh, granting only
one opportunity for appointment on compassionate ground
on any post to the dependent of the deceased, and in case
such dependent fails to avail the opportunity, such person
shall be offered appointment on any other lower rank within
a period of three months shall not be applicable to the facts
of the case on hand as the respondent applied prior to the
said circular. It is submitted that therefore the conditions in
the said circular in relation to grant of one opportunity shall
not be applicable to the respondent herein.
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5.3 It is further submitted that while determining ‘suitability’
under the provisions of Rules 1974, Rule 5 of the said rules
laying down qualification requirements ought to be read
harmoniously with Rule 8 of the Rules 1974 that the
candidate ought to be able to maintain minimum standards
of work and efficiency.
5.4
It is submitted that a hypertechnical approach ought not to
be adopted in cases of compassionate appointments. It is
submitted that so far as the compassionate appointments are
concerned such appointments are exempted from the
requirements of ordinary/normal recruitment procedure.
5.5
It is further submitted that there is no bar for appointment of
a dependent at a higher post than was held by the deceased.
It is submitted that Rule 5 of Rules 1974 provides that the
appellant may be given a suitable employment in government
service on a post except the post within the purview of the
Uttar Pradesh Public Service Commission in relaxation of he
normal recruitment rules.
5.6
It is submitted that even the respondent ought not to be
denied the appointment as Workshop Hand on the ground
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that the respondent failed to pass the physical test. It is
submitted that the suitability of a post may be determined on
the basis of educational qualification and/or other criteria. It
is submitted that it is true that as per the provisions of law
once a post is accepted on account of compassionate
appointment, no right may be claimed to further or later
apply for a higher post. It is submitted that however the facts
in the present case are peculiar. The specialized post of
Workshop Hand requires, in addition to requisite educational
qualification, a physical test also to be passed. It is
submitted that the respondent’s failure to pass the physical
test makes her ineligible for this particular post. However,
the post of Messenger being offered is disproportionate to her
educational qualifications. Therefore, the respondent may be
considered for an alternate or suitable post within GradeIII
wherein such specific recruitment of the physical test may
not be applicable as the down gradation of the post would
render her educational qualification futile.
5.7 Making the above submissions and relying upon the decision
of this court in case of Phoolwati (Smt) vs. Union of India and
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Others reported in 1991 Supp (2) SCC 689, it is requested to
dismiss the present appeal.
6.
Heard the learned counsel for the respective parties at
length.
7.
The respondent’s husband was serving as Messenger (Class
IV/GradeIV post) in Police Radio Department. He died on
07.11.2014. The respondentwidow of the deceased –
government servant submitted an application on 05.02.2014
for appointment on the post of Assistant Operator which was
not considered as she was not fulfilling the requisite
eligibility criteria required for the post of Assistant Operator.
That thereafter she made an application for the appointment
on compassionate ground on the post of Workshop Hand
which is a GradeIII post on 19.02.2015. She was granted the
opportunity for appointment on said post, however, she could
not pass the physical eligibility test conducted for the said
post and thereby as a result of her failure in physical
eligibility test, she could not be granted the appointment on
the post of Workshop Hand on compassionate ground. Still
by order dated 23.02.2018, the respondent was offered the
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post below the rank of Workshop Hand i.e. Messenger in
Radio Department, which she refused and the respondent
insisted that she must be appointed on the compassionate
ground on the post of Workshop Hand or equivalent post of
GradeIII looking to her educational qualification. The
learned Single Judge dismissed the writ petition. However,
the Division Bench by the impugned judgment and order has
directed to consider the case of the respondent for
appointment on compassionate ground on the post of
Workshop Hand or any equivalent post in GradeIII looking to
her qualification and on interpretation of Rule 5 that the
‘suitable post’ under Rule 5 of the DyinginHarness Rules
1974 would mean any post suitable to the qualification of the
candidate. The aforesaid is the subject matter of appeal
before this court.
8.
While considering the issue involved in the present appeal,
the law laid down by this court on compassionate ground on
the death of the deceased employee are required to be
referred to and considered. In the recent decision this court
in Civil Appeal No.5122 of 2021 in the case of the Director of
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Treasuries in Karnataka & Anr. vs. V. Somashree, had
occasion to consider the principle governing the grant of
appointment on compassionate ground. After referring to the
decision of this court in N.C. Santhosh vs. State of Karnataka
and Ors. reported in (2020) 7 SCC 617, this Court has
summarized the principle governing the grant of appointment
on compassionate ground as under:
(i) that the compassionate appointment is an
exception to the general rule;
(ii) that no aspirant has a right to
compassionate appointment;
(iii) the appointment to any public post in the service
of the State has to be made on the
basis of the principle in accordance with
Articles 14 and 16 of the Constitution of India;
(iv) appointment on compassionate ground can
be made only on fulfilling the norms laid down by
the State’s policy and/or satisfaction of the
eligibility criteria as per the policy;
(v) the norms prevailing on the date of the
consideration of the application should be the
basis for consideration of claim for
compassionate appointment.
9.
As per the law laid down by this court in catena of decisions
on the appointment on compassionate ground, for all the
government vacancies equal opportunity should be provided
to all aspirants as mandated under Article 14 and 16 of the
Constitution. However, appointment on compassionate
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ground offered to a dependent of a deceased employee is an
exception to the said norms. The compassionate ground is a
concession and not a right.
9.1 In the case of State of Himachal Pradesh and Anr. vs.
Shashi Kumar reported in (2019) 3 SCC 653, this court had
an occasion to consider the object and purpose of
appointment on compassionate ground and considered
decision of this court in case of Govind Prakash Verma vs.
LIC reported in (2005) 10 SCC 289, in para 21 and 26, it is
observed and held as under:
“21. The decision in Govind Prakash Verma [ Govind
Prakash Verma v. LIC , (2005) 10 SCC 289, has been
considered subsequently in several decisions. But,
before we advert to those decisions, it is necessary to
note that the nature of compassionate appointment
had been considered by this Court in Umesh Kumar
Nagpal v. State of Haryana [ Umesh Kumar
Nagpal v. State of Haryana , (1994) 4 SCC 138 : 1994
SCC (L&S) 930] . The principles which have been laid
down in Umesh Kumar Nagpal [ Umesh Kumar
Nagpal v. State of Haryana , (1994) 4 SCC 138 : 1994
SCC (L&S) 930] have been subsequently followed in a
consistent line of precedents in this Court. These
principles are encapsulated in the following extract:
( Umesh Kumar Nagpal case [ Umesh Kumar
Nagpal v. State of Haryana , (1994) 4 SCC 138 : 1994
SCC (L&S) 930] , SCC pp. 13940, para 2)
“ 2 . … As a rule, appointments in the
public services should be made strictly on the
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basis of open invitation of applications and
merit. No other mode of appointment nor any
other consideration is permissible. Neither the
Governments nor the public authorities are at
liberty to follow any other procedure or relax
the qualifications laid down by the rules for the
post. However, to this general rule which is to
be followed strictly in every case, there are
some exceptions carved out in the interests of
justice and to meet certain contingencies. One
such exception is in favour of the dependants
of an employee dying in harness and leaving
his family in penury and without any means of
livelihood. In such cases, out of pure
humanitarian consideration taking into
consideration the fact that unless some source
of livelihood is provided, the family would not
be able to make both ends meet, a provision is
made in the rules to provide gainful
employment to one of the dependants of the
deceased who may be eligible for such
employment. The whole object of granting
compassionate employment is thus to enable
the family to tide over the sudden crisis. The
object is not to give a member of such family a
post much less a post for post held by the
deceased. 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 it get over the emergency. The
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provision of employment in such lowest posts
by making an exception to the rule is
justifiable and valid since it is not
discriminatory. The favourable treatment given
to such dependant 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 or
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 the erstwhile employment
which are suddenly upturned.”
“26. The judgment of a Bench of two Judges
in v.
Mumtaz Yunus Mulani State of
Maharashtra [ Mumtaz Yunus Mulani v. State of
Maharashtra , (2008) 11 SCC 384 : (2008) 2 SCC
(L&S) 1077] has adopted the principle that
appointment on compassionate grounds is not a
source of recruitment, but a means to enable the
family of the deceased to get over a sudden financial
crisis. The financial position of the family would need
to be evaluated on the basis of the provisions
contained in the scheme. The decision in Govind
Prakash Verma [ Govind Prakash Verma v. LIC , (2005)
10 SCC 289 : 2005 SCC (L&S) 590] has been duly
considered, but the Court observed that it did not
appear that the earlier binding precedents of this
Court have been taken note of in that case.”
10. Thus as per the law laid down by this court in the aforesaid
decisions, compassionate appointment is an exception to the
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general rule of appointment in the public services and is in
favour of the dependents of a deceased dying in harness and
leaving his family in penury and without any means of
livelihood, and in such cases, out of pure humanitarian
consideration taking into consideration the fact that unless
some source of livelihood is provided, the family would not be
able to make both ends meet, a provision is made in the rules
to provide gainful employment to one of the dependants of
the deceased who may be eligible for such employment. The
whole object of granting compassionate employment is thus
to enable the family to tide over the sudden crisis. The object
is not to give such family a post much less a post held by the
deceased.
10.1
Applying the law laid down by this court in the aforesaid
decisions and considering the observations made
hereinabove and the object and purpose for which the
appointment on compassionate ground is provided, the
submissions on behalf of the respondent and the
interpretation by the Division Bench of the High Court on
Rule 5 of Rules 1974, is required to be considered.
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10.2 The Division Bench of the High Court in the present case has
interpreted Rule 5 of Rules 1974 and has held that ‘suitable
post’ under Rule 5 of the Rules 1974 would mean any post
suitable to the qualification of the candidate irrespective of
the post held by the deceased employee. The aforesaid
interpretation by the Division Bench of the High Court is just
opposite to the object and purpose of granting the
appointment on compassionate ground. ‘Suitable post’ has to
be considered, considering status/post held by the deceased
employee and the educational qualification/eligibility criteria
is required to be considered, considering the post held by the
deceased employee and the suitability of the post is required
to be considered vis a vis the post held by the deceased
employee, otherwise there shall be no difference/distinction
between the appointment on compassionate ground and the
regular appointment. In a given case it may happen that the
dependent of the deceased employee who has applied for
appointment on compassionate ground is having the
educational qualification of ClassII or ClassI post and the
deceased employee was working on the post of Class/Grade
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IV and/or lower than the post applied, in that case the
dependent/applicant cannot seek the appointment on
compassionate ground on the higher post than what was
held by the deceased employee as a matter of right, on the
ground that he/she is eligible fulfilling the eligibility criteria
of such higher post. The aforesaid shall be contrary to the
object and purpose of grant of appointment on
compassionate ground which as observed hereinabove is to
enable the family to tide over the sudden crisis on the death
of the bread earner. As observed above, appointment on
compassionate ground is provided out of pure humanitarian
consideration taking into consideration the fact that some
source of livelihood is provided and family would be able to
make both ends meet.
10.3
In the present case as observed hereinabove initially the
respondent applied for appointment on compassionate
ground on the post of Assistant Operator in Police Radio
Department. The same was not accepted by the Department
and rightly not accepted on the ground that she was not
fulfilling requisite eligibility criteria for the post of Assistant
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Operator. Thereafter the respondent again applied for
appointment on the compassionate ground on the post of
Workshop Hand. The case of the respondent was considered,
however, she failed in the physical test examination, which
was required as per the relevant recruitment rules of 2005.
Therefore, thereafter she was offered appointment on
compassionate ground as Messenger which was equivalent to
the post held by the deceased employee. Therefore appellants
were justified in offering the appointment to the respondent
on the post of Messenger. However, the respondent refused
the appointment on such post.
11. In view of the above and for the reasons stated above, the
Division Bench of the High Court has misinterpreted and
misconstrued Rule 5 of the Rules 1974 and in observing and
holding that the ‘suitable post’ under Rule 5 of the DyingIn
Harness Rules 1974 would mean any post suitable to the
qualification of the candidate and the appointment on
compassionate ground is to be offered considering the
educational qualification of the dependent. As observed
hereinabove such an interpretation would defeat the object
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and purpose of appointment on compassionate ground.
12. In view of the above for the reasons stated above, present
appeal succeeds. The impugned judgment and order passed
by the Division Bench of the High Court dated 14.09.2018 in
Special Appeal Defective (SAD) No.620 of 2018 is hereby
quashed and set aside. Consequently the writ petition
preferred by the respondent before the learned Single Judge
being Writ Petition No.16009 of 2018 stands dismissed and
the order passed by the learned Single Judge dated
31.07.2018 dismissing the writ stands restored. No costs.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(A. S. BOPANNA)
New Delhi,
October 05, 2021.
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