1

AFR

Court No. - 29

Case :- WRIT - A No. - 12844 of 2018

Petitioner :- Ankur Gautam And Another

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Prabhakar Awasthi,Manvendra

Pratap Singh

Counsel for Respondent :- C.S.C.

And

Case :- WRIT - A No. - 10601 of 2018

Petitioner :- Prasant Kumar Yadav And 23 Ors.

Respondent :- State Of U.P. And 2 Ors.

Counsel for Petitioner :- Seemant Singh

Counsel for Respondent :- C.S.C.

Hon'ble Pankaj Mithal,J.

Hon'ble Prakash Padia,J.

Heard Sri Prabhakar Awasthi and Sri Seemant Singh,

learned counsel for the petitioners in the two writ petitions

and the learned Standing counsel.

The petitioners are the applicants for compassionate

appointment on the post of Sub-Inspector (Civil Police)

U.P. They are all claiming appointments on the death of

their father/husband who died in harness while in service

of the police department.

The petitioners by these writ petitions are seeking

quashing of Rule 5 (1) Part-III of U.P. Sub Inspector and

Inspector (Civil Police) Service Rules, 2015 to the extent it

puts restriction of 5% of the posts to be filled up by direct

recruitment against the vacancies arising on sanctioned

posts from the dependents of the police personnel and the

G.O., dated 18.9.2015 issued by the Secretary, Government

Neutral Citation No. - 2019:AHC:219330-DB

2

of U.P., Lucknow in so far as it provides for conducting

objective type examination for the recruitment of

dependents of police personnel on compassionate basis if

the number of applications are in excess to the number of

the posts available for compassionate appointment.

The aforesaid service rules in part III provides for

recruitment to various categories of posts ie. Sub-Inspector

and Inspector in the police service of the State of U.P.

Rule 5 (1) of the Rules provides that 50% of the

post of Sub-Inspectors shall be filled up by direct

recruitment and the balance 50% by promotion through the

Board on the basis of seniority subject to rejection of the

unfit from amongst the substantively appointed Head

Constables of the civil police. A note is appended to the

aforesaid Rule which provides that out of the 50% posts to

be filled up by direct recruitment, the dependents of the

police personnel dying during service shall be recruited by

the Board as per the policy of the Government subject to

the restriction that every year such posts shall not exceed

more than 5% of the posts to be filled up by direct

recruitment as against the vacancies arising in the

previously sanctioned posts of Sub-Inspector of police.

In the present writ petition we are basically

concerned with the note which has been appended to Rule

5 (1) of the Rules.

Rule 5 (1) of the Rules along with the note is

reproduced herein below for the sake of convenience:-

Part-III Recruitment

“5. Recruitment to the various categories of posts in

the service shall be made from the following sources:

(1) Sub-Inspector

(i) Fifty percent by direct recruitment through the

3

Board.

Note:- Dependents of personnel of police department

deceased during service who apply for the posts of Sub

Inspector of Police in the dependent of deceased category

shall be recruited by the Board as per the policy decided

by the Government. Restriction being that every year such

posts shall not be more than 5 percent of the posts to be

filled by direct recruitment as against the vacancies

arising in the previously sanctioned posts of Sub-Inspector

of Police.

(ii) Fifty percent by promotion through the Board on

the basis of seniority subject to the rejection of the unfit

from amongst the substantively appointed Head

Constables of Civil Police who have been found successful

in physical efficiency test of qualifying nature and have

completed three years of service as such on the first day of

the year of recruitment.

(iii) Head Constables Civil Police promoted on the

ex-cadre posts of Sub-Inspectors' civil police who fulfill

the requirement mentioned in clause (ii) shall also be

eligible for promotion for the post of Sub-Inspector.”

The Government Order dated 18.9.2015 inter alia

provides that in the event number of applications seeking

compassionate appointments are more than the number of

posts/vacancies determined to be to be filled up by

compassionate appointments, the candidates shall be

subjected to objective test and appointments would be

made strictly in accordance with the merit of the marks

obtained in the said test. The aforesaid offending part of

the Government Order reads as under:-

^^;fn e`r iqfyl dfeZ;kssa ds vkfJrksa dh

Js.kh ds varxZr HkrhZ gsrq] fdlh in ij

vkosnu nsus okys vH;fFkZ;kas dh la[;k] ml

4

in ds fy, e`rd vkfJr Js.kh ds fu/kkZfjr

inksa ls vf/kd gks] rks vH;fFkZ;ksa ls

oLrqfu"B izdkj dh ijh{kk esa cSBus dh

vis{kk dh tk;sxh ,oa bl in ds fy,

vafre p;u lwph] ml in ds fy, e`rd

vkfJr Js.kh ds vUrxZr HkrhZ gsrq fu/kkZfjr

inkas dh la[;k ds vuqlkj] bl ijh{kk eas

izkIr vadks ds vk/kkj ij] Js"Brk dze ds

vuqlkj cukbZ tk,xhA^^

The petitioners contend that the aforesaid provisions

are ultra vires as there can be no embargo on the maximum

number of appointments to be made on compassionate

basis and subjecting the dependents of the deceased

employee to any examination amounts to adopting the

regular mode of recruitment which frustrates & nullifies

the very purpose or object of compassionate appointment.

It is contended that putting of such conditions not only

militates with the object of compassionate appointment but

is otherwise also arbitrary, discriminatory, unreasonable

and unfair.

In short, what is contended is that the aforesaid

offending provisions and the conditions of the Government

Order are ultra-vires to Articles 14 and 16 of the

Constitution of India and is against the very purpose of

compassionate appointment, though it had not been

pleaded in so many words in the writ petition.

It is settled in P. Krishnamurthy

1

that a Statute or a

law or a subordinate legislation can be declared to be

invalid only if it is beyond the legislative competence, or is

violative of the Constitution of India or the Fundamental

1State of TN Vs. P. Krishnamurthy (2006) 4 SCC 5172 also see

Cellular Operators Association and others Vs. Telecom

Regulatory Authority of India and others (2016) 7 SCC 703

5

Rights, or is repugnant to the laws of the land or otherwise

do not conform to the Statue under which it is made or if

the procedure prescribed for making it has not been

followed. At the same time, the validity of any law has to

be tested on the anvil of Article 14 and 16 of the

Constitution.

None of the above grounds have been pleaded and

canvassed before us so as to get the above provision of the

Rules and the conditions of the Government Order

declared to be ultra-vires, except that the aforesaid

provision and condition is arbitrary in nature and is unfair

& unreasonable. Therefore, what we have to test is whether

the note appended to Rule 5 (1) of the Rules or the

condition of the Government Order referred to above is

unfair, arbitrary or unreasonable so as to render them

invalid.

It is well recognized that appointments in public

service should be made strictly on the basis of open

invitation of applications and comparative merit having

regard to Articles 14 and 16 of the Constitution of India

but compassionate appointment is one of the exception to

the above rule which can not be claimed as of right. Its

very purpose is only to meet out the sudden financial crisis

which may occur in the family on account of death of the

bread earner.

In this regard, it would be profitable to cite and

quote from the case of Sajad Ahmad Mir

2

:-

“ 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

2 State of J & K and others Vs. Sajad Ahmad Mir, (2006) 5 SCC

766

6

consonance with Article 14 of the

Constitution. On the basis of the competitive

merits, an appointment should be made to

public office. This general rule should not be

departed from except where compelling

circumstances demand, such as, death of the

sole breadwinner and likelihood of the family

suffering because of the set back. Once it is

proved that in spite of death of breadearner,

the family survived and substantial period is

over, there is no necessity to say 'goodbye' to

the normal rule of appointment and to show

favour to one at the cost of interest of

several others ignoring the mandate of

Article 14 of the Constitution.”

A similar view was expressed by the Supreme Court

in MGB Gramin Bank

3

which reads as under:-

“Every appointment to public office must be

made by strictly adhering to the mandatory

requirements of Articles 14 and 16 of the

Constitution. An exception by providing

employment on compassionate grounds has been

carved out in order to remove the financial

constraints on the bereaved family, which has lost

its bread-earner. Mere death of a Government

employee in harness does not entitle the family to

claim compassionate employment. The

Competent Authority has to examine the financial

condition of the family of the deceased employee

and it is only if it is satisfied that without

providing employment, the family will not be able

to meet the crisis, that a job is to be offered to the

3 MGB Gramin Bank Vs. Chakrawarti Singh AIR 2013 SC 3365

7

eligible member of the family. More so, the

person claiming such appointment must possess

required eligibility for the post. The consistent

view that has been taken by the Court is that

compassionate employment cannot be claimed as

a matter of right, as it is not a vested right.”

In V. Shivamurthi

4

it has been laid down as

under:-

“(a) Compassionate appointment based only

on descent is impermissible. Appointments in

public service should be made strictly on the

basis of open invitation of applications and

comparative merit, having regard to Articles

14 and 16 of the Constitution of India.

Though no other mode of appointment is

permissible, appointments on compassionate

grounds are a well-recognised exception to

the said general rule, carved out in the

interest of justice to meet certain

contingencies.

(b) Two well-recognized contingencies which

are carved out as exceptions to the general

rule are;

(i) appointment on compassionate

grounds to meet the sudden crisis occurring

in a family on account of the death of the

breadwinner while in service.

(ii) appointment on compassionate

ground to meet the crisis in a family on

account of medical invalidation of the

breadwinner.

4 V. Shivamurthi Vs. State of Adhra Pradesh & Others (2008)

13 SCC 730

8

Another contingency, though less

recognized, is where land holders lose their

entire land for a public project, the scheme

provides for compassionate appointment to

members of the families of project-affected

persons. (Particularly where the law under

which the acquisition is made does not

provide for market value and solatium, as

compensation).

(c) Compassionate appointment can neither

be claimed, nor be granted, unless the rules

governing the service permit such

appointments. Such appointments shall be

strictly in accordance with the scheme

governing such appointments and against

existing vacancies.

(d) Compassionate appointments are

permissible only in the case of a dependent

member of the family of the employee

concerned, that is, spouse, son or daughter and

not other relatives. Such appointments should

be only to posts in the lower category, that is,

Classes III and IV posts and the crisis cannot

be permitted to be converted into a boon by

seeking employment in class I or II posts.”

A Full Bench of this Court in the case of Shiv

Kumar Dubey

5

laid down the principles governing the

compassionate appointment under the U.P. Recruitment

Dependents of Government Servants Dying In Harness

Rules, 1974 and held that there is no general or vested

right for compassionate appointment which can be claimed

5 Shiv Kumar Dubey Vs. State of U.P. & Others 2014 AWC

3016

9

only where the scheme or the Rules provide and that too

according to said scheme/Rules.

The relevant observation of the Full Bench is as

under:-

“We now proceed to formulate the principles

which must govern compassionate

appointment in pursuance of Dying in

Harness Rules:

(i)A provision for compassionate appointment

is an exception to the principle that there must

be an equality of opportunity in matters of

public employment. The exception to be

constitutionally valid has to be carefully

structured and implemented in order to

confine compassionate appointment to only

those situations which subserve the basic

object and purpose which is sought to be

achieved;

(ii)There is no general or vested right to

compassionate appointment. Compassionate

appointment can be claimed only where a

scheme or rules provide for such

appointment. Where such a provision is made

in an administrative scheme or statutory

rules, compassionate appointment must fall

strictly within the scheme or, as the case may

be, the rules;”

It is well established that the appointments on

compassionate basis has to be made conforming to the

Rules and Regulations or the administrative instructions

issued in that regard.

In this connection, a reference may be had to the

decision of the Supreme Court in the case of Shashank

10

Goswami & Another

6

wherein it has been observed as

under:-

“There can be no quarrel to the settled legal

proposition that the claim for appointment on

compassionate grounds is based on the premise

that the applicant was dependent on the

deceased employee. Strictly, such a claim cannot

be upheld on the touchstone of Article 14 or 16

of the Constitution of India. However, such claim

is considered as reasonable and permissible on

the basis of sudden crisis occurring in the family

of such employee who has served the State and

dies while in service. Appointment on

compassionate ground cannot be claimed as a

matter of right.

As a rule public service appointment should be

made strictly on the basis of open invitation of

applications and merit. The appointment on

compassionate grounds is not another source of

recruitment but merely an exception to the

aforesaid requirement taking into consideration

the fact of the death of the 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 and

not to confer a status on the family. Thus, the

applicant cannot claim appointment in a

particular class/group of post. Appointments on

compassionate grounds have to be made in

accordance with the rules, regulations or

administrative instructions taking into

6 Union of India & Another Vs. Shashank Goswami & Another

(2012) 11 SCC 307

11

consideration the financial condition of the

family of the deceased.”

Once again the Supreme Court in the case of

Prabhat Singh

7

held that compassionate appointment is

not a gift to all those who seeks court's intervention and

the Court may issue directions in the case where

appointment on compassionate ground, could deprive a

really needy family requiring financial support, and

thereby, push into penury a truly indigent, destitute and

impoverished family. Relevant paragraphs of the aforesaid

judgment are quoted below:-

"We are constrained to record that even

compassionate appointments are regulated by

norms. Where such norms have been laid down,

the same have to be strictly followed....The very

object of making provision for appointment on

compassionate grounds, is to provide succor to a

family dependent on a government employee,

who has unfortunately died in harness. On such

death, the family suddenly finds itself in dire

straits, on account of the absence of its sole

bread winner. Delay in seeking such a claim, is

an anti thesis, for the purpose for which

compassionate appointment was conceived.

Delay in raising such a claim, is contradictory to

the object sought to be achieved...The Courts and

Tribunals should not fall prey to any sympathy

syndrome, so as to issue directions for

compassionate appointments, without reference

to the prescribed norms. The Courts are not

supposed to carry Santa Claus's big bag on

Christmas eve, to disburse the gift of

7 Chief Commissioner, Central Excise and Customs, Lucknow & Ors. Vs. Prabhat Singh (2012) 13

SCC 412

12

compassionate appointment, to all those who

seek a court's intervention. The Courts and

Tribunals must understand, that every such act

of sympathy, compassion and discretion,

wherein directions are issued for appointment

on compassionate grounds, could deprive a

really needy family requiring financial support,

and thereby, push into penury a truly indigent,

destitute and impoverished family. Discretion is

therefore ruled out. So are, misplaced sympathy

and compassion."

Now considering the aforesaid offending provisions

vis-a-vis the legal position as stated above, we find that the

aforesaid Rules/provisions are not in conflict with any

statutory or constitutional provision and at the same time

are neither arbitrary or discriminatory, they are rather fair

and reasonable. They only places a reasonable restriction

on compassionate appointment for the reason that if a very

large number of posts/vacancies are allowed to be filled up

on compassionate basis circumventing the competitive

process it would deprive the candidates of the open market

from getting recruited and a stage would come when

almost all vacancies would stand filled up without

adopting the statutory provision of holding a competitive

examination. Therefore, necessity to fix an upper limit for

filling vacancies through compassionate appointment is

not unreasonable or arbitrary.

The condition to face the objective test is limited

only in the event when there are large number of

candidates seeking compassionate appointment in

comparison to the limited posts meant to be filled up on

compassion so that best of them may be selected and

appointed. It only provides for inter se selection amongst

13

those claiming compassionate appointment. The said

selection in no way compels the candidates for

compassionate appointment to face competition with those

seeking regular direct appointment. Thus, it in no way

offends the object of compassionate appointment.

It must be remembered that there is always a

presumption in favour of Constitutionality or the validity

of a subordinate legislation. It is the burden upon the

person attacking the validity of the legislation to establish

that it is invalid. The petitioners herein this petition have

not pleaded specifically as to how the aforesaid provisions

offends Articles 14 and 16 of the Constitution of India and

as such have failed to discharge their burden in this regard.

In view of the above, we are of the opinion that note

appended to Rule 5 (1) of the aforesaid Rules as regards

the maximum number of persons to be given

compassionate appointment in a year and the condition

referred to above of the Government Order dated

18.9.2015 to subject the candidates for compassionate

appointment to objective test in case their number exceeds

the number of vacancies required to be filled up on the

basis of compassion, are in no way unfair and

unreasonable or violative of Articles 14 and 16 of the

Constitution of India.

It may be important to observe here that as seen

from the repeated decisions of the Apex Court,

compassionate appointment is not a normal mode of

appointment rather an exception to Rule of recruitment

from open market through competition. In one form it

provides for a kind of reservation in favour of the

dependents of the deceased employees. Such kind of

reservation is not envisaged in the Constitution but is by

way of social justice which in practice gives rise to back-

14

door appointments avoiding competition and can not be

countenanced with Article 14 and 16 of the Constitution of

India.

In view of the above and looking to the very large

number of the cases of compassionate appointment

coming before the Court regularly from all departments we

are of the opinion that either some very stringent

restrictions have to be placed or some alternative methods

have to be found out so that the aforesaid social purpose is

achieved without substantially offending the selection of

meritorious candidates. In other words, it is essential to

device a method which may maintain an equilibrium

between the substantive law and the social justice.

In this regard one suggestion may be to allow the

dependents of employees dying during service to continue

receiving salary and emoluments as the family was

receiving during the life time of the deceased employee for

a particular period say for 3 or 5 years or till his due

retirement whichever is earlier to meet out the sudden

financial crisis due to the loss of the bread earner instead

of giving any compassionate appointment so that the

appointments on the posts be made in the regular manner

by the process of selection provided in the Statute and at

the same time the family concerned may not be deprived

of the financial assistance which was otherwise available

to it. This would promote harmony of social justice with

the service jurisprudence without compromising with the

quality/standard of appointments.

With the aforesaid suggestion and with the hope that

the legislature would revisit the Rules and Regulations

regarding compassionate appointment through out the

State in all departments and come out with a better policy

or legislation which may harmonize the need of such

15

families without defeating the statutory provisions of

making regular appointments on the basis of

competition/selection, we dismiss the writ petition as

devoid of merit.

The Registry is directed to send a copy of this

judgment to the Chief Secretary, Government of U.P.,

Lucknow for circulation to all government departments of

the State, local bodies and corporations for necessary

revisiting their Rules/scheme/policy of compassionate

appointment.

29.4.2019

SKS