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CASE NO.:

Appeal (civil) 6950 of 2003

PETITIONER:

State of Haryana and Anr.

RESPONDENT:

Ankur Gupta

DATE OF JUDGMENT: 03/09/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

(Arising out of SLP(C) No. 12196/2002)

ARIJIT PASAYAT, J

Leave granted.

The compassion shown by functionaries of the appellant-

State by giving appointment to respondent on compassionate

ground (under die-in-harness scheme) was nullified by a

subsequent order. The respondent questioned legality thereof

before the Punjab and Haryana High Court at Chandigarh. By

the impugned judgment, the High Court held that though the

appointment may not have been in accordance with the policy

of compassionate appointment, yet the fact that the

respondent (writ petitioner) had worked for about 4 years

and was not guilty of any fraud or misrepresentation in

seeking appointment under the scheme, the impugned order

dated 24.9.2001 was not justified.

Factual position is almost undisputed and brief

reference thereto would suffice.

Father of respondent while in service died on

21.12.1996. Prior to that i.e. on 22.8.1996 the policy

relating to compassionate appointment as was inoperative

earlier was modified. The modification was done in view of a

decision of the Punjab and Haryana High Court. Prior to the

modification there was no embargo on a person getting

appointment under the compassionate appointment scheme, even

though one of his parents was in service at the time when

the other expired. The High Court held that the very purpose

of compassionate appointment was lost by this method of

appointment. It was, therefore, held that dependant of a

deceased government employee shall not be entitled to

employment on compassionate grounds in case one of his

parents is alive and is in government employment. In view of

the change, no person was entitled to be considered for

compassionate appointment where one of his parents is alive

and is in government employment. As the respondent's mother

was in government employment, the authorities felt that his

appointment was not permissible, in view of clear

stipulation in the policy decision dated 22.8.1996. The

appointment was sought to be nullified by order dated

18.5.2001. The respondent was appointed as a clerk on

12.9.1997 on compassionate grounds under the die-in-harness

scheme. Show notice was issued on 18.5.2001. The respondent

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submitted his reply, and by order dated 26.9.2001 the

appointment letter issued on 12.9.1997 was cancelled. As

noted above, the High Court nullified the action.

Learned counsel for the appellant-State submitted that

the approach of the High Court is erroneous. When the

appointment was made in violation of the policy, and by

mistake respondent had been appointed, that does not confer

any legal right upon him. In response, learned counsel for

the respondent submitted that as rightly observed by the

High Court, there was no misrepresentation or fraud

practicised by the respondent in gaining employment. The

respondent has worked for more than 4 years and in view of

what has been stated by this Court in Union of India and

Ors. v. K.P. Tiwari (2002 (1) LLJ 672), jurisdiction under

Article 136 of the Constitution of India, 1950 (in short the

'Constitution') should not be exercised.

We find that the appointment admittedly was not

permissible in view of the policy which came into force from

22.8.1996. The earlier policy was changed in view of a

decision of the High Court. The correctness of the policy

decision was not under challenge.

As was observed in State of Haryana and Ors. v. Rani

Devi & Anr. (JT 1996 (6) SCC 646), it need not be pointed

out that the claim of person concerned for appointment on

compassionate ground is based on the premises that he was

dependant on the deceased employee. Strictly this claim

cannot be upheld on the touchstone of Articles 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. That is why it is necessary

for the authorities to frame rules, regulations or to issue

such administrative orders which can stand the test of

Articles 14 and 16. Appointment on compassionate ground

cannot be claimed as a matter of right. Die-in harness

scheme cannot be made applicable to all types of posts

irrespective of the nature of service rendered by the

deceased employee. In Rani Devi's case (supra) it was held

that scheme regarding appointment on compassionate ground if

extended to all types of casual or ad hoc employees

including those who worked as apprentices cannot be

justified on constitutional grounds. In Life Insurance

Corporation of India v. Asha Ramchhandra Ambekar (Mrs.) and

Anr. (1994 (2) SCC 718) it was pointed out 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 contemplates such

appointments. It was noted in Umesh Kumar Nagpal v. State of

Haryana and Ors. (1994 (4) SCC 138) that as a rule in public

service appointment should be made strictly on the basis of

open invitation of applications and merit. The appointment

on compassionate ground is not another source of recruitment

but merely an exception to the aforesaid requirement taking

into consideration 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. But such appointments

on compassionate ground have to be made in accordance with

the rules, regulations or administrative instructions taking

into consideration the financial condition of the family of

the deceased.

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In Director of Education (Secondary) and Anr. v.

Pushpendra Kumar and Ors. (1998 (5) SCC 192) it was observed

that in matter of compassionate appointment there cannot be

insistence for a particular post. Out of purely humanitarian

consideration and having regard to the fact that unless some

source of livelihood is provided the family would not be

able to make both ends meet, provisions are made for giving

appointment to one of the dependants of the deceased who may

be eligible for appointment. Care has, however, to be taken

that provision for ground of compassionate employment which

is in the nature of an exception to the general provisions

does not unduly interfere with the right of those other

persons who are eligible for appointment to seek appointment

against the post which would have been available, but for

the provision enabling appointment being made on

compassionate grounds of the dependant of the deceased

employee. As it is in the nature of exception to the general

provisions it cannot substitute the provision to which it is

an exception and thereby nullify the main provision by

taking away completely the right conferred by the main

provision.

These aspects have been highlighted by this Court in a

recent decision in State of Manipur v. Md. Rajaodin.

Above being the legal position, the logic of the policy

cannot be undermined. Coming to the question whether there

was any fraud or misrepresentation we find that right from

the beginning, the concerned officers were acting in a

manner contrary to the policy. When the Director of

Industrial Training and Vocational Education, Haryana wrote

to the Commissioner and Secretary, Haryana Government,

Industrial Training and Vocational Education Department on

22.5.1997, it was clearly indicated that mother of

respondent was already in government service. It was also

noted that according to the Government instructions only

those dependants of the deceased employee/officer whose

family income is up to Rs.2500/-p.m. can be appointed. In

the letter itself it is mentioned that the monthly salary of

respondent's mother was Rs.5,880/- and, therefore, there was

no scope for appointing the respondent. Having said so it

was indicated that relaxation may be given in his case. The

High Court proceeded on the basis as if there was relaxation

of the stipulations. No provision could be shown to us

whereby relaxation is permissible, particularly when the

policy in this respect was modified on the basis of and in

implementation of the decision of the High Court. Though

learned counsel for the respondent referred to the 1970

guidelines where there was scope for relaxation, the same

does not assist the respondent because that was operative at

a point of time when the policy dated 22.8.1996 notified to

be in line with the High Court's judgment was not in

operative.

Looked at from any angle the view of the High Court is

indefensible. The judgment of the High Court is, therefore,

set aside. But while allowing the State's appeal it cannot

be lost sight of that the respondent was in government

service for more than about 4 years. It is stated by learned

counsel for the respondent that he has already become over-

aged for government employment. In the peculiar

circumstances, in case the respondent applies for a job in

the government within a period of two years and is selected

de hors the compassionate appointment scheme, the question

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of his having crossed the age bar, would not stand on his

way and the service rendered by him shall be duly

considered. The appeal is allowed subject to the aforesaid

observations. Costs made easy.