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CASE NO.: Appeal (civil)  2208 of 2007

PETITIONER: I.G. (Karmik) & Ors

RESPONDENT: Prahalad Mani Tripathi

DATE OF JUDGMENT: 27/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.    2208        OF 2007 (Arising out of SLP (C) No.  15618 of 2003)  

S.B. SINHA, J.

       Leave granted.                  Respondent’s father Shri Narmadeshwar Mani Tripathi was a  constable. He was in Uttar Pradesh Police Service.   He died in harness on  2.1.1986.   Grant of appointment to a dependant of an employee who died in  harness is governed by statutory rules, in terms whereof the appellant filed  an application for his appointment.  He disclosed his academic qualification  therein.    He was considered for appointment as a Constable. He was not  found eligible therefor having not satisfied the physical standard stipulated  under the rules. He was appointed as a Peon. He accepted the said  appointment without any demur whatsoever. He, however filed an  application before the Uttar Pradesh Services Tribunal, Lucknow praying for  his absorption in the post of Constable (M) with consequential benefits from  the date of his initial appointment. By reason of a Judgment and Order dated  24.7.2000, the Tribunal arrived at a finding that although, ordinarily, rule of  estoppel apply in a case of this nature, having regard to the representations  made by him before the authorities in the instant case, the same should not  be applied.  It directed the appellant to appoint him in Class III posts with a  further direction that the services rendered by him in the post of ordinary  Peon be counted towards his pensionary benefits in the class III posts.    

       A Writ Petition was filed before the High Court questioning the  correctness of said order.  By reason of the impugned judgment dated  27.11.2002, the High Court declined to interfere therewith despite  observing; "A word of caution, is put on record that the right to  claim appointment under the dying in harness rules on  compassionate ground can be neither used as a devise  to seek employment nor it is a new mode of  recruitment in Government service nor can be treated  as a channel of promotion to higher post.   The  impugned order has been passed on the basis of facts  of the present case."

       Learned counsel appearing on behalf of the appellant would submit  that the Order of the Tribunal and consequently that of the High Court  suffers from a manifest error in so far as they failed to take into  consideration;

(i)     Respondent having accepted the post of a Peon, was estopped from  claiming a higher post after a period of five years. (ii)    The rules provided for appointment only to a post for which the

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candidate possessed the academic and other qualifications.               The learned counsel appearing on behalf of the respondent, on the  other hand, would submit that in the facts and circumstances of this case,  this Court should not exercise its discretionary jurisdiction under Article 136  of the Constitution of India as not only a prayer was made by the respondent  for his appointment to a post which was commensurate with the academic  qualifications he possessed, and the Superintendent of Police recommended  therefor, but having regard to his alleged deficiencies in physical fitness  only, the Police Headquarters directed his appointment only as a peon.                  An employee of a State enjoys a status.   Recruitment of employees of  the State is governed by the rules framed under a statute or the proviso  appended to Article 309 of the Constitution of India.   In the matter of  appointment, the State is obligated to give effect to the constitutional scheme  of equality as adumbrated under Articles 14 and 16 of the Constitution of  India. All appointments, therefore, must conform to the said constitutional  scheme. This Court, however, while laying emphasis on the said proposition  carved out an exception in favour of the children or other relatives of the  officer who dies or who becomes incapacitated while rendering services in  the police department.  See Yogender Pal Singh and Others v. Union of  India and Others [A.I.R. 1987 SC 1015].

       Public employment is considered to be a wealth.  It in terms of the  constitutional scheme cannot be given on descent. When such an exception  has been carved out by this Court, the same must be strictly complied with.     Appointment on compassionate ground is given only for meeting the  immediate hardship which is faced by the family by reason of the death of  the bread earner.  When an appointment is made on compassionate ground,  it should be kept confined only to the purpose it seeks to achieve, the idea  being not to provide for endless compassion.

       In National Institute of Technology & Ors. v. Niraj Kumar Singh  [2007 (2) SCALE 525], this Court has stated the law in the following terms:-

"16.  All public appointments must be in consonance  with Article 16 of the Constitution of India.    Exceptions  carved out therefore are the cases where appointments  are to be given to the widow or the dependent children of  the employee who died in harness.   Such an exception is  carved out with a view to see that the family of the  deceased employee who has died in harness does not  become a destitute.   No appointment, therefore, on  compassionate ground can be granted to a person other  than those for whose benefit the exception has been  carved out.   Other family members of the deceased  employee would not derive any benefit thereunder."

      In State of Rajasthan v. Umrao Singh [(1994) 6 SCC 560],  this Court  has categorically stated that once the right is consummated, any further or  second consideration for higher post on the ground of compassion would not  arise.     

       Again in State of Haryana and Another v. Ankur Gupta [(2003) 7  SCC 704], this Court held;  "6. As was observed in State of Haryana v. Rani  Devi it need not be pointed out that the claim of  the person concerned for appointment on  compassionate ground is based on the premise that  he was dependent on the deceased employee.  Strictly, this 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

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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 case it was held that the 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 LIC of India v. Asha Ramchhandra  Ambekar it was pointed out that the 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. It was noted in  Umesh Kumar Nagpal v. State of Haryana that as  a rule, in public service appointments 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 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. 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."

       See also Food Corporation of India & Anr. v Ram Kesh Yadav &  Another [JT 2007 (4) SC 1].                  Respondent, thus, could be offered an appointment only to the post for  which he was suitable.

       Furthermore, Appellant accepted the said post without any demur  whatsoever. He, therefore, upon obtaining appointment in a lower post could  not have been permitted to turn round and contend that he was entitled for a  higher post although not eligible therefor.   A person cannot be appointed  unless he fulfils the eligibility criteria.   Physical fitness being an essential  eligibility criteria, the Superintendent of Police could not have made any  recommendation in violation of the rules.    Nothing has been shown before  us that even the petitioner came within the purview of any provisions  containing grant of relaxation of such qualification.   Whenever, a person  invokes such a provision, it would be for him to show that the authority is  vested with such a power.    

       The pre-requisite for making such a appointment by granting  relaxation has been laid down by this Court in Indian Drugs &  Pharmaceuticals Ltd. v. Devki Devi and Others [(2006) 5 SCC 523].       See  also Kendriya Vidyalaya Sangathan and Others v. Sajal Kumar Roy and  Others [(2006) 8 SCC 671].

       For the reasons aforementioned, the impugned judgment cannot be  sustained.  It is set aside accordingly.  The Appeal is allowed.  In the facts

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and circumstances of this case, however, there shall be no order as to costs.