IN THE SUPREME COURT OF  INDIA          CIVIL  APPELLATE JURISDICTION

   CIVIL APPEAL NO.  2899   OF 2007

SUSHIL KUMAR YADAV  ..  APPELLANT

vs.

STATE OF BIHAR & ORS. ..  RESPONDENTS

O R D E R

This civil  appeal  is directed against  the order passed by the Division

bench whereby the Division Bench has affirmed the order of the learned single

Judge  whereby learned Single  Judge  has  upheld  the  termination  of  service  of

appellant.

The appellant was appointed on 12.2.1993 on account of the fact that his

father died during election operation and he approached the Chief Minister and it

was  ordered  by  the  said  Chief  Minister  that  since  his  father  was  died  while

discharging his duty during election, therefore, the incumbent may be considered

for  appointment.   Accordingly,   appellant  was  appointed  on mercy petition as

Constable  in  Police  Department  and  the  appointment  continued  up  to  2001.

Thereafter,  a  notice  was  issued  to  the  appellant  that  there  was  no  Rule  for

compassionate  appointment  at  the  relevant  time.   Therefore,  his  services  were

terminated by the order dated 24.1.2003 on the ground that as per the Rule 661 of

Bihar  Police  Manual  a  Selection  committee  is  required  to  be  constituted  for

selection of candidate for the post of Constable and that his selection was not done

in accordance with the Manual,  therefore, his services were terminated.

-2-

Aggrieved by this order, the appellant approached the High Court and

was  unsuccessful.  His  writ  petition was  dismissed on 16.8.2005 by  the  learned

single Judge.  Therefore, he preferred a Letters Patent Appeal before the Division

Bench which was dismissed by the order dated 24/1/07.  Hence he approached this

court by present appeal.

Notice was given to the other side. Having considered the submissions

made by the  parties,  we  have no hesitation  in  saying  that  the  appointment  of

incumbent initially in 1993 was an infraction of the Rules at the relevant time.

The Police Manual contemplates a selection by advertising the post and a proper

procedure has been laid down in the Rules.  But such procedure was not followed

in this case.  But the appellant  was appointed purely on the ground that his father

had died in Election operation and therefore the appointment was made purely on

the mercy petition.  It is true that there is no such scope for mercy petition in the

Rules. But the appellant approached the Chief Minister and it was mentioned that

his father has died in the Election operation.  It is on equity that he was given

appointment on the post of Constable in 1993, he had undergone all training  and

he continued for more than ten years and suddenly in 2001 the State woke up to

realize that his appointment is bad.  Ordinarily, we would not have interfered in

the matter but looking into the fact that incumbent was appointed purely on the

ground of mercy as his father died in discharging   his  duties  as Government

servant.  Therefore, the equity requires that such appointment should not have

been disturbed by the Authorities.  We are satisfied on the ground of equity that

the incumbent should be allowed to continue as he has been in service from 1993

and was appointed only on the ground  

-3-

of  his  father  being  died  while  discharging  his  duties  during  the  Election.

Therefore,  it  was an equity which  prevails  with us.   Without laying down any

precedent and going on the merit of this case, we think that it would be just and

proper to allow  this incumbent to continue in service as he has lost his father in

discharge of service.  

Consequently, we set aside the order of the termination dated 24.1.2003

and the order of the learned single Judge as well as that of the Division Bench.  

Let the appellant be reinstated, but he will not be entitled to any back

wages.

The appeal is allowed accordingly.  NO order as to costs.

.....................J.  (A.K. MATHUR)

....................J.  (P. SATHASIVAM)

NEW DELHI; JULY 24, 2008.

              IN THE SUPREME COURT OF  INDIA          CIVIL  APPELLATE JURISDICTION

 CIVIL APPEAL NO.  2899   OF 2007

SUSHIL KUMAR YADAV  ..  APPELLANT

vs.

STATE OF BIHAR & ORS. ..  RESPONDENTS

O R D E R

This civil  appeal  is directed against  the order passed by the Division

bench whereby the Division Bench has affirmed the order of the learned single

Judge  whereby learned Single  Judge  has  upheld  the  termination  of  service  of

appellant.

The appellant was appointed on 12.2.1993 on account of the fact that his

father died during election operation and he approached the Chief Minister and it

was  ordered  by  the  said  Chief  Minister  that  since  his  father  was  died  while

discharging his duty during election, therefore, the incumbent may be considered

for  appointment.   Accordingly,   appellant  was  appointed  on mercy petition as

Constable  in  Police  Department  and  the  appointment  continued  up  to  2001.

Thereafter,  a  notice  was  issued  to  the  appellant  that  there  was  no  Rule  for

compassionate  appointment  at  the  relevant  time.   Therefore,  his  services  were

terminated by the order dated 24.1.2003 on the ground that as per the Rule 661 of

Bihar  Police  Manual  a  Selection  committee  is  required  to  be  constituted  for

selection of candidate for the post of Constable and that his selection was not done

in accordance with the Manual,  therefore, his services were terminated.

-2-

Aggrieved by this order, the appellant approached the High Court and

was  unsuccessful.  His  writ  petition was  dismissed on 16.8.2005 by  the  learned

single Judge.  Therefore, he preferred a Letters Patent Appeal before the Division

Bench which was dismissed by the order dated 24/1/07.  Hence he approached this

court by present appeal.

Notice was given to the other side. Having considered the submissions

made by the  parties,  we  have no hesitation  in  saying  that  the  appointment  of

incumbent initially in 1993 was an infraction of the Rules at the relevant time.

The Police Manual contemplates a selection by advertising the post and a proper

procedure has been laid down in the Rules.  But such procedure was not followed

in this case.  But the appellant  was appointed purely on the ground that his father

had died in Election operation and therefore the appointment was made purely on

the mercy petition.  It is true that there is no such scope for mercy petition in the

Rules. But the appellant approached the Chief Minister and it was mentioned that

his father has died in the Election operation.  It is on equity that he was given

appointment on the post of Constable in 1993, he had undergone all training  and

he continued for more than ten years and suddenly in 2001 the State woke up to

realize that his appointment is bad.  Ordinarily, we would not have interfered in

the matter but looking into the fact that incumbent was appointed purely on the

ground of mercy as his father died in discharging   his  duties  as Government

servant.  Therefore, the equity requires that such appointment should not have

been disturbed by the Authorities.  We are satisfied on the ground of equity that

the incumbent should be allowed to continue as he has been in service from 1993

and was appointed only on the ground  

-3-

of  his  father  being  died  while  discharging  his  duties  during  the  Election.

Therefore,  it  was an equity which  prevails  with us.   Without laying down any

precedent and going on the merit of this case, we think that it would be just and

proper to allow  this incumbent to continue in service as he has lost his father in

discharge of service.   

Consequently, we set aside the order of the termination dated 24.1.2003

and the order of the learned single Judge as well as that of the Division Bench.  

Let the appellant be reinstated, but he will not be entitled to any back

wages.

The appeal is allowed accordingly.  No order as to costs.

.....................J.  (A.K. MATHUR)

....................J.  (P. SATHASIVAM)

NEW DELHI; JULY 24, 2008.