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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6468 OF 2012

State of Gujarat & Ors.      ..Appellants

Versus

Arvindkumar T. Tiwari & Anr.        … Respondents                      

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the impugned judgment  

and order dated 4.2.2008 passed in Letters Patent Appeal No.49/2008  

by the High Court of Gujarat at Ahmedabad.

2. Facts and circumstances giving rise to this appeal are as under:-

a) The father of respondent No.1 who was working in the Police  

Department, State of Gujarat as the Assistant Sub-Inspector of Police,  

died in harness on 9.4.1999.  Immediately thereafter, respondent No.1

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filed an application for employment on compassionate ground, for the  

post  of  Peon.  As he had completed his  education only upto the 8th  

standard, the said application was rejected vide order dated 13.10.2000,  

on the ground that the family of the deceased was not suffering from  

any  financial  constraints  and  was  getting  an  adequate  amount  of  

pension, which was, in fact, over and above the income limit fixed by  

the Government for this purpose.  The said application was considered  

by the Additional Director General of Police by way of passing order  

dated 23.6.2003, directing that the application of respondent No.1 be  

reconsidered,  ignoring  the  abovementioned  issue  regarding  financial  

condition.  The said application was rejected vide order dated 3.7.2005,  

on the ground that the applicant did not meet the minimum eligibility  

requirement for the said post, as he had not passed the 10 th standard,  

which  was  a  necessary  pre-requisite  for  the  consideration  of  the  

application of respondent No.1 for a Class IV post on compassionate  

ground.

b) Aggrieved, respondent No.1 preferred Special Civil Application  

No.5630/2007, which was disposed of vide judgment and order dated  

2.3.2007, considering the fact that there was a subsequent notification  

dated  16.3.2005,  which  provided  for  the  minimum  qualification  

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requirement  of  10th standard  pass,  as  the  eligibility  criteria  for  

employment to a Class IV post.  However, it was held that, as the said  

employee had died in the year 1999, the amended provision would not  

apply to his case. Therefore, direction was issued to consider his case  

without  being  influenced  by  the  earlier  order,  in  light  of  the  new  

policy/circular/rules.

c) Aggrieved, the said order was challenged before the Division  

Bench, by the appellant, which was rejected vide impugned judgment  

and order dated 4.2.2008.  Hence, this appeal.

3. Shri  Shomil  Sanjanwala,  learned  counsel  appearing  for  the  

State of Gujarat, has submitted that the High Court erred in observing  

that the new policy/rules do not apply retrospectively, and that the case  

of respondent No.1  should be considered in light of the then existing  

rules,  i.e.,  the  rules  which  were  in  force  prior  to  2005.   Earlier,  

employment on compassionate ground in the Department of Police was  

governed by way of Circular  dated 16.12.1991,  which provided that  

employment  in  Class  III  or  Class  IV  posts,  shall  be  accorded  on  

compassionate  ground  to  deserving  candidates  on  the  basis  of  their  

educational qualification.

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4. Mrs.  Laxmi  Arvind,  learned  Amicus  Curiae,  appearing  for  

respondent  No.1 opposed the appeal,  contending that  the  matter  has  

been considered by the court below in a correct perspective and does  

not therefore, invite any interference.  The father of the respondent died  

on 9.4.1999, and a period of more than 13 years has lapsed since then.  

The respondent has been unsuccessful in getting such employment, and  

has now attained the age of 36 years simply waiting for the said job by  

approaching one forum or the other, even though the purpose for which  

compassionate  employment  was  introduced,  was  to  redeem  the  

bereaved family from financial constraints from which it  is likely to  

suffer, owing to the death of its sole bread earner, and thus, should be  

accorded immediately.  The court should, therefore, issue direction to  

offer employment to the said post of peon, to respondent No.1 under all  

circumstances on humanitarian grounds. The appeal lacks merit and is  

liable to be dismissed.

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.

It is a settled legal proposition that compassionate appointment  

cannot be claimed as a matter of right.  It is not simply another method  

of recruitment. A claim to be appointed  on such a ground, has to be  

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considered in accordance with the rules, regulations or administrative  

instructions  governing  the  subject,  taking  into  consideration  the  

financial condition of the family of the deceased.  Such a category of  

employment  itself,  is  an  exception  to  the  constitutional  provisions  

contained in Articles 14 and 16, which provide that there can be no  

discrimination  in  public  employment.   The  object  of  compassionate  

employment is to enable the family of the deceased to overcome the  

sudden financial crisis it finds itself facing, and not to confer any status  

upon it. (Vide: Union of India & Ors. v. Shashank Goswami & Anr.,  

AIR 2012 SC 2294).   

6. The eligibility for the post may at times be misunderstood to  

mean qualification. In fact, eligibility connotes the minimum criteria for  

selection, that may be laid down by the executive authority/legislature  

by  way  of  any  statute  or  rules,  while  the  term  qualification,  may  

connote any additional norms laid down by the authorities. However,  

before a candidate is considered for a post or even for admission to the  

institution,  he  must  fulfill  the  eligibility  criteria.  (Vide:  Dr.  Preeti  

Srivastava & Anr. v. State of M.P. & Ors., AIR 1999 SC 2894).

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7. The appointing authority is competent to fix a higher score for  

selection, than the one required to be attained for mere eligibility, but  

by  way  of  its  natural  corollary,  it  cannot  be  taken  to  mean  that  

eligibility/norms fixed by the statute or rules can be relaxed for this  

purpose to the extent that, the same may be lower than the ones fixed by  

the statute. In a particular case, where it is so required, relaxation of  

even educational qualification(s) may be permissible, provided that the  

rules empower the authority to relax such eligibility in general, or with  

regard  to  an  individual  case  or  class  of  cases  of  undue  hardship.  

However, the said power should be exercised for justifiable reasons and  

it must not be exercised arbitrarily, only to favour an individual. The  

power to relax the recruitment rules or any other rule made by the State  

Government/Authority is conferred upon the Government/Authority to  

meet any emergent situation where  injustice might have been caused  

or, is likely to be caused to any person or class of persons or, where the  

working of the said rules might have become impossible.  (Vide: State  

of  Haryana v.  Subhash Chandra Marwah & Ors., AIR 1973 SC  

2216; J.C. Yadav v. State of Haryana, AIR 1990 SC 857; and Ashok  

Kumar Uppal & Ors. v. State of J & K & Ors., AIR 1998 SC 2812).  

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8. The courts and tribunal do not have the power to issue direction  

to make appointment by way of granting relaxation of eligibility or in  

contravention thereof.  In State of M.P. & Anr. v. Dharam Bir, (1998)  

6 SCC 165, this Court while dealing with a similar issue rejected the  

plea of humanitarian grounds and held as under:    

“The courts as also the tribunal have no power to   override the mandatory provisions of the Rules on   sympathetic  consideration  that  a  person,  though   not  possessing  the  essential  educational   qualifications,  should be allowed to continue on   the  post  merely  on  the  basis  of  his  experience.   Such  an  order  would  amount  to  altering  or   amending  the  statutory  provisions  made  by  the   Government  under  Article  309  of  the   Constitution.”  

9. Fixing eligibility for a particular post or even for admission to a  

course falls within the exclusive domain of the legislature/executive and  

cannot  be  the  subject  matter  of  judicial  review,  unless  found  to  be  

arbitrary, unreasonable or has been fixed without keeping in mind the  

nature of service, for which appointments are to be made, or has no  

rational nexus with the object(s) sought to be achieved by the statute.  

Such eligibility  can  be  changed  even  for  the  purpose  of  promotion,  

unilaterally  and  the  person  seeking  such promotion cannot  raise  the  

grievance that he should be governed only by the rules existing, when  

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he  joined  service.  In  the  matter  of  appointments,  the  authority  

concerned has unfettered powers so far as the procedural aspects are  

concerned, but it must meet the requirement of eligibility etc. The court  

should therefore, refrain from interfering, unless the appointments so  

made, or the rejection of a candidature is found to have been done at the  

cost of ‘fair play’, ‘good conscious’ and ‘equity’. (Vide: State of J & K  

v. Shiv Ram Sharma & Ors., AIR 1999 SC 2012; and Praveen Singh  

v. State of Punjab & Ors., (2000) 8 SCC 436).   

10. In State of Orissa & Anr. v. Mamta Mohanty, (2011) 3 SCC  

436, this Court has held that any appointment made in contravention of  

the statutory requirement i.e. eligibility, cannot be approved and once  

an appointment is bad at its inception, the same cannot be preserved, or  

protected, merely because a person has been employed  for a long time.  

11. A  person  who  does  not  possess  the  requisite  qualification  

cannot even apply for recruitment for the reason that his appointment  

would be contrary to the statutory rules is, and would therefore, be void  

in law.  

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Lacking eligibility for the post cannot be cured at any stage and  

appointing such a person would amount to serious illegibility and not  

mere irregularity.  

Such a person cannot approach the court for any relief for the  

reason that he does not  have a right  which can be enforced through  

court.  (See: Prit Singh v. S.K. Mangal & Ors.,  1993(1) SCC (Supp.)  

714;  and  Pramod  Kumar  v.  U.P.  Secondary  Education  Services  

Commission & Ors., AIR 2008 SC 1817).  

12. The claim of the respondent was earlier rejected on the ground  

that, the family had adequate financial status and the amount of pension  

being given was actually over and above the limit fixed by the appellant  

issuing the guidelines.  Subsequently, when the case was reconsidered  

upon the direction of the court, it was found that the respondent did not  

meet  the  requisite  eligibility  criteria  i.e.,  10th standard  certificate.  

Admittedly,  the  respondent  is  8th standard  fail,  and  thus,  he  can  be  

considered only as 7th standard pass and we must therefore consider,  

whether he could have been offered appointment to a  Class IV post.

13. Clause  9  thereof,  provides  that  no  relaxation  in  educational  

qualification(s) for the purpose of giving compassionate appointment to  

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the  dependant(s)  of  a  deceased  employee,  would  be  permissible.  

However,  such  relaxation  can  be  granted  if  there  exists  some  

requirement of minimum qualification(s) with respect to the said post.

Clause 11 thereof, provides that  a dependant can, in fact,  be  

given appointment on compassionate ground, on the basis of the pass  

marks obtained by him in the new Secondary School Certificate and in  

view thereof, as respondent No.1 is admittedly only 8th standard (fail),  

he is therefore, ineligible for the post.   

Even otherwise, if the direction of the High Court is complied  

with and the case is considered as per the un-amended provisions in  

existence  prior  to  2005,  the  financial  limits  fixed  therein,  would  

automatically be applicable.  His application dated 11.5.1999 reveals  

that his date of birth is 1.3.1976, and further that he has studied only  

upto the 8th standard (fail).  

14. In view of the above,  we are  of  the considered opinion that  

since 1991, the eligibility criteria for a Class IV post was set as,  the  

passing of the 10th standard, and as the said respondent had been unable  

to  pass even the 8th standard, he was most certainly, not eligible to  

apply for the said post. In view of the law referred to hereinabove, it is  

neither desirable, nor permissible in law, for this court to issue direction  

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to relax the said eligibility criteria and appoint respondent No.1 merely  

on humanitarian grounds.  

15. Thus, the question framed by this Court with respect to whether  

the application for compassionate employment is to be considered as  

per existing rules, or under the rules as existing on the date of death of  

the employee, is not required to be considered.

16. In view of the above, the appeal succeeds and is allowed.  The  

judgment and order impugned herein is set aside. No order as to costs.  

                ………………………………………J.           (Dr. B.S. CHAUHAN)

     .…………..…………………………………………J.       (FAKKIR MOHAMED IBRAHIM KALIFULLA)

New Delhi, September 14, 2012.

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