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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2366-2367  OF 2011

State of U.P. & Ors. ...  Appellants

Versus

Pankaj Kumar Vishnoi                                     ...Respondent

WITH

CIVIL APPEAL NO. 2406  OF 2011

State of U.P. & Ors. ...  Appellants

Versus

Udaiveer Singh & Anr.                                    ...Respondents

J U D G M EN T  

Dipak Misra, J.

Regard being had to the commonality of controversy  

of the appeals were heard together and are disposed of by  

a common order.  For the sake of convenience, the facts

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from Civil Appeal Nos. 2366-2367 of 2011 are adumbrated  

herein.   

2.  The  gravamen  of   grievance  that  has  been  

assertively  amplified  and  pronouncedly  stressed  by  the  

appellants,  State of Uttar Pradesh and its functionaries, in  

these appeals by special leave is that the Division Bench  

of High Court of judicature at Allahabad  by orders dated  

20.12.2006  and  dated  27.08.2009  passed  in  Special  

Appeal No. 1602 of 2006 and in Review Application No.  

172835/2007 respectively has reversed the verdict of the  

learned Single Judge and further  declined to review the  

same  as  a  consequence  of  which  erroneous  directions  

have  been  issued  pertaining  to  compassionate  

appointment in a higher post in violation of the norms and  

procedure.    

3. The facts which are imperative to be stated are that  

the  father  of  the  respondent,  a  Head  Constable  in  the  

Department of Police breathed his last on 22.04.2002 in  

harness.   The  respondent,  being  a  dependant  on  his  

deceased  father,  moved  an  application  for  grant  of  

compassionate appointment before the Superintendent of  

Police, Rampur on 20.12.2002.  After consideration of the  

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application  a  decision  was  taken  at  the  U.P.  Police  

Headquarters  to  offer  him  an  appointment  on  the  

compassionate  basis  on  the  post  of  Constable  and  in  

accordance  with  such  decision  a  letter  of  appointment  

dated 9.5.2003 was issued by the Superintendent of Police  

and, Rampur and he was required to join on 11.5.2003.  

Instead of joining, the respondent preferred Civil Misc. Writ  

Petition No. 23703 of 2003 for issue of writ of a Mandamus  

to the competent authority to extend him the benefit of  

compassionate appointment on the post of Sub-Inspector  

(Civil  Police) as he was eligible for the said post.   Be it  

noted,  during  the  pendency  of  the  writ  petition  the  

respondent  in  pursuance  of  the  order  dated  9.5.2003  

joined  on  the  post  of  Constable  on  28.6.29003.  

Eventually, on 16.3.2004 the writ petition was dismissed  

as withdrawn.  

4. As the facts are further uncurtained, a physical test  

examination was conducted from 27.6.2005 to 29.6.2005  

for  the  post  of  Sub-Inspector  (Civil  Police)  and  the  

petitioner  participated  in  the  said  physical  examination  

but could not become successful as a result of which his  

candidature for the post of Sub-Inspector was rejected.  It  

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is  worth  noting  in  that  physical  test  460  candidates  

appeared  out  of  which  263  candidates  fulfilled  the  

minimum  physical  requirements  and  accordingly  they  

were selected.   

5. Calling  in  question  his  non-selection  and  non-

appointment he preferred Writ Petition No. 63596 of 2006  

with a prayer for grant of compassionate appointment on  

the post of Sub-Inspector (Civil Police) without subjecting  

him  to  appear  in  any  physical  test  examination  and  

interview.   Learned  Single  Judge  vide  order  dated  

23.11.2006  dismissed  the  Writ  petition  on  two  counts,  

namely, the second writ petition for issuance of grant of  

compassionate appointment was not maintainable as the  

earlier  writ  petition  was  dismissed  being  withdrawn  

without any liberty to refile another petition and secondly,  

the  prayer  for  offering  the  post  of  Sub-Inspector  (Civil  

Police)  without  subjecting  him  to  undergo  the  physical  

efficiency test was absolutely misconceived.  

6. The aforesaid order passed by learned Single Judge  

was assailed in Special Appeal No. 1602 of 2006 and the  

Division Bench came to hold that the first dismissal was  

not  an  impediment  for  entertaining  the  second  writ  

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petition;   and  that  the  respondent  who  was  physically  

examined in the year 2002 and with passage of time one  

may  become  unfit  or  more  fit.   Being  of  this  view  it  

proceeded to direct as follows :-   

“As such the writ  petition is  allowed.  The  writ  petitioner  appellate  will  be  granted  compassionate  appointment  in  the  post  found  suitable  after  he  is  subjected  to  a  physical test once again now such a test will  be conducted within a period of two months  from the date hereof and either appointment  offered forthwith or a reasoned order passed  as to exactly why and in what manner and  when  the  writ  petitioner  was  found  physically unfit. No order as to costs ”

7. The aforesaid order was sought to be reviewed but  

the application for review did not meet with any success.  

Hence, the present appeal.   

8. Mr. R. Dash, learned senior counsel for the appellant  

has submitted that once the respondent had failed in the  

physical  test  and  did  not  qualify  for  the  post  of  Sub-

Inspector,  the  High  Court  could  not  have  directed  for  

holding another test.  He has invited our attention to Sub-

Rule 8 (2) of the Rules and submitted that even though  

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the person is considered eligible for appointment in place  

of  an  employee  dying  in  harness  yet  the  minimum  

standard  of  working  and  efficiency  is  required  to  be  

considered.  To  buttress  the  facet  of  efficiency  and  

minimum standard he has placed reliance upon the order/  

letter- circular issued by the Inspector General of Police.  

He has also drawn inspiration from the pronouncement in  

I. G. Karmik and Ors. v. Prahlad Mani Tripathi1.  That  

apart, learned senior counsel would submit that there is  

no  vested  right  for  getting  compassionate  appointment  

and, therefore, the respondent cannot put forth a claim  

that he should be considered for a particular post because  

of his educational qualification.  

9. Mr.  Shamit  Mukherjee,  learned  senior  counsel,  per  

contra, contended that there was no command in the Rules  

for  holding  a  test  at  the  time  of  appointment  on  

compassionate  basis  and  hence,  the  applicant  is  to  be  

extended the benefit of appointment on relaxation of the  

Rules.   It  is  urged  by  him  that  the  physical  test  was  

conducted on the basis of an order passed by the Inspector  

General of Police which cannot be placed reliance upon in  

1 (2007) 6 SCC 162.

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the absence of any stipulation in the Rules 8 (2) itself.  The  

next plank of submission of Mr.  Mukherjee is that number  

of people have been given liberty to undergo the physical  

test  for  the  second  time  but  the  respondent  has  been  

deprived of the said benefit.

10. Before we proceed to appreciate the entitlement of  

the  respondent  for  a  particular  post  on  compassionate  

basis,  we  think  it  necessary  to  refer  to  certain  

pronouncements in the field pertaining to compassionate  

appointment itself.  In  Umesh Kumar Nagpal v. State  

of  Haryana2 while  dealing  with  the  concept  of  

compassionate appointment the Court has observed that  

the whole object of granting compassionate employment  

is to enable the family to tide over the sudden crisis. The  

object is not to give a member of such family a post much  

less a post for post held by the deceased. Mere death of  

an employee in harness does not entitle his family to such  

source  of  livelihood.  The  Government  or  the  public  

authority  concerned  has  to  examine  the  financial  

condition of the family of the deceased, and it is only if it  

is satisfied that but for the provision of employment, the  

2 (1994) 4 SCC 138

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family will not be able to meet the crisis then a job is to be  

offered to the eligible member of the family. The posts in  

Classes III and IV are the lowest posts in non-manual and  

manual categories and hence, they alone can be offered  

on compassionate grounds, the object being to relieve the  

family, of the financial destitution and to help it get over  

the  emergency.  The  provision  of  employment  in  such  

lowest  posts  by  making  an  exception  to  the  rule  is  

justifiable  and  valid  since  it  is  not  discriminatory.  The  

favourable  treatment  given  to  such  dependant  of  the  

deceased employee in  such  posts  has  a  rational  nexus  

with the object sought to be achieved viz. relief against  

destitution.  

11. In  SAIL  v.  Madhusudan  Das3   this  Court  

reiterating the principle has stated thus:-  

“15.  This  Court  in  a  large  number  of  decisions has held that the appointment on  compassionate  ground  cannot  be  claimed  as a matter of right. It must be provided for  in the rules. The criteria laid down therefor  viz. that the death of the sole bread winner  of  the  family,  must  be  established.  It  is  meant  to  provide  for  a  minimum  relief.  

3(2008) 15 SCC 560

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When  such  contentions  are  raised,  the  constitutional philosophy of equality behind  making  such  a  scheme  be  taken  into  consideration.  Articles  14  and  16  of  the  Constitution  of  India  mandate  that  all  eligible candidates should be considered for  appointment in the posts which have fallen  vacant.  Appointment  on  compassionate  ground  offered  to  a  dependant  of  a  deceased employee is an exception to the  said rule. It is a concession, not a right.”

12. In  General  Manager,  State  Bank of  India  and  

Others  v.  Anju  Jain4 it  has  been  clearly  stated  that  

appointment  on  compassionate  ground  is  never  

considered  to  be  a  right  of  a  person.   In  fact,  such  

appointment is violative of rule of equality enshrined and  

guaranteed under Article 14 of the Constitution.  As per  

the settled law, when any appointment is to be made in  

Government or semi-government or in public office, cases  

of  all  eligible  candidates  are  be  considered  alike.  Tthe  

State  or  its  instrumentality  making  any  appointment  to  

public office, cannot ignore the  mandate of Article 14 of  

the Constitution.    At the same time, however, in certain  

circumstances, appointment on compassionate ground of  4 (2008) 8 SCC 475

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dependants  of  the  deceased  employee  is  considered  

inevitable  so that  the family  of  the deceased employee  

may not starve.  The primary object of such scheme is to  

save  the  bereaved  family  from  sudden  financial  crisis  

occurring due to death of the sole bread winner.  It is an  

exception to the general rule of equality and not another  

independent and parallel source of employment.  

13. In  Union  of  India  and  Another  v.  Shashank  

Goswami and Another5 it  has been observed that the  

claim for appointment on compassionate grounds is based  

on the premise that the applicant was dependant 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, and, therefore,  

appointment  on  compassionate  grounds  cannot  be  

claimed as a matter of right.  

14. In  State  Bank  of  India  and  Another  v.  Raj   

kumar6 it  has  been  ruled  that  the  dependants  of  5 (2012) 11 SCC 307 6 (2010) 11 SCC 661

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employees, who die in harness, do not have any special  

claim  or  right  to  employment,  except  by  way  of  the  

concession that may be extended by the employer under  

the rules or by a separate scheme, to enable the family of  

the deceased to get over the sudden financial crisis. The  

claim  for  compassionate  appointment  is,  therefore,  

traceable only to the scheme framed by the employer for  

such employment and there is no right whatsoever outside  

such scheme.  

15. Regard being had to the aforesaid enunciation of law  

in the field we shall proceed to scrutinize the Rule position  

and the claim that had been put forth by the respondent  

and accepted by the High Court.  The Rule dealing with  

compassionate  appointment  in  the  State  of  U.P.  at  the  

relevant  time  was  Recruitment  of  Dependants  of  

Government Servants Dying in Harness Rules,  1974 (for  

short the ‘1974 Rules’).   Rule 5 of the said Rules reads as  

under:-

“In  case,  a  government  servant  dies  in  harness  after  the  commencement  of  these  rules  and  the  spouse  of  the  deceased  government servant is not already employed  under  the  Central  Government  or  a  State  

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Government  or  a  corporation  owned  or  controlled  by  the  Central  Government  or  a  State Government, one member of his family  who  is  not  already  employed  under  the  Central  Government or a State Government  or a Corporation owned or controlled by the  Central  government or  a  State Government  making an application for  the purposes,  be  given a suitable employment in government  service on a  post  except  the post  which is  within the purview of the Uttar Pradesh Public  Service  Commission,  in  relaxation  of  the  normal recruitment rules if such person-  

(i) fulfils  the  educational  qualifications prescribed for the  post.

(ii) is  otherwise  qualified  for  government service; and

(iii) makes  the  application  for  employment  within  five  years  from the date  of  the  death  of  the government servant.”

16. The aforesaid Rule stipulates that a candidate would  

be given a suitable employment in government service on  

a post except the post which comes within the purview or  

U.P.  Public  Service  Commission  in  relaxation  of  normal  

recruitment subject to certain conditions as enumerated  

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in  the  said  Rule.   Rule  8  of  the  1974  Rules  lays  the  

postulates  pertaining  to  relaxation  of  age  and  other  

requirements which are as follows:-

“1) The candidate seeking appointment under  

these rules must not be less than 18 years at the  

time of appointment.

2) The procedural  requirement for  selection,  

such as written test or interview by a selection  

committee  or  any  other  authority,  shall  be  

dispensed  with,  but  it  shall  be  open  to  the  

appointing authority to interview the candidate in  

order to satisfy itself  that the candidate will  be  

able to maintain the minimum standards of work  

and efficiency expected to the post.”  

17. Thus, Rule 8 (2) confers discretion on the appointing  

authority  to  interview the  candidate  in  order  to  satisfy  

himself  that  the candidate will  be able to  maintain the  

minimum standard of work and efficiency expected of the  

post.  What has been dispensed with is the written test or  

interview  by  a  selection  committee  but  not  the  

maintenance of minimum stand of efficiency required for  

the post.   It  is apt to note that for the said reason the  

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Inspector  General  issue  an  order  /letter,  circular.   It  is  

seemly to reproduce the same :-    

“The  appointing  authority  has  been  authorised  in  this  regard  that  for  recruitment  of  the  dependants  of  deceased  during  service  period  of  government servant under Rule 8 Sub- rule  2  of  Service  Rules  1974  that  it  should  be  decided  on  the  basis  of  interview  by  the  Authorised  Authority  that  the  candidate  is  whether  competent to discharge his duties as per  norms of the service or not.  Apart from  this according to the Service Rule clause  A  for  selection  under  these  rules,  the  concerned  candidate  should  be  necessarily  competent  and  healthy  for  this post. There are so many other works related  to  the  physical  fitness  for  Asst.  Sub- Inspector  Civil  Police/Platoon  Commander as arresting of the criminal,  handling  of  the  various  kinds  of  arms  etc.   In  these  circumstances,  it  is  necessary  that  candidate  selected  for  this  post  should  carry  physical  competency and fitness.

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Under the above provision of the Service  Rules  vested  arrangements  keeping  in  view the circumstances of  the work of  Asstt.  Sub-  Inspector  and  Platoon  Commander,  the  officer  will  be  nominated by the Inspector General  of  Police Uttar Pradesh for consideration of  appointment  selection  for  the  post  of  Asstt.   Sub-Inspector  and  Platoon  Commander,  wherein  a  officer  of  the  rank by Dy. Inspector General of Police  will be for selection.”

18. The  said  order/letter-circular  has  a  Chart  that  

provides  the  guidelines  for  evaluation  of  physical  

endurance.  It is as follows: -  

Sl No. Item Standard for male Standard  for  female  

1 Cricket ball throw 50 Meter 20 Meter 2. Long Jump 13 Feet 8 Feet 3. Chining up 5 times  4. Running and walk 5  

km 30 minutes Running  200  

meters  in  40  seconds

5. Sitting and stand up (1)  40  in  2  minutes  30  seconds  (b)  50  sitting  in  60  seconds

6. Shuttle race  (25x4 mtr)

Within 29 seconds

7. Skipping 60  times  within  a  

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minute

19. Mr.  Mukherjee  has  submitted  that  such  an  order  

could not have been passed by the appointing authority  

as it is contrary to the Rules.  The aforesaid submission  

leaves us unimpressed inasmuch as it is for the appointing  

authority to see that minimum standard of working and  

efficiency  expected  of  the  post  is  maintained.   In  I.G.  

Karmik and others  (supra) this Court while dealing with  

the  employment  in  the  Department  of  Police  has  

expressed thus:-

“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  be 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 reason of the death of the bread  earned.   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.”

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20. We  have  no  iota  of  doubt  that  the  order/letter-

circular issued by the Inspector General is in consonance  

with the Rule 8(2).  It does not travel beyond the rule but  

it acts in furtherance of the rule and there is justification  

for the same.  

21. It is accepted position that the respondent appeared  

in the test and could not qualify.  Once he did not qualify  

in the physical test, the High Court could not have asked  

the  department  to  give  him  an  opportunity  to  hold  

another test to extend him the benefit of compassionate  

appointment on the post  of Sub-Inspector  solely  on the  

ground  that  there  has  been  efflux  of  time.   The  

respondent  after  being  disqualified  in  the  physical  test  

could not have claimed as a matter of right and demand  

for an appointment in respect of a particular post and the  

High  Court  could  not  have  granted  further  opportunity  

after the crisis was over.  

22. In our considered opinion, the order passed by the  

Division Bench is wholly unsustainable and is hereby set  

aside.  We may, however, hasten to add that it is open to  

the respondent to compete in the normal course if eligible  

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for the post of Sub-Inspector for promotion in accordance  

with rules prescribed for promotion.     

23. At this juncture, we have been apprised at the Bar  

that following the decision of the Division Bench which has  

been set aside in this appeal, in subsequent writ petitions  

and appeals the High Court has directed the Department  

to hold a second physical test and to keep the results in a  

sealed cover.  As we have already opined that the second  

physical test could not have been directed to be held for  

the  purpose of  extending  the  benefit  of  compassionate  

appointment,  the  sealed  covers  need  not  be  opened.  

Needless to say, the candidates therein are also entitled  

to compete for promotion in accordance with the rules.   

24. We will be failing in our duty if we do not take note of  

an  apprehension  that  has  been  expressed  by  Mr.  

Mukherjee, leanred counsel for the appellant that for the  

purpose of  promotion certain  relaxations  are given and  

the appellants should not be deprived of the same merely  

because  they  had  not  qualified  in  the  physical  test  

undertaken by them.  Mr. R. Dash, learned senior counsel  

appearing for the state very fairly stated that they will be  

given relaxation if they are entitled to the same and the  

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State  shall  not  hold  anything  against  them  on  the  

foundation that they had not passed the physical test on  

the first occasion

25. All  the  appeals  are  disposed  of  in  above  terms  

leaving the parties to bear their respective costs.    

.................................J. [Dipak Misra]

.................................J. [Vikramajit Sen]

New Delhi July 25, 2013.    

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