STATE OF U.P. Vs PANKAJ KUMAR VISHNOI
Bench: DIPAK MISRA,VIKRAMAJIT SEN
Case number: C.A. No.-002366-002367 / 2011
Diary number: 32321 / 2009
Advocates: GUNNAM VENKATESWARA RAO Vs
MANOJ K. MISHRA
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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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