IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/S) No. 135 of 2009 Sanjay Kumar ………….Petitioner Versus State of Uttarakhand and others. ……...Respondents. Present : Mr. Manoj Mohan, Advocate for the petitioner. Mr. Anil Bisht, Brief Holder for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard Mr. Manoj Mohan, Advocate for the petitioner and Mr. Anil Bisht, Brief Holder for the State of Uttarakhand. The petitioner seeks compassionate appointment on class III post in the Police Department of the Government of Uttarakhand, more precisely on the post of Constable (M), where “(M)” stands for “Ministerial”. Brief facts of the case are that the father of the petitioner who was working on a class IV post as a “cook” in the Police Department, namely, Provincial Armed Constabulary (from hereinafter referred to as PAC) died while in harness on 27.7.2006. The deceased Sri Vijay Singh left behind his wife and a major and a minor child i.e. petitioner and one Heera Lal, respectively. Admittedly, at the time of the death of the father of the petitioner, the petitioner was a post graduate i.e. M.Sc. (Maths) and was also having a certificate in “Stenography”. It is though another matter that it took almost two years for the petitioner to move a proper application before the appropriate authority for compassionate appointment under U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (from hereinafter referred to as Dying in Harness Rules), as this application was moved by the petitioner on 22.9.2008. It 2 is again an admitted case that the Police Department in the State of Uttarakhand showed its willingness in giving appointment to the petitioner on compassionate ground under the Dying in Harness Rules, but on a class IV post. The petitioner, however, was not willing to accept a class IV post on which such an appointment was being made and insisted that he was liable to be given an appointment on a post which meets the requirements of his qualifications and thereafter he insisted that he should be appointed on the post of Constable (M). This contention of the petitioner was denied by the respondents. The respondents though relied upon two letters, namely, letter dated 4.10.2002 (annexure no. 3 to the writ petition) and letter dated 11.10.2008 (Annexure no. 6 to the writ petition) by which the respondents have stated that appointment on compassionate ground can only be considered on the post of Constable in PAC. However, for this the petitioner is not eligible, as he does not have a minimum height of 165 cm. which is a necessary requirement for the post of constable in PAC. In other words, even after the respondents could consider the appointment of the petitioner for the post of constable in PAC, the same could not to be given to the petitioner as he was not having the minimum requirement i.e. he was not having the minimum height which was an essential qualification for the said post. On the other hand, for class IV post which was being offered to the petitioner there was no such requirement, and it was offered to the petitioner. However, the said offer for appointment was denied by the petitioner, as according to the petitioner he is having a qualification for a higher post! This, in short, the controversy in the present writ petition. 3 Appointments in public service are made, subject to reservations, etc. purely on the basis of merit. There is a selection process involved in such matters and only if one qualifies the selection process, one is liable to be given such an appointment. Such a process is applicable also on class III and class IV posts. Appointment given on compassionate ground under the Dying in Harness Rules is an exception to the Rules referred above. Such an exception has been carved out by the Legislatures in a welfare State so that a family who has been deprived of its only earning member is able to meet the immediate hardship which has fallen upon the family due to death of its only bread-winner. In most cases such families who have lost their bread-winner are at the stage of penury and face extreme financial hardship. The provision of law, referred above (i.e. appointment on compassionate ground) thus seeks to mitigate the hardship of a family in distress. The Hon’ble Apex Court in Director of Education (Secondary) and another v. Pushpendra Kumar and others reported in (1998) 5 SCC 192 has dealt on precisely the same issue which is before this Court at present and stated as under :- “8. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread- earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the 4 deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee…” In the aforesaid decision, the Hon’ble Apex Court had also relied upon the earlier decisions of the Court, more particularly in Umesh Kumar Nagpal V. State of Haryana (1994) 4 SCC 138 where it has been held that the Government before giving such appointment 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 family will not be able to meet the crisis a job should be offered to the eligible member of the family. Another aspect which was decided by the Hon’ble Apex Court in Umesh Kumar Nagpal Case (supra) was 5 whether such appointment on compassionate ground could be made against the posts higher than class III and class IV and it was held that such appointment could only be made against the lowest posts in non-manual categories. The Hon’ble Apex Court in paragraph 2 of the said judgment stated as follows :- “2…..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. No other posts are expected or required to be given by the public authorities for the purpose.” In the said case i.e. Umesh Kumar Nagpal Case as well as in the Director of Education (Secondary) Case (supra), it has been reiterated by the Hon’ble Apex Court that the earlier decision made by the Hon’ble Apex Court in Sushma Gosain v. Union of India (1989) 4 SCC 468 “has been misinterpreted to the point of distortion”. Reverting back to the decision of the Hon’ble Apex Court in Director of Education (Secondary) case, the question before the Court was that in a grant in aid school when an employee dies in harness, whether he is in teaching or non-teaching post, his dependent is liable to be appointed on a class III post or not. The Hon’ble Apex Court concluded that a dependent can only be appointed on a class IV post and he could not seek a direction for being appointed on a Class III post and for creation of supernumerary post in class III for that purpose. 6 The facts in the present case are even more bizarre. Here the present petitioner, whose father died while in harness as a cook (i.e. a class IV post) was offered appointment on compassionate ground on an equivalent post (class IV post) even though he had sought appointment on compassionate ground belatedly. This the petitioner has refused and instead sought appointment on compassionate ground on a class III post. Here too he has picked a particular post of constable (M), which cannot be granted to the petitioner. The writ petition is wholly misconceived and is without merit and is hereby dismissed. The petitioner is not liable to be given appointment on the post of Constable (M) as he presently seeks. No order as to costs. (Sudhanshu Dhulia, J.) 12.10.2011 Avneet