CWP NO.20617 OF 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 12.2.2009 Beant Singh ...Petitioner VERSUS State of Punjab & Others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Ms.Deepinder Kaur, Advocate for the petitioner Mr.BS Chahal, DAG, Punjab Permod Kohli, J. (Oral) Mother of the petitioner, namely, Murti Kaur was working as Ward Attendant in the office of respondent no.3. She died in harness on 14.11.2003. After her death, the petitioner made an application seeking appointment on compassionate ground to a Class IV post. The Deputy Commissioner, Bhatinda issued dependency Certificate on 20.1.2004. The other brother of the petitioner also submitted an affidavit of no objection to the appointment of the petitioner on compassionate grounds. On consideration of the application, the petitioner was informed vide communication dated 23.7.2004 that he cannot be appointed on Class IV post for want of minimum educational qualification required for the said post. On the representation to the petitioner, Civil Surgeon, Bathinda also CWP NO.20617 OF 2008 2 informed the Director Health & Family Welfare, Punjab that the petitioner does not fulfil the minimum educational qualification for appointment and thus is not entitled to be appointed. The petitioner has placed reliance upon instructions of the Punjab Government (Annexure P-3) wherein it is mentioned that the educational qualification prescribed shall apply to all Class IV posts, except the post of Sweeper. It is admitted case of the petitioner that he has passed 3rd class whereas the minimum educational qualification prescribed for appointment on Class IV post is Class V. The State Government issued fresh instructions vide its Circular dated 21.11.2002 (Annexure P-5) whereby a new Scheme for appointment on compassionate grounds was notified. Admittedly, at the time of death of the deceased-mother of the petitioner, the new instruction was in operation. Clause 6 of the new instructions deals with the eligibility for appointment on compassionate grounds. Clause 7 deals with Exemptions whereas Clause 8 deals with Relaxation. The relevant extracts from the aforesaid Clauses read as under:- “6.Eligibility:- a) The family is indigent and deserves immediate assistance for relief from financial destitution. The authority concerned must consider as to whether the family of deceased employees is unable to meet the financial crisis resulting from employee's death. b) Applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules. 7.Exemptions: CWP NO.20617 OF 2008 3 Compassionate appointments are exempted from observance of the following requirements:- a) Recruitment procedure i.e. without the agency of the Punjab State Subordinate Service Selection Board for the Employment Exchange. b) Clearance from the Surplus Cell of the Department of Administrative Reforms. c) The ban orders of filing up of posts issued by the State Government from time to time. 8.Relaxations:- a) Upper age limit could be relaxed wherever found to be necessary. In case of reserved categories of SC/BC, Widows the age relaxation may be allowed as per policy instructions issued from time to time. The lower age limit should, however, in no case be relaxed below 18 years of age in case of Group “C” and below 16 years in case of Group “D”. However, the Administrative Department may relax upper age limit by 5 years in deserving cases. Note: Age eligibility shall be determined with reference in the date of application and not the date of appointment; b) No relaxation in educational qualification is permissible. However, for Group “D” minimum 5th standard is necessary. For Group “C” the appointing authority may temporarily relax the conditions for the passing of Punjabi Language for a period of six months. The person so appointed shall have to pass an examination of Punjabi Language equivalent to Matriculation CWP NO.20617 OF 2008 4 standard or he/she has to qualify a test conducted by the Language Wing of the Department of Education Punjab within prescribed period. If he/she fails to qualify the test, he/she may be dealt with like other employees as per rules. Note:- In the case of an attached/subordinate office, the Secretary in the concerned Administrative Department shall be the competent authority for this purpose. c) Where a widow is appointed on Compassionate Group “D” post, she will be exempted from the requirement of passing the educational qualifications prescribed in the relevant rules provided the duties of the post can be satisfactorily performed by her without possessing such educational qualification.” Under Clause 8 (b), it is specifically mentioned that no relaxation in educational qualification is permissible and for Group “D” post, minimum educational qualification prescribed is 5th class pass. Admittedly, the petitioner is 4th Class pass. Hon'ble Supreme Court in the case of Umesh Kumar Nagpal Vs. State of Haryana (1994) 4 SCC 138, has laid down the guidelines for appointment on compassionate grounds. In the aforesaid, Hon'ble Supreme Court has observed as under:- "2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation CWP NO.20617 OF 2008 5 of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration 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 in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus 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.....” In the case of The District Collector & Chairman Vizianagaram (Social Welfare Residential School Society) Vizianagaram and Anr. Vs. M.Tripura Sundari Devi, 1990(4) SLR 237 the Hon'ble Supreme Court CWP NO.20617 OF 2008 6 has further observed as under:- “6.It must further be realised by all concerned when an advertisement mentions a qualification and appointment is in disregard the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint person with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact." Admittedly, the petitioner does not possess minimum educational qualification. In view of above legal position, the petitioner is not entitled for compassionate appointment. I find no merit in this petition which is accordingly dismissed. (PERMOD KOHLI) JUDGE 12.2.2009 MFK Note:Whether to be reported or not:YES