CWP No.3106 of 2007 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. CWP No.3106 of 2007 Date of decision: 10.09.2008 Denesh Kumar ...Petitioner Versus The State of Punjab & others ...Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. Balwinder Singh, Advocate, for the petitioner. Ms. Charu Tuli, Senior DAG, Punjab, for the respondents. Rajan Gupta, J. The petitioner has prayed in this petition for a writ of mandamus to appoint him on compassionate ground to a post for which he is found eligible and suitable in view of his educational qualifications. It has also been prayed that the order (Annexure P-10) dated 27th September, 2006 whereby claim of the petitioner has been rejected, be quashed. The brief factual matrix of the case is that the father of the petitioner Constable Puran Chand had died in harness on 10th August, 1999. He had succumbed to injuries suffered in an accident on 8th January, 1998. Thereafter, the petitioner along with his mother appeared before respondent No.3 and submitted an application for appointment on compassionate ground. According to the petitioner, his case was recommended for appointment as a clerk by respondent No.3 CWP No.3106 of 2007 2 i.e. Senior Superintendent of Police, Patiala. However, Inspector General of Police Head Quarters offered the post of constable to the petitioner which he accepted as he was in great need of job. The petitioner was finally enlisted as constable in the 1st India Reserve Battalion, Patiala vide order dated 27th December, 2000 and he joined the same on 3rd February, 2001. The petitioner has relied upon instructions Annexures P-1 to P-5 dated 5.2.1996, 8.8.1996, 12.7.1999, 10.8.1999 and 21.11.2002 respectively to contend that he ought to be given appointment to a higher post commensurate to his qualification. A detailed reply has been filed on behalf of the respondents wherein it has been stated that compassionate appointment is granted only to enable penurious family to tide over the sudden financial crises and not to provide employment. The object is to enable the family to get over the financial crises which it faced at the time of death of the sole bread winner of the family. In the case of the petitioner, taking a sympathetic view, conditions of recruitment in police department such as physical measurement, age etc. were relaxed. The Director General of Police passed an order on 20th November, 2000 (Annexure R-2) in this regard so that the petitioner could be appointed on compassionate ground. In fact, the petitioner was overage by 02 years 03 months and 01 day. Yet he was appointed and enlisted as a constable in 1st India Reserve Battalion, Patiala on 3rd February, 2001. He willingly accepted this appointment. The petitioner even filed an affidavit that he was ready CWP No.3106 of 2007 3 to serve in any State. Respondents have further averred that appointment on compassionate ground was not as a matter of right. Thus, the petitioner could not now turn around and say that he be appointed on a post commensurate to his educational qualifications. The petitioner cannot claim to be appointed to a post of his choice. Even father of the petitioner, who had died in harness, was constable and petitioner had also been given an equivalent post. Thus, no illegality, whatsoever, has been committed by the respondents. We have heard learned counsel for the parties. From a perusal of the record it is apparent that after death of his father, the petitioner had applied for appointment on compassionate ground to the respondent department. It is also obvious from a perusal of Annexure R-2 annexed with the reply that conditions with respect to age and physical measurement had to be relaxed for granting him appointment on compassionate ground. The petitioner accepted the appointment without any demur. He, thus, joined 1st India Reserve Battalion, Patiala and is serving as such. We are of the considered view that the petitioner cannot now turn around to claim appointment to a higher post on the ground that he possessed higher qualification. The instructions (Annexures P-1 to P-5) do not help the case of the petitioner. On the other hand, it is clear that the respondents, acting benevolently, relaxed the conditions in respect of age and physical measurement in order to offer compassionate CWP No.3106 of 2007 4 appointment to the petitioner. Learned counsel for the petitioner has placed reliance on a judgment of the Supreme Court reported as Smt. Kamala Gaind Vs. State of Punjab and others, 1992 (5) Services Law Reporter 864 to contend that the petitioner should have been appointed to higher post. However, a perusal of the judgment shows that this relates to an Additional District Judge in Punjab Judicial Service, who was gunned down by the terrorists. The Apex Court observed that persons in similar situations i.e. dependents of public servants killed by terrorists, had been offered Class-I posts. Thus, a direction was issued to provide a suitable post of Class-I to the appellant in the said case. However, present is a case where father of the petitioner died while in service but not due to any terrorists violence. He died in harness on 10th August, 1999 on account of an accident which had occurred on 8th January, 1998. Thus, ratio of this judgment is not applicable to the facts of the present case. Another judgment relied upon by the petitioner is Smt. Shanti Devi etc. Vs. State of Haryana, 1992 (6) Services Law Reporter 320 where a Division Bench of this court held that instructions regarding appointment on compassionate ground have to be followed and the post offered should be commensurate to the academic qualification of the applicant. In the said case, the petitioner was a graduate Engineer but was offered a job of Junior Engineer in the Panchayaat Department. However, in the present case, the petitioner CWP No.3106 of 2007 5 was not even qualifying for the post of constable according to eligibility conditions as regards age and physical measurement. Both these conditions had to be relaxed even for appointing him as a constable. The instructions pertaining to the State of Punjab were kept in view by the respondents. The department in fact showed compassion and granted appointment to the petitioner. The Supreme Court in the case reported as I.G. (Karmik) and others Vs. Prahalad Mani Tripathi, 2007 (6) Supreme Court Cases 162 held that a person cannot be appointed on compassionate ground unless he fulfills the eligibility criteria. Physical fitness being an essential eligibility criterion in the police department, no recommendation could be made in violation of the rules. It was also held that appointment on compassionate ground could be given only for meeting immediate hardship which is faced by the family of the deceased and when such appointment was made, it should be confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion. The appointment had to be in consonance with the constitutional scheme. In the said case the applicant applied for the post of constable, his father had died in harness while in service of Uttar Pradesh Police. However, the applicant was found unsuitable for the post of constable. He was, thus, appointed as a peon which post he accepted without any demur. The Apex Court thus held that having been appointed to a lower post, the employee thereafter could not be CWP No.3106 of 2007 6 permitted to turn around and contend that he was entitled for a higher post although not found suitable therefor. Another judgment of the Apex Court on the similar lines is State of Haryana Vs. Naresh Kumar Bali, 1994 (4) Supreme Court Cases 448 where a constable in Haryana Police died in harness. His son was appointed as a clerk which post he willingly accepted. However, later his mother requested that her son be appointed as an Inspector. On his claim for the post of Inspector being rejected, the applicant preferred a writ petition which was allowed by the High Court. However, on an appeal filed by the State, the Apex Court set-aside the judgment and remitted it to the High Court for fresh consideration, observing that the applicant did not object to his appointment as clerk. Thus, the appointment on compassionate ground as per scheme had been completed as the applicant willingly accepted the same. In the facts and circumstances of the present case, we are of the considered view that the petitioner, who did not even qualify for the post of constable, was appointed to the said post after conditions for appointment to the said post were relaxed by the respondents. Thus, he cannot raise a grievance now that he was entitled to be appointed to higher post. In any case, appointment on compassionate ground has to be in consonance with the constitutional scheme of equality enshrined in Articles 14 and 16 and the purpose for making appointments on compassionate grounds has to be kept in view by the appointing CWP No.3106 of 2007 7 authority at the time of appointment, the purpose being to alleviate the immediate hardship faced by the family on death of bread winner of the family. The purpose cannot be to show endless compassion. Once this objective is achieved, the immediate financial hardship to the family is taken care of. The purpose of compassionate appointment ends there. The employer thereafter is under no obligation to consider representations of the appointee for a higher post. In case such requests are entertained by the employer, anomalous situations are likely to arise, which would clearly be against the constitutional scheme. This, in our view, is impermissible in law. A scheme which is formulated by the Government to provide succor cannot be used for furthering one's career prospects. This is not the objective of the scheme. Its scope cannot be enlarged or expanded to entertain fresh requests for appointment to higher posts after having been appointed once on compassionate ground. The argument that the petitioner was entitled to be appointed to a post commensurate to his educational qualification is unacceptable. As already stated above, the objective of appointment on compassionate ground is to provide immediate relief to a family due to sudden death of a sole bread winner. The question of appointment commensurate to one's educational qualification, therefore, does not arise. It may be remembered that in Umesh Kumar's case (1994 CWP No.3106 of 2007 8 (4) S.L.R. 677) the apex court had held that object of compassionate appointment was to enable the penurious family of the deceased employee to tide over the sudden financial crises and not to provide employment. It was further held that mere death of an employee does not entitle the family to compassionate appointment. We, therefore, find no merit in this writ petition. The same is hereby dismissed with no order as to costs. (RAJAN GUPTA) JUDGE (ASHUTOSH MOHUNTA) JUDGE September 10, 2008 'rajpal' To be referred to the Reporters or not? Yes / No