Case: THE STATE OF UTTAR PRADESH &amp; ORS Vs. PREMLATA

2. The facts leading to the present appeal in nutshell are as under:-2.1 That the deceased employee at the time of his death was posted and serving as Messenger in Police Radio Department of Uttar Pradesh (Class-IV) died on 07.11.2014. The respondent herein being widow of the deceased – government servant submitted an application dated 05.12.2014 for appointment on the post of Assistant Operator in Police Radio Department on compassionate ground which was rejected on the ground that she is not fulfilling the requisite eligibility criteria for the said post. That thereafter the respondent submitted another application before the U.P. Police Radio Headquarter, Lucknow for appointment on the post of Workshop Hand on compassionate ground. However as she failed to clear the physical fitness examination conducted on 28.01.2018 for the selection of Workshop employee, her application for appointment as Workshop employee on compassionate ground came to be rejected. Due to unsuccessful in the physical eligibility test on the post of Workshop Hand/Workshop employee, vide letter dated 23.02.2018 of the Police Radio Headquarter, U.P., Lucknow, the respondent herein was offered the post below the rank of Workshop Hand i.e. Messenger in Radio Department. Instead of accepting the said post the respondent filed the writ petition before the High Court claiming the appointment on the post of Workshop Hand (Karmshala Karmchari) in Police Radio Department under the provisions of Dying-In-Harness Rules 1974 (hereinafter referred to as the Rules 1974) on compassionate ground and to direct the appellants to appoint her on the post of Workshop Hand (Karmshala Karmchari) or the post suitable for her in similar cadre.2.2 By the judgment and order dated 31.07.2018, learned Single Judge of the High Court dismissed the said writ petition on the ground that as the deceased employee was Class-IV employee and she has also been offered appointment on a Class-IV post, she cannot claim the appointment on compassionate ground on the post of Workshop Hand or on any other suitable Class-III post.2.3 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge, the respondent herein preferred the appeal before the Division Bench of the High Court and by the impugned judgment and order the Division Bench of the High Court has set aside the order passed by the learned Single Judge and has allowed the appeal and has directed the appellants to consider the candidature of the respondent herein for appointment on compassionate ground in Grade-III service and same be accorded to her if she otherwise does not suffer any ineligibility. By the impugned judgment and order the Division Bench of the High Court has observed that a bare perusal of Rule 5 of the Rules 1974 makes it crystal clear that appointment under Rule 5 is required to be given on a suitable post and the term suitable in Rule 5 pertains to suitability of the person who desires for appointment and it has nothing to do with the post held by the deceased government servant. The Division Bench also observed that the suitability of the aspirant is required to be assessed on the basis of the educational qualification and other eligibilities so possessed by such person. The Division Bench noted that in the case in hand, respondent is having the qualification of Bachelors Degree in Arts as well as Bachelors Degree in Education and therefore qualified for appointment on a post in Grade-III.3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court, the State of U.P. and others have preferred the present appeal.

Reasoning:
8. While considering the issue involved in the present appeal, the law laid down by this court on compassionate ground on the death of the deceased employee are required to be referred to and considered. In the recent decision this court in Civil Appeal No.5122 of 2021 in the case of the Director of Treasuries in Karnataka & Anr. vs. V. Somashree, had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this court in N.C. Santhosh vs. State of Karnataka and Ors. reported in (2020) 7 SCC 617, this Court has summarized the principle governing the grant of appointment on compassionate ground as under:-(i) that the compassionate appointment is an exception to the general rule;(ii) that no aspirant has a right to compassionate appointment;(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the States policy and/or satisfaction of the eligibility criteria as per the policy;(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.9. As per the law laid down by this court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Article 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right.10. Thus as per the law laid down by this court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and 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 such family a post much less a post held by the deceased.10.1 Applying the law laid down by this court in the aforesaid decisions and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the submissions on behalf of the respondent and the interpretation by the Division Bench of the High Court on Rule 5 of Rules 1974, is required to be considered.10.2 The Division Bench of the High Court in the present case has interpreted Rule 5 of Rules 1974 and has held that suitable post under Rule 5 of the Rules 1974 would mean any post suitable to the qualification of the candidate irrespective of the post held by the deceased employee. The aforesaid interpretation by the Division Bench of the High Court is just opposite to the object and purpose of granting the appointment on compassionate ground. Suitable post has to be considered, considering status/post held by the deceased employee and the educational qualification/eligibility criteria is required to be considered, considering the post held by the deceased employee and the suitability of the post is required to be considered vis a vis the post held by the deceased employee, otherwise there shall be no difference/distinction between the appointment on compassionate ground and the regular appointment. In a given case it may happen that the dependent of the deceased employee who has applied for appointment on compassionate ground is having the educational qualification of Class-II or Class-I post and the deceased employee was working on the post of Class/Grade- IV and/or lower than the post applied, in that case the dependent/applicant cannot seek the appointment on compassionate ground on the higher post than what was held by the deceased employee as a matter of right, on the ground that he/she is eligible fulfilling the eligibility criteria of such higher post. The aforesaid shall be contrary to the object and purpose of grant of appointment on compassionate ground which as observed hereinabove is to enable the family to tide over the sudden crisis on the death of the bread earner. As observed above, appointment on compassionate ground is provided out of pure humanitarian consideration taking into consideration the fact that some source of livelihood is provided and family would be able to make both ends meet.10.3 In the present case as observed hereinabove initially the respondent applied for appointment on compassionate ground on the post of Assistant Operator in Police Radio Department. The same was not accepted by the Department and rightly not accepted on the ground that she was not fulfilling requisite eligibility criteria for the post of Assistant Operator. Thereafter the respondent again applied for appointment on the compassionate ground on the post of Workshop Hand. The case of the respondent was considered, however, she failed in the physical test examination, which was required as per the relevant recruitment rules of 2005. Therefore, thereafter she was offered appointment on compassionate ground as Messenger which was equivalent to the post held by the deceased employee. Therefore appellants were justified in offering the appointment to the respondent on the post of Messenger. However, the respondent refused the appointment on such post.11. In view of the above and for the reasons stated above, the Division Bench of the High Court has misinterpreted and misconstrued Rule 5 of the Rules 1974 and in observing and holding that the suitable post under Rule 5 of the Dying-In- Harness Rules 1974 would mean any post suitable to the qualification of the candidate and the appointment on compassionate ground is to be offered considering the educational qualification of the dependent. As observed hereinabove such an interpretation would defeat the object and purpose of appointment on compassionate ground.