JUDGMENT : K.K. Usha, J.—Petitioner was granted appointment as Lower Division Typist in the Agricultural Income Tax and Sales Tax Department, Thrissur District under Ext.P5 order dated June 18, 1994 subject to the conditions contained in the relevant Government orders. Thereafter the petitioner made a representation for granting him a category change as Lower Division Clerk. This request was rejected under Ext.P9 order dated February 25, 1995, which is under challenge in the original petition. 2. Petitioner's father G. Subramanian Potty died in harness on February 23, 1992 while working as Sales Tax Officer under the service of the 1st respondent. The petitioner thereupon submitted an application to the 1st respondent on May 22. 1992 for appointment under the dying in harness scheme. He had passed B.Sc. Degree examination at the time of application. His request was to appoint him as an Assistant Sales Tax Officer. The representation was returned under Ext.P1 letter pointing out that under G.O. (P) No. 20/92/P&ARD dated April 10, 1992 appointment under dying-in-harness scheme is limited only to lower cadre. The petitioner was directed to submit a fresh application for eligible post. Thereupon the petitioner submitted Ext.P2 representation requesting for appointment as Asst. Sales Tax Officer or as Lower Division Clerk. It is alleged by the petitioner that the Government had taken a decision on his application on May 13. 1993 to appoint him as Lower Division Clerk, but no formal orders were issued. But it is further stated in the original petition that on making enquiries with Public Administration department he was informed that only applications received till May, 1990 could be scrutinisd so far and that the petitioner has to wait for some more time to get his application considered. It is further alleged that he was advised to seek appointment as Lower Division Typist, in which event, he would be given appointment immediately. Since he was in dire need of an employment to save his family from starvation, petitioner states, that he made a representation dated April 27, 1994 to consider him for appointment as Lower Division Typist. Pursuant thereto Ext.P4 order was issued granting sanction for appointment to the petitioner as L.D.Typist. This was followed by Ext.P5 order of appointment dated June 18, 1994. Pursuant thereto the petitioner joined duty on July 14, 1994 as Lower Division Typist. 3. Pursuant thereto Ext.P4 order was issued granting sanction for appointment to the petitioner as L.D.Typist. This was followed by Ext.P5 order of appointment dated June 18, 1994. Pursuant thereto the petitioner joined duty on July 14, 1994 as Lower Division Typist. 3. The petitioner has, therefore, submitted, Ext.P6 representation dated November 1,8, 1994 before the Government requesting to grant him a category change as a L.D. Clerk. In the above representation he has referred to a circular dated August 30, 1994, copy of which is produced as Ext.P7. Under the above circular issued by Personnel and Administrative Reforms (Advise-C) Department it is directed that the administrative Departments of the Secretariat will issue orders sanctioning appointment of the dependents of Government servants who die in harness, whose eligibility for appointment in the categories of L.D. Clerk and Peon was decided on or before June 3, 1993 in the department in which the Government servant concerned had worked. On receipt of order of sanction, the appointing authority will issue orders appointing the dependent in an existing vacancy. The restriction in regard to reservation to the extent of 10% of vacancies in an year for compassionate employment as per existing Government orders would not apply to appointments of dependents in whose case decision was taken on or before June 30, 1993. In respect of applications on which decisions have been taken on July 1, 1993 or later it was provided that those applications could be considered against 10% of vacancies reserved in each year. The petitioner's contention is that Government had taken a decision in his case on May 13, 1993 to appoint him as L.D. Clerk and this was communicated to Dying-in-harness Cell. Therefore his appointment need not be restricted to 10% vacancy, on the other hand, he should have been appointed as L.D. Clerk in the existing vacancy. He happened to submit ext.P3 representation seeking appointment as L.D. Typist under compelling circumstances and therefore, he is entitled to a category change as L.D. Clerk. The petitioner has pointed out an order passed by the Government granting such category change from L.D. Typist to L.D. Clerk in the case of one N.K. Padmini, an appointee under the dying-in-harness scheme. Ext.P8 is the copy of the order. He contends that his case is parallel to that of Smt. Padmini and he is entitled to similar treatment. The petitioner has pointed out an order passed by the Government granting such category change from L.D. Typist to L.D. Clerk in the case of one N.K. Padmini, an appointee under the dying-in-harness scheme. Ext.P8 is the copy of the order. He contends that his case is parallel to that of Smt. Padmini and he is entitled to similar treatment. But his request was denied under Ext.P9 communication dated February 25, 1995 on the ground that under the existing orders his request is not liable to be granted. The petitioner has referred to yet another case of category change under Ext.P11 order in the case of an appointee under the dying-in-harness scheme, who joined service Tracer and later appointed as Asst. Town Planner. 4. Learned counsel appearing on behalf of the petitioner brought to my notice a Government order G.O.(P) No. 7/95 dated March 30, 1995 superseding the existing orders to regulate the appointment under the compassionate employment scheme. He points out that Clause 30 of the Government order specifically provides that "If vacancies of L.D.C. is not available and the applicant is qualified for appointment as L.D.Typist, he will be appointed as Typist Clerk against an existing vacancy of L.D.Typist and given category change as L.D.CIerk at the earliest opportunity without loss of seniority, based on his option." On the basis of the above provision, the contention raised is that petitioner is entitled to a category change as L.D.CIerk. 5. I am afraid that the petitioner is under a total mis- apprehension regarding the nature of his claim for appointment under compassionate ground. I am also surprised to note the different provisions contained in the G.O. dated March 30, 1995 issued by Personnel and Administrative Reforms (Advice-C) Department, Government of Kerala, which are totally against the directives given by the Apex Court in two recent decisions. Auditor General of India and Ors. v. G. Anantha Rajeswara Rao 1994 Lab. I.C. 754 and Umesh Kumar Nagpal v. State of Haryana and Ors. (1995 I LLJ 795) (SC). In the first of the two cases a Division bench of the Andhra Pradesh High Court held that the memorandum issued from the office of the Auditor General, Government of India at Andhra Pradesh relating to appointment on compassionate ground is ultra vires of Article 16(2) of the Constitution. (1995 I LLJ 795) (SC). In the first of the two cases a Division bench of the Andhra Pradesh High Court held that the memorandum issued from the office of the Auditor General, Government of India at Andhra Pradesh relating to appointment on compassionate ground is ultra vires of Article 16(2) of the Constitution. The decision was taken up in appeal by the Auditor General of India before the Supreme Court. While considering the contention of the appellant that appointment on compassionate ground also provides the fulfilment of the qualifications prescribed for the post and therefore it is not violative of Article 16(2), the Supreme Court observed that the argument cannot be accepted in toto. It was then held as follows: "..... Articles 16(3) to 16(5) provided exceptions. Further exception must be on constitutionally valid and permissible grounds. Therefore, the High Court is right in holding that the appointment on grounds of descent clearly violates Article 16(2) of the Constitution. But, however, it is made clear that if the appointments are confined to the son/daughter or widow of the deceased government employee who died in harness and who needs assistance in the event of there being no other earning member in the family to supplement the loss of income from the bread winner to relieve the economic distress of the members of the family, it is unexceptionable. But in other cases it cannot be a rule to take advantage of the memorandum to appoint the persons to these posts on the ground of compassion. Accordingly, we allow the appeal in part and hold that the appointment in para. 1 of the memorandum is upheld and that the appointment on compassionate ground to a son, daughter or widow to assist the family to relieve economic distress by sudden demise in harness of Govt. Employee is valid. It is not on the ground descent simpliciter, but exceptional circumstances for the ground mentioned. It should be circumscribed with suitable modification by an appropriate amendment to the memorandum limiting to relieve the members of the deceased employee who died in harness from economic distress. In other respects Article 16(2) clearly attracted." Going by the above dictum only an unemployed widow (it may take in widower also) or son/daughter can seek appointment under compassionate grounds. It should be circumscribed with suitable modification by an appropriate amendment to the memorandum limiting to relieve the members of the deceased employee who died in harness from economic distress. In other respects Article 16(2) clearly attracted." Going by the above dictum only an unemployed widow (it may take in widower also) or son/daughter can seek appointment under compassionate grounds. But in G.O. dated March 30, 1995 dependents who can claim employment assistance take in brother or sister of the deceased employee also. Inclusion of the above categories among the dependents is directly against the decision of the Supreme Court. 6. In Umesh Kumar Nagpal's case (supra) there is elaborate consideration by the Supreme Court regarding the eligibility of a family to seek compassionate appointment and nature of the post that can be offered and also the period within which such appointment can be granted. Regarding the eligibility of the family it is observed as follows: at Page 799 "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. What is further, 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 family will not be able to meet the crisis that a job is to be offered to the eligible member of the family." On going through the Government order dated March 30, 1995 it is not seen that the financial condition of the family immediately on the death of the Government employee is criterion at all for offering appointment under compassionate ground. On the other hand, several clauses of the order would clearly show that the immediate state of the family is not the concern at all. For example, Clause 7 reads as follows: "7 Dependents of Government servants who died prior to the inception of the scheme (January 21, 1970) shall also be eligible for employment assistance under the scheme. On the other hand, several clauses of the order would clearly show that the immediate state of the family is not the concern at all. For example, Clause 7 reads as follows: "7 Dependents of Government servants who died prior to the inception of the scheme (January 21, 1970) shall also be eligible for employment assistance under the scheme. Such dependents, including those whose applications were rejected earlier can apply afresh for the benefit of the scheme, but their applications will be considered only if they are within the age limit prescribed for the post at the time of such application afresh. Pending applications if any from such dependents shall also be considered provided they have not crossed the upper age limit prescribed for the post as on the date of application." The effect of the above clause is that even in the case of an employee who died 25 years back his dependents can seek employment under the compassionate scheme. It is very clear that the consideration is not the immediate requirement of the family which became destitute on the death of its breadwinner. If such is not the consideration going by the dictum laid down by the Supreme Court in the above mentioned decision the scheme for appointment under compassionate ground, will clearly violate Article 16(2) of the Constitution. 7. Regarding the nature of the posts which are to be offered it has been observed as follows in the above mentioned decision.: ".... 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. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned" 8. Supreme Court has further observed that without appreciating the above legal position, certain Governments and Public authorities have been offering compassionate employment, some times as a matter of course irrespective of the financial conditions of the family of the deceased and some times even in posts above Class III and Class IV. There is a definite finding in the judgment that such action is legally impermissible. A reading of the Govt. order dated March 30, 1995 would clearly show that Govt. of Kerala was either not aware of the decision of the Supreme Court mentioned above or that it was not prepared to follow the directives given therein. Even though Kerala State Government is not a party to the above judgment in view of the provisions contained under Article 142 of the Constitution, it is binding on the State Government also. 9. In Umesh Kumar Nagpal's case (supra) Supreme Court has expressed its distress in misinterpreting to the point of distroting decision of the Apex Court in Smt. Sushma Gosain and Others Vs. Union of India (UOI) and Others, (1989) 4 SCC 468 and it was made clear that, that decision does not justify compassionate employment either as a matter of course or employment in posts above class III & IV. The Supreme Court found fault with the High Court of Punjab & Haryana in endorsing the policy of Haryana State Government to make comcompensionate appointment to the post equivalent to the post held by deceased employee and to posts above class III & Class IV. The High Court has held that extraordinary situations require extraordinary remedies and to hold as a matter of law that the Government cannot deviate even minutely from the policy of providing appointment only against Class III & Class IV posts would be to ignore the reality of life. The High Court has held that extraordinary situations require extraordinary remedies and to hold as a matter of law that the Government cannot deviate even minutely from the policy of providing appointment only against Class III & Class IV posts would be to ignore the reality of life. According to the High Court it would be ridiculous to accept that a dependent of a deceased Class-I officer should be offered appointment against Class III or Class IV posts. The State of Haryana had made one exception and provided compassionate employment in Class II post on the ground that the person concerned had technical qualification such as M.B.B.S., B.E., B.Tech. etc. Supreme Court held that such exception in is illegal since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the penurious condition of the deceased's family, neither the qualifications of his dependent nor the post which he held is relevant. It was further observed that the observations made by the High Court of Punjab and Haryana as referred above are contrary to law. In the very words of the Supreme Court, "if the dependent of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to save the family through the economic calamity." 10. Supreme court further held that for the very same reason as mentioned above compassionate employment cannot be granted after a lapse of reasonable period, which must be specified in the Rules. Consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of death of the sole breadwinner. The compassionate employment cannot be claimed and offered whatever be the lapse of time and after the crisis is over. 11. From the above findings of the Supreme Court it is clear that the following principles are to be adhered to while making rules for compassionate appointment: (i) The appointment shall be claimed and made within a reasonable period from the death of an employee and such period must be specified in the rules. 11. From the above findings of the Supreme Court it is clear that the following principles are to be adhered to while making rules for compassionate appointment: (i) The appointment shall be claimed and made within a reasonable period from the death of an employee and such period must be specified in the rules. (ii) Employment can be offered to the widow (widower), son or daughter of the deceased employee and to no other relative. (iii) The financial condition of the family of the deceased is a relevant factor and only if after enquiry it was found that the family will not be able to meet the crisis of the death of the bread winner that a job is to be offered to the eligible member of the family. (iv) No post above Class III and Class IV shall be offered for compassionate employment. 12. A reading of the G.O. dated March 30, 1995 would show that the Government of Kerala have followed the directions of the Supreme Court only in its breach. There is no specific time limit prescribed within which application has to be made by a dependent after the death of the Government Employee. On other hand, as mentioned earlier, Clause 7 of the Government Order would go to show that even in the case of an employee who had died 25 years back, compassionate employment can be claimed by a dependent. Clause 38 provides that applications for employment assistance submitted earlier and declined based on the orders then in force will be reconsidered on request, if the dependent is within the upper age limit prescribed for the post. This would also show that the State has no intention to prescribe a time limit. Such provisions would directly go against the letter and spirit of the judgment of the Apex Court. In Clause 13 apart from widow (widower), son and daughter, brother and sister are also made eligible for compassionate appointment. This is directly against the dictum laid down by the Supreme Court in first of the two judgments. There is no provision in the Government order which requires in an enquiry into the financial condition of the family immediately on the death of the employee. This is directly against the dictum laid down by the Supreme Court in first of the two judgments. There is no provision in the Government order which requires in an enquiry into the financial condition of the family immediately on the death of the employee. This will have such an effect that even if the family is otherwise affluent a dependent of the deceased employee will be offered an appointment on compassionate ground which according to the Supreme Court cannot be done in the teeth of Article 16(2) of the Constitution. There is no reference to restricting compassionate appointment to Class III and IV posts as directed by the Supreme Court. On the other hand, Clause 39 which reads as follows would show that it is in the scheme of things that higher posts can also be offered under compassionate appointment. "39. Medical and Engineering graduates and other technically qualified persons who were given appointment in subordinate service without taking into account their qualification, based on the orders then in force, will be given change of appointment prospectively, according to availability of vacancies in the usual entry posts to which persons with such qualifications are appointed." 13. The provisions contained under Clause 30 which is relied on by the petitioner in this original petition will be directly hit by the directives given by the Supreme Court. In the case of the writ petitioner herein there is nothing to show that an enquiry was made at the time of offering him appointment as L.D. Typist as to the financial position of his family. In any view of the matter after having obtained such compassionate appointment there is no right whatsoever for the petitioner to claim a category change as contended in this original Petition. The petitioner has referred to certain orders issued in the case of individuals like Exts.P8 and P11 granting category change after appointment under the dying in harness scheme. I find that those orders are not justified and it will not stand the test of constitutional sanction. Merely because nobody challenged those orders, petitioner may not put forward a claim for similar treatment. I find that the petitioner has not made out a case for granting the relief sought in this original petition. In the result, the original petition fails and it stands dismissed. 14. Merely because nobody challenged those orders, petitioner may not put forward a claim for similar treatment. I find that the petitioner has not made out a case for granting the relief sought in this original petition. In the result, the original petition fails and it stands dismissed. 14. Since the petitioner had brought to my notice the latest Government Order issued on March 30, 1995 in the matter of compassionate employment, I feel it is a duty of this court to point out that the above order had not been drawn up in accordance with the directives given by the Supreme Court in the decisions referred above. I therefore, direct that the 1st respondent to examine the directions given by the Supreme Court in the two decisions referred herein and to pass fresh orders in the matter of compassionate appointment, after making necessary modifications and additions to the Government order dated March 30, 1995. Such action will be taken by the 1st respondent within a period of two months. Office will send copies of this judgment to the Chief Secretary, Government of Kerala as well as Secretary to Govt. of Kerala, Personnel and Administrative Reforms (Advice- C) Department.