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2009 DIGILAW 2221 (PNJ)

Rajinder Kumar v. State Of Haryana

2009-12-22

AJAI LAMBA

body2009
Judgment Ajai Lamba, J. 1. This civil writ petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of mandamus directing the respondents to give the petitioner the post of Draftsman as per his qualifications. 2. It transpires that the father of the petitioner was employed as Earth-work Mistri. The said person died while in service on 07.10.1987. The mother of the petitioner approached Executive Engineer, Jalandhar Water Sewerage Division, Jalandhar vide Annexure P-5 dated 30.03.1992 for giving appointment on compassionate grounds to the post of Draftsman to the petitioner, i.e. the son of the deceased. It has been asserted that the petitioner was eligible for the post of Draftsman. 3. Learned counsel contends that in the year 1992, the respondents have given appointment to the posts of draftsman to certain other persons on compassionate grounds. In the case of the petitioner, however, the petitioner was given appointment as Junior Draftsman in September 1992. It has been asserted that vide Annexure P-7, another person, Sh. Kishan Gopal Sharma was given the offer of the post of Draftsman and, therefore, even the petitioner would be entitled to the said post. 4. Learned counsel for the respondents contends that the appointment was given to the petitioner on compassionate grounds and in such circumstances, the petitioner cannot make a choice of the post. Learned counsel has relied on 1995(1) S.C.T. 46 : (1994) 6 Supreme Court Cases 560, State of Rajasthan v. Umrao Singh and 2007(3) S.C.T. 483 : 2007(4) R.A.J. 17 : (2007) 6 Supreme Court Cases 162, I.G. (Karmik) and Others v. Prahalad Mani Tripathi. 5. I have considered the contention of learned counsel for the parties. 6. Copy of the appointment letter has not been appended with the petition. It, however, seems that offer of appointment to the post of Junior Draftsman was given to the petitioner, which was accepted. In such circumstances, in my considered opinion, the petitioner would have no right at this juncture to say that he should have been appointed on the post of Draftsman, particularly when it is given on compassionate grounds 7. In (1994) 6 Supreme Court Cases 560, State of Rajasthan v. Umrao Singh, the following has been held in paras No. 8 to 10 :- "8. In (1994) 6 Supreme Court Cases 560, State of Rajasthan v. Umrao Singh, the following has been held in paras No. 8 to 10 :- "8. Admittedly the respondents father died in harness while working as Sub-Inspector, CID (Special Branch) on 16-3-1988. The respondent filed an application on 8-4-1988 for his appointment on compassionate ground as Sub- Inspector or LDC according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 14-12-1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of "endless compassion". Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case. 9. Since both the sides relied on Naresh Kumar Balis case, we will now refer to the same. We had indicated our mind in that very ruling in paragraph 15 of the said judgment. It reads as under : (SCC p. 452, para 15) "Though the respondent claimed that he had applied for the post of a teacher the Subordinate Service Selection Board had not chosen him for the post of teacher because he did not have the requisite qualification. In fact, the respondent did not object to his appointment as a clerk and his claim for consideration for the post of teacher was one year after his appointment. Thus, the appointment on compassionate ground as per the scheme had been completed." (emphasis supplied) Therefore, once the right has consummated as we indicated earlier, any further or second consideration for a higher post on the ground of compassion would not arise. 10. It is true that in the decision cited, the direction by the High Court was a positive direction to make the appointment but here the direction was to consider the case. Nevertheless, we find that the High Court was not legally justified in directing a further consideration of the candidature of the respondent for the post of Sub-Inspector. 10. It is true that in the decision cited, the direction by the High Court was a positive direction to make the appointment but here the direction was to consider the case. Nevertheless, we find that the High Court was not legally justified in directing a further consideration of the candidature of the respondent for the post of Sub-Inspector. The civil appeal will stand allowed and in reversal of the orders of the courts below respondents writ petition is dismissed. There shall be no order as to costs." 8. In (2007) 6 Supreme Court Cases 162, I.G. (Karmik) and Others v. Prahalad Mani Tripathi, in para No. 12, the following has been held by the Honble Supreme Court :- 12. Furthermore, the respondent accepted the said post without any demur whatsoever. He, therefore, upon obtaining appointment in a lower post could not have been permitted to turn round and contend that he was entitled for a higher post although not eligible therefor. 9. Considering the law as laid down by the Honble Supreme Court of India extracted above, I am of the opinion that the petitioner had been offered appointment for the post of Junior Draftsman on compassionate grounds. The petitioner cannot turn around and agitate, the right to be given appointment on the post of Draftsman. The respondents were required to consider the case of the petitioner for giving employment on compassionate grounds which was done by way of giving an offer of appointment as junior Draftsman. The right of the petitioner for consideration thereupon is consumed. The petitioner accepted the offer. No further right, in that regard, remains with the petitioner to be asserted. 10. The Honble Supreme Court of India has considered the issue of right of a person for appointment on compassionate grounds. In 1994(3) S.C.T. 174 : (1994) 4 Supreme Court Cases 138, Umesh Kumar Nagpal v. State of Haryana and others, the following (relevant portion) has been held in paras Nos. 2 and 3 :- "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 of applications and merit. No other mode of appointment nor any other consideration is permissible. 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 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 dependents 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.............. 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................. 3. Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible." 11. 3. Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible." 11. In 2008(4) S.C.T. 305 : 2008(6) R.A.J. 48 : (2008) 8 Supreme Court Cases 475 General Manager, State Bank of India and others v. Anju Jain, (para No. 31), the following has been held :- "31. We are of the view that both the courts were wrong in granting relief to the writ petitioner. Appointment on compassionate ground is never considered a right of a person. In fact, such appointment is violative of rule of equality enshrined and guaranteed under Article 14 of the Constitution. As per settled law, when any appointment is to be made in Government or semigovernment or in public office, cases of all eligible candidates must be considered alike. That is the mandate of Article 14. Normally, therefore, the State or its instrumentality making any appointment to public office, cannot ignore such mandate. At the same time, however, in certain circumstances, appointment on compassionate ground of dependents of the deceased employee is considered inevitable so that the family of the deceased employee may not starve. The primary object of such scheme is to save the bereaved family from sudden financial crisis occurring due to death of the sole bread earner. It is thus an exception to the general rule of equality and not another independent and parallel source of employment." 12. On a consideration of the above extracted portions from the judgments of the Honble Supreme Court of India, it follows that the petitioner did not have a right to appointment on the death of his father who died while in service. The petitioner had not competed for the post and essentially an appointment on compassionate ground is violative of Rule of Equality guaranteed under Article 14 of the Constitutiion of India. The scheme of giving appointment on compassionate ground has been introduced with the object to save the family from sudden financial crisis occurring due to the death of the sole bread earner. It is thus an exception to the general rule of equality and not another independent and parallel source of employment. The scheme of giving appointment on compassionate ground has been introduced with the object to save the family from sudden financial crisis occurring due to the death of the sole bread earner. It is thus an exception to the general rule of equality and not another independent and parallel source of employment. Under such a situation, mother of the petitioner made an application for giving appointment on compassionate ground to the post of Draftsman. I am of the considered opinion that considering the purpose and object of the scheme under which appointment is given on compassionate grounds, the petitioner cannot claim a right to be appointed on the post of Draftsman merely because he is eligible or because some other person had been appointed as a Draftsman. As noticed above, the petitioner seems to have been given an offer of appointment as a Junior Draftsman on compassionate ground, which the petitioner accepted. The offer for appointment was given to the petitioner only so that the family of the deceased employee does not starve. Offer of appointment was given out of humanitarian consideration. 13. The law and the facts and circumstances of the case, therefore, do not warrant invoking extra ordinary jurisdiction giving direction to the respondents to give to the petitioner the post of Draftsman as per his qualification. 14. In view of the above, the petition is dismissed. 15. No order as to costs. Petition dismissed.