D.S. Thakur, J.— 1. The present Letters Patent Appeal is preferred against judgment and order dt. 10th of Feb' 10, passed by the learned Single Judge in SWP No. 822/2001, by virtue of which, the writ petition has been dismissed and the prayer of the appellant to treat him as a confirmed/permanent employee of the Government in the Hospitality and Protocol Department w.e.f. 19th of Nov'97, has been rejected. 2. It is, however, necessary to give in brief the facts in the light of which the present controversy has arisen. 3. Appellant came to be appointed vide order dt. 19th of Nov' 97, on temporary basis as Protocol Officer in the pay scale of Rs. 2125-3600/-. This arrangement was to continue till such time, the post got filled up on regular basis through Public Service Commission. 4. Subsequently, by virtue of Government Order dt. 13th of Dec' 99, the post of Protocol Officer, was re-designated as Assistant Director, Protocol, in as much as, there was no post of Protocol Officer in the Schedule of Hospitality and Protocol Gazetted Service Recruitment Rules, 1997. It was in this backdrop that a petition came to be filed by the appellant seeking the relief of mandamus directing respondent-State to treat the appellant as a confirmed/permanent employee of the Government in the aforementioned department. 5. The learned Single Judge, by virtue of judgment and order impugned, as indicated above, has dismissed the writ petition, thus, the present LPA. 6. Challenging the judgment and order impugned, learned counsel for the appellant stated that the case of the appellant was similar to one of Shri Abdul Rashid War, who was also appointed on temporary basis as Assistant Director, Hospitality and Protocol, vide Government Order dt. 1st of Jan' 98, in relaxation of the Rules. Counsel for the appellant asserted that the appellant being similarly situated could not be accorded a hostile discrimination moreso, when the appellant was appointed in the year 1997 while Sh. Abdul Rashid War was appointed on 1st of Jan'98. 7. 1st of Jan' 98, in relaxation of the Rules. Counsel for the appellant asserted that the appellant being similarly situated could not be accorded a hostile discrimination moreso, when the appellant was appointed in the year 1997 while Sh. Abdul Rashid War was appointed on 1st of Jan'98. 7. Learned Senior Additional Advocate General, appearing on behalf of respondent-State, on the other hand, argued that there was no right vested in the appellant to claim parity either with the aforementioned Abdul Rashid War, nor was any right vested in him to make a claim for being declared a confirmed/permanent employee of the Government w.e.f. the date of his appointment. 8. Heard learned counsel for the parties. 9. Reference to order dt. 19th of Nov' 97, by virtue of which, appellant was appointed as Protocol Officer in the pay scale of Rs. 2125-3600/-, clearly reflects that the said order was only an adhoc arrangement without there being any intention to confer permanency upon the appellant. The said order which is the genesis and the reason for continuance of the appellant in the department of Hospitality and Protocol, only envisaged his continuance till such time as the post was filled up on regular basis through Public Service Commission. The subsequent re-designation of the post of Protocol Officer to that of Assistant Director, Protocol, vide order dt. 13th of Dec' 99, did not, in any manner, change the status of the appellant nor create any fresh rights in him. 10. Order dated 19th of Nov' 97, appointing the appellant does not reflect that it was issued after considering all eligible candidates nor was it passed as a result of any fair selection initiated by inviting applications through advertisement or otherwise. 11. Law is well settled that even for the purposes of making adhoc/temporary arrangement, all eligible candidates are to be considered. Failure to do so, clearly renders the appointment of the appellant as violative of Articles 14 and 16 of the Constitution of India. In the present case, the order, however, was clear at least to the extent that the appellant was to hold the post till the same is filled up on regular basis through Public Service Commission. No right or any claim of permanency could, therefore, be asserted by the appellant in the light of the manner and nature of his appointment. 12. No right or any claim of permanency could, therefore, be asserted by the appellant in the light of the manner and nature of his appointment. 12. The order of appointment of the appellant, infact, came to be challenged in a writ petition bearing No. SWP 415/2001.The learned Single Judge in the judgment impugned has referred extensively to the judgment passed by the court in the aforementioned writ petition (SWP 415/01), reflecting the stand of the appellant (respondent No.4 in SWP No.415/01). The stand taken by the appellant as respondent No.4 in the aforementioned writ petition was that his appointment was only adhoc and was to continue till the post was filled up on regular basis through Public Service Commission. Not only this, the learned Advocate General, while appearing on behalf of the State, in the aforesaid writ petition, stated before the Court that the State intended to fill up the post of Assistant Director, Protocol, on regular basis and would notify the vacancy in accordance with the rules through Public Service Commission. According to the learned Advocate General's statement in the aforementioned writ petition, the entire process i.e. issuance of notification and filling up the post would be completed within a period of six months. 13. The aforesaid writ petition was, accordingly, disposed of vide order dt. 12th of April' 05, inter alia with a direction to the State to fill up the post of Assistant Director, Protocol, in the Department concerned and complete the process of selection within a period of six months. It was also directed that if respondent No.4(appellant herein), was eligible in all other respects, he would be allowed to compete against the said post along with all other eligible candidates and in case, he became over-aged on the date of issuance of notification inviting applications, then, the condition of age in his case would be relaxed. 14. It is pertinent to mention here that in the aforesaid petition, the respondent No.4-appellant herein, had failed to establish any right to continue on the post on permanent basis. His right was crystallized by the judgment and order rendered in SWP No.415/01, as being co-terminus with the process of selection by the Public Service Commission. Having failed to make out a case in the aforesaid writ petition, SWP No. 415/01, the appellant is estopped in law to claim permanence on a similar ground. 15. His right was crystallized by the judgment and order rendered in SWP No.415/01, as being co-terminus with the process of selection by the Public Service Commission. Having failed to make out a case in the aforesaid writ petition, SWP No. 415/01, the appellant is estopped in law to claim permanence on a similar ground. 15. Counsel for the appellant, however, argued that the case of the appellant ought to have been considered on the analogy of Sh Abdul Rashid War, who came to be appointed in relaxation of the rules much later than the appellant. 16. We are not inclined to accept this argument, in as much as, the order passed in favour of the aforementioned Abdul Rashid War, appointing him as Assistant Director, Protocol, was not issued based upon any fair, impartial and competitive process of selection. The said order was passed in relaxation of rules without apparently considering all eligible candidates. The said order could be liable to be challenged as violative of Articles 14 and 16 of the Constitution of India by any aggrieved person. The said order passed in favour of Abdul Rashid War, therefore, would not form a good precedent for us to be convinced to grant a similar treatment to the appellant. 17. Reliance in this regard can be placed on a judgment of the Apex Court in the case reported as State of Bihar and ors. v. Kameshwar Prasad Singh and another, (2000) 9 SCC 94 . In the aforementioned judgment, the Apex Court clearly held that equality is a positive concept and could not be enforced in a negative manner. Any concession given to a person in an illegal or arbitrary manner, could not be a basis for the claim of others on the plea of equality. 18. The contention of the counsel for the appellant that the appointment of the appellant can be considered in relaxation of the rules can also not be accepted in view of the law laid down by the Apex Court in the case reported as Suraj Parkash Gupta & Ors. v. State of Jammu & Kashmir and Ors. 2010 (5) JKJ SC-497 : AIR 2000 SC 2388. v. State of Jammu & Kashmir and Ors. 2010 (5) JKJ SC-497 : AIR 2000 SC 2388. What was observed by the Apex Court in para 82 of the judgment be taken note of:- "....................The State of Jammu and Kashmir will ensure that no relaxation of basic recruitment rules is made for direct recruitment through PSC or for purposes of regular promotions/recruitment by transfer. The recommendations of the Committee referred to above may be considered by Government and implemented in accordance with the rules and in accordance with law without unreasonable delay....." 19. The further assertion of the counsel for the appellant is that the appointment of the appellant should not be interfered with in as much as, the same was made on compassionate basis by the Government on account of death in harness of the father of the appellant at a young age of 34 years when the appellant was only three years old. 20. Order dt. 19th of Nov' 97, passed in favour of the appellant, appointing him on adhoc basis, does not reflect that the same was passed on compassionate basis at all. The appointment on compassionate grounds in the State of Jammu and Kashmir, is governed by the Jammu and Kashmir (Compassionate Appointment) Rules, 1994, which were notified vide SRO 43/94, dated 22nd of Feb' 94 (here-in-after called the Compassionate Rules). Rule 3 of the said Rules, reads as under:- "3. Appointment under these rules (1) Not withstanding anything contained in any rule or order for the time being in force regulating the procedure for recruitment in any service or posts under the Government, an eligible family member of a person specified in rule 2 may be appointed against a vacancy in the lowest rank of a non-gazetted service having qualification above Matriculation or to a class IV post if the candidate has read upto Matric. Provided that the applicant is eligible and qualified or acquires eligibility and qualification within a period of six months from the death of the deceased person specified in rule 2. (2) Nothing in sub rule (1) shall derogate from the powers of the Government in General Administration Department to appoint at its discretion a candidate to a higher post ID the non gazetted service if he/she is a family member of a deceased Government employee or a civilian killed in the militancy related action/' 21. (2) Nothing in sub rule (1) shall derogate from the powers of the Government in General Administration Department to appoint at its discretion a candidate to a higher post ID the non gazetted service if he/she is a family member of a deceased Government employee or a civilian killed in the militancy related action/' 21. Reference to the above Rule would, therefore, make it clear that the eligibility of a candidate for consideration of appointment was only against a vacancy in the lower rank of non-gazetted cadre or a class IV post, having the qualification as prescribed under the relevant rules. 22. The proviso further envisages that no application for compassionate appointment, under the rules, would be entertained after the expiry of one year from the date of death of deceased. 23. The purpose of providing appointment on compassionate grounds is with a view to help the family of the deceased who dies in harness from living a life of penury and distress on account of the death of the bread earner. The law with regard to the compassionate appointment has been clearly stated by various judicial pronouncements of the Apex Court. In V. Sivamurthy v. State of A.P., (2008) 13 SCC 730 , it was held that Article 16 of the Constitution bars discrimination in employment on the ground only of descent, but where the policy provides for compassionate appointment in the case of an employee, who dies in harness or an employee, who is medically invalidated, such a provision is based on a classification, which is not only on the ground of descent. The classification is based on another condition in addition to descent: that is death of the employee in harness, or medical invalidation of the employee while in service. 24. The concept of compassionate appointment is, thus, an exception to the general rule that employment must be offered strictly on the basis of open invitation of applications and comparative merit in consonance with Articles 14 and 16 of the Constitution of India. This exception is carved out in the interest of justice in certain exigencies by way of a policy which partakes the character of service rules. 25. This exception is carved out in the interest of justice in certain exigencies by way of a policy which partakes the character of service rules. 25. In Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 , the Apex Court observed as under:- "......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 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..........." "...........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........" "....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." 26. While summing up, the principles laid down by the Apex Court in various judgments, in the case of Bhawani Prasad Sonkar v. Union of India and others, (2011)4 SCC 209 , in para 20 of the judgment, The Apex Court held as under:- "Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind: (i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, an no discretion as such is left with any authority to make compassionate appointment de hors the scheme. The request is to be considered strictly in accordance with the governing scheme, an no discretion as such is left with any authority to make compassionate appointment de hors the scheme. (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be. (iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz., parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts." 27. In the light of the principles of law as laid down by the Apex Court, noticed herein-above, it can safely be held that appointment on compassionate basis is made to allow the family of the deceased employee to meet the sudden crisis occurred in the family due to the death of the bread earner but the case has to be considered in strictly, (sic) accordance with the scheme. 28. In the present case, as seen from the record, the post against which the appellant was appointed was in a grade which was attached to a post in gazette cadre. No appointment could have, thus, been except in terms of Rule 3 of the Compassionate Rules, noticed above. The appointment, if any, could have been made only against a vacancy in the lower rank of non-gazetted Cadre. 29. It is further seen that, admittedly, the appellant was only three years old when unfortunately his father expired. The fact that the family was in a position to sustain ail-along without there being any assertion of life of misery, penury or any such crisis in the family, the argument of the appellant's counsel that it was a compassionate appointment cannot, thus, succeed. 30. For the reasons mentioned above, we do not find any good ground to interfere with the judgment and order impugned passed by the learned Single judge. 30. For the reasons mentioned above, we do not find any good ground to interfere with the judgment and order impugned passed by the learned Single judge. The present appeal being, thus, without any merit, is dismissed.