LALIT SIROHI Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner's father late Shri Rajendra Pal Singh Sirohi was serving as Sub-Inspector in civil police and was posted at P.S. Bramhpuri Distt. Meerut. He expired on 16.10.2000, leaving behind the petitioner and his three sisters. All the children were minor at the time of death. THE petitioner's mother Smt. Ratan Kaur informed the Senior Superintendent of Police on 24.2.2001 that his son is studying in Class-IX and is aged 16 years. On attaining majority the petitioner applied for compassionate appointment under the U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974 (In short the Rules of 1974) as Sub Inspector in civil police. It is alleged that the petitioner was qualified and was found medically fit by the Chief Medical Officer on 29.6.2006 for appointment. After two years vide letter dated 17.10.2008 he was informed by the Deputy Superintendent of Police (Establishment) for the Deputy Inspector General of Police (Establishment), Allahabad that he has been approved for appointment as constable and that he should report for training. It is stated in para 12 of the writ petition that decision to appoint the petitioner as constable and not Sub- Inspector for which he had applied was taken on the basis of the resolutions in the meeting of Police/ Provincial Arms Constabulary Recruitment Board chaired by the Director General of Police in its meeting on 20.9.2006 and 25.6.2007 that in such case the appointment is to be considered for the post of constable. It is contended that the petitioner is eligible as he is qualified and is physically fit to be appointed as Sub-Inspector, Civil Police. Learned counsel for the petitioner has relied upon the judgments in Rajkumar Pundir Vs. State of U.P., (2004) 3 ESC (Alld) 1871 and Mukesh Shukla and 30 others Vs. State of U.P. and Ors. (Civil Misc. Writ Petition No.4746 of 2008, connected with Civil Misc. Writ Petition No.63543 of 2008, Amit Choudhary Vs. State of U.P. decided on 07.8.2008) in support of his submission that the respondents were required to consider the petitioner for appointment as Sub Inspector, Civil Police and not as constable and that he has been discriminated in appointment as constable. THEre is no averment in the writ petition that the petitioner has accepted the appointment as constable or that he had joined and has taken the training. Learned Standing Counsel submits that the petitioner has joined and is now stopped from claiming the appointment on the post of Sub Inspector. Let the respondents file a counter affidavit in four weeks. THE rejoinder affidavit may be filed in a week, thereafter. THE law with regard to compassionate appointment, interpreting various set of rules is fairly well settled and may be summarised as follows:- In Smt. Susma Gosain and Ors. Vs. Union of India and Ors., (1989) 4 SCC 468 the Supremest Court in the matter of appointment of the petitioner as clerk in the office of Director General, Border Road observed that, "purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant". In Life Insurance Corporation of India Vs. Asha Ramchandra Ambekar (Mrs.) and Anr., (1994) 2 SCC 718 the Supreme Court held that the Court could not have given directions for compassionate appointment. In para 17 it was held, "whatever it may be, the Court should not have directed the appointment on compassionate ground. THE jurisdiction under mandamus cannot be exercised in that fashion. It should have merely directed consideration of the claim of the second respondent. To straightaway direct the appointment would only put the corruption in a piquant situation". In State of Rajasthan Vs. Chandra Narain Verma, (1994) 2 SCC 752, the Supreme Court considering a case, where the father of the applicant died serving as Sub Inspector in Rajasthan Police Service, and that the respondent did not accept the request for compassionate appointment as he had crossed the prescribed age limit for the post of Sub Inspector of Police held in para 30 as follows:- "Special leave granted. THE father of the respondent having passed away the respondent sought appointment in the Rajasthan Police Service as Sub-Inspector on compassionate ground. THE authorities could not accede to his request as he had crossed the prescribed age limit (including relaxation) for the post of Sub-Inspector of Police. THE authorities, therefore, offered him the post of Lower Division Clerk for which upper age limit is 31. THE respondent instead of accepting the same moved the High Court by way of a writ petition. THE High Court allowed the writ petition and directed that he be given appointment as Sub-Inspector of Police ignoring the age limit prescribed under the Rajasthan Police Subordinate Service Rules, 1989. THE special appeal to the Division Bench was dismissed and hence this appeal. We have heard counsel on both sides. It is one thing to say that a family member of the deceased is entitled to appointment on compassionate ground, but it is altogether a different thing to say that his appointment should be made regardless of the rules. Since he had crossed the maximum age prescribed for the post of Sub-Inspector of Police, the authorities were fully justified in offering him the post of Lower Division Clerk, which he should have accepted. We fail to see how the High Court could in the face of the rules direct the authorities to make his appointment as Sub-Inspector of Police. We, therefore, cannot allow the order to stand. We set aside the order of the learned Single Judge as well as the Division Bench and direct that the respondent may join as Lower Division Clerk, if he so desires, within four weeks from today. Any appointment made on pain of contempt proceedings pursuant to the impugned judgment may be cancelled. THE appeal is disposed of accordingly with no order as to costs." In Umesh Kunaar Nagpal Vs. State of Haryana and Ors., (1994) 4 SCC 138 the Supreme Court held that while giving appointment in public service on compassionate ground, it is to be remembers that the appointment is in relaxation tot he general rules. Once such an exception is made in favour of the dependents of the employee dieing in harness and leaving his family in penury and without any means of livelihood on pure humanitarian consideration, the public authority has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provisions of the 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 Supreme Court further held, "the posts in Class-III and IV are the posts in non-manual and manual categories and hence they alone can be offerred on compassionate ground, the object being to relieve the family, of the financial destitution and to hold it get over the emergency. THE provisions of employment in such lower posts by making an exception to the rule is justifiable and valid since it is not discriminatory. THE favourable treatment given to such dependent 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 purposes. It must be remembers in this connection that as against 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 has suddenly upturned. In para 6 the Supreme Court held that compassionate appointment cannot be granted after a laps of reasonable period, which must be specified in the rules. THE consideration for such employment is not a vested right, which can be exercised at any time in future. In para 4 it was held that neither the qualification of the dependent nor the post, which he held is relevant for the appointment. In Haryana Public Service Commission Vs. Harinder Singh and Anr., (1998) 5 SCC 452 the Supreme Court held that in compassionate appointment, on the death of a defence personnel killed in 1991 Indo-Pak War, the respondent, when he sought appointment was civil engineer gainfully employed at the time though on contract, held, that whole idea of reservation is that those, who are dependent for their survival on men, who have lost their lives or become disabled in the service of nation, should not suffer. A person who was gainfully employed could not be termed as dependent of ex-service man. In Sanjay Kumar Vs. State of Bihar, (2000) 7 SCC 192 the Supreme Court relying upon Director of Education (Secondary) Vs. Pushpendra Kumar, (1998) 5 SCC 192 held that the compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner, who has left the family in penury and without any means of livelihood. THE applicant was minor, when he made his first application and was not eligible for appointment. THEre cannot be reservation of a vacancy till such time such petitioner become major, after a number of years, unless there is some specific provisions. THE very basis of compassionate appointment is to seek that family gets immediate relief. THE petitioner was 10 years old, when his mother died while she was working as excise constable. THE Supreme Court did not find any merit in the special leave petition against the decision of the High Court in which the writ petition was dismissed and the judgment was affirmed by the Division Bench. In General Manager (D and PB) and ors. Vs. Kunti Tiwary and Anr., (2004) 7 SCC 271 the Supreme Court did not find any error in the decision of the bank, which had taken a view that financial condition of the family was not penurious or without any means of livelihood. THE compassionate appointment was denied on the ground that it could not be said that the respondents were living hand to mouth. In Union Bank of India and Ors. Vs. M.T. Latheesh, (2006) 7 SCC 350 the Supreme Court held that the dependent of the deceased employee of the bank making an application under the scheme for appointment made in 1997, it is not automatically become entitled to get compassionate employment nor does the possession of relevant qualification create any vested right in his favour to get appointed to a post specified by the scheme. His right is limited to get preferential treatment against the general principal of appointment subject to the discretion of the bank. In B.H. Narasimha Rao Vs. Government of A.P., (1995) Supp. 4 SCC 704 the Supreme Court held, "where the High Court applying a wrong test found certain ineligible candidate to be eligible and upheld their appointment, such a judgment could not constitute a ground for (this Court) to extend the benefit thereof to other candidates appointed illegally. THE guarantee of equality is a positive concept and it cannot be enforced by a citizen or Court in a negative manner "Guru Saran Singh Vs. New Delhi Municipal Committee, (1996) 2 SCC 459". If an irregularity has been committed by the State or an authority, which can be held to be state, the same benefit should not be extended to others on the reasoning that there is no negative equality before law neither Art.14 of the Constitution conceives without the equality calls nor Art.226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced it shall amount to directing to continue and perpetrate an illegal procedure or a illegal order for extending similar benefits to other. In I.G. (Karmik) and Ors. Vs. Prahlad Mani Tripathi, (2007) 6 SCC 162 the Supreme Court held that, where the dependent of deceased employee accepted the post of peon without any demur whatsoever, he having obtained appointment on a lower post, could not be permitted to turn around and contend that he was entitled to a higher post although not eligible there for. THE Superintendent of Police never made any recommendation in violation of the rules and the eligibility criteria, which includes physical fitness. THEre was no role providing for any relaxation. THE Supreme Court further held that an employee of a state enjoins a status and that all employment in the state are governed by rules under a statute, or the proviso appended to Art.309 of the Constitution of India. In the matter of appointment the State is obliged to give effect to the constitutional scheme of equality under Art.14 and 16 of the Constitution of India. Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception is carved out, the same must be strictly complied with. THE appointment on compassionate ground is given only for meeting the immediate hardship, which is faced by the family by reason of death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve. THE idea being not to provide for endless compassion. In Food Corporation of India and Anr. Vs. Ram Kesh Yadav, (2007) 9 SCC 531 it was held that employer cannot be directed to act contrary to the terms of its policy governing compassionate appointments. A compassionate appointment cannot be directed dehorse the policy. In Kendriya Vidyalaya Sangathan and Ors. Vs. Dharmendra Sharma, (2007) 8 SCC 148 once again the Supreme Court reminded that the Court cannot direct compassionate appointment contrary to the policy. THE Kendriya Vidyalaya Sangathan decided not to make Group-D appointment and to award work to contractors. It could not be compelled to make compassionate appointment contrary to its policy. All these decisions are binding upon the High Court under Art.141 of the Constitution of India and have laid down consistently in clear terms that compassionate appointment is not a vested right. It has to be granted under the relevant rules and in accordance with the policy, which conforms to such appointment. It is neither a heritable right nor an alternate mode of employment. It is given to the dependents of the deceased to tide over the immediate financial crisis. It cannot be granted after unreasonable period and that vacancies should not be held up for long period of time, and should not wait till the dependent attains the majority. Such appointments should not be made, where the family has survived for long. THE family circumstances must be seen before giving such appointment, keeping in mind that object is not to provide employment but to allow the family to tide over financial crisis and to take it out of penury. THE aforesaid principles consistently followed by the Supreme Court were not considered in Raj Kumar Pundir (Supra) or Mukesh Shukla's (Supra) cases. In Raj Kumar Pundir this Court without examining the policy of the police department applied the rule of negative equality and found that since many dependents of constables and head constables have been appointed as Sub Inspectors, the petitioner should not be discriminated and must receive the benefit of parity in employment and relied upon the cases, which serve the purposes of equality. It did not consider the object of granting compassionate appointment and the fact that any appointment made contrary to the policy of the police department do not serve the rule of equity. In Mukesh Shukla's case this Court held that 1974 rules provided for compassionate appointment to a person against a post available for direct recruitment in Class-III and Class-IV post and that rules have not been amended. It further found that recruitment board was not competent to take a decision, which had the effect of amending the rules, which should be adhered to by the respondents, in order to deny the petitioner's claim in accordance with the Rules of 1974, until there is an amendment in the rules, the respondents could not have rejected the proposal. In Mukesh Shukla's case again the Court did not consider the law laid down by the Supreme Court in respect of compassionate appointment. THE Rules of 1974 rules do not provide that dependent of the deceased dying in harness should be considered for the same post on which the deceased was serving. THE object is not to provide equality of status in employment with the deceased employee, but to provide immediate financial assistance to tide over the crisis faced by the dependents of the bread earner. In the present case it is admitted that the Police and Provincial Armed Constabulary Recruitment Board have taken a decision dated 20.9.2006 and 25.6.2007 to grant compassionate appointment, only on the lowest post of constables. In the absence of any such provision that compassionate appointment shall be offered for the post on which the deceased served and if there was such a rule that would run contrary to the object of compassionate appointment and would certainly of violative of Art. 14 and 16 of the Constitution of India, which provided for equality in the matter of public employment, the Police/PAC Recruitment Board could certainly have framed a policy within and without violating the Rules of 1974, to offer appointment to the dependent of the deceased police officers on the post of constable. THE post of Sub Inspectors in police department requires selections. THEre are rigorous standards laid down in the Government Orders for appointment on the post of Sub Inspectors, which not only require the minimum qualifications and physical ability and endurance but also qualities of leadership and requisite intelligence for carrying out the investigation of the criminal offences. THE compassionate appointment on these posts, would not only lower the standard of these posts but will also make such appointment anti meritarian and violative of Art.14 and 16 of the Constitution of India. Where a Sub Inspector or an officer on any higher post dies and the dependent applies for appointment, his employment on the post of constable would certainly help the family to tide over the financial crisis. It will then be open for him to apply for the post of Sub Inspector, if there are vacancies and claim appointment on his merit as compared to others. THE Police Establishment Board could not be said to have acted illegally in making such provisions for compassionate appointment. THE Courts are always slow in interfering in policy matters, which are consistent with the settled principles of law and do not run contrary to the statutory rules. In the present case the petitioner has not denied the appointment on the post of constable and that there is no further pleading that he or his family is still in the state of destitution. His claim therefore to be appointed on the post of Sub Inspector runs contrary to the constitutional scheme as explained by the Supreme Court in its various decisions in the matter of compassionate appointments. In the light of the judgments of the Supreme Court the judgment of this Court in Raj Kumar Pundir (Supra) and Mukesh Shukla (Supra) do not appear to lay down the correct law. This case could be dismissed on the ground that the petitioner has not declined to accept the appointment of constable by raising any protest and has not made any further statement that his family is still in the state of penury, however, since the question is engaging the attention of the Court and that the judgment in Raj Kumar Pundir and Mukesh Shukla are cited repeatedly, the issue needs to be decided by the Larger Bench. I, therefore, find it appropriate to refer the matter to a larger bench to decide the questions as to; "(i) whether the dependents of the deceased government servant serving on the post of Sub Inspector or any higher post are entitled to be appointed on compassionate ground, and to be considered for appointment under the U.P. Recruitment of Dependents of Government Servant Dieing in Harness Rules, 1974, if they are eligible, on the post of Sub Inspectors or such post as the deceased employees was holding; (ii) whether the policy decision taken by the respondents, to offer such appointment only on the post of constables, in the decision of the Deputy Inspector General of Police (Estt.) U.P. Police Headquarter, Allahabad dated 20.9.2003 and the decision taken by the Police/ Provincial Armed Constabulary Recruitment Boards dated 20.9.2006 and 25.6.2007 are violative of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, and; (iii) whether the judgments in Raj Kumar Pundir (Supra) and Mukesh Shukla (Supra) lay down correct law. Let the papers of this case be laid before Hon'ble the Chief Justice with a request to nominate a larger bench to decide the issues.