& Ors Vs. Prahalad Mani Tripathi  Insc 473 (27 April 2007)
S.B. Sinha & Markandey Katju
CIVIL APPEAL NO. 2208 OF 2007 (Arising out of SLP (C) No. 15618 of 2003)
S.B. SINHA, J.
Respondent's father Shri Narmadeshwar Mani Tripathi was a constable. He was
in Uttar Pradesh Police Service. He died in harness on 2.1.1986. Grant of
appointment to a dependant of an employee who died in harness is governed by
statutory rules, in terms whereof the appellant filed an application for his
appointment. He disclosed his academic qualification therein. He was considered
for appointment as a Constable. He was not found eligible therefor having not
satisfied the physical standard stipulated under the rules. He was appointed as
a Peon. He accepted the said appointment without any demur whatsoever. He,
however filed an application before the Uttar Pradesh Services Tribunal, Lucknow
praying for his absorption in the post of Constable (M) with consequential
benefits from the date of his initial appointment. By reason of a Judgment and
Order dated 24.7.2000, the Tribunal arrived at a finding that although,
ordinarily, rule of estoppel apply in a case of this nature, having regard to
the representations made by him before the authorities in the instant case, the
same should not be applied. It directed the appellant to appoint him in Class
III posts with a further direction that the services rendered by him in the
post of ordinary Peon be counted towards his pensionary benefits in the class
A Writ Petition was filed before the High Court questioning the correctness
of said order. By reason of the impugned judgment dated 27.11.2002, the High
Court declined to interfere therewith despite observing;
"A word of caution, is put on record that the right to claim
appointment under the dying in harness rules on compassionate ground can be
neither used as a devise to seek employment nor it is a new mode of recruitment
in Government service nor can be treated as a channel of promotion to higher post.
The impugned order has been passed on the basis of facts of the present
Learned counsel appearing on behalf of the appellant would submit that the
Order of the Tribunal and consequently that of the High Court suffers from a
manifest error in so far as they failed to take into consideration;
(i) Respondent having accepted the post of a Peon, was estopped from
claiming a higher post after a period of five years.
(ii) The rules provided for appointment only to a post for which the
candidate possessed the academic and other qualifications.
The learned counsel appearing on behalf of the respondent, on the other
hand, would submit that in the facts and circumstances of this case, this Court
should not exercise its discretionary jurisdiction under Article 136 of the
Constitution of India as not only a prayer was made by the respondent for his
appointment to a post which was commensurate with the academic qualifications
he possessed, and the Superintendent of Police recommended therefor, but having
regard to his alleged deficiencies in physical fitness only, the Police
Headquarters directed his appointment only as a peon.
An employee of a State enjoys a status. Recruitment of employees of the
State is governed by the rules framed under a statute or the proviso appended
to Article 309 of the Constitution of India. In the matter of appointment, the
State is obligated to give effect to the constitutional scheme of equality as
adumbrated under Articles 14 and 16 of the Constitution of India. All
appointments, therefore, must conform to the said constitutional scheme. This
Court, however, while laying emphasis on the said proposition carved out an
exception in favour of the children or other relatives of the officer who dies
or who becomes incapacitated while rendering services in the police department.
See Yogender Pal Singh and Others v. Union of India and Others [A.I.R. 1987 SC
Public employment is considered to be a wealth. It in terms of the
constitutional scheme cannot be given on descent. When such an exception has
been carved out by this Court, the same must be strictly complied with.
Appointment on compassionate ground is given only for meeting the immediate
hardship which is faced by the family by reason of the 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 National Institute of Technology & Ors. v. Niraj Kumar Singh [2007
(2) SCALE 525], this Court has stated the law in the following terms:-
"16. All public appointments must be in consonance with Article 16 of the
Constitution of India. Exceptions carved out therefore are the cases where
appointments are to be given to the widow or the dependent children of the
employee who died in harness. Such an exception is carved out with a view to
see that the family of the deceased employee who has died in harness does not
become a destitute. No appointment, therefore, on compassionate ground can be
granted to a person other than those for whose benefit the exception has been
carved out. Other family members of the deceased employee would not derive any
In State of Rajasthan v. Umrao Singh [(1994) 6 SCC 560], this Court has categorically
stated that once the right is consummated, any further or second consideration
for higher post on the ground of compassion would not arise.
Again in State of Haryana and Another v. Ankur Gupta [(2003) 7 SCC 704],
this Court held;
"6. As was observed in State of Haryana v. Rani Devi it need not be
pointed out that the claim of the person concerned for appointment on
compassionate ground is based on the premise that he was dependent on the
Strictly, this claim cannot be upheld on the touchstone of Article 14 or 16
of the Constitution of India. However, such claim is considered as reasonable
and permissible on the basis of sudden crisis occurring in the family of such
employee who has served the State and dies while in service.
That is why it is necessary for the authorities to frame rules, regulations
or to issue such administrative orders which can stand the test of Articles 14
and 16. Appointment on compassionate ground cannot be claimed as a matter of
right. Die- in-Harness Scheme cannot be made applicable to all types of posts
irrespective of the nature of service rendered by the deceased employee. In
Rani Devi case it was held that the scheme regarding appointment on
compassionate ground if extended to all types of casual or ad hoc employees
including those who worked as apprentices cannot be justified on constitutional
grounds. In LIC of India v. Asha Ramchhandra Ambekar it was pointed out that
the High Courts and Administrative Tribunals cannot confer benediction impelled
by sympathetic considerations to make appointments on compassionate grounds
when the regulations framed in respect thereof do not cover and contemplate
such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana that
as a rule, in public service appointments should be made strictly on the basis
of open invitation of applications and merit. The appointment on compassionate
ground is not another source of recruitment but merely an exception to the
aforesaid requirement taking into consideration the fact of the death of the
employee while in service leaving his family without any means of livelihood.
In such cases the object is to enable the family to get over sudden financial
crisis. But such appointments on compassionate ground have to be made in
accordance with the rules, regulations or administrative instructions taking
into consideration the financial condition of the family of the deceased."
See also Food Corporation of India & Anr. v Ram Kesh Yadav &
Another [JT 2007 (4) SC 1].
Respondent, thus, could be offered an appointment only to the post for which
he was suitable.
Furthermore, Appellant 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. A person cannot be appointed unless he fulfils
the eligibility criteria. Physical fitness being an essential eligibility
criteria, the Superintendent of Police could not have made any recommendation
in violation of the rules. Nothing has been shown before us that even the
petitioner came within the purview of any provisions containing grant of
relaxation of such qualification. Whenever, a person invokes such a provision,
it would be for him to show that the authority is vested with such a power.
The pre-requisite for making such a appointment by granting relaxation has
been laid down by this Court in Indian Drugs &
Pharmaceuticals Ltd. v. Devki Devi and Others [(2006) 5 SCC 523]. See also
Kendriya Vidyalaya Sangathan and Others v. Sajal Kumar Roy and Others [(2006) 8
For the reasons aforementioned, the impugned judgment cannot be sustained.
It is set aside accordingly. The Appeal is allowed. In the facts and circumstances
of this case, however, there shall be no order as to costs.