State
of Haryana and Anr Vs. Ankur Gupta [2003] Insc
432 (3 September 2003)
Doraiswamy
Raju & Arijit Pasayat.
(Arising
out of SLP(C) No. 12196/2002) ARIJIT PASAYAT, J
Leave
granted.
The
compassion shown by functionaries of the appellant- State by giving appointment to respondent
on compassionate ground (under die-in-harness scheme) was nullified by a
subsequent order. The respondent questioned legality thereof before the Punjab and Haryana High Court at Chandigarh. By the impugned judgment, the High
Court held that though the appointment may not have been in accordance with the
policy of compassionate appointment, yet the fact that the respondent (writ
petitioner) had worked for about 4 years and was not guilty of any fraud or
misrepresentation in seeking appointment under the scheme, the impugned order
dated 24.9.2001 was not justified.
Factual
position is almost undisputed and brief reference thereto would suffice.
Father
of respondent while in service died on 21.12.1996. Prior to that i.e. on
22.8.1996 the policy relating to compassionate appointment as was inoperative
earlier was modified. The modification was done in view of a decision of the Punjab and Haryana High Court. Prior to
the modification there was no embargo on a person getting appointment under the
compassionate appointment scheme, even though one of his parents was in service
at the time when the other expired. The High Court held that the very purpose
of compassionate appointment was lost by this method of appointment. It was,
therefore, held that dependant of a deceased government employee shall not be
entitled to employment on compassionate grounds in case one of his parents is
alive and is in government employment. In view of the change, no person was
entitled to be considered for compassionate appointment where one of his
parents is alive and is in government employment. As the respondent's mother
was in government employment, the authorities felt that his appointment was not
permissible, in view of clear stipulation in the policy decision dated
22.8.1996. The appointment was sought to be nullified by order dated 18.5.2001.
The respondent was appointed as a clerk on 12.9.1997 on compassionate grounds
under the die-in-harness scheme. Show notice was issued on 18.5.2001. The
respondent submitted his reply, and by order dated 26.9.2001 the appointment
letter issued on 12.9.1997 was cancelled. As noted above, the High Court
nullified the action.
Learned
counsel for the appellant-State submitted that the approach of the High Court
is erroneous. When the appointment was made in violation of the policy, and by
mistake respondent had been appointed, that does not confer any legal right
upon him. In response, learned counsel for the respondent submitted that as
rightly observed by the High Court, there was no misrepresentation or fraud practicised
by the respondent in gaining employment. The respondent has worked for more
than 4 years and in view of what has been stated by this Court in Union of
India and Ors. v. K.P. Tiwari (2002 (1) LLJ 672), jurisdiction under Article
136 of the Constitution of India, 1950 (in short the 'Constitution') should not
be exercised.
We
find that the appointment admittedly was not permissible in view of the policy
which came into force from 22.8.1996. The earlier policy was changed in view of
a decision of the High Court. The correctness of the policy decision was not
under challenge.
As was
observed in State of Haryana and Ors. v. Rani Devi & Anr.
(JT 1996 (6) SCC 646), it need not be pointed out that the claim of person
concerned for appointment on compassionate ground is based on the premises that
he was dependant on the deceased employee. Strictly this claim cannot be upheld
on the touchstone of Articles 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's case (supra) it was held that 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 Life Insurance Corporation of India v. Asha Ramchhandra Ambekar (Mrs.)
and Anr. (1994 (2) SCC 718) it was pointed out that 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 contemplates such
appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. (1994 (4) SCC 138) that as
a rule in public service appointment 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
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.
In
Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. (1998
(5) SCC 192) it was observed that in matter of compassionate appointment there
cannot be insistence for a particular post. Out of purely humanitarian
consideration and having regard to the fact that unless some source of
livelihood is provided the family would not be able to make both ends meet,
provisions are made for giving appointment to one of the dependants of the
deceased who may be eligible for appointment. Care has, however, to be taken
that provision for ground of compassionate employment which is in the nature of
an exception to the general provisions does not unduly interfere with the right
of those other persons who are eligible for appointment to seek appointment
against the post which would have been available, but for the provision
enabling appointment being made on compassionate grounds of the dependant of
the deceased employee. As it is in the nature of exception to the general
provisions it cannot substitute the provision to which it is an exception and
thereby nullify the main provision by taking away completely the right
conferred by the main provision.
These
aspects have been highlighted by this Court in a recent decision in State of Manipur v. Md. Rajaodin.
Above
being the legal position, the logic of the policy cannot be undermined. Coming
to the question whether there was any fraud or misrepresentation we find that
right from the beginning, the concerned officers were acting in a manner
contrary to the policy. When the Director of Industrial Training and Vocational
Education, Haryana wrote to the Commissioner and Secretary, Haryana Government,
Industrial Training and Vocational Education Department on 22.5.1997, it was
clearly indicated that mother of respondent was already in government service.
It was also noted that according to the Government instructions only those
dependants of the deceased employee/officer whose family income is up to
Rs.2500/-p.m. can be appointed. In the letter itself it is mentioned that the
monthly salary of respondent's mother was Rs.5,880/- and, therefore, there was
no scope for appointing the respondent. Having said so it was indicated that
relaxation may be given in his case. The High Court proceeded on the basis as
if there was relaxation of the stipulations. No provision could be shown to us
whereby relaxation is permissible, particularly when the policy in this respect
was modified on the basis of and in implementation of the decision of the High
Court. Though learned counsel for the respondent referred to the 1970
guidelines where there was scope for relaxation, the same does not assist the
respondent because that was operative at a point of time when the policy dated
22.8.1996 notified to be in line with the High Court's judgment was not in
operative.
Looked
at from any angle the view of the High Court is indefensible. The judgment of
the High Court is, therefore, set aside. But while allowing the State's appeal
it cannot be lost sight of that the respondent was in government service for
more than about 4 years. It is stated by learned counsel for the respondent
that he has already become over- aged for government employment. In the
peculiar circumstances, in case the respondent applies for a job in the
government within a period of two years and is selected de hors the
compassionate appointment scheme, the question of his having crossed the age
bar, would not stand on his way and the service rendered by him shall be duly
considered. The appeal is allowed subject to the aforesaid observations. Costs
made easy.
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