STATE OF GUJARAT & ORS.versusARVINDKUMAR T. TIWARI & ANR.

                        [2012] 7 S.C.R. 1072


A                   STATE OF GUJARAT & ORS.
                                   v.
                 ARVINDKUMAR T. TIWARI & ANR.
                  (Civil Appeal No. 6468 of 2012)

                       SEPTEMBER 14, 2012
B
         [DR. B.S. CHAUHAN AND FAKKIR MOHAMED
                   IBRAHIM KALIFULLA, JJ.]

         SERVICE LAW:
c
       Appointment on compassionate ground - Eligibility -
  Relaxation - Held: Compassionate appointment cannot be
  claimed as a matter of right - A claim to be appointed on such
  a ground has to be considered in accordance with rules,
  regulations or administrative instructions governing the
0
  subject, taking into consideration the financial condition of
  family of deceased - Eligibility criteria for a class IV post being
  10th standard, and the applicant being 8th fail, was not eligible
  to apply for the post - The income of the family was also
E above the financial limit - In view of the settled position, it is
  neither desirable, nor permissible in law, for the Court to issue
  direction to relax the eligibility criteria anrl appoint the
  applicant merely on humanitarian grounds.

        Service Law - 'Eligibility' - Connotation of - Explained -
F Held: Fixing the eligibility for a particular post falls within the
  exclusive domain of the legislature/executive and cannot be
  the subject matter of judicial review, unless found to be
  arbitrary, unreasonable or has been fixed without keeping in
  mind the nature of service - Courts and tribunal do not have
G the power to issue direction to make appointment by way of
  granting relaxation of eligibility or in contravention thereof.

       Respondent No. 1, applied for the post of Peon on
    compassionate ground as his father, an ASI of Police,

H                                1072
 STATE OF GUJARAT & ORS. v. ARVINDKUMAR T. 1073
               TIWARI &ANR.
died in harness on 9.4.1999. His application was first       A
rejected on the ground that the family had an income
over and above the limit fixed for the purpose and,
subsequently, on the ground that he did not meet the
examinations minimum eligibility for the post as he had
not passed 10th standard examinations which was a            B
necessary pre-requisite for a class IV post. On a Special
Civil Application, being filed by respondent no. 1, it was
held that since his father died in 1999, the subsequent
provision prescribing 10th pass for class IV post was not
applicable and his case was directed to be considered        c
afresh accordingly. The Division Bench of the High Court
declined to interfere.

   Allowing the appeal, filed by the department, the
Court
                                                             D
     HELD: 1.1 It is a settled legal proposition that the
compassionate appointment cannot be claimed as a
matter of right. It is not simply another method of
recruitment. A claim to be appointed on such a ground
has to be considered in accordance with the rules,           E
regulations or administrative instructions governing the
subject, taking into consideration the financial condition
of the family of the deceased. The objective of providing
of compassionate employment is to enable the family of
the deceased to overcome the sudden financial crisis it      F
finds itself facing, and not to confer any status upon it.
[para 5] [1078-E-G]

    Union of India & Ors. v. Shashank Goswami & Anr., AIR
2012 SC 2294 - relied on.
                                                             G
     1.2 The eligibility for the post may at times is
misunderstood to mean qualification. In fact, eligibility
connotes the minimum criteria for selection, that may be
laid down by the executive authority/legislature by way
of any statute or rules, while the term qualification, may   H
    1074     SUPREME COURT REPORTS               [2012] 7 S.C.R.


A connote any additional norms laid down by the
  authorities. Before a candidate is considered for a post
  or even for admission to the institution, he must fulfill the
  eligibility criteria. Lacking eligibility for the post cannot be
  cured at any stage and appointing such a person would
B amount to serious illegality and not mere irregularity.
  [para 6 and 11] [1078-H; 1079-A-B; 1081-B]

       Dr. Preeti Srivastava & Anr. v. State of M.P. & Ors., 1999
  (1) Suppl. SCR 249 =AIR 1999 SC 2894; State of Haryana
  v. Subhash Chandra Marwah & Ors., 1974 (1) SCR 165 =AIR
C 1973 SC 2216; J.C. Yadav v. State of Haryana, 1990 (2) SCR
  470 = AIR 1990 SC 857; and Ashok Kumar Uppal & Ors. v.
  State of J & K & Ors., 1998 (1) SCR 164 =AIR 1998 SC 2812
  - referred to

D      2.1 Fixing the eligibility for a particular post falls
  within the exclusive domain of the legislature/executive
  and cannot be the subject matter of judicial review,
  unless found to be arbitrary, unreasonable or has been
  fixed without keeping in mind the nature of service, for
E which appointments are to be made, or has no rational
  nexus with the object(s) sought to be achieved by the
  statute. The courts and tribunal do not have the power
  to issue direction to make appointment by way of granting
  relaxation of eligibility or in contravention thereof. [para
F 8 and 9] [1079-G; 1080-C-D]

       State of J & K v. Shiv Ram Sharma & Ors., AIR 1999
  SC 2012; Praveen Singh v. State of Punjab & Ors., (2000) 8
  SCC 436; State of Orissa & Anr. v. Mamta Mohanty, (2011)
  3 SCC 436; State of Orissa & Anr. v. Mamta Mohanty, 2011
G (2 ) SCR 704 = (2011) 3 SCC 436, State of M. P. & Anr. v.
  Oharam Bir, 1998 ( 3 ) SCR 511 = (1998) 6 SCC 165 • relied
    on.

          Prit Singh v. S. K. Mangat & Ors. 1992 (1) Suppl. SCR
H
 STATE OF GUJARAT & ORS. v. ARVINDKUMAR T. 1075
               TIWARI &ANR

337 = 1993(1) SCC (Supp.) 714; and Pramod Kumar v. UP.          A
Secondary Education Services Commission & Ors .. 2008 (4)
SCR 559 =AIR 2008 SC 1817 ·referred to

     2.2 This Court is, therefore, of the considered opinion
that since 1991, the eligibility criteria for a Class IV post
                                                                8
was set as the passing of the 10th standard
examinations, and as respondent no. 1 had been unable
to pass even the 8th standard examinations, he was not
eligible to apply for the said post. Even otherwise, if the
direction of the High Court is complied with and the case
is considered as per the un-amended provisions in               C
existence prior to 2005, the financial limit fixed therein,
would automatically be applicable. It is neither desirable,
nor permissible in law, for this Court to issue direction
to relax the said eligibility criteria and appoint respondent
No.1 merely on humanitarian grounds. [Para 13, 14)              D
[1082-A-D]

                     Case Law Reference:
    AIR 2012 SC 2294            relied on           para 5
                                                                E
    1999 (1) Suppl. SCR 249 referred to             para 6
    1974 (1) SCR 165            referred to         para 7
    1990 (2) SCR 470            referred to         para 7
    1998 (1) SCR 164            relied on           para 7      F

    1998 (3) SCR 511            relied on           para 8
    AIR 1999 SC 2012            relied on           para 9
    c2000) a sec 436            relied on           para 9      G
    2011 (2) SCR 704            relied on           para 10
    1992 (1) Suppl. SCR 337 referred to             para 11
    2008 (4) SCR 559            referred to         para 11
                                                                H
    1076    SUPREME COURT REPORTS               [2012] 7 S.C.R.


A       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    6468 of 2012.

        From the Judgment and Order dated 04.02.2008 of the
    High Court of Gujarat at Ahmedabad in Letters Patent Appeal
    No. 49 of 2008.
B
        Shomil Sanjanwala, Hemantika Wahi, Jesal for the
    Appellants.

     Laxmi Arvind, Poonam Prasad, Pradeep Kumar Mathur,
C Amardeep Sharma for the Resondents.

        The Judgment of the Court was delivered by

       DR. B.S. CHAUHAN, J. 1. This appeal has been
  preferred against the impugned judgment and order dated
D 4.2.2008 passed in Letters Patent Appeal No.49/2008 by the
  High Court of Gujarat at Ahmedabad.

        2. Facts and circumstances giving rise to this appeal are
    as under:-

E      a) The father of respondent No.1 who was working in the
  Police Department, State of Gujarat as the Assistant Sub-
  Inspector of Police, died in harness on 9.4.1999. Immediately
  thereafter, respondent No.1 filed an application for employment
  on compassionate ground, for the post of Peon. As he had
F completed his education only upto the 8th standard, the said
  application was rejected vide order dated 13.10.2000, on the
  ground that the family of the deceased was not suffering from
  any financial constraints and was getting an adequate amount
  of pension, which was, in fact, over and above the income limit
G fixed by the Government for this purpose. The said application
  was considered by the Additional Director General of Police
  by way of passing order dated 23.6.2003, directing that the
  application of respondent No.1 be reconsidered, ignoring the
  abovementioned issue regarding financial condition. The said
H
 STATE OF GUJARAT & ORS. v. ARVtNDKUMAR T. 1077
     TIWARI & ANR. [DR. B.S. CHAUHAN, J.]

application was rejected vide order dated 3.7.2005, on the           A
ground that the applicant did not meet the minimum eligibility
requirement for the said post, as he had not passed the 10th
standard, which was a necessary pre-requisite for the
consideration of the application of respondent No.1 for a Class
IV post on compassionate ground.                                     B

     b) Aggrieved, respondent No.1 preferred Special Civil
Application No.5630/2007, which was disposed of vide
judgment and order dated 2.3.2007, considering the fact that
there was a subsequent notification dated 16.3.2005, which           C
provided for the minimum qualification requirement of 10th
standard pass, as the eligibility criteria for employment to a
Class IV post. However, it was held that, as the said employee
had died in the year 1999, the amended provision would not
apply to his case. Therefore, direction was issued to consider
his case without being influenced by the earlier order, in light     D
of the new policy/circular/rules.

     c) Aggrieved, the said order was challenged before the
Division Bench, by the appellant, which was rejected vide
impugned judgment and order dated 4.2.2008. Hence, this              E
appeal.

     3. Shri Shomil Sanjanwala, learned counsel appearing for
the State of Gujarat, has submitted that the High Court erred
in observing that the new policy/rules do not apply
retrospectively, and that the case of respondent No.1 should
                                                                     F
be considered in light of the then existing rules, i.e., the rules
which were in force prior to 2005. Earlier, employment on
compassionate ground in the Department of Police was
governed by way of Circular dated 16.12.1991, which provided
that employment in Class Ill or Class IV posts, shall be accorded    G
on compassionate ground to deserving candidates on the
basis of their educational qualification.

     4. Mrs. Laxmi Arvind, learned Amicus Curiae, appearing
for respondent No.1 opposed the appeal, contending that the          H
    1078    SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A matter has been considered by the court below in a correct
  perspective and does not therefore, invite any interference. The
  father of the respondent died on 9.4.1999, and a period of more
  than 13 years has lapsed since then. The respondent has been
  unsuccessful in getting such employment, and has now attained
B the age of 36 years simply waiting for the said job by
  approaching one forum or the other, even though the purpose
  for which compassionate employment was introduced, was to
  redeem the bereaved family from financial constraints from
  which it is likely to suffer, owing to the death of its sole bread
c earner, and thus, should be accorded immediately. The court
  should, therefore, issue direction to offer employment to the
  said post of peon, to respondent No.1 under all circumstances
  on humanitarian grounds. The appeal lacks merit and is liable
  to be dismissed.
D        5. We have considered the rival submissions made by
    learned counsel for the parties and perused the record.

       It is a settled legal proposition that compassionate
  appointment cannot be claimed as a matter of right. It is not
E simply another method of recruitment. A claim to be appointed
  on such a ground, has to be considered in accordance with the
  rules, regulations or administrative instructions governing the
  subject, taking into consideration the financial condition of the
  family of the deceased. Such a category of employment itself,
F is an exception to the constitutional provisions contained in
  Articles 14 and 16, which provide that there can be no
  discrimination in public employment. The object of
  compassionate employment is to enable the family of the
  deceased to overcome the sudden financial crisis it finds itself
G facing, and not to confer any status upon it. (Vide: Union of
  India & Ors. v. Shashank Goswami & Anr., AIR 2012 SC
  2294).

       6. The eligibility for the post may at times be
  misunderstood to mean qualification. In fact, eligibility connotes
H the minimum criteria for selection, that may be laid down by the
 STATE OF GUJARAT & ORS. v. ARVINDKUMAR T. 1079
     TIWARI & ANR. [DR. B.S. CHAUHAN, J.]

executive authority/legislature by way of any statute or rules,          A
while the term qualification, may connote any additional norms
laid down by the authorities. However, before a candidate is
considered for a post or even for admission to the institution,
he must fulfill the eligibility criteria. (Vide: Dr. Preeti Srivastava
& Anr. v. State of M.P. & Ors., AIR 1999 SC 2894).                       B

      7. The appointing authority is competent to fix a higher
score for selection, than the one required to be attained for
mere eligibility, but by way of its natural corollary, it cannot be
taken to mean that eligibility/norms fixed by the statute or rules       C
can be relaxed for this purpose to the extent that, the same may
be lower than the ones fixed by the statute. In a particular case,
where it is so required, relaxation of even educational
qualification(s) may be permissible, provided that the rules
empower the authority to relax such eligibility in general, or with
regard to an individual case or class of cases of undue                  D
hardship. However, the said power should be exercised for
justifiable reasons and it must not be exercised arbitrarily, only
to favour an individual. The power to relax the recruitment rules
or any other rule made by the State GovernmenUAuthority is
conferred upon the GovernmenUAuthority to meet any emergent              E
situation where injustice might have been caused or, is likely
to be caused to any person or class of persons or, where the
working of the said rules might have become impossible. (Vide:
State of Haryana v. Subhash Chandra Marwah & Ors., AIR
1973 SC 2216; J.C. Yadav v. State of Haryana, AIR 1990 SC                F
857; and Ashok Kumar Uppal & Ors. v. State of J & K & Ors.,
AIR 1998 SC 2812).

      8. The courts and tribunal do not have the power to issue
direction to make appointment by way of granting relaxation of           G
eligibility or in contravention thereof. In State of M.P. & Anr. v.
Dharam Bir, (1998) 6 SCC 165, this Court while dealing with
a similar issue rejected the plea of humanitarian grounds and
held as under:

     ''The courts as also the tribunal have no power to c;iverride       H
    1080    SUPREME COURT REPORTS                    [2012] 7 S.C.R.


A       the mandatory provisions of the Rules on sympathetic
        consideration that a person, though not possessing the
        essential educational qualifications, should be allowed to
        continue on the post merely on the basis of his experience.
        Such an order would amount to altering or amending the
B       statutory provisions made by the Government under Article
        309 of the Constitution."

         9. Fixing eligibility for a particular post or even for
    admission to a course falls within the exclusive domain of the
    legislature/executive and cannot be the subject matter of judicial
C   review, unless found to be arbitrary, unreasonable or has been
    fixed without keeping in mind the nature of service, for which
    appointments are to be made, or has no rational nexus with the
    object(s) sought to be achieved by the statute. Such eligibility
    can be changed even for the purpose of promotion, unilaterally
D   and the person seeking such promotion cannot raise the
    grievance that he should be governed only by the rules existing,
    when he joined service. In the matter of appointments, the
    authority concerned has unfettered powers so far as the
    procedural aspects are concerned, but it must meet the
E   requirement of eligibility etc. The court should therefore, refrain
    from interfering, unless the appointments so made, or the
    rejection of a candidature is found to have been done at the
    cost of 'fair play', 'good conscious' and 'equity'. (Vide: State of
    J & K v. Shiv Ram Sharma & Ors., AIR 1999 SC 2012; and
F   Praveen Singh v. State of Punjab & Ors., (2000) 8 SCC 436).

       10. In State of Orissa & Anr. v. Mamta Mohanty, (2011)
  3 SCC 436, this Court has held that any appointment made in
  contravention of the statutory requirement i.e. eligibility, cannot
G be approved and once an appointment is bad at its inception,
  the same cannot be preserved, or protected, merely because
  a person has been employed for a long time.

         11. A person who does not possess the requisite
    qualification cannot even apply for recruitment for the reason
H
 STATE OF GUJARAT & ORS. v. ARVINDKUMAR T. 1081
     TIWARI & ANR. [DR. B.S. CHAUHAN, J.]

that his appointment would be contrary to the statutory rules is,      A
and would therefore, be void in law.

      Lacking eligibility for the post cannot be cured at any stage
and appointing such a person would amount to serious
illegibility and not mere irregularity.                                B

     Such a person cannot approach the court for any relief for
the reason that he does not have a right which can be enforced
through court. (See: Prit Singh v. S.K. Mangal & Ors., 1993(1)
SCC (Supp.) 714; and Pramod Kumar v. UP. Secondary
Education Services Commission & Ors., AIR 2008 SC 1817).               C

      12. The claim of the respondent was earlier rejected on
the ground that, the family had adequate financial status and
the amount of pension being given was actually over and above
the limit fixed by the appellant issuing the guidelines.               o
Subsequently, when the case was reconsidered upon the
direction of the court, it was found that the respondent did not
meet the requisite eligibility criteria i.e., 10th standard
certificate. Admittedly, the respondent is 8th standard fail, and
thus, he can be considered only as 7th standard pass and we            E
must therefore consider, whether he could have been offered
appointment to a Class IV post.

     13. Clause 9 thereof, provides that no relaxation in
educational qualification(s) for the purpose of giving
compassionate appointment to the dependant(s) of a deceased            F
employee, would be permissible. However, such relaxation can
be granted if there exists some requirement of minimum
qualification(s) with respect to the said post.

     Clause 11 thereof, provides that a dependant can, in fact,        G
be given appointment on compassionate ground, on the basis
of the pass marks obtained by him in the new Secondary
School Certificate and in view thereof, as respondent No.1 is
admittedly only 8th standard (fail), he is therefore, ineligible for
the post.
                                                                       H
    1082    SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A      Even otherwise, if the direction of the High Court is
  complied with and the case is considered as per the un-
  amended provisions in existence prior to 2005, the financial
  limits fixed therein, would automatically be applicable. His
  application dated 11.5.1999 reveals that his date of birth is
B 1.3.1976, and further that he has studied only upto the 8th
  standard (fail).

       14. In view of the above, we are of the considered opinion
  that since 1991, the eligibility criteria for a Class IV post was
  set as, the passing of the 10th standard, and as the said
C respondent had been unable to pass even the 8th standard, he
  was most certainly, not eligible to apply for the said post. In view
  of the law referred to hereinabove, it is neither desirable, nor
  permissible in law, for this court to issue direction to relax the
  said eligibility criteria and appoint respondent No.1 merely on
D humanitarian grounds.

       15. Thus, the question framed by this Court with respect
  to whether the application for compassionate employment is
  to be considered as per existing rules, or under the rules as
E existing on the date of death of the employee, is not required
  to be considered.

         16. In view of the above, the appeal succeeds and is
    allowed. The judgment and order impugned herein is set aside.
    No order as to costs.
F
    R.P.                                            Appeal allowed.