STATE OF HARYANA AND ANR.versusANKUR GUPTA

                 STATE OF HARYANA AND ANR.                                   A
                                   v.
                           ANKUR GUPTA

                        SEPTEMBER 3, 2003

        [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]                            B
    Service Law :

      Appointment-Compassionate Appointment Scheme-Government
instructions provided that only dependants of the deceased employees C
whose family income is upto a prescribed limit and none oj the parents
are in Government employment can be appointed-Respondent employed
in violation of the Scheme-Appellants nullified appointment after 4
years-High Court upheld the compassionate appointment ofrespondent-
Held, appointment cannot be claimed as a matter of right-Object of D
compassionate appointment is to enable family to get over sudden financial
crisis but it should be made in accordance with rules, regulations or
administrative instructions-Appointment was not permissible in view of
policy-However, keeping in view that respondent has served for 4 years,
 this period shall be considered if he applies in normal course.
                                                                             E
    Appointment-Compassionate Appointment Scheme-Power of High
Court and Administrative Tribunals-Appointment impermissible on
sympathetic considerations when regulations do not cover such appointment.

      The father of the respondent died in service. Respondent was,          F
therefore, appointed in government employment under the
compassionate appointment scheme. The scheme had been modified as
per the decision of the High Court. It put an embargo that if any of
the parents of a dependant were in government employment then there
shall be no entitlement for appointment. The respondent was appointed        G
on the basis of a relaxation, in spite of fact that his mother was in
government employment and the family income was above the stipulated
level. The appellants later nullified the appointment after 4 years as
it was found to be against the scheme. The High Court quashed the
order, which nullified the appointment. Hence this appeal by the State
Government.                                                                  H
                                   333
    334                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A        The appellant contended that the approach of the High Court was
    erroneous as the appointment was made in violation of the scheme and
    no legal right was conferred upon the respondent.

          The respondent contended that the approach was correct as no
B misrepresentation or fraud was resorted to in order to gain employment.

          Allowing the appeal, the Court

          HELD : 1. Public service appointment should be made strictly on
    the basis of open invitation of applications and merit. The appointment
C   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. The object is to enable the
    family to get over sudden financial crisis but such appointments on
D   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.[337-G, H, 338-A, BJ

         State of Haryana and Ors. v. Rani Devi & Anr., JT (1996) 6 SCC
E   646; Umesh Kumar Nagpal v. State of Haryana and Ors., [1994) 4 SCC
    138; Director of Education (Secondary) and Anr. v. Pushpendra Kumar
    and Ors., (1998) 5 SCC 192 and Seate of Manipur v. Md Rajaodin, relied
    on.

         2. The appointment of the respondent admittedly was not
F   permissible in view of the modified policy. The correctness of the policy
    decision was not under challenge. In view of the legal position the logic
    of the policy cannot be undermined.

          3. High Courts and Administrative Tribunals cannot confer
G benediction impelled by sympathetic considerations to make appoint-
    ments on compassionate grounds when the regulations framed in respect
    thereof do not cover and contemplate such appointments. [337-GJ

         Life Insurance Corporation of India v. Asha Ramchhandra Ambekar
H   (Mrs.) and Anr., (1994) 2 sec 718, relied on.
             STATEv. ANKURGUPTA [PASAYAT, J.]                      335
     4. As regards the question whether there was any fraud or            A
misrepresentation, the officers concerned from the beginning were
acting in a manner contrary to the policy. It was clearly recorded that
mother of respondent was already in government service and also
noted that only those dependants of the deceased employee/officer
whose family income is upto Rs. 2500 p.m. can be appointed although       B
the monthly salary of respondent's mother was higher and there was
no scope for appointing the respondent however a relaxation was given
in his case. There is no provision 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.
                                                   [338-F-H, 339-A, BJ    C
     5. The respondent was in government service for more than 4
years. If the respondent applies for a job in the government within a
period of two years and is selected de hors the compassionate
appointmeat scheme, the question of his having crossed the age bar,
would not stand on his way and the service rendered by him shall be       D
duly considered. [339-D, E)

      Union of India and Ors. v. K.P. Tiwari, (2002) 1 LLJ 672,
distinguished.

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6950 of              E
2003.

    From the Judgment and Order dated 12.10.2001 of the Punjab and
Haryana High Court in C.W.P. No. 15852 of 2001.

     Praveen Kumar Rai and Ms. Kavita Wadia for the Appellants.           F

     R.K. Jain Ajay Jain and Kamlendra Mishra for the Respondent.

     The Judgment of the Court was delivered by

     ARIJIT PASAYAT, J.: Leave granted.                                   G
     The compassion shown by functionaries of the appellant-State by
giving appointment to respondent on compassionate ground (under die-in-
hamess scheme) was nullified by a subsequent order. The respondent
questioned legality thereof before the Punjab and Haryana High Court at   H
    336                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A 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
B   order dated 24.9.2001 was not justified.

        Factual position is almost undisputed and brief reference thereto
    would suffice.

          Father ofrespondent while in service died on 21.12.1996. Prior to that
C   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
D   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.
E   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
F   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.
G
          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
H   the respondent submitted that as rightly observed by the High Court, there
               STATE v. ANKURGUPTA [PASAYAT, J.]                           337

was no misrepresentation or fraud practicised by the respondent in gaining         A
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. KP.
Tiwari. (2002) 1 LLJ 672, jurisdiction under Article 136 of the Constitution
of India, 1950 (in short the 'Constitution') should not be exercised.

                                                                                   B
      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.,           C
JT [1996] 6 sec 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 Article 14 or 16 of the
Constitution of India. However, such claim is considered as reasonable and         D
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               E
right. Die-in harness scheme cannot be made applicable to all types of posts
irrespective of the nature of service rendered by the deceased employ~e.
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            F
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                G
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          H
    338                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A 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
B   of the family of the deceased.

          In Director ofEducation (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
C   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
D   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
E   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.
F
          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
G   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
H   of the deceased employee/officer whose family income is up to Rs.2500
               STATEv. ANKURGUPTA [PASAYAT, J.)                         339
p.m. can be appointed. In the letter itself it is mentioned that the monthly   A
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    B
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   C
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        D
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         E
and the service rendered by him shall be duly considered. The appeal is
allowed subject to the aforesaid observations. Costs made easy.

A.Q.                                                      Appeal allowed.