STATE OF U.P. & ORS.versusPANKAJ KUMAR VISHNOI

                    [2013] 7 S.C.R. 787


                   STATE OF U.P. & ORS.                            A
                               v.
                PANKAJ KUMAR VISHNOI
        (Criminal Appeal Nos. 2366-2367 of 2011)

                       JULY 25, 2013
                                                                   B
       [DIPAK MISRA AND VIKRAMAJIT SEN, JJ.)

    SeNice Law:

     Compassionate appointment of respondent as Constable          c
- Claim for appointment on compassionate ground as Sub-
Inspector, without appearing in physical test - Held: It is for
the appointing authority to see that minimum standard of
working and efficiency expected of the post is maintained -
The rule has merely dispensed with the written test or inteNiew    0
by a selection committee, but not the maintenance of
minimum standard of efficiency required for the post -
Respondent after being disqualified in the physical test could
not have claimed as a matter of right appointment in respect
of a particular post - Circular issued by Inspector General        E
of Police is in consonance with r. 8(2) - Uttar Pradesh
Recruitment of Dependants of Government SeNants Dying
in Harness Rules, 1974 - rr. 5 and 8(2).

     Compassionate appointment - Object of - Explained -
Held: The posts in Classes Ill and IV are the lowest posts in      F
non-manual and manual categories and, therefore, they alone
can be offered on compassionate grounds to relieve the
family of the financial destitution and to help it get over the
emergency - The favourable treatment given to such
dependant of the deceased employee in such posts has a             G
rational nexus with the object sought to be achieved viz. relief
against destitution.

    The respondent was appointed as Constable on
                              787                                  H
     788      SUPREME COURT REPORTS               [2013) 7 S.C.R.


A compassionate ground, as his father, a Head Constable
  of Police, had died while in service, on 22.04.2002.
  Subsequently, the respondent participated in physical
  test for the post of Sub-Inspector (Civil Police), but failed.
  He then filed a writ petition praying for compassionate
B appointment on the post of Sub-Inspector (Civil Police)
  without subjecting him to appear in any physical test and
  interview. The single Judge dismissed the writ petition.
  However, the Division Bench allowed the respondent's
  writ appeal and directed the Department to once again
c subject him to physical test.
           Disposing of the appeals, the Court

         HELD: 1.1. The Government or the public authority
     concerned has to examine the financial condition of the
D    family of the deceased, and it is only if it is satisfied that
     but for the provision of employment, the family will not
     be able to meet the crisis then a job is to be offered to
     the eligible member of the family. The object of
     compassionate employment is not to give a member of
E    such family a post much less a post for post held by the
     deceased. Mere death of an employee in harness does
     not entitle his family to such source of livelihood. The
     posts in Classes Ill and IV are the lowest posts in non-
     manual and manual categories and, therefore, they alone
F    can be offered on compassionate grounds, the object
     being to relieve the family, of the financial destitution and
     to help it get over the emergency. The provision of
     employment in such lowest posts by making an
     exception to the rule is justifiable and valid since it is not
     discriminatory and has a rational nexus with the object
·G   sought to be achieved viz. relief against destitution. [Para
     10) [794-8-F]
        Umesh Kumar Nagpal v. State of Haryana (1994) 4 SCC
    138; SAIL v. Madhusudan Das 2008 (14) SCR 824 = (2008)
H . 15 SCC 560; General Manager, State Bank of India and
  STATE OF U.P. & ORS. v. PANKAJ KUMAR VISHNOI 789

   Others v. Anju Jain 2008 (12) SCR 576 = (2008) 8 SCC 475;     A
 · Union of India and Another v. Shashank Goswami and
   Another (2012) 11 SCC 307; State Bank of/ndia and Another
   v. Raj kumar (2010) 11 SCC 661 - relied on

        1.2. ·It is for the appointing authority to see that     8
   minimum standard of working and efficiency expected of
   the post is maintained. Rule 8 (2) of the Recruitment of
   Dependants of Government Servants Dying in Harness
   Rules, 1974 confers discretion on 'the appointing
   authority to interview the candidate in ·order to satisfy     C
   himself that the candidate will be able to maintain the
   minimum standard of work and efficiency expected of the
   post What has been dispensed with is the written test or
   interview by a selection co'mmittee but not the
   maintenance of minimum standard and of efficiency
   required for the post. It is for the said reason that the     D
   Inspector General has issued an order /letter, circular,
   which is in consonance with the r.8(2). It does not travel
   beyond the rule but it acts in furtherance of the rule and
   there is justification for the same. [Paras 15, 16, 17, and
__ 20] [797-F, G-H; 798-A; 800-B]                                E
     I. G. Karmik and Ors. v. Prahlad Mani Tripathi 2007 (5)
            =
  SCR 978 (2007) 6 sec 162 - relied on.

      1.3. The respondent appeared in the physical test and
  could not qualify. Therefore, he could not have claimed        F
  as a matter of right and demanded for an appointment in
  respect of a particular post; and the High Court could not
  have granted further opportunity after the crisis was over.
  The order passed by the Division Bench is wholly
  unsustainable and is set aside. [Para 21-22] [800-C, D-E]      G

       1.4. It has been brought to the notice of this Court
  that the High Court has directed the Dep}lrtment to hold
  a second. physical test and to keep the re15u1ts in a sealed
  cover. Since the second physical test could not have           H
    790       SUPREME COURT REPORTS              [2013) 7 $.C.R.


A been directed to be held for the purpose of extending the
  benefit of compassionate appointment, the sealed covers
  need not be opened. (Para 23] (800-G-H]
                          Case Law Reference:
8         2007 (5) SCR 978        relied on            Para 6
          (1994) 4 sec 138        relied on            Para 10
          2008 (14) SCR 824       relied on            Para 11

c         2008 (12) SCR 576       relied on            Para 12
          (2012) 11 sec 301 ·     relied on            Para 13
          (201 O) 11 sec 661      relied on            Para 14
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
D 2366-2367 of 2011.

       From the Judgment & Order dated 20.12.20006 of the
  High Court of Judicature at Allahabad in Special Appeal No.
  1602 of 2006 and Order dated 27.08.2009 in Review
E Application No. 172835 of 2007 in Special Appeal No. 1602
  of 2006.
                                  WITH
    C.A. No. 2406 of 2011. ·

F         R. Dash, Gunnam Venkateswara Rao for the Appellants.

          Shamiti Mukherjee, Manoj K. Mishra for the Respondent.
          The Judgment of the Court was delivered by
G       DIPAK MISRA, J. 1. Regard being had to the commonality
    of controversy of the appeals were heard together and are
    disposed of by a common order. For the sake of convenience,
    the facts from Civil Appeal Nos. 2366-2367 of 2011 are
    adumbrated herein.
H
STATE OF U.P. & ORS. v. PANKAJ KUMAR VISHNOI 791
               [DIPAK MISRA, J.]
     2. The gravamen of grievance that has been assertively         A
amplified and pronouncedly stressed by the appellants, State
of Uttar Pradesh and its functionaries, in these appeals by
special leave is that the Division Bench of High Court of
judicature at Allahabad by orders dated 20.12.2006 and dated
27.08.2009 passed in Special Appeal No. 1602 of 2006 and            B
in Review Application No. 172835/2007 respectively has
reversed the verdict of the learned Single Judge and further
declined to review the same as a consequence of which
erroneous directions have been issued pertaining to
compassionate appointment in a higher post in violation of the      c
 norms and procedure.

      3. The facts which are imperative to be stated are that the
father of the respondent, a Head Constable in the Department
of Police breathed his last on 22.04.2002 in harness. The
respondent, being a dependant on his deceased father, moved         D
an· application for grant of compassionate appointment before
the Superintendent of Police, Rampur on 20.12.2002. After
consideration of the application a decision was taken at the
U.P. Police Headquarters to offer him an appointment on the
compassionate basis on the post of Constable and in                 E
accordance with such decision a letter of appointment dated
9.5.2003 was issued by the Superintendent of Police and,
Rampur and he was required to join on 11.5.2003. Instead of
joining, the respondent preferred Civil Misc. Writ Petition No.
23703 of 2003 for issue of writ of a Mandamus to the competent      F
authority to extend him the benefit of compassionate
appointment on the post of Sub-Inspector (Civil Police) as he
was eligible for the said post. Be it noted, during the pendency
of the writ petition the respondent in pursuance of the order
dated 9.5.2003 joined on the post of Constable on 28.6.29003.       G
Eventually, on 16.3.2004 the writ petition was dismissed as
withdrawn.

    4. As the facts are further uncurtained, a physical test
examination was conducted from 27.6.2005 to 29.6.2005 for
the post of Sub-Inspector (Civil Police) and the petitioner         H
    792      SUPREME COURT REPORTS                  [2013) 7 S.C.R.


A   participated in the said physical examination but could not
    become successful as a result of which his candidature for the
    post of Sub-Inspector was rejected. It is worth noting in that
    physical test 460 candidates appeared out of which 263
    candidates fulfilled the minimum physical requirements and
B   accordingly they were selected.

       5. Calling in question his non-selection and non-
  appointment he preferred Writ Petition No. 63596 of 2006 with
  a prayer for grant of compassionate appointment on the post
C of Sub-Inspector (Civil Police) without subjecting him to appear
  in any physical test examination and interview. Learned Single
  Judge vide order dated 23.11.2006 dismissed the Writ petition
  on two counts, namely, the second writ petition for issuance of
  grant of compassionate appointment was not maintainable as
  the earlier writ petition was dismissed being withdrawn without
D any liberty to refile another petition and secondly, the prayer for
  offering the post of Sub-Inspector (Civil Police) without
  subjecting him to undergo the physical efficiency test was
  absolutely misconceived.

E        6. The aforesaid order passed by learned Single Judge
 · was assailed in Special Appeal No. 1602 of 2006 and the
   Div.ision Bench came to hold that the first dismissal was not
   an impediment for entertaining the second writ petition; and that
   the respondent who was physically examined in the year 2002
F and with passage of time one may become unfit or more fit.
   Being of this view it proceeded to direct as follows :-

          "As such the writ petition is allowed. The writ petitioner
          appellate will be granted compassionate appointment in
          the post found ·suitable after he is subjected to a physical
G         test once again now such a test will be conducted within
          a period of two months from the date hereof and either
          appointment offered forthwith or a reasoned order passed
          as to exactly why and in what manner and when the writ
          petitioner was found physically unfit. No order as to costs"
H
 STATE OF U.P. & ORS. v. PANKAJ KUMAR VISHNOI 793
                [DIPAK MISRA, J.]
     7. The aforesaid order was sought to be reviewed but the         A
application for review did not meet with any success. Hence,
the present appeal.

      8. Mr. R. Dash, learned senior counsel for the appellant
has submitted that once the respondent had failed in the              B
physical test and did not qualify for the post of Sub-Inspector,
the High Court could not have directed for holding another test.
He has invited our attention to Sub-Rule 8 (2) of the Rules and
submitted that even though the person is considered eligible
for appointment in place of an employee dying in harness yet
the minimum standard of working and efficiency is required to
                                                                      c
be considered. To buttress the facet of efficiency and minimum
standard he has placed reliance upon the order/ letter- circular
issued by the Inspector General of Police. He has also drawn
inspiration from the pronouncement in /. G. Karrnik and Ors. v.
Prahlad Mani Tripathi. 1 That apart, learned senior counsel           D
would submit that there is no vested right for getting
compassionate appointment and, therefore, the respondent
cannot put forth a claim that he should be considered for a
 particular post because of his educational qualification.
                                                                      E
        9. Mr. Shamit Mukherjee, learned senior counsel, per
  contra, contended that there was no command in the Rules for
  holding a test at the time of appointment on compassionate
  basis and hence, the applicant is to be extended the benefit of
  appointment on relaxation of the Rules. It is urged by him that     F
  the physical test was ·conducted on the basis of an order
  passed by the Inspector General of Police which cannot be
· placed reliance upon in the absence of any stipulation in the
  Rules 8 (2) itself. The next plank of submission of Mr. Mukherjee
  is that number of people have been given liberty to undergo the     G
  physical test for the second time but the respondent has been
  deprived of the said benefit.

       10. Befor~ we proceed to appreciate the entitlement of the

 1.   (2007) a sec 1e2.                                               H
    794       SUPREME COURT REPORTS                  [2013] 7 S.C.R.


A respondent for a particular post on compassionate basis, we
  think it necessary to refer to certain pronouncements in the field
  pertaining to compassionate appointment itself. In Umesh
  Kumar Nagpa/ v. State of Haryana 2 while dealing with the
  concept of compassionate appointment the Court has
B observed that the whole object of granting compassionate
  employment is to enable the family to tide over the sudden
  crisis. The object is not to give a member of such family a post
  much less a post for post held by the deceased. Mere death
  of an employee in harness does not entitle his family to such
c source of livelihood. The Government or the public authority
  concerned has to examine the financial condition of the family
  of the deceased, and it is only if it is satisfied that but for the
  provision of employment, the family will not be able to meet the
  crisis then a job is to be offered to the eligible member of the
  family. The posts in Classes Ill and IV are the lowest posts in
0
  non-manual and manual categories and hence, they alone can
  be offered on compassionate grounds, the object being to
  relieve the family, of the financial destitution and to help it get
  over the emergency. The provision of employment in such
  lowest posts by making an exception to the rule is justifiable
E and valid since it is not discriminatory. The favourable treatment
  given to such dependant of the deceased employee in such
  posts has a rational nexus with the object sought to be achieved
  viz. relief against destitution.

F        11. In SAIL v. Madhusudan Das3 this Court reiterating the
    principle has stated thus:-

           "15. This Court in a large number of decisions has held
          that the appointment on compassionate ground cannot be
          claimed as a matter of right. It must be provided for in the
G
          rules. The criteria laid down therefor viz. that the death of
          the sole bread winner of the family, must be established.
          It is meant to provide for a minimum relief. When such
    2.   (1994) 4 sec 138.
H 3. (2008) 1s sec 560.
STATE OF U.P. & ORS. v. PANKAJ KUMAR VISHNOI 795
               [DIPAK MISRA, J.]
     contentions are raised, the constitutional philosophy of      A
     equality behind making such a scheme be taken into
     consideration. Articles 14 and 16 of the Constitution of
     India mandate that all eligible candidates should be
     considered for appointment in the posts which hl:lve fallen
     vacant. Appointment on compassionate ground offered to        8
     a dependant of a deceased employee is an exception to
     the said rule. It is a concession, not a right."

      12. In General Manager, State Bank of India and Others
v. Anju Jain4 it has been clearly stated that appointment on
compassionate ground is never considered to be a right of a C
person. In fact, such appointment is violative of rule of equality
enshrined and guaranteed under Article 14 of the Constitution.
As per the settled law, when any appointment is to be made in .
Government or semi-government or in public office, cases of
all eligible candidates are be considered alike. Tthe State or D
its instrumentality making any appointment to public office,
cannot ignore the mandate of Article 14 of the Constitution. At
the same time, however, in certain circumstances, appointment
on compassionate ground of dependants of the deceased
employee is considered inevitable so that the family of the E
deceased employee may not starve. The primary object of such
scheme is to save the bereaved family from sudden financial
crisis occurring due to death of the sole bread winner. It is an
exception to the general rule of equality and not another
independent and parallel source of employment.                     F
      13. In Union of India and Another v. Shashank Goswami
and Another5 it has been observed that the claim for
appointment on compassionate grounds is based on the
premise that the applicant was dependant on the deceased
employee. Strictly, such a claim cannot be upheld on the           G
touchstone of Article 14 or 16 of the Constitution of India.
However, such claim is considered as reasonable and
4.   c2ooa) a sec 475.
5.   c2012) 11 sec 307.                                            H
    796      SUPREME COURT REPORTS                 [2013] 7 S.C.R.


A   permissible on the basis of sudden crisis occurring in the family
    of such employee who has served the State and dies while in
    service, and, therefore, appointment on compassionate grounds
    cannot be claimed as a matter of right.

        14. In State Bank of India and Another v. Raj kumar it
8 has been ruled that the dependants of employees, who die in
  harness, do not have any special claim or right to employment,
  except by way of the concession that may be extended by the
  employer under the rules or by a separate scheme, to enable
  the family of the deceased to get over the sudden financial
C crisis. The claim for compassionate appointment is, therefore,
  traceable only to the scheme framed by the employer for such
  employment and there is no right whatsoever outside such
  scheme.

D       15. Regard being had to the aforesaid enunciation of law
  in the field we shall proceed to scrutinize the Rule position and
  the claim that had been put forth by the respondent and
  accepted by the High Court. The Rule dealing with
  compassionate appointment in the State of U.P. at the relevant
E time was Recruitment of Dependants of Government Servants
  Dying in Harness Rules, 1974 (for short the '1974 Rules'). Rule
  5 of the said Rules reads as under:-

          "In case, a government servant dies in harness after the
          commencement of these rules and the spouse of the
F         deceased government servant is not already employed
          under the Central Government or a State Government or
          a corporation owned or controlled by the Central
          Government or a State Government, one member of his
          family who is not already employed under the Central
G         Government or a State Government or a Corporation·
          owned or controlled by the Central government or a State
          Government making an application for the purposes, be
          given a suitable employment in government service on a

H 6. c2010) 11 sec 661.
STATE OF U.P. & ORS. v. PANKAJ KUMAR VISHNOI 797
               [DIPAK MISRA, J.]
     post except the post which is within the purview of the Uttar    A
     Pradesh Public Service Commission, in relaxation of the
     normal recruitment rules if such person-

      (i)     fulfils the educational qualifications prescribed for
              the post.                                               B

      (ii)    is otherwise qualified for'government service; and

      (iii)   makes the application for employment within five
              years from the date of the death of the government
              servant."                                               C

      16. The aforesaid Rule stipulates that a candidate would
 be given a suitable employment in government service on a
 post except the post which comes within the purview or U.P.
 Public Service Commission in relaxation of normal recruitment
                                                                      0
 subject to certain conditions as enumerated in the said Rule.
 Rule 8 of the 1974 Rules lays the postulates pertaining to
·relaxation of age and other requirements which are as follows:-

     "1) The candidate seeking appointment under these rules
     must not be less than 18 years at the time of appointment.       E

     2) The procedural requirement for selection, such as
     written test or interview by a selection committee or any
     other authority, shall be.dispensed with, but it shall be open
     to the appointing authority to interview the candidate in
                                                                      F
     order to satisfy itself that the candidate will be able to
     maintain the minimum standards of work and efficiency
     expected to the post."

      17. Thus, Rule 8 (2) confers discretion on the appointing
authority to interview the candidate in order to satisfy himself      G
that the candidate will be able to maintain the minimum standard
cf work and efficiency expected of the post. What has been
dispensed with is the written test or interview by a selection

                                                                      H
    798       SUPREME COURT REPORTS                    [2013) 7 S.C.R.


A   committee but not the maintenance of minimum stand of
    efficiency required for the post. It is apt to note that for the said
    reason the Inspector General issue an order /letter, circular. It
    is seemly to reproduce the same:-

B
          "The appointing authority has been authorised in this
          regard that for recr4itment of the dependants of deceased
          during service period of government servant under Rule 8
          Sub-rule 2 of Service Rules 1974 that it should be decided
          on the basis of interview by the Authorised Authority that
          the candidate is whether competent to discharge his duties
c         as per norms of the service or not. Apart from this
          according to the Service Rule clause A for selection under
          these rules, the concerned candidate should be
          necessarily competent and healthy for this post.

D         There are so many other works related to the physical
          fitness for Asst. Sub-Inspector Civil Police/Platoon
          Commander as arresting of the criminal, handling of the
          various kinds of arms etc. In these circumstances, it is
          necessary that candidate selected for this post should
E         carry physical competency and fitness.

          Under the above provision of the Service Rules vested
          arrangements keeping in view the circumstances of the
          work of Asstt. Sub- Inspector and Platoon Commander, the
          officer will be nominated by the Inspector General of Police
F         Uttar Pradesh for consideration of appointment selection
          for the post of Asstt. Sub-Inspector and Platoon
          Commander, wherein a officer of the rank by Dy. Inspector
          General of Police will be for selection."

G        18. The said order/letter-circular has a Chart that provides
    the guidelines for evaluation of physical endurance. It is as
    follows: -


H
STATE OF U.P. & ORS. v. PANKAJ KUMAR VISHNOI 799
               [DIPAK MISRA, J.]

  SI Item                 Standard for male       Standard for        A
  No.                                             female

  1.    Cricket ball throw 50 Meter               20 Meter

  2.    Long Jump         13 Feet                 8 Feet
                                                                      B
  3.    Chining up        5 times

  4.    Running and walk 30 minutes               Running 200
        5km                                       meters in 40
                                                  seconds             c
  5.     Sitting and      (1) 40 in 2 minutes
         stand up         30 seconds (b)
                          50 sitting in 60
                           seconds
                                                                      D
  6.     Shuttle race                             Within 29
          (25x4 mtr)                              seconds


  7.     Skipping                                 60 times within
                                                  a minute            E
     19. Mr. Mukherjee has submitted that such an order could
not have been passed by the appointing authority as it is
contrary to the Rules. The aforesaid submission leaves us
unimpressed inasmuch as it is for the appointing authority to
                                                                      F
see that minimum standard of working and efficiency expected
of the post is maintained. In /. G. Karrnik and others (supra) this
Court while dealing with the employment in the Department of
Police has expressed thus:-

       "Public employment is considered to be a wealth. It in         G
       terms of the constitutional scheme cannot be given on
       descent. When such an exception has been carved out be
       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           H
      800      SUPREME COURT REPORTS                   [2013] 7 S.C.R.

- A         reason of the death of the bread earned. When an
            appointment is made on compassionate ground, it should
            be kept confined only to the purpose it seeks tp achieve,
            the idea being not to provide for endless compassion."

 B         20. We have no iota of doubt that the order/letter-circular
      issued by the Inspector General is in consonance with the Rule
      8(2). It does not travel beyond the rule but It acts in furtherance
      of the rule and there is justification for the same.

        21. It is accepted position that the respondent appeared
 C in the test and could not qualify. Once he did not qualify in the
   physical test, the High Court could not have asked the
   department to give him an opportunity to hold another test to
   extend him the benefit of compassionate appointment on the
   post of Sub-Inspector solely on the ground that there has been
 D efflux of time. The respondent after being disqualified in the
   physical test could not have claimed as a matter of right and
   demand for an appointment in respect of a particular post and
   the High Court could not have granted further opportunity after
   the crisis was over.
 E
           22. In our considered opinion, the order passed by the
      Division Bench is wholly unsustainable and is hereby set aside.
      We may, however, hasten to add that it is open to the
      respondent to compete in the normal course if eligible for the
      post of Sub-Inspector for promotion in accordance with rules
 F    prescribed for promotion.

            23. At this juncture, we have been apprised at the Bar that
   following the decision of the Division Bench which has been
   set aside in this appeal, in subsequent writ petitions and
 G appeals the High Court has directed the Department to hold a
   second physical test and to keep the results in a sealed cover.
   As we have already opined that the second physical test could
   not have been directed 1to be held for the purpose of extending
   the benefit of compassionate appointment, the sealed covers
 H need not be opened. Needless to say, the candidates therein
STATE OF U.P. & ORS. v. PANKAJ KUMAR VISHNOI 801
               [DIPAK MISRA, J.]
are also entitled to compete for promotion in accordance with       A
the rules.

     24. We will be failing in our duty if we do not take note of
an apprehension that has been expressed by Mr. Mukherjee,
leanred counsel for the appellant that for the purpose of           8
promotion certain relaxations are given and the appellants
should not be deprived of the same merely because they had
not qualified in the physical test undertaken by them. Mr. R.
Dash, learned senior counsel appearing for the state very fairly
stated that they will be given relaxation if they are entitled to   C
the same and the State shall not hold anything against them
on the foundation that they had not passed the physical test on
the first occasion

     25. All the appeals are disposed of in above terms leaving
the parties to bear their respective costs.                         D

R.P.                                     Appeals disposed of.