THE CHIEF COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, LUCKNOW & ORS.versusPRABHAT SINGH

                     [2012] 11 S.C.R. 209


  THE CHIEF COMMISSIONER, CENTRAL EXCISE AND                       A
           CUSTOMS, LUCKNOW & ORS.
                               v.
                       PRABHAT SINGH
               (Civil Appeal No. 8635 of 2012)
                    NOVEMBER 30, 2012                              B

                [DR. B.S. CHAUHAN AND
              JAGDISH SINGH KHEHAR, JJ.]
     SeNice Law:
                                                                   c
      Appointment on compassionate ground - O.M. dated
5.5.2003 - Held: The. very object of making provision for
appointment on compassionate ground, is to provide succour
to a family dependent on a government employee, who has
unfortunately died in harness - Delay in raising such a claim,     o
is contradictory to the object sought to be achieved - The
norms governing compassionate appointment have to be
strictly followed - Where claims for compassionate
appointment exceed the available vacancies, a selection
process based on comparative compassion gradient of E
eligible candidates, has to be adopted - In the instant case,
even though the father of the applicant had died on 2.3.1996
he sought judicial redress, for the first time, by approaching
the CAT in 2005 - By such time, there was no suNiving right
for appointment on compassionate ground under the OM F
dated 5.5.2003, as appointment on compassionate ground
under the OM is permissible within three years of the death
of the bread winner in harness - Order of High Court directing
the authorities to appoint the appellant on compassionate
ground, against a post in the grade of Tax Assistant or any
other post falling in the quota of direct recruitment, is set aside G
- Department of Personnel and Training, Government of
India, O.M. dated 5.5.2003.


                              209                                  H
                        .
    210       SUPREME COURT REPORTS              [2012) 11 S.C.R.


A      ·CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8635 of 2012.

      From the Judgment & Order dated 09.08.2011 of the High
  Court of Judicature at Allahabad in Civil Misc. Writ Petition No.
B 33452 of 2008.
        Sidharth Luthra, ASG, B.K. Prasad, Nakul Dewan, Bhakti
    Pasrija Sethi, Aditya Singhla, Dinesh Choudhary, Arvind Kumar
    Sharma for the Appellants.

c       Saurabh Upadhyay, S.K. Verma, Navin Verma for the
    Respondent.

          The following Order of the Court was delivered by

                              ORDER
D
          JAGDISH SINGH KHEHAR, J. 1. Leave granted.

       2. Vijay Bahadur Singh, who was working as a sepoy in
  the Central Excise and Customs Department and was posted
  in the Customs Division at Varanasi, died in harness on
E 2.3.1996. His son Prabhat Singh applied for appointment on
  compassionate ground. It seems, that he could not be
  appointed as such, because there was no vacancy available
  to accommodate him. His application therefore remained
  pending.
F
       3. Having waited long enough, Pra~hat Singh filed Original
  Application no. 1459 of 2005 before the Central Administrative
  Tribunal, Allahabad Bench, Allahabad (hereinafter referred to
  as the "CAT-Allahabad Bench"). In his Original Application,
G Prabhat Singh prayed for a direction to the respondents to
  appoint him on compassionate grounds, since his father Vijay
  Bahadur Singh had died in harness. The CAT-Allahabad Bench
  disposed of the application filed by Prabhat Singh on 8.12.2005
  with a direction to the Commissioner, Central Excise, Allahabad
H to take a decision on the representation filed by Prabhat Singh .
CHIEF COMMR., CEN. EX. AND CUSTOMS, LUCKNOW 211
 v. PRABHAT SINGH [JAGDISH SINGH KHEHAR, J.]
seeking appointment on compassionate ground within three         A
months.

     4. In compliance with the directions issued by the CAT-
Allahabad Bench dated 8.12.2005, the Commissioner, Central
Excise, Allahabad, adjudicated upon the claim of Prabhat Singh
(for appointment on compassionate ground), by an order dated 8
5.1.2006. A perusal of the aforesaid order inter alia reveals,
that the policy instructions pertaining to appointment on
compassionate ground envisage, that such appointments can
be made only up to a maximum of 5% vacancies, arising under
the direct recruitment quota (in any group ·c· or group ·o· C
posts). It also emerges from the order dated 5.1.2006, that the
 Ministry of Finance, vide its letter dated 19.7.2001, restrained
the authorities from, filling up any vacancies by way of direct
recruitment. In compliance therewith, the department had not
made any appointment by way of direct recruitment since D
December, 2000. Accordingly, in the absence of appointment
against direct recruitment vacancies, no compassionate
appointment could have been made. This therefore constituted
one of the reasons for not appointing Prabhat Singh on
compassionate ground. The order passed by the E
Commissioner, Central Excise, Allahabad further reveals, that
the erstwhile cadres of Lower Divisional Clerks and Upper
Divisional Clerks had been abolished. The existing Lower
Divisional Clerks and Upper Divisional Clerks were merged
into a newly created cadre of Tax Assistants. In so far as the F
post of Tax Assistant is concerned, the minimum prescribed
qualification, for appointment by way of direct recruitment
thereto, was graduation. Prabhat Singh could not be appointed
on compassionate ground, against the post of Tax Assistant as
he possessed the qualification of intermediate, which is lower G
than the minimum prescribed qualification. For the reasons
summarized hereinabove, the claim of Prabhat Singh for
appointment on compassionate ground was rejected by the
order of the Commissioner, Central Excise, Allahabad dated
5.1.2006.
                                                                  H
    212      SUPREME COURT REPORTS                [2012] 11 S.C.R.


A      5. Dissatisfied with the order dated 5.1.2006, Prabhat
  Singh approached the Central Administrative Tribunal, Lucknow
  Bench, Lucknow (hereinafter referred to as "the CAT- Lucknow
  Bench"), by filing Original Application no.468 of 2006. The
  instant Original Application filed by Prabhat Singh was
B disposed of by CAT-Lucknow Bench by an order dated
  14.03.2008, with the direction, that the claim of Prabhat Singh
  for appointment on compassionate ground be re-considered
  against the post of Tax Assistant. While issuing the aforesaid
  direction, it was clarified, that the earlier order dated 5.1.2006
C would not be taken into consideration, to the detriment of the
  applicant-Prabhat Singh.

         6. In compliance with the directions issued by the CAT-
    Lucknow Bench dated 14.3.2008, the Additional
    Commissioner, (P&V), Central Excise, Allahabad, re-
D   considered the claim of Prabhat Singh for a·ppointment on
    compassionate ground. It would be relevant to mention, that at
    the time of the instant consideration, an Office Memorandum
    issued by the Department of Personnel and Training dated
    5.5.2003 (hereinafter referred to as "the O.M. dated 5.5.2003")
E   was taken into consideration. The O.M. dated 5.5.2003, spells
    out the policy, as also, the terms and conditions for appointment
    on compassionate ground. A perusal of the order dated
    22.5.2008 passed on reconsidering the claim of Prabhat Singh
    (for appointment on compassionate ground) reveals, that the
F   O.M. dated 5.5.2003 inter alia expressly provided, that
    appointment of a dependant family member on compassionate
    ground, was permissible only within three years of the death of
    the bread-winner in harness. The aforesaid order dated
    22.5.2008, also noticed, that a Review Committee constituted
G   for the purpose of making appointments on compassionate
    ground, had re-considered all pending matters on 21.09.2007.
    The Review Committee had excluded the name of Prabhat
    Singh (and all other candidates like him) from consideration,
    because more than three years expired after the death of his
H   father (on 2.3.1996). Apart from the reason expressed above,
CHIEF COMMR., GEN. EX. AND CUSTOMS, LUCKNOW 213
  v. PRABHAT SINGH [JAGDISH SINGH KHEHAR, J.]

in the order dated 22.5.2008, it was noticed that there was no       A
available vacancy in the cadre of Tax Assistant. It was pointed
out, that the cadre controlling authority had not released any
further vacancy of Tax Assistant, which could be filled up by
direct recruitment. Accordingly, due to non availability of any
direct recruitment vacancy, in the cadre of Tax Assistant, the       B
claim of Prabhat Singh for such appointment, was held to be
not made out. For the reasons summarized hereinabove, the
claim of Prabhat Singh, for appointment on compassionate
ground, was again rejected.

     7. Even though the appellant in compliance with the
                                                                     c
directions issued by the CAT-Lucknow Bench, dated
14.3.2008, re-examined the claim of Prabhat Singh for
appointment on compassionate ground, and accordingly,
passed the order dated 22.5.2008 (referred to in the foregoing
paragraph), yet the appellants chose to assail the order passed      D
by the CAT-Lucknow Bench dated 14.3.2008 (disposing of
0.A. no.468 of 2006). The appellants accordingly, preferred
Miscellaneous Writ Petition no.33452 of 2008 in the High Court
of Judicature at Allahabad (hereinafter referred to as "the High
Court") to assail the order passed by the CAT-Lucknow Bench,         E
dated 14.3.2008, wherein the directions had been issued to the
appellants to re-consider the claim of Prabhat Singh, for
appointment on compassionate grounds against the post of Tax
Assistant.
                                                                     F
     8. The High Court disposed of the aforesaid miscellaneous
writ petition vide order dated 9.8.2011. The operative part of
the order passed by the High Court is being extracted
hereunder:-
    "Looking into this fact that now the post of Tax Assistant       G
    is to be filled up by way of promotion, the order of Tribunal
    is modified to the extent that the case of respondent no.1
    shall now be considered by the petitioner in the grade of
    Tax Assistant or any other post falling in the quota of direct
                                                                     H
    214       SUPREME COURT REPORTS                (2012] 11 S.C.R.


A         recruitment. The respondent no.1 shall be given
          appointment either in the department where his father was
          working or in any other department of Government of India,
          expeditiously, but not later than six months from the date
          of receipt of a certified copy of the order of this Court.
B
          With the aforesaid directions the writ petition is disposed
          of."

        The aforesaid directions issued by the High Court have
    been assailed, through the instant Special Leave Petition.
c
       9. A perusal of the impugned order passed by the High
  Court reveals that the High Court expressly noticed the fact, that
  in the order of the Commissioner, Central Excise, Allahabad,
  dated 5.1.2006, the ground on which the claim of Prabhat Singh
D for appointment on compassionate ground was declined, was
  expressed as non-availability of any vacancy, because of
  creation of the new cadre of Tax Assistant (and the merger of
  the posts of Lower Division Clerk and Upper Division Clerk in
  the said cadre). The Commissioner, Central Excise,
E consequent upon the abolition of posts of Lower Division Clerk
  and Upper Division Clerk declined the claim of Prabhat Singh
  for appointment against the post of Tax Assistant on
  compassionate ground, for the reasons that he did not possess
  the qualification of graduation, which was the prescribed
F educational qualification, for appointment by way of direct
  recruitment, against the post of Tax Assistant. The claim of
  Prabhat Singh, having been so considered, the High Court
  could not have passed the ultimate direction requiring the
  appellants herein, to yet again consider the claim of Prabhat
  Singh for appointment against the post of Tax Assistant or
G against any other equivalent post in the same grade.
       10. Whether or not the claim of Prabhat Singh for
  appointment on compassionate ground could be considered,
  in terms of directions issued by the High Court, would truly
H depend on the OM dated 5.5.2003 which laid down the policy,
CHIEF COMMR., CEN. EX. AND CUSTOMS, LUCKNOW 215
  v. PRABHAT SINGH [JAGl;>ISH SINGH KHEHAR, J.]
as also, the terms and conditions of eligibility for appointment A
as such. It is evident from the narration of facts noticed above,
that the appellants while considering the claim of Prabhat Singh
for appointment on compassionate ground (consequent upon
directions issued by the CAT-Allahabad Bench and CAT-
Lucknow Bench) vide orders dated 5.1.2006 and 22.5.2008, B
clearly expressed, that there was no direct recruitment vacancy
available, to consider the candidature of Prabhat Singh, for
appointment on compassionate ground. In the background of
the aforesaid factual position, there was hardly any justification
for the High Court to have passed the directions extracted c
above.

      11. It would also be pertinent to mention, that the High
Court, in the impugned order dated 9.8.2011, also took notice
of the fact, that the Ministry of Finance vide its order dated
19.7.2001, had prohibited the appellants from filling up any D
further vacancies by way of direct recruitment. In the orders .
passed by the appellants herein, it was categorically noticed,
that no vacancies by way of direct recruitment were actually
filled up after December, 2000. Since the OM dated 5.5.2003
laid down a quota of 5%, for appointment on compassionate E
ground, out of vacancies filled up by direct recruitment, the
question of appointment on compassionate ground could have
arisen, only if the appellants had proceeded to make
appointments by way of direct recruitment. Since it is not a
matter of dispute before us, that no appointment by way of direct F
recruitment was made by the appellants after December, 2000,
it clearly emerges that the quota contemplated in the OM dated
5.5.2003 for appointment on compassionate ground had not
become available. Therefore, the question of appointment of
Prabhat Singh at the hands of the appellants on compassionate G
ground, did not arise at all.
    12. The High Court expressed, that ban at the hands of
Finance Department would not affect appointment on
compassionate ground, the said determination, in our view, was   H
    216      SUPREME COURT REPORTS                [2012) 11 S.C.R.


A rendered without taking into consideration the fact, that the
  quota of 5% would arise only when appointments by direct
  recruitment were actually made. Out of vacancies filled up by
  way of direct recruitment, 5% could then be earmarked towards
  compassionate appointment under the OM dated 5.5.2003.
B Since no direct recruitment was made by the appellants after
  December, 2000, clearly no vacancy had became available for
  appointment on compassionate ground, with effect from
  December, 2000. The direction issued by the High Court dated
  9.8.2011, requiring the appellants to consider the case of
c Prabhat Singh for appointment on compassionate ground, was
  without reference to the OM dated 5.5.2003, wherein the policy,
  and terms and conditions for appointment on compassionate
  ground, were laid down.

           13. Most importantly, the High Court did not take into
D   consideration one of the most significant reasons depicted in
    the orders passed by the appellants (dated 5.1.2006 and
    22.5.2008), namely, that under the OM dated 5.5.2003
    appointment on compassionate ground was permissible within
    a period of three years from the date of death of the concerned
E   employee in harness. Vijay Bahadur Singh, the father of
    Prabhat Singh had died on 2.3.1996. The candidature of
    Prabhat Singh, for appointment on compassionate ground,
    under the OM dated 5.5.2003 could have been considered only
    till 1.3.1999. Thereafter, Prabhat Singh was rendered ineligible
F   for appointment on compassionate ground. Pointedly, on
    aforesaid ground the Review Committee constituted by the
    appellants to consider the claims of dependents of employees
    who had died in harness, vide an order dated 21.9.2007, had
    excluded the names of persons including Prabhat Singh, from
G   the list of pending cases for appointment on compassionate
    ground, because they could no longer be appointed on
    compassionate ground, since more than three years had
    expired after the death of the concerned bread winner in
    harness. Had the High Court or the Tribunals applied their mind
H   to the aforesaid pre-condition for eligibility for appointment on
CHIEF COMMR., CEN. EX. AND CUSTOMS, LUCKNOW 217
  v. PRABHAT SINGH [JAGDISH SINGH KHEHAR, J.]
compassionate ground, none of the directions issued by the        A
High Court or the Tribunals would have been issued. Such
directions could have been issued only when the party
approaching the Tribunal or the High Court had established a
prima facie case, by demonstrating fulfillment of the terms and
conditions stipulated in rules/regulations/policy instructions/   B
office memoranda, relevant for such consideration. Had the
aforesaid simple exercise been carried out, it would not have
been necessary to examine the matter again and again. In the
instant case, on a simple issue of compassionate appointment,
there have been repeated rounds of litigation, the first time     c
before the CAT-Allahabad Bench, then before the CAT-
Lucknow Bench, and thereafter, before the High Court. From
the High Court the matter has now been carried to this Court.
If only the pre-requisite eligibility of Prabhat Singh for
appointment on compassionate ground had been examined,
                                                                  0
it would not have been necessary to examine the matter again,
and yet again. The instant observations have been recorded
only to demonstrate how judicial time at different levels has
been wasted by entertaining a frivolous litigation. Surely,
because Prabhat Singh had approached a judicial forum nine
                                                                  E
years after the death of his father, whereas, appointment on
compassionate ground is permissible only within three years
of the death of the bread winner, the matter deserved to have
been rejected at the stage of first entertainment.

     14. We are constrained to record that even                   F
compassionate appointments are regulated by norms. Where
such norms have been laid down, the same have to be strictly
followed. Where claims for appointment on compassionate
ground, exceed, the available vacancies (which can be filled
up by way of compassionate appointment), a selection process      G
has to be adopted by the competent authority. The said
process, necessarily has to be fair, and based on a
comparative compassion gradient of eligible candidates, or on
some such like criterion having a nexus to the object sought to
be achieved. In other words, where there are two candidates       H
    218      SUPREME COURT REPORTS                [2012) 11 S.C.R.


A but only one vacancy is available, there should be a clear,
  transparent and objective criterion to determine which of the two
  should be chosen. In the absence of a prescribed criteria, a
  fair selection process has to be followed, so that, the exercise
  carried out in choosing one of the two candidates against a
B solitary available vacancy, can be shown to be based on
  reason, fair-play and non arbitrariness.

         15. The very object of making provision for appointment
    on compassionate ground, is to provide succor to a family
    dependent on a government employee, who has unfortunately
C   died in harness. On such death, the family suddenly finds itself
    in dire straits, on account of the absence of its sole bread
    winner. Delay in seeking such a claim, is an ante thesis, for the
    purpose for which compassionate appointment was conceived.
    Delay in raising such a claim, is contradictory to the object
D   sought to be achieved. The instant controversy reveals that
    even though Vijay Bahadur Singh, the father of the applicant
    (Prabhat Singh) seeking appointment on compassionate
    ground had died on 2.3.1996, Prabhat Singh sought judicial
    redress, for the first time, by approaching the CAT-Allahabad
E   Bench in 2005. By such time, there was no surviving right for
    appointment on compassionate ground under the OM dated
    5.5.2003. As already noticed above, appointment on
    compassionate ground under the OM dated 5.5.2003 is
    permissible within three years of the death of the bread winner
F   in harness. By now, sixteen years have passed by, and as such,
    there can be no surviving claim for compassionate
    appointment.

       16. Courts and ·Tribunals should not fall prey to any
G sympathy syndrome, so as to issue directions for
  compassionate appointments, without reference to the
  prescribed norms. Courts are not supposed to carry Santa
  Claus's big bag on Christmas eve, to disburse the gift of
  compassionate appointment, to all those who seek a court's
  intervention. Courts and Tribunals must understand, that every
H
CHIEF COMMR., CEN. EX. AND CUSTOMS, LUCKNOW 219
  v. PRABHAT SINGH [JAGDISH SINGH KHEHAR, J.]
such act of sympathy, compassion and discretion, wherein                 A
directions are issued for appointment on compassionate
ground, could deprive a really needy family requiring financial
support, and thereby, push into penury a truly indigent, destitute
and impoverish family. Discretion is therefore ruled out. So are,
misplaced sympathy and compassion.                                       B

      17. For the reasons recorded hereinabove, the impugned
order passed by the High Court dated 9.8.2011, directing the
appellants to appoint Prabhat Singh on compassionate ground,
against a post in the grade of Tax Assistant or any other post           C
falling in the quota of direct recruitment, is liable to be set aside.
The same is accordingly hereby set aside.

       18. The instant appeal is accordingly allowed.

R.P.                                               Appeal allowed.       D