JUDGMENT
Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. Heard learned counsel for the appellant and the learned Standing Counsel.
2. This is an appeal against the judgment and order dated 17.8.2005, by which judgment the writ petition filed by the appellant praying for a mandamus commanding the respondents to appoint the writ petitioner-appellant under Dying-in-Harness Rules has been rejected.
3. The appellant’s case in the writ petition is that the appellant’s father was working in the Punjab National Bank on the post of Cash Peon, who died on 17.7.1996. The appellant after the death of his father, namely; Late Sri Ram Jaiswal, made an application in the year 1996 for compassionate appointment to meet out his great financial hardship, which he is facing after the death of his father. The appellant’s further case is that he has passed High School and is eligible for appointment on Clerical post. The appellant’s case is that he was intimated by the Punjab National Bank, Regional Office, Kanpur Nagar, vide letter dated 28.4.1997 that the request of the employment of the appellant on compassionate ground has been rejected. Learned Single Judge dismissed the writ petition taking the view that the appellant’s claim for compassionate appointment was rejected by an order dated 28.4.1987 and no relief can be granted after the expiry of so many years.
4. Learned counsel for the appellant contended that the Bank has been pursuing the policy of giving compassionate appointment with regard to the employees, who died in harness. Learned counsel for the appellant submitted that although a learned Single Judge in Ram Pratap Singh v. State of U.P. and Ors. reported at (2004) 4 ESC (All.) 2002 has held that Dying-in-
Harness Rules do not stand the test of valid classification and, therefore, the Rules contemplating compassionate appointment are hit by Article 14 and 16 of the Constitution of India, but the said judgment does not lay down the correct law and do not stand in way of the appellant’s claim for compassionate appointment. The learned counsel for the appellant further contended that the appointment on compassionate ground is exception to general rule of recruitment; and the said exception, has valid object and rules providing for compassionate appointment are neither arbitrary nor hit by Article 14 and 16 of the Constitution of India.
5. Learned counsel for the appellant submitted that the observations made by Hon’ble Single Judge in Ram Pratap Singh’s case (Supra) are general observations with regard to constitutionality of rules relating to Dying in Harness and the said observations also cloud the entitlement of the appellant for consideration for compassionate appointment by Punjab National Bank. Learned counsel submits that in case of Ram Pratap Singh the Court apart from referring the Uttar Pradesh Government Recruitment of Dependents of Governments Dying in Harness Rules, 1974 specifically made observations against the very concept of Dying in Harness Rules. Learned counsel for the appellant lastly contended that the writ petition of the appellant has been dismissed on an incorrect assumption that the claim of the appellant having been rejected on 28.4.1987, no relief can be granted after so many years whereas the claim of the appellant was rejected not on 28.4.1987 but on 28.4.1997. The appellant had made several requests for giving copy of the order, which was not given to the appellant, which was reason for not immediately approaching this Court by filing writ petition.
6. Before we proceed to consider the correctness of judgment under appeal, it is necessary to consider the larger question raised by the counsel for the appellant as to whether the compassionate appointment is itself violative of Article 14 of the Constitution of India.
7. The rules providing for giving of compassionate appointment in the event of death of an employee have been adopted in government service as well as services in various financial institutions, local bodies and public corporations. Special rules for giving appointment to the dependent of deceased employee have been framed by different employers providing for different schemes and entitlements. The object of providing compassionate appointment is to enable the family to tide over the sudden crisis which has been caused due to death of breadearner of the family taking into consideration the service rendered by the employee.
8. The first question to be answered is as to whether the provisions/rules/schemes providing for compassionate appointment is based on any valid classification and violates the right of other eligible candidates who are entitled to claim appointment on the basis of open competition and merit. Article 14 of the Constitution forbid the State to deny equality before law or to the equal protection of the laws to any person. The right of employment or appointment to an office is a valuable right possessed by all citizens. Article 14, however, does not forbid classification provided the classification is founded on an intelligible differentia distinguishing those who are group together and the differentia must have rational nexus to the object sought to be achieved. In Prabodh Verma and Anr. v. State of U.P. and Ors. , the Supreme Court considered the case of valid classification while giving appointment to teachers in the State of Uttar Pradesh. The Apex Court considered the validity of the Uttar Pradesh High School and Intermediate Colleges (reserve pool teachers) Ordinances 1978 in the aforesaid case. During the period of strike by teachers working in the recognized Higher Secondary Schools in the State, certain teachers were appointed to cope-up the teaching during the period of strike. After the strike was over the aforesaid Ordinance was issued providing for giving substantive appointment to those teachers who worked between January 9, 1978 and January 19, 1978, the validity of the said Ordinance providing for giving substantive appointment to reserve pool teachers was challenged in this Court, which was struck down by the High Court. The question as to whether while giving appointment to teachers, the classification provided for reserve pool teachers to get appointment without following normal rule of recruitment was considered. Applying the two well-known tests for finding out valid classification, the Apex Court held that there was an intelligible differentia that distinguishes teachers put in reserve pool from other applicant for the post of teachers. The Apex Court further held that the giving of substantive appointment to the reserve pool teachers had also rational nexus to the object sought to be achieved by Ordinances Nos. 10 and 22, namely, to keep the system of High School and Intermediate Education smoothly functioning. The Apex Court held that there was no question of violation of Articles 14 and 16 of the Constitution while giving substantive appointment. Repelling the attack based on Articles 14 and 16 of the Constitution, the Supreme Court laid following in paragraph 44, which is quoted below:
44.”The reserve pool teachers thus formed a separate and distinct class from other applicants for the posts of teachers in recognized institution. The differentia which distinguished the class of reserve pool teachers from the class of other applicants for the posts of teachers in recognized institutions is the service rendered by the reserve pool teachers to the State and its educational system in a time of crisis and this differentia bears a reasonable and rational nexus or relation to the object sought to be achieved by Ordinances Nos. 10 and 22 of 1978 read with the Intermediate Education Act, namely, to keep the system of High School and Intermediate Education in the State functioning smoothly without interruption so that the students may not suffer a detriment. Those two classes of persons, namely, the class of reserve pool teachers and the class of other applicants for the post of teachers in the recognized institutions, are not similarly circumstanced and, therefore, there cannot be any question of giving these two classes of persons equality of opportunity in matters relating to employment guaranteed by Article 16(1) of the Constitution. Thus, neither Article 14 nor Article 16(1) of the Constitution was violated by the provisions of either U.P. Ordinance No. 10 of 1978 or UP. Ordinance No. 22 of 1978.”
9. As far as test of intelligible differentia is concerned, the test is clearly satisfied while considering the dependent of deceased employee dying in harness and other applicant for the post from open market. Dependent of an employee in government employment or employment of any other organization who dies while in service falls in separate category and it cannot be said that the classification made by the relevant rules or schemes has no intelligible differentia.
10. Government employee or any other employee of public organization is governed by different service conditions as laid down from time to time by the competent authority. The facility that after the death of an employee in harness, his one of the dependants shall be considered for appointment, is one of the conditions provided for in the relevant rules or schemes and it is for the appropriate legislature or employer, as the case may be, while framing the said scheme to take into consideration all relevant facts. Object of the rules is to provide for social security and to provide for a source of livelihood to one of the dependants of the deceased employee so that sudden crisis in the family of the Government employee is met out. In most of service organizations, may be, Government or under public sectors or financial institutions, several benefits are extended to its employees and providing for employment to one of the dependants of the deceased employee is amongst one of such benefits. The benefits extended to the employees in service jurisprudence are as a measure of social security and with object to provide satisfactory condition of service. The cases are also not unknown where in some service organizations and public sector corporations, the benefit of compassionate appointment has not been provided for. In the present case, however, we are concerned with a case where the scheme do provide for compassionate appointment in event of death of an employee in harness.
11. In Ram Pratap Singh’s case (supra) a learned Single Judge of this Court held that Dying in Harness Rules do not stand the test of valid classification and, therefore, the rules contemplating compassionate appointment are hit by Articles 14 and 16 of the Constitution of India. In taking the above view, the learned Single Judge in the said judgment relied on various reasons as noted in the judgement.
12. It was held that offering job to a dependant alone is not a possible solution. This sympathy cannot be allowed to override a statutory provision and/or constitutional provision. The State cannot be allowed to look after the welfare of its own employees and their families alone. Learned Judge further held that there is no justification for the Government to make compassionate appointment of a dependant of an employee dying in harness ignoring families of those waiting in open market and whose families are in still graver condition. Employment in the State or its authority must be on merit alone. The compassionate appointment in a way creates reservation within reservation. The compassionate appointment makes reservation over the permissible limit of 50%. The appointments ignoring merit in the public service are bound to affect the administrative efficiency. The learned Judge further observed that long experience of compassionate appointments in the Government establishments corporate/local bodies and educational institution, is not only bad but it has also completely belied the expediency of such appointment in the context of ‘quality of service’ / ‘quality of administration’. The learned Judge further observed that compassionate appointments in the State have become a virtual scam and some time employee colludes and it has become a source of corruption in the State. The provision”of compassionate appointments under Dying in Harness Rules are being put to sheer misuse.
13. The learned Single Judge in Ram Pratap Singh’s case (supra) had raised several questions with regard to compassionate appointment and made observations that there has been large scale misuse of the compassionate appointment by employers and their officers. The reasons which have given by the learned Single Judge in taking the above view are: – compassionate appointment denying opportunity to other applicants to compete on merit, the efficiency of administration is also adversely affected by giving appointment on compassionate ground to one of the dependants, in some case, the appointee neglects his family members after appointment, rules of compassionate appointment have been thoroughly misused, the conclusion of learned Single Judge has been sum up in paragraph 69 of the judgment which is extracted below:-
69:”To sum up (i) petitioner has failed on the facts of the present case, as discussed above, to prove ‘distress’ which could warrant compassionate appointment to mitigate hardship immediately to the family of deceased employee in question; and (ii) in the light of the discussion made above, Dying in Harness Rules do not stand the test of valid classification and, therefore, the Rules contemplating compassionate appointments are hit by Article 14 and 16, Constitution of India (Hi) Respondents are directed to activate Compassionate Fund Rule and The U.P. Benevolent Fund Scheme 1997 and to make it real, purposive and effective so as to achieve solemn object for which they are framed; (iv) A copy of this judgment shall be sent to Chief Secretary for bringing the matter to the concerned and the State Government is mandated to take appropriate action in the light of the above”.
14. The reason given by the learned Single Judge that the giving of compassionate appointment violates the rights of other applicants to compete for an office, needs to be first examined. The general rule of recruitment in all service is to recruit the candidate for a post giving equal opportunity to all eligible candidates. The compassionate appointments have been held to be exception of this general rule., The above exception has been accepted in all service organization and has been approved by the Apex Court in several cases. The Apex Court in Umesh Kumar Nagpal v. State of Haryana and Ors. had occasion to consider the purpose and object of compassionate appointment,
15. The Apex Court noted in the above judgment that the compassionate appointment is one of the exceptions to the general rule of recruitment. Following was in paragraph 2 of the judgment:-
2.”The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus 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. What is further, mere death of an employee in harness does not entitle his family to such 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 that a job is to be offered to the eligible member of the family”.
16. In a subsequent judgment the Apex Court again examined the object and purpose of the compassionate appointment, i.e., the State of Haryana and Ors. v. Rani Devi and Anr. . While examining the object and purpose of compassionate appointment the Apex Court had also taken into consideration the equality clause under Article 14 of the Constitution of India. The Apex Court further laid down in the said judgment that while framing any rule in respect of appointment on compassionate ground the authorities have to be conscious of the fact that this right which is being extended to a dependent of the deceased employee is an exception to the right granted to the citizen under Articles 14 and 16 of the Constitution of India. As such, there should be a proper check and balance. Following was laid down in para 5 of the above judgment:-
5.”The question of appointment of one of the dependants of an employee of the State or Central Government who dies while in service has of late assumed importance and subject – matter of controversy before different courts. This Court in the case of Sushma Gosain v. Union of India, after referring to the government memorandum under which the appointment on compassionate ground was being claimed observed that the purpose of providing appointment on compassionate ground is to mitigate the hardship due to the death of the breadearner in the family. It cannot be disputed that appointment on compassionate ground is an exception to the equality clause under Article 14 and can be upheld if such appointees can be held to form a class by themselves, otherwise any such appointment merely on the ground that the person concerned happens to be a dependent of an ex-employee of the State Government or the Central Government shall be violative of Articles 14 and 16 of the Constitution. Hut this Court has held that if an employee dies while in service then according to rules framed by the Central Government or the State Government to appoint one of the dependents shall not be violative of Articles 14 and 16 of the Constitution because it is mitigate the hardship due to the death of the breadearner of the family and sudden misery faced by the members of the family of such employee who had served the Central Government or the State Government. It appears that this benefit has also been extended to the employees of the authorities which can be held to be a State within the meaning of Article 12 of the Constitution. But while framing any rule in respect of appointment on compassionate ground the authorities have to be conscious of the fact that this right which is being extended to a dependent of the deceased employee is an exception to the right the granted to the citizen under Articles 14 and 16 of the sConstitution. As such there should be a proper check and balance.”
17. The above observations of the Apex Court clearly lay down that giving of compassionate appointment to a dependant of the deceased employee is valid classification and does not offend Articles 14 and 16 of the Constitution, but the giving of compassionate appointment is only an exception to the general rule and there should be check and balances and the appointments on compassionate ground have to be in accordance with the rules. The Apex Court further laid down that for giving effect to the compassionate appointment, it is necessary for the authorities to frame rules, regulations which can stand the test of Articles 14 and 16 of the Constitution. The observation made by the Apex Court in paragraph 6 of the judgment extracted below-
6. “It need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the ground that he was a dependent of the deceased employee. Strictly this claim cannot be upheld on the touchstone of Articles 14 and 16 of the Constitution. But this Court has upheld this claim 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.”
18. Thus the giving of compassionate appointments itself by the Government or authorities to the dependant of its employee does not offend Articles 14 and 16 of the Constitution and it is the scheme of particular Government or authority, which has to stand the test of Articles 14 and 16 of the Constitution. As noted above, the compassionate appointment is an exception to the general rule. The general rule of recruitment by giving equal opportunity to all eligible persons and the exception to the above rule of general recruitment has to remain as exception and cannot be given such magnitude that it may eat the rule itself. Any rule or scheme, thus, cannot annihilate the general rule of recruitment itself.
19. The conclusion is irresistible that the compassionate appointment itself cannot be held to be violative of Articles 14 and 16 of the Constitution.
20. The other reasons given by the learned Single Judge in Ram Pratap Singh’s case (supra) relate to misuse of rules of compassionate appointment, collusion and misdeeds committed by the government officers in giving compassionate appointment. The fact that any power given in the Statute is misused or the exercise of power is made arbitrarily or have improper object, does not make the Statute itself unconstitutional. Any improper exercise of power under the Statute, or arbitrary action taken by any functionary can always be scrutinized and corrected, but that itself does not make the Statute unconstitutional. Further, the question as to whether particular Government, Institution and Organization provides for compassionate appointment for its deceased employee’s dependant is a question of policy. It is well settled that no dependant of the deceased employee can claim appointment on compassionate ground without there being any rules or regulations. The compassionate appointment is an enabling provision empowering the proper legislature and employer to provide for compassionate appointment. It is open for the Government or other organization not to provide for compassionate appointment, if in any particular situation or circumstance, it is not possible or for any reason or it does not serve the object and purpose. But the rules or schemes for compassionate appointment cannot be held unconstitutional only on the ground that it provides a special procedure of recruitment of dependant of deceased employee.
21. In view of the foregoing discussions, with respect, we are unable to approve the observations of the learned Single Judge in Ram Pratap Singh ‘s case (supra){in paragraph 69 (ii)} that the Dying in Harness Rules do not stand the test of valid classification and are hit by Articles 14 and 16 of the Constitution of India, the above observations do not lay down the correct law.
22. The providing for compassionate appointment by Rules, Schemes or Regulations, itself is not violative of Articles 14 and 16 of the Constitution.
23. Coming back to the facts of this case, the learned Single Judge dismissed the writ, petition of the appellant-writ petitioner only on the ground that the claim of the appellant for compassionate appointment was rejected on 28.4.1987 and the relief has been sought after expiry of so many years. The learned counsel for the appellant has rightly submitted that the claim of the appellant was rejected only on 28.4.1997 and not on 28.4.1987. Learned counsel for the appellant further contended that the appellant has made several requests for supply of the order dated 28.4.1997, but the said copy was not supplied to him and due to above fact, certain time was taken in approaching this Court.
24. We are satisfied that the learned Single Judge has committed an error in dismissing the writ petition filed by the appellant-writ petitioner only on the ground that the claim of the appellant for compassionate appointment was rejected on 28.4.1987 and we set aside the impugned order dated 17.8.2005 and remit the writ petition back for a fresh consideration in accordance with law.
25. The sappeal is, accordingly, allowed. No order as to costs.