State of Gujarat & Ors. ..Appellants
Arvindkumar T. Tiwari & Anr. … Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the impugned judgment
and order dated 4.2.2008 passed in Letters Patent Appeal No.49/2008 by
the High Court of Gujarat at Ahmedabad.
2. Facts and circumstances giving rise to this appeal are as under:-
a) The father of respondent No.1 who was working in the Police
Department, State of Gujarat as the Assistant Sub-Inspector of Police,
died in harness on 9.4.1999. Immediately thereafter, respondent No.1
filed an application for employment on compassionate ground, for the
post of Peon. As he had completed his education only upto the 8th
standard, the said application was rejected vide order dated
13.10.2000, on the ground that the family of the deceased was not
suffering from any financial constraints and was getting an adequate
amount of pension, which was, in fact, over and above the income limit
fixed by the Government for this purpose. The said application was
considered by the Additional Director General of Police by way of
passing order dated 23.6.2003, directing that the application of
respondent No.1 be reconsidered, ignoring the abovementioned issue
regarding financial condition. The said application was rejected vide
order dated 3.7.2005, on the ground that the applicant did not meet the
minimum eligibility requirement for the said post, as he had not passed
the 10th standard, which was a necessary pre-requisite for the
consideration of the application of respondent No.1 for a Class IV post
on compassionate ground.
b) Aggrieved, respondent No.1 preferred Special Civil Application
No.5630/2007, which was disposed of vide judgment and order dated
2.3.2007, considering the fact that there was a subsequent notification
dated 16.3.2005, which provided for the minimum qualification
requirement of 10th standard pass, as the eligibility criteria for
employment to a Class IV post. However, it was held that, as the said
employee had died in the year 1999, the amended provision would not
apply to his case. Therefore, direction was issued to consider his case
without being influenced by the earlier order, in light of the new
c) Aggrieved, the said order was challenged before the Division
Bench, by the appellant, which was rejected vide impugned judgment and
order dated 4.2.2008. Hence, this appeal.
3. Shri Shomil Sanjanwala, learned counsel appearing for the State
of Gujarat, has submitted that the High Court erred in observing that
the new policy/rules do not apply retrospectively, and that the case of
respondent No.1 should be considered in light of the then existing
rules, i.e., the rules which were in force prior to 2005. Earlier,
employment on compassionate ground in the Department of Police was
governed by way of Circular dated 16.12.1991, which provided that
employment in Class III or Class IV posts, shall be accorded on
compassionate ground to deserving candidates on the basis of their
4. Mrs. Laxmi Arvind, learned Amicus Curiae, appearing for
respondent No.1 opposed the appeal, contending that the matter has been
considered by the court below in a correct perspective and does not
therefore, invite any interference. The father of the respondent died
on 9.4.1999, and a period of more than 13 years has lapsed since then.
The respondent has been unsuccessful in getting such employment, and
has now attained the age of 36 years simply waiting for the said job by
approaching one forum or the other, even though the purpose for which
compassionate employment was introduced, was to redeem the bereaved
family from financial constraints from which it is likely to suffer,
owing to the death of its sole bread earner, and thus, should be
accorded immediately. The court should, therefore, issue direction to
offer employment to the said post of peon, to respondent No.1 under all
circumstances on humanitarian grounds. The appeal lacks merit and is
liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
It is a settled legal proposition that compassionate
appointment cannot be claimed as a matter of right. It is not simply
another method of recruitment. A claim to be appointed on such a
ground, has to be considered in accordance with the rules, regulations
or administrative instructions governing the subject, taking into
consideration the financial condition of the family of the deceased.
Such a category of employment itself, is an exception to the
constitutional provisions contained in Articles 14 and 16, which
provide that there can be no discrimination in public employment. The
object of compassionate employment is to enable the family of the
deceased to overcome the sudden financial crisis it finds itself
facing, and not to confer any status upon it. (Vide: Union of India &
Ors. v. Shashank Goswami & Anr., AIR 2012 SC 2294).
6. The eligibility for the post may at times be misunderstood to
mean qualification. In fact, eligibility connotes the minimum criteria
for selection, that may be laid down by the executive
authority/legislature by way of any statute or rules, while the term
qualification, may connote any additional norms laid down by the
authorities. However, before a candidate is considered for a post or
even for admission to the institution, he must fulfill the eligibility
criteria. (Vide: Dr. Preeti Srivastava & Anr. v. State of M.P. & Ors.,
AIR 1999 SC 2894).
7. The appointing authority is competent to fix a higher score for
selection, than the one required to be attained for mere eligibility,
but by way of its natural corollary, it cannot be taken to mean that
eligibility/norms fixed by the statute or rules can be relaxed for this
purpose to the extent that, the same may be lower than the ones fixed
by the statute. In a particular case, where it is so required,
relaxation of even educational qualification(s) may be permissible,
provided that the rules empower the authority to relax such eligibility
in general, or with regard to an individual case or class of cases of
undue hardship. However, the said power should be exercised for
justifiable reasons and it must not be exercised arbitrarily, only to
favour an individual. The power to relax the recruitment rules or any
other rule made by the State Government/Authority is conferred upon the
Government/Authority to meet any emergent situation where injustice
might have been caused or, is likely to be caused to any person or
class of persons or, where the working of the said rules might have
become impossible. (Vide: State of Haryana v. Subhash Chandra Marwah &
Ors., AIR 1973 SC 2216; J.C. Yadav v. State of Haryana, AIR 1990 SC
857; and Ashok Kumar Uppal & Ors. v. State of J & K & Ors., AIR 1998 SC
8. The courts and tribunal do not have the power to issue
direction to make appointment by way of granting relaxation of
eligibility or in contravention thereof. In State of M.P. & Anr. v.
Dharam Bir, (1998) 6 SCC 165, this Court while dealing with a similar
issue rejected the plea of humanitarian grounds and held as under:
“The courts as also the tribunal have no power to override
the mandatory provisions of the Rules on sympathetic
consideration that a person, though not possessing the
essential educational qualifications, should be allowed to
continue on the post merely on the basis of his experience.
Such an order would amount to altering or amending the
statutory provisions made by the Government under Article
309 of the Constitution.”
9. Fixing eligibility for a particular post or even for admission
to a course falls within the exclusive domain of the
legislature/executive and cannot be the subject matter of judicial
review, unless found to be arbitrary, unreasonable or has been fixed
without keeping in mind the nature of service, for which appointments
are to be made, or has no rational nexus with the object(s) sought to
be achieved by the statute. Such eligibility can be changed even for
the purpose of promotion, unilaterally and the person seeking such
promotion cannot raise the grievance that he should be governed only by
the rules existing, when he joined service. In the matter of
appointments, the authority concerned has unfettered powers so far as
the procedural aspects are concerned, but it must meet the requirement
of eligibility etc. The court should therefore, refrain from
interfering, unless the appointments so made, or the rejection of a
candidature is found to have been done at the cost of ‘fair play’,
‘good conscious’ and ‘equity’. (Vide: State of J & K v. Shiv Ram Sharma
& Ors., AIR 1999 SC 2012; and Praveen Singh v. State of Punjab & Ors.,
(2000) 8 SCC 436).
10. In State of Orissa & Anr. v. Mamta Mohanty, (2011) 3 SCC 436,
this Court has held that any appointment made in contravention of the
statutory requirement i.e. eligibility, cannot be approved and once an
appointment is bad at its inception, the same cannot be preserved, or
protected, merely because a person has been employed for a long time.
11. A person who does not possess the requisite qualification
cannot even apply for recruitment for the reason that his appointment
would be contrary to the statutory rules is, and would therefore, be
void in law.
Lacking eligibility for the post cannot be cured at any stage
and appointing such a person would amount to serious illegibility and
not mere irregularity.
Such a person cannot approach the court for any relief for the
reason that he does not have a right which can be enforced through
court. (See: Prit Singh v. S.K. Mangal & Ors., 1993(1) SCC (Supp.)
714; and Pramod Kumar v. U.P. Secondary Education Services Commission &
Ors., AIR 2008 SC 1817).
12. The claim of the respondent was earlier rejected on the ground
that, the family had adequate financial status and the amount of
pension being given was actually over and above the limit fixed by the
appellant issuing the guidelines. Subsequently, when the case was
reconsidered upon the direction of the court, it was found that the
respondent did not meet the requisite eligibility criteria i.e., 10th
standard certificate. Admittedly, the respondent is 8th standard fail,
and thus, he can be considered only as 7th standard pass and we must
therefore consider, whether he could have been offered appointment to
a Class IV post.
13. Clause 9 thereof, provides that no relaxation in educational
qualification(s) for the purpose of giving compassionate appointment to
the dependant(s) of a deceased employee, would be permissible.
However, such relaxation can be granted if there exists some
requirement of minimum qualification(s) with respect to the said post.
Clause 11 thereof, provides that a dependant can, in fact, be
given appointment on compassionate ground, on the basis of the pass
marks obtained by him in the new Secondary School Certificate and in
view thereof, as respondent No.1 is admittedly only 8th standard
(fail), he is therefore, ineligible for the post.
Even otherwise, if the direction of the High Court is complied
with and the case is considered as per the un-amended provisions in
existence prior to 2005, the financial limits fixed therein, would
automatically be applicable. His application dated 11.5.1999 reveals
that his date of birth is 1.3.1976, and further that he has studied
only upto the 8th standard (fail).
14. In view of the above, we are of the considered opinion that
since 1991, the eligibility criteria for a Class IV post was set as,
the passing of the 10th standard, and as the said respondent had been
unable to pass even the 8th standard, he was most certainly, not
eligible to apply for the said post. In view of the law referred to
hereinabove, it is neither desirable, nor permissible in law, for this
court to issue direction to relax the said eligibility criteria and
appoint respondent No.1 merely on humanitarian grounds.
15. Thus, the question framed by this Court with respect to whether
the application for compassionate employment is to be considered as per
existing rules, or under the rules as existing on the date of death of
the employee, is not required to be considered.
16. In view of the above, the appeal succeeds and is allowed. The
judgment and order impugned herein is set aside. No order as to costs.
(Dr. B.S. CHAUHAN)
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
September 14, 2012.