Hon'ble Ajit Kumar,J.
(Delivered by Hon'ble Ajit Kumar,J.)
1. This intra Court appeal is directed against judgment dated 8th April, 2009 passed by learned Single Judge in Writ Petition No. 2412 of 2000 holding Office Memorandum (hereinafter referred to as "O.M.) dated 5th May, 2003 issued by Department of Personnel and Training Ministry Personnel Public Grievance and Pension, Government of India (hereinafter referred to as "DOPT") to be irrational, unreasonable and violative of Articles 14 and 16 of Constitution of India in so far as it laid down sealing of 3 years for offering compassionate appointment to the candidates and thus quashed order dated 5.10.2007 passed by Director, North Zone, Food Corporation of India (hereinafter referred to as "Director, F.C.I.") rejecting candidature of petitioners.
2. The arguments advanced by learned counsel for Appellant/ Corporation is that instructions contained in O.M. dated 5th May, 2003 of the DOPT by which one year sealing was raised to 3 years, is not to be termed arbitrary and unreasonable, irrational and violative of Articles 14 and 16 of Constitution of India for the reason that it is well within the domain of Employer to provide ceiling of time in matter of compassionate appointment. He further brought attention of Court to the O.M. dated 5th May, 2003 by which one year limit earlier prescribed for grant of compassionate appointment was enhanced taking into consideration that one year limit may result in depriving benefit to genuine cases. While enhancing ceiling limit, O.M. provides that in case of non availability of regular vacancies in a relevant year, Prescribed Committee will review such cases and evaluate financial conditions of family whether a particular case warrants extension by one more year and in that circumstances one more year period will be considered and candidature will be carried forward and in same way, next year scrutiny would be done.
3. Relevant O.M. Reads as under:
"The undersigned is directed to refer to Department of Personnel Training OM No. 14014/6/94-Estt (D) dated Oct. '9 1998 and OM No. 14014/ 23/99-Estt (D) dated Dec. '3, 1999 on the above subject and to say that the question of prescribing a time limit for making appointment on compassionate grounds has been examined in the light of representations received, stating that the one year limit prescribed for grant of compassionate appointment is often resulting in depriving genuine cases seeking compassionate appointments, on account of regular vacancies not being available, within the prescribed period of one year and within the prescribed ceiling of 5 % of direct recruitment quota.
It has, therefore, been decided that if compassionate appointment to genuine and deserving cases, as per the guidelines contained in the above Oms is not possible in the first year, due to non-availability of regular vacancy, the prescribed Committee may review such cases to evaluate the financial conditions of the family to arrive at a decision as to whether a particular case warrants extension by one more year, for consideration for compassionate appointment by the Committee, subject to availability of a clear vacancy within the prescribed 5 % quota. If on scrutiny by the Committee, a case is considered to be deserving, the name of such a person can be continued for consideration for one more year.
The maximum time a person's name can be kept under consideration for offering Compassionate Appointment will be three years, subject to the condition that the prescribed Committee has reviewed and certified the penurious condition of the applicant at the end of the first and the second year. After three years, if compassionate appointment is not possible to be offered to the Applicant, his case will be finally closed, and will not be considered again.
The instructions contained in the above mentioned Oms stand modified to the extent mentioned above.
The above decision may be brought to the notice if all concerned for information, guidance and necessary action."
4. Learned counsel for Appellant asserted that in view of rule that only 5 per cent of vacancies are reserved for making appointment in the category of compassionate appointment where bread-earner has died in harness, to the said 5 per cent has to be counted in the relevant year of compassionate appointment as claimed. It is further considered for the next year and then for third year. Argument is that as year passes on, there will be more genuine cases of families of employees who have died in harness and therefore, there has be some limit. The basic principle is that a family if has, already survived for 3 years, then that emergent need is gone. Moreover appointment under Dying in harness category is exception to general rule of appointment, in which all eligible candidates are entitled to complete availing right of equal opportunity of employment. An exception to general rule has to be read with object sought to be achieved. Object behind compassionate appointment is to meet urgent need of family of deceased on account of sudden and untimely death of bread-earner earning family is penurious. Since such appointments have to be adjusted only against 5 percent of vacancies available, to continue such candidates for a long period in a carry forward formula and to oust their candidates who have suffered loss of bread-earner of family recently, would defeat the very objective of this benefit.
5. We find that learned Single Judge though has referred to the judgment cited by counsel for Appellant-Corporation but has not considered the arguments raised in correct perspective in tune with the ratio laid down in the judgments cited. Court has recorded finding to the effect that Court will not ordinarily interfere with such policy of fixing time limit unless it is ex facie arbitrary and unreasonable. In interview maximum limit of 3 years, does not appear to be unreasonable considering objective of providing compassionate appointment hence we do not find ourselves in argument with the view taken by learned Single Judge.
6. We have gone through the O.M. and find, when a candidate is not offered appointment, his name is carried forward for next year since quota is only 5 percent for compassionate appointment out of direct recruitment quota. A fresh review of financial status of family is taken and then again, for next year same exercise is repeated. We find it difficult to convince ourselves with any such analogy that such exercise should continue till appointment is given. There has to have some ceiling at some point of time and we find that two reviews in case of a candidate are genuine, reasonable and if a candidate's financial status is found to be sound or that he has been denied appointment due to non availability of vacancy and has survived, then such candidate cannot be continued in the wait list for unlimited period or for longer than a reasonable period. What should be a reasonable period, it is for the Department or Employer to decide as a matter of policy. Considering entire policy of compassionate appointment in question we do not find any such thing which may be said to be vesting A, an arbitrary discretions. Court normally does not interfere with a policy decision unless probably it is arbitrary to hold that ceiling limit of three years provided/ prescribed by department concerned is unreasonable or arbitrary is difficult to accept. Whether offer of appointment in the category of compassionate appointment shall be carried forward for three years or more is well within the domain of policy making body of concerned Department /Corporation. Besides, we do not find circular/policy in any manner irrational.
7. Even otherwise, it is well settle law that Court shall not lightly interfere with any rule or law making process .
8. In Purushottam Govindji Halai v. Shre B.M. Desai, Additional Collector of Bombay & Others, AIR 1956 SC 20 Court held that duty of constitutional Courts is not to suggest what law should be. Court's duty is only to interprate law. Court referred to the authority of of U.S. Supreme Court in Middletone v. Texas Power and Light Company, (249 US152,157) " there is is strong presumption that a legislature understands and correctly appreciates the needs of its people, that its laws are directed to problems made manifest by experience and that its discrimination are based upon adequate grounds.
9. In Jal Mahal Resorts (P) Ltd. v. K.P. Sharma (2014) 8 SCC 804, Court observed that two overriding considerations narrow the scope of judicial review. The first is, deference to the views of administration experts and, other courts to desist itself from interference on technical matters, where all the advantages of expertise lie with the agencies concerned.
10. Similarly in P.U. Joshi v. Accountant General (2003) 2 SCC 632 , Court discarded judicial review of alteration and amendment in service rules or condition of service as outside scope of judicial review. Vide para 10 it held :
"We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
11. While discussing the scope of judicial review, Court in State of U.P. And Another v. Johri Mal 2004 SCC 714 spelled out principles governing the scope of judicial review as under:
"28. The Scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi judicial or administrative. The power of judicial review is not intended to assume a supervisory role or done the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review court.
The limited scope of judicial review succinctly put are :
(i) Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies;
(ii) A petition for a judicial review would lie only on certain well-defined grounds.
(iii) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal.
(iv) A mere wrong decision without anything more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a Court is limited to seeing that Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice.
(v) The Courts cannot be called upon to undertake the Government duties and functions. The Court shall not ordinarily interfere with a policy decision of the State. Social and economic belief of a Judge should not be invoked as a substitute for the judgment of the legislative bodies. (See Ira Munn Vs. State of Ellinois, 1876 (94) US (Supreme Reports) 113) In Wade's Administrative Law, 8th edition at pages 33-35, it is stated:
29. Review, Legality and discretion The system of judicial review is radically different from the system of appeals. When hearing an appeal the court is concerned with the merits of a decision: is it correct? When subjecting some administrative act or order to judicial review, the court is concerned with its legality: is it within the limits of the powers granted? On an appeal the question is 'right or wrong?' On review the question is 'lawful or unlawful?' Rights of appeal are always statutory. Judicial review, on the other hand, is the exercise of the court's inherent power to determine whether action is lawful or not and to award suitable relief. For this no statutory authority is necessary: the court is simply performing its ordinary functions in order to enforce the law. The basis of judicial review, therefore, is common law. This is none the less true because nearly all cases in administrative law arise under some Act of Parliament. Where the Court quashes an order made by a minister under some Act, it typically uses its common law power to declare that the Act did not entitle the minister to do what he did and that he was in some way exceeding or abusing his powers.
Judicial review thus is a fundamental mechanism for keeping public authorities within due bounds and for upholding the rule of law. Instead of substituting its own decision for that of some other body, as happens when on appeal, the court on review is concerned only with the question whether the act or order under attack should be allowed to stand or not. If the Home Secretary revokes a television licence unlawfully, the court may simply declare that the revocation is null and void. Should the case be one involving breach of duty rather than excess of power, the question will be whether the public authority should be ordered to make good a default. Refusal to issue a television licence to someone entitled to have one would be remedied by an order of the court requiring the issue of the licence. If administrative action is in excess of power (ultra vires), the court has only to quash it or declare it unlawful (these are in effect the same thing) and then no one need pay any attention to it. The minister or tribunal or other authority has in law done nothing, and must make a fresh decision."
12. We may point out that in Umesh Kumar Nagpal v. State of Haryana and Others (1994) 4 SCC 138, while considering object of compassionate appointment to enable family to come out of certain crisis occurred on account of death of bread-earner in harness, Court held that principle behind compassionate appointment is bad conditions of deceased family only. Since, it is an appointment against general rule of direct recruitment, caution and care has to be taken that only in genuine cases appointment should be offered, more especially in the circumstances when quota is only 5 percent to the vacancies available under direct recruitment category.
13. Again in State of Haryana, Electricity Board and Other v. Hakim Singh, (1997) 8 SCC 85, Court has held that compassionate appointment is a category of employment only to grant relief to the family from financial distress but such relief cannot be claimed as a right to appointment creating a quota by itself
14. Again in Director of Education (Secondary) and Another v. Pushpendra Kumar and Others, Court held that compassionate appointment rule is exception to the main provision, therefore, due care has to be taken that in the matters of grant of compassionate appointment it should not result in undue and unnecessary interference with right of other persons who are otherwise, eligible for a public employment. Considering object of compassionate appointment one of us (Sudhir Agarwal,J.) in Mohan Lal v. General Manager (Zone) FCI and, (2010) 1 UPLBEC 218 while considering similar scheme held that a claim of compassionate appointment continued for consideration, is older of three years. The court cannot allow the person claim compassionate appointment to be considered particular terms of scheme.
15. On the question of interference of Court regarding fixation of cut-off date and inference in the policy decision of Government and Department, settled legal position is that Courts are not to decide as to what should be cut-off date and as to what should be time limit for a particular benefit to be offered under a particular scheme.
16. We may consider it from this angle as well that O.M. which has been placed before us and which is quoted herein above, that department itself has been considerate enough in case of compassionate appointment by bringing in enhancement of time limit from one year to three years. In totality of scheme, we find that there is nothing wrong or arbitrary and irrational in the instructions as contained in the scheme.
17. In view of above, we set aside the judgment passed by learned Single Judge and dismiss writ petition.
18. Appeal is allowed. No cost Order Date :- 31.5.2018 Sanjeev