Hon'ble S.V.S. Rathore, J.
Heard learned Counsel for the petitioner and learned Standing Counsel.
Through the instant writ petition under Article 226 of the Constitution of India, the petitioner challenges the order dated 28.12.2010 passed by the Principal Secretary, Bal Vikas Sewa Evam Pushtahar, Lucknow (opposite party No.1) contained in Annexure No. 1 to the writ petition, whereby the petitioner's representation for promotion was rejected.
According to the petitioner, his father Sheo Pratap Singh, while working as Joint Director in ICDS, Lucknow, died on 28.11.2004 due to heart attack. Immediately thereafter, his mother preferred an application/representation to opposite party No.2-the Director, Bal Vikas Sewa Evam Pushtahar, Lucknow, requesting therein that her son i.e. petitioner be given appointment according to his qualification on compassionate ground under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 [hereinafter referred to as "1974 Rules"]. The Secretary, Government of U.P., vide letter dated 22.3.2006 directed the opposite party No. 2 to appoint the petitioner on Class III post.
Pursuant to the letter dated 22.3.2006, opposite party No.2 has passed an order dated 10.5.2006 for appointment of the petitioner on Class III post and informed the petitioner to join on the post of Class III. On receipt of the appointment letter dated 10.5.2006, petitioner approached the Director, Bal Vikas Sewa Evam Pustahar (opposite party No.2) and requested him that since he is a student of L.L.B. and very soon he is going to complete L.L.B. Course and his father was a PCS Officer and as such, he may be considered for appointment on Class II post according to his qualification but his request was rejected by the opposite party No.2 vide order dated 15.1.2009.
On receipt of the order dated 15.1.2009, petitioner preferred an application under Right to Information Act, wherein it was requested to give information how many PCS Officers died since 2001 and how many dependents of PCS officers, who were given appointments, to which the petitioner received information on 11.6.2009, by which, department has informed the petitioner that since 2001, 22 PCS officers died and out of 22, 9 dependents of the PCS Officers were appointed in the different departments. On perusal of the said information, petitioner came to know that total 9 dependents of the PCS Officers were appointed on Class II post. Thereafter, the petitioner has preferred a fresh representation, raising the above grievances, but no heed was paid and as such, petitioner approached this Court by filing writ petition No. 413 of 2010 (S/B). A co-ordinate Bench of this Court, vide order dated 7.4.2010, disposed of the writ petition by granting liberty to the petitioner to make a fresh representation, in addition to the pending one, with detailed facts before the authority concerned and the authority concerned was directed to consider and decide the same on merit.
In compliance of the order dated 7.4.2010, the State Government considered the petitioner's representation and rejected it vide order dated 28.12.2010. Feeling aggrieved, petitioner has preferred the instant writ petition under Article 226 of the Constitution of India, inter alia on the grounds that opposite party No. 1 erred in rejecting the claim of the petitioner for appointment on the post of Class II insofar as the opposite party No.1 while rejecting petitioner's claim ignored the judgment and order dated 7.4.2010 passed by this Court, wherein this Court directed to consider the petitioner's claim alike similarly situated candidates.
Learned Counsel for the petitioner submits that by the impugned order dated 28.12.2010, opposite party No.1 has rejected the claim of the petitioner on the ground that when he was given appointment on Class III post, petitioner did not raise any objection, which is totally wrong and erroneous insofar as when the petitioner came to know about the joining of the other similarly situated candidate on Class II post, he immediately approached the department and requested for his joining on Class II but the opposite parties never considered the case of the petitioner. He submits that though similarly situated persons were given appointment on Class II post on compassionate ground but the petitioner has been denied appointment on Class II post, which is in violation of Article 14, 16 and 21 of the Constitution.
Refuting the submissions advanced by the petitioner's counsel, learned Standing Counsel submits that in compliance of the order dated 5.7.2011 passed by this Court in the instant writ petition, an information from different departments were collected relating to compassionate appointments made on Class II posts and on perusal of the same, it reflects that these appointments on compassionate ground were made in the scale of Class II and outside the purview of Public Service Commission. He submits that no compassionate appointment has been made on Class II posts which are within the purview of the Uttar Pradesh Service Commission and as such, all such appointments are in consonance with the provisions of 1974 Rules. He further submits that vide Government Order dated 27.6.2012, it has been made clear that no compassionate appointment will be given on Class I and Class II posts. Thus, the petitioner's representation has rightly been rejected by the opposite party No.1 and the petition deserves to be dismissed.
Learned Standing Counsel has relied upon the judgments of the Supreme Court in Umesh Kumar Nagpal Vs. State of Haryana & Ors., 1994 (68) FLR 1191; State of Bihar & Ors. Vs. Samsuz Zoha, JT 1996 (6) S.C. 7; Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors., (1998) 5 SCC 192; State of U.P. & Ors. Vs. Paras Nath, (1998) 2 SCC 412; I.G. (Karmik) & Ors. Vs. Prahalad Mani Tripathi, (2007) 6 SCC 162, and General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi & Ors., (2009) 7 SCC 205. He submits that in all these decisions the Supreme Court has laid down the legal principles based on the purpose of giving compassionate appointment and has interpreted various rules including the Rules of 1974 regarding constitutionality and permissibility of such appointments. The rules of compassionate appointments are by way of exception to general rules and must be given strict interpretation.
In National Institute of Technology v. Niraj Kumar Singh, (2007) 2 SCC 481, the Supreme Court held :-
"14. Appointment on compassionate ground would be illegal in absence of any scheme providing therefor. Such scheme must be commensurate with the constitutional scheme of equality.
16.All public appointments must be in consonance with Article 16 of the Constitution of India. Exceptions carved out therefore are the cases where appointments are to be given to the widow or the dependent children of the employee who died in harness. Such an exception is carved out with a view to see that the family of the deceased employee who has died in harness does not become a destitute. No appointment, therefore, on compassionate ground can be granted to a person other than those for whose benefit the exception has been carved out. Other family members of the deceased employee would not derive any benefit thereunder."
In another case, namely, I.G. (Karmik) v. Prahalad Mani Tripathi, (2007) 6 SCC 162, the Apex Court held as under :-
"7. Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by 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 family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion."
The State Government has defended its decision to give compassionate appointment on Class-III post both on the interpretation of Rule 5 of the Rules of 1974, and also on the ground that there is no post in any cadre in Class-II within the purview of U.P. Public Service Commission. The petitioner has been offered appointment in Class III post on a vacant post. There is no such policy of the State Government to create post of Class II on temporary basis for compassionate appointment based on the post held by the deceased PCS Officer. There is no negative content in Article 14 and 16 of the Constitution of India and thus the Court should not issue writ of mandamus, for perpetrating illegality in the name of equality. Equal treatment is given amongst equals, and if there has been any breach of rules, the Court may not insist upon committing same breach all over again in offering public employment.
In Uttaranchal Jal Sansthan Vs. Laxmi Devi, (2009) 7 SCC 205 the Supreme Court held that equality cannot be applied, when it arises out of illegality. Art.14 carries with it positive effect.
In Chandigarh Administration Vs. Jagjit Singh, (1995) 1 SCC 745, the Supreme Court held in paragraph 8 as follows:-
"Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extra-ordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal / unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again. The illegal / unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition."
The ratio of the judgment in Chandigarh Administration (supra) was followed in Yadu Nandan Garg Vs. State of Rajasthan, (1996) 1 SCC 334; State of Haryana Vs. Ram Kumar Jain, (1997) 3 SCC 321; C.S.I.R. Vs. Dr. Ajai Kumar Jain, (2000) 4 SCC 186; and Narpat Singh Vs. Jaipur Development Authority, (2002) 4 SCC 666. The principle can be applied in a different way, by saying that two wrongs do not make one right. The Court should decide the cases on correct legal principles and not by multiplying illegality vide Anand Buttons Vs. State of Haryana, AIR 2005 SC 565 and Kastha Niwarak GSS Maryadit Indore Vs. President Indore Development Authority, AIR 2006 SC 1142.
It is not denied that the petitioner's mother is receiving family pension on the untimely and unfortunate death of her husband and she would thus receiving pension amount per month out of benefits given on the services rendered by her husband.
In order to decide the controversy, it would be apt to reproduce Rule 5 of the Rules of 1974, which are as under :-
"5. Recruitment of a member of the family of the deceased. - (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the 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 Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules, if such person-
(i)fulfils the educational qualifications prescribed for the post,
(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:
Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.
(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death."
The Rules of 1974 were framed by the State in terms of the proviso to Article 309 of the Constitution of India and provide for appointment on compassionate grounds in suitable employment in government service on the post except the post, which is within the purview of U.P. Public Service Commission, in relaxation to normal recruitment rules. Class-II post in the State Government are within the purview of U.P. Public Service Commission except those posts, which are created on temporary basis as Officers on Special Duty in the exigency of service.
In Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors. (Supra), the Supreme Court considered the orders passed by the High court by which directions were given to appoint the applicants, as dependents of the government servant dying in harness in the Education Department on Class-III post provided he possesses necessary qualifications for the post. The Supreme court held interpreting Regulations 101, 103, 104, 106, 107 and Regulation 105-A of Chapter III of the Regulations made under Section 16G of the U.P. Intermediate education Act that if vacancy in non-teaching cadre for the time being does not exist in any recognised aided institutions, then the appointment shall be made against the supernumerary non-teaching post of Class-IV category and such post shall be deemed to have been created for this purpose and be continued till a vacancy becomes available. It was held that object underlying the provision for grant of compassionate appointment is to enable the family of the deceased employee, to tide over sudden financial crisis resultant due to death of bread earner, which has left the family in penury and without any means of livelihood. Out of humanitarian consideration and having regard to the fact, that unless some source of livelihood is provided family would not be able to both ends meets, provisions are made for giving gainful employment to one of the dependent of the deceased, which may be eligible for such appointment. Such a provision makes a departure from the general provision providing for employment, after following particular procedure. The rule is in nature of exception to the general provision. An exception cannot subsume main provision to which its exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. The compassionate appointment should not entirely interfere with the right of the persons, who are eligible for appointment to seek employment against the post, which would have been available to them but for the provisions of the enabling appointments made on compassionate ground of the dependent of the deceased employee.
The rule of compassionate appointment has an object to give relief against destitution. It should not be treated as rule to give alternate employment or an employment commensurate with the post held by the deceased government servant. It is not by way of giving similarly placed life to the dependents of the deceased by creating a supernumerary or ex-cadre post. The object of giving compassionate appointment should not be lost while relaxing the rules.
In the same judgment in Pushpendra Kumar (Supra) the Supreme court held that there may be more meritorious person than the dependent of the deceased employee, who would be deprived of their right of being considered for such appointment and thus the appointment on Class-IV post by way of providing immediate relief should not be misunderstood to provide an employment with equal pay of the post, which was held by the deceased.
The appointment of a son of PCS Officer on the post of Class II on the ground that his qualifications justifies such appointment, would be a negation of the object and purpose of compassionate appointment. If such considerations are to be taken into account, the son of IPS Officer should be offered the post equivalent to IPS and that a son of Addl. District Judge should be given a similar post, if he/she possesses LLB degree. The rule cannot be stretched beyond its purpose, to violate Art.14 and 16 of the Constitution of India.
The illustrations given in representation of the petitioner are apparently illustrations of compassionate appointment given by stretching the rules beyond the object and purpose of enacting the rule of compassionate appointment. We do not have a case of any person, who was given appointment after the year 2001 on Class II. The circumstances in which the rules were relaxed, are not before us nor are we required to examine it. A comparison will neither serve rule of equality nor rule of equity. It is well known principle of law that two wrongs do not make one right and that illegal act should not be perpetrated in the name of serving the principle of equality. The equality is served of adhering to the rule of law, and not by violating rule of law.
The terminal benefits of father received by the petitioner's mother, and the family pension does not place him in such a financial distress, that the Court may consider to grant him an appointment equal to the post and status as per his qualification. We are not dealing with the case of providing maintenance but a case to provide immediate financial relief to a person, who has lost his father in unfortunate circumstances. The compassion in such case should not overreach the purpose for which the rule has been enacted.
The petitioner has been offered appointment on Class-III post in the pay scale of Rs.3050-75-3950-80-4590/-. From perusal of the records, it reflects that petitioner has not chosen to join on the post offered to him.
Before parting with the matter, we may observe that some of the appointments given by the State Government on compassionate grounds, on the post of Class II, to the dependents of the deceased PCS officers since 2001 have raised issues of equal treatment of the dependents in the matter of compassionate appointment. The appointments made selectively in respect of some of the dependents of the deceased PCS officers, for the reasons, which we have not found it proper to inquire are likely to raise issues of equality and will continue to cause apprehensions in the minds of similarly situate dependents of public servants. We thus find it appropriate and expect that the State Government will either amend the Rules of 1974, or to provide for guidelines in respect of such appointments. The State Government may consider to grant relaxations under such guidelines. The amendments of the rules or prescription of guidelines will put rest to apprehensions and speculations in such appointments and will avoid litigation. The State Government must demonstrate fairness and reasonableness in such matters.
For the reasons aforesaid, the writ petition is dismissed with liberty to the petitioner to join on the Class-III post offered to him. If due to lapse of time the offer has been withdrawn, the State Government will make the offer again to the petitioner, to join.
Order Date :- 27.8.2012 Virendra/-