JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the petitioner and the standing counsel appearing for the respondents.
2. Civil Misc. Writ Petition No. 29068 of 2003, Raj Kumar Pundir v. State of U.P. and Ors. is being taken as the leading case.
3. These bunch of cases have been filed for appointment on compassionate ground under the U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974. The main relief sought in the writ petitions is for a direction in the nature of mandamus commanding the respondents to grant compassionate appointment to the petitioner as Sub-Inspector in the Civil Police within a period to be specified by this Court.
4. The facts in brief are that the petitioners are dependents of Police constables who died in harness. They are educationally and physically qualified for appointment to the post of Sub-Inspector. There is no difference in the qualification for the post of Constable and the Sub-Inspector. The petitioners being qualified applied for compassionate appointment on the post of Sub-Inspector and their claim for the aforesaid post was processed. However, an order is said to have been passed by the then Deputy Inspector General ( Establishment), U.P. Police Head Quarter, Allahabad Sri Banshi Lal to the effect that the dependent of a Constable/Head Constable would be considered for compassionate appointment only on the post of constable and consideration for compassionate appointment as Sub-Inspector would be limited to the dependents of Sub-Inspectors or the Officers . of higher rank who have died in harness. In view of the aforesaid decision taken by the then Deputy Inspector General of Police (Establishment) U.P. Police Headquarters, Allahabad orders were passed for compassionate appointment to the petitioners on the post of constables.
5. This action of the respondents is assailed on the ground that it is arbitrary, discriminatory and violative of Article 14 of the Costitution of India and is also contrary to the U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974 ( hereinafter called as the 1974 Rules).
6. Sri Ashok Khare, senior counsel appearing for the petitioner submits that the sole reason for classification of the petitioner for being appointed on basis of descent' as constable is wholly arbitrary and without any reasonable basis as appointments were to be offered depending upon the post held by the deceased employee. It is submitted that such a decision has no legal basis and the respondents can not discriminate in appointment on compassionate. He further submits that no such discrimination is contemplated under the 1974 Rules. Earlier the appointments were granted irrespective of the post held by the deceased employee and the appointment was granted to the dependent based upon his eligibility either for the post of constable or Sub-Inspector and that there exists no reasonable justification for grant of compassionate appointment only as a constable to the petitioners particularly when their applications were processed for appointment as Sub-Inspector.
7. At the time of admission this Court on 15.7.2003 had passed the following interim order:
"Connect and list with Writ Petition Nos. 21808 of 2003 and 23696 of 2003.
Petitioner has been offered compassionate appointment as constable. He however, claims that his appointment should have been considered for higher post, commensurate with his qualification.
Until further orders it is provided that petitioner may be permitted to join as constable, without any prejudice to his rights claimed in the writ petition."
Sd. Illegible ...(J) 15.7.2003"
8. It appears from record that subsequently this arbitrary policy being followed by the then D.I.G. ( Establishment) Police, Headquarter, Allahabad was brought to the knowledge of the Director General of Police, U.P., who by his order dated 20.9.2003 directed that appointment on compassionate grounds should be made strictly in accordance with the provisions of 1974 Rules as amended from time to time, depricating the policy of appointments adopted by the DIG ( Establishment) on the basis of 'descent'.
9. A supplementary affidavit has been filed by the petitioner annexing therewith a copy of the order dated 20.9.2003 passed by the Director General of Police, Headquarters U.P. Police., Luckow is as under:-
^^eq[;ky; iqfyl egkfuns'kd] mÙkj izns'k ua-&1 fryd ekxZ] y[kuÅ la[;k% [email protected] ¼52½91 fnukad% flrEcj 20] 2003 iqfyl mi egkfujh{kd ¼LFkkiuk½] m- iz- iqfyl eq[;ky;] bykgkcknA e`rd vkfJr dksVs ls lsok;kstu dk ykHk ikus gsrq ik=rk lwph esa vkus okys dbZ vHk;kfFkZ;ksa }kjk esjs laKku esa ;g rF; yk;k x;k gS fd Jh ca'kh yky ds iqfyl mi egkfujh{k ¼LFkkiuk½ ds dk;Zdky esa mUgksaus ,d ,slk fu;e cuk fn;k Fkk fd bl fu;ekoyh ds vUrxZr flikfg;ksa ds yM+dks dks flikgh ,oa mi fujh{kdksa ds yM+ds dks mi fujh{kd ds in ij fu;qfDr iznku dh tk;sxh tks fd loZFkk =qfViw.kZ gSA 2- vki d`i;k e`r ljdkjh lsodksa ds vkfJrksa dh HkrhZ fu;ekoyh 1974 ,oa mlesa gq;s mÙkjorhZ la'kks/kuksa dk HkyhHkkafr v/;;u dj rnuq:i gh e`rd iqfyl ljdkjh lsodksa ds vkfJrksa ds lsok;kstu lEcU/kh dk;ksZa dk fulrkj.k djsaA bl ckr dh HkyhHkkafr /;ku j[kk tk;s fd bl lEcU/k esa fu;eksa dk foospu u gksA ¼ch-ds-ch- uk;kj½ iqfyl egkfuns'kd mRrj izns'kA**
10. It is accepted to the State that the order dated 20.9.2003 above was issued by the Director General of Police, U.P. and the averments! of the supplementary affidavit are not denied.
11. Perusal of the aforesaid letter shows that the order passed by the then Deputy Inspector General of Police (Establishment), Police Headquarters, Allahabad was erroneous, arbitrary and without application of mind. Even otherwise, the policy adopted by the then Deputy Inspector General of Police ( Establisment), U.P. Police Headquarters, Allahabad was unconstitutional based on discrimination solely on the ground "Descent" which is contrary to the sprit enshrined in Articles 14 and 16 of the Constitution of India. Discrimination and classification by the Descent is prohibited under Article 13 of the Constitution of India.
12. In the case of Yogender Pal Singh and Ors. v. Union of India and Ors., (1987) 1 SCC-631 the Apex Court has held that: " Any preference shown in the matter of public employment on the grounds of descent only has to be declared as unconstitutional. While it may be permissible to appoint a person who is the son of a police officer who dies in service or who is incapacitated while rendering service in the Police Department, a provision which confers a preferential right to appointment in a Department on the descendants or other relatives of persons either in service in, or retired from, that Department merely because they happen to be the children or wards or other relatives of such persons would be contrary to Article 16 because that will result in discrimination to others as they do not happen to be the sons of such persons. Opportunity to get into public service should be extended to all the citizens equally."
13. In 1961 SC 564 Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and Ors. a Five Judges Constitution Bench of the Apex Court has held that the expression office under the State' in clauses (1) and (2) of Article 16 must be given its natural meaning. It further held that: "Article 14 enshrines the fundamental right of equality before the law or the equal protection of the laws within the territory of India. It is available to all, irrespective of whether the person claiming it is a citizen or not. Article 15 prohibits discrimination on some special grounds - religion, race, caste, sex, place of birth or any of them. It is available to citizens only, but is not restricted to any employment or office under the State. Article 16, Clause (1), guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State: and clause (2) prohibits discrimination on certain grounds in respect of any such employment or appointment. It would thus appear that, Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances. Article 15 is more general than Article 16, the latter being confined to matters relating to employment or appointment to any office under the State. It is also worthy of note that Article 15 does not mention 'descent' as one of the prohibited grounds of discrimination, whereas Article 16 does. We do not see any season why the full ambit of the fundamental right guaranteed by Article 16 in the matter of employment or appointment to any office under the State should be cut down by a reference to the provisions in part XIV of the Constitution which relate to Services or to provisions in the earlier Constitution Acts relating to the same subject. These Service provisions do not enshrine any fundamental right of citizens; they relate to recruitment, conditions and tenure of service of persons, citizens or otherwise, appointed to a Civil Service or to posts in connection with the affairs of the Union or any State. The word 'State', be it noted, has a different connotation in Part III relating to Fundamental Rights: it includes the Government and Parliament of India, the Government and Legislature of each of the States and all local or other authorities within the territory of India, etc. Therefore, the scope and ambit of the Service provisions are to a large extent distinct and different from the scope and ambit of fundamental right guaranteeing to all citizens an equality of opportunity in matters of public employment. The preamble to the Constitution state that one of its objects is to secure to all citizens equality of status and opportunity; Article 16 gives equality of opportunity in matters of public employment."
14. It appears from Annexure-3 to the supplementary affidavit that the cases of some of the writ petitioners who are dependents of constables who died in harness and had come before this Court were and are being considered by the . Respondents for appointment on the post of Sub-Inspector. It also appears from record that those petitioners who have not approached this Court and are the dependents of the constables who died in harness are being considered for the post of Sub-Inspector. This is also apparent from letter dated 20th September, 2003.
15. On a query being made by this Court, the standing counsel has informed this Court that they have received instructions that there is shortage of Sub-Inspector in the police department and a large number of vacancies of Sub-Inspector are lying vacant due to which difficulty is being faced in working by the department. On further query being made by this Court it has been informed that some of the dependents of the constables who died in harness and had filed writ petitions and have withdrawn their petitions their cases are being considered for the post of Sub Inspector and those dependents of constables who have not approached the Court are being considered for appointment on the post of Sub-Inspector. It is only the petitioners who have not withdrawn their cases and have approached the Court are being considered for the post of constables only pursuant to the policy of the. then DIG ( Establishment ) Headquarter, Allahabad. Thus discrimination in matter of public employment is writ large on the face of record which is also apparent from paragraphs 8,9,10, 12 and 13 of the supplementary affidavit.
16. In the counter affidavit the only defence taken is that the petitioners have no legal right to seek appointment on a particular post and they have been offered apppointment on the post of constables on compassionate ground in view of the Rules and Regulations. The averments made in paras 16 and 17 of the writ petition that the petitioner was subjected to the physical test for the post of Sub-Inspector and was found to be fully eligible for the said post have not been denied. It is not denied that the right from the initial stage the applications of the petitioners for appointment on compassionate ground were processed for the post of Sub-Inspector in the Civil police. The petitioners were also subjected to the physical test for the post of Sub-Inspector and were found to be fully eligible for the said post. It further appears from Annexure-5 to the supplementary affidavit that in the year 2001 and 2002 the dependents of the constables and Head constables have been given appointment as Sub-Inspector. The relevant details given therein are as under:
^^o"kZ 2001 ,oa 2002 es m- iz- iqfyl eq[;ky; }kjk lsokdky esa e`r ljdkjh lsodksa ds vkfJfrksa dks mifujh{kd ds in ij lsok;stu dk fooj.kA Ø-la-
vkfJr dk uke Lo-
[email protected] dk uke e`rd deZpkjh dk in e`R;q dk fnukad tuin fu;qfDr dk fnukad fu;qfDr dk in 1 2 3 4 5 6 7 8 1-
Jh NksVs yky xkSM+ Lo- 'kksHkkukFk xkSM+ Qkyksoj 22-198 tkSuiqj 19-1-2000 mifujh{kd uk- iq-
2-
Jh vfuy dqekj Lo- jkeohj flag dkaLVsfcy 3-7-2000 bVkok 3-9-2001 mifujh{kd uk- iq-
3-
Jh Hkk"djnso frokjh Lo- edj/ot frokjh gsM dkaLVsfcy 20-6-2000 vkte<+ 8-9-2001 mifujh{kd uk- iq-
4-
Jherh 'kSytk HknkSfj;k Lo- f'koohj flag dkaLVsfcy 22-2-1996 eSuiqjh 17-9-2001 mifujh{kd uk- iq-
5-
Jh lquhy dqekj Lo- vej flag gsM dkaLVsfcy 4-4-1998 thvkjih vkxjk 21-9-2001 mifujh{kd uk- iq-
6-
Jh iadt dqekj feJ Lo- losZ'k dqekj feJ dkaLVsfcy 30-12-1986 yfyriqj 30-9-2001 mifujh{kd uk- iq-
7-
Jh eukst dqekj Lo- jes'k pUnz dkaLVsfcy 19-12-2000 T;ksfrckQqys uxj 26-9-2001 mifujh{kd uk- iq-
8-
Jh 'ks"k dqekj 'kekZ Lo- iUuk yky 'kekZ dkaLVsfcy 15-9-1999 [khjh 3-9-20001 mifujh{kd uk- iq 9-
Jh jktk nqcs Lo- ';ke fcgkjh gsM dkaLVsfcy 2-3-2001 okjk.klh 21-9-2001 mifujh{kd uk- iq-
10-
Jh vt; dqekj flag Lo- mfnr ukjk;.k flag dkaLVsfcy 26-8-1999 jk;cjsyh 3-9-2001 mifujh{kd uk- iq-
11-
Jh lqcks/k dqekj rksej Lo- cychj flag dkaLVsfcy 30-3-2000 gkFkjl 21-9-2001 mifujh{kd uk- iq-
12-
Jh ftrsUnz izlkn Lo- enu yky 'kekZ mifujh{kd 5-8-2001 eqt~Q~Qjuxj 5-11-2001 ,o 1-12-2002 mifujh{kd uk- iq-
17. Thus it is established from the record that compassionate appointments have been granted to a large number of persons as Sub-Inspector despite the fact that their father were working as constables and Head constables at the time of their death. Even otherwise, the letter dated 20thSeptember, 2003, referred to above supports the case of the petitioners that the decision taken by the then Deputy Inspector General of Police (Establishment) U.P. Police Headquarters, Allahabad was incorrect and erroneous and there has been hostile discrimination with the petitioners in matter of public employment.
18. In view of the law laid down by the Apex Court as above and for the reasons given in this judgment the writ petition is allowed. The claim of the petitioner for the post of Sub-Inspector shall be considered by the respondents within a period of one month from the date of production of a certified copy of this order.
19. No order as to cost.