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Supreme Court of India
The State Of Uttar Pradesh vs Premlata on 5 October, 2021Author: M.R. Shah

Bench: M.R. Shah, A.S. Bopanna

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6003 OF 2021

THE STATE OF UTTAR PRADESH & ORS. ..APPELLANT(S)

VERSUS

PREMLATA ..RESPONDENT(S)

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 14.09.2018 passed by the High

Court of Judicature at Allahabad in Special Appeal Defective

(SAD) No.620 of 2018, by which the Division Bench of the

High Court has allowed the said appeal and quashed and set

aside the judgment and order dated 31.07.2018 passed by

the learned Single Judge and consequently has directed the

appellants – original respondents to consider the candidature

of the respondent herein – original appellant for appointment
Signature Not Verified

Digitally signed by R
Natarajan
Date: 2021.10.05
on compassionate ground in Grade­III service, the State of
16:49:56 IST
Reason:

U.P. has preferred the present appeal.

1
2. The facts leading to the present appeal in nutshell are as

under:­

2.1 That the deceased employee at the time of his death was

posted and serving as Messenger in Police Radio Department

of Uttar Pradesh (Class­IV) died on 07.11.2014. The

respondent herein being widow of the deceased – government

servant submitted an application dated 05.12.2014 for

appointment on the post of Assistant Operator in Police

Radio Department on compassionate ground which was

rejected on the ground that she is not fulfilling the requisite

eligibility criteria for the said post. That thereafter the

respondent submitted another application before the U.P.

Police Radio Headquarter, Lucknow for appointment on the

post of Workshop Hand on compassionate ground. However

as she failed to clear the physical fitness examination

conducted on 28.01.2018 for the selection of Workshop

employee, her application for appointment as Workshop

employee on compassionate ground came to be rejected. Due

to unsuccessful in the physical eligibility test on the post of

Workshop Hand/Workshop employee, vide letter dated

2
23.02.2018 of the Police Radio Headquarter, U.P., Lucknow,

the respondent herein was offered the post below the rank of

Workshop Hand i.e. Messenger in Radio Department. Instead

of accepting the said post the respondent filed the writ

petition before the High Court claiming the appointment on

the post of Workshop Hand (Karmshala Karmchari) in Police

Radio Department under the provisions of Dying­In­Harness

Rules 1974 (hereinafter referred to as the Rules 1974) on

compassionate ground and to direct the appellants to appoint

her on the post of Workshop Hand (Karmshala Karmchari) or

the post suitable for her in similar cadre.

2.2 By the judgment and order dated 31.07.2018, learned Single

Judge of the High Court dismissed the said writ petition on

the ground that as the deceased employee was Class­IV

employee and she has also been offered appointment on a

Class­IV post, she cannot claim the appointment on

compassionate ground on the post of Workshop Hand or on

any other suitable Class­III post.

2.3 Feeling aggrieved and dissatisfied with the judgment and

order passed by the learned Single Judge, the respondent
3
herein preferred the appeal before the Division Bench of the

High Court and by the impugned judgment and order the

Division Bench of the High Court has set aside the order

passed by the learned Single Judge and has allowed the

appeal and has directed the appellants to consider the

candidature of the respondent herein for appointment on

compassionate ground in Grade­III service and same be

accorded to her if she otherwise does not suffer any

ineligibility. By the impugned judgment and order the

Division Bench of the High Court has observed that a bare

perusal of Rule 5 of the Rules 1974 makes it crystal clear

that appointment under Rule 5 is required to be given on a

“suitable post” and the term ‘suitable’ in Rule 5 pertains to

suitability of the person who desires for appointment and it

has nothing to do with the post held by the deceased

government servant. The Division Bench also observed that

the suitability of the aspirant is required to be assessed on

the basis of the educational qualification and other

eligibilities so possessed by such person. The Division Bench

noted that in the case in hand, respondent is having the

qualification of Bachelors Degree in Arts as well as Bachelors

4
Degree in Education and therefore qualified for appointment

on a post in Grade­III.

3. Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the Division Bench of the High

Court, the State of U.P. and others have preferred the present

appeal.

4. Ms. Ruchira Goel, learned Advocate appearing on behalf of

the appellants has vehemently submitted that in the facts

and circumstances of the case, the Division Bench of the

High Court has misinterpreted the Rule 5 of the Rules 1974

by observing that the respondent shall be entitled to

appointment on compassionate ground on ‘suitable post’

considering the educational qualification and irrespective of

the fact that the deceased employee was working on Class­IV

post. It is submitted that the Division Bench of the High

Court has not properly appreciated the fact that the

appellant sought appointment on compassionate ground

which cannot be equated with regular post/regular

recruitment.

5
4.1 It is submitted that ‘suitable post’ is required to be linked to

the object and purpose of appointment on compassionate

ground.

4.2 It is submitted that the object and purpose of providing the

appointment on compassionate ground is to meet out the

difficulties created on account of sudden death of the sole

bread earner and cannot be equated with the regular

recruitment/appointment. It is further submitted that

‘suitable post’ is to be considered considering the post held

by deceased employee and it cannot be a higher post.

4.3 It is submitted that ‘suitable post’ mentioned in Rule 5 of

Rules 1974 has to be construed considering the educational

qualification of dependent vis­à­vis the post held by the

deceased employee.

4.4 It is submitted that in the present case earlier the respondent

applied for the post of Sub­Inspector for which the

respondent was not possessing the requisite qualification of

ITI. It is submitted that even subsequently when she applied

for the appointment on compassionate ground on the post of

Workshop Hand she did not clear the physical examination
6
test which was required to be cleared as per Uttar Pradesh

Radio Adhinasth Sewa Second Amendment Niyamawali,

2005. It is submitted that therefore the respondent was

offered next lower post i.e. Messenger, which the respondent

refused to accept.

4.5 It is submitted that even as per the Circular dated

24.11.2015, only one opportunity was required to be given

for appointment on any post to the dependent of the

deceased. It is submitted that in the present case, the

respondent failed to avail the opportunity twice.

4.6 It is submitted that the Division Bench of the High Court has

erred in holding that the ‘suitable post’ under Rule 5 of the

Rules 1974, would mean any post suitable to the

qualification of the candidates.

4.7 Making the above submissions, it is prayed to allow the

present appeal.

5. The present appeal is vehemently opposed by Shri Shashank

Singh, learned Advocate appearing on behalf of the

respondent. It is submitted that in the facts and

7
circumstances of the case, the Division Bench of the High

Court has rightly interpreted Rule 5 of the Rules 1974, would

mean any post suitable to the qualification of the candidate.

5.1 It is submitted that in the present case the Division Bench of

the High Court has not directed to appoint the respondent as

Workshop Hand, but has directed to consider the case on

any other suitable post as Grade­III looking to the

qualification of the respondent.

5.2 It is vehemently submitted that as such Circular dated

24.11.2015, issued by the DGP, Uttar Pradesh, granting only

one opportunity for appointment on compassionate ground

on any post to the dependent of the deceased, and in case

such dependent fails to avail the opportunity, such person

shall be offered appointment on any other lower rank within

a period of three months shall not be applicable to the facts

of the case on hand as the respondent applied prior to the

said circular. It is submitted that therefore the conditions in

the said circular in relation to grant of one opportunity shall

not be applicable to the respondent herein.

8
5.3 It is further submitted that while determining ‘suitability’

under the provisions of Rules 1974, Rule 5 of the said rules

laying down qualification requirements ought to be read

harmoniously with Rule 8 of the Rules 1974 that the

candidate ought to be able to maintain minimum standards

of work and efficiency.

5.4 It is submitted that a hyper­technical approach ought not to

be adopted in cases of compassionate appointments. It is

submitted that so far as the compassionate appointments are

concerned such appointments are exempted from the

requirements of ordinary/normal recruitment procedure.

5.5 It is further submitted that there is no bar for appointment of

a dependent at a higher post than was held by the deceased.

It is submitted that Rule 5 of Rules 1974 provides that the

appellant may be given a suitable employment in government

service on a post except the post within the purview of the

Uttar Pradesh Public Service Commission in relaxation of he

normal recruitment rules.

5.6 It is submitted that even the respondent ought not to be

denied the appointment as Workshop Hand on the ground

9
that the respondent failed to pass the physical test. It is

submitted that the suitability of a post may be determined on

the basis of educational qualification and/or other criteria. It

is submitted that it is true that as per the provisions of law

once a post is accepted on account of compassionate

appointment, no right may be claimed to further or later

apply for a higher post. It is submitted that however the facts

in the present case are peculiar. The specialized post of

Workshop Hand requires, in addition to requisite educational

qualification, a physical test also to be passed. It is

submitted that the respondent’s failure to pass the physical

test makes her ineligible for this particular post. However,

the post of Messenger being offered is disproportionate to her

educational qualifications. Therefore, the respondent may be

considered for an alternate or suitable post within Grade­III

wherein such specific recruitment of the physical test may

not be applicable as the down gradation of the post would

render her educational qualification futile.

5.7 Making the above submissions and relying upon the decision

of this court in case of Phoolwati (Smt) vs. Union of India and

10
Others reported in 1991 Supp (2) SCC 689, it is requested to

dismiss the present appeal.

6. Heard the learned counsel for the respective parties at

length.

7. The respondent’s husband was serving as Messenger (Class­

IV/Grade­IV post) in Police Radio Department. He died on

07.11.2014. The respondent­widow of the deceased –

government servant submitted an application on 05.02.2014

for appointment on the post of Assistant Operator which was

not considered as she was not fulfilling the requisite

eligibility criteria required for the post of Assistant Operator.

That thereafter she made an application for the appointment

on compassionate ground on the post of Workshop Hand

which is a Grade­III post on 19.02.2015. She was granted the

opportunity for appointment on said post, however, she could

not pass the physical eligibility test conducted for the said

post and thereby as a result of her failure in physical

eligibility test, she could not be granted the appointment on

the post of Workshop Hand on compassionate ground. Still

by order dated 23.02.2018, the respondent was offered the

11
post below the rank of Workshop Hand i.e. Messenger in

Radio Department, which she refused and the respondent

insisted that she must be appointed on the compassionate

ground on the post of Workshop Hand or equivalent post of

Grade­III looking to her educational qualification. The

learned Single Judge dismissed the writ petition. However,

the Division Bench by the impugned judgment and order has

directed to consider the case of the respondent for

appointment on compassionate ground on the post of

Workshop Hand or any equivalent post in Grade­III looking to

her qualification and on interpretation of Rule 5 that the

‘suitable post’ under Rule 5 of the Dying­in­Harness Rules

1974 would mean any post suitable to the qualification of the

candidate. The aforesaid is the subject matter of appeal

before this court.

8. While considering the issue involved in the present appeal,

the law laid down by this court on compassionate ground on

the death of the deceased employee are required to be

referred to and considered. In the recent decision this court

in Civil Appeal No.5122 of 2021 in the case of the Director of

12
Treasuries in Karnataka & Anr. vs. V. Somashree, had

occasion to consider the principle governing the grant of

appointment on compassionate ground. After referring to the

decision of this court in N.C. Santhosh vs. State of Karnataka

and Ors. reported in (2020) 7 SCC 617, this Court has

summarized the principle governing the grant of appointment

on compassionate ground as under:­

(i) that the compassionate appointment is an
exception to the general rule;
(ii) that no aspirant has a right to
compassionate appointment;
(iii) the appointment to any public post in the service
of the State has to be made on the
basis of the principle in accordance with
Articles 14 and 16 of the Constitution of India;
(iv) appointment on compassionate ground can
be made only on fulfilling the norms laid down by
the State’s policy and/or satisfaction of the
eligibility criteria as per the policy;
(v) the norms prevailing on the date of the
consideration of the application should be the
basis for consideration of claim for
compassionate appointment.

9. As per the law laid down by this court in catena of decisions

on the appointment on compassionate ground, for all the

government vacancies equal opportunity should be provided

to all aspirants as mandated under Article 14 and 16 of the

Constitution. However, appointment on compassionate

13
ground offered to a dependent of a deceased employee is an

exception to the said norms. The compassionate ground is a

concession and not a right.

9.1 In the case of State of Himachal Pradesh and Anr. vs.

Shashi Kumar reported in (2019) 3 SCC 653, this court had

an occasion to consider the object and purpose of

appointment on compassionate ground and considered

decision of this court in case of Govind Prakash Verma vs.

LIC reported in (2005) 10 SCC 289, in para 21 and 26, it is

observed and held as under:­

“21. The decision in Govind Prakash Verma [Govind
Prakash Verma v. LIC, (2005) 10 SCC 289, has been
considered subsequently in several decisions. But,
before we advert to those decisions, it is necessary to
note that the nature of compassionate appointment
had been considered by this Court in Umesh Kumar
Nagpal v. State of Haryana [Umesh Kumar
Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994
SCC (L&S) 930] . The principles which have been laid
down in Umesh Kumar Nagpal [Umesh Kumar
Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994
SCC (L&S) 930] have been subsequently followed in a
consistent line of precedents in this Court. These
principles are encapsulated in the following extract:
(Umesh Kumar Nagpal case [Umesh Kumar
Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994
SCC (L&S) 930] , SCC pp. 139­40, para 2)

“2. … As a rule, appointments in the
public services should be made strictly on the

14
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. The posts in Classes III and IV are the
lowest posts in non­manual and manual
categories and hence they alone can be offered
on compassionate grounds, the object being to
relieve the family, of the financial destitution
and to help it get over the emergency. The

15
provision of employment in such lowest posts
by making an exception to the rule is
justifiable and valid since it is not
discriminatory. The favourable treatment given
to such dependant of the deceased employee in
such posts has a rational nexus with the object
sought to be achieved viz. relief against
destitution. No other posts are expected or
required to be given by the public authorities
for the purpose. It must be remembered in this
connection that as against the destitute family
of the deceased there are millions of other
families which are equally, if not more
destitute. The exception to the rule made in
favour of the family of the deceased employee
is in consideration of the services rendered by
him and the legitimate expectations, and the
change in the status and affairs, of the family
engendered by the erstwhile employment
which are suddenly upturned.”

“26. The judgment of a Bench of two Judges
in Mumtaz Yunus Mulani v. State of
Maharashtra [Mumtaz Yunus Mulani v. State of
Maharashtra, (2008) 11 SCC 384 : (2008) 2 SCC
(L&S) 1077] has adopted the principle that
appointment on compassionate grounds is not a
source of recruitment, but a means to enable the
family of the deceased to get over a sudden financial
crisis. The financial position of the family would need
to be evaluated on the basis of the provisions
contained in the scheme. The decision in Govind
Prakash Verma [Govind Prakash Verma v. LIC, (2005)
10 SCC 289 : 2005 SCC (L&S) 590] has been duly
considered, but the Court observed that it did not
appear that the earlier binding precedents of this
Court have been taken note of in that case.”

10. Thus as per the law laid down by this court in the aforesaid

decisions, compassionate appointment is an exception to the
16
general rule of appointment in the public services and is in

favour of the dependents of a deceased dying in harness and

leaving his family in penury and without any means of

livelihood, and 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 such family a post much less a post held by the

deceased.

10.1 Applying the law laid down by this court in the aforesaid

decisions and considering the observations made

hereinabove and the object and purpose for which the

appointment on compassionate ground is provided, the

submissions on behalf of the respondent and the

interpretation by the Division Bench of the High Court on

Rule 5 of Rules 1974, is required to be considered.

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10.2 The Division Bench of the High Court in the present case has

interpreted Rule 5 of Rules 1974 and has held that ‘suitable

post’ under Rule 5 of the Rules 1974 would mean any post

suitable to the qualification of the candidate irrespective of

the post held by the deceased employee. The aforesaid

interpretation by the Division Bench of the High Court is just

opposite to the object and purpose of granting the

appointment on compassionate ground. ‘Suitable post’ has to

be considered, considering status/post held by the deceased

employee and the educational qualification/eligibility criteria

is required to be considered, considering the post held by the

deceased employee and the suitability of the post is required

to be considered vis a vis the post held by the deceased

employee, otherwise there shall be no difference/distinction

between the appointment on compassionate ground and the

regular appointment. In a given case it may happen that the

dependent of the deceased employee who has applied for

appointment on compassionate ground is having the

educational qualification of Class­II or Class­I post and the

deceased employee was working on the post of Class/Grade­

18
IV and/or lower than the post applied, in that case the

dependent/applicant cannot seek the appointment on

compassionate ground on the higher post than what was

held by the deceased employee as a matter of right, on the

ground that he/she is eligible fulfilling the eligibility criteria

of such higher post. The aforesaid shall be contrary to the

object and purpose of grant of appointment on

compassionate ground which as observed hereinabove is to

enable the family to tide over the sudden crisis on the death

of the bread earner. As observed above, appointment on

compassionate ground is provided out of pure humanitarian

consideration taking into consideration the fact that some

source of livelihood is provided and family would be able to

make both ends meet.

10.3 In the present case as observed hereinabove initially the

respondent applied for appointment on compassionate

ground on the post of Assistant Operator in Police Radio

Department. The same was not accepted by the Department

and rightly not accepted on the ground that she was not

fulfilling requisite eligibility criteria for the post of Assistant

19
Operator. Thereafter the respondent again applied for

appointment on the compassionate ground on the post of

Workshop Hand. The case of the respondent was considered,

however, she failed in the physical test examination, which

was required as per the relevant recruitment rules of 2005.

Therefore, thereafter she was offered appointment on

compassionate ground as Messenger which was equivalent to

the post held by the deceased employee. Therefore appellants

were justified in offering the appointment to the respondent

on the post of Messenger. However, the respondent refused

the appointment on such post.

11. In view of the above and for the reasons stated above, the

Division Bench of the High Court has misinterpreted and

misconstrued Rule 5 of the Rules 1974 and in observing and

holding that the ‘suitable post’ under Rule 5 of the Dying­In­

Harness Rules 1974 would mean any post suitable to the

qualification of the candidate and the appointment on

compassionate ground is to be offered considering the

educational qualification of the dependent. As observed

hereinabove such an interpretation would defeat the object

20
and purpose of appointment on compassionate ground.

12. In view of the above for the reasons stated above, present

appeal succeeds. The impugned judgment and order passed

by the Division Bench of the High Court dated 14.09.2018 in

Special Appeal Defective (SAD) No.620 of 2018 is hereby

quashed and set aside. Consequently the writ petition

preferred by the respondent before the learned Single Judge

being Writ Petition No.16009 of 2018 stands dismissed and

the order passed by the learned Single Judge dated

31.07.2018 dismissing the writ stands restored. No costs.

…………………………………J.
(M. R. SHAH)

…………………………………J.
(A. S. BOPANNA)

New Delhi,
October 05, 2021.

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