Punjab-Haryana High Court
Sudesh Kumari vs The State Of Punjab And Anr. on 25 February, 2004
Equivalent citations: (2004)137PLR581
Author: Surya Kant
Bench: Surya Kant
JUDGMENT Surya Kant, J.
1. The petitioner has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India to issue a writ in the nature of mandamus to command the respondents to consider her case for appointment as an Assistant (Redesignated as Senior Assistant) instead of as a Clerk on compassionate grounds, keeping in view her academic qualifications as well as the Government instructions dated April 18, 1973 (Annexure P3) and dated April 24, 1986 (Annexure P4).
2. Briefly the facts are that the petitioner passed her B.A. examination from the Punjab University in April, 1976 and thereafter she did her M.A. in History from the same university in April, 1980; father of the petitioner, namely late Shri Hari Mittar was working as a Class-I Officer in the Punjab Government in the rank of Secretary to the Minister; her father died while in service on January 15, 1983; the petitioner being dependent on her deceased father made a representation on February 15, 1983 to give employment to her on priority basis on compassionate grounds, keeping in view her educational qualifications and the fact as well that her father was holding a Class-I post at the time of his death; the petitioner, however, was offered the post of a Clerk vide letter dated April 8, 1983 (Annexure P5) though she was fully eligible for appointment as an Assistant; due to adverse family circumstances, as the family had lost the sole bread earner, the petitioner accepted the employment as a Clerk and she joined as such on April 18, 1983. However, immediately thereafter, the mother of the petitioner, Smt. Leela Wati, made a representation on August 16, 1983 requesting the respondents to appoint the petitioner as an Assistant (Redesignated as Senior Assistant) instead of a Clerk keeping in view the guidelines laid down by the State Government; the aforementioned representation was followed by another representation made by the petitioner on February 18, 1985 (Annexure P6) followed by further several reminders.
3. Meanwhile, on January 24, 1991, one Jaswinder Singh was appointed as Senior Assistant on compassionate grounds due to unfortunate demise of his father, namely, late Shri Mohinder Partap Singh, who was working as Superintendent (Class-II); the petitioner, therefore sent another reminder-cum-representation pointing out that she was discriminated in the matter of appointment as Assistant (Redesignated as Senior Assistant) in as much as if the academic qualifications possessed by both the dependants namely, the petitioner and Sh. Jaswinder Singh, were to be compared or if the status of their deceased father's were to be compared as also if the needs of the families and dependency upon the deceased employees were to be looked into, the petitioner had a superior and preferential claim for appointment as Senior Assistant instead of as a Clerk. The petitioner's representation, however, was rejected compelling her to approach this Court.
4. Upon notice, written statement has been filed on behalf of respondents No. 1 and 2. In para 6 of the written statement a stand has beer taken that the petitioner was offered the post of a Clerk pursuant to the policy decision, as for appointment to the post of an Assistant other than through a competitive test, namely, on priority basis on compassionate grounds, the incumbent was required to possess the academic qualification of Ist Class Graduation or Ist Class Matriculation if the Graduation is in IInd or IIIrd Class. Since the petitioner was not Ist Class Graduate, she was offered the post of a Clerk. This very stand has been reiterated in para 8 of the written statement, as reproduced be-low:-
"The petitioner was not considered for appointment as Assistant on compassionate grounds as per policy decision of the Government referred to in para 6 above. Only candidate in possession of degree of bachelor of Arts in Ist class were to be considered for the appointment as Assistant on compassionate grounds."
5. In paras 12 and 13 of the written statement, it was admitted that Shri Jaswinder Singh son of late Shri Mohinder Partap Singh, Superintendent, Grade-I was appointed as Assistant on compassionate grounds, but the petitioner's claim was rejected on April 18, 1991 as her case was not covered under the Government Policy at that time and also the fact that she accepted the post of Clerk offered to her:
6. The petitioner filed replication to the afore-mentioned written statement of respondents No 1 and 2 and in para 6 thereof, she took the following factual pleas:-
"The policy decision which the respondents are stressing that for appointment as Assistant on compassionate grounds, one should be B.A. Ist Class cannot over ride the statutory provisions of the said rules whereby B.A. in any division is the prescribed qualification and thus, the petitioner cannot be discriminated for appointment as Assistant on compassionate grounds. Even on 24.1.1991, one Jaswinder Singh being the dependent of deceased Mohinder Partap Singh, Superintendent, Grade-I (Class-II) had been appointed as Senior Assistant on compassionate grounds by the respondents, who passed his B.A. examination in IIIrd Division in the year 1989 from the Punjab University under Roll No. 70774 whereas the petitioner who possessed M.A. degree at the time of her appointment (8.4.1983) as Clerk has been illegally with mala fide intention was ignored for appointment as Assistant. Thus, the respondents have discriminated with the petitioner by ignoring her for appointment as Assistant on compassionate grounds."
7. The respondents preferred a rejoinder to the replication filed by the petitioner. In para 6 of the rejoinder the respondents took the following stand;-
"The appointment on compassionate grounds was a goodwill gesture for the bereaved family in relaxation of the recruitment procedure without notifying the vacancies to the Employment Exchange and it was not obligatory for the respondent to appoint the petitioner as Assistant on the basis of the petitioner's academic qualifications of Master of Arts, qualification of B.A. as provided in Rule 7 of the Punjab Civil Secretariat (State Service Class III) Rules, 1976 which is applicable for direct appointment as Assistant by competition. Appointments on compassionate grounds are regulated under the executive instructions. However, the qualifications prescribed under the Recruitment Rules ibid are the minimum qualifications. Administrative decision regarding making appointment of Assistants on compassionate grounds only from the persons having a minimum qualification of B.A. First Division which was taken in the month of February, 1983 was meant for the Civil Sectt. Office and was not required to be circulated to other Departments. With the acceptance of the offer of the post of Clerk by the petitioner, the compassion aspect of the petitioner ended and the bereaved family was helped at the time of need. Shri Jaswinder Singh was appointed as Assistant on compassionate ground in January, 1991 after a period of eight from the policy decision when the petitioner was appointed as Clerk in February, 1983 and her case can not be re-opened after a lapse of eight years."
8. From the pleadings of the parties, referred to above, it clearly emerges that the petitioner though was possessing the qualification of M.A. in History at the relevant time and the need of the family for immediate employment due to the loss of the sole bread earner was recognised and accepted by the respondents yet she was offered the post of a Clerk only on the premise that in terms of the prevailing Government policy, the post of Assistant, though available, could not be offered to her because neither she was Ist Class Graduate nor she was Ist Class matriculate alongwith Graduation. It is, however, also crystal clear that in the case of Shri Jaswinder Singh no such condition was insisted upon by the respondents and he despite being IIIrd Class Graduate was offered appointment as an Assistant (Redesignated as Senior Assistant). It is on this premise that learned counsel for the petitioner has contended that the petitioner was discriminated in the matter of grant of employment on compassionate grounds, therefore, the impugned action of the respondents does not stand to the test of Articles 14 and 16 of the Constitution of India. Shri K.K. Goel, Additional Advocate General, Punjab however, has opposed the claim of the petitioner on the ground that appointment under ex-gratia scheme is an exception to the mandatory requirement of recruitment through open competition required to be followed for public employment, therefore, such an employment cannot be claimed as a matter of right and having accepted the post of a clerk, it is too late for the petitioner to contend that she ought to have been offered the post of Assistant (Redesignated as Senior Assistant).
9. The parameters for seeking employment on compassionate grounds have been laid down by the Hon'ble Supreme Court in Umesh Kumar Nagpal v. State of Haryana and Ors., 1994(4) Supreme Court Cases 138. Their Lordships held that employment on compassionate grounds is required to be provided to the dependent 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 and taking into account the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, that gainful employment is provided to one of the dependents. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. Mere death of an employee in harness does not entitle his family to seek employment as the financial condition of the family of the deceased is required to be examined and if the family is not in a position to meet the crisis then only a post of Class III or Class IV alone can be offered on compassionate grounds. The Lordships laid emphasis on remembering that as against the destitute family of the deceased, there are millions of other families which are equally, if not more destitute. The exception of 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. Neither the qualifications of a dependent nor the post which the deceased employee held are relevant consideration for employment on compassionate grounds. The post is not offered to cater to his status, but to see the family through the economic calamity. Their Lordships further held that the compassionate employment cannot be granted after a lapse of a reasonable period as consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis, which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever be the lapse of time and after the crisis is over.
10. There can be no exception that while framing the policy for providing assistance to the dependent members of the family of a deceased employee, the State Government and Public Authorities are required to act fairly. The policy should be transparent and rational to achieve the object of tiding over the immediate crisis faced by the dependent family members of an employee dying in harness. Equally important is the fairness in implementation of such a policy. It cannot be left to the discretion whims and fancies of the authorities to act upon the policy decision either in an arbitrary manner or on pick and choose basis. In a given situation, where the posts are limited and applicants are more, it is imperative upon the State Government or other public authorities to consider the gravity of crisis faced by the family of the deceased employee, the element of dependency upon the deceased employee and the status and or legitimate expectations of dependent family members of such deceased employee. These factors would be only a few amongst the relevant factors to determine priority in the matter of employment of compassionate grounds. If the available limited posts are of different status, then the authorities are duty bound in law to take into consideration not only the afore-mentioned factors but also the academic qualifications so as to adjudge suitability of a dependent for the available vacant post. For example, if two posts, namely one of an Assistant and the other of a Clerk are available and if two dependents are short listed for immediate employment on priority basis and if one of them is Post Graduate and the other is a mere Matriculate, the authorities are expected to act in a fair and reasonable manner in offering the higher post qualifications and the lower post to the dependent possessing lesser qualification. Any deviation from such a just reasonable fair and equitable criteria is bound to introduce arbitrariness and the element of pick and choose. It would obviously militate against the philosophy of equality in public employment embodied in Article 14 and 16 of the Constitution of India. I am, therefore, of the considered view that the State Government or other public authorities cannot be permitted to act arbitrarily or for considerations other than the merit of individual dependents of the deceased employees in the matter of selecting out of such dependents as to which post should be offered to whom.
11. Applying the afore-mentioned principles to the facts and circumstances of the present case, there can be no doubt that the respondents acted arbitrarily in denying the appointment to the petitioner as an Assistant (Redesignated as Senior Assistant) through she was possessing Post Graduate qualification in History while offering the same post to Shri Jaswinder Singh who was a IIIrd Class Graduate. It is not the case of the respondents that there was no vacant post of Assistant when the case of the petitioner was considered for employment under the ex-gratia scheme. Rather it is the positive case that the she could not be appointed as an Assistant for want of academic qualifications of Ist Class Graduation or Ist Class Matriculation alongwith Graduation. This criteria, however, was given a go-bye when the case of Shri Jaswinder Singh was considered for appointment in somewhat similar circumstances and he was offered the post of Assistant (Redesignated as Senior Assistant). In my view, the petitioner was justified in complaining that she was discriminated in the matter of giving employment on compassionate grounds.
12. However, the question arises as to whether in the exercise of discretionary jurisdiction under Article 226 of the Constitution of India, the respondents should be directed or not to reconsider the claim of the petitioner for employment as Senior Assistant? The undisputed facts are that the father of the petitioner died in January, 1983. The petitioner was offered employment as a Clerk on compassionate grounds in April, 1983. The cause to make complaint of discrimination arose to the petitioner only in January, 1991 i.e., after a period of almost eight years when Shri Jaswinder Singh son of late Shri Mohinder Partap Singh was appointed as Senior Assistant though he was possessing lesser qualifications. Applying the principles laid down by their Lordships in Umesh Kumar Nagpal's case (supra), I am of the view that the situation of financial crisis faced by the family of the petitioner due to sudden demise of her father was tide over by offering her appointment as a Clerk, which she too accepted. By the time, in January, 1991 Shri Jaswinder Singh was appointed as an Assistant, the petitioner had already worked for almost eight years. By now, she has served in the department for more than 20 years with her original entry into service as a Clerk. In my view, it is too late to direct reconsideration of the claim of the petitioner at this belated stage at it will not only un-settle the settled seniority at different levels, namely, from the cadre of Clerk onwards, it might lead as well to reopening of several such cases.
13. For the reasons stated above, I am not inclined to issue any direction to the respondents to reconsider the claim of the petitioner for her appointment as Assistant (Redesignated as Senior Assistant) at this stage. The writ petition is, accordingly, dismissed.
No orders as to costs.