# Iqbal Khan v. The State of U.P. & Ors

- **Citation:** (2022) 4 ILRA 714
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-01
- **Case number:** Special Appeal No. 148 of 2022
- **Bench:** Surya Prakash Kesarwani, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/iqbal-khan-v-the-state-of-u-p-ors-48302
- **Pages:** 13

## Headnote

A. Service Law - UP Recruitment of
Dependents
of
Government
Servants
Dying in Harness Rules, 1974 - Rule 5 -
Compassionate appointment - Object -
Appointment to the post of Lab Assistant
accepted
-
Claim
for
the
post
of
Pharmacist was made after four years on
the basis of qualification - Permissibility -
Held,
the
object
of
compassionate
appointment is to enable the family of the
deceased - employee to tied over the
sudden financial crisis due to death of the
bread earner which has left the family in
penury and without means of livelihood, it
is an exception to the normal rule of
public employment, it is a concession -
Compassionate Appointment cannot be
treated as a Bonanza - Principle laid down
by Apex Court in Premlata's case that 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, relied upon. (Para 14 and 21)
Special Appeal dismissed. (E-1)
List of Cases cited :-

## Text

_Characters 0–39,775 of 42,900. This is a partial read: ask again with offset=39775 for what follows._

714 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) Review is not maintainable
unless the material error, manifest on the
face
of
the
order,
undermines
its
soundness or results in miscarriage of
justice.

(v) A review is by no means an appeal
in disguise whereby an erroneous decision
is reheard and corrected but lies only for
patent error.

(vi) The mere possibility of two views
on the subject cannot be a ground for
review.

(vii) The error apparent on the face
of the record should not be an error which
has to be fished out and searched.

(viii) The appreciation of evidence on
record is fully within the domain of the
appellate court, it cannot be permitted to
be advanced in the review petition.

(ix) Review is not maintainable when
the same relief sought at the time of
arguing the main matter had been
negatived." (emphasis supplied)

13. In the case in hand, grounds for
review,
as
above,
and
the
review
application do not satisfy the contours of
entertaining the review petition, hence, we
find no reason to interfere with the well
reasoned order
of
this
Court dated
2.7.2019.

14.
This
review
application
is,
therefore, dismissed.
----------

(2022)04ILR A714
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.
Special Appeal No. 148 of 2022

Iqbal Khan ...Appellant
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Devesh Mishra, Sri Rishabh Kesarwani

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Recruitment of
Dependents
of
Government
Servants
Dying in Harness Rules, 1974 - Rule 5 -
Compassionate appointment - Object -
Appointment to the post of Lab Assistant
accepted
-
Claim
for
the
post
of
Pharmacist was made after four years on
the basis of qualification - Permissibility -
Held,
the
object
of
compassionate
appointment is to enable the family of the
deceased - employee to tied over the
sudden financial crisis due to death of the
bread earner which has left the family in
penury and without means of livelihood, it
is an exception to the normal rule of
public employment, it is a concession -
Compassionate Appointment cannot be
treated as a Bonanza - Principle laid down
by Apex Court in Premlata's case that 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, relied upon. (Para 14 and 21)
Special Appeal dismissed. (E-1)
List of Cases cited :-
1. Hamza Haji Vs St. of Kerala; 2006 (7) SCC
416
2. Shiv Kumar Dubey & ors. Vs St. of U.P. &
ors.; 2014(2) ADJ, 312
3. Civil Misc. Writ Petition No. 13102 of 2010;
U.O.I. Vs Smt. Asha Mishra decided on 7.5.2010
4. Civil Appeal No. 897 of 2021; Central
Coalfields
Ltd.
Through
its
Chairman
&
4 All. Iqbal Khan Vs. The State of U.P. & Ors.
715
Managing Director & ors. Vs Parden Oraon
decided on 09.04.2021
5. V. Sivamurthy Vs St. of A.P.; (2008) 13 SCC
730
6. Umesh Kumar Nagpal Vs St. of Har.; (1994) 4
SCC 138
7. Haryana SEB Vs Hakim Singh; (1997) 8 SCC
85
8. Director of Education (Secondary) Vs Ankur
Gupta; (2003) 7 SCC 704
9. F.C.I. Vs Ramkesh Yadav; (2007) 9 SCC 531
10. Indian Bank Vs Promila; (2020) 2 SCC 729
11. St. of U.P. Vs Pankaj Kumar Vishnoi; 2013
(11) SCC 178
12. N.C. Santosh Vs St. of Karnatka; (2020) 17
SCC 617
13. St. of H.P. Vs Shashi Kumar; (2019) 3 SCC
653
14. St. of Guj. Vs Arvind Kumar Tiwari; (2012) 9
SCC 545
15. MGB Gramin Bank Vs Chakrawarti Singh;
(2014) 13 SCC 583
16. U.O.I. Vs P. Venktesh; (2019) 15 SCC 613
17. U.O.I.Vs V. R. Tripathi; (2019) 14 SCC
646
18. PNB Vs Ashwini Kumar Taneja; (2004) 7
SCC 265
19. St. of Chhatisgarh & ors. Vs Dhirjo Kumar
Sengar; (2009) 13 SCC 600
20. Santosh Kumar Dubey Vs St. of U.P.; (2009)
6 SCC 481
21. Chief Commissioner, Central Excise &
Customs, Lucknow & ors. Vs Prabhat Singh;
(2012) 13 SCC 412
22. St. of U.P. Vs Pankaj Kumar Vishnoi;
2013(11) SCC 178
23. SAIL Vs Madhusudan; (2008) 15 SCC 560
24. SBI Vs Surya N. Tripathi; (2014) 15 SCC
739
25. General Manager (D & PB) & ors. Vs Kunti
Tiwary and other; (2004)7 SCC 271
26. U.O.I. Vs Shashank Goswami; (2012) 11
SCC 307
27. Pepsu Road Transport Corporation Vs
Satinder Kumar; 1995 Supp. (4) SCC 597
28. St. of Madhya Pradesh & ors. Vs Ramesh
Kumar Sharma; (1994) Supp.(3) SCC 661
29. Civil Appeal No. 5122 of 2021; The Director
of
Treasuries
in
Karnataka
&
anr.
Vs
Somyashree, decided on 13.09.2021
30. Civil Appeal No. 6003 of 2021; The St. of
U.P.& ors. Vs Premlata decided on 05.10.2021
31. Special Appeal No. 1601 of 2012; Navendra
Kumar Upadhyay Vs St. of U.P. & ors. decided
on 22.10.2021

(Delivered by Hon'ble Surya Prakash
Kesarwani, J. & Hon'ble Jayant Banerji, J.)

1. Heard Sri Devesh Misra learned
counsel for the appellant and Sri B.P. Singh
Kachhawah, learned standing counsel for
the State respondents.

Facts

2. This Special Appeal has been filed
praying to set aside the judgment and order
dated 18.07.2019, passed by the learned
Single Judge in WRIT - A No. - 9064 of
2019 (Iqbal Khan Vs. State Of U.P. And 2
Others).

3. The impugned judgment and order
dated 18.7.2019, passed by the learned
Single Judge is reproduced below :-

"Petitioner
had
applied
for
compassionate appointment, consequent
upon death of his father. An order was
passed
on
14.5.2015,
declining
appointment on the post of Pharmacist and
offering him appointment on the post of
Lab Attendant or any other post for which
petitioner possess requisite qualification.
716 INDIAN LAW REPORTS ALLAHABAD SERIES
Pursuant to this direction, petitioner
applied for the post of Lab Attendant and
has
been
offered
appointment
also.
Petitioner has been working since July,
2015. He has now approached this Court
with the grievance that qualification for the
post of Pharmacist had been amended and
that amended rule had not been taken note
of as per which he is eligible for
appointment to the post of Pharmacist.

Learned
Standing
Counsel
has
obtained instructions, according to which,
appointment on the post of Pharmacist is to
be made through U.P. Subordinate Service
Selection Commission and, therefore, in
view of the provision contained in Rule 5
read with rule 3 of the U.P. Recruitment of
Dependants of Government Servants Dying
in
Harness
Rules,
1974
(hereinafter
referred to as the 'Rules of 1974'), no
compassionate appointment can be granted
on such post. It is stated that the vacancies
have otherwise been notified on the post of
Pharmacist to the Selection Commission.

Rules of 1974 clearly provides that
appointment can be offered only on a post
for which recruitment is not required to be
undertaken by the U.P. Subordinate Service
Selection Commission.

Since post of Pharmacist is earmarked
to the Commission for recruitment, the
petitioner's claim for compassionate on it
cannot be considered. The petitioner has
been appointed on the post of Lab
Attendant in July, 2015, and therefore, he
has
otherwise
acquiesced
to
his
appointment on the said post. There is no
challenge laid to the order declining
petitioner's
claim
on
the
post
of
Pharmacist. In that view of the matter, no
relief can be granted to the petitioner. The
writ petition is dismissed."

4. It is admitted to the petitioner that
compassionate appointment was offered to
him on 14.05.2019 and he accepted the
offer and joined on the post of Lab
Attendant. After about four years he filed
the aforesaid writ petition claiming that he
has the qualification for the post of
Pharmacist and, therefore, a mandamus
may be issued to the respondents to give
appointment/absorb the petitioner on the
post of Pharmacist in place of the post of
Lab
Attendant
considering
his
qualification.

5. The aforesaid contention of the
petitioner has been rejected by the
impugned judgment and order passed by
the learned single Judge on two grounds
firstly the appointment on the post of
Pharmacist is to be made through U.P.
Subordinate
Service
Selection
Commission which has been notified by
the
Commission
for
selection
and
secondly, the petitioner has otherwise
acquiesced to his appointment on the post
of Lab Attendant.

6. Aggrieved with the aforesaid
judgment passed by the learned Single
Judge, the appellant has filed the present
appeal.

Submissions

7. Learned counsel for the petitioner
submits that as per Rule 5 of the U.P.
Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974
(hereinafter referred to as the 'Rules 1974')
the appointment has to be given by the
employer
in
accordance
with
the
qualification of the candidate applying for
compassionate appointment under Rules
1974. He further submits that even if the
petitioner has accepted the appointment on
the post of Lab Attendant under the Rules
1974 yet his claim for the post of
4 All. Iqbal Khan Vs. The State of U.P. & Ors.
717
Pharmacist on the basis of qualification,
can not be denied by the respondents.

8. Learned standing counsel supports
the impugned judgment.

Discussion & Findings

9. We have carefully considered the
submissions of learned counsels for the
parties and perused the records of the writ
petition.

Object
and
principles
of
Compassionate Appointment:-

10. The Apex Court in the case of
Hamza Haji vs. State of Kerala reported in
2006 (7) SCC 416 in paragraphs 28 and 29
has observed as under: -

"In Hip Foong Hong vs. H. Neotia and
Company (1918 Appeal Cases 888) the
Privy Council held that if a judgment is
affected by fraudulent conduct it must be
set aside. In Rex vs. Recorder of Leicester
(1947 (1) K B 726) it was held that a
certiorari would lie to quash a judgment on
the ground that it has been obtained by
fraud. The basic principle obviously is that
a party who had secured a judgment by
fraud should not be enabled to enjoy the
fruits thereof. In this situation, the High
Court in this case, could have clearly either
quashed the decision of the Forest Tribunal
in OA No.247 of 1979 or could have set
aside its own judgment in MFA No.328 of
1981 dismissing the appeal from the
decision of the Forest Tribunal at the stage
of admission and vacated the order of the
Forest Tribunal by allowing that appeal or
could have exercised its jurisdiction as a
court of record by invoking Article 215 of
the Constitution to set at naught the
decision obtained by the appellant by
playing a fraud on the Forest Tribunal. The
High Court has chosen to exercise its
power as a court of record to nullify a
decision procured by the appellant by
playing a fraud on the court. We see no
objection to the course adopted by the High
Court even assuming that we are inclined to
exercise our jurisdiction under Article 136
of the Constitution of India at the behest of
the appellant."

11. A Full Bench of this Court in the
case of Shiv Kumar Dubey and others vs.
State of U.P. and others, 2014(2) ADJ,
312 (Para 29), considered various aspects
relating to compassionate appointment and
held as under :-

"We now proceed to formulate the
principles
which
must
govern
compassionate appointment in pursuance
of Dying in Harness Rules:

(i) A provision for compassionate
appointment is an exception to the
principle that there must be an equality of
opportunity
in
matters
of
public
employment.
The
exception
to
be
constitutionally valid has to be carefully
structured and implemented in order to
confine compassionate appointment to
only those situations which subserve the
basic object and purpose which is sought
to be achieved;

(ii) There is no general or vested
right
to
compassionate
appointment.
Compassionate
appointment
can
be
claimed only where a scheme or rules
provide for such appointment. Where such
a provision is made in an administrative
scheme or statutory rules, compassionate
appointment must fall strictly within the
scheme or, as the case may be, the rules;

(iii) The object and purpose of
providing compassionate appointment is
to enable the dependent members of the
718 INDIAN LAW REPORTS ALLAHABAD SERIES
family of a deceased employee to tide over
the immediate financial crisis caused by
the death of the bread-earner;

(iv) In determining as to whether the
family is in financial crisis, all relevant
aspects must be borne in mind including
the income of the family; its liabilities, the
terminal benefits received by the family;
the age, dependency and marital status of
its members, together with the income
from any other sources of employment;

(v) Where a long lapse of time has
occurred since the date of death of the
deceased
employee,
the
sense
of
immediacy for seeking compassionate
appointment would cease to exist and this
would be a relevant circumstance which
must
weigh
with
the authorities
in
determining as to whether a case for the
grant of compassionate appointment has
been made out;

(vi) Rule 5 mandates that ordinarily,
an
application
for
compassionate
appointment must be made within five
years of the date of death of the deceased
employee. The power conferred by the first
proviso is a discretion to relax the period
in a case of undue hardship and for
dealing with the case in a just and
equitable manner;

(vii) The burden lies on the applicant,
where there is a delay in making an
application within the period of five years
to establish a case on the basis of reasons
and
a
justification
supported
by
documentary and other evidence. It is for
the State Government after considering all
the facts to take an appropriate decision.
The power to relax is in the nature of an
exception and is conditioned by the
existence of objective considerations to the
satisfaction of the government;

(viii) Provisions for the grant of
compassionate
appointment
do
not
constitute a reservation of a post in
favour of a member of the family of the
deceased employee. Hence, there is no
general right which can be asserted to
the effect that a member of the family
who was a minor at the time of death
would be entitled to claim compassionate
appointment upon attaining majority.
Where the rules provide for a period of
time within which an application has to
be made, the operation of the rule is not
suspended during the minority of a
member of the family." (Emphasis supplied
by us)

12. In Civil Misc. Writ Petition No.
13102 of 2010, Union of India Vs. Smt.
Asha Mishra, decided on 7.5.2010, a
Division Bench of this Court has observed
as under: -

"The principles of consideration for
compassionate appointment have been
firmly settled and have been reiterated
from
time
to
time.
Compassionate
appointment is not a vested right or an
alternate mode of employment. It has to be
considered and granted under the relevant
rules.
The
object
of
compassionate
appointment is to tide over an immediate
financial crisis. It is not a heritable right
to be considered after an unreasonable
period, for the vacancies cannot be held up
for long and that appointment should not
ordinarily await the attainment of majority.
Where the family has survived for long, its
circumstances must be seen before the
competent authority may consider such
appointment. It is not to be ordinarily
granted, where a person died close to his
retirement. The Court, however, has
emphasised time to time and more
authoritatively in National Institute of
Technology Vs. Neeraj Kumar Singh,
(2007) 2 SCC 481 that such appointment
can be granted only under a scheme. It
4 All. Iqbal Khan Vs. The State of U.P. & Ors.
719
should not be considered after a long
lapse of time."

13. The judgment in the case of Smt.
Asha Mishra (supra) has also been taken
notice by the Full Bench of this Court in
Shiv Kumar Dubey (supra) reiterating the
legal principles so mandated therein.
Recently, the Apex Court in Civil Appeal
No. 897 of 2021, in the matter of Central
Coalfields Limited Through its Chairman
an Managing Director and Ors. Vs.
Parden Oraon decided on 09.04.2021, in
paragraph 9 has observed as under:-

"9.
...
The
application
for
compassionate appointment of the son was
filed by the Respondent in the year 2013
which is more than 10 years after the
Respondent's husband had gone missing.
As
the
object
of
compassionate
appointment is for providing immediate
succour to the family of a deceased
employee, the Respondent's son is not
entitled for compassionate appointment
after the passage of a long period of time
since his father has gone missing."

14. The object of compassionate
appointment is to enable the family of the
deceased - employee to tied over the sudden
financial crisis due to death of the bread
earner which has left the family in penury
and without means of livelihood, it is an
exception to the normal rule of public
employment, it is a concession; vide; V.
Sivamurthy vs. State of A.P., (2008) 13
SCC 730 (Paras 13-18), Umesh Kumar
Nagpal vs. State of Haryana, (1994) 4 SCC
138 (Para-2), Haryana SEB vs. Hakim
Singh, (1997) 8 SCC 85 at 87, Director of
Education (Secondary) vs. Ankur Gupta,
(2003)
7
SCC
704
(Para-6),
Food
Corporation of India vs. Ramkesh Yadav,
(2007) 9 SCC 531 (Para.9), Indian Bank
vs. Promila, (2020) 2 SCC 729, State of
U.P. vs. Pankaj Kumar Vishnoi, 2013 (11)
SCC 178 (Paras 11-15), N.C. Santosh vs.
State of Karnatka (2020) 17 SCC 617
(Para 18), State of H.P. vs. Shashi Kumar,
(2019) 3 SCC 653 (Para 18), State of
Gujarat vs. Arvind Kumar Tiwari, (2012)
9 SCC 545 (Para-8), MGB Gramin Bank
V. Chakrawarti Singh (2014) 13 SCC 583
(Para 6-9), Union of India vs. P. Venktesh
(2019) 15 SCC 613 (Para.7), Union of India
vs. V. R. Tripathi, (2019) 14 SCC 646
(Para 13). The basic intention to grant
compassionate appointment is that on the
death of the employee concern his family is
not deprived of the means of livelihood vide
PNB Vs. Ashwini Kumar Taneja, (2004) 7
SCC 265 (para 4). It can not be claimed by
way
of
inheritance
vide
State
of
Chhatisgarh & others Vs. Dhirjo Kumar
Sengar (2009) 13 SCC 600 (para 10 and
12). In Santosh Kumar Dubey Vs. State of
U.P., (2009) 6 SCC 481 (para 11 & 12), the
Apex Court held that Compassionate
Appointment can not be treated as a
Bonanza.

15. In Chief Commissioner, Central
Excise & Customs, Lucknow & others Vs.
Prabhat Singh (2012) 13 SCC 412 (para
19), Hon'ble Supreme Court has held that it is
not disbursement of gift. It is not sympathy
syndrome. In State of U.P. Vs. Pankaj
Kumar Vishnoi 2013(11) SCC 178 (paras
7,12,13 & 20). The Apex Court held that it is
meant to provide minimum relief for
meeting immediate hardship to save the
bereaved family from sudden crisis due to
death of sole bread winner. Similar view has
been expressed in SAIL Vs. Madhusudan
(2008) 15 SCC 560 (para 15) and SBI Vs.
Anju Jain (2008) 8SCC 475 (Para 33).

16. In SBI Vs. Surya N. Tripathi,
(2014) 15 SCC 739 (paras 4,9), the Apex
720 INDIAN LAW REPORTS ALLAHABAD SERIES
Court held that if employer finds that
Financial Arrangement made for family
subsequent to death of the employee is
adequate members of the family can not
insist for compassionate appointment.

17. In General Manager (D & PB)
and others Vs. Kunti Tiwary and other
(2004)7 SCC 271 (Para 9), Hon'ble
Supreme Court held that the Division
Bench erred in diluting the criteria of
penury to one of "not very well-to-do.

18. In Union of India Vs. Shashank
Goswami, (2012) 11 SCC 307 (Paras 9,
10) the Apex Court held that an applicant
has no right to claim compassionate
appointment in a particular class or
group. It is not for conferring status on
the family. In Pepsu Road Transport
Corporation Vs. Satinder Kumar, 1995
Supp. (4) SCC 597 (Para 6) the Apex
Court
held
that
while
minimum
qualification
for
eligibility
may
be
matriculation, generally graduate and even
post graduate decree holders respond and
offer themselves for clerical appointments.
Courts can not ignore this fact and direct
that possession of minimum qualification
alone would be sufficient.

19. In State of Madhya Pradesh &
others VS. Ramesh Kumar Sharma
(1994) Supp.(3) SCC 661, the Apex Court
held that a candidate for compassionate
appointment has no right to any
particular post of choice. He can only
claim to be considered.

20. In the case of The Director of
Treasuries in Karnataka & Anr. vs.
Somyashree, in Civil Appeal No.5122 of
2021, decided on 13.09.2021, Hon'ble
Supreme Court reiterated the object and
principles of compassionate appointment,
as under:

"7. While considering the submissions
made on behalf of the rival parties a recent
decision of this Court in the case of N.C.
Santhosh (Supra) on the appointment on
compassionate ground is required to be
referred to. After considering catena of
decisions of this Court on appointment on
compassionate grounds it is observed and
held that appointment to any public post in
the service of the State has to be made on
the basis of principles in accordance with
Articles 14 and 16 of the Constitution of
India and the compassionate appointment
is an exception to the general rule. It is
further observed that the dependent of the
deceased Government employee are made
eligible by virtue of the policy on
compassionate appointment and they must
fulfill the norms laid down by the State's
policy. It is further observed and held that
the norms prevailing on the date of the
consideration of the application should be
the basis for consideration of claim of
compassionate appointment. A dependent
of a government employee, in the absence
of any vested right accruing on the death of
the government employee, can only demand
consideration of his/her application. It is
further observed he/she is, however,
entitled
to
seek
consideration
in
accordance with the norms as applicable
on the day of death of the Government
employee. The law laid down by this Court
in the aforesaid decision on grant of
appointment on compassionate ground can
be summarized as under:

(i)
that
the
compassionate
appointment is an exception to the general
rule;

(ii) that no aspirant has a right to
compassionate appointment;
4 All. Iqbal Khan Vs. The State of U.P. & Ors.
721

(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.

8.............
8.1...........
8.2 Apart from the above one additional
aspect needs to be noticed, which the High
Court has failed to consider. It is to be
noted that the deceased employee died on
25.03.2012. The respondent herein -
original writ petitioner at that time was a
married daughter. Her marriage was
subsisting on the date of the death of the
deceased i.e. on 25.03.2012. Immediately
on the death of the deceased employee, the
respondent
initiated
the
divorced
proceedings under Section 13B of the
Hindu Marriage Act, 1955 on 12.09.2012
for decree of divorce by mutual consent. By
Judgment dated 20.03.2013, the Learned
Principal Civil Judge, Mandya granted the
decree of divorce by mutual consent. That
immediately on the very next day i.e. on
21.03.2013, the respondent herein on the
basis of the decree of divorce by mutual
consent
applied
for
appointment
on
compassionate ground. The aforesaid
chronology of dates and events would
suggest that only for the purpose of
getting appointment on compassionate
ground the decree of divorce by mutual
consent has been obtained. Otherwise, as
a married daughter she was not entitled to
the
appointment
on
compassionate
ground. Therefore, looking to the aforesaid
facts and circumstances of the case,
otherwise also the High Court ought not to
have directed the appellants to consider the
application of the respondent herein for
appointment on compassionate ground as
''divorced daughter'. This is one additional
ground to reject the application of the
respondent
for
appointment
on
compassionate ground."

(Emphasis supplied by us)

21. In a most recent judgment in the
case of The State of Uttar Pradesh and
others vs. Premlata in Civil Appeal
No.6003 of 2021, decided on 05.10.2021,
Hon'ble Supreme Court considered the
provisions of U.P. Rules 1974 and
summarized
the
principles
of
compassionate appointment in the context
of U.P. Rules, 1974, as under:

"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 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
722 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 139-40, para 2)

"2. ... As a rule, appointments in the
public services should be made strictly on
the 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
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
4 All. Iqbal Khan Vs. The State of U.P. & Ors.
723
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 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.

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 Class-II or
Class-I post and the deceased employee
was working on the post of Class/Grade 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
724 INDIAN LAW REPORTS ALLAHABAD SERIES
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 ........

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 Dying-In-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
and
purpose
of
appointment on compassionate ground.

(Emphasis supplied by us)

22. In the case of Navendra Kumar
Upadhyay Vs. State of U.P. and others
(Special Appeal No.1601of 2012) decided
on 22.10.2021, a Division Bench of this
Court considered in detail the principles
and object of Compassionate appointment
and concluded as under :-

35. We have discussed above in detail
the case of the petitioner / appellant and
the principles of law on compassionate
appointment laid down by this Court and
by Hon'ble Supreme Court, which are
briefly summarized as under: -

(a) A provision for compassionate
appointment is an exception to the
principle that there must be an equality of
opportunity
in
matters
of
public
employment.
The
exception
to
be
constitutionally valid has to be carefully
structured and implemented in order to
confine compassionate appointment to only
those situations which subserve the basic
object and purpose which is sought to be
achieved;

(b) The object of compassionate
appointment is to enable the family of the
deceased - employee to tied over the
sudden financial crisis due to death of the
bread earner which has left the family in
penury and without means of livelihood, it
is an exception to the normal rule of public
employment, it is a concession. The basic
intention
to
grant
compassionate
appointment is that on the death of the
employee, his family is not deprived of the
means of livelihood. It can not be claimed
by way of inheritance. Compassionate
Appointment can not be treated as a
Bonanza. It is not disbursement of gift. It
is not sympathy syndrome. It is meant to
provide minimum relief for meeting
immediate hardship to save the bereaved
family from sudden financial crisis due to
death of sole bread winner. If employer
finds that Financial arrangement made for
family subsequent to death of the employee
is adequate members of the family can not
insist for compassionate appointment.

(c) 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.

(d) In determining as to whether the
family is in financial crisis, all relevant
4 All. Iqbal Khan Vs. The State of U.P. & Ors.
725
aspects must be borne in mind including
the income of the family; its liabilities, the
terminal benefits received by the family;
the age, dependency and marital status of
its members, together with the income
from any other sources of employment;

(e) There is no general or vested right
to
compassionate
appointment.
Compassionate
appointment
can
be
claimed only where a scheme or rules
provide for such appointment. Where such
a provision is made in an administrative
scheme or statutory rules, compassionate
appointment must fall strictly within the
scheme or, as the case may be, the rules;

(f) Where a long lapse of time has
occurred since the date of death of the
deceased employee, the sense of immediacy
for seeking compassionate appointment
would cease to exist and this would be a
relevant circumstance which must weigh
with the authorities in determining as to
whether
a
case
for
the
grant
of
compassionate appointment has been made
out;

(g) An applicant has no right to claim
compassionate appointment in a particular
class or group. It is not for conferring
status on the family. A candidate for
compassionate appointment has no right
to any particular post of choice. He can
only claim to be considered.

(h) 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.

(i) Provisions for the grant of
compassionate
appointment
do
not
constitute a reservation of a post in favour
of a member of the family of the deceased
employee. Hence, there is no general right
which can be asserted to the effect that a
member of the family who was a minor at
the time of death would be entitled to claim
compassionate appointment upon attaining
majority. Where the rules provide for a
period of time within which an application
has to be made, the operation of the rule is
not suspended during the minority of a
member of the family.

(j) The norms prevailing on the date
of the consideration of the application
should be the basis for consideration of
claim for compassionate appointment.

(k) 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. The whole object of granting
compassionate employment is to enable
the family to tide over the sudden
financial crisis.

(l) Rule 5 mandates that ordinarily, an
application for compassionate appointment
must be made within five years of the date
of death of the deceased employee. The
power conferred by the first proviso is a
discretion to relax the period in a case of
undue hardship and for dealing with the
case in a just and equitable manner;

(m) The burden lies on the applicant,
where there is a delay in making an
application within the period of five years
to establish a case on the basis of reasons
and
a
justification
supported
by
documentary and other evidence. It is for
the State Government after considering all
the facts to take an appropriate decision.
The power to relax is in the nature of an
exception and is conditioned by the
existence of objective considerations to the
satisfaction of the government;

(n) The father of the petitioner died on
07.07.1991 when petitioner was aged about
eight years.