# Ram Pratap Singh v. State of U.P. and others

- **Citation:** (2004) 2 ILRA 509
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-30
- **Case number:** Civil Misc. Writ Petition No.27625 of 2001
- **Bench:** A.K. Yog
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-pratap-singh-v-state-of-u-p-and-others-40412
- **Pages:** 20

## Headnote

Constitution
of
India-Article
14-U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules,
1974-
Compassionate
appointment-Petitioner
seeking
compassionate appointment-At relevant
time he was a minor-Hence not eligible
for appointment-Petitioner also failed to
establish
that
family
of
deceased
employee is in distress to -Further,
Dying in Harness Rule, held, hit by
Article 14 of Constitution-Doctrine of
legitimate expectations explained.

There
is
no
justification
for
the
Government
to make compassionate
appointments of a dependant of an
employee dying in harness ignoring
families of those eligible candidates
waiting in open market and whose
families may be in still graver. Para 44

Compassionate appointment, in a way
create reservation within reservation
and it should be so high so as to destroy
and
make
concept
of
equality
guaranteed by Article AIR 1964 SC 179
and AIR1967 SC1283 Constitution of
India, merely illusory. Reference may be
made to AIR 1963 SC 649. Para 45

To sum up-(i) petitioner has failed on the
facts of the present case, as discussed
above, to prove 'distress' which could
warrant compassionate appointment to
mitigate hardship immediately to the
family of deceased employee in question;
and, (ii) in the light of the discussion
made above, Dying in Harness Rules do
not stand the fest of valid classification
and, therefore, the Rules contemplating
compassionate appointments are hit by
Article 14 and 16, Constitution of India.
(iii) Respondents are directed to activate
Compassionate Fund Rule and The U.P.
Benevolent Fund Scheme 1997, and to
make it real, purposive and effective so
as to achieve solemn object for which
they are framed (iv) A copy of this
judgement
shall
be
sent
to
Chief
Secretary for bringing the matter to the
concerned and the State Government is
mandated to take appropriate action in
the light of the above.

Para 59
Case law discussed:
(1994) 6 SCC 282, (1994) 4 SCC 138, AIR
1996 SC 2445 (Pr. 5,6), AIR 1973 SC 2602,
AIR 1964 SC 1573, AIR 1971 SC 2486, JT
2001 (1) SC 536, AIR 1996 SC 2184 (Pr.10),
AIR 2001 SC 1203 (Pr. 11), (1991) 4 SCC 139,
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
510
(2000) 5 SCC 488:2000 AIR SCW 2037: AIR
2000 SC 2264: 2000 Crl.L.J 2971, (197) 1 SCC
19 (Pr. 29, 31), (1975) 3 SCC 76, AIR 1956 SC
486, (1989) 2 SCC 145, (1997) 2 SCC 65 ( Pr.
15,16), (1994) 2 SCC 718, JT 1994 (3) SC 525,
(1996) 2 UPLBEC 843 (Pr.9), (1994) SCC 192,
(1998) 2 SCC 412 (Pr. 5), (1998) 5 SCC 192,
AIR 1963 SC 649, AIR 1964 SC 179, AIR 1967
SC 1283, JT 2003 (5) SC, JT 2003 (6) SC 37,
W.P. 29194 of 2001, W.P. 1437 (SS) of 2001,
AIR 1993 SC 477

## Text

_Characters 0–39,833 of 64,649. This is a partial read: ask again with offset=39833 for what follows._

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2 All] Ram Pratap Singh V. State of U.P. and others
509
Financial Corporation against them. The
non-compliance
of
above
provision
coupled with the fact that the adjustment
of Rs. 17,68,450.00 claimed by the
appellants is without any payment of any
Court fee, in the suit for the relief leave
no doubt that the civil court has no
jurisdiction unless there is compliance of
the provisions of the Civil Procedure
Code. The relief of permanent injunction
has been sought without complying with
this provision. In view of this we are of
the view that the Civil Court has no
jurisdiction to grant such relief. The
result of the above discussion is that this
appeal has no force. Accordingly, it is
dismissed.

 Appeal dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.4.2004

BEFORE
THE HON'BLE A.K. YOG, J.

Civil Misc. Writ Petition No.27625 of 2001

Ram Pratap Singh

...Petitioner
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Petitioner:
Sri H.S.N.Tripathi
Sri P.S. Tripathi

Counsel for the Opposite Parties:
Sri R.P. Goyal, Adv. General
Sri R. K. Awasthi, S.C.
Sri S. K. Rai
Sri Yashwant Verma

Constitution
of
India-Article
14-U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules,
1974-
Compassionate
appointment-Petitioner
seeking
compassionate appointment-At relevant
time he was a minor-Hence not eligible
for appointment-Petitioner also failed to
establish
that
family
of
deceased
employee is in distress to -Further,
Dying in Harness Rule, held, hit by
Article 14 of Constitution-Doctrine of
legitimate expectations explained.

There
is
no
justification
for
the
Government
to make compassionate
appointments of a dependant of an
employee dying in harness ignoring
families of those eligible candidates
waiting in open market and whose
families may be in still graver. Para 44

Compassionate appointment, in a way
create reservation within reservation
and it should be so high so as to destroy
and
make
concept
of
equality
guaranteed by Article AIR 1964 SC 179
and AIR1967 SC1283 Constitution of
India, merely illusory. Reference may be
made to AIR 1963 SC 649. Para 45

To sum up-(i) petitioner has failed on the
facts of the present case, as discussed
above, to prove 'distress' which could
warrant compassionate appointment to
mitigate hardship immediately to the
family of deceased employee in question;
and, (ii) in the light of the discussion
made above, Dying in Harness Rules do
not stand the fest of valid classification
and, therefore, the Rules contemplating
compassionate appointments are hit by
Article 14 and 16, Constitution of India.
(iii) Respondents are directed to activate
Compassionate Fund Rule and The U.P.
Benevolent Fund Scheme 1997, and to
make it real, purposive and effective so
as to achieve solemn object for which
they are framed (iv) A copy of this
judgement
shall
be
sent
to
Chief
Secretary for bringing the matter to the
concerned and the State Government is
mandated to take appropriate action in
the light of the above.

Para 59
Case law discussed:
(1994) 6 SCC 282, (1994) 4 SCC 138, AIR
1996 SC 2445 (Pr. 5,6), AIR 1973 SC 2602,
AIR 1964 SC 1573, AIR 1971 SC 2486, JT
2001 (1) SC 536, AIR 1996 SC 2184 (Pr.10),
AIR 2001 SC 1203 (Pr. 11), (1991) 4 SCC 139,
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
510
(2000) 5 SCC 488:2000 AIR SCW 2037: AIR
2000 SC 2264: 2000 Crl.L.J 2971, (197) 1 SCC
19 (Pr. 29, 31), (1975) 3 SCC 76, AIR 1956 SC
486, (1989) 2 SCC 145, (1997) 2 SCC 65 ( Pr.
15,16), (1994) 2 SCC 718, JT 1994 (3) SC 525,
(1996) 2 UPLBEC 843 (Pr.9), (1994) SCC 192,
(1998) 2 SCC 412 (Pr. 5), (1998) 5 SCC 192,
AIR 1963 SC 649, AIR 1964 SC 179, AIR 1967
SC 1283, JT 2003 (5) SC, JT 2003 (6) SC 37,
W.P. 29194 of 2001, W.P. 1437 (SS) of 2001,
AIR 1993 SC 477

(Delivered by Hon'ble A. K. Yog, J.)

1. Notice of the Writ Petition was
received by the office of the Chief
Standing Counsel, High Court, Allahabad,
on July 19, 2001. Case was listed before
the Court on several occasions but no
counter
affidavit
filed
by
the
Respondents. No request made to file it
till this stage of hearing.

2. Learned Counsels for the parties
agreed that the writ petition be decided
finally
at
the
admission
stage
as
contemplated under Chapter XXII Rule 2-
IInd Proviso, Rules of Court, 1952.

FACTS:-

3. One Anil Kumar Singh
(father of the petitioner) working as
Assistant Bhumi Sanrakshak Inspector in
Government Department of State of Uttar
Pradesh, died on 15.10.1998. His son,
Ram Pratap Singh (petitioner before us),
sought compassionate appointment on the
ground of his father 'dying in harness' by
filing
an
application
on
5.4.1999
addressed to Soil Conservation Officer,
Sharda Nahar Pranali, Pilibhit under
relevant Rules, e.g. "THE UTTAR
PRADESH
RECRUITMENT
OF
DEPENDENTS
OF
GOVERNMENT
SERVANT
DYING
IN
HARNESS
RULES, 1974 (Annexure -1 to the writ
petition without the enclosures mentioned
in it). The petitioner urged that, apart
from him and his mother, he had two
minor brothers namely, Ikshvaku Singh
and Vineet Singh and that his family was
in pitiable financial condition.

4.
Petitioner
sent
another
representation dated 26.4.2001 addressed
to the Director, Agricultural U.P. stating
that he had applied on 5.4.1999 for
appointment under 'Dying in Harness'
quota and also that in the past he had sent
reminders dated 25.11999, 19.4.2000,
19.8.2000
and
13.12.2000
to
the
concerned department but to no avail
(Annexure- 2 to the writ petition).

5. Commissioner/ Administrator,
Sharda Sahayak Samadesh Kshettra Vikas
Pariyojana U. P. Lucknow/ Respondent
no.3 sent letter dated 27.1.1998 to the
Bhumi
Sanrakshak
Adhikari
Sharda
Nahar Pranali Bilsanda, Pilibhit directing
for
payment
of
pension,
gratuity,
Insurance, Provident Fund, etc. after
submitting requisite papers in required
proforma.
Matter
of
compassionate
appointment, according to him, was to be
dealt by the concerned Agriculture
Department
to
which
the
deceased
employee belonged. The respondent no.4/
Soil Conservation Officer, Sharda Nahar
Pranali, also sent a letter to the Director
Agriculture U.P for consideration of
petitioner's application for compassionate
appointment in Government Service on
compassionate ground under relevant
Rules (Annexure 4 to the writ petition).

6. Similar letter dated April 29, 2000
was written by Agriculture Directorate,
U.P. to Bhumi Sanrakshak Adhikari/
Respondent no.4 and certain queries were
made but no reply received.
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2 All] Ram Pratap Singh V. State of U.P. and others
511
7. Being aggrieved, petitioner filed
present writ petition under Article 226,
Constitution of Indian on the ground, inter
alia amongst others, that he be appointed
in the Department of Agriculture the State
Government on compassionate ground;
inaction on the part of the respondents in
the matter was arbitrary, illegal and
violative of Article 14, 19 (1) and (g), 21,
256 and 300 A of the Constitution of
India.
The petitioner, in the writ petition, prays:-
"(a) to issue a writ, order or direction in
the nature of mandamus commanding and
directing the respondents to issue letter of
appointment in favour of petitioner for the
post of accountant in view of his
qualification on compassionate ground
and to allow him to join and pay salary
along with other emolument permissible
under law.
(b) to issue a writ, order or direction
which this Hon'ble Court may deem fit
and proper in the circumstances of the
case.
(c) to award the cost of the writ petition
to the petitioner. "

REASONS + CONCLUSIONS:-

8. Petitioner is not entitled to the
aforesaid reliefs for following reasons.

9. In the affidavit (sworn in July
2001 by Ram Pratap Singh-the petitioner
himself) filed in support of the present
writ petition, the petitioner has mentioned
his age- 'about 20 years'. It shows that the
petitioner was aged about 17 years only
when his father died in October, 1998, i.e.
minor and, therefore, not eligible to seek
appointment at the relevant time. In
addition to this, it is to be noted that
'copy of the High School Certificate',
though mentioned as 'enclosures no.3' to
the application (Annexure 1 to the writ
petition) has not been filed on record and
with-held from the Court; consequently it
is not possible for the Court to ascertain
otherwise date of birth of the petitioner
and whether he was at all eligible to get
'compassionate appointment' when his
father died in the year 1998.

10. Besides the above, 'Mark sheet
of B. Com part III Examination 2001
dated 2.7.2001 (Annexure 6 to the Writ
Petition) shows that petitioner pursued
three year course and passed B. Com
Examination-2001
from
Deen Dayal
Upadhyay
Gorakhpur
University,
Gorakhpur.
Aforementioned
facts
disclosed by the petitioner show that he
could afford to pursue his graduation and
completed
B.
Com
course
from
Gorakhpur University in the year 2001. It
could not be possible, if the family was in
distress requiring immediate mitigation.
In none of the representations petitioner
mentioned that there was no other source
of income.

11. The petitioner therefore fails to
establish that the family of the deceased
employee (father of the petitioner) was/is
in distress to justify 'compassionate
appointment' under law.

Re.
constitutional
validity
of
Compassionate Appointment-

One, Rakesh Tripathi on 10.8.2001
filed Civil Misc. Application No.74162 of
2001 under Chapter XXII, Rule 5-A,
Rules of Court, 1952 praying for
permission to be heard in opposition to
the writ petition contending, that in case
'vacant posts' are filled on 'compassionate
ground',
without
following
normal
procedure
under
relevant
rules
of
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
512
appointment, valuable rights of other
eligible
candidates,
including
the
applicant who are available and desirous
for being considered for appointment in
Government/ Public undertaking/ Local
bodies/ Corporation etc. on merit, shall be
seriously prejudiced, it tends to erode
'legitimate expectation' of such eligible
candidates since they are altogether
excluded and denied even an opportunity
of seeking employment in government
department and the like. According to
him, even if there are 'Dying in Harness
Rules' compassionate appointments are
ultravires
of
the
constitution
being
violative of Article 14 & 16 of the
Constitution of India. This application
was allowed on 13.8.2001 subject to the
objection, if any, but no objection,
however, filed/raised against the said
application by any of the parties to the
writ-petition.

12. Sri S. K. Rai, Advocate,
appearing on behalf of Rakesh Tripathi,
argued
that
appointments
made
on
compassionate ground, ignoring other
available eligible candidates is arbitrary
and violates Article 14 and 16 of the
Constitution of India because there is no
nexus with the object sought to be
achieved; eligible available candidates are
denied 'opportunity of being considered in
public employment', completely erodes
'legitimate
expectations'
of
such
candidates and has no 'logic' or 'rationale'
since such compassionate appointment is
made ignoring that family of some such
available candidate may be in 'greater
distress'
requiring
'more-immediatemitigation' than a family of an employee
'Dying in Harness'. Learned counsel
submits that on the ground of 'sympathy'
no separate class can be legally carved out
nor it is permissible in the matter of
public employment under Article 14,
Constitution of India. Article 14, of the
Constitution
permits
classification
provided it is based on intelligible
differentia having nexus with the object
sought to be achieved, now a settled
'criterion of classification' laid down by
the Apex Court-in the catena of its
decisions.

13. It is contended that 'misplaced'
reason is no 'reason'. To say that the only
solution to 'mitigate hardship' and to
ensure that family of a deceased employee
is able to overcome 'distress (caused by
cessation of income due to death of
employee)
is
to
give
compensate
appointment is a trite.

'Mini-classifications based on microdistinctions' are illusory, unreal and not
warranted. Over doing of classifications
is paradox of 'Equality'. The Court has to
function always as a sentinel on the qui
vive".

In
the
case
of
T.
R.
Kothandaraman Vs. T. N. Water
Supply and Drainage B.D.--(1994) 6
S.C.C. 282 (para 2), Apex Court
observed "........the guarantee of equality
is precious and the theory of classification
may not be allowed to be extended so as
to subvert or submerge the same. Of
course, while being called upon to decide
whether the classification in question is
constitutionally permissible, excellence in
service has also to be borne in mind; so
too the fact that excellence and equality
are not friendly bedfellows. A pragmatic
approach is, therefore, required to
harmonise the requirements of public
services with the aspirations of public
servants."
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2 All] Ram Pratap Singh V. State of U.P. and others
513

14. According to the learned counsel
appearing for Rakesh Tripathi aforesaid
essential ingredients are conspicuously
absent; no 'class' can be carved on the
ground of 'sympathy' and the Rules, even,
if
framed
shall
be
ultravire
the
Constitution hit by Article 14 & 16 of the
Constitution of India. It is argued that no
one can carve out a 'class' which is
otherwise not permissible by Article 14,
Constitution of India.

15. It is further argued that the
observations of the Supreme Court in the
case of Umesh Kumar Napal Versus
State
of
Haryana,(1994)4
Supreme
Court Cases 138 and State of Haryana
Versus Rani Devi, A.I.R 1996 Supreme
Court 2445 are 'per incuriam' and hence
not binding 'precedents'. None of these
decisions contain discussion or reasons on
the point 'whether 'classification' on the
ground
of
'sympathy'
is
legally
permissible under Article 14 of the
Constitution.

16. Learned Counsel, to elaborate
his argument, contend that the 'object' is
to provide succor to a family of deceased
employee in distress'. In Supreme Court
judgements reason given is that the only
way to achieve said object is to give 'job'
to one of the dependent. Learned counsel
vehemently argued that it is misplaced to
say that the only 'option' is to give
'appointment' to one of the dependent of
'deceased employee'. What is to be
compensated is the 'income'. Learned
counsel submits that 'reservation' on
compassionate ground has traces of
'employment on the ground of inheritance
which has been held to be bad by the
Apex Court itself.

17. Sri Yaswant Verma, Advocate,
appointed 'Amicus curie' by the Court,
submits that compassionate appointments
are unconstitutional and arbitrary since
based on artificial classifications which
has no 'rational basis' or nexus with the
object sought to be achieved. According
to the learned counsel, the 'only object', in
case of an employee 'Dying in Harness' is
to mitigate hardship in case of "distress in
family", of an employee 'Dying in
Harness'. It is argued that said object can
be achieved by extending 'financial-
support'. And therefore, to give 'job', by
circumventing
normal
rule
of
appointment, is uncalled for.

18. This raises a Constitutional
question i.e. 'whether a compassionate
appointment is hit by Article 14 and 16 of
the Constitution of India'?

19. Sri H.S.N. Tripathi, Advocate,
appearing on behalf of the petitioner, has
adopted
submissions
made
by
the
counsels representing the respondents as
dealt hereinunder.

20. The Standing Counsel, on behalf
of the respondents, submitted that one of
the principle of interpretation namely,
'reading down' is that in case a statutory
provision
is
capable
of
two
interpretations, the one which saves it
from the attack of its being absurd or
unconstitutional, should be adopted. The
Court must look to the context, its back
ground and the purpose sought to be
achieved through the rules in question. In
that context reference is made to Rules 5,
6, 8 (2) and 9 of the Rules.

21. This argument is out of context
in as much as in the case in hand there is
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
514
no
such
contingency
of
two
interpretations.

It is also argued, referring to the
decisions reported in AIR 1973 Supreme
Court 2602- Hari Prasad Mulshankar
Trivedi Versus V. B. Raju and others
(para 23), and AIR 1964 SC 1573-- B.
Rajgopal Naidu Vs State, wherein held
that it is a wise tradition that Court do not
adjudicate a constitutional question unless
it is absolutely necessary to the disposal
of the case in hand.

22. This proposition is also not
relevant since the constitutional question
in this case, has been urged and pressed
by the learned counsel representing
Rakesh Tripathi-applicant-Opposite party.

23. On behalf of the respondents,
standing
counsel
referred
to
the
following:
(i) AIR 1971 Supreme Court 2486-
Madhu Limaye and another Versus Sub
Divisional Magistrate, Monghyr and others.

This case is not relevant and
distinguishable on facts.
(ii) JT 2001(1) SC 536 (Pr 9)-
Union of India V. Elphinstone Spinning and
Weaving Company Limited and others.

24. The court provided guide line as
to how a statute is to be construed, there is
presumption that legislature has not
exceeded its jurisdiction and the burden of
establishing that the legislature has
transgressed constitutional mandates- is
always on the person who challenges its
vires.
(iii) AIR 1996 Supreme Court 2184 (Pr
10)-
S. Gopal Reddy Versus. State of Andhra
Pradesh.

25. Held-. It is a well known rule of
interpretation of statutes that the text and
the context of entire Act must be looked
into while interpreting any of the
expression used in Statute.

(iv) AIR 1999 Supreme Court 1149
(Pr.10)-

Ms. Githa Hariharan and another
Versus Reserve Bank of India and
another- Hold that- "It is well settled that
if
a
given
statute
will
become
unconstitutional, whereas on another
construction, which may be open, the
statute remains within the constitutional
limits, the court will prefer the latter on
the ground that the Legislature is
presumed to have acted in accordance
with the Constitution and courts generally
lean in favour of the Constitutionality of
the statutory provision."

26. Following questions emerge in
the background of the submissions made
by the learned counsels for the parties-
(A) One whether the observations
made by the Apex Court in the leading
cases on compassionate appointment are
'binding precedent' or 'per-incuriam' ?

On the aspect of 'per-incuriam',
reference is made to the following
decisions:-
1.
AIR 2001 Supreme Court 1203,
para 11---
M/s A-One Granites Versus State of
U.P. and others. Apex Court observed:-

"11. This question was considered by
the Court of Appeal in Lancaster Motor
Company(London) Limited V. Bremith
Limited. (1941) 1KB 675, and it was laid
down that when no consideration was
given to the question, the decision cannot
be said to be binding and precedents sub
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2 All] Ram Pratap Singh V. State of U.P. and others
515
silentio and without arguments are of no
moment.

In State of U.P. V. Synthetics and
Chemicals Limited., (1991)4 SCC 139,
reiterating the same view, this Court laid
down that such a decision cannot be
deemed to be a law declared to have
binding effect as it contemplated by
Article141 of the Constitution of India
and observed thus:

"A decision which is not express and
is not founded on reasons nor it proceeds
on consideration of issue cannot be
deemed to be a law declared to have a
binding effect as is contemplated by
Article 141."

In the case of Arnit Das v. State of
Bihar, 2000(5) SCC 488: (2000 AIR SCW
2037: AIR 2000 SC 2264: 2000 Cri LJ
2971), while examining the binding effect
of such a decision, this Court observed
thus (Para 20):

"A decision not expressed, not
accompanied
by
reasons
and
not
proceeding on a conscious consideration
of an issue cannot be deemed to be a law
declared to have a binding effect as is
contemplated by Article 141. That which
has escaped in the judgment is not the
ratio decidendi. This is the rule of sub
silentio, in the technical sense when a
particular
point
of
law
was
not
consciously determined."

2.
(1991) 4 Supreme Court Cases 139
--State of U.P. and Another Versus
Synthetics and Chemicals Limited and
another. For ready reference Court
observations reproduced below:

"40.
'Incuria'
literally
means
'carelessness'. In practice per incuriam
appears to mean per ignoratium. English
courts have developed this principle in
relaxation of the rule of stare decisis. The
'quotable in law' is avoided and ignored
if it is rendered, 'in ignoratium of a
statute or other binding authority'.
(Young V. Bristrol Aeroplance Company
Limited) (1944) 1KB 718: (1944) 2 All ER
293. Same has been accepted, approved
and
adopted
by
this
Court
while
interpreting
Artilce
141
of
the
Constitution which embodies the doctrine
of precedents as a matter of law.
41. Does this principle extend and apply
to a conclusion of law, which was neither
raised nor preceded by any consideration.
In other words can such conclusions be
considered as declaration of law ? Here
again the English courts and jurists have
carved out an exception to the rule of
precedents. It has been explained as rule
of sub-silentio. " A decision passes subsilentio, in the technical sense that has
come to be attached to that phrase, when
the particular point of law involved in the
decision is not perceived by the court of
present to its mind." (Salmond on
Jurisprudence 12th Edn., p. 153). In
Lancaster Motor Company (London)
Limited. V. Bremith Limited. (1941) 1 KB
675, 677: (1941) 2 All ER 11 the Court
did not feel bound by earlier decision as it
was rendered 'without any argument,
without reference to the crucial words of
the rule and without any citation of the
authority'..............The courts thus have
taken recourse to this principle for
relieving from injustice perpetrated by
unjust precedents. A decision which is
not express and is not founded on reasons
nor it proceeds on consideration of issue
cannot be deemed to be a law declared to
have a binding effect as is contemplated
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
516
by Article 141.........Any declaration or
conclusion arrived without application of
mind or preceded without any reason
cannot be deemed to be declaration of
law or authority of a general nature
binding as a precedent. Restraint in
dissenting or overruling is for sake of
stability and uniformity but rigidity
beyond reasonable limits is inimical to the
growth of law."
(Note: Judgement underline to lay
emphasis)

27. It is to be noted that not a single
decision is cited before me, wherein the
question
of
such
compassionate
appointments being ultra vires of the
Constitution being raised and considered
by this Court or the Apex Court and this
fact fairly conceded by the learned
counsels for the parties.

(B) what is a valid classification under
Article 14 of Constitution of India ?'
Reference may be made to the following
decisions:-

1.
(1974) 1 Supreme Court Cases 19
(pr 29 and 31)-
The State of Jammu and Kashmir
Versus Shri Triloki Nath Khosa and
others-:-

" 29.
This argument, as presented, is
attractive but it assumes in the Court a
right of scrutiny somewhat wider than is
generally recognized. Article 16 of the
Constitution which ensures to all citizens
equality of opportunity in matters relating
to employment is but an instance or
incident of the guarantee of equality
contained in Art. 14. The concept of equal
opportunity undoubtedly permeates the
whole
spectrum
of
an
individual's
employment from appointment through
promotion and termination to the payment
of gratuity and pension. But the concept
of equality has an inherent limitation
arising from the very nature of the
constitutional guarantee. Equality is for
equals. That is to say that those who are
similarly circumstanced are entitled to an
equal treatment.

31. Classification, however, is fraught
with the danger that it may produce
artificial inequalities and therefore, the
right to classify is hedged in with salient
restrains; or else, the guarantee or
equality will be submerged in class
legislation masquerading as laws meant
to
govern
well-marked
classes
characterized by different and distinct
attainments. Classification, therefore,
must be truly found on substantial
differences which distinguish persons
grouped together from those left out of the
group and such differential attributes
must bear a just and rational relation to
the object sought to be achieved."
(underlined to lay emphasis)

2.
1975(75) 3 SCC 76,--Mohd. Shujat
Ali V. Uniion of India, pr 25 and 26 of
the judgement read:-
25.. " But the question is: what does
this ambiguous and crucial phrase "
similarly situated" mean? Where are we
to look for the test of similarity of
situation
which
determines
the
reasonableness of a classification? The
inescapable answer is that we must look
beyond the classification to the purpose of
the
law.

There
should
be
no
discrimination between one person or
thing and another, if as regards the
subject-matter of the legislation their
position is substantially the same. This is
some times epigrammatically described
by saying that what the constitutional
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code of equality and equal opportunity
requires is that among equals, the law
should be equal and that like should be
treated alike. But the basic principle
underlying the doctrine is that the
Legislature should have the right to
classify and impose special burdens upon
or grant special benefits to persons of
things
grouped
together
under
the
classification, so long as the classification
is of persons or things similarly situated
with respect to the purpose of the
legislation, so that all persons or things
similarly situated are treated alike by law.
The test which has been evolved for this
purpose is-and this test has been
consistently applied by this Court in all
decided cases since the commencement of
the Constitution-that the classification
must be founded on an intelligible
differentia which distinguishes certain
persons or things that are grouped
together from others and that differentia
must have a rational relation to the object
sought to be achieved by the legislation.

26. But we have to be constantly on
our guard to see that this test which has
been evolved as a matter of practical
necessity with a view to reconciling the
demand for equality with the need for
special
legislation
directed
towards
specific ends necessitated by the complex
and varied problems which require
solution at the hands of the Legislature,
does not degenerate into rigid formula to
be blindly and mechanically applied
whenever the validity of any legislation is
called in question. The fundamental
guarantee is of equal protection of the
laws and the doctrine of classification is
only a subsidiary rule evolved by courts
to give a practical content to that
guarantee by accommodating it with the
practical needs of the society and it
should not be allowed to submerge and
drown the precious guarantee of equality.
The doctrine of classification should not
be carried to a point where instead of
being a useful servant, it becomes a
dangerous master, for otherwise, as
pointed out by Chandrachud, J. in State of
Jammu & Kashmir v. Triloki Nath Khosa,
" the guarantee of equality will be
submerged
in
class
legislation
masquerading as laws meant to govern
well-marked classes characterised by
different
and
distinct
attainments".
Overemphasis
on
the
doctrine
of
classification or an anxious and sustained
attempt to discover some basis for
classification
may
gradually
and
imperceptibly deprive the guarantee of
equality of its spacious content. That
process
would
inevitably
end
in
substituting the doctrine of classification
for
the
doctrine
of
equality:
the
fundamental right to equality before the
law and equal protection of the laws may
be
replaced
by
the
overworked
methodology of classification. Our
approach to the equal protection clause
must, therefore, be guided by the words of
caution uttered by Krishna Iyer, J. in
State of Jammu & Kashmir v Triloki Nath
Khosa: (at SCC p. 42)
Mini-classification
based
on
microdistinctions are false to our egalitarian
faith
and
only
substantial
and
straightforward
classification
plainly
promoting relevant goals can have
constitutional
validity.

To
overdo
classification is to undo equality.
(underlined to lay emphasis)

3. AIR 1956 SC 486--
Biri Supply Company Versus Union of
India,. Paras 14 and 31, for ready
reference, reproduced below:-
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"14. It is elementary that no two things
are exactly alike and it is equally obvious
many things have features that are
common. Once the lines of demarcation
are fixed, the resultant grouping is
capable of objective determination but the
fixing of the lines is necessarily arbitrary
and to say that Governments and
legislatures may classify is to invest them
with a naked and arbitrary power to
discriminate as they please. Faced with
the inexorable logic of this position, the
learned Judges who apply this test are
forced to hedge it round with conditions
which, to my mind, add nothing to the
clarity of the law.

I will pass over the limitations with
which the classification test is now
judicially surrounded, namely that it must
be
"reasonable",
it
must
not
be
"discriminatory" or "arbitrary", it must
not be "hostile"; there must be no
'substantial discrimination" and so forth
and will proceed at once to a rule that is
supposed to set the matter at rest. The
rule is taken from the American decisions
and was stated thus in State of West
Bengal V. Anwar Ali Sarkar, 1952 S.C.
75(93): (AIR V 39 (E).

" In order to pass the test, two
conditions must be fulfilled, namely (1)
that the classification must be founded on
an
intelligible
differentia
which
distinguishes those that are grouped
together from others and (2) that
differentia must have a rational relation
to the object sought to be achieved by the
Act.
Mukherjea J. (as he then was) said at
page 88 ibid that

"the classification should never be
arbitrary, artificial or evasive. It must
rest always upon real and substantial
distinction bearing a reasonable and just
relation to the thing in respect to which
the
classification
is
made
and
classification
made
without
any
reasonable basis should be regarded as
invalid."

In
another
case
Ram
Prasad
Narayan Sahi v. State of Bihar, 1958 SC
215 (AIR V 40) (F), the same learned
Judge said at page 219-

"but such selection or differentiation
must not be arbitrary and should rest
upon a rational basis, having regard to
the object which the legislature has in
view."
(underlined to lay emphasis).

4. (1989) 2 Supreme Court Cases 145--
 Deepak Sibal Versus Punjab University
and another, Court again :-

"14. It is difficult to accept the contention
that the government employees or the
employees of semi-government and other
institutions, as mentioned in the impugned
rule, stand on a different footing from the
employees or private concerns, insofar as
the question of admission to evening
classes is concerned. It is true that the
service
conditions
of
employees
of
government/semi-government institutions
etc. are different, and they may have
greater security of service, but that hardly
matters for the purpose of admission in
the evening classes. The test is whether
the employees of private establishments
are equally in a disadvantageous position
like the employees of government/semigovernment institutions etc. in attending
morning classes. There can be no doubt
and it is not disputed that both of them
stand on an equal footing and there is no
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difference between these two classes of
employees in that regard. To exclude the
employees of private establishments will
not,
therefore,
satisfy
the
test
of
intelligible differentia that distinguishes
the
employees
of
government/semigovernment institutions etc. grouped
together from the employees of private
establishments. It is true that a
classification need not be made with
mathematical precision but, if there be
little or no difference between the persons
or things which have been grouped
together and those left out of the group, in
that case, the classification cannot be said
to be a reasonable one.

20 In considering the reasonableness of
classification from the point of view of
Article 14 of the Constitution, the court
has also to consider the objective for such
classification. If the objective be
illogical, unfair and unjust, necessarily
the classification will have to be held as
unreasonable. In the instant case, the
foregoing discussion reveals that the
classification
of
the
employees
of
government/semi-government institutions
etc. by the impugned rule for the purpose
of admission in the evening classes of
three year L.L.B. Degree Course to the
exclusion of all other employees, is
unreasonable and unjust, as it does not
subserve any fair and logical objection.
(under lined to lay emphasis)

5.
(1997) 2 Supreme Court 65 (para 15
and 16)Thapur Institute of Engineering
and `Technology Versus State of Punjab
and another, the Apex Court held that in
the matter of admission 'reservation for
wards' of University Employee was not
permissible and held that there was no
rationale nexus with the object sought to
be achieved.

Reference be now made to the
leading
cases
of
compassionate
appointments decided by the Apex
Court.-

1.
(1994) 2 Supreme Court Cases 718
(prs. 10, 11, 13 and 15)--
Life Insurance Corporation of
India
Vs.
Asha
Ramchhandra
Ambekar.

"10. Of late, this Court is coming
across many cases in which appointment
on compassionate ground is directed by
judicial authorities. Hence, we would like
to lay down the law in this regard. The
High Courts and the Administrative
Tribunals
cannot
confer
benediction
impelled by sympathetic consideration.

Yielding to instinct will tend to ignore the
cold logic of law. It should be
remembered that law is that embodiment
of all Wisdom. Justice according to law
is a principle as old as the hills. The
Courts are to administer law as they find
it, however, inconvenient it may be.

11. At this juncture we may usefuly refer
t o Martin Burn Limited. V Corporation of
Calcutta- AIR 1966SC 529: (1966) 1 SCR
543. AT page 535 of the Report the
following observations are found:
"A result flowing from a statutory
provision is never an evil. A Court has no
power to ignore that provision to relieve
what is considers a distress resulting from
its operation. A statute must of course be
given effect to whether a Court likes the
result or not."

The Courts should endeavour to find
out whether a particular case in which
sympathetic considerations are to be
weighed falls within the scope of law.
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520
Disregardful of law, however, hard the
case may be, it should never be done.

12....................
13. It is true that there may be pitiable
situations but on that score, the statutory
provisions cannot be put aside.

2. JT 1994(3) S.C. 525 (para 2)-
Umesh Kumar Nagpal Versus State of
Haryana and others

"2. The
question
relates
to
the
considerations, which should guide while
giving appointment in public services on
compassionate ground. It appears that
there has been a good deal of obfuscation
on the issue. 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 dependents 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."

3. AIR 1996 SC 2445(paragraphs 5
and 6).
State of Haryana & others Versus
Rani Devi and another-

"5. The question of appointment of one
of the dependants of an employee of the
State or Central Government who dies
while in service has of late assumed
importance
and
subject
matter
of
controversy before different courts. This
court in the case of Smt. Sushma Gosain
v. Union of India, AIR 1989 SC 1976:
(1989) 4 SCC 468, after referring to the
Government Memorandum under which
the
appointment
on
compassionate
ground was being claimed observed that
the purpose of providing appointment on
compassionate ground is to mitigate the
hardship due to the death of the breadearner in the family. It cannot be
disputed
that
appointment
on
compassionate ground is an exception to
the equality clause under Article 14 and
can be upheld if such appointees can be
held to form a class by themselves,
otherwise any such appointment merely
on the ground that the person concerned
happens to be a dependant of an exemployee of the State Government or the
Central Government shall be violative of
Articles 14 and 16 of the Constitution.
But this Court has held that if an
employee dies while in service then
according to rule framed by the Central
Government or the State Government to
appoint one of the dependants shall not be
violative of Articles 14 and 16 of the
Constitution because it is to mitigate the
hardship due to the death of the bread-
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2 All] Ram Pratap Singh V. State of U.P. and others
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earner of the family and sudden misery
faced by the members of the family of
such employee who had served the
Central
Government
or
the
State
Government. It appears that this benefit
has also been extended to the employees
of the authorities which can be held to be
a State within the meaning of Article 12 of
the Constitution. But while framing any
rule in respect of appointment on
compassionate ground the authorities
have to be conscious of the fact that this
right which is being extended to a
dependant of the deceased employee is an
exception to the right granted to the
citizen under Articles 14 and 16 of the
Constitution. As such there should be a
proper check and balance.