JUDGMENT

This appeal, by special leave, arises against the judgment of the Andhra Pradesh High Court in Writ Appeal No. 20 of 1981 dated February 3, 1981. The respondent made an application to the appellant to appoint him as a clerk as his father died in harness in 1967 while working in the office of the Auditor-General, Government of India at Andhra Pradesh. He was qualified for appointment. He passed his PUC examination and he applied for the appointment on compassionate grounds. The application made on December 26, 1979 since was not considered nor appointed, he filed Writ Petition No. 6173/79 and the learned single Judge dismissed the Writ Petition. On appeal, while dismissing, the Division Bench declared that the Memorandum is violative of Art. 16(2) of the Constitution as the appointment of descendent is ultra vires of Art. 16(2). However, while granting leave, the appellant had given an undertaking to absorb him in any vacancy that would arise in future. The respondent appears to have been appointed. He is not represented in the appeal.

2. The only question that arises for decision is whether the Memorandum is violative of Art. 16(2) of the Constitution? Article 14 genus provides equality of opportunity and equal protection of the laws and it prohibits discrimination. Article 16(2) species prohibits discrimination, thus:

"No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of, any employment or office under the State."

The High Court held that the appointment of son/ daughter/ near relative (widow) of the erstwhile employee of the Government would tantamount to appointment on descent and therefore is violative of Art. 16(2). It is contended for the State that the memorandum envisages appointments purely on compassionate grounds in the circumstances enumerated in Office Memorandum No. 14014/1/77-Estt. (D), Government of India, dated November 25, 1978. It provides that Secretary or Joint Secretary in the Ministries/ Departments are competent to appoint, in relaxation of the procedure of recruitment through the Staff Selection Commission or Employment Exchange, but subject to the other requirements set out therein, the son/ daughter or near relative of the Government servant (it is stated by the learned counsel that widow of the deceased is near relative), who dies in harness leaving his family in immediate need of assistance, in the event of there being no other earning member in the family, to a Group C post or Group D post. After the proposal for such appointment has been approved by the Joint Secretary incharge of the Administration or Secretary in the Ministry or Department concerned, it would be made. The memorandum also provides the fulfilment of the qualifications prescribed for the post. So it is not violative of Art. 16(2). We find no force to accept in toto.

3. In paragraph 5, it is stated that in deserving cases even where there is an earning member in the family, a son/ daughter/ near relative of a Government servant who dies in harness leaving his family in indigent circumstances, may be considered for appointment to the post. All such appointments are, however, to be made with the prior approval of the Secretary of the Ministry/ Department concerned, who before approving the appointment will satisfy himself that the grant of the concession is justified, having regard to the number of dependents left by the deceased Government servant, the assets and liabilities left by him, the income of the earning member as also his liabilities, whether the earning member is residing with his family or the deceased Govt. servant and whether he should not be a source of support to other members of the family.

4. In paragraph 6, it is stated that in exceptional cases when a Department is satisfied that the condition of the family is indigent and in great distress, the benefit of compassionate appointment may be ext