IMPORTANT POINT
Appointment to public office should be made on basis of competitive merits and this general rule should not be departed except where compelling circumstances demand such as death of sole bread earner and likelihood of the family suffering because of the set back.

Headnote:SERVICE LAW — Appointment on Compassionate ground — Writ petition — Delay and laches — General rule of appointment on basis of competitive merits should not be departed except where compelling circumstances demanded — Father of applicant respondent working as lineman in Power Development Department died on 6-3-1987 while in service — Application seeking appointment on compassionate ground was made in September, 1991 which was rejected in March 1996 — Writ petition filed by respondent was dismissed in 2000 — Division Bench allowed appeal holding respondent entitled to compassionate appointment in terms of rules and regulations — Appeal — When Division Bench decided the matter, more than fifteen years had passed since father of applicant and family had survived which was a relevant and material fact — Single Judge was right in rejecting petition on ground of delay and laches — Impugned judgment was liable to be set aside.
Held : We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought compassion, the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the set back. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say goodbye to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution.(Para 11)
In the case on hand, the father of the applicant died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was dismissed by the learned single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. The said fact was indeed a relevant and material fact which went to show that the family survived in spite of death of the employee. Moreover, in our opinion, the learned single Judge was also right in holding that though the order was passed in 1996, it was not challenged by the applicant immediately. He took chance of challenging the order in 1999 when there was inter-departmental communication in 1999. The Division Bench, in our view, hence ought not to have allowed the appeal. For the foregoing reasons, the appeal deserves to be allowed and it is accordingly allowed. The order passed by the Division Bench is set aside and that of the learned single Judge is restored.(Paras 17 and 18)

JUDGMENT

C.K. Thakker, J. — The present appeal is filed by the appellant-State against the judgment and order dated December 2, 2002 passed by the Division Bench of the High Court of Jammu & Kashmir in L.P.A. No. 131 of 2000. By the said order, the Division Bench of the High Court quashed and set aside the order dated July 15, 2000, passed by the learned single Judge in SWP No.966 of 1999.

2. The facts in nutshell are that the father of Sajad Ahmed Mir respondent - applicant was working as the Lineman in Power Development Department (PDD), Civil Secretariat, Srinagar. He died on March 6, 1987 while in service. It appears that the applicant applied on September 20, 1991 for getting an appointment on compassionate ground against the vacant post resulted due to death of his father. It was the say of the applicant that his case was forwarded by the authorities with recommendation in 1993 to give him appointment on compassionate ground. It was also his case that the Administrative Department recommended to appoint the applicant after relaxation of qualification as well as in age. The matter was taken up by the Executive Engineer, Superintending Engineer as also by the Chief Engineer of the Civil Secretariat of the Power Development Department and the Administrative Department. According to the applicant, on or about June 8, 1999, the Administrative Department conveyed its decision to the Chief Engineer, Electric Maintenance and RE Wing, Srinagar that the request of the applicant could not be acceded to and no appointment could be given.

3. Being aggrieved by the said decision, a writ petition was filed by the applicant which came up for hearing before a single Judge. A detailed affidavit was filed by the authorities contending inter alia that the decision had already been taken in 1996 that compassionate appointment could not be given to the applicant and the said decision was communicated on March 26, 1996, whereas the writ petition was filed in 1999 and thus there was gross delay and laches on the part of the applicant in approaching the Court. It was also contended that the applicant was not eligible and qualified for appointment.

4. The learned single Judge after considering the relevant facts and the reply affidavit held that the decision was taken in March, 1996 not to appoint the applicant on compassionate ground and he was informed accordingly. The applicant had never challenged that decision. What was done by the authorities in 1999 was merely reiteration of the decision taken in 1996. It was also observed by the learned single Judge that the whole purpose of compassionate appointment of a family member of a Government employee dying in harness is to obviate hardship likely to be caused to the family and adverse financial difficulties which it is likely to face due to death of its bread earner. Such appointment is not an appointment under statutory right but is in the nature of concession granted by the State Government, keeping in view extreme hardship of indigent family of the deceased employee. After considering the facts and circumstances, the Administrative Department declined to offer compassionate appointment to the applicant.

5. From the record, it is clear that in 1996, the decision was taken that the applicant could not be appointed on compassionate ground and it was conveyed to the applicant. That action was never challenged. In 1999, the petition was filed. According to the learned Judge, once on consideration of facts and circumstances, a conscious decision was taken and the prayer was turned down, no case was made out by the applicant so as to entitle him to get relief and accordingly the petition was dismissed.

6. Being aggrieved by the said order, the applicant approached the Division Bench by filing Letters Patent Appeal. The Division Bench of the High Court proceeded to consider the matter by observing "when compassion is sought, then reason has to take back seat". It then proceeded to consider the matter and

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2006 Supreme(SC) 624

IMPORTANT POINTAppointment to public office should be made on basis of competitive merits and this general rule should not be departed except where compelling circumstances demand such as death of sole bread earner and likelihood of the family suffering because of the set back.

Cases Referred (5)

IMPORTANT POINT
Appointment to public office should be made on basis of competitive merits and this general rule should not be departed except where compelling circumstances demand such as death of sole bread earner and likelihood of the family suffering because of the set back.