IMPORTANT POINTS
1. The courts and tribunal do not have the power to issue direction to make appointment by way of granting relaxation of eligibility or in contravention thereof.
2. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegibility and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court.

Judgment :

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the impugned judgment and order dated 4.2.2008 passed in Letters Patent Appeal No.49/2008 by the High Court of Gujarat at Ahmedabad.

2. Facts and circumstances giving rise to this appeal are as under:-

a) The father of respondent No.1 who was working in the Police Department, State of Gujarat as the Assistant Sub-Inspector of Police, died in harness on 9.4.1999. Immediately thereafter, respondent No.1 filed an application for employment on compassionate ground, for the post of Peon. As he had completed his education only upto the 8th standard, the said application was rejected vide order dated 13.10.2000, on the ground that the family of the deceased was not suffering from any financial constraints and was getting an adequate amount of pension, which was, in fact, over and above the income limit fixed by the Government for this purpose. The said application was considered by the Additional Director General of Police by way of passing order dated 23.6.2003, directing that the application of respondent No.1 be reconsidered, ignoring the abovementioned issue regarding financial condition. The said application was rejected vide order dated 3.7.2005, on the ground that the applicant did not meet the minimum eligibility requirement for the said post, as he had not passed the 10th standard, which was a necessary pre-requisite for the consideration of the application of respondent No.1 for a Class IV post on compassionate ground.

b) Aggrieved, respondent No.1 preferred Special Civil Application No.5630/2007, which was disposed of vide judgment and order dated 2.3.2007, considering the fact that there was a subsequent notification dated 16.3.2005, which provided for the minimum qualification requirement of 10th standard pass, as the eligibility criteria for employment to a Class IV post. However, it was held that, as the said employee had died in the year 1999, the amended provision would not apply to his case. Therefore, direction was issued to consider his case without being influenced by the earlier order, in light of the new policy/circular/rules.

c) Aggrieved, the said order was challenged before the Division Bench, by the appellant, which was rejected vide impugned judgment and order dated 4.2.2008. Hence, this appeal.

3. Shri Shomil Sanjanwala, learned counsel appearing for the State of Gujarat, has submitted that the High Court erred in observing that the new policy/rules do not apply retrospectively, and that the case of respondent No.1 should be considered in light of the then existing rules, i.e., the rules which were in force prior to 2005. Earlier, employment on compassionate ground in the Department of Police was governed by way of Circular dated 16.12.1991, which provided that employment in Class III or Class IV posts, shall be accorded on compassionate ground to deserving candidates on the basis of their educational qualification.

4. Mrs. Laxmi Arvind, learned Amicus Curiae, appearing for respondent No.1 opposed the appeal, contending that the matter has been considered by the court below in a correct perspective and does not therefore, invite any interference. The father of the respondent died on 9.4.1999, and a period of more than 13 years has lapsed since then. The respondent has been unsuccessful in getting such employment, and has now attained the age of 36 years simply waiting for the said job by approaching one forum or the other, even though the purpose for which compassionate employment was introduced, was to redeem the bereaved family from financial constraints from which it is likely to suffer, owing to the death of its sole bread earner, and thus, should be accorded immediately. The court should, therefore, issue direction to offer employment to the said post of peon, to respondent No.1 under all circumstances on humanitarian grounds. The appeal lacks merit and is liable to be dismissed.

5. We have considered the rival submissions m