IMPORTANT POINTS
(1) Compassionate ground is a concession and not a right – Compassionate appointment is an exception to general rule of appointment in public services.
(2) Compassionate appointment – Dependent/applicant cannot seek appointment on compassionate ground on higher post than what was held by deceased employee as a matter of right, on the ground that he/she is eligible fulfilling eligibility criteria of such higher post.

JUDGMENT :

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 14.09.2018 passed by the High Court of Judicature at Allahabad in Special Appeal Defective (SAD) No.620 of 2018, by which the Division Bench of the High Court has allowed the said appeal and quashed and set aside the judgment and order dated 31.07.2018 passed by the learned Single Judge and consequently has directed the appellants – original respondents to consider the candidature of the respondent herein – original appellant for appointment on compassionate ground in Grade-III service, the State of U.P. has preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:

2.1 That the deceased employee at the time of his death was posted and serving as Messenger in Police Radio Department of Uttar Pradesh (Class-IV) died on 07.11.2014. The respondent herein being widow of the deceased – government servant submitted an application dated 05.12.2014 for appointment on the post of Assistant Operator in Police Radio Department on compassionate ground which was rejected on the ground that she is not fulfilling the requisite eligibility criteria for the said post. That thereafter the respondent submitted another application before the U.P. Police Radio Headquarter, Lucknow for appointment on the post of Workshop Hand on compassionate ground. However as she failed to clear the physical fitness examination conducted on 28.01.2018 for the selection of Workshop employee, her application for appointment as Workshop employee on compassionate ground came to be rejected. Due to unsuccessful in the physical eligibility test on the post of Workshop Hand/Workshop employee, vide letter dated 23.02.2018 of the Police Radio Headquarter, U.P., Lucknow, the respondent herein was offered the post below the rank of Workshop Hand i.e. Messenger in Radio Department. Instead of accepting the said post the respondent filed the writ petition before the High Court claiming the appointment on the post of Workshop Hand (Karmshala Karmchari) in Police Radio Department under the provisions of Dying-In-Harness Rules 1974 (hereinafter referred to as the Rules 1974) on compassionate ground and to direct the appellants to appoint her on the post of Workshop Hand (Karmshala Karmchari) or the post suitable for her in similar cadre.

2.2 By the judgment and order dated 31.07.2018, learned Single Judge of the High Court dismissed the said writ petition on the ground that as the deceased employee was Class-IV employee and she has also been offered appointment on a Class-IV post, she cannot claim the appointment on compassionate ground on the post of Workshop Hand or on any other suitable Class-III post.

2.3 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge, the respondent herein preferred the appeal before the Division Bench of the High Court and by the impugned judgment and order the Division Bench of the High Court has set aside the order passed by the learned Single Judge and has allowed the appeal and has directed the appellants to consider the candidature of the respondent herein for appointment on compassionate ground in Grade-III service and same be accorded to her if she otherwise does not suffer any ineligibility. By the impugned judgment and order the Division Bench of the High Court has observed that a bare perusal of Rule 5 of the Rules 1974 makes it crystal clear that appointment under Rule 5 is required to be given on a “suitable post” and the term ‘suitable’ in Rule 5 pertains to suitability of the person who desires for appointment and it has nothing to do with the post held by the deceased government servant. The Division Bench also observed that the suitability of the aspirant is required to be assessed on the basis of the educational qualification and other eligibilities so possessed by such person. The Division Bench noted that in the case in hand, respondent is having the