THE STATE OF UTTAR PRADESH & ORS. versus PREMLATA on 5 October 2021

[2021] 8 S.C.R. 597

THE STATE OF UTTAR PRADESH & ORS.

v.

PREMLATA

(Civil Appeal No. 6003 of 2021)

OCTOBER 05, 2021

[M. R. SHAH AND A. S. BOPANNA, JJ.]

Dying-In-Harness Rules 1974 – r.5 – Compassionateappointment – Suitable post – Respondent’s husband, a Class-IVgovernment servant died while serving as Messenger in Police RadioDepartment – She sought appointment on compassionate ground ina Class-III post – Refused offer of appointment on the post ofMessenger – Filed writ petition which was dismissed by Single Judgeof High Court – Appeal, allowed by Division Bench – Held: Initiallythe respondent applied for compassionate appointment on the postof Assistant Operator in the Department – It was rightly not acceptedon the ground that she did not fulfill requisite eligibility criteria –Then she applied for appointment on the post of Workshop Handwherein her case was considered, however, she failed in physicaltest examination – It was thereafter that she was offered appointmentas Messenger which was equivalent to the post held by the deceasedemployee – Division Bench misinterpreted r.5 in holding that ‘suitablepost’ thereunder would mean any post suitable to the qualificationof the candidate and the appointment on compassionate ground isto be offered considering the educational qualification of thedependent – Such interpretation would defeat the object ofappointment on compassionate ground which is to enable the familyto tide over the sudden crisis – Object is not to give such family apost much less a post held by the deceased – Suitable post has to beconsidered, considering status/post held by the deceased employee– Appellants justified in offering the appointment to the respondenton the post of Messenger – Impugned order set aside – Order passedby the Single Judge dismissing the writ petition restored – ServiceLaw.

Service Law – Compassionate appointment – Object andpurpose of – Discussed.

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Service Law – Compassionate appointment – Held:Compassionate appointment is an exception to the general rule ofappointment in the public services – It is a concession and not aright.

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HELD : 1.1 As per the law laid down by Supreme court incatena of decisions on the appointment on compassionate ground,for all the government vacancies equal opportunity should beprovided to all aspirants as mandated under Article 14 and 16 ofthe Constitution. However, appointment on compassionateCground offered to a dependent of a deceased employee is anexception to the said norms. The compassionate ground is aconcession and not a right. Compassionate appointment is anexception to the general rule of appointment in the public servicesand is in favour of the dependents of a deceased dying in harnessand leaving his family in penury and without any means ofDlivelihood, and in such cases, out of pure humanitarianconsideration taking into consideration the fact that unless somesource of livelihood is provided, the family would not be able tomake both ends meet, a provision is made in the rules to providegainful employment to one of the dependants of the deceasedEwho may be eligible for such employment. The whole object ofgranting compassionate employment is thus to enable the familyto tide over the sudden crisis. The object is not to give suchfamily a post much less a post held by the deceased. [Paras 9,10][606-E-F; 608-F-H; 609-A-B]F1.2 The Division Bench of the High Court in the presentcase has interpreted Rule 5 of Dying-In-Harness Rules 1974 andhas held that ‘suitable post’ under Rule 5 of the Rules 1974 wouldmean any post suitable to the qualification of the candidateirrespective of the post held by the deceased employee. Theaforesaid interpretation by the Division Bench of the High CourtGis just opposite to the object and purpose of granting theappointment on compassionate ground. ‘Suitable post’ has to beconsidered, considering status/post held by the deceasedemployee and the educational qualification/eligibility criteria isrequired to be considered, considering the post held by theHdeceased employee and the suitability of the post is required to be considered vis a vis the post held by the deceased employee,otherwise there shall be no difference/distinction between theappointment on compassionate ground and the regularappointment. In a given case it may happen that the dependentof the deceased employee who has applied for appointment oncompassionate ground is having the educational qualification ofClass-II or Class-I post and the deceased employee was workingon the post of Class/Grade-IV and/or lower than the post applied,in that case the dependent/applicant cannot seek the appointmenton compassionate ground on the higher post than what was heldby the deceased employee as a matter of right, on the groundthat he/she is eligible fulfilling the eligibility criteria of such higherpost. The aforesaid shall be contrary to the object and purpose ofgrant of appointment on compassionate ground which is to enablethe family to tide over the sudden crisis on the death of the breadearner. [Para 10.2][609-C-G]

1.3 In the present case initially the respondent applied forappointment on compassionate ground on the post of AssistantOperator in Police Radio Department. The same was not acceptedby the Department and rightly not accepted on the ground thatshe was not fulfilling requisite eligibility criteria for the post ofAssistant Operator. Thereafter the respondent again applied forappointment on the compassionate ground on the post ofWorkshop Hand. The case of the respondent was considered,however, she failed in the physical test examination, which wasrequired as per the relevant recruitment rules of 2005. Therefore,thereafter she was offered appointment on compassionate groundas Messenger which was equivalent to the post held by thedeceased employee. Therefore appellants were justified in offeringthe appointment to the respondent on the post of Messenger.However, the respondent refused the appointment on such post.The Division Bench of the High Court has misinterpreted andmisconstrued Rule 5 of the Rules 1974 and in observing andholding that the ‘suitable post’ under Rule 5 of the Dying -In -Harness Rules 1974 would mean any post suitable to thequalification of the candidate and the appointment oncompassionate ground is to be offered considering the educationalqualification of the dependent. Such an interpretation would defeatthe object and purpose of appointment on compassionate ground.

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AThe impugned judgment and order passed by the Division Benchof the High Court is quashed and set aside. Consequently thewrit petition preferred by the respondent before the learned SingleJudge being Writ Petition No.16009 of 2018 stands dismissedand the order passed by the Single Judge dated 31.07.2018dismissing the writ stands restored. No costs. [Paras 10.3, 11Band 12][609-H; 610-A-F]

Phoolwati (Smt) vs Union Of India and Others (1991)Supp 2 SCC 689: (1991) AIR 469; Director ofTreasuries in Karnataka & Anr. vs. V. SomashreeDecision of Supreme Court in Civil Appeal No. 5122Cof 2021; State of Himachal Pradesh and Anr. vs. ShashiKumar reported in (2019) 3 SCC 653 : [2019] 2 SCR432 – relied on.

N.C.Santhosh vs. State of Karnataka and Ors. (2020)7 SCC 617: [2020] 3 SCR 1177; Govind Prakash VermaDvs. LIC reported in (2005) 10 SCC 289 – referred to.

Case Law Reference

From the Judgment and Order dated 14.09.2018 of the High Courtof Judicature at Allahabad in Special Appeal (Defective) No.620 of 2018.

FMs. Ruchira Goel, Amol Chitravanshi, Advs. for the Appellants.

Shashank Singh, Prashant Mishra, Mohd. Asad Khan, AdilSharfuddin, Advs. for the Respondent.

The Judgment of the Court was delivered by GM. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 14.09.2018 passed by the High Court of Judicature atAllahabad in Special Appeal Defective (SAD) No.620 of 2018, by whichthe Division Bench of the High Court has allowed the said appeal and H

quashed and set aside the judgment and order dated 31.07.2018 passedby the learned Single Judge and consequently has directed the appellants– original respondents to consider the candidature of the respondentherein – original appellant for appointment on compassionate ground inGrade-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 wasposted and serving as Messenger in Police Radio Department of UttarPradesh (Class-IV) died on 07.11.2014. The respondent herein beingwidow of the deceased – government servant submitted an applicationdated 05.12.2014 for appointment on the post of Assistant Operator inPolice Radio Department on compassionate ground which was rejectedon the ground that she is not fulfilling the requisite eligibility criteria forthe said post. That thereafter the respondent submitted another applicationbefore the U.P. Police Radio Headquarter, Lucknow for appointment onthe post of Workshop Hand on compassionate ground. However as shefailed to clear the physical fitness examination conducted on 28.01.2018for the selection of Workshop employee, her application for appointmentas Workshop employee on compassionate ground came to be rejected.Due to unsuccessful in the physical eligibility test on the post of WorkshopHand/Workshop employee, vide letter dated 23.02.2018 of the PoliceRadio Headquarter, U.P., Lucknow, the respondent herein was offeredthe post below the rank of Workshop Hand i.e. Messenger in RadioDepartment. Instead of accepting the said post the respondent filed thewrit petition before the High Court claiming the appointment on the postof Workshop Hand (Karmshala Karmchari) in Police Radio Departmentunder the provisions of Dying-In-Harness Rules 1974 (hereinafterreferred to as the Rules 1974) on compassionate ground and to directthe appellants to appoint her on the post of Workshop Hand (KarmshalaKarmchari) or the post suitable for her in similar cadre.

2.2 By the judgment and order dated 31.07.2018, learned SingleJudge of the High Court dismissed the said writ petition on the groundthat as the deceased employee was Class-IV employee and she hasalso been offered appointment on a Class-IV post, she cannot claim theappointment on compassionate ground on the post of Workshop Hand oron any other suitable Class-III post.

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A2.3 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Single Judge, the respondent herein preferred theappeal before the Division Bench of the High Court and by the impugnedjudgment and order the Division Bench of the High Court has set asidethe order passed by the learned Single Judge and has allowed the appealand has directed the appellants to consider the candidature of theBrespondent herein for appointment on compassionate ground in Grade-III service and same be accorded to her if she otherwise does not sufferany ineligibility. By the impugned judgment and order the Division Benchof the High Court has observed that a bare perusal of Rule 5 of theRules 1974 makes it crystal clear that appointment under Rule 5 is requiredCto be given on a “suitable post” and the term ‘suitable’ in Rule 5 pertainsto suitability of the person who desires for appointment and it has nothingto do with the post held by the deceased government servant. The DivisionBench also observed that the suitability of the aspirant is required to beassessed on the basis of the educational qualification and other eligibilitiesso possessed by such person. The Division Bench noted that in the caseDin hand, respondent is having the qualification of Bachelors Degree inArts as well as Bachelors Degree in Education and therefore qualifiedfor appointment on a post in Grade-III.

3. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the Division Bench of the High Court, the State ofEU.P. and others have preferred the present appeal.

4. Ms. Ruchira Goel, learned Advocate appearing on behalf ofthe appellants has vehemently submitted that in the facts andcircumstances of the case, the Division Bench of the High Court hasmisinterpreted the Rule 5 of the Rules 1974 by observing that theFrespondent shall be entitled to appointment on compassionate ground on‘suitable post’ considering the educational qualification and irrespectiveof the fact that the deceased employee was working on Class-IV post.It is submitted that the Division Bench of the High Court has not properlyappreciated the fact that the appellant sought appointment onGcompassionate ground which cannot be equated with regular post/regularrecruitment.

4.1 It is submitted that ‘suitable post’ is required to be linked tothe object and purpose of appointment on compassionate ground.

4.2 It is submitted that the object and purpose of providing theHappointment on compassionate ground is to meet out the difficulties created on account of sudden death of the sole bread earner and cannotbe equated with the regular recruitment/appointment. It is furthersubmitted that ‘suitable post’ is to be considered considering the postheld by deceased employee and it cannot be a higher post.

4.3 It is submitted that ‘suitable post’ mentioned in Rule 5 of Rules1974 has to be construed considering the educational qualification ofdependent vis-à-vis the post held by the deceased employee.

4.4 It is submitted that in the present case earlier the respondentapplied for the post of Sub-Inspector for which the respondent was notpossessing the requisite qualification of ITI. It is submitted that evensubsequently when she applied for the appointment on compassionateground on the post of Workshop Hand she did not clear the physicalexamination test which was required to be cleared as per Uttar PradeshRadio Adhinasth Sewa Second Amendment Niyamawali, 2005. It issubmitted that therefore the respondent was offered next lower post i.e.Messenger, which the respondent refused to accept.

4.5 It is submitted that even as per the Circular dated 24.11.2015,only one opportunity was required to be given for appointment on anypost to the dependent of the deceased. It is submitted that in the presentcase, the respondent failed to avail the opportunity twice.

4.6 It is submitted that the Division Bench of the High Court haserred in holding that the ‘suitable post’ under Rule 5 of the Rules 1974,would mean any post suitable to the qualification of the candidates.4.7 Making the above submissions, it is prayed to allow the presentappeal.

5. The present appeal is vehemently opposed by Shri ShashankSingh, learned Advocate appearing on behalf of the respondent. It issubmitted that in the facts and circumstances of the case, the DivisionBench of the High Court has rightly interpreted Rule 5 of the Rules1974, would mean any post suitable to the qualification of the candidate.

5.1 It is submitted that in the present case the Division Bench ofthe High Court has not directed to appoint the respondent as WorkshopHand, but has directed to consider the case on any other suitable post asGrade-III looking to the qualification of the respondent.

5.2 It is vehemently submitted that as such Circular dated24.11.2015, issued by the DGP, Uttar Pradesh, granting only one A

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Aopportunity for appointment on compassionate ground on any post to thedependent of the deceased, and in case such dependent fails to avail theopportunity, such person shall be offered appointment on any other lowerrank within a period of three months shall not be applicable to the factsof the case on hand as the respondent applied prior to the said circular.It is submitted that therefore the conditions in the said circular in relationBto grant of one opportunity shall not be applicable to the respondentherein.

5.3 It is further submitted that while determining ‘suitability’ underthe provisions of Rules 1974, Rule 5 of the said rules laying downqualification requirements ought to be read harmoniously with Rule 8 ofCthe Rules 1974 that the candidate ought to be able to maintain minimumstandards of work and efficiency.

5.4 It is submitted that a hyper-technical approach ought not to beadopted in cases of compassionate appointments. It is submitted that sofar as the compassionate appointments are concerned such appointmentsDare exempted from the requirements of ordinary/normal recruitmentprocedure.

5.5 It is further submitted that there is no bar for appointment of adependent at a higher post than was held by the deceased. It is submittedthat Rule 5 of Rules 1974 provides that the appellant may be given aEsuitable employment in government service on a post except the postwithin the purview of the Uttar Pradesh Public Service Commission inrelaxation of he normal recruitment rules.

5.6 It is submitted that even the respondent ought not to be deniedthe appointment as Workshop Hand on the ground that the respondentFfailed to pass the physical test. It is submitted that the suitability of apost may be determined on the basis of educational qualification and/orother criteria. It is submitted that it is true that as per the provisions oflaw once a post is accepted on account of compassionate appointment,no right may be claimed to further or later apply for a higher post. It isGsubmitted that however the facts in the present case are peculiar. Thespecialized post of Workshop Hand requires, in addition to requisiteeducational qualification, a physical test also to be passed. It is submittedthat the respondent’s failure to pass the physical test makes her ineligiblefor this particular post. However, the post of Messenger being offered isdisproportionate to her educational qualifications. Therefore, theHrespondent may be considered for an alternate or suitable post within Grade-III wherein such specific recruitment of the physical test maynot be applicable as the down gradation of the post would render hereducational qualification futile.

5.7 Making the above submissions and relying upon the decisionof this court in case of Phoolwati (Smt) vs. Union of India and Othersreported in 1991 Supp (2) SCC 689, it is requested to dismiss the presentappeal.

6. Heard the learned counsel for the respective parties at length.

7. The respondent’s husband was serving as Messenger (Class-IV/Grade-IV post) in Police Radio Department. He died on 07.11.2014.The respondent-widow of the deceased – government servant submittedan application on 05.02.2014 for appointment on the post of AssistantOperator which was not considered as she was not fulfilling the requisiteeligibility criteria required for the post of Assistant Operator. Thatthereafter she made an application for the appointment on compassionateground on the post of Workshop Hand which is a Grade-III post on19.02.2015. She was granted the opportunity for appointment on saidpost, however, she could not pass the physical eligibility test conductedfor the said post and thereby as a result of her failure in physical eligibilitytest, she could not be granted the appointment on the post of WorkshopHand on compassionate ground. Still by order dated 23.02.2018, therespondent was offered the post below the rank of Workshop Hand i.e.Messenger in Radio Department, which she refused and the respondentinsisted that she must be appointed on the compassionate ground on thepost of Workshop Hand or equivalent post of Grade-III looking to hereducational qualification. The learned Single Judge dismissed the writpetition. However, the Division Bench by the impugned judgment andorder has directed to consider the case of the respondent for appointmenton compassionate ground on the post of Workshop Hand or any equivalentpost in Grade-III looking to her qualification and on interpretation ofRule 5 that the ‘suitable post’ under Rule 5 of the Dying-in-HarnessRules 1974 would mean any post suitable to the qualification of thecandidate. The aforesaid is the subject matter of appeal before this court.

8. While considering the issue involved in the present appeal, thelaw laid down by this court on compassionate ground on the death of thedeceased employee are required to be referred to and considered. Inthe recent decision this court in Civil Appeal No.5122 of 2021 in thecase of the Director of Treasuries in Karnataka & Anr. vs. V. Somashree, AB

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Ahad occasion to consider the principle governing the grant of appointmenton compassionate ground. After referring to the decision of this court inN.C. Santhosh vs. State of Karnataka and Ors. reported in (2020) 7SCC 617, this Court has summarized the principle governing the grant ofappointment on compassionate ground as under:- B(i)that the compassionate appointment is an exception to thegeneral rule;

(ii) that no aspirant has a right to compassionate appointment;

(iii) the appointment to any public post in the service of theState has to be made on the basis of the principle inCaccordance with Articles 14 and 16 of the Constitution ofIndia;

(iv) appointment on compassionate ground can be made onlyon fulfilling the norms laid down by the State’s policy and/or satisfaction of the eligibility criteria as per the policy; D

(v) the norms prevailing on the date of the consideration of theapplication should be the basis for consideration of claimfor compassionate appointment.

9. As per the law laid down by this court in catena of decisions onthe appointment on compassionate ground, for all the governmentEvacancies equal opportunity should be provided to all aspirants asmandated under Article 14 and 16 of the Constitution. However,appointment on compassionate ground offered to a dependent of adeceased employee is an exception to the said norms. The compassionateground is a concession and not a right.F

9.1 In the case of State of Himachal Pradesh and Anr. vs. ShashiKumar reported in (2019) 3 SCC 653, this court had an occasion toconsider the object and purpose of appointment on compassionate groundand considered decision of this court in case of Govind Prakash Vermavs. LIC reported in (2005) 10 SCC 289, in para 21 and 26, it is observedGand held as under:- “21. The decision in Govind Prakash Verma [Govind PrakashVerma v. LIC, (2005) 10 SCC 289, has been consideredsubsequently in several decisions. But, before we advert to thosedecisions, it is necessary to note that the nature of compassionateHappointment had been considered by this Court in Umesh Kumar Nagpal v. State of Haryana [Umesh Kumar Nagpal v. State ofHaryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930] . Theprinciples which have been laid down in Umesh KumarNagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4SCC 138 : 1994 SCC (L&S) 930] have been subsequently followedin a consistent line of precedents in this Court. These principlesare encapsulated in the following extract: (Umesh Kumar Nagpalcase [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC138 : 1994 SCC (L&S) 930] , SCC pp. 139-40, para 2)

“2. … As a rule, appointments in the public services should bemade strictly on the basis of open invitation of applications andmerit. No other mode of appointment nor any other considerationis permissible. Neither the Governments nor the publicauthorities are at liberty to follow any other procedure or relaxthe qualifications laid down by the rules for the post. However,to this general rule which is to be followed strictly in everycase, there are some exceptions carved out in the interests ofjustice and to meet certain contingencies. One such exceptionis in favour of the dependants of an employee dying in harnessand leaving his family in penury and without any means oflivelihood. In such cases, out of pure humanitarian considerationtaking into consideration the fact that unless some source oflivelihood is provided, the family would not be able to makeboth ends meet, a provision is made in the rules to providegainful employment to one of the dependants of the deceasedwho may be eligible for such employment. The whole objectof granting compassionate employment is thus to enable thefamily to tide over the sudden crisis. The object is not to give amember of such family a post much less a post for post heldby the deceased. What is further, mere death of an employeein harness does not entitle his family to such source of livelihood.The Government or the public authority concerned has toexamine the financial condition of the family of the deceased,and it is only if it is satisfied, that but for the provision ofemployment, the family will not be able to meet the crisis thata job is to be offered to the eligible member of the family. Theposts in Classes III and IV are the lowest posts in non-manualand manual categories and hence they alone can be offeredon compassionate grounds, the object being to relieve the family, A

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Aof the financial destitution and to help it get over the emergency.The provision of employment in such lowest posts by makingan exception to the rule is justifiable and valid since it is notdiscriminatory. The favourable treatment given to suchdependant of the deceased employee in such posts has arational nexus with the object sought to be achieved viz. reliefBagainst destitution. No other posts are expected or required tobe given by the public authorities for the purpose. It must beremembered in this connection that as against the destitutefamily of the deceased there are millions of other families whichare equally, if not more destitute. The exception to the ruleCmade in favour of the family of the deceased employee is inconsideration of the services rendered by him and the legitimateexpectations, and the change in the status and affairs, of thefamily engendered by the erstwhile employment which aresuddenly upturned.”

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D“26. The judgment of a Bench of two Judges in Mumtaz YunusMulani v. State of Maharashtra [Mumtaz Yunus Mulani v. Stateof Maharashtra, (2008) 11 SCC 384 : (2008) 2 SCC (L&S) 1077]has adopted the principle that appointment on compassionategrounds is not a source of recruitment, but a means to enable thefamily of the deceased to get over a sudden financial crisis. TheEfinancial position of the family would need to be evaluated on thebasis of the provisions contained in the scheme. The decisionin Govind Prakash Verma [Govind Prakash Verma v. LIC,(2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been dulyconsidered, but the Court observed that it did not appear that theFearlier binding precedents of this Court have been taken note ofin that case.”

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10. Thus as per the law laid down by this court in the aforesaiddecisions, compassionate appointment is an exception to the general ruleof appointment in the public services and is in favour of the dependentsof a deceased dying in harness and leaving his family in penury andGwithout any means of livelihood, and in such cases, out of purehumanitarian consideration taking into consideration the fact that unlesssome source of livelihood is provided, the family would not be able tomake both ends meet, a provision is made in the rules to provide gainfulemployment to one of the dependants of the deceased who may beHeligible 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 such family a post much less a post held by thedeceased.

10.1 Applying the law laid down by this court in the aforesaiddecisions and considering the observations made hereinabove and theobject and purpose for which the appointment on compassionate groundis provided, the submissions on behalf of the respondent and theinterpretation by the Division Bench of the High Court on Rule 5 ofRules 1974, is required to be considered.

10.2 The Division Bench of the High Court in the present casehas interpreted Rule 5 of Rules 1974 and has held that ‘suitable post’under Rule 5 of the Rules 1974 would mean any post suitable to thequalification of the candidate irrespective of the post held by the deceasedemployee. The aforesaid interpretation by the Division Bench of theHigh Court is just opposite to the object and purpose of granting theappointment on compassionate ground. ‘Suitable post’ has to beconsidered, considering status/post held by the deceased employee andthe educational qualification/eligibility criteria is required to be considered,considering the post held by the deceased employee and the suitabilityof the post is required to be considered vis a vis the post held by thedeceased employee, otherwise there shall be no difference/distinctionbetween the appointment on compassionate ground and the regularappointment. In a given case it may happen that the dependent of thedeceased employee who has applied for appointment on compassionateground is having the educational qualification of Class-II or Class-I postand the deceased employee was working on the post of Class/Grade-IVand/or lower than the post applied, in that case the dependent/applicantcannot seek the appointment on compassionate ground on the higherpost than what was held by the deceased employee as a matter of right,on the ground that he/she is eligible fulfilling the eligibility criteria of suchhigher post. The aforesaid shall be contrary to the object and purpose ofgrant of appointment on compassionate ground which as observedhereinabove is to enable the family to tide over the sudden crisis on thedeath of the bread earner. As observed above, appointment oncompassionate ground is provided out of pure humanitarian considerationtaking into consideration the fact that some source of livelihood is providedand family would be able to make both ends meet.

10.3 In the present case as observed hereinabove initially therespondent applied for appointment on compassionate ground on the AB

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Apost of Assistant Operator in Police Radio Department. The same wasnot accepted by the Department and rightly not accepted on the groundthat she was not fulfilling requisite eligibility criteria for the post ofAssistant Operator. Thereafter the respondent again applied forappointment on the compassionate ground on the post of Workshop Hand.The case of the respondent was considered, however, she failed in theBphysical test examination, which was required as per the relevantrecruitment rules of 2005. Therefore, thereafter she was offeredappointment on compassionate ground as Messenger which wasequivalent to the post held by the deceased employee. Thereforeappellants were justified in offering the appointment to the respondentCon the post of Messenger. However, the respondent refused theappointment on such post.

11. In view of the above and for the reasons stated above, theDivision Bench of the High Court has misinterpreted and misconstruedRule 5 of the Rules 1974 and in observing and holding that the ‘suitableDpost’ under Rule 5 of the Dying-In-Harness Rules 1974 would meanany post suitable to the qualification of the candidate and the appointmenton compassionate ground is to be offered considering the educationalqualification of the dependent. As observed hereinabove such aninterpretation would defeat the object and purpose of appointment oncompassionate ground.E

12. In view of the above for the reasons stated above, presentappeal succeeds. The impugned judgment and order passed by theDivision Bench of the High Court dated 14.09.2018 in Special AppealDefective (SAD) No.620 of 2018 is hereby quashed and set aside.Consequently the writ petition preferred by the respondent before theFlearned Single Judge being Writ Petition No.16009 of 2018 standsdismissed and the order passed by the learned Single Judge dated31.07.2018 dismissing the writ stands restored. No costs.

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Divya Pandey

Appeal allowed.

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