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SURJIT SINGH versus STATE OF PUNJAB & ORS

High Court of Punjab and Haryana, Chandigarh

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SURJIT SINGH v. STATE OF PUNJAB & Ors - CWP-13020-2003 [2005] RD-P&H 115 (23 August 2005)

CIVIL WRIT PETITION NO. 13020 OF 2003 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CIVIL WRIT PETITION NO. 13020 of 2003

DATE OF DECISION: JANUARY 06, 2006

SURJIT SINGH ...........PETITIONERS

through

Sh.M.P.Goswami, Advocate

VERSUS

STATE OF PUNJAB AND OTHERS ................RESPONDENTS through

Ms.Nirmaljit Kaur, Additional Advocate

General, Punjab, for respondents No.1 and 2.

Sh.P.S.Patwalia, Senior Advocate with

Sh.D.S.Patwalia and Sh.Neeraj Kumar,

Advocates, for respondent No.3.

CORAM
HON'BLE MR.JUSTICE D.K.JAIN, CHIEF JUSTICE.

HON'BLE MR.JUSTICE HEMANT GUPTA.

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest ? -.-

HEMANT GUPTA, J.

The present writ petition, in public interest, is to seek a writ of CIVIL WRIT PETITION NO. 13020 OF 2003 [2] certiorari for quashing appointment of respondent No.3 as Inspector in Punjab Police vide appointment letter dated 22.01.2003 on compassionate grounds though the said respondent is son of a Cabinet Minister in the present State Government.

2. It is the case of the petitioner that highly influential people, like politicians and senior officers, use their undue influence to grab the benefit for their own wards though meant for the dependents of terrorist affected families. As a result, the genuine sufferers of terrorist activities, who had lost their bread winners, are deprived of the concessions provided by the government. It is alleged that appointment on compassionate ground cannot be claimed after lapse of time and when the crisis is over. The object of compassionate appointment is to enable the family of the deceased employee to tide over the sudden financial crisis and not to provide employment. Therefore, respondent No.3, who is son of a Cabinet Minister in the present State Government, could not have been appointed on compassionate ground allegedly in terms of clause 5(1)(iv) of policy dated 05.02.1996. It is alleged that respondent No.3 was appointed even though the said policy was superseded by another policy dated 21.11.2002 which does not contemplate appointment on such ground.

3. On the other hand, the State defended the appointment of respondent No.3 on the ground that the case of the said respondent is covered under the policy dated 05.02.1996 as the petitioner applied for job CIVIL WRIT PETITION NO. 13020 OF 2003 [3] on 13.09.2002 and his case was considered in October, 2002. It is pointed out that father of the petitioner has helped the administration in fighting terrorism and was on the hit list of the terrorists. He had a narrow escape in the year 1992 when a bomb was thrown at him. The fact that father of respondent No.3 was receiving threats is sought to be supported from the certificate issued by the Deputy Commissioner dated 23.10.2002.

4. Respondent No.3 in his written statement has alleged that after the Operation Bluestar in Punjab in the year 1984, the political and social situation in the State of Punjab was in turmoil. The elections to the State Legislative Assembly were held in the year 1985 but the then elected Government could not control the situation leading to imposition of President's rule in the State of Punjab in the year 1987. Subsequently, the elections were held in the year 1992 in a bid to restore democracy. The father of respondent No.3 resigned from his employment as Deputy District Attorney to contest the elections even in the face of acute terrorists threats.

The father of respondent No.3 was elected as a member of the Legislative Assembly. Shortly after his election, the terrorists made an attempt on his life. During the course of hearing, learned counsel for respondent No.3 has admitted that, in fact, father of respondent No.3 was inducted as a Cabinet Minister in the Ministry headed by Sardar Beant Singh in the year 1992. It is further pleaded that father of said respondent has been raising his voice against the terrorist activities and anti social elements in the State of Punjab CIVIL WRIT PETITION NO. 13020 OF 2003 [4] for the last over a decade. The result was that respondent's father and his family remained on the hit list of the terrorists and that is why the family has been provided security cover right from 1992 onwards till date. It is also mentioned that Shri Gurmej Singh, maternal grand-father of the respondent, remained Minister in the State of Punjab and real maternal uncle of respondent, namely, Shri Harbhajan Singh was shot dead by the terrorists in the year 1992.

5. A short affidavit has been filed by respondent No.4, father of respondent No.3, wherein he has denied exercising of any influence by him.

He adopts the written statement filed by his son respondent No.3.

6. Learned counsel for respondent No.3 had raised a preliminary objection at the outset that the writ petition challenging appointment of respondent No.3, in public interest, is not maintainable. He has relied upon three judgment of Hon'ble Supreme Court, namely, Dr.B.Singh vs.

Union of India and others, (2004) 3 Supreme Court Cases 363, Gurpal Singh vs. State of Punjab and others, (2005) 5 Supreme Court Cases 136; and Dattaraj Nathuji Thaware vs. State of Maharashtra and others, (2005) 1 Supreme Court Cases 590.

7. However, without going into the question whether the present public interest litigation is maintainable or not, we find that the legality and validity of appointment of respondent No.3 is required to be examined in view of the fact that a ward of a Cabinet Minister of the State Government CIVIL WRIT PETITION NO. 13020 OF 2003 [5] has been appointed on compassionate grounds. The question whether the law makers can be permitted to flout the instructions framed by the State Government and the judgments of the Courts on the issue is the pertinent question which arises in the present writ petition.

8. The issue that under what circumstances, the State Government can create an exception to the general rules of appointment to the public post i.e., by open invitation to all eligible candidates to compete and thereafter select the most meritorious candidate has drawn the attention of the Hon'ble Supreme Court in a number of cases. In Umesh Kumar Nagpal vs. State of Haryana and others, (1994) 4 Supreme Court Cases 138, compassionate employment was upheld so as to enable the family to tide over sudden crisis. It was held that the object is not to give a member of such family a post much less a post for post held by the deceased. The government or the public authority concerned is to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. It was also observed that as against the destitute family of the deceased, there are millions of other families which are equally, if not more destitute. It was found that the post is not offered to cater to his status but to see the family through the economic calamity. The Court concluded thus:- ".....the compassionate employment cannot be granted after a CIVIL WRIT PETITION NO. 13020 OF 2003 [6] lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."

9. After the said judgment, the State Government issued circular on 05.02.1996. In the present case, the category of persons who can be considered appears at clause 5(1)(iv). It contemplates offering appointments on Class-III and IV posts on compassionate grounds to a person (breadwinner), who helped the civil administration in fight, against terrorism and has suffered great loss/ misery and is on the hit list of the terrorist or to a dependent son or daughter of such a person (breadwinner).

Appointments under this category are contemplated to be made in police force only. Clause 6 (xvi) stipulates that request for compassionate appointments by the dependents are to be made within a period of six months from the date of death of the breadwinner/ Government employee as per policy instructions contained in circular letter No. 11/16/94-2PP1/18102 dated 1.9.1994. As per said circular letter, the previous instructions dated 24.4.1986 were clarified. It was circulated that the said instructions do not contemplate that the dependent members of the affected families can make CIVIL WRIT PETITION NO. 13020 OF 2003 [7] applications at any point of time. The said circular mentioned that priority appointments are made only with the motive that on account of the death of the breadwinner, the family can be provided immediate help. Therefore, it was clarified that if an application by the dependent member is not moved within the reasonable period, then it will be presumed that the appointment on priority is not required by the affected family. The said reasonable period was contemplated as that of six months. It was also circulated that where no eligible dependent member is available, the application can be moved forthwith when such dependent member becomes so eligible.

10. Clause 8 of the instructions dated 5.2.1996 contemplates that while giving effect to the above policy, it has to be ensured meticulously that the claims of the persons, who seek appointments on compassionate grounds, are checked very carefully and bona fides duly verified after obtaining information and documents.

11. In view of the above instructions, the question which requires to be examined is (i) whether respondent No.3 could be appointed on compassionate grounds in terms of policy dated 5.2.1996, and (ii) whether respondent No.3 could be appointed vide letter dated 22.1.2003 after the said instructions were superseded vide instructions dated 22.11.2002.

12. Before proceeding further, it would be advantageous to reproduce certain relevant provisions of instructions dated 5.2.1996.

"5. For offering appointments on Class-III and IV posts on CIVIL WRIT PETITION NO. 13020 OF 2003 [8] compassionate grounds, following categories of persons may be considered.

Sr.No. Category of persons

(1)(iv) To a person (breadwinner), who helped the Civil Administration in fight, against terrorism and has suffered great loss/ misery and is on the hit list of the terrorist or to a dependent son or daughter of such a persons (breadwinner). (Under this category compassionate appointments will be made in Police Force only).

(No.11/64/92-2PP1/10055, dated 7th

July, 1992 /

14th

Agust, 1992).

(No.11/64/92-2PPI/19989, dated 2nd

December,

1992).

6. (xvi) Requests for compassionate appointments by the dependents are to be made within a period of six months from the date of death of the breadwinner/ Government employee as per policy instructions contained in circular letter No.11/16/94-2PPI / 18102 dated 1st

September, 1994.

8. While giving effect to the above policy, it has to be ensured meticulously that the claims of the persons, who seek CIVIL WRIT PETITION NO. 13020 OF 2003 [9] appointment on compassionate grounds are checked very carefully and bona fides duly verified after obtaining information and documents, as per Annexure-I."

13. In terms of Clause 5(1)(iv) of the above policy, the appointment on compassionate grounds could be made to a persons (breadwinner), who:- (i) helped the civil administration in fight against terrorism, (ii) and has suffered a great loss/ misery; (iii) and is on the hit list of the terrorists.

In the alternative, to a dependent son or a daughter of such a person (breadwinner) i.e., a dependent son or a daughter of the person who satisfies the above-said three conditions.

Still further, the request for compassionate appointment can be made within a period of six months from the date of death of the breadwinner in terms of the policy instructions dated 1.9.1994.

14. The claim of respondent No.3 for compassionate appointment is based upon a certificate issued by the District Magistrate, Annexure R3/6 dated 23.10.2002. The said certificate had been furnished in terms of clause 8 of the instructions dated 5.2.1996. The said certificate reads as under:- " From out of the documents produced by the applicant and on the basis of FIR No.56 dated 13.3.92, Police Civil Line, Amritsar, it proves that there was an attack by the terrorists in the Parkash Cinema, G.T.Road, Amritsar. In that attack, CIVIL WRIT PETITION NO. 13020 OF 2003 [10] gunman attached to Sh.Sardul Singh received injuries whose particulars is given in the FIR. Similarly, as per D.O. letter No.

Special-1 dated 3.1.1997 issued by S.S.P. Majitha, Headquarters Amritsar, Sh.Kulbir Singh IPS, it is certified that Sardul Singh s/o Banta Singh resident of Village and Post Office Bundala, Tehsil Amritsar, Hall 592-A Ranjeet Avenue, Amritsar, and his family remained under the constant threats of terrorists".

15. The said certificate will only show that there was an attack by the terrorists in the Parkash Cinema, Amritsar, wherein gunman attached to respondent No.4 received injuries. Still further, on the basis of letter dated 3.1.1997, it was certified that respondent No.4 and his family remained under constant threats of terrorists. The said certificate does not satisfy the conditions of clause 5(1)(iv) of the circular dated 5.2.1996. The certificate is silent about the help, if any, rendered by respondent No.4 to the civil administration in fight against terrorism and sufferance of any great loss/ misery. The loss, if any, is that to the gunman attached to respondent No.4.

The attack by the terrorists on 13.03.1992 was in the Parkash Cinema.

Therefore, in fact, none of the three conditions are satisfied in respect of the incident of 13.3.1992. Similarly, D.O. letter dated 3.1.1997 would at best satisfy the third condition of clause 5(1)(iv) i.e., family is on the hit list of terrorists. Even the letter dated 3.1.1997 is silent about the help, if any, CIVIL WRIT PETITION NO. 13020 OF 2003 [11] rendered by respondent No.4 to the civil administration in fight against terrorism and sufferance of any loss or misery. All the three conditions as detailed in Para No.13 are required to be satisfied. Simply on the basis of satisfaction of one of the conditions, the appointment could not be made on compassionate grounds.

16. Still further, appointment on compassionate grounds to a dependent son or a daughter of a person (breadwinner) can be granted only if the breadwinner has died. The said intention is supported by clause 6(xvi) of the aforesaid instructions which contemplates that request for compassionate appointment by the dependents is to be made within a period of six months from the date of death of the breadwinner. Otherwise also, the appointment to a dependent son of a person who is still earning for the family would not satisfy the test laid down in Umesh Kumar Nagpal's case (supra) providing exception to the general rule. It may be noticed that respondent No.3 was 27 years of age in the year 2002 when he made an application for appointment in the police department. He graduated in the year 1997-98 i.e., the minimum qualification for appointment as Inspector i.e., Class-III post as stated by Shri Patwalia during the course of hearing.

Both factors taken into consideration i.e., incident of 1992 and letter of 1997, were prior to the said date. Therefore, even if both these factors are to be considered relevant, still respondent No.3 could not be considered for appointment in the year 2002 i.e., almost after 5 years. The request for CIVIL WRIT PETITION NO. 13020 OF 2003 [12] compassionate appointment has been made after father of respondent No.3 was elected as a member of the Legislative Assembly and appointed as a Cabinet Minister. Such request was made more than 10 years after the first incident relied upon by the State Government and 5 years of the second incident. In no circumstances, the request for compassionate appointment made by respondent No.3, thus, can be said to help the family in distress.

The concession granted to the persons who fought terrorism was usurped by none else but by a ward of a Cabinet Minister. The framers of law have violated the instructions issued by the State Government in a most blatant manner. Instead of considering the claim of a person who helped the civil administration in the fight against terrorism and had suffered great loss/ misery, the policy has been used to provide a backdoor entry to a son of a Cabinet Minister. The most surprising aspect is that such an indefensible action is sought to be defended not only by respondent No.3 and 4 but also by the State Government with all vehemence. It only shows scant respect for the instructions and the policy issued by the respondents themselves.

17. In Director of Education (Secondary) vs. Pushpendra Kumar, (1998) 5 SCC 192, it has been held that the provision of compassionate employment is out of pure humanitarian consideration to provide some source of livelihood. Such a provision makes a departure from the general provision of making appointment by following the prescribed procedure. An exception cannot subsume the main provision and thereby CIVIL WRIT PETITION NO. 13020 OF 2003 [13] nullify it. The Court held to the following effect:- " The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread- earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful employment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure.

Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of CIVIL WRIT PETITION NO. 13020 OF 2003 [14] other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee...."

18. Still further, in National Hydroelectric Power Corporation vs. Nanak Chand, (2004) 12 Supreme Court Cases 487, the Court observed to the following effect:-

" It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis".

19. In Parmod Kumar vs. State of Haryana and others, 2004 (7) Services Law Reporter 709, a Division Bench of this Court has held that the philosophy underlying the policy of compassionate employment is to provide some source of sustenance to the family of an employee, who dies in harness. The methodology of compassionate appointment is an exception to the doctrine of equality enshrined in Articles 14 and 16 of the Constitution of India which imposes a constitutional obligation on all public CIVIL WRIT PETITION NO. 13020 OF 2003 [15] employers to consider the cases of all the eligible persons for appointment on public posts.

20. Still further, in Sona Devi and another vs. State of Haryana and others, 2005(2) Recent Services Judgments 755, a Division Bench of this Court held that compassion cannot be allowed to gallop like an unruly horse in favour of one or other member of the family of the deceased and such concept of compassionate appointment cannot be allowed to keep the consideration alive for a period ad finitum. It was held to the following effect:-

"....The concept of compassionate appointment is a third source which has been developed on the basis of compassion but such compassion cannot be allowed to gallop like an unruly horse in favour of one or other member of the family of the deceased because if it were to be so allowed, then such a consideration would go against the expectations of millions of other families which have been subjected to similar unforeseen miseries on account of the death of their breadwinner. The concept of compassionate appointment virtually obliterates an elaborate and transparent procedure of open recruitment but in the opinion of this Court, following the observations of the Apex Court, such a procedure cannot be allowed to keep the consideration alive for a period ad finitum. If it is allowed to do CIVIL WRIT PETITION NO. 13020 OF 2003 [16] so, it will encroach and create inroads into an otherwise transparent procedure commonly known as open recruitment.....".

21. In view of the above judgments, we hold that the appointment of respondent No.3 is a back door entry to a public post. Not only the condition precedent for making appointment in terms of the policy was not followed but such an application was entertained almost after 10 years of the alleged incident.

22. Although it is not necessary to answer the second question, but it would be relevant to determine the said question to examine the abuse of the policy for providing compassionate appointment by the respondents. On 5.8.2002, the State Government had imposed a complete ban on appointments on compassionate grounds as the new policy was to be circulated on the lines of the policy of Government of India. The said ban was lifted on 5.9.2002 even when the new policy was not circulated. No reason is forthcoming as to under what circumstances the ban earlier imposed was withdrawn within a month of imposing such ban. It appears that the ban was withdrawn so as to provide employment to respondent No.3 by a back door. The request for appointment on compassionate grounds was made by respondent No.3 on 13.9.2002. Before such request could be approved by the State Government on 24.12.2002, new policy dated 21.11.2002 was circulated. The appointment letter was issued on CIVIL WRIT PETITION NO. 13020 OF 2003 [17] 22.01.2003. Under the new policy, respondent No.3 could not be considered for appointment even as per stand of the State Government. In these circumstances, the appointment of respondent No.3 under the old policy shows flexibility of the State Government in bending the instructions to confer benefit on a ward of its Cabinet Minister.

23. We may notice that counsel for respondent No.3 has vehemently argued that since request for appointment was made prior to the issuance of new policy, therefore, appointment could be validly made under the old policy. Reliance is placed upon Rajesh Chander Sharma vs. The State of Punjab through the Chief Secretary to Govt.Punjab, Chandigarh and others, 1992(2) Recent Services Judgments 737, Surinder Singh vs. State of Haryana and others, 1996(1) Service Cases Today 767, Tarun Chakraborty vs. State of West Bengal and others, 1996(2) Service Cases Today 799; and Gurdip Singh vs. The State of Haryana State Electricity Board, 1997(4) Service Cases Today

833. Surinder Singh's case (supra) is a Division Bench judgment of this Court, whereas Rajesh Chander Sharma's case (supra) and Gurdip Singh's case (supra) are Single Bench decisions of this court. Tarun Chakraborty's case (supra) is a Single Bench judgment of Calcutta High Court. In Surinder Singh's case (supra), on the date of making of an application, a clear post of Chowkidar was available but it was on account of laxity on the part of the department, the application was not considered.

CIVIL WRIT PETITION NO. 13020 OF 2003 [18] The application was made within one month of the death of the father of the petitioner therein. In these circumstances, it was held that instructions subsequently issued cannot be applied retrospectively so as to prejudicially affect the rights of the petitioner. The said judgment is in view of the peculiar facts of the case. In Umesh Kumar Nagpal's case (supra), it was held that such employment is not a vested right which can be exercised at any time in future. The other judgments have not considered Umesh Kumar Nagpal's case (supra). Therefore, merely on the basis of making an application, no right accrues to the applicant to seek appointment under the old policy. As a rule, appointment to a public service is made on the basis of open invitation and merit. The appointment on compassionate grounds is exception to the rule and, therefore, no right can be claimed on the basis of an application made.

24. In view of the above, the writ petition is allowed with no order as to costs. The appointment of respondent No.3 is set aside and quashed.

( Hemant Gupta )

Judge

January 06, 2006 ( D.K.Jain )

ks Chief Justice


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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