Compassionate Appointment Cannot Be To A Post Higher Than That Held By Deceased Employee: Allahabad High Court Reiterates

The Allahabad High Court has reiterated that the compassionate appointment cannot be granted on a higher post than the post which was held by the deceased employee, despite the applicant having higher educational qualifications.

Relying on the decision of the Supreme Court in Suneel Kumar vs. State of U.P. and others and the observations given by the Apex Court while reversing the decision of Allahabad High Court in Smt. Premlata vs. State of U.P. and others, Justice Neeraj Tiwari held,

“Apex Court had twice interpreted the Rule 5 Rules 1974 as well as suitable employment as referred herein. Apex Court has clearly held that "suitable employment" in Rule 5 must be construed with the post held by the deceased employee and not by the higher qualification held by the dependent. View of the Apex Court is that compassionate appointment shall not be given upon a higher post than the post held by the deceased employee. Therefore, as on date, law of land is that legal heir cannot be given appointment on compassionate ground to a post higher than the post held by the deceased employee.”

Petitioner's father died in-harness while working as Class-IV employee at Nagar Palika Parishad, Faridpur, Bareilly. Petitioner applied for compassionate appointment on post of Class-III employee. The application was rejected on grounds that no post of Class-III employee was vacant and that the petitioner has no right to claim appointment to a particular post.

Counsel for petitioner contended that in absence of a vacant post, the employer is required to create a supernumerary post for Class-III employee and grant appointment. Relying on the decision of Apex Court in Sushma Gosain vs. Union of India and the decision of the Allahabad High Court in Smt. Premlata vs. State of U.P. and others, it was argued that the petitioner must be given compassionate appointment on the post he is qualified for.

Per contra, counsel for respondent argued that petitioner has no right to claim compassionate appointment to a particular post. It was argued that the decision of the Allahabad High Court in Smt. Premlata was under challenge before the Apex Court. Reversing the judgment of the High Court, the Apex Court had observed that higher qualification cannot be a ground for compassionate appointment to a higher post.

The Court observed that though the Allahabad High Court in Smt. Premlata has opined that “suitable appointment means appointment commensurate to the qualification,” the Supreme Court while reversing judgment has observed that

“Suitable post' has to be considered, considering status/ post held by the deceased employee and the educational qualification/eligibility criteria is required to be considered, considering the post held by the deceased 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 the appointment on compassionate ground and the regular appointment.”

The Supreme Court held that a family member having higher qualification cannot claim appointment at a higher post than that which was held by the deceased employee. Following the judgment of the Supreme Court, Justice Tiwari held that the petitioner is not entitled to compassionate appointment on the post of Class-III employee when his deceased father was a Class-IV employee.

Though the writ petition was dismissed, the Court recorded that the same does not exclude the petitioner from making an application for compassionate appointment on the post of Class-IV employee.

Case Title: Arpit Shukla vs. State Of U.P. And 4 Others 2024 LiveLaw (AB) 88 [WRIT - A No. - 19344 of 2023]

Citation: 2024 LiveLaw (AB) 88

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