Judgment:
M.N. Venkatachaliah, C.J. and; S. Mohan, J.
1. Heard learned counsel on both sides.
2. The High Court has directed the appointment of the respondent to the post of a Clerk on “compassionate grounds” in view of the circumstance that his father, who was serving the petitioner-Corporation, died while in service.
3. This area of recruitment is presenting increasingly difficult problems. The petitioner's learned counsel says, perhaps not without justification, that similar claims by persons who have also become eligible for similar employment on compassionate grounds earlier were all put in a waiting list and afforded opportunities for appointment in the order of seniority in the list. Petitioner urges that it would be difficult to accommodate candidates out-of-turn by reason alone of the fact that they chose to go to a court and obtained a direction. It is submitted that while a mandamus to consider the case could be issued, however, positive directions for appointment are not within the scope of the proceedings as that would necessitate the candidate jumping the queue to secure an out-of-turn benefit.
4. Sri Sodhi submitted that an order of the court should not add to the eligibility of the candidate and place him higher than other similarly circumstanced persons. Sri Sodhi submits that while a number of them who have become eligible earlier, are in the list, it would not be proper to direct the appointment straightaway, without reference to the candidate's position in the waiting list.
5. That apart, Sri Sodhi submits that having regard to the qualification of the respondent, he cannot straightaway be put into the cadre of clerks and can only be appointed in a Class IV category. Sri Sodhi says that if respondent obtains a degree — as indeed it is stated that he is in the B.A. final year — it will be possible to accommodate him as a clerk in his turn.
6. We understand the predicament into which the order under appeal has put the petitioner-Corporation. The High Court in the course of its order observes:
“Though the factual position is admitted by the respondents, yet it has been pleaded by the respondent-Corporation, that no doubt for appointing a person as a clerk, the petitioner does fulfil the qualifications, yet if the post is to be filled by open competition by direct recruitment, the applicant must be either M.A. or second division graduate, with three years' service in Government, Semi-Government or Local Body Organisation.
After hearing the learned counsel for the parties, we are satisfied that the plea taken by the respondents is untenable, inasmuch as when employment is to be provided under the policy instructions of the State Government, on compassionate grounds, it is not to be treated as appointment by open competition and direct recruitment. Therefore, the qualifications possessed by direct recruits are not to be taken into consideration. When an employee dies in harness and his widow or the ward is to be helped by providing employment on priority basis, in place of the deceased, the appointment is always on compassionate grounds, even by relaxation of rules, if necessary.”
We find it difficult to approve this reasoning. The appointing authority cannot ignore the fact that while the minimum qualification for eligibility may be matric, however, generally graduates and even post-graduate degreeholders respond and offer themselves for clerical appointments. Courts cannot ignore this fact and direct that possession of minimum qualification alone would be sufficient. Some discretion to the appointing authority as to the choice of the post, taking into account the realities of the employment-market, should be available. Then again it would be erroneous for the courts to compel appointment to particular posts. The fact of the matter is that though this kind of appointment is sui generis, and it is reasonable to expect that as and when such claims arise a provision should be made for accommodating such claims from out of the posts available for direct recruitment, the Corporation is not unreasonable when it suggests that the qualifications for such appointments should broadly be commensurate with the level of candidates who offer themselves for appointment and not merely the minimum qualification.
7. Learned counsel for the respondent, however, urged that in another case—of a certain Sukhchain Singh—the petitioner had appointed him straightaway though he was lower in the waiting list. The explanation proffered by the Corporation for this freak appointment is more interesting than acceptable. The petitioner was clearly wrong in allowing Sukhchain Singh to jump the queue. Having done that for reasons known only to it, petitioner has put itself in an unenviable situation and the kind of explanation offered only serves to make matters worse.
8. We set aside the High Court's order directing the appointment of the respondent and in substitution of the positive directions issued to the Corporation, we direct the Corporation to consider the case of the respondent for an appointment on compassionate grounds commensurate with his qualifications. Such consideration should be done within three months from today.
9. The special leave petition is disposed of accordingly.