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Judgment
Sambuddha Chakrabarti, J.
By this Writ Petition the petitioner has, inter alia, prayed for a direction upon the respondents authorities to absorb him in a permanent post in the
Indian Museum ( the museum, for short) on compassionate ground or to treat his absorption as continuous service, a direction upon the respondents to
consider the representation of the petitioner on compassionate ground, a writ in the nature of prohibition prohibiting the respondents from giving
appointment to an outsider without appointing the petitioner on compassionate ground and for other ancillary reliefs.
The case of the petitioner who has passed the Madhyamik examination, in short, is that his father was the Inspector of the museum. After working for
37 years his father made an application to the Director of the museum praying for retirement on medical ground and the employment of the petitioner.
The father of the petitioner retired from service on August 29, 2003 on account of his permanent incapacity. Thereafter, the petitioner made an
application for his absorption in Group D post on compassionate ground. On August 1, 2005 he joined a Group D post of the museum in the
Archaeology section. He alleges that at the time of joining he was told that the museum would absorb a dependent of an invalid pension holder directly
for the Group D post treating him to be a contingent staff.
His grievance is that although he has been working as a contingent staff for a long period he has not been made permanent. He along with his father
met the officer who had assured them that the petitioner would be absorbed permanently as and when a vacancy would arise. He waited for long, but
ultimately the alleged assurance did not materialize. On December 22, 2009, he sent a notice demanding justice through his learned Advocate for
consideration of his prayer for absorption on compassionate ground. On February 24, 2010, he came to learn from the office of the respondents that
they were soon going to fill up the vacancy from outsiders without considering his case. The petitioner makes further a grievance that although he had
not been absorbed permanently on compassionate ground, at least ten persons have been absorbed on that consideration which was done in
connivance with the employees’ union.
The petitioner filed a writ petition in the year 2010, inter alia, praying for a direction upon the respondents to immediately absorb the petitioner in the
permanent post. That writ petition was disposed of by a learned Single Judge inter alia directing the petitioner to make a fresh representation before
the Board of Trustees of the museum and the Board of Trustees in turn were directed to consider the representation of the petitioner and to pass a
reasoned order within the period as fixed by the Court.
Pursuant to the said order the petitioner made a representation to the Director of the museum i.e. the respondent No.2 herein, on July 28, 2014 along.
The respondent No.2 called the petitioner and a representative of the museum for a hearing on September 23, 2014. By a communication, dated
October 17, 2014, the respondent No.2 informed the petitioner that he was not entitled to claim any employment on the ground of compassionate
appointment.
The petitioner relies on the order dated July 14, 2014 passed by this Court on his earlier writ petition to the effect that the respondents discriminated
against the petitioner and were attempting to appoint outsiders. He further alleged that he cannot be deprived of his right to be absorbed in the Group
D post to which he had the sole right. The respondent No.2 did not apply his mind before passing the reasoned order. On the contrary, he had
mentioned a new fact which was not a part of the affidavit-in-opposition of the respondents in connection with the earlier writ petition. The petitioner
has given instances of some persons who were appointed or absorbed in Group D posts on compassionate ground which, according to the petitioner,
have been suppressed by the respondent No.2 to mislead the Court. These appointments were given by the respondents after the earlier writ petition
was filed to fill up the vacancies depriving the petitioner’s legitimate claim.
The petitioner asserted that compassionate appointment should not be replaced by outsiders against the permanent vacancies and the respondent No.2
wrongly recorded that there was no scheme or rule in the Indian Museum for appointment on compassionate ground, but they follow the rules of the
Central Government. The petitioner has also criticized the observation of the respondent No.2 that if anything was done by mistake the same could not
be allowed to be perpetuated on the basis of the wrong committed by the employer once. According to the petitioner, this is a meaningless statement.
On behalf of the Board of Trustees of the museum the Director has affirmed and filed an affidavit-in-opposition. It has been specifically stated that on
consideration of the application of the father of the petitioner and also the medical report the Board of Trustees by their order, dated August 29, 2003,
released him from his duty with immediate effect on invalid pension on medical ground. The date of birth of the father of the petitioner is June 17,
1944 and when he was relieved from his duty on medical ground he was aged 59 years 2 months and 12 days. The retirement age of an employee of
Indian Museum is 60 years and the father of the petitioner voluntarily retired on medical ground approximately 9 months before his retirement.
The affidavit further states that the petitioner was engaged as a contingent staff i.e. through a contractor from August 2005 to December 2006. Such
engagement was not made by the museum, but by the contractor and as such he was an employee of the contractor. Six years after the retirement of
his father, i.e. in 2009, the petitioner made an application for employment on compassionate ground. The father of the petitioner received Rs.75,525/-
as retirement benefit over and above his monthly pension which now is Rs.7,799/-. Since the father of the petitioner had taken retirement on medical
ground when he was 59 years 2 months and 12 days, the petitioner is not entitled to claim any employment on compassionate ground.
With regard to the instances given by the petitioner in respect of the appointments given by the museum on compassionate ground, the affidavit
specifically states that two persons were working under the contractor from 1992 till their appointments in the year 2010. Vacancies occurred in the
year 2010 in the wage department; they applied against the said vacancies, their cases were considered and they were appointed as staff of the said
department in Group C category. But the petitioner did not have the requisite qualification for working in the wage section. So far as the other 13
cases were concerned, the affidavit states that initially the administrative department of the museum was not properly looked after by qualified
persons and as such by mistake or inadvertently some persons have been engaged. But all these engagements were made on consideration of
vacancies. The Director has specifically stated that appointments of 13 persons have been made by mistake which does not confer any right upon the
petitioner. He has further stated that as and when a vacancy would arise the same will be advertised in the newspaper and the petitioner may apply
against such vacancies subject to his meeting the qualification criterion. The case of the petitioner will be considered according to recruitment rules of
the museum.
The affidavit-in-opposition has also referred to the relevant rules in terms of which benefit of compassionate appointment is available. Under Rule 2 of
the Central Civil Services (Medical Examination) Rules, 1957 or the corresponding provisions of Central Civil Services Regulations such appointment
is available in case the employee in whose place such compassionate appointment is to be made retires before he attains the age of 55 years in case
of Group C posts and 57 years in the case of Group D posts. Since the Indian Museum has no rule or scheme for appointment on compassionate
ground they follow the Rules of the Central Government. In the instant case, the father of the petitioner having taken voluntary retirement at the age
of 59 years 2 months and 12 days the petitioner cannot claim any appointment on compassionate ground.
The respondent No.2 considered the representation made by the petitioner, gave personal hearing to him and the representative of the authority and
after considering the cases of the respective parties as well as the materials on record, passed an order on October 17, 2014 that the petitioner was
not entitled to claim any employment on compassionate ground and the said order of the Director was communicated to him. The respondents denied
all the allegations made in the writ petition and prayed for its dismissal.
The petitioner did not wish to file any affidavit-in-reply. It is quite strange that although the petitioner’s representation has been turned down by
the respondent No.2 by his order, dated October 17, 2014, the petitioner has not challenged that order in this writ petition. There is no prayer for
setting aside or quashing the said order nor does he mention in Paragraph 45 of the writ petition that he was moving this writ petition being aggrieved
by the order of the respondent No.2 nor does it find any place in the cause title of the writ petition. Thus the petitioner has left the order severely
isolated without appreciating that unless and until that order is set aside or quashed there is no scope for considering the case of the petitioner for
appointment on compassionate ground after the same had already been rejected by the respondents.
The writ petition factually presents a very confused state of the claim of the petitioner. It is not clear why he prayed for absorption in a Group D post
on compassionate ground. The lexical meaning of the word ‘absorb’ is to include or to incorporate as a part of itself or oneself. In its legal
connotation ‘absorption’ means a result in a formal entry into regular service. It is used in relation to claims of casual workers or daily workers
for being made permanent employees of an organization. Thus, the question of absorption of an employee arises only when he is already serving an
organization or an establishment. For him who is not in employment in an organization claim for absorption is an irreconcilable improbability. For him
this question does not arise. For a such person the claim for absorption is not only misconceived, but contradictory in terms.
But throughout the writ petition including in the reliefs prayed by him, the petitioner has used the word ‘absorption’ indiscriminately. What the
petitioner has been wanting is an employment on compassionate ground and not absorption, irrespective of the nomenclature used by him. But in the
writ petition he has all through mentioned that he is entitled to be absorbed in a Group D post of the museum. It is an admitted position that the
petitioner worked at the Indian Museum from August 2005 to December 2006 as a contingent staff. The respondent No. 2 in the affidavit has
explained the exact connotation of such employment which means appointment through a contractor. This was not made by the museum but by a
contractor. The petitioner declined to controvert the statements of the respondent no. 2 by filing an affidavit-in-reply. As such he was an employee of
the contractor and that too for a very short period. I quite agree for there cannot be any denial with the stand taken in the affidavit-in-opposition that
the engagement of the petitioner by the contractor does not confer any right upon him nor can he claim any benefit of employment on the basis of
such engagement by the contractor and that too for a very brief period. The petitioner was never an employee of the museum and no longer being
attached with it, the claim for his absorption in a permanent post does not arise.
It is necessary to take note of the petitioner’s statement in paragraph 25 of the writ petition that this Court by its Order, dated July 14, 2014 passed
on the earlier writ petition filed by the petitioner, had observed that the authorities of the museum had practised discrimination and were attempting to
appoint outsiders. This is not a correct statement. All that the order recorded is that the allegation about discrimination on the part of the respondents
have been answered by the respondents in their affidavit-in-opposition. The learned Judge was also of the view that in the event the respondents have
granted compassionate appointment to persons similarly situated with the petitioner, they must disclose the reasons for denial of identical relief to him.
Apart from that the order did not mention any alleged discrimination being practised by the respondents. The statement of the petitioner that the Court
observed the practice of discrimination by the respondents is clearly misconceived and distorted as it does not find any place in the said order.
The Director of the museum in the order dated October, 17, 2014 has dealt with the two persons who had been appointed by the respondent No.2 and
whose instances have been given by the petitioner with reference to specific names. Shri Prasanta Saha and Shri Pritam Adhikary were initially
engaged by the contractor in the year 1992 and worked as employees of the contractor till their appointment in the year 2010. In the year 2010,
vacancies were available in Group C posts, they made applications and the authorities absorbed them. Thus, the case of the petitioner cannot be
equated with these two employees. Moreover, as it appears from the affidavitin-opposition that these two persons were employed in Group C posts
for which they had the requisite qualification but the petitioner did not have the same.
Before the merits of the contentions of the petitioner are considered, it is necessary to reiterate the law in connection with appointment on
compassionate ground which has grown over the years by the successive decisions of the Supreme Court as well as various High Courts. It is now a
settled principle of law that compassionate appointment is an exception to the general rule which requires appointment to public service should be on
merits and through open invitation. In Haryana State Electricity Board Vs. Hakim Singh, reported in (1997) 8 SCC 85 the Supreme Court clarified the
raison d’etre for this principle. The Supreme Court observed :
“The rule of appointments to public service is that they should be on merits and through open invitation. It is the normal route through which one
can get into a public employment. However, as every rule can have exceptions, there are few exceptions to the said rule also which have been
evolved to meet certain contingencies. As per one such exception belief is provided to bereaved family of a deceased employee by accommodating
one of his dependent in a vacancy. The object is to give succour to the family which has been suddenly plunged into penury due to the untimely death
of its sole bread-winner. This Court has observed time and again that the object of providing such ameliorating relief should not be taken as opening an
alternative mode of recruitment to public employment.â€
 However, this principle is not confined only to cases where an employee dies-in-harness. Compassionate appointment of dependents of a medically
invalidated serving employee has also been held to be permissible. Thus, if the whole philosophy for providing appointment on compassionate ground is
to help a family tide over the immediate financial crisis resulting from either the death or medical invalidation of an employee, there must be a sense of
urgency demonstrated by the applicant in seeking such an employment after the death or medical invalidation, as the case may be of a former
employee. The principle laid down a quarter of a century before in Sushma Gosain Vs. Union of India, reported in AIR 1989 SC 1976, still hold, the
field.
The respondent No.2 has specifically mentioned in the affidavit-in-opposition as well as in the order dated October 17, 2014 that the petitioner made
an application in the year 2009 i.e. about 6 years after his father has retired from service on medical ground. If the purpose of appointment on
compassionate ground is to provide immediate subsistence to a family which has lost his sole bread earner any delay in making an application must be
held to be fatal for the success of any such application. It is also to be taken into account that the petitioner specifically signified his disinclination to
file any affidavit-inreply to the affidavit-in-opposition. Thus, following the wellsettled principle contained in the doctrine of non-traverse the statements
and allegations made in the affidavit-in-opposition must be deemed to have been admitted by the petitioner. As such it must be deemed that the
application for appointment on compassionate ground on March 30, 2009 must be taken to be the first application made by the petitioner after his
father’s retirement. Although copies of two purported applications, both dated September 1, 2003 purported to have been made by the father of
the petitioner as well as the petitioner himself respectively, have been annexed to the writ petition, they do not bear any evidence of the same being
received by the respondents or served upon them. As such, and particularly in view of uncontroverted statement in affidavit-in-opposition, it must be
taken that the petitioner waited for 6 years to make his application for appointment on compassionate ground. This delay in making the application for
appointment on compassionate ground militated against any sense of urgency expected to be demonstrated by the petitioner in seeking an appointment
on compassionate ground.
One of the reasons for not favourably considering the prayer for appointment on compassionate ground is the bar contained in the relevant statutory
rules. It has been stated that since the Indian Museum has no rule or scheme for appointment on compassionate ground they follow the rules of the
Central Government according to which appointment of a dependant of a Group D employee can be claimed provided he dies or is declared medically
invalid before 57 years. The father of the petitioner had taken voluntary retirement when he was aged 59 years 2 months and 12 days. Therefore, as
per the relevant rules referred to above, the petitioner is not entitled to be appointed on compassionate ground.
One of these basic conditions for granting appointment on compassionate ground is that it cannot be against the rules for such appointment. The
Supreme Court in the case of State of Haryana and Another. Vs. Ankur Gupta, reported in AIR 2003 SC 3797 has specifically observed that such
appointments cannot be made de hors any statutory policy. Rule 2 of the Central Civil Services (Medical Examination) Rules or the corresponding
provision of the Central Civil Services Regulations must be held to be the reflection of the policy of the Central Government. In Kendriya Vidyalaya
Sangathan Vs. Dharmendra Sharma reported in AIR 2007 SC 3210, the Supreme Court has laid down that an employer cannot be compelled to make
compassionate appointment contrary to his policy. In the present case there is no denial of the rule containing the policy leading to the inference of
admission of the factum of the same by the petitioner.
The respondents have repeatedly mentioned that on the date of the retirement of the father of the petitioner he was aged 59 years 2 months and 12
days. Therefore, he had only a few months left before his normal retirement which was at the age of 60 years. The respondents have mentioned that
only 9 months before his normal retirement the employer had taken voluntary retirement from service rendering any subsequent application by the
petitioner for appointment on compassionate ground to be unsustainable. I find no infirmity in the stand taken by the respondents. It is also a settled
principle of law that compassionate appointment is not permissible where the predecessor-in-interest of the applicant obtains voluntary retirement on
medical grounds on the verge of his superannuation.
The Supreme Court in the case of V. Sivamurthy and Another. Vs. State of Andhra Pradesh and Others. reported in (2008) 13 SCC 730 was
considering the validity of the scheme of compassionate appointment contained in certain Government orders of the State of Andhra Pradesh. The
Supreme Court upheld the condition that minimum 5 years of service should have been left over at the time of issuing the order of retirement on
medical invalidation and such left over service period is to be reckoned from the date of issue of the order of the retirement on medical invalidation
and not from the application for retirement. Therefore, both in terms of the rule applied by the respondents as well as in view of the very short left
over service period of the father of the petitioner the respondents could not consider the case of the petitioner for an appointment on compassionate
ground.
The petitioner has also alleged discrimination as against a number of employees who have been taken in by the museum after the petitioner had filed
his application. The question of discrimination arises only in between cases which are otherwise identical or at least similar. There is no averment in
the writ petition to the effect that those persons who have been taken in were similar to the petitioner. Without their mode of appointment or any
details being given by the petitioner, he cannot be heard alleging any discriminatory act on the part of the respondents.
In the case of State of Haryana Vs. Naresh Kumar Bali, reported in (1994) 4 SCC 448, the Supreme Court specifically observed that a candidate
seeking compassionate appointment cannot complain of discrimination unless he can prove and there is a positive finding that his case was comparable
with those others in whose favour discrimination is alleged to have been made. The petitioner in the present case has not only failed to give the details
of employments offered to those persons or under which circumstances they were employed, he has also not even mentioned their names. Therefore,
there cannot be any comparison between the case of the petitioner and those mentioned in the writ petition. Consequently, the Court is also not in a
position to make any inference, far less conclude about the discrimination alleged to have been practised by the respondents.
The respondents have given specific answer in respect of two employees named in the writ petition. Their cases could not be compared with that of
the petitioner as they applied to the relevant posts as and when the vacancy was advertised. So far as the unnamed persons alleged by the petitioner
to have been the beneficiaries of discriminatory conduct on the part of the respondent is concerned, the affidavit has very specifically stated that for
administrative mistake and lack of qualified people 13 employees had been given appointment by mistake. But they were made on consideration of the
vacancy positions.
Once the respondents have admitted that in some cases mistaken employments have been given, the petitioner cannot reap any advantage of such
mistake on the part of the respondents. The law on the point is very well-settled that right to equality never operates in a negative manner. If an act
has been done illegally merely because it has been so done the petitioner cannot claim that it should be perpetuated. In the case of Sneh Prabha Vs.
The State of UP, reported in AIR 1996 SC 1175, the Supreme Court observed that if a benefit is wrongly given in favour of some, it does not clothe
any public with a right to perpetuate the wrong and the Court cannot give countenance to such actions.
In the case of State of Haryana and Ors. Vs. Ram Kumar Mann reported in (1997) 3 SCC 321, the Supreme Court repeated the principle of law that
a wrong order cannot be the foundation for claiming equality. Wrong decision by the authority does not give a right to enforce the wrong order and
claim parity or equality. Two wrongs can never make a right.
This principle of law has been repeated by the Supreme Court in umpteen numbers of judgments. In the case of Union of India Vs. International
Trading Company, reported in (2003) 5 SCC 437, the Supreme Court observed that “a party cannot claim that since something wrong has been
done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another
wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India
cannot be pressed into service in such cases. What the concept of equal treatment pre-supposes is existence of similar legal foothold. It does not
countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some
other cases by introducing a concept of negative equality, the respondents cannot strengthen their case. They have to establish strength of their case
on some other basis and not by claiming negative equalityâ€.
Again in National Council for Teachers’ Education and Another Vs. Committee of Management and Others, reported in (2006) 4 SCC 65, the
Supreme Court held that the concept of Article 14 carries a positive concept. With reference to the facts of that case it has been observed that only
because some illegalities had been committed by the council in respect of another institution the same may not by itself be a ground for perpetrating
the illegality.
This ratio squarely applies to the given case where the petitioner alleges that some other persons have been given appointment by the respondents.
Moreover, by introducing this fact he does not stand to gain anything except claiming a negative equality which is plainly not permissible. Thus, all the
contentions of the petitioner must be held to be without any merit. He has not been able to make out any case for either reversing the decision of the
respondents contained in the order dated October 17, 2010 or for directing the respondents to provide the petitioner with an appointment on
compassionate ground. I find no infirmity or impropriety either in the decision taken by the respondents or in the reasons mentioned by them in arriving
at the same decision. The petition does not merit any consideration. The writ petition is dismissed. There shall be no order as to costs. Urgent
photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.