HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- WRIT - A No. - 19940 of 2015 Petitioner :- Akshay Asthana Respondent :- State Of U.P. Through Secretary, Law Department And Anr. Counsel for Petitioner :- Arun Kumar Singh Counsel for Respondent :- C.S.C.,Manish Goyal Hon'ble Amreshwar Pratap Sahi,J. The petitioner is the son of Late Ashutosh Asthana a former employee of District Judgeship, Ghaziabad, who was involved in the G.P.F. Scam. He had been suspended and during that period an FIR was also lodged pursuant whereto the father of the petitioner was lodged in jail. He died there on 17.10.2009. The petitioner and his mother filed applications for compassionate appointments under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, that have been rejected hence this petition only questioning the order passed against the petitioner. The application dated 22.10.2011 of the mother of the petitioner for grant of compassionate appointment was rejected on 24.1.2012 by the learned District Judge. The said order is Annexure 6 to the writ petition. A perusal of the said order indicates that on account of the petitioner's father having been involved in the G.P.F. Scam at Ghaziabad, his mother was not found entitled for compassionate appointment. The order of the learned District Judge was passed keeping in view the observations made by the Apex Court in the case of General Manager, State Bank of India and another Vs. Smt. Anju Jain, 2008 (8) SCC Page 475. The order passed by the learned District Judge in relation to the claim of the petitioner's mother is extracted hereinunder :- OFFICE OF THE DISTRICT JUDGE, GHAZIABAD ORDER NO.38 OF 2012 JANUARY 24, 2012 ORDER
Smt. Sushma Asthana w/o late Sri Ashutosh Asthana (the then Central Nazir) has sent an undated application for her appointment on compassionate grounds under the U.P. Recruitment of Dependants of Govt. Servants Dying in Harness Rules, 1974 in class III cadre of the Judgeship by post, which has been received in this office on October 22, 2011.
2. She has stated in her application that her husband Sri Ashutosh Asthana was working as Central Nazir in Civil Courts, who has died on 17.10.2009. She has two sons and a daughter and there is no earning member in the family, so her employment is necessary for livelihood of the family. She has annexed the copies of death certificate of her husband, her High School mark-sheet and Intermediate Examination marks-sheets and certificate.
3. On her application report of Officer-in-charge, Administration was called. In processing the application, her testimonials were sent to educational institution mentioned therein. The photo-copies of marks-sheets show that Smt. Asthana has passed High School Examination in the year 1988 from S.D.M.S. Intermediate College, Dabethua, Varanasi and Intermediate from Shri Durga Devi Inter College, Ausa Manjhanpur District Allahabad (now District kaushambi). The High School Examination marks-sheet has been verified from Principal of the College, but no reply had been received about Intermediate marks-sheet, although the enquiry letter was sent through Speed Post on 24.11.2011.
4. The Senior Administrative Officer has reported that Sri Ashutosh Asthana was a regular and permanent employee of the Judgeship and has died on 17.10.2009 during employment. However, it was reported that the applicant had been detained in District Jail, Ghaziabad from the court of Special Judge (CBI) Court no.1, Ghaziabad. Hence enquiry was made from the Court of Special Judge (CBI) about the particulars of the case against her.
5. Dr. A.K. Singh, Special Judge (CBI), Court no.1, Ghaziabad through letter dated 14.11.2011 has intimated that Smt. Sushma Asthana was arrested by the police and sent to jail on 17.2.2008 in connection with case crime no.152/08 u/s 409, 120-B, 420, 467, 468, 471, 471-A IPC and Section 8, 9, 14, 13(2) read with Section 13(1)(D) Prevention of Corruption Act and was released on bail under the orders of the Hon'ble High Court on 5.7.2011. It has further been reported that Special Case no.49/11 R.C. No.1(A)/08 CBI Vs. R.P. Misra and others u/s 120-B, 420, 467, 468, 471 IPC and Section 13(2) read with Section 13(1)(D) P.C. Act P.S. C.B.I. Ghaziabad is pending.
6. The Officer-in-charge, Administration/Special Judge, Anti-Corruption (CBI), Ghaziabad on the basis of above factual position has opined in his report dated 21.1.2012 that the application is being prosecuted by the CBI in a criminal case where in serious allegations have been levelled against. Not only this, her husband deceased Ashutosh Asthana was a star accused who was charged for fraudulent withdrawal of crores of rupees from the GPF account of Class IV employees of the Judiciary. The infamous case came to attract the attention of not only the print and electronic media of the nation, but also brought bad name to the Judiciary of the country as a whole. The said case is known as 'PF SCAM'. On the basis of law laid down by the Apex Court in the case of General Manager, State Bank of India and another Vs. Smt. Anju Jain (2008) 8 SCC 475, it has been recommended that it would be not appropriate to give compassionate appointment under the aforesaid rules to Smt. Sushma Asthana. In this case, the Hon'ble Supreme Court has observed as under :
"Appointment on compassionate ground is never considered a right of a person. In fact, such appointment is violative of rule of equality enshrined and guaranteed under Article 14 of the Constitution. As per settled law, when any appointment is to be made in Government or semi-Government or in public office, cases of all eligible candidates must be considered alike. That is the mandate of Article 14. Normally, therefore, State or its instrumentality making any appointment to public office, cannot ignore such mandate. At the same time, however, in certain circumstances, appointment on compassionate ground of dependants of deceased employee is considered inevitable so that the family of the deceased employee may not starve. The primary object of such scheme is to save the bereaved family from sudden financial crisis occurring due to death of sole bread earner. It is thus an exception to the general rule of equality and not another independent and parallel source of employment.
30.In our opinion, therefore, if disciplinary proceedings have been initiated against an employee and the charges levelled against such employee are proved and he is punished, it is indeed a relevant consideration for not extending the benefit to dependent of such employee on the ground that he was punished. To us, it cannot be said that it is a case of double jeopardy or a dual punishment. Compassionate appointment is really a concession in favour of dependants of deceased employee. If during his carrier, he had committed illegalities and the misconduct is proved and he is punished, obviously his dependants cannot claim right to the employment. With respect, the learned Single Judge was wholly wrong in observing that such an action would be violative of principles of natural justice.
31. To us, the observations of the learned Single Judge that "no past acts of misconduct of the employee who dies in harness can be taken into account while considering the case of a family member for employment on compassionate ground" is not in consonance with law. Past conduct of an employee is undoubtedly an important consideration. We are also of the view that the State Bank was right in rejecting the prayer of the wife of the deceased employee vide its letter dated January 29, 2001 observing therein that "unblemished service record is implicit."
In the instant case not only the husband of the applicant was charged for having committed henious crime of fraudulently withdrawing huge amount of money running in crores from the GPF accounts of Class IV employees of the Judgeship, but the applicant was also confined in prison for more than three years and is still facing trial in the Court of Special Judge (CBI), Court no.1, Ghaziabad for the offences punishable u/s 120-B, 420, 467, 468, 471 IPC and Section 13(2) read with Section 13(1)(D) P.C. Act. The character of the person seeking compassionate appointment in the Government service by passing the general rules of recruitment should be clean and above board.
7. In view of criminal antecedents of late Sri Ashutosh Asthana as also of the applicant herself, in my opinion, Smt. Sushma Asthana is not entitled for compassionate appointment in Class-III cadre of the Judgeship under the U.P. Recruitment of Dependents of Govt. Servants Dying in Harness Rules, 1974 and as such her application (undated) received in this office on October 22, 2011 is rejected.
Inform Smt. Asthana accordingly.
January 24, 2012 (Anil Kumar Sharma) District Judge, Ghaziabad The petitioner's application was moved on 28.9.2012 and has been substantially rejected on the very same grounds as well as some additional facts relating to the involvement of the petitioner's father in the G.P.F. Scam. The impugned order further records that the possibility of the applicant being one of the beneficiaries of the said financial embezzlement caused by his father cannot be ruled out. Accordingly, the report which was submitted by the committee was accepted and the impugned order dated 15.5.2013 was passed rejecting the request of the petitioner for compassionate appointment.
Learned counsel for the petitioner contends that compassionate appointment has to be governed by rules and merely because his father was involved in a criminal case, the same does not amount to a disqualification for a dependant to claim compassionate appointment. The second ground raised is that the petitioner's father was not indicted for anything else and before the criminal case could proceed, he died. In such circumstances, this also cannot be an impediment for consideration of the application of the petitioner. Thirdly, it has been submitted that the services of the petitioner's father had not been dispensed with either by way of dismissal or removal and, therefore, merely because he was involved in the alleged scam, the denial of compassionate appointment is not justified. Learned counsel for the petitioner further submits that mere suspension is not a punishment and if the petitioner's father was suspended or was a co-accused in a trial which has not concluded till today, without any finding against him, the claim of compassionate appointment cannot be rejected.
It goes without saying that there is nothing in the writ petition to indicate that the order dated 24.1.2012 passed by the learned District Judge rejecting the application of the petitioner's mother was challenged or subjected to any scrutiny by any higher forum. Thus, the order passed against the mother of the petitioner for the same claim remains unchallenged.
It is also indicated in the impugned order that the same grounds exist for rejecting the claim of the petitioner and additionally that the petitioner is a beneficiary of the unlawful withdrawals of crores of rupees by his father.
Apart from this the settled position of law is that compassionate appointment is not a vested right as held in Umesh Kumar Nagpal Vs. State of Haryana, 1994 (4) SCC Pg. 138 as followed in Haryana State Electricity Board Vs. Naresh Tanwar, 1996 (8) SCC Pg. 23. Compassion has to be shown in appropriate cases where a needy family after the death of a bread winner deserves compassion. The father died in 2009 and the application was moved in 2012. In the instant case the petitioner's father was charged with the offence of having duped the State Exchequer by making huge withdrawals running into crores of rupees that resulted into the G.P.F. Scam. The acquisition of property through these unlawful methods therefore accumulated up in the family of the petitioner of which the petitioner is a beneficiary. In the aforesaid background compassion cannot be generated so as to sympathize with the petitioner nor the rules can be pressed into service for the purpose of a claim through a writ petition in the exercise of discretionary jurisdiction under Article 226 of the Constitution of India. Compassion is pity shown to a person in distress. Here the statement of Late Ashutosh Asthana recorded under Section 164 Cr.P.C. before the trial court in the criminal proceedings admits of fraudulent withdrawals as also the same having been spent on officials and Judges for their personal needs. The same is filed as Annexure 2 to the petition which also entails a list of immovable properties possessed by him. A perusal of the same does not evoke any sympathy, rather it reflects on the sound financial status of the petitioner's family. In such a situation, that too after six years of the death of the employee, I find no good reason to invoke discretion under Article 226 of the Constitution of India.
The petitioner has arrived after more than two years of the passing of the impugned order which delay is also unexplained.
For all the aforesaid reasons, no ground is made out for interference. The writ petition lacks merit and is accordingly dismissed.
Order Date :- 24.4.2015 Anand Sri./-