HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
1
AFR
Court No. - 27
Case :- SERVICE SINGLE No. - 1740 of 1996
Petitioner :- Surendra Kumar Saxena {State}
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- Kamlesh Kumar Shukla
Counsel for Respondent :- C.S.C.,R K Singh
Hon'ble Rakesh Srivastava,J.
1. Heard Sri Kamlesh Kumar Shukla, learned counsel for the petitioner, learned Standing Counsel and perused the record.
2. The father of the petitioner was working as Sanitary Supervisor in the Nagar Maha Palika, Lucknow. He died on 14.06.1975 while in service. At the time of his death the petitioner as well as his two brothers were minor. The petitioner after passing his intermediate examination in the year 1983 made a representation to the Mukhya Nagar Adhikari, Nagar Mahapalika, Lucknow on 20.02.1984 seeking appointment on compassionate ground under the Dying in Harness Rules, 1975. The mother of the petitioner also made a representation on 05.05.1985 stating the hardship and praying that the petitioner be given compassionate appointment. It is alleged that thereafter numerous representations were made by the petitioner but the opposite parties did not pay any heed to the request of the petitioner.
3. Aggrieved by the inaction of the opposite parties the petitioner on 26.03.1996 filed present writ petition praying for a direction to the opposite parties to consider the case of the petitioner and appoint him on a suitable post as per his academic qualification by relaxing the normal recruitment rules under the Dying in Harness Rules and to provide other consequential benefits. 2
4. Heard Sri Kamlesh Kumar Shukla, learned counsel for the petitioner. He has submitted that after the death of his father the mother of the petitioner was granted family pension, which was initially Rs. 50/- per month, and in the year 1996, it was about Rs. 700/- per month, which is not sufficient to meet the need of the family. It is further alleged that the elder brothers of the petitioner are living separately and are not supporting the family and it is the petitioner who is looking after his widowed mother, one unmarried sister and another unemployed brother. Learned counsel for the petitioner has placed strong reliance upon the judgment and order dated 15.02.1993 passed by this Court in Writ Petition No. 1441 (S/S) of 1993, Mohd. Umar Vs. State of U.P. & Ors. The petitioner therein was only nine year's old when his father died. The father of the petitioner therein died in November, 1972 and the Dying-in-Harness Rules came into force on 28th October, 1973. This Court held that the Dying in Harness Rules were only meant to benefit the dependents of an employee who died during the course of his employment. It was held that such type of social legislation or rule should not only be read in letters but should be read in spirit. The only object and purpose of the Rule was to provide employment to the dependent of an employee, who died in harness. This Court directed the respondents to appoint the petitioner of that case.
5. Learned Standing Counsel on the other hand submits that compassionate appointment is not a source of employment. He submits that the application for compassionate appointment having been moved nine years after the date of death of the father of the petitioner is not maintainable and is liable to be rejected.
6. Admittedly, in the present case, the petitioner was about 13 3 years of age when his father unfortunately passed away. The petitioner allegedly made representations for compassionate appointment on attaining the age of majority i.e. about 9 years after the death of his father.
7. The purpose of providing employment to the dependent of a government servant dying in harness in preference to anybody else is to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood.
8. It is settled by a catena of decisions of the Apex Court that the request for compassionate appointment should be reasonable and proximate to the time of the death of the bread earner of the family. In the case reported in (2006) 5 SCC 766, State of J & K & Ors. Vs. Sajad Ahmed Mir, the Apex Court has held in para 11 as follows:
"11) We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought 'compassion', the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole 4 bread earner and likelihood of the family suffering because of the set back. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution."
9. In 2009(6) SCC 481, Santosh Kumar Dubey Vs. State of U.P. and others, the Apex Court has held in para 11, 12 and 13 as follows :-
"11) The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints.
12) The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial held available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service.
13) In the present case, the father of the appellant became untraceable in the year 1981 and for about 18 years, the 5 family could survive and successfully faced and overcame the financial difficulties that they faced on missing of the earning member. That being the position, in our considered opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions. The appeal, therefore, has no merit and is dismissed."
10.Admittedly, when the father of the petitioner died, the petitioner was a minor and was not eligible for appointment. There cannot be a reservation of a vacancy till such time as the petitioner became major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to ensure that the family gets immediate relief.
11.None of the consideration for providing compassionate appointment can operate when the application is made after a long period of time i.e. 9 years after the death of father of the petitioner. In the present case the father of the petitioner died on 14.06.1975 and for about 9 years the family could survive.
12.In the circumstances, no direction could be issued to the opposite parties for giving compassionate appointment to the petitioner. The writ petition has no merit and is accordingly, dismissed.
13.No order as to costs.
Order Date :- 23.4.2015 Anupam-Pradeep/-