HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 06-07-2015 Delivered on 27-07-2015 SPECIAL APPEAL No. - 425 of 2015 Appellant :- Poonam Sharma Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- B.N. Tiwari Counsel for Respondent :- C.S.C. Hon'ble Krishna Murari, J.
Hon'ble Amar Singh Chauhan, J.
(Delivered by Hon'ble Krishna Murari, J.) This intra-court appeal under the Rules of Court is directed against the judgment and order dated 28.5.2015 passed by the learned single Judge dismissing the claim of the petitioner-appellant for grant of compassionate appointment on the ground that the married daughter was not included in the definition of 'Family'.
Undisputed facts are that the petitioner-appellant is married daughter of one Brij Gopal Sharma, who was working on the post of Lekhpal in Tehsil Sarila Dando, district Hamirpur and died in harness on 27.4.2014. The appellant made an application in the prescribed format seeking appointment on compassionate ground. The mother of the petitioner submitted an affidavit dated 5.11.2014 alleging that she is unable to work due to illness and therefore, her daughter may be granted compassionate appointment in place of her husband. The application of the petitioner was considered by the respondent no. 3 and vide order dated 31.3.2015 the same was rejected on the ground that being married daughter she was not included in the definition of 'Family' under the Dying-in-Harness Rules, 1974 (in short 'Rules 1974').
Learned single Judge vide judgment and order dated 28.5.2015 dismissed the writ petition holding that since married daughter is not included in the definition of 'Family' under the Dying-in-Harness Rules, 1974, the petitioner was not entitled for consideration.
Learned counsel for the appellant contended that the appellant cannot be discriminated on the ground of being married as she is the only issue of her parents. It is further submitted that marriage cannot be a disqualification in the matter of appointment of a daughter on compassionate ground and there is no justifiable basis to exclude a married daughter from giving compassionate appointment. It is also submitted that exclusion of a married daughter from the definition of 'Family' under the U.P. Recruitment of Dependants of Government Servant Dying-in-Harness Rules, 1974 fortifies reasoning that there is discrimination and indifference towards the weaker sex in framing laws. In support of the contention, learned counsel for the petitioner has placed reliance on two judgments Bombay High Court; Smt. Ranjana Murlidhar Anerao vs. State of Maharashtra (Writ Petition No. 5592 of 2009), Laws (Bom)-2014-8-68 and another in Aparna Narendra Zambre vs. Assistant Superintendent Engineer & others (Writ petition No. 1284 of 2011), 2011(5) Mh.L.J.290.
Learned Standing Counsel, on the other hand, submitted that being a married daughter, petitioner-appellant is not eligible for compassionate appointment as married daughter is not included in the expression of 'Family' of the deceased.
We have considered the argument advanced on behalf of the parties and perused the record.
In the State of Uttar Pradesh, compassionate appointment in Government service are governed by the U.P. Recruitment of Dependants of Government Servant Dying-in-Harness Rules, 1974, which have been framed in exercise of powers conferred by proviso to Article 309 of the Constitution of India. The said Rules provides that dependants of deceased Government Servant to public services and posts connected with the affairs State of U.P. except the post, which are within the purview of the U.P. Public Service Commission can be given appointment on compassionate grounds in relaxation of the normal rules of recruitment applicable to such public services and posts.
In accordance with Rule 5 of Rules 1974, a member of the family of the Government servant dying-in-harness can be given suitable appointment in Government service on a post which is outside the purview of the U. P. Public Service Commission in relaxation of the normal recruitment rules subject to the condition that spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government and he fulfils the educational qualification prescribed for the post and is otherwise qualified for Government service. Consideration for such appointment is subject to an application being made in this regard within five years from the date of death of the Government servant though State Government is vested with the power to relax time limit on being satisfied that such time limit causes undue hardship in any particular case. The word 'family' used in rule 5 has been defined in Rule 2 (c). At the time of incorporation of the Rules 1974 only wife or husband, sons, unmarried and widowed daughters were included in the definition of family. The definition has been subject matter of amendment from time to time and the definition as it stands now is quoted here under:
"(c) "family" shall include the following relations of the deceased Government servant;
(i)wife or husband;
(ii)sons/adopted sons;
(iii)unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-in-law
(iv)unmarried brothers, unmarried sisters and widowed mother dependent on the deceased Government servant, if the deceased Government servant was unmarried;
(v)aforementioned relations of such missing Government servant who has been declared as "dead" by the competent court;
provided that if a person belonging to any of the above mentioned relations of the deceased Government servant is not available or is found to be physically and mentally unfit and thus ineligible for employment in Government service, then only in such situation the word "family" shall also include grandsons and the unmarried grand daughters of the deceased Government servant dependent on him."
Thus, the members of the family of a deceased Government servant who can be considered for granting compassionate appointment have been specified in the rules. Apart from other conditions enumerated in the rules for consideration of compassionate appointment, such member of the family should also be a dependent on the deceased Government servant.
Looking to the object and purpose underlying the provision for grant of compassionate appointment which is in the nature of an exception to general provisions, the Apex Court has observed in the case of Director of Education (Secondary) Vs. Pushpendra Kumar (1998) 5 SCC 192 that care has to be taken while enforcing such provision so that it does not unduly interfere with right of other persons to whom the post would have been otherwise available.
In paragraph 8 of the reports, it has been observed as follows :
"Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee".
The Apex Court in catena of decisions while approving the general principles of interpretation that beneficial legislations should be liberally construed has held that in case of compassionate appointment the same being an exception to Articles 14 and 16 that it should receive a strict construction. Reference may be made to the decision in the case of General Manager, Uttranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC - 205 wherein it has been observed as under :
"The provision of law which ex-facie violates the equality clause and permits appointment through side door being unconstitutional must be held to be impermissible and in any extent required strict interpretation."
In the case of State of Jharkhand Vs. Shiv Karanpal Sahu 2009 (11) SCC - 453, while considering the scheme for grant of appointment on compassionate grounds to the dependants of those killed in terrorist attack, it was held as under :
"Appointment on compassionate grounds, it is trite, must be made keeping in view the provisions contained in Articles 14 and 16 of the Constitution of India. Such scheme cannot be given an expansive meaning as the constitutional scheme envisages that all persons who are entitled to be considered for appointment would be eligible for being considered therefor. Any policy decision for appointment on compassionate grounds must, therefore, receive a strict construction."
Strict construction of Rules/Schemes for compassionate appointment has been re-emphasised by the Supreme Court in Bhawani Prasad Sonkar Vs. Union of India (2011) 4 SCC - 209 by making following observation :
"Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve."
A Full Bench of this Court in the case of Km. Shehnaj Begum vs. State of U.P. & others, AIR 2014 Alld. 66 while considering the question whether the definition of 'family' in Rule 2(c) of U.P. Recruitment of Dependants of Government Servant Dying-in-Harness Rules, 1974 is inclusive or exhaustive referred to it has answered the same as under :
"Whatever may be the fathom of our compassion for the bereaved family of a deceased employee, howsoever high may be our anxiety to help such family to get out of penury, we cannot over step being bound by dictates of law, the mandate of the constitution and the law declared by the Hon'ble Apex Court.
In view of the above discussions, the irresistible conclusion is that word 'include' used in the definition clause has been used by the Rules Framers in the sense of 'means' and the definition, as it stands, is exhaustive. It is, however, always open to the appropriate Government to amend the definition of the family so as to include any other relations of the deceased Government servant which it thinks fit to be included for fulfilment of the purpose and object of the Rules.
Thus, our answer to the reference is that definition of the family in rule 2 (c) of U. P. Recruitment of Dependants of Government Servant Dying-in-Harness Rules, 1974 is exhaustive."
In view of the aforesaid Full Bench decision the definition of 'family' contained in rules 1974 being exhaustive the same cannot be interpreted to mean and include any other relationship except the one who have been defined therein.
We have also considered the two cases of Bombay High court relied upon by the petitiner-appellant. In the case of Smt. Ranjana Murlidhar Anerao (Supra) the question for consideration before the Division Bench of Bombay High Court was whether the exclusion of the married daughter from the expression 'family' for being entitled to be considered for grant of retail kerosene license as heir and legal representative on death of original licensee was legal and valid. The exclusion of married daughter from the purview of expression 'family' in the Licensing Order was held to be violative of Article 15 of the Constitution but also the right guaranteed by Article 19(1)(g). For transfer of retail license, the criteria is inheritance thus the exclusion of married daughter was held to be irrational and unconstitutional. However, in the matter of compassionate appointment dependency is one of the most important yardstick. Rule 3 of the Rules 1974 provides that these Rules shall apply to recruitment of dependents of the deceased government servants. Thus the ratio of above judgment is not applicable in the facts of the present case.
In Aparna Narendra Zambre (Supra) the petitioner therein was not considered for appointment on compassionate grounds by virtue of being married. Though it was urged on behalf of the petitioner therein that exclusion of a married daughter from consideration for appointment on compassionate basis was discriminatory, the Court did not go into the said larger issue as it was found that name of the petitioner had been rejected despite the fact she was unmarried at the time of consideration of claim. The said case is thus also distinguishable on facts and cannot be said to be an authority for the proposition sought to be urged before us.
It being well settled that appointments on compassionate ground since are granted with a view to relieve the family of the economic distress being faced on account of sudden death of the bread earner and is an exception to the principles of equality of opportunity in public appointment guaranteed by Articles 14 & 16 of the Constitution of India and thus no exception can be created and the rules are to be strictly construed. Compassionate appointment is not a right but a concession and thus is to be made strictly in accordance with the Rules, Policy or Scheme framed by the employer.
In view of the law laid down by the Hon'ble Apex Court that compassionate appointment is to be made strictly in accordance with the rules, and the Full Bench decision of this Court that definition of 'family' in rules 1974 is exhaustive and since married daughter is not included in the definition of family, there can be no exception to the view taken by the learned single Judge that being a married daughter the petitioner was not liable to be considered for grant of compassionate appointment. Thus we find no reason to interfere with the judgment under appeal passed by learned single Judge dismissing the writ petition.
The appeal is devoid of merits and accordingly stands dismissed.
Dt. 27-07-2015 nd.