HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 3 Case :- SPECIAL APPEAL No. - 434 of 2015 Appellant :- Pavan Kumar Singh Respondent :- State Of U.P. And 2 Othres Counsel for Appellant :- Ajai Kumar Counsel for Respondent :- C.S.C. Hon'ble Krishna Murari, J.
Hon'ble Amar Singh Chauhan, J.
This intra-court appeal filed under Chapter VIII Rule 5 of the Rules of the Court has been preferred against the judgment of the learned Single Judge dated 06.05.2015 dismissing the appellant's writ petition no. 26006 of 2015 claiming compassionate appointment.
Facts are that the father of the petitioner, who was working as Collection Peon, died in harness on 03.09.1997. After about 11 years, the mother of the petitioner made an application dated 12.05.2008 seeking compassionate appointment for petitioner. When no final decision was taken in the matter, the petitioner approached this Court by filing writ petition. Learned single Judge relying upon various pronouncements of the Hon'ble Apex Court as well as Full Bench of this Court in Shiv Kumar Dubey Vs. State of U. P. 2014 (2) ADJ 312 dismissed the writ petition on the ground that petitioner cannot be permitted to claim compassionate appointment after 11 years of the death of his father in 1997.
It is contended by the learned counsel for the appellant that at the time of death of his father, he was a minor and on attaining majority, application was moved by his mother, the delay, if any, is on the part of the respondents and the petitioner cannot be held responsible for the same. It is also submitted that after the death of sole bread earner, the family is facing financial hardship and being at the verge of starvation, the respondents are under bounded duty to consider and appoint the petitioner on compassionate ground.
We have considered the arguments advanced by the learned counsel for the appellant and perused the record.
It is well settled legal position that the dependent of a deceased employee has no vested right to claim appointment on compassionate ground and he is only entitled to be considered for such appointment. Thus the time is a very important factor. In Umesh Kumar Nagpal vs. State of Haryana & others, reported in (1994) 4 SCC 138, the Hon'ble Apex Court observed as follows :
"The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. xxxxxxxxxxxxxxxxxxxxxxxxxxxxx For these very reasons, the compassionate employment cannot be granted after a lapse of reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."
In Haryana State Electricity Board & another vs. Hakim Singh, reported in JT 1997(8) SC 332, the Hon'ble Apex Court analyzing the case of a widow who applied for compassionate appointment for her son after 14 years of the death of her husband on the ground that at the relevant time her son was a minor only 4 years in age and the application was being made on his attaining majority, observed as under :
"We are of the view that the High Court has erred in over stretching the scope of the compassionate relief provided by the Board in the circulars as above. It appears that High Court would have treated the provision as a lien created by the Board for a dependent of the deceased employee. If the family members of the deceased employee can manage for fourteen years after his death one of his legal heir cannot put forward a claim as though it is a line of succession by virtue of a right of inheritance. The object of the provisions should not be forgotten that it is to give succor to the family to tide over the sudden financial crisis be-fallen the dependents on account of the untimely demise of its sole earning member."
Similarly, in Jagdish Prasad vs. The State of Bihar & Anr., JT 1995 (9) SC 131 while rejecting the case of a minor for giving compassionate appointment after he attained majority, the Hon'ble Apex Court has observed as under :
"It is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that, therefore, the Court is required to examine whether the appointment should be made on compassionate ground. We are afraid, we cannot accede to the contention. The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased Government servant which cannot be encouraged, dehors the recruitment rules."
The same view has been taken by the Hon'ble Apex Court in the case of Smt. Sushma Gosain & others vs. Union of India & others, 1989(4) SCC 468, Commissioner of Public Instructions & others vs. K.R. Vishwanath, 2005 AIR SCW 4102 and Haryana State electricity Board vs. Naresh Tanwar & Anr., JT 1996(2) 542.
In State of J & K & ors. vs. Sajad Ahmad Mir, 2006 AIR SCW 3708, the Hon'ble Apex Court has observed as under :
"In the case on hand, the father of the applicant died in March, 198. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. the writ petition was filed in June, 1999 which was dismissed by the learned Single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. The said fact was indeed a relevant and material fact which went to show that the family survived in spite of death of the employee."
Full Bench of this Court in the case of Shiv Kumar Dubey Vs. State of U. P. 2014 (2) ADJ - 312 while considering the U. P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974 which prescribes period of five years for making application for grant of compassionate appointment in Rule 5 which can be relaxed in exceptional circumstances by the State Government has held as under :
"29. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules:
(i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved;
(ii)There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules;
(iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner;
(iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment;
(v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out;
(vi) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner;
(vii) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government;
(viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family." (Emphasis supplied) Thus the law stands settled by various pronouncements of the Hon'ble Apex Court and this Court to the effect that the object and purpose of giving compassionate appointment is to mitigate the hardship due to death of the bread earner of the family and has to be provided immediately to redeem the family in distress. It cannot be claimed as a matter of right and is not a vested right which can be exercised any time in future. Very basis of compassionate appointment is to ensure that the family gets immediate relief from the distress caused due to the sudden death of bread earner of the family and delayed appointment after lapse of several years during which the family has survived and the crisis is over cannot be upheld on the touch stone of Article 14 & 16 of the Constitution.
In the present case, undisputedly the petitioner claimed appointment on compassionate ground after about 11 years of the death of his father. It is thus clear that during this period petitioner-appellant survived and by the time he attained majority and made the application if at all there was any crisis in the family, it was over. Petitioner-appellant also failed to bring on record any material with regard to financial status of the family in order to establish that the crisis was still continuing and he was unable to sustain himself and the family.
In view of the aforesaid fact and circumstances and the settled law, we do not find any legal or factual error in the judgment of the learned single Judge.
The appeal being devoid of merits is dismissed summarily.
Order Date :- 3.7.2015 Dcs