Sarita Singh vs The State Of U.P. And Others
2011 Latest Caselaw 6409 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 

 

 
CIVIL MISC. WRIT PETITION NO. 61993 OF 2011
 
Sarita Singh.................................................................................Petitioner.
 
Vs.
 
State of U.P. and others..............................................................Respondents.
 

 

 

 
Hon'ble Rajes Kumar, J.

The petitioner is the daughter of the decased employee, Smt. Vimla Singh, who was working on the post of Midwife in the department of Family Welfare State of U.P., died in harness on 11.3.2006.

Smt. Vimla Singh left three daughters and husband. The petitioner was the eldest one, applied for compassionate appointment on 21.9.2006 under the U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974 (hereinafter referred to as "Dying in Harness Rules, 1974").

It appears that application has been processed in the year 2008. The Chief Medical Officer, Azamagarh wrote a lette to the Director General Medical Health Services, U.P., Lucknow vide his letter dated 2.4.2008 for necessary action on the application of the petitioner. The said letter is Annexure-3 to the writ petition. In pursuance of the letter of the Director General Medical Health Services, U.P., Lucknow dated 7.10.2008, the Chief Medical Officer, Azamgarh wrote a letter dated 10.2.2009 to the Superintendent Primary Health Centre Pawai, Azamagarh stating therein that certain deficiencies have been found in the case of compassionate appointment of the petitioner. The deficiencies have been stated in the letter. The copy of the letter is Annexure-4 to the writ petition. Vide letter dated 10.6.2011 the Director General Family Welfare U.P., Lucknow wrote a letter to the Chief Medical Officer, Azamgarh, returned the application of the petitioner in original to re-submit again after fulfilling the requirements stated therein. Vide letter dated 28/30.8.2011 the claim of the petitioner for compassionate appointment has been rejected on the ground that Sri Shyam Singh, in his affidait dated 6.4.2010, has accepted that she has now been married and, therefore, the petitioner does not fall within definition of 'family' and accordingly the application has been rejected.

Heard learned counsel for the petitioner and learned Standing Counel.

Learned counsel for the petitioner submitted that when the petitioner applied for compassionate appointment, she was eligible under the Rules as she falls within the definition of 'family' as defined under the rule being unmarried daughter. The appliction was kept pending by the respondents for long time for one reason or the other and the same has now been rejected illegally on the ground that the petitioner is married and does not fall within the definition of 'family', is not justified. When the application was moved, the petitioner was eligible to be appointed under the Rules, therefore, merely because she married lateron her claim for compasionate appointment cannot be denied.

Reliance has been placed on the following decisions :

1- Allahabad Bank Staff Association U.P. Central Office vs. Chairman and M.D., Allahabad Bank, Kolkata, reported in 2010-ADJ-4-73.

2- Sonam Sharma vs. Bank of Baroda, reported in 2010-ADJ-9-319.

3- Sushma Gosain vs. Union of India, reported in 1989-SCC-4-468.

Learned Standing Counsel submitted that under Rule 5 of the Dying in Harness Rules, 1974 on the death of Government servant in harness one member of the family who is not already employed on the application, be given a suitable employment in Government service. The family is defined under Rule 2 (c) of the Rules which includes wife or husband, sons, unamrried and widowed daughters. The married daughter is not included in the family. Therefore, if at the time of giving employment, the claimant does not fall within the defintion of 'family', compassionate appointment cannot be given. He submitted that compassionate appointment is the exception to the general rule of recruitment and, therefore, to be construed very strictly. He further submitted that the cases cited by the learned cousnel for the petitioner are not applicable in the present case and are distinguishable.

I have considered the rival submissions and perused the record.

The facts are not in dispute. When the application for compassionate appointment was moved, the petitioner was unmarried and when the claim for compassionate appointment was under consideration, she was married. Undoubtedly, she moved an application for compassionate appointment she fell under the definition of 'family' as defiend under Rule 2 (c) of the Rules but when application was under consideration, she ceases to be eligible.

It would be appropriate to refer Rule 2 (c) and Rule 5 of the U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974:-

"Rule 2 (c)-"family" shall include the following relations of the deceased Government servant :

(i)Wife or husband;

(ii)Sons;

(iii)Unmarried and widowed daughters.

5. Recruitment of a member of the family of the deceased-(1) In case a Government servant dies in harness after the commencement of these rules and the 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, one member of his family who 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 shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules, if such person-

(i)fulfils the educational qualifications prescribed for the post,

(ii)is otherwise qualified for Government service, and

(iii)makes the application for employment within five years from the date of the death of the Government servant:

Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.

Provided further that for the purpose of the aforesaid proviso, the person concerned shall explain the reason and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the applicaion for employment along with necessary documents/proof in support of such dealy and the Government shall, after taking into consideration all the facts leading to such delay take the appropriate decision.

(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.

(3) Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves.

(4) When the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his service may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time."

Rule 5 of the Dying in Harness Rules, 1974 provides that in case a Government servant dies in harness, one member of his family who 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 shall, on making an application be given a suitable employment in Government service. Thus, under Rule 5 of the Dying in Harness Rules, 1974, one member of the family is to be given suitable appointment. If the claimant is not the member of the family of the decased no employment can be given. Therefore, to be a member of the family of the deceased, is the pre-requisite for the employment. If on the date of employment, the claimant ceases to be the member of the family of the deceased, the employment cannot be given. The relevant date is the date of the employment, when the claimant should be the member of the family. In the present case the petitioner after the marriage ceases to be the member of the family and, therefore, she is not entitled for employment under Rule 5 of the Dying in Harness Rules, 1974.

In the case of Sonam Sharma vs. Bank of Baroda (Supra), the fact of the case was that when the application for compassionate appointment was moved, there was a scheme for compassionate appointment. In the said case, the petitioner's father died on 29.6.2004 in harness. He was emplyee in the bank. The petitioner's mother applied for compassionate appointment but the claim was rejected on 6.4.2005 on account of her advanced age. The petitioner moved an application for compassionate appointment on 31.5.2005. The compassionate appointment has been refused on the ground that on account of circular dated 4.10.2005 read with the circular dated 2.2.2006 the new scheme has bee introduced for the ex-gratia payment in place of compassinate appointment. This Court relying upon the decision of the Apex Court in the case of State Bank of India (supra) has held that the circular which was in existence at the time of the moving of the application has to be taken into consideration and the subsequent circulars do not in any way wipe out the effect and the rights that had accrued in favour of the petitioner prior to the issuance of the said circulars. The Court accordingly directed the bank to consider the claim of the petitioner for compassinate appointment.

In the case of Allahabad Bank Staff Association U.P. Central Office vs. Chairman and M.D., Allahabad Bank, Kolkata (supra), the similar view has been taken by the learned Single Judge. In this case when the death of the deceased took place there was scheme for compassionate appointment. The application was moved under the schme, the same was processed and the appointment has been approved but before giving the appointment, the scheme has been changed and instead of compassionate appointment, provision of ex-gratia payment was introduced and accordingly the claim for compassinate appointment has been denied. The Court held that both on the date the application as well as on the date it was finally considered by the Personnel Administrative Department of the Bank, the scheme for compasionate appointment was available. The enforcement of scheme dated 4.2.2005, which was done away with compassionate appointment, has no application qua the case of the petitioner.

In the case of Sushma Gosain vs. Union of India (supra), the petitioner sought compassionate appointment in November, 1982 under the prevailing scheme. In the year 1983, she passed the trade test and the interview conducted by the DGBR. However, the petitioner was not given appointment till 1985 when the ban on appointment of ladies was imposed. The Apex Court held that denial of appointment is patently arbitrary and cannot be supported in any view of the matter. It has been further observed that in the case of appointment on compassionate grounds there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardhsip due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is imporper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.

In all the aforesaid cases, during the pendency of the applications, the scheme has been changed and a new scheme has been introduced by virtue of which the claim has been denied. The claim of the petitioner may be considered under the scheme which was available at the time of death and at the time of the moving of the application. In the present case, there is no such situation. The law which existed at the time of death, moving of the application and even today remains the same. The petitioner became ineligible for compassionate ground on account of her own act. The petitioner ceases to be family member of the deceased family after the marriage and became the member of her husband family. Moreover, it is not expected from her to maintain the family of her parents. It would be more appropriate that the other member of the family may make a claim if admissible in law. The object of giving compassinate appointment stands frustrated. Rule 5 of the Dying in Harnes Rules, 1974 provides compasionate appointment to a member of family. Therefore, relevant date is the date of appointment. On the date of appointment, the claimant should be eligible. If the claimant is not eligible on the date of appointment, she is not entitled to be appointed.

The matter relating to compassionate appointment is now being settled by the Apex Court. Some of the judgements of the Apex Court are referred herein above.

In Smt. Susma Gosain and others Vs. Union of India and others, (1989) 4 SCC, 468, the Supreme Court in the matter of appointment of the petitioner as Clerk in the office of Director General, Border Road observed that, "purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant."

In Umesh Kumar Nagpal v. State of Haryana and others, (1994) 4 SCC, 138, the Supreme Court held that while giving appointment in public service on compassionate ground, it is to be remembered that the appointment is in relaxation to the general rules. One such an exception is made in favour of the dependants of the employee dying-in-harness and leaving his family in penury and without any means of livelihood on pure humanitarian consideration, the public authority has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provisions of the 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. The Supreme Court further held, "the posts in Class-III and IV are the posts in non-manual and manual categories and hence they alone can be offered on compassionate ground, the object being to relieve the family, of the financial destitution and to hold it get over the emergency. The provisions of employment in such lower posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. Relief against destitution. No other posts are expected or required to be given by the public authorities for the purposes. It must be remembered in this connection that as against destitute family of the deceased, there are millions of other families, which are equally, if not more destitute." The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment, which has suddenly upturned. In para 6 the Supreme Court held that compassionate appointment cannot be granted after a laps 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.

In Haryana Public Service Commission vs. Harinder Singh and another, (1998) 5 SCC 452, the Supreme Court held that in compassionate appointment, on the death of a defence personnel killed in 1991 Indo-Pak War, the respondent, when he sought appointment was Civil Engineer gainfully employed at the time though on contract, held, that whole idea of reservation is that those, who are dependent for their survival on men, who have lost their lives or become disabled in the service of nation, should not suffer. A person who was gainfully employed could not be termed as dependent of ex-serviceman.

In Sanjai Kumar v. State of Bihar, (2000) 7 SCC, 192, the Supreme Court relying upon Director of Education (Secondary) v. Pushpendra Kumar, (1998) 5 SCC 192, held that the compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner, who has left the family in penury and without any means of livelihood. The applicant was minor, when he made his first application and was not eligible for appointment. There cannot be reservation of a vacancy till such time such petitioner become major, after a number of years, unless there is some specific provisions. The very basis of compassionate appointment is to seek that family gets immediate relief. The petitioner was 10 years old, when his mother died while she was working as Excise Constable. The Supreme Court did not find merit in the special leave petition against the decision of the High Court in which the writ petition was dismissed and the judgment was affirmed by the Division Bench.

In General Manager (D & FB) and others v. Kunti Tiwary and another, (2004) 3 UPLBC 2534 (SC): (2004) 7 SCC 721, the Supreme Court did not find any error in the decision of the bank which had taken a view that financial condition of the family was not penurious or without any means of livelihood. The compassionate appointment was denied on the ground that it could not be said that the respondents were living hand to mouth.

In Union Bank of India and others v. M.T.Latheesh, (2006) 7 SCC 350, the Supreme Court held that the dependent of the deceased employee of the bank making an application under the scheme for appointment made in 1997, it is not automatically become entitled to get compassionate employment nor does the possession of relevant qualification create any vested right in his favour to get appointed to a post specified by the scheme. His right is limited to get preferential treatment against the general principal of appointment subject to the discretion of the bank.

In Kendriya Vidyalaya Sangathan and others v. Dharmendra Sharma, (2008) 1 UPLBEC 464 (SC): (2007) 8 SCC 148, once again the Supreme Court reminded that the Court cannot direct compassionate appointment contrary to the policy. The Kendriya Vidyalaya Sangathan decided not to make Group-D appointment and to award work to contractors. It could not be compelled to make compassionate appointment contrary to its policy."

In the case of Mumtaz Yunus Mulani vs. State of Maharashtra and others, reported in [2008 (2) ESC 273 (SC)], the Apex Court has held that the claim for compassionate appointment was made after 12 years of the death of the deceased. The claim on compassionate ground has been denied. It has been observed that it is a settled principle of law that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or the Public Sector Undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis.

In the case of Bhawani Prasad Sonkar vs. Union of India and others, reported in (2011) 4 SCC-209, the Apex Court has held as follows :

"Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:

(i)Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.

(ii)An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.

(iii)An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.

(iv)Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts."

In view of the above, the writ petition has no merit and is liable to be dismissed and is accordingly dismissed.

Dated: 9th December, 2011

OP