Km. Shalini Singh vs State Of U.P. Thu. Its Secretary ...
2011 Latest Caselaw 5916 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Writ Petition No. 8712 (SS) of 2009
 
Km.Shalini Singh                                                      .................. Petitioner 
 
Vs.
 
State of U.P. Thu. Its Sec.                                      ............Opposite parties
 
Hon'ble Anil Kumar,J.

Heard Shri S. P. Singh, learned counsel for petitioner, learned Standing Counsel and perused the record.

Facts of the present case are to the effect that petitioner's mother working as Mukhya Sevika, died on 16.7.2004 during tenure of her services.

On 19.8.2006 the petitioner moved an application for considering her case for compassionate appointment to the Director, (Bal Vikas Evam Pushtahar), Indira Bhawan, Lucknow, rejected by order dated 29.11.2006 (Annexure No.1), on the ground that the compassionate appointment cannot be given to the petitioner because her father (Shri Kanhaiya Singh) is working as driver in the Irrigation Department, Districit- Gorakhpur, U.P.

After the rejection of the case of the petitioner for compassionate appointment, on 3.1.2007, she again submitted an application to the opposite party no.2 (Annexure No.3) interalia stating therein that her mother ( late Smt Meena Sharma) along with petitioner and 2 sisters is living separately from her father so keeping in view the said fact and also taking into consideration that the elder sister of the petitioner is 90% handicapped, the case of the petitioner may be re-considered for giving compassionate appointment however no heed has been paid hence the present writ petition has been filed thereby challenging the order dated 29.11.2006 (Annexure No.1) passed by opposite party no.2 as well as with a prayer that the opposite party concerned may be directed to consider the case of the petitioner for compassionate appointment under the provisions of Dying in Harness Rules 1974 as well as the Government Order dated 7.10.1974.

Learned counsel for the petitioner submitted that the impugned order dated 29.11.2006 (Annexure No.1) passed by opposite party no.2 is illegal and unsustainable under law because the petitioner's mother is living separately along with petitioner and two other sisters so the action on the part of the opposite party no.2 thereby rejecting the petitioner's case for compassionate appointment on the ground that her father (Shri Kanhaiya Singh) is working on the post of driver in the Irrigation Department, District- Gorakhpur cannot be granted for rejection of her case for giving compassionate appointment.

Learned counsel for the petitioner further submits that even after the rejection of the case of the petitioner by means of the order dated 29.11.2006 (Annexure No.1), the petitioner raised her grievances before the opposite party no.2 inter alia stating therein that the same has not been considered properly although the opposite party no.2 is duty bound to consider her case sympathetically for giving compassionate appointment so the impugned order dated 29.11.2006 passed by opposite party no.2 is liable to be set aside and the petitioner's case may be considered for giving compassionate appointment.

On the other hand, learned Standing Counsel submits that very purpose for giving compassionate appointment is to provide an appointment to a person in order to provide livelihood to the family who had gone into harness due to the death of the sole earning member in the instant case, the father of the petitioner is working as driver, so she is not entitled for compassionate appointment and her case has been rightly rejected by order dated 29.11.2006 passed by opposite party no.2, thus the present writ petition is liable to be rejected.

I have heard learned counsel for parties and gone through the recordss.

The appointment on compassionate basis is not a matter of right in the sense that it is not a normal recognized source of recruitment but considering the factum of sudden demise of the Government Servant leaving his family in destitute, particularly when the said Government Servant is the sole bread earner, in order to save the family from such misery, if any scheme or rules have been made by the employer for providing appointment on compassionate basis, such appointment would not be invalid. However, since the purpose of such an appointment is to save the family of deceased employee from penury it is not a right conferred upon the harness of the deceased employee to claim a post against post but contemplate an employment only to save the bereaved family and not more than that.

In the case of Sushma Gosain and others v. Union of India and others, AIR 1989 SC 1976, the Apex Court while considering the object of granting compassionate appointment observed as under:-

"The 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."

In Sanjay Kumar v. State of Bihar and others, JT 2000 (10) SC 156 : (AIR 2000 SC 2782) the Apex Court reiterated that the compassionate appointment is provided only to enable the family of the deceased employee to tide over sudden crises resulting due to the death of sole bread-earner who had left the family in penury without any means of livelihood but it cannot be treated to be a reserved vacancy for the dependants of the deceased Government Servant who died in harness.

In State of Manipur v. Mohd. Rajaodin, 2003 (7) SCC 511 : (AIR 2003 SC 3794) the Apex Court reiterated that the purpose of giving compassionate appointment is only to mitigate hardship caused to the family of the deceased on account of his unexpected death in service, only to alleviate the distress of the family but at a belated stage, as these grounds are no more in existence, therefore, the employment cannot be claimed or provided.

In National Institute of Technology and others v. Niraj K'r Singh, (2007) 2 SCC 481 : (AIR 2007 SC 1155) the Hon'ble Apex Court quoted with approval a Full Bench decision of Andhra Pradesh High Court in the case of Govt. of A.P. v. D. Gopaiath, (2002) 93 FLR 12 (AP) (FB) wherein it was observed "by reason of Articles 14 and 16 of the Constitution of India, great hopes and aspirations were generated in the minds of the people of India that employment shall not be given on descent" and then said that it is only an exception and that too limited to mitigate the hardship of the bereaved family.

In State Bank of India and others v. Jaspal Kaur, JT 2007 (3) SC 35 : (2007 AIR SCW 1044) the Hon'ble Apex Court in para 27 observed as under:-

"Hence a major criterion while appointing a person on compassionate grounds should be the financial condition of the family the deceased person left behind. Unless the financial condition is entirely penury, such appointments cannot be made."

In General Manager State Bank of India and others v. Anju Jain 2008 (11) SCALE 647 : (2008 (6) ALJ 235) the Court held 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 an appointment is to be made in Government or semi-Government or in public offices, cases of all eligible candidates must he considered alike. That is the mandate of Article 14. Normally State or its instrumentaility 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 bereaved family from sudden financial crisis occurring due to demise of sole bread earner. It is thus an exception to the general rule of equality and not another independent and parallel source of recruitment."

In the light of the abovesaid facts and taking into consideration, the aims and objects in order to give the compassionate appointment to a person which is to save the family of the deceased who has gone into sudden crisis due to death of sole earning member as in the instant case the petitioner's father Shri Kanhaiya Singh is a driver in the Irrigation Department, District-Gorakhpur, U.P., so her case for giving compassionate appointment has been rejected by order dated 29.6.1991 passed by opposite party no.3, accordingly I do not find any illegality or infirmity in the said order.

Further, argument advanced by learned counsel for petitioner that her mother Smt. Meena Sharma along with her and two other sisters was living separately and has no relation with her father, so the petitioner is entitled for compassionate appointment after the death of her mother. The said argument has got no force because there is neither any cogent evidence nor on the basis of the document on record the petitioner is able to establish the said fact. Moreover, in the instant case, neither any divorce nor any judicial separation as per law has taken place between the mother and father of the petitioner. So in view of the said facts as taken by the petitioner is nothing but amounts to concocted story, only to carve out a case in her favour to get compassionate appointment.

For the foregoing reasons, I do not find any merit, the writ petition lacks merit and it is dismissed.

No order as to cost.

Order Dated:-18.11.2011

Mahesh