Suresh Chand vs State Of U.P. And Another
2011 Latest Caselaw 4284 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

COURT NO.39
 
CIVIL MISC. WRIT PETITION NO.49576 OF 2011
 
Suresh Chand.  		 				....Petitioner
 
Versus
 
State of U.P. and others.   			         .....Respondents
 

 
Hon'ble Rajes Kumar, J.

The petitioner is challenging the order dated 30.07.2009, by which his application for compassionate appointment has been rejected. The petitioner's mother was an employee, who died on 26.05.2003 and after three years of the death of the mother, the petitioner moved an application for compassionate appointment on 08.09.2006. The respondent has considered the claim of the petitioner and has rejected the claim on the ground that 1) the petitioner moved the application after three years of death; 2) the petitioner is 39 years old; 3) the petitioner got Rs.4,40,873/- towards the various benefits etc. and there was no financial crises; 4) all the three daughters have got married; and 5) the petitioner was not able to substantiate financial crises on account of the death of his mother.

I do find any error in the impugned order. First, the petitioner is challenging the impugned order after two years, secondly, the petitioner moved the application after three years from the date of death of his mother and thirdly, the petitioner is 39 years old and have received Rs.4,40,4873/-. The compassionate appointment is exception to the general rules of recruitment. Therefore, it has to be considered strictly in accordance to rules and the principle laid down by the Court. It has been held by the Apex Court that compassionate appointment is given to meet immediate financial crisis arises on account of death of the deceased. Therefore, it is on the petitioner to make out a case that on the death of employee the financial crisis arose and the same continues.

Rule 5 of the U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974 provides for recruitment to a member of the family of the deceased which reads as follows:

"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.

(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."

Rule 5 (iii) of the aforesaid Rules, 1974 provides that the application for employment should be given within five years from the date of the death of the Government servant. The proviso gives power to the State Government to dispense with or relax the requirement in case if the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case. Therefore, the time limit fixed for making the application can only be dispensed with or relaxed when the applicant makes out a case of undue hardship. Since the compassionate appointment is the exception to the general rule of recruitment the undue hardship should be construed strictly.

The law 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 the case of Jagdish Prasad v. State of Bihar, (1996) 1 SCC 301, the Supreme Court observed:

"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."

In the case of MMTC Ltd. v. Pramoda Dei, (1997) 11 SCC 390, it is observed by the Supreme Court :

"As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment, and that mere death of an employee does not entitle his family to compassionate appointment."

In the case of S. Mohan v. Government of T.N., (1998) 9 SCC 485, the Court stated that:

"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 appointment cannot be claimed and offered whatever the lapse of time and after the crisis is over."

This Court has observed in Director of Education (Secretary) v. Pushpendra Kumar, (1998) 5 SCC 192:

"The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Since a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. 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 the 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 dependant of a deceased employee. In Umesh Kumar Nagpal v. State of Haryana, this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that 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 but 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."

In the case of State of U.P. v. Paras Nath, (1998) 2 SCC 412, the Court has held that:

"The purpose of providing employment to a dependant of a Government servant dying-in-harness in preference to anybody else, is to mitigate the hardship caused the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased Government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case."

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 the case of Punjab National Bank v. Ashwini Kumar Taneja, (2004) 7 SCC 265, it was observed by the Court that:

"it is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis."

In the case of National Hydroelectric Power Corpn. v. Nanak Chand, (2004) 12 SCC 487, the Court has stated that:

"It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis."

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 the case of State of J. and K. v. Sajad Ahmed Mir, (2006) 5 SCC 766, the Court has held that:

"Normally, an employment in the 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 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 from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say "goodbye" to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution."

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 law laid down by the Apex Court, I do not find any merit in the petition. The writ petition fails and is dismissed.

Dt.02.09.2011

R./