Amit Kumar vs State Of U.P. & Others
2012 Latest Caselaw 3409 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 39
 

 
Case :- WRIT - A No. - 38014 of 2012
 
Petitioner :- Amit Kumar
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- P.C. Singh
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sibghat Ullah Khan,J.

Heard learned counsel for the petitioner and learned standing counsel for the respondent.

Petitioner's father was a peon in Judgeship Bijnor. He died in harness. Petitioner has been appointed on the post of peon in the same Judgeship under U.P. Recruitment of Dependants of Government Servant Dying-in-harness Rule 1974. Petitioner has also joined on the post of peon ,however, he wants a Class III job. In this regard, learned counsel for the petitioner has placed reliance upon a report given by two Additional district Judges on 8.1.2010 to the District Judge which is Annexure 5 to the writ petition recommending that petitioner may be appointed as clerk on compassionate ground as his father died in harness on 22.5.2009. Learned counsel for the petitioner has placed reliance upon an authority of this Court reported in Rajesh Singh Vs. Director of Education, 1991 U.P.L.B.E.C. 345.

I do not agree with the contention of learned counsel for the petitioner. The Supreme Court in Commissioner of Public Instructions Vs. K.R. Vishwanath AIR 2005 SC 3275 has held that strictly the claim of compassionate appointment can not be upheld on the touchstone of Articles 14 & 16 of the Constitution of India and that the object of such appointment is to enable the family to get over sudden financial crisis or to mitigate the hardship due to death of the bread earner in the family. Paragraphs 10,11 and 11 A of the said authority are quoted below:

"10. As was observed in State of Haryana and Ors. v. Rani Devi and Anr. ( AIR1996SC2445) it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased-employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased-employee. In Rani Devi's case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of India v. Asha Ramchandra Ambekar (Mrs.) and Anr. (1994(2)SCC 718, it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. [1994] (4)SCC 138, that as a rule in public service appointment should be made strictly on the basis of open Invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.

11. In Smt. Sushma Gosain and Ors. v. Union of India and Ors. (1989)(4) SCC 468), it was observed that in all claims 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 hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati (smt.) v. Union of India and Ors. 1991Supp (2) SCC 689, and Union of India and Ors. v. Bhagwan Singh 1995(6)SCC 476. In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors.[1998](5)SCC192, it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely 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, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased-employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision.

11A. In State of U.P. and Ors. v. Paras Nath 1998(2) SCC 412, it was held that the purpose of providing employment to the dependant of a Government servant dying-in-harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments.(underlining supplied)

Similar view was taken in State of J & K Vs. Sajad Ahmed Mir, AIR 2006 SC 2743 para 14 of which is quoted below:

"14. In Umesh Kumar Nagpal v. State of Haryana and Ors. (1994) 4 SCC 138 , it was ruled that public service appointment should be made strictly on the basis of open invitation of applications and on merits. The appointment on compassionate ground cannot be a source of recruitment. It is merely an exception to the requirement of law keeping in view the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases, the object is to enable the family to get over sudden financial crisis. Such appointments on compassionate ground, therefore, have to be made in accordance with rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. This favourable treatment to the dependant of the deceased employee must have clear nexus with the object sought to be achieved thereby, i.e. relief against destitution. At the same time, however, it should not be forgotten that as against the destitute family of the deceased, there are millions and 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 expectation, and the change in the status and affairs of the family engendered by the erstwhile employment, which are suddenly upturned." (underlining supplied)

In National Institute of Technology and Ors. Vs. Niraj Kumar Singh AIR 2007 SC 1155 it has been held as follows in para 16:

"16. All public appointments must be in consonance with Article 16 of the Constitution of India. Exceptions carved out therefore are the cases where appointments are to be given to the widow or the dependent children of the employee who died in harness. Such an exception is carved out with a view to see that the family of the deceased employee who has died in harness does not become a destitute. No appointment, therefore, on compassionate ground can be granted to a person other than those for whose benefit the exception has been carved out. Other family members of the deceased employee would not derive any benefit thereunder."

In Local Administration Department Vs. M Selvanayagam AIR 2011 SC 1880 it has been held that the sole purpose of giving compassionate appointment in case of an employee dying in harness is to provide minimum succour to the family which may suddenly find itself in dire straits as a result of the death of bread winner (para 7).

In State of Haryana Vs. Vipin Kumar, AIR 2002 SC 2867 it has been held that even though compassionate appointment Rules of State of Haryana provided that appointment should be made on the post one step below the post which the deceased was holding still it does not mean that appointment on compassionate ground must be to a post immediately below the post held by deceased employee and it could be even to a much lower post.

In view of the above authorities it is quite clear that the purpose of giving compassionate appointment is to provide minimum succour, to mitigate the hardship and to enable the family to get over sudden financial crisis. It can not be by way of wind fall or bonanza. Giving appointment to the dependent on a post lower to the post on which deceased was working amounts to mitigating the hardship. The family may not get as much salary as the deceased was getting but it will be getting at least some salary. Giving appointment on the same post on which the deceased was working completely wipes out the hardship which the family may face due to death of the bread earner in harness. However, giving job on a higher post is not to mitigate the hardship but providing more than what the family was earlier getting. This is not permissible under law. This is beyond the permissible inroad which may be made in the area of Article 14 and 16 of the constitution. It will be illegal encroachment in the territory occupied by Articles 14 & 16 of the Constitution. The purpose of mitigating hardship may override Article 14 and 16 of the Constitution however, the object of providing more than what the deceased was getting can not be permitted to override the mandate of Article 14 and 16.

Accordingly, it is held that under no circumstances compassionate appointment under Dying-in-harness Rule can be granted on a post higher than the post which the deceased employee was holding.

Learned counsel for the petitioner has also invited attention of the Court to some appointment orders under Dying-in-harness Rules which are Annexure 13 to 16 to the writ petition giving appointments to the dependants of the deceased employees of the same district court on clerical posts. From these Annexures it is not clear as to whether the deceased employees were Class III employees or Class IV employees. In any case a wrong order can not be a precedent.

Accordingly, writ petition is dismissed.

Order Date :- 7.8.2012

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