Anil Kumar Sharma vs State Of U.P.& Others
2012 Latest Caselaw 6182 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved.
 

 

 

 
Civil Misc. Writ Petition No. 27583 of 1992
 
Anil Kumar Sharma Vs.  State of U.P. and others.
 

 

 

 
Hon'ble Rajes Kumar, J.

Heard Sri Siddharth Khare, learned counsel for the petitioner, Sri V.K. Nagaich, learned counsel appearing on behalf of Zila Parishad, Aligarh and Sri Ansul Chaudhary, appears on behalf of respondent no. 5, Zila Panchayat, Mahamaya Nagar.

The brief facts of the case are that the father of the petitioner Late Sri Kanhaiya Lal Sharma was a permanent employee of Zila Parishad, Aligarh and was employed on the post of Vaccinator, who died on 10.12.1983 in harness. The petitioner, being the only son of Late Sri Kanhaiya Lal Sharma, applied for compassionate appointment. Despite several representations being given, when no action has been taken the petitioner moved an application to the Commissioner, Agra Division, Agra dated 5.9.1988 on which a report has been sought. Thereafter, the application of the petitioner has been processed and on 19.5.1990 the petitioner was appointed as a Clerk in Zila Parishad, Aligarh. Pursuant to the appointment letter, the petitioner joined on 19.5.1990 and since then he is continuously working. On 14.7.1992, the Chairman, Zila Parishad, Aligarh has terminated the services of the petitioner on the ground that vide Government Order No. 7532B-33-2-2-B (9) 90 dated 11.12.1991 it has been clarified that in case of death of the employees of Zila Parishad during the course of their service, for compassionate appointment to one member of the family, the Government Order shall be applicable w.e.f. 5.7.1984 while Sri Kanhaiya Lal Sharma died on 10.12.1983, therefore, the Government Order dated 5.7.1984 is not applicable and the services of the petitioner on compassionate ground cannot be approved. The order of the Chairman, Zila Parishad, Aligarh is being challenged in the present writ petition. The writ petition was entertained on 31.7.1992 and an interim order has been passed staying the operation of the order dated 14.7.1992 and the petitioner has been permitted to work on the post of Clerk.

Learned counsel for the petitioner submitted that the impugned order has been passed in gross violation of principle of natural justice inasmuch as no opportunity has been given before passing the order. He, however, submitted that it is wrong to say that on the date of death the provision for compassionate appointment did not exist. A reference is made to the Government Order dated 21.12.1973, which is Annexure-8 to the writ petition. He further submitted that in any view of the matter on the day when the petitioner's application has been processed and the petitioner has been appointed the Government Order for compassionate appointment was in force as per the Government Order dated 11.12.1991 which was enforced w.e.f. 5.7.1984. He placed reliance on the decision of the learned Single Judge of this Court in the case of Hanif Uddin and others Vs. Chairman, Zila Parishad, Hamirpur and another, reported in 1996 928) ALR-349.

Learned counsel for the respondents submitted that by the Government Order No. U.O.-113D/33-2-32B (1)/84 dated 5.7.1984 it was provided that on the death of employee of the Zila Parishad the compassionate appointment shall be given to one of the members of the family. The date of enforcement of the Government Order is not mentioned. By the subsequent Government Order dated 11.12.1991 it has been clarified that the Government Order shall be enforced w.e.f. 5.7.1984 and since the father of the petitioner died prior to 5.7.1984 the benefit of the Government Order dated 5.7.1984 was not available to the petitioner and as such the appointment of the petitioner on compassionate ground was illegal. Reliance is placed on the following decisions:

1- Satya Prakash Vs. U.P. State Electricity Board, reported in 1994-Laws (All)-12-91.

2- The decision of the Division Bench in Special Appeal No. 514 of 1992, decided on 19.10.1994.

3- Harbansh Sahai Srivastava Vs. State of U.P., reported in 1990 (1) UPLBEC 220.

4- Kripa Shankar Tiwari Vs. District Inspector of Schools, Fatehpur, reported in 2007-Laws (All)-12-72.

5- N.T. Devin Katti Vs. Karnataka Public Service Commission, reported in 1990-Laws (SC)-3-7.

6- N. Mohanan Vs. State of Kerala and others, reported in (1997) 2 SCC 556.

I have considered the rival submissions and perused the record.

The facts are not in dispute. The father of the petitioner died on 10.12.1983. The petitioner has moved an application for compassionate appointment but the same could not be processed. Several representations were made and when the representations could not be decided, the petitioner moved the representation before the Commissioner, Agra Division, Agra on 5.9.1988 on which a report has been sought. Thereafter the application of the petitioner has been processed and the appointment letter was issued on 19.5.1990. When the petitioner's application was examined and the appointment letter was issued the Government Order dated 5.7.1984 was available. Moreover, by the Government Order dated 7.5.2012, the Dying in Harness Rules, 1974 has been made applicable to the employees of Zila Parishad. In my opinion, when the application was processed and the appointment letter was issued the Government Order dated 5.7.1984 providing the compassionate appointment to one of the members of the family of the employee in Zila Parishad was available and, therefore, the appointment cannot be said to be illegal.

In the case of Hanif Uddin and others Vs. Chairman, Zila Parishad, Hamirpur and another (Supra), the employee died in the year 1980. Both the Government Orders dated 5.7.1984 and 2.5.1985 have been considered by the learned Single Judge. The learned Single Judge has observed that it is not clear from the above Government Orders that from which date Dying in Harness Rules in Zila Parishad was enforced and on this view of the matter, the appointment given in case of death of deceased in the year 1980 on the ground that under similar circumstances the compassionate appointment to one Sri Virendra Kumar Nigam, whose father died in 1983 has been given, held justified.

Moreover, in my view, the issue involved in the present case is squarely covered by a recent decision of the Apex Court in Civil Appeal No. 1641 of 2010, State Bank of India and others vs. Raj Kumar, decided on 8.2.2010. This case also relates to the compassionate appointment. The employee died on 1.10.2004. The widow of the deceased moved an application on 6.6.2005 and 14.6.2005, requesting for the compassionate appointment of her son Raj Kumar. When the application was being processed and verified, the scheme for compassionate appointment was substituted by the "SBI Scheme for payment of ex-gratia Lumpsum Amount" with effect from 4.8.2005. When the application was considered, the scheme for compassionate appointment was not in existence. The son of the deceased claimed compassionate appointment on the ground that on the date of the death and the application, the scheme of compassionate appointment was available and right to get the compassionate appointment accrued on the date of the death and the application. The Employer-Bank did not accept the claim of the applicant on the ground that on the date of consideration of the application, the scheme for compassionate appointment was abolished and the new scheme for the payment of ex-gratia lumpsum amount has been introduced.

Being aggrieved, the claimant filed the writ petition. The Learned Single Judge allowed the writ petition and the order of the learned Single Judge has also been approved by the Division Bench by the order dated 1.9.2008. The Bank preferred Civil Appeal before the Apex Court.

The Apex Court held that the mere fact that an application was made when the scheme was in force will not by itself create a right in favour of the applicant. It has further been held that the scheme, which was in force when the application is actually considered, and not the scheme which was in force earlier when the application was moved, will be applicable. The observations of the Apex Court are as follows:

"6. It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the Rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant.

7. Normally the three basic requirements to claim appointment under any scheme for compassionate appointment are: (i) an application by a dependent family member of the deceased employee; (ii) fulfilment of the eligibility criteria prescribed under the scheme, for compassionate appointment; and (iii) availability of posts, for making such appointment. If a scheme provides for automatic appointment to a specified family member, on the death of any employee, without any of the aforesaid requirements, it can be said that the scheme creates a right in favour of the family member for appointment on the date of death of the employee. In such an event the scheme in force at the time of death would apply. On the other hand if a scheme provides that on the death of an employee, if a dependent family member is entitled to appointment merely on making of an application, whether any vacancy exists or not, and without the need to fulfil any eligibility criteria, then the scheme creates a right in favour of the applicant, on making the application and the scheme that was in force at the time when the application for compassionate appointment was filed, will apply. But such schemes are rare and in fact, virtually nil.

8. Normal schemes contemplate compassionate appointment on an application by a dependent family member, subject to the applicant fulfilling the prescribed eligibility requirements, and subject to availability of a vacancy for making the appointment. Under many schemes, the applicant has only a right to be considered for appointment against a specified quota, even if he fulfils all the eligibility criteria; and the selection is made of the most deserving among the several competing applicants, to the limited quota of posts available. In all these schemes there is a need to verify the eligibility and antecedents of the applicant or the financial capacity of the family. There is also a need for the applicant to wait in a queue for a vacancy to arise, or for a selection committee to assess the comparative need of a large number of applicants so as to fill a limited number of earmarked vacancies. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, upto the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable. Further where the earlier scheme is abolished and the new scheme which replaces it specifically provides that all pending applications will be considered only in terms of the new scheme, then the new scheme alone will apply. As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts."

In view of the law laid down by the Apex Court, the scheme which was available at the time of consideration of the application will apply. Admittedly, in the present case, the application has been considered much after 5th July, 1984 and the appointment letter was issued on 19th May, 1990. When the application was considered, the Government Order dated 5.7.1984, providing compassionate appointment to one of the family member of the deceased employee was in existence. Therefore, I am of the view that the appointment of the petitioner on compassionate ground under the Government Order dated 5.7.1984 was wholly justified and the impugned order cancelling the appointment is wholly illegal and not sustainable.

The decisions cited by the learned counsel for the respondents are either not applicable or contrary to the view taken by the Apex Court, referred herein above. In the circumstances, it is not necessary to deal with the decisions cited by the learned counsel for the respondent individually.

In the result, the writ petition is allowed. The impugned order dated 14.7.1992, Annexure-5 to the writ petition, passed by the Chairman, Zila Parishad, Aligarh, is hereby quashed.

Dated: 20th December, 2012

OP