Dinesh Kumar vs State Of U.P. & Others
2012 Latest Caselaw 5543 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED ON 11.09.2012
 
DELIVERED ON 08.11.2012
 
Court No. - 7
 

 
Case :- WRIT - A No. - 56688 of 2008
 

 
Petitioner :- Dinesh Kumar
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- V.K. Singh,G.K. Singh,P.K.Singh
 
Respondent Counsel :- C.S.C.,Chandra Dutta,Pradeep Kumar,Pradeep Verma
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri P.K.Singh, learned counsel for the petitioner, learned Standing Counsel for respondents No.1 and 2 and Sri Shailendra Kumar Maurya, Advocate holding brief of Sri Pradeep Verma, Advocate, for respondent No.4. None appeared on behalf of respondents No.3 and 5 despite service of notice, though the case has been called in revised.

2. As requested and agreed by learned counsel for the parties, this case was heard finally and and is being decided under the Rules of the Court.

3. There are three orders, which have given a cause of action to the petitioner and have been assailed in this writ petition. They are the orders dated 14.2.2006 (Annexure 2 to the writ petition); 30.7.2007 (Annexure 3 to the writ petition); and 25.7.2008 (Annexure 1 to the writ petition). All are passed by District Inspector of Schools, Allahabad (hereinafter referred to as "DIOS").

4. The DIOS vide first impugned order dated 14.2.2006 directed Manager/Principal of Jari Bandhan Inter College, Baijnath Ganj, Gorigon, Allahabad (hereinafter referred to as "College") to appoint Sri Sunil Kumar Yadav, respondent no.4, Son of Late Ram Awadh, (Assistant Teacher) working in the College till his death, as "Peon" in the pay scale of Rs.2250-3200 as a compassionate appointee. The Principal/Manager has been directed to make appointment, as contemplated in Regulation 107, Chapter III Regulations framed under Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921") and send compliance report to the DIOS.

5. The second order dated 30.7.2007 has been passed by DIOS in purported compliance of this Court's order dated 28.2.2006, in Writ Petition No.11251 of 2006, whereby he (DIOS) was required to decide representation of Smt. Sabira Begum, (respondent no.5 in the present writ petition) in respect to compassionate appointment on Class IV in the College. Therein he (the DIOS) has held that respondent no.5, Smt. Sabira Begum, is entitled for compassionate appointment being widow and legal heir of a deceased Class IV employees, Late Kallu, working in the College and accordingly directed Principal of the College to appoint her as Class a IV employee in the College.

6. The third order dated 25.7.2008 (Annexure 1 to the writ petition) has been passed by DIOS pursuant to this Court's order dated 8.2.2008 in Writ Petition No.40280 of 2007, filed by present petitioner, earlier, in which DIOS was directed to decide petitioner's representation objecting compassionate appointment of respondents no.4 and 5. The DIOS, by means of order dated 25.7.2008 has rejected petitioner's representation.

7. The facts in brief giving rise to the present dispute are narrated as under:

8. The College is imparting education upto intermediate classes and is governed by the provisions of Act, 1921. Payment of salary to the staff, teaching and non teaching, both, is governed by the provisions of Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereinafter referred to as "Act, 1971").

9. One Kallu, a class IV employee working in the college died on 13.12.2001. After the death of Kallu, her widow Smt. Sabira Begum sought compassionate appointment of one Ali Ahmad (Ali Hasan) stating that he is adopted son. The Principal did not agree probably for the reason that in Muslim Law, there is no concept of adoption and there could not have been an adopted son of an employee who was a Muslim. It is in these circumstances, Smt. Sabira Begum and Ali Ahmad (Ali Hasan), both, came to this Court in Writ Petition No.29715 of 2003 in which notices were issued at that time but no interim order was passed. The said writ petition was ultimately dismissed vide judgment dated 18.3.2004.

10. The Principal of College, being Appointing Authority of Class IV employees, sought permission of DIOS for making recruitment and appointment in the aforesaid vacancy, which was granted vide order dated 24.1.2005 (Annexure 4 to the writ petition). While granting permission, DIOS, however, directed that appointment should be made from a candidate belong to either Scheduled Caste or Scheduled Tribe since there are five sanctioned posts in the College and therefore, one would fall within the quota prescribed in SC/ST category.

11. Consequently, Principal of the College advertised vacancy on 5.2.2005 in daily newspaper "Northern India Patrika" and "Nyayadhish" and after considering various candidates, Selection Committee recommended petitioner for appointment in the aforesaid vacancy. The relevant documents were forwarded to DIOS for his approval which was considered by Regional Level Committee and vide letter dated 20.9.2005 it directed DIOS to take a decision at its own level under the rules and regulations. Consequently, DIOS granted approval vide letter dated 10.10.2005. The petitioner was appointed as a Class IV employee in the College vide appointment letter dated 15.10.2005 issued by Principal of the College. The petitioner belongs to reserved category (SC). Pursuant to the aforesaid appointment, the petitioner joined on 21.10.2005 and has been working since thereafter accordingly.

12. It appears that Committee of Management preferred a Writ Petition No.6277 of 2006 stating that vacancy, in which petitioner was appointed, ought to have been filled in, from dependent of deceased employee Kallu i.e. Smt. Sabira Begum, respondent no.5. The writ petition filed by Committee of Management was dismissed by this Court's judgment dated 9.5.2007.

13. The petitioner, however, was not paid salary during pendency of the above writ petition and therefore after dismissal of writ petition, represented before DIOS that since writ petition of management has been dismissed, he should be paid salary. Failing to get any response from DIOS, regarding payment of salary, petitioner came to this Court in writ petition No.40280 of 2007 which was disposed of vide order dated 8.2.2008 directing DIOS to consider and decide petitioner's representation regarding payment of salary. Pursuant thereto the DIOS passed the impugned order rejecting petitioner's representation and also cancelling/revoking order dated 10.10.2005 whereby approval was granted to the petitioner's selection. The DIOS has held that the aforesaid approval was obtained by concealment of material facts and therefore, the said approval was liable to be revoked.

14. Learned counsel for the petitioner, Sri P.K.Singh, contended that there were five sanctioned posts out of which three were already occupied by Sri Ram Raj, Sri Lalan Prasad and Sri Rajendra Prasad appointed on 8.7.1972, 8.7.1978 and 1.3.1987. There were two vacancies in 2005 when the process of recruitment on Class IV post begun after permission granted by DIOS on 24.1.2005. No claim for compassionate appointment against any of the vacancy in Class IV was pending for consideration at that time. Therefore, recruitment, selection and appointment of petitioner on a Class IV post can neither be said to be illegal nor any material fact was concealed and DIOS has completely misdirected himself by distorting the facts in a mixed up manner. Assailing the appointment of respondent no.5 in particular, Sri P.K.Singh, Advocate, said that at the time of appointment, she was above the age of 60 years, therefore could not have been appointed at all and her appointment made in 2007 is patently illegal and in flagrant violation of relevant statutory provisions applicable in this regard. So far as Sunil Kumar, respondent no.4 is concerned, who is alleged to have been appointed on 16.2.2006 or 31.7.2007, it is contended that he was not at all available for appointment when vacancy in question was advertised i.e. in 2005. The petitioner was selected and actually appointed in 2005 therefore, petitioner's appointment cannot be said to have been vitiated in law for an illegal appointment made subsequently in 2006 or 2007 when there was no vacancy of Class IV in the college. He contended that DIOS, in a wholly illegal and arbitrary manner, has passed the impugned orders and the same are liable to be set aside.

15. A counter affidavit has been filed by Principal stating that petitioner's appointment was made illegally since there was no vacancy. The respondents no.4 and 5 were already appointed vide appointment letters dated 30.7.2007 as a result whereof there was no vacancy in Class IV hence petitioner could not have been appointed. It is further said that before the claim of petitioner, application for compassionate appointment for the benefit of respondent no.4 was already pending, inasmuch as, his mother Smt. Ganga Devi, Wife of Late Ram Awadh had filed an application on 7.9.2001 requesting for compassionate appointment of respondent no.4.

16. Another counter affidavit has been filed by respondent no.4 himself stating that his father Ram Awadh, Assistant Teacher, working in the college died in 1999. The respondent no.4 at that time was minor. His date of birth being 10th July, 1986, vide Annexure 1 to the counter affidavit of respondent no.4, he passed High School in June, 2001 and Intermediate in 2003. He attained the age of majority i.e. 18 years on 10th July, 2004 but in anticipation, moved an application on 2nd May, 2004 for claiming appointment on and after 10th July, 2004 as a Class III employee in the College. The application was forwarded to DIOS by Management vide letter dated 31.5.2004.

17. It is not clear as to when DIOS granted approval and neither order of appointment allegedly issued in 2006 to respondent no.4 is on record nor otherwise said to have been issued on a particular date but it appears that he was allowed to join and work on 16th February, 2006. The respondent no.2, however, has mentioned the date of appointment of respondent no.4 as 16.2.2007.

18. The respondents no.1 and 2 have also filed counter affidavit. With respect to the age of appointment of respondent no.5, in para 13 of counter affidavit, it has been said that there is a restriction with respect to minimum age but no restriction about maximum age.

19. In the counter affidavit of respondent no.2, however, in para 8 it has been stated that Sri Sunil Kumar, respondent no.4 was appointed after attaining majority, on 16.2.2007, while respondent no.5, Smt. Sabira Begum, was appointed by DIOS vide order dated 31.7.2007.

20. No individual counter affidavit sworn by respondent no.5 himself has been filed.

21. Now coming to first aspect, i.e. on the correctness of appointment of respondent no.5, I am of the view that it was patently illegal.

22. It is admitted and evident from the record that respondent no.5, after the death of her husband Kallu, did not claim any appointment for herself but requested for appointment for her adopted son Ali Ahmad (Ali Hasan). For this purpose she along with Ali Ahmad filed writ petition no.29715 of 2003 which was ultimately dismissed on 18.3.2004. Therefore, till dismissal of writ petition, no claim was set up by respondent no.5 for her appointment on compassionate basis after the death of her husband.

23. Though, respondents no.1 and 2 in para 18 of their counter affidavit have stated that application was given by respondent no.5 requesting for compassionate appointment on 7.6.2003 but no such application has been placed on record to show whether it was an application for appointment of her ownself or for the benefit of Ali Ahmad (Ali Hasan) for which purpose respondent no.5 filed writ petition no.29715 of 2003. It is also inconceivable, when the aforesaid writ petition was pending before this Court in 2003 and was dismissed on 18.3.2004, what was the occasion for respondent no.5 to move an application for appointment of herself and if so, when such an application was given by her.

24. It is no doubt true that respondent no.5 filed writ petition no.11251 of 2006 which was disposed of on 28.2.2006 directing DIOS to decide her application for compassionate appointment but in that writ petition also she has not disclosed about her earlier writ petition filed along with Ali Ahmad (Ali Hasan) in which she has sought compassionate appointment for her adopted son Ali Ahmad (Ali Hasan). An order, which was obtained by petitioner in writ petition no.11251 of 2006 is clearly by concealment of material fact. Come what may but alleast there is nothing on record to show that respondent no.5 till 15.10.2005, when petitioner was actually appointed by the Principal of the College after approval granted by DIOS, had never moved any application claiming appointment on compassionate basis for herself and therefore, to claim that petitioner could not have been appointed since claim of compassionate appointment of respondent no.5 was pending consideration before DIOS is clearly incorrect.

25. So far as claim for compassionate appointment of alleged adopted son is concerned, suffice it to mention that firstly, this claim stood negated after dismissal of writ petition no.29715 of 2003 and secondly; there is no concept of adoption, recognised in Muslim Law. In absence of any recognition of principle of adoption in Muslim Law there would not have been any occasion to claim that there was any legal heir of the deceased Kallu by way of adopted son available for claiming compassionate appointment and hence request for this behalf was a nullity since its inception.

26. The petitioner has specifically pleaded and placed on record the documents to show her age. He has specifically stated that Smt. Sabira Begum had crossed the age of 60 years as per the medical certificate issued by Department of Radiology and Ultrasound, MLN Hospital, Allahabad on 9.8.2002. Obviously on the date of appointment in 2007, respondent no.5 must be around 65 years of age. The averments contained in para 22 of writ petition have not been denied in the counter affidavit sworn by Principal of College though he has mentioned that he is filing counter affidavit on behalf of respondent no.5. In para 12 of counter affidavit, he simply says that the contents of paras 21, 22 and 23 of the writ petition are not concerned to him. To the same effect is the reply given in the counter affidavit filed by the respondent no.4. The respondent no.5,having not filed any reply by not appearing, has left these pleadings of petitioner uncontrovered.

27. The respondents no.1 and 2 in a very strange and interesting manner have replied para 22 of writ petition in para 13 of the counter affidavit by asserting that department has no document relating to the age of respondent no.5 but for compassionate appointment no limit of maximum age has been prescribed.

28. This Court finds it interesting that copy of service book of respondent no.5 has been filed along with counter affidavit, sworn by Principal of the College, and on pages 16 and 17 thereof date of birth of respondent no.5 has been mentioned as 3.10.1952. The basis of date of birth is not disclosed anywhere. In the column of signature/thumb impression, respondent no.5 has put her thumb impression showing that she is not literate at all. Her date of appointment has been mentioned as 31.7.2007.

29. The averments made in para 22 of writ petition in respect to the age of respondent no.5 as such have not been contradicted or disputed by any of the respondents. However, from the copy of service book filed along with the counter affidavit of Principal of the College, it has been shown that her age was about 55 years on the date of her appointment since her date of birth mentioned is 3.10.1952. It thus has to be examined whether in respect to the age, there is any restriction for appointment and whether appointment of petitioner made in 2005 could have vitiated in law for the so called appointment of respondents no. 4 and 5, which admittedly are subsequent to the date of appointment of the petitioner.

30. Now, I would consider validity of appointment of respondent no.5 in the context of her age.

31. The case set up by official respondents, there is no maximum age prescribed for compassionate appointment hence it can be made at any point of time, at any age.

32. The submission is not only misleading but thoroughly misconceived. Even a thoroughly erratic person cannot argue that if no maximum age is prescribed, a person can be appointed at any age, for the first time, in a service, governed by statutory rules where age of superannuation is prescribed. Here the age of superannuation of Class IV employee in Secondary Schools/Colleges is 60 years. Therefore by no stretch of imagination, a person, who has completed 60 years can be appointed for the first time as direct recruit. It is now settled that appointment on compassionate basis is a direct recruitment and not promotion or transfer etc. Therefore, even if there is no maximum age prescribed, by implication of statutory provisions prescribing age of superannuation, the restraint is there. No appointment can be permissible after the age of 60 years on a Class IV post which is presently the age of superannuation in Secondary Schools/College governed by Intermediate Education Act, 1921 and the Regulations framed thereunder. Another aspect is that an appointment can be made on compassionate basis only when incumbent is fit and suitable for the post in question. This also has to be examined.

33. Secondly a compassionate appointment is to mitigate immediate financial hardship suffered by deceased employee and not to serve as source of recruitment. It is not a right of a person to claim, as a matter of course, as and when he or she likes. The deceased employee Kallu, husband of respondent no.5, admittedly died on 13.12.2001. The respondent No.5 did not find any hardship or otherwise reason to claim compassionate appointment immediately thereafter for himself. Instead she tried to get a stranger accommodated in the garb of compassionate appointment by requesting the authorities to give him (Ali Ahmad i.e. Ali Hasan) compassionate appointment but failed in her attempt after dismissal of her writ petition No.29715 of 2003 on 18.3.2004. Thereafter, in 2004 and 2005 also she did not make any application for compassionate appointment as there is nothing on record to show that any such application was filed by her. It is only for the first time in 2006, when the petitioner had already been appointed as a Class IV employee on 15.10.2005, she claimed that she is entitled for compassionate appointment amd came to this Court in Writ Petition No.11251 of 2006 without disclosing the factum of her earlier writ petition and got an order for deciding her representation whereupon, in a clandestine manner, the authorities of Education Department and that of the College came to her rescue and appointed her though there was no vacancy at that time at all. All this show the way in which provision relating to compassionate appointment has been misused by respondent authorities.

34. In Managing Director, MMTC Ltd., New Delhi and Anr. Vs. Pramoda Dei Alias Nayak 1997 (11) SCC 390 the Court said:

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

35. In S. Mohan Vs. Government of Tamil Nadu and Anr. 1999 (I) LLJ 539 the Supreme Court said:

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

36. In Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors. AIR 1998 SC 2230 the Court said:

"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."

37. In Sanjay Kumar Vs. The State of Bihar & Ors. AIR 2000 SC 2782 it was held:

"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 had left the family in penury and without any means of livelihood"

38. In Punjab Nation Bank & Ors. Vs. Ashwini Kumar Taneja AIR 2004 SC 4155, the court said:

"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."

39. An appointment on compassionate basis claimed after a long time has seriously been deprecated by Apex Court in Union of India Vs. Bhagwan 1995 (6) SCC 436, Haryana State Electricity Board Vs. Naresh Tanwar, (1996) 8 SCC 23. In the later case the Court said:

"compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. ..... the very object of appointment of dependent of deceased-employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years."

40. In State of U.P. & Ors. Vs. Paras Nath AIR 1998 SC 2612, the Court said:

"The purpose of providing employment to a dependent of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to 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."

41. In Hariyana State Electricity Board Vs. Krishna Devi JT 2002 (3) SC 485 = 2002 (10) SCC 246 the Court said:

"As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we are of the opinion that it was not to meet the immediate financial need of the family ...."

42. In National Hydroelectric Power Corporation & Anr. Vs. Nanak Chand & Anr. AIR 2005 SC 106, the Court said:

"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 crises."

43. In State of Jammu & Kashmir Vs. Sajad Ahmed AIR 2006 SC 2743 the Court said:

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

44. Following several earlier authorities, in M/s Eastern Coalfields Ltd. Vs. Anil Badyakar and others, (2009) 13 SCC 122 = JT 2009 (6) SC 624 the Court said:

"The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over."

45. In Santosh Kumar Dubey Vs. State of U.P. & Ors. 2009 (6) SCC 481 the Apex Court had the occasion to consider Rule 5 of U.P. Recruitment of Dependents of Government Servants Dying in harness Rules, 1974 (hereinafter referred to as "1974 Rules") and said:

"The very concept of giving a compassionate appointment is to tide over the financial difficulties that is faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in Government service."

46. The Court considered that father of appellant Santosh Kumar Dubey (supra) became untraceable in 1981 and for about 18 years the family could survive and successfully faced and over came the financial difficulties. In these circumstances it further held:

"That being the position, in our considered opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions."

47. In I.G. (Karmik) and Ors. v. Prahalad Mani Tripathi 2007 (6) SCC 162 the Court said:

"Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion."

48. The importance of penury and indigence of the family of the deceased employee and need to provide immediate assistance for compassionate appointment has been considered by the Apex Court in Union of India (UOI) & Anr. Vs. B. Kishore 2011(4) SCALE 308. This is relevant to make the provisions for compassionate appointment valid and constitutional else the same would be violative of Articles 14 and 16 of the Constitution of India. The Court said:

"If the element of indigence and the need to provide immediate assistance for relief from financial deprivation is taken out from the scheme of compassionate appointments, it would turn out to be reservation in favour of the dependents of an employee who died while in service which would be directly in conflict with the ideal of equality guaranteed under Articles 14 and 16 of the Constitution."

49. It is thus clear that rule of compassionate appointment has an object to give relief against destitution. It is not a provision to provide alternate employment or an appointment commensurate with the post held by the deceased employee. It is not by way of giving similarly placed life to the dependents of the deceased. While considering the provision pertaining to relaxation under 1974 Rules, the very object of compassionate appointment cannot be ignored. This is what has been reiterated by a Division Bench of this Court in Smt. Madhulika Pathak Vs. State of U.P. & ors. 2011 (3) ADJ 91.

50. In Local Administration Department and Anr. v. M. Selvanayagam @ Kumaravelu JT 2011 (4) SC 30, Apex Court considered almost a similar case arising out of a judgment of the Madras High Court. One Meenakshisundaram, a Watchman in Karaikal Municipality died on 22nd November, 1988 leaving behind a widow and two sons, one of whom was eleven years old at that time. The widow was thirty-nine years of age but immediately did not make any application for compassionate appointment. On 29th July, 1993, after about four and a half years and odd, she made an application for compassionate appointment of M. Selvanayagam @ Kumaravelu since he had passed S.S.L.C. Examination in April, 1993. However, the appointment could not have been granted since M. Selvanayagam @ Kumaravelu was minor at that time also. Another application thereafter was given after 7 years and 6 months from the date of death of Meenakshisundaram. Having received no reply, a writ petition was filed which was disposed of directing the Municipality to pass an order on the application for compassionate appointment. The claim for compassionate appointment was ultimately rejected by Municipality vide order dated 19th April, 2000. The writ petition against the said order was dismissed by the learned Single Judge but in intra-court appeal, it was allowed vide judgment and order dated 30th April, 2004 and the Municipality was directed to provide compassionate appointment. It is this order, which was assailed before the Apex Court. The Municipality had declined to give compassionate appointment observing that wife of the deceased employee did not make any request immediately after the death for compassionate appointment which shows that she was not facing any financial crisis in the family at that time. This reasoning was negatived by the Division Bench of the High Court but the Apex Court did not approve the view taken by High Court and said:

"....there is a far more basic flaw in the view taken by the Division Bench in that it is completely divorced from the object and purpose of the scheme of compassionate appointments. It has been said a number of times earlier but it needs to be recalled here that under the scheme of compassionate appointment, in case of an employee dying in harness one of his eligible dependents is given a job with the sole objective to provide immediate succor to the family which may suddenly find itself in dire straits as a result of the death of the bread winner. An appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependents and the financial deprivation caused to the dependents as a result of his death, simply because the claimant happened to be one of the dependents of the deceased employee would be directly in conflict with Articles 14 & 16 of the Constitution and hence, quite bad and illegal. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind.

8. Ideally, the appointment on compassionate basis should be made without any loss of time but having regard to the delays in the administrative process and several other relevant factors such as the number of already pending claims under the scheme and availability of vacancies etc. normally the appointment may come after several months or even after two to three years. It is not our intent, nor it is possible to lay down a rigid time limit within which appointment on compassionate grounds must be made but what needs to be emphasized is that such an appointment must have some bearing on the object of the scheme.

9. In this case the Respondent was only 11 years old at the time of the death of his father. The first application for his appointment was made on July 2, 1993, even while he was a minor. Another application was made on his behalf on attaining majority after 7 years and 6 months of his father's death. In such a case, the appointment cannot be said to sub-serve the basic object and purpose of the scheme. It would rather appear that on attaining majority he staked his claim on the basis that his father was an employee of the Municipality and he had died while in service. In the facts of the case, the municipal authorities were clearly right in holding that with whatever difficulty, the family of Meenakshisundaram had been able to tide over the first impact of his death. That being the position, the case of the Respondent did not come under the scheme of compassionate appointments."

51. In the present case, respondents No.1 to 3 claimed to have appointed respondent No.5 by letter of appointment dated 30/31.7.2007, as is evident from the copy of her service book, without answering the question whether on that date she was 55 years of age or 60 years. Considering specific and clear pleadings of the petitioner about age of respondent no.5 that she was about 65 years of age in 2007 and absence of any rebuttal/denial on the part of respondent no.5 as also for lack of any specific reply by respondents, I am inclined to uphold the above submission on the basis of uncontroverted pleadings of the petitioner. The appointment of respondent no.5 at the age of 65 on a Class IV post is ex faice illegal and impermissible considering the fact that the age of superannuation of a Class IV employee of a Secondary School / College is 60 years and therefore by no stretch of imagination, a person having crossed 60 years can be appointed on a Class IV post.

52. Moreover, suffice it to mention that she was not entitled for compassionate appointment on that date not only having not approached for such appointment within a reasonable time but also for the reason that there was no vacancy in Class IV post. The respondents have completely failed to consider that in vacancy caused by the death of Kallu, in absence of any claim otherwise by his legal heir, it was already filled in by appointment of petitioner vide appointment letter dated 15.10.2005 leaving no such vacancy. In the second vacancy since respondent no.4 was already appointed therefore, respondent no.5 could not have been appointed at all.

53. Now coming to the validity of appointment of respondent no.4. A copy of service book of respondent no.4 filed along with counter affidavit sworn by the Principal of the College. His date of birth has been shown as 10.7.1986. His educational qualification High School passed in 2001, Intermediate in 2003 and B.A. in 2006 and his date of appointment has been mentioned as 31.7.2007. This Court finds that he was admittedly minor on the date when his father died in 1999. He claimed to have filed an application for compassionate appointment on 02.5.2004. On that date also he was minor. An application filed by a minor cannot be treated to be a valid application for processing the case for compassionate appointment. There is nothing on record to show that respondent no.4 claimed compassionate appointment after attaining the age of majority. The minimum age prescribed for appointment on a class IV Post is 18. Admittedly, he attained the said age of 18 years on 10.7.2004 but on that date and thereafter at least nothing has been placed on record to show that he submitted any application whatsoever requesting for compassionate appointment. He was admittedly at that time undergoing education in intermediate or graduation, as the case may be. He was not available for appointment on Class IV post. Even the so called application which was filed by him on 2.5.2004 was for appointment on Class III post. In absence of any valid application in law seeking appointment on a class IV post in the College, I find no justification or validity in the act of respondents in appointing him in 2007 but even before appointing him by permitting him to work in the College. All this show sheer undue and illegal favour by respondents No.1 to 3 to respondent no.4. In any case, respondent No.4 having not filed any application for compassionate appointment after attaining age of majority, could not have been appointed by acting upon so called application submitted by a minor.

54. Even otherwise, this Court finds that, in 2005, there was no such fact, which is said to have been concealed by petitioner so as to render his appointment invalid, as has been held by DIOS. It is evident that DIOS has not at all applied his mind to all the facts in a rational and valid manner but has proceeded with a predetermined objective and notion.

55. In 2005, when Principal sought approval from DIOS for appointment on Class IV against vacancy caused due to death of Kallu, a Class IV employee, there was no claim of compassionate appointment pending either in the College or before DIOS in respect to the College in question and hence it cannot be said that there was any concealment of fact by the Principal or that there was any fault on the part of DIOS in granting permission to make direct recruitment or according approval for selection and appointment of the petitioner on Class IV post.

56. Moreover, vacancy was found to be reserved for scheduled caste candidate. None of respondents No.4 and 5 belong to that category. The DIOS, in this case, appears to have proceeded in a very reckless, unmindful manner and it is his inaction or mischievous action which has caused spate of litigation between parties. The payment of salary made to respondents No.4 and 5 was wholly illegal for which responsibility primarily lie upon the respondents No.2 and 3.

57. In the result, the writ petition is allowed. The impugned orders dated 14.2.2006 (Annexure 2 to the writ petition) 30.7.2007 (Annexure 3 to the writ petition) and 25.7.2008 (Annexure 1 to the writ petition) all passed by District Inspector of Schools, Allahabad are hereby quashed. The petitioner shall be deemed to have been appointed on the Class IV post validly with all consequential benefits in view of his appointment letter dated 15.10.2005 issued by respondent no.3 after DIOS's approval dated 10.10.2005.

58. Since appointment of respondents No.4 and 5 are wholly illegal and have been quashed hereinabove, the amount of salary paid to them also wholly unauthorized and illegal. However, since they have been allowed to work by DIOS as well as the Principal of the College, the responsibility enabling illegal and unauthorized appointment to them lie upon respondents No.2 and 3. In these circumstances, in my view, recovery of amount paid to respondent No.4 and 5 towards salary must be directed from respondents No.2 and 3 in equal proportion.

59. Accordingly, I direct that respondent No.1 shall proceed to recover the amount of salary paid illegally to respondents no.4 and 5, in equal proportion, from respondents No.2 and 3 i.e. respective officials held the office at relevant time when alleged illegal appointment of respondents No.4 and 5 were made, after making such enquiry as provided in law. Such enquiry shall be completed and recovery shall be effected within a period of six months from the date of production of a certified copy of this order before respondent no.1.

60. For the purpose of compliance of above direction this matter shall be listed before this Court in the second week of May, 2013 under the title "Compliance Report".

61. The petitioner shall also be entitled to cost, which I quantify to Rs.25,000/-, which shall be equally apportioned among all the respondents.

Order Date:-08.11.2012

KA