Ram Vishal vs State Of U.P.& Others
2012 Latest Caselaw 4807 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 5
 

 
Case :- WRIT - A No. - 17382 of 2000
 

 
Petitioner :- Ram Vishal
 
Respondent :- State Of U.P.& Others
 
Petitioner Counsel :- A.K. Srivastava,K.K. Mishra,R.K. Shukla
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Rajes Kumar,J.

Rejoinder affidavit filed today, the same may be placed on record.

Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

The petitioner's father was the Constable. He died in harness on 12.12.1991. It is the case of the petitioner that he moved an application for compassionate appointment on 6.3.1992. However, the respondent has not accepted the claim of the petitioner that the application was moved on 6.3.1992. The petitioner is not able to substantiate his plea that the application was moved on 6.3.1992. However, the respondent has accepted that the application was moved on 23.1.1998. The said application was processed and sent to the Headquarter. Inasmuch as it was filed beyond five years, the Headquarter referred the matter to the State Government for the relaxation of the period under the proviso to Rule 5 of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to "Dying in Harness Rules, 1974). The State Government declined to relax the period and accordingly the application of the petitioner for compassionate appointment has been rejected.

It appears that when the application of the petitioner for compassionate appointment has not been considered, the petitioner filed Writ Petition No. 36916 of 1999 which has been disposed of vide order dated 31.8.1999 with the direction to the respondent to dispose of the representation of the petitioner by a speaking order. In pursuance thereof, the impugned order has been passed rejecting the representation of the petitioner. The representation has been rejected on the ground that the application was moved beyond five years, the State Government has declined to relax the period for moving of the application.

Learned counsel for the petitioner submitted that the State Government has declined to relax the period without giving any opportunity. He further submitted that the power to relax the time limit should be exercised reasonably in accordance with the provisions. Reliance is placed on the Division Bench decision of this Court in the case of Subhash Yadav Vs. State of U.P. and others, reported in 2011 )1) ESC 136 Allahabad.

I do not find substance in the argument of learned counsel for the petitioner.

Rule 5 of the Dying in Harness Rules, 1974 reads as follows:

"5. Recruitment of a member of the family of the deceased.-(1) In case of 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.

(3) Each appointment under sub-rule (1) should be under the condition that the person appointed under sub-rule (1) shall upkeep those other family members of the deceased Government servant who are incapable for their own maintenance and were dependent of the above said deceased Government servant immediately before his death."

According to the petitioner, his date of birth is 10.11.1974 and he became major on 10.11.1992. In 1992, he was fully eligible to apply for compassionate appointment but the petitioner applied for compassionate appointment on 23.1.1998 for no valid reason. This also shows that on the death of the deceased, there was no financial crises. Normal period for moving the application is five years. However, the proviso to Rule 5 of the Dying in Harness Rules, 1974 gives power to the State Government to relax the requirement in case if the State Government is satisfied that the time limit fixed for making the application for employment caused undue hardship in any particular case. Under the proviso, it is the satisfaction of the State Government to relax or not to relax the period having regard to the hardship. On the facts and circumstances, in the present case, the State Government was not satisfied to relax the time limit. I do not find any error in the order. There was no valid reason for not moving the application within five years. The petitioner was not able to make out a case of hardship.

The compassionate appointment is an exception to the general rule of appointment. It cannot be claimed as a matter of right. The compassionate appointment is given to mitigate the immediate financial crisis which occurred on account of death of the employee. The petitioner was not able to establish that when the father of the petitioner died, there was a financial crisis. If there would have been immediate financial crisis, the petitioner would have moved an application for compassionate appointment immediately after the death. Moreover, after a lapse of 21 years the claim of the petitioner cannot be considered. The Division Bench decision cited by the learned counsel for the petitioner is not applicable to the present case. In the said case when the employee died the claimant was minor and could not move the application and when the application was moved on attaining the age of majority, five years period was expired. Such fact does not exist in the present case.

The matter relating to compassionate appointment has now been settled by the Apex Court. Some of the judgments 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 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 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 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 de hors 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 foregoing discussion and the law laid down by the Apex Court, I do not find any merit in the petition. The writ petition fails and is dismissed.

Order Date :- 5.10.2012

OP