Prashant Kumar Jauhari vs Union Of India & 2 Ors.
2013 Latest Caselaw 6233 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33
 

 
Case :- WRIT - A No. - 54686 of 2013
 

 
Petitioner :- Prashant Kumar Jauhari
 
Respondent :- Union Of India & 2 Ors.
 
Counsel for Petitioner :- Anand Mohan Pandey
 
Counsel for Respondent :- A.S.G.I.
 

 
					********
 

 

 

 
Hon'ble Rajes Kumar,J.

Hon'ble Mahesh Chandra Tripathi,J.

Heard Sri Anand Mohan Pandey, learned counsel for the petitioner and Sri R.B. Singhal, Assistant Solicitor General, Union of India, assisted by Sri B.K. Singh.

By means of the present writ petition, the petitioner is challenging the order dated 21st March, 2013, passed by the Central Administrative Tribunal, Allahabad in O.A. No. 1650 of 2011.

The brief facts, giving rise to the present petition, are that the father of the petitioner was an employee of the Ordnance Factory Kanpur, who was working on the post of Wire Man. He died in harness on 23rd November, 2009. The wife of the deceased employee moved an application seeking compassionate appointment of the petitioner. On consideration of the claim, the petitioner has been issued an appointment letter, dated 11th December, 2010. In the meantime, before the petitioner could join the post, it has been detected that the the father of the petitioner has taken a loan from the State Bank of India for construction of the property and the deceased employee was having a property, but the said fact has not been disclosed in the application seeking compassionate appointment. The petitioner has been issued a notice to which the reply has been filed. On the consideration of the reply, the appointment letter, issued to the petitioner has been cancelled. Being aggrieved by the cancellation of the appointment letter, the petitioner filed Original Application No. 1650 of 2011 before the Central Administrative Tribunal, which has been rejected by the impugned order.

Learned counsel for the petitioner submitted that the petitioner did not have the knowledge about such loan taken by his father and the property owned by his father, therefore, he could not give the details of such property in the application and as such cancellation of the appointment letter is wholly unjustified.

We do not find substances in the argument of learned counsel for the petitioner.

It is wholly unbelievable that the father of the petitioner was having an immoveable property and the petitioner and his mother, the wife of the deceased, who moved the application for compassionate appointment of the petitioner, did not have the knowledge. The petitioner has concealed relevant material information while claiming compassionate appointment and obtained the appointment letter by misrepresentation. No case of financial crises had been made out inasmuch as the petitioner has a property left by his deceased-father, which the petitioner concealed and did not disclose while claiming the compassionate appointment. Thus, on these facts and circumstances, we do not see any reason to interfere in the matter under Article 226 of the Constitution of India.

The compassionate appointment is an exception to the general Rule of the recruitment, which cannot be claimed as a matter of right. It is being offered to the bereaved family to mitigate the immediate financial crisis, which arises as a result of death of the bread earner, that is, the deceased employee, taking into consideration the financial condition of the family.

The law relating to compassionate appointment has now been 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 in Director of Education (Secretary) v. Pushpendra Kumar, (1998) 5 SCC 192 has observed :

"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 the case of State Bank of India and another v. Raj Kumar, reported in (2010) 11 SCC 661, the Apex Court, in paragraph 8, has held as follows:

"8. 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 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."

The Apex Court in the case of MGB Gramin Ban v. Chakrawarti Singh, reported in JT 2013 (12) AC 81, in paragraph 5, held as follows:

"5. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its bread-earner. Mere death of a Government employee in harness does not entitle the family to claim compassionate appointment. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing 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. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right."

The Apex Court, in the aforesaid judgment, has reiterated the principal laid down by the Apex Court, in the case of State Bank of India and another v. Raj Kumar (supra) wherein the Apex Court has held that the case of the claimant for compassionate appointment can be considered only on the existing scheme.

In view of the law laid down by the Apex Court, we do not find any error in the impugned order, which requires interference by this Court. In the result, the writ petition,being devoid of merits, fails and is dismissed.

Order Date :- 3.10.2013

bgs/