Prshant Kumar vs State Of U.P. And Others
2013 Latest Caselaw 6449 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Case :- WRIT - A No. - 38171 of 2005
 
Petitioner :- Prshant Kumar
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Sunil Kumar Srivastava,Ashok Khare
 
Counsel for Respondent :- C.S.C.,A.C.Mishra
 

 
Hon'ble Vipin Sinha,J.

Heard Sri Siddharth Khare learned counsel for the petitioner and learned standing counsel for the respondents.

The present writ petition has been filed by the petitioner namely Prashant Kumar son of Late Surendra Pal Tyagi seeking compassionate appointment.

The brief facts of the case are that Sri Surendra Pal Tyagi, the father of the petitioner was, at the relevant time, employed as Constable in P.A.C. On 26.07.1994. Sri Surendra Pal Tyagi in an accident died on account of a bullet injury, which subsequently in an inquiry was found to be an accidental firing case; Sri Surendra Pal Tyagi, deceased had left behind his family consisting of his widow Smt. Nirdosh Tyagi and four children; at the time of death of Sri Surendra Pal Tyagi, the petitioner was a minor. His date of birth being 12.04.1985 and it was only in the year 2003 that the petitioner moved an application seeking compassionate appointment; however, the petitioner's request for compassionate appointment was turned down vide communication dated 12.03.2004 on the ground that application for compassionate appointment was filed after a period of almost five years from the date of death of father of the petitioner; aggrieved against the order dated 12.03.2004 passed by the Commandant VIth Battalion, P.A.C. Meerut and also the order dated 10.03.2004 issued by the U.P. Police Headquarter, Allahabad petitioner had earlier filed a writ petition before this Court being Civil Misc. Writ Petition No. 45164 of 2004 (Prashant Kumar Vs. State of U.P. And Others); the said writ petition was disposed of finally on 28.10.2004 with a direction that:

"Petitioner will make a detailed representation to the respondent no. 2 within two weeks from today, which will be decided by respondent no. 2 within two months from the date of production of certified copy of this order before him."

In compliance of the aforesaid direction, the representation of the petitioner has been decided by the respondent no. 2 vide his order dated 30.03.2005, which order has been assailed in the present writ petition.

The said order has been challenged by the petitioner mainly on the ground that:

"There does not exist any justification for rejecting the application of the petitioner for compassionate appointment merely on the ground of alleged delay when the 1974 Rules itself contains a specific stipulation where the delay beyond five years can be relaxed by the State Govt. without referring matter to the State Govt. for such relaxation. There exists no justification for the Deputy Inspector General of Police (Establishment) to reject the application of the petitioner on the ground of delay.

In passing the order the respondents have failed to take into account the extent of the family of the petitioner deceased. It also fails to take into account that there are three younger sisters to the petitioner.

The order impugned fails to take into account the income of the family of the petitioner in proceeding to reject the application as already detailed above the family of the petitioner has been facing on meagre recourse.

The order impugned further fails to take into account that all the children were minors, on attaining the majority of younger sisters of the petitioner have to be married. In fact there has been no consideration whatsoever of any relevant factors in passing the order impugned."

It has further been contended during the course of argument that as far as the question of relaxation of age is concerned, the matter should have been referred to the State Government. However, no such ground has been taken in the writ petition but in Paragraph No. 24 of the writ petition, it has been mentioned that it was incumbent upon the respondents to have referred the application of the petitioner for consideration by the State Government.

It may be appreciated that the earlier writ petition was disposed of by this Court with a specific direction that the petitioner shall make a representation to respondent no. 2 and the same shall be decided by the respondent no. 2, which direction of the Court has been duly complied with in the present case.

To the averments made in the writ petition, a counter affidavit has been filed in which a stand has been taken in Paragraph No. 5 that:

"5. The father of the petitioner Late Surendra Pal Tyagi was not on duty at the time of incident in which he was injured by the Bullet. In fact he was in the guard-room, where guards rest and he was injured because of mishandling of Government Revolver in which he died"

It has further been submitted in Paragraph Nos. 6, 7, 8 & 10 of the said counter affidavit that:

"6. It is also stated that an inquiry was held by the then Deputy Commander, Cantonment, Vijay Ghat, New Delhi and it was found in the enquiry that Late Surendra Pal Tyagi was not on duty at the time of his injury by the Bullet.

7. It is stated that the landed property coupled with the pension amount is sufficient for the family as the family survived for the last 9 years on the source of income available to it.

8. If the family of the petitioner was in penury his mother ought to have applied as she could have been accommodated on a Group-D Post. This inaction on her part is sufficient to prove that the income is sufficient for maintaining the family.

10. It is stated that the petitioner and the mother of the petitioner have applied for the employment of the petitioner after a lapse of more than 9 years which is not permissible under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 and the Government Order No. Six/12/1973-appointment-4, dated 21.12.1973."

In the counter affidavit in Paragraph No. 16 a categorical stand has been taken by the State that:

"As the case of the petitioner does not falls in the category to be referred to the State Government as per Government Order No. 609/CH-PU-10-2003-1200(2)-2001 dated 30.05.2001 and Government Order No. 899/CH-PU-10-2003-1200(2)-2001 dated 13.05.2003, thus the case was not referred to the State Government by the Police Head Quarters, Allahabad."

To the said counter affidavit, a rejoinder affidavit has also been filed.

It is apparent from the record of the case itself that Sri Surendra Pal Tyagi, the father of the petitioner has expired as far back as in the year 1994. Immediately on the death of the father, his widow and mother of the petitioner could have moved an application seeking commandant appointment but the same was not done.

It may be appreciated here that had the financial condition of the family been penurious, the mother would have certainly filed an application seeking compassionate appointment in the year 1994 itself but the same was not done and it was only in the year 2003, that the petitioner for the first time approached the respondents seeking compassionate appointment.

Thus, it is to be seen as to whether an application for compassionate appointment can be considered after a lapse of so many years. The very fact that apparently the family could survive at least till the year 2003 i.e. after almost a period of nine years makes it clear that the family was not in penury.

It has been the consistent view of the Apex Court that the claim for compassionate appointment could not to be considered at a belated stage. However, the legal position as laid out threadbare in the various decisions is being enumerated herein below.

The Court would like to refer to the judgement of Hon'ble Supreme Court rendered in the case of Life Insurance Corporation of India Vs. Asha Ramchhandra Ambekar; (1994) 2 SCC 718. The relevant extract of which is quoted herein below:

"8. Where the Corporation has acted bona fide and declined to appoint the second respondent, that exercise of power cannot be interfered with. Shortly put, the Corporation cannot be directed by means of a mandamus to do something which is per se illegal.

"10. Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. No doubt Shakespeare said in "Merchant of Venice" :

"The quality of mercy is not strain'd; It droppeth, as the gentle rain from heaven Upon the place beneath it is twice bless'd; It blesseth him that gives, and him that takes;"

These words will not apply to all situations. Yeilding to instinct will tend to ignore the cold logic of law. It should be remembered that "law is the embodiment of all Wisdom". Justice according to law is a principle as old as the hills. The courts are to administer law as they find it, however, inconvenient it may be.

11. At this juncture we may usefully refer to Martin Burn Ltd. v. Corporation of Calcutta'. At page 535 of the Report the following observations are found :

"A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. "A statute must of course be given effect to whether a Court likes the result or not."

The courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, it should never be done."

Reference may also be made to another judgement of Hon'ble Apex Court rendered in the case of Umesh Kumar Nagpal Vs. State of Haryana And Others;(1994) 4 SCC 138 wherein it has been provided that:

"Compassionate employment cannot be granted after a lapse of a 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. 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.

The Court would also like to refer to judgement of the Hon'ble Supreme Court rendered in the case of MGB Gramin Bank Vs. Chakrawarti Singh decided on 07.08.2013 in Civil Appeal No. 6348 of 2013. The Apex Court has observed as under:

"7. An ''ameliorating relief' should not be taken as opening an alternative mode of recruitment to public employment. Furthermore, an application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated.

8. The Courts and the Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments."

In the case of Jitendra Vs. Central Administrative Tribunal, Allahabad And Others; 2008 (1) ADJ 478 (DB), a Division Bench of this High Court has held as under:

"In Sanjay Kumar v. State of Bihar and others, JT 2000 (10) SC 156, the Apex Court reiterated that the compassionate appointment is provided only to enable the family of the deceased employee to tide over sudden crises resulting due to the death of sole bread-earner who had left the family in penury without any means of livelihood but it cannot be treated to be a reserved vacancy for the dependants of the deceased Government servant who died in harness.

In the case of Haryana State Electricity Board v. Krishna Devi, 2002 LLJ 773, the Apex Court while reiterating the objective of compassionate appointment as laid down in the earlier cases further observed that the application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated.

If the family has sufficient means to survive for years together and can take care of the minors, who have turned into major after undergoing educational qualification etc., that itself would be sufficient to show that now the family is not in financial crisis as it could have at the time of sudden demise of the deceased necessitating compassionate appointment at a late stage i.e. after several years.

In State of Manipur v. Mohd. Rajaodin, 2003 (7) SCC 511, the Apex Court reiterated that the purpose of giving compassionate appointment is only to mitigate hardship caused to the family of the deceased on account of his unexpected death in service, only to alleviate the distress of the family but at a belated stage, as these grounds are no more in existence, therefore, the employment cannot be claimed or provided."

In the case of M/s Eastern Coalfields Ltd. Vs. Anil Badyakar And Ors.; 2009 AIR SCW 4427, it has been held in Paragraph Nos. 7, 8, 9 & 14 as under:

"7. In the case of Jagdish Prasad vs. State of Bihar, (1996) 1 SCC 301, it was observed that :-

"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."

8. In MMTC Ltd. vs. Pramoda Dei, (1997) 11 SCC 390, it is observed by the 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."

9. In the case of S. Mohan vs. 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 employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."

14. In the case of Haryana State Electricity Board vs. Naresh Tanwar, (1996) 8 SCC 23, it was stated that :-

"It has been indicated in the decision of Umesh Kumar Nagpal that 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. In the other decision of this Court in Jagdish Prasad case, it has been also indicated that 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."

In the case of State of Jammu & Kashmir And Others Vs. Sajjad Ahmed Mir; AIR 2006 SC 2743, it has been held as under:

"Similar facts were involved and considering the same, the Apex Court held that when the deceased employee died in 1987 and his son approached the authorities in 1999, i.e. more than a decade, the same itself disentitles him to claim any benefit of compassionate appointment and observed that the view taken by the High Court in favour of the dependant of the deceased employee amounts to misplaced sympathy."

Reference may also be made to a recent judgement of Apex Court rendered in the case of The Chief Commissioner, Central Excise and Customs, Lucknow and Others Vs. Prabhat Singh in Civil Appeal No. 8635 of 2012 (Arising out of Special Leave Petition (Civil) No. 25985 of 2012), wherein it has been held in Paragraph Nos. 15 & 16 that:

"15. The very object of making provision for appointment on compassionate ground, is to provide succor to a family dependent on a government employee, who has unfortunately died in harness. On such death, the family suddenly finds itself in dire straits, on account of the absence of its sole bread winner. Delay in seeking such a claim, is an ante thesis, for the purpose for which compassionate appointment was conceived. Delay in raising such a claim, is contradictory to the object sought to be achieved. By now, sixteen years have passed by, and as such, there can be no surviving claim for compassionate appointment.

16.Courts and Tribunals should not fall prey to any sympathy syndrome, so as to issue directions for compassionate appointments, without reference to the prescribed norms. Courts are not supposed to carry Santa Claus's big bag on Christmas eve, to disburse the gift of compassionate appointment, to all those who seek a court's intervention. Courts and Tribunals must understand, that every such act of sympathy, compassion and discretion, wherein directions are issued for appointment on compassionate ground, could deprive a really needy family requiring financial support, and thereby, push into penury a truly indigent, destitute and impoverish family. Discretion is therefore ruled out. So are, misplaced sympathy and compassion."

In the present case, the petitioner's father having expired in the year 1994. It would be a travesty of justice to direct for consideration of the claim of the petitioner for compassionate appointment in the year 2013 i.e. after a lapse of more than 19 years and the very fact that the family could survive for such a long period makes it clear that 'there was no sudden financial crisis' in the family on account of death of Sri Surendra Pal Tyagi.

Thus in view of the aforesaid legal position as laid down by the Hon'ble Apex Court and in view of the principles indicated above would give a clear indication that compassionate appointment is not a vested right which can be exercised at any time in future. The employment cannot be claimed and offered after a long lapse of time and after the crisis is over.

In view of the aforesaid consistent legal position and precedence, this Court feels that the present case is not a fit case for interference in exercise of its equitable jurisdiction under Article 226 of the Constitution of India and finds no merit in the present case.

Accordingly, the writ petition is dismissed.

No order as to costs.

Order Date :- 11.10.2013

Sandeep