Surendra Kumar Saxena {State} vs State Of U.P. & Others
2015 Latest Caselaw 85 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

1
 
AFR
 
Court No. - 27
 
Case :- SERVICE SINGLE No. - 1740 of 1996
 
Petitioner :- Surendra Kumar Saxena {State}
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Kamlesh Kumar Shukla
 
Counsel for Respondent :- C.S.C.,R K Singh
 
Hon'ble Rakesh Srivastava,J.

1. Heard Sri Kamlesh Kumar Shukla, learned counsel for the

petitioner, learned Standing Counsel and perused the record.

2. The father of the petitioner was working as Sanitary Supervisor

in the Nagar Maha Palika, Lucknow. He died on 14.06.1975

while in service. At the time of his death the petitioner as well

as his two brothers were minor. The petitioner after passing his

intermediate examination in the year 1983 made a

representation to the Mukhya Nagar Adhikari, Nagar

Mahapalika, Lucknow on 20.02.1984 seeking appointment on

compassionate ground under the Dying in Harness Rules, 1975.

The mother of the petitioner also made a representation on

05.05.1985 stating the hardship and praying that the petitioner

be given compassionate appointment. It is alleged that

thereafter numerous representations were made by the petitioner

but the opposite parties did not pay any heed to the request of

the petitioner.

3. Aggrieved by the inaction of the opposite parties the petitioner

on 26.03.1996 filed present writ petition praying for a direction

to the opposite parties to consider the case of the petitioner and

appoint him on a suitable post as per his academic qualification

by relaxing the normal recruitment rules under the Dying in

Harness Rules and to provide other consequential benefits.

4. Heard Sri Kamlesh Kumar Shukla, learned counsel for the

petitioner. He has submitted that after the death of his father the

mother of the petitioner was granted family pension, which was

initially Rs. 50/- per month, and in the year 1996, it was about

Rs. 700/- per month, which is not sufficient to meet the need of

the family. It is further alleged that the elder brothers of the

petitioner are living separately and are not supporting the family

and it is the petitioner who is looking after his widowed mother,

one unmarried sister and another unemployed brother. Learned

counsel for the petitioner has placed strong reliance upon the

judgment and order dated 15.02.1993 passed by this Court in

Writ Petition No. 1441 (S/S) of 1993, Mohd. Umar Vs. State of

U.P. & Ors. The petitioner therein was only nine year's old

when his father died. The father of the petitioner therein died in

November, 1972 and the Dying-in-Harness Rules came into

force on 28th October, 1973. This Court held that the Dying in

Harness Rules were only meant to benefit the dependents of an

employee who died during the course of his employment. It was

held that such type of social legislation or rule should not only

be read in letters but should be read in spirit. The only object

and purpose of the Rule was to provide employment to the

dependent of an employee, who died in harness. This Court

directed the respondents to appoint the petitioner of that case.

5. Learned Standing Counsel on the other hand submits that

compassionate appointment is not a source of employment. He

submits that the application for compassionate appointment

having been moved nine years after the date of death of the

father of the petitioner is not maintainable and is liable to be

rejected.

6. Admittedly, in the present case, the petitioner was about 13

years of age when his father unfortunately passed away. The

petitioner allegedly made representations for compassionate

appointment on attaining the age of majority i.e. about 9 years

after the death of his father.

7. The purpose of providing employment to the dependent of a

government servant dying in harness in preference to anybody

else is 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.

8. It is settled by a catena of decisions of the Apex Court that the

request for compassionate appointment should be reasonable

and proximate to the time of the death of the bread earner of the

family. In the case reported in (2006) 5 SCC 766, State of J &

K & Ors. Vs. Sajad Ahmed Mir, the Apex Court has held in

para 11 as follows:

"11) We may also observe that when the Division Bench

of the High Court was considering the case of the

applicant holding that he had sought 'compassion', the

Bench ought to have considered the larger issue as well

and it is that such an appointment is an exception to the

general rule. 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."

9. In 2009(6) SCC 481, Santosh Kumar Dubey Vs. State of U.P.

and others, the Apex Court has held in para 11, 12 and 13 as

follows :-

"11) The very concept of giving a compassionate

appointment is to tide over the financial difficulties that

are 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.

12) 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 held 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.

13) In the present case, the father of the appellant became

untraceable in the year 1981 and for about 18 years, the

family could survive and successfully faced and

overcame the financial difficulties that they faced on

missing of the earning member. 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. The appeal, therefore, has no merit and is

dismissed."

10.Admittedly, when the father of the petitioner died, the

petitioner was a minor and was not eligible for appointment.

There cannot be a reservation of a vacancy till such time as the

petitioner became major after a number of years, unless there

are some specific provisions. The very basis of compassionate

appointment is to ensure that the family gets immediate relief.

11.None of the consideration for providing compassionate

appointment can operate when the application is made after a

long period of time i.e. 9 years after the death of father of the

petitioner. In the present case the father of the petitioner died on

14.06.1975 and for about 9 years the family could survive.

12.In the circumstances, no direction could be issued to the

opposite parties for giving compassionate appointment to the

petitioner. The writ petition has no merit and is accordingly,

dismissed.

13.No order as to costs.

Order Date :- 23.4.2015

Anupam-Pradeep/-