State Of U.P. And 2 Others vs Raj Surya Pratap Singh Chauhan
2015 Latest Caselaw 453 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
	SPECIAL APPEAL No. 1069 OF  2014
 
State of U.P and two others.				....Appellants
 
Vs. 
 
Raj Surya Pratap Singh Chauhan.			....Respondent

Hon'ble Rajes Kumar, J

Hon'ble Shamsher Bahadur Singh, J

(Delivered by Hon'ble Rajes Kumar, J.)

Heard Sri Piyush Shukla, learned Standing Counsel and Sri O.P.Singh, learned counsel appearing on behalf of the respondent.

This is an appeal against the order dated 26.7.2013, passed by learned Single Judge, in Writ Petition No. 32832 of 2012; Raj Surya Pratap Singh Vs. State of U.P and others, whereby the writ petition has been allowed.

The dispute relates to compassionate appointment in police department. The father of respondent, who was constable in the police department died on 31.7.2001 in harness. The respondent being son, moved an application on 20.2.2002 claiming compassionate appointment on the post of Sub-Inspector (M). This fact is stated in paragraph 6 of the writ petition. The application was moved within time. On 31.7.2008, the respondent was asked to appear on 9.8.2008 for SI( M) test. He appeared but has been declared failed. On 11.8.2008, the respondent moved another application, claiming compassionate appointment on the post of Constable. Thereafter, he again moved an application on 09.09.2008 claiming compassionate appointment on the post of Sub Inspector (Civil Police). This application was beyond five years. On 19.8.2009, Senior Superintendent of Police, Etawah referred the matter to the Police Headquarters. Thereafter, by letter dated 21.10.2009, the respondent was informed that he was not sent for physical examination since under the U.P. Recruitment of Dependent of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the Rules), the claim should have been made within five years of death of his father but the application was filed after expiry of five years. By challenging the said communication letter, the respondent has filed Writ Petition No. 63263 of 2009. Before the writ-court, it was contended on behalf of the respondent that it was for the State Government under Rule 5 of the Rules to examine the question of relaxation and department on its own could not have taken a decision to reject the application.

On the submission of learned counsel for the respondent, this Court has disposed of said writ petition vide order dated 5.1.2011 with direction to the department to refer the matter to the State Government, which shall examine it in accordance with the Rules and take a decision within stipulated period. In pursuance to the order of this Court dated 5.1.2011, the State Government has taken a decision on 23.9.2011, which is as follows:

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In pursuance to the said decision of the State Government, vide letter dated 21.10.2011, the respondent has been offered compassionate appointment on the post of constable. The respondent challenged the order of State Government dated 23.9.2011, by means of Writ Petition No. 1129 of 2012, which has been disposed of by this Court vide order dated 10.1.2012 which is as follows:

"In the present case on 23.9.2011, a communication had been given to the petitioner informing him that his claim for compassionate appointment would be considered keeping in view the respective date when he moved application and the respective post for which he was entitled to be appointed on the said relevant date.

Learned counsel for the petitioner has contended that the view taken by the authority is incorrect view, inasmuch as, the claim for compassionate appointment has to be seen on the date when matter for appointment on compassionate appointment is going to be considered, and the rider which has been imposed in the communication dated 23.9.2011 is unjustified. Petitioner has placed reliance on a dictum of this Court in the case of Vaibhav Singh Vs. State of U.P and others, writ petition No. 52 of 2003 decided on 23.12.2005, and submits that following the said order, his claim is liable to be considered.

Consequently, in the facts of the case, respondent authority is directed to consider the request of the petitioner keeping in view the dictum of this court in the case of Vaibhav Singh Vs. State of U.P and others, writ petition No. 52 of 2003 decided on 23.12.2005, within next two months from the date of receipt of a certified copy of this order.

Writ petition stands disposed of accordingly"

It appears that although on the date of filing of writ petition, the fact that vide letter dated 21.10.2011, the respondent has been offered the post of Constable on compassionate ground, has not been mentioned in the writ petition and as a result of which, said fact has not been considered by the Court in its order dated 10.1.2012. In pursuance of the direction given by this Court, the State Government passed an order on 23.4.2012. In the said order, the case of Vaibhav Singh has been distinguished on the facts. The following decision has been taken by the State Government:

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The aforesaid order of the State Government has been challenged by the respondent by filing writ petition No. 32832 of 2012, which has been allowed by the impugned order dated 26.7.2013 with a cost of Rs. 10,000/. The order of the learned Single Judge is reproduced herein below:

"By means of impugned order dated 23.4.2012, Principal Secretary, U.P. Government has rejected petitioner's application seeking compassionate appointment requesting to consider his case for the post of Sub-Inspector considering his qualification, eligibility etc., on the ground that on the date when petitioner submitted his application, he was not eligible for appointment on the post of Sub-Inspector though it is admitted by learned Standing Counsel that the date when impugned order was passed petitioner was eligible possessing requisite qualification and other eligibility, i.e. with regard to age for consideration for the post of Sub-Inspector. It is also not disputed that in the similar circumstances, the claim of some other candidates have also been considered and decided in their favour.

2. Moreover, this Court allowed petitioner's earlier Writ Petition No. 1129 of 2012 holding that the opinion formed by the authority concerned that eligibility consideration have to be seen on the date of application and if on that date, petitioner was ineligible for the post of Sub-Inspector, he cannot be considered for same, is unsustainable. Yet for the same reason the impugned order has been passed again, though this issue has already been decided by this Court in favour of petitioner and against the respondents.

3. The insistence on the part of respondents in adhering to the view which has been negatived by this Court is not only despicable but also contemptuous for which this Court would have been justified in taking appropriate proceeding against the concerned Officer but because of persuasion of learned Standing Counsel that the matter would be taken again very expeditiously and would be considered strictly in accordance with law, I have taken a lenient view in the matter by not proceeding for the same.

4. Writ petition is, accordingly, allowed. Impugned order dated 23.4.2012 (Annexure 1 to writ petition) is hereby quashed. Respondent no. 1 is directed to re-consider the claim of petitioner for compassionate appointment according to his eligibility and qualification etc. not on the date of application but on the date of consideration and pass appropriate order expeditiously, and, in any case, within two months from the date of production of certified copy of this order.

5. Since this litigation has been forced upon petitioner by respondent no. 1 in a very illegal and contemptuous manner, in my view petitioner is entitled to cost, which I quantify to Rs. 10,000/- (Rupees ten thousand)".

Learned counsel for the appellants submitted that the first application for compassionate appointment was filed by the respondent on 20.2.2002, claiming compassionate appointment on the post of SI (M); said application was within time and was entertained and the respondent was asked to appear in SI(M) test, but he failed. Thereafter, he moved an application on 11.08.2008 claiming compassionate appointment on the post of Constable. The third application was moved on 9.9.2008 claiming compassionate appointment on the post of Sub-Inspector (Civil Police) and said application was beyond five year. Under Rule 5 of the Rules, it is the State Government, who has power to relax period of limitation. When the matter has been referred to the State Government, the State Government has not granted any relaxation, but vide letter dated 23.9.2011, the State Government on a sympathetic consideration has taken a decision to offer the post, for which the respondent was eligible on the date of moving of first application i.e. on 20.2.2002, which was within time. He submitted that although the claim of respondent for compassionate appointment could be rejected straight way after declining to relax the period of limitation but on a sympathetic consideration, the respondent has been offered the post of Constable, for which he was eligible on the date of first application dated 20.2.2002, which was within time. He further submitted that even offer of the post of Constable, for which the respondent was eligible on the date of moving his first application was also should not have been given, inasmuch as said application was moved claiming the appointment on the post of SI( M) and the respondent has already been declared failed in said SI (M) test. In this way, the application has already been culminated on 31.7.2008. He further submitted that the application dated 9.9.2008 being beyond time has not been entertained by the State Government and therefore, there was no question for any consideration whether the qualification as on date of its consideration or on the date of application, should be considered. He submitted that the learned Single Judge has mis-directed himself and has wrongly passed the impugned order, which is patently illegal. He submitted that the eligibility is to be considered on the date of consideration of application and if on the date of consideration of application, the candidate is found to be eligible, that fulfils the requirements. But in the present case, this is not the situation. The respondent claimed consideration of his application dated 9.9.2008 for the post of Sub Inspector ( Civil Police), which was beyond time and therefore, unless the State Government relaxes the limitation, the claim of respondent could not be considered. He further submitted that the Government Order No.208/(1)/6-U-Pu-11200(326)/10 dated 8.6.2011, provides that the post on compassionate appointment is to be decided by the appointing authority and it is not the right of dependent of the deceased employee to claim appointment on any particular post and the appointing authority is not bound to accept the claim of claimant on a particular post.

He further submitted that in none of the applications respondent has given the details of the family members, income of the family and has not pleaded the financial crises, which is mandatory under Rule 6 of the Rules, 1974. He submitted that the application claiming compassionate appointment on the post of Sub Inspector (Civil Police) had been moved after five years. As per second Proviso to Rule 5 burden lies upon the appellant to explain the delay by adducing evidence but in the present case, no reasonable explanation has been given. The State Government has rightly not relaxed the period of limitation. He submitted that no case of financial crises has been made out. The respondent is continuously involved in litigation and expending huge amount, which shows that he is not in financial crises. On the facts and circumstances, after a lapse of 14 years, he is not entitled for any compassionate appointment.

Reliance has been placed by the appellant on several decisions of the Apex Court and the Full Bench of this Court in Special Appeal No. 356 of 2012 Shiv Kumar Dubey Vs. State of U.P and others along with other connected special appeals decided on 6.2.2014, reported in 2014 (2) ADJ, 312.

Learned counsel for the respondent submitted that the respondent has moved the first application claiming compassionate appointment within five years and thereafter, when he passed the Graduation, which is minimum qualification required for the post of Sub Inspector and became eligible, he moved another application seeking compassionate appointment on the post of Sub Inspector. He further submitted that on the date when the application came up for consideration, he attained the age of 21 years and therefore, fully eligible for the consideration on the post of Sub Inspector. He submitted that the date on which his application was being considered is the relevant date for the consideration of his eligibility and not the date of moving the application. Reliance is placed on the decision of the Apex Court in the case of State Bank of India Vs. Raj Kumar in Civil Appeal No.1641 of 2011 and in Vaibhav Singh Vs. State of U.P. And others, in Writ Petition No.52 of 2003, decided on 23.1.2005.

On these submissions, he submitted that the respondent is entitled for the compassionate appointment on the post of Sub Inspector (Civil Police). He further submitted that the similarly situated persons have been granted compassionate appointment.

We have considered the rival submissions and perused the record.

The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 ("the Rules") came into force on 21 December 1973. Rule 3 provides that the Rules shall apply to the recruitment of dependents of deceased government servants to public services and posts in connection with the affairs of the State of Uttar Pradesh, except those which are within the purview of the Uttar Pradesh Public Service Commission. The expression 'government servant' is defined in Rule 2(a) to mean a government servant employed in connection with the affairs of the State, who (i) was permanent in such employment; or (ii) though temporary had been regularly appointed in such employment; and (iii) though not regularly appointed, had put in three years' continuous service in a regular vacancy in such employment. The expression 'regularly appointed' is defined by the Explanation to Rule 2(a) to mean "appointed in accordance with the procedure laid down for recruitment to the post or service, as the case may be". The expression 'deceased government servant' is defined by Clause (b) of Rule 2 to mean a government servant who dies while in service. Rule 2(c) of the Rules defines 'family'. Rule 5 of the Rules provides as follows:

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

Provided further that for the purpose of the aforesaid proviso, the person concerned shall explain the reasons and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the application for employment along with the necessary documents/proof in support of such delay and the Government shall, after taking into consideration all the facts leading to such delay take the appropriate decision.

(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) Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves.

(4) Where the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his services may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time."

Rule 6 of the Rules provides for the contents of an application for employment in the following terms:

"6. Contents of application for employment. -An application for appointment under these rules shall be addressed to the appointing authority in respect of the post for which appointment is sought but it shall be sent to the Head of Office where the deceased Government servant was serving prior to his death. The application shall, inter alia, contain the following information:

(a) the date of the death of the deceased Government servant; the department in which he was working and the post which he was holding prior to his death;

(b) names, age and other details pertaining to all the members of the family of the deceased, particularly about their marriage, employment and income;

(c) details of the financial condition of the family; and

(d) the educational and other qualifications, if any, of the applicant."

Rule 8 is in the following terms:

"8. Relaxation from age and other requirements.- (1) The candidate seeking appointment under these rules must not be less than 18 years at the time of appointment.

(2) The procedural requirements for selection, such as written test or interview by a selection committee or any other authority shall be dispensed with, but it shall be open to the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post.

(3) An appointment under these rules shall be made against an existing vacancy only."

Before we elucidate the principles which emerge from the body of precedent on the subject, it would, at the very outset, be necessary to emphasise certain basic precepts and interpret the provisions of the Rules as they stand. Appointments to public offices have to comply with the requirements of Article 14 and Article 16 of the Constitution. Article 16 provides for equality of opportunity in matters of public employment. Compassionate appointment is in the nature of an exception to the ordinary norm of allowing equality of opportunity to every eligible person to compete for public employment. The reason for the exception as envisaged in the Rules is that the immediacy of the financial hardship that is sustained by a bereaved family by the death of its earning member is sought to be alleviated in a situation in which the government servant died while in service. Rule 5 of the Rules applies where a government servant has died in harness after the commencement of the Rules.

The first requirement under Rule 5 is that the spouse of the deceased should not be already employed by the Central or State Governments or by a Corporation owned or controlled by them. Where this condition is met, one member of the family can be given suitable employment in government service in relaxation of the normal recruitment rules, provided three conditions are fulfilled. The first is that the applicant must fulfill the educational qualifications prescribed for the post; the second is that the applicant must be otherwise qualified for government service; and the third is that the application for employment must be made within five years from the date of death of the government servant. The first proviso to Rule 5 empowers the State Government to dispense with or relax the time limit for making an application for employment, for dealing with the case in a just and equitable manner, where government is satisfied that the time limit of five years for making an application for employment causes undue hardship in any particular case. Under the second proviso, a burden is cast on the applicant to establish a case of undue hardship by explaining the reasons and furnishing a proper justification, in writing, regarding the delay caused in making the application for employment after the expiry of the time limit of five years. This explanation has to be accompanied by necessary documents and proof in support of the reasons for the delay. The Government has to take an appropriate decision after taking into consideration all the facts leading to such delay.

Rule 6 of the Rules, which deals with the contents of an application for employment, amplifies the basic purpose and object of providing compassionate appointment. Besides stating the date of death of the deceased government servant, the post and the department in which he was working, the application has to mention the names, ages and other details pertaining to all the members of the family of the deceased, particularly about their marriage, employment and income and the details of the financial condition of the family together with the educational and other qualifications of the applicant.

The Rules have been framed by the State Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution. The Rules make it abundantly clear that the purpose and object underlying the provision for compassionate appointment is not to reserve a post for a member of the family of a deceased government servant who has died while in service. The basic object and purpose is to provide a means to alleviate the financial distress of a family caused by the death of its member who was in government service. This is the underlying theme or thread which cuts across almost every provision of the Rules. Firstly, the spouse of the deceased government servant must not already be employed in the Central or State Governments or their Corporations. If the spouse is so employed, then obviously, there would be no warrant to grant compassionate appointment since the spouse would be expected to provide to the members of the family a nucleus for sustaining their livelihood. Secondly, the applicant himself should not be employed with the Central or State Governments or their Corporations. Thirdly, an application for appointment has to be made within five years from the date of death of the government servant. The rationale for imposing a limit of five years beyond which an application cannot be entertained is that the purpose of compassionate appointment is to bridge the immediacy of the loss of an earning member and the financial distress that is sustained in consequence. A lapse of time is regarded by the Rules as leading to a dilution of the immediacy of the requirement. The first proviso to Rule 5, however, confers upon the State Government a discretion to dispense with or relax the requirement of submitting an application in five years. This power is not unguided and is not left to the arbitrary discretion of the decision-making authority. Every discretionary power in public law has to be structured on objective principles. The first proviso requires the Government to be satisfied that the strict application of the norm of five years for submitting an application would cause undue hardship. The dispensation or relaxation is in order to deal with a case in a just and equitable manner. Under the second proviso, the burden has been cast on the applicant to furnish reasons and produce a justification together with evidence in the form of documents and proof in support of the cause for the delay in making an application within the stipulated period. Finally, on this aspect of interpretation, it must be emphasized that an applicant for employment under the Rules has to disclose in a full, true and candid manner, details of the financial condition of the family as well as all relevant details pertaining to the members of the family of the deceased including their names, age and status in regard to their marriage, employment and income. All these aspects have a bearing on the financial need of the family which has to be assessed before a decision is taken to grant compassionate appointment. The discretionary power to relax the time limit of five years is in the nature of an exception. It is a power which is vested in the State Government, a circumstance which is indicative of the fact that the subordinate legislation expects it to be exercised with scrupulous care. Ordinarily, the time limit of five years governs. The State Government may relax the norm on a careful evaluation of the circumstances mandated by the second proviso. It is but a matter of first principle that a discretionary power to relax the ordinary requirement should not swallow the main or substantive provision and render the basic purpose and object nugatory. The Rules indicate, in consequence, that an application for compassionate appointment, which is in relaxation of the normal recruitment Rules, must be made within a period of five years of the date of death of the government servant. But the State Government is conferred with a discretionary power to relax the requirement of five years in order to alleviate a situation of undue hardship so as to deal with a case in a just and equitable manner. The satisfaction of the State Government before it exercises the power of relaxation is not a subjective satisfaction but must be based on objective considerations founded on the disclosures made by the applicant for compassionate appointment. Those disclosures, in writing, must necessarily have a bearing on the reasons for the delay and on whether undue hardship within the meaning of the first proviso to Rule 5 of the Rules would be caused by the application of the time limit of five years. The expression 'undue hardship' has not been defined in the Rules. Undue hardship would necessarily postulate a consideration of relevant facts and circumstances including the income of the family, its financial condition and the extent of dependency.

Now, it is in this background that it is necessary for the Court to consider the principles of law which emerge from the judgments of the Supreme Court on the subject.

In Umesh Kumar Nagpal Vs. State of Haryana & Ors., reported in (1994) 4 SCC, 138, the Supreme Court explained the basic purpose of providing compassionate appointment to the dependent of a deceased employee who has died in harness:

"The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. 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. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. ... For these very reasons, the compassionate employment cannot be granted after a lapse 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. 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."

In Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors., reported in (1998) 5 SCC, 192, the Supreme Court held that compassionate appointment is an exception to the general provision and, being an exception, it should not interfere unduly with the rights of other persons. The Supreme Court held thus:

"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 dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such 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 other persons who are eligible for appointment of 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 dependent of a deceased employee."

The decision in Umesh Kumar Nagpal (supra) was followed by the Supreme Court in General Manager (D&PB) & Ors. Vs. Kunti Tiwary & Anr., reported in (2004) 7 SCC, 271. The Supreme Court noted that under the Scheme which had been adopted by the Indian Banks Association, the terminal benefits received by the family of the deceased employee had to be considered together with the income of the family, employment of other members, the size of the family and liabilities, if any. The Supreme Court in that case held that the family of the deceased employee had not been left in penury or without any means of livelihood and its income was not such as to lead to the conclusion that the family was living hand to mouth.

The same view was followed in Punjab National Bank & Ors. Vs. Ashwini Kumar Taneja, reported in 2004 AIR SCW, 4602.

In National Hydroelectric Power Corporation & Anr. Vs. Nanak Chand & Anr., reported in AIR 2005 SC, 106, the principle was formulated as follows:

"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."

In Commissioner of Public Instructions & Ors. Vs. K.R. Vishwanath, reported in (2005) 7 SCC, 206, the following principles were laid down by the Supreme Court:

"...the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependent on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. ...High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments."

Specifically dealing with a situation where a dependent was a minor at the date of death of the employee, the Supreme Court referred to the decision in Sushma Gosain & Ors. Vs. Union of India & Ors., reported in (1989) 4 SCC, 468 and observed thus:

"The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisages specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati (Smt.) v. Union of India and Ors., reported in (1991) Supp (2) SCC, 689 and Union of India and Ors. v. Bhagwan Singh, repoted in (1995) 6 SCC, 476. In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors, (1998) 5 SCC 192, it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely 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, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that 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 those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased-employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision."

In State of J&K & Ors. Vs. Sajad Ahmed Mir, reported in (2006) 5 SCC, 766, the principle was followed as follows:

"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 from except where compelling circumstances demand, such as, death of the sole breadwinner 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 the 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."

The principles of law which emerge from the decided cases were summarized in a judgment of the Supreme Court in V. Shivamurthy Vs. State of Andhra Pradesh & Ors., reported in (2008) 13 SCC, 730, Hon'ble Mr. Justice R.V. Raveendran speaking for a Bench of two learned Judges formulated those principles thus:

"(a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are a well recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies.

(b) Two well recognized contingencies which are carved out as exceptions to the general rule are:

(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the bread-winner while in service.

(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the bread winner.

Another contingency, though less recognized, is where land holders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project affected persons. (Particularly where the law under which the acquisition is made does provide for market value and solatium, as compensation).

(c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies.

(d) Compassionate appointments are permissible only in the case of a dependant member of the family of the employee concerned, that is, spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, Classes III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts."

The provisions of Rule 5 of the Rules in the State of Uttar Pradesh specifically came up for consideration before the Supreme Court in Santosh Kumar Dubey Vs. State of Uttar Pradesh & Ors., reported in (2009) 6 SCC, 481, In that case, the father of the appellant was untraced from 1981. The Supreme Court held that without going into the issue as to whether compassionate appointment could be sought in a case of deemed death under Section 108 of the Indian Evidence Act, such a right could have been exercised in 1988 itself and the period of five years under Rule 5 would not enable the appellant to compute the period until 1993. In that context, the Supreme Court observed as follows:

"11. The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the families 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 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.

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."

In Local Administration Department & Anr. Vs. M. Selvanayagam @ Kumaravelu, reported in AIR 2011 SC, 1880, the principle has been set out in the following observations of the Supreme Court:

"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 succour 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."

In Shreejith L. Vs. Deputy Director (Education) Kerala & Ors., reported in (2012) 7 SCC, 248, these principles have been reiterated.

In Union of India & Anr. Vs. Shashank Goswami & Anr., reported in (2012) 11 SCC, 307, the Supreme Court held thus:

"9. There can be no quarrel to the settled legal proposition that the claim for appointment on compassionate grounds is based on the premise that the applicant was dependent on the deceased employee. Strictly, such a claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. Appointment on compassionate ground cannot be claimed as a matter of right.

10. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. Thus, the applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased."

These principles have been reiterated in a more recent judgment of the Supreme Court in State of U.P. & Ors. Vs. Pankaj Kumar Vishnoi, reported in 2013 (5) AWC 5062 (SC), specifically in the context of Rule 5 of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.

In Chief Commissioner, Central Excise and Customs, Lucknow & Ors. Vs. Prabhat Singh, reported in [(2013) 1 UPLBEC 357], the Supreme Court has addressed words of caution in the following observations:

"We are constrained to record that even compassionate appointments are regulated by norms. Where such norms have been laid down, the same have to be strictly followed...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 anti 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... 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 impoverished family. Discretion is therefore ruled out. So are, misplaced sympathy and compassion."

Once again, in MGB Gramin Bank Vs. Chakrawarti Singh, reported in AIR 2013 SC, 3365, the Supreme Court has observed as follows:

" 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 employment. 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 Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds.

Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years."

In several decisions, the Supreme Court has dealt with cases of minors seeking compassionate appointment. In Haryana State Electricity Board & Anr. Vs. Hakim Singh, reported in (1997) 8 SCC, 85, the Supreme Court dealt with a case of a widow who had applied after a period of 18 years for appointing her son who was four years old when his father died in harness, contending that she could make the application only when her son attained majority. The High Court had allowed the writ petition. While allowing the appeal, the Supreme Court observed as follows:

"We are of the view that the High Court has erred in over stretching the scope of the compassionate relief provided by the Board in the circulars as above. It appears that High Court would have treated the provision as a lien created by the Board for a dependent of the deceased employee. If the family members of the deceased employee can manage for fourteen years after his death one of his legal heirs cannot put forward a claim as though it is a line of succession by virtue of a right of inheritance. The object of the provisions should not be forgotten that it is to give succor to the family to tide over the sudden financial crisis be-fallen the dependents on account of the untimely demise of its sole earning member."

Similarly, in Jagdish Prasad Vs. The State of Bihar & Anr., reported in JT 1995 (9), 131, the Supreme Court rejected the case of a minor who had claimed compassionate appointment after he had attained majority while observing as follows:-

"It is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that, therefore, the Court is required to examine whether the appointment should be made on compassionate grounds. We are afraid, we cannot accede to the contention. 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. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased Government servant which cannot be encouraged, dehors the recruitment rules."

In Haryana State Electricity Board Vs. Naresh Tanwar & Anr., reported in (1996) 8 SCC, 23, the widow of a deceased employee had made an application after twelve years claiming compassionate appointment for her son who had since attained majority. The High Court allowed the writ petition holding that compassionate appointment could not be restricted to a period of three years and if assistance to the members of the family of a deceased employee is required to be given, the member of the family must necessarily attain majority before becoming eligible to apply for appointment. While setting aside the judgment of the High Court, the Supreme Court observed as follows:

"It has been indicated in the decision of Umesh Kumar Nagpal (Supra) 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's 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.

It appears to us that the principle of compassionate appointment as indicated in the aforesaid decisions of this Court, is not only reasonable but consistent with the principle of employment in government and public sector. The impugned decisions of the High Court therefore cannot be sustained."

In Sanjay Kumar Vs. The State of Bihar & Ors., reported in (2000) 7 SCC, 192, the Supreme Court again dealt with a case of compassionate appointment of a minor who had made an application upon attaining majority. The Supreme Court observed as follows:

"This Court has held in a number of cases that 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. ...on the date when the first application was made by the petitioner on 2.6.88, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time, as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief."

In a Judgment of a Division Bench of this Court consisting of Hon'ble Mr. Justice Sunil Ambwani and Hon'ble Mr. Justice Amreshwar Pratap Sahi delivered on 7 May 2010 in Union of India & Ors. Vs. Smt. Asha Mishra & Anr, in C.M.W.P. No.13102 of 2010, the same principle was formulated in the following observation:

"The principles of consideration for compassionate appointment have been firmly settled and have been reiterated from time to time. Compassionate appointment is not a vested right or an alternate mode of employment. It has to be considered and granted under the relevant rules. The object of compassionate appointment is to tide over an immediate financial crisis. It is not a heritable right to be considered after an unreasonable period, for the vacancies cannot be held up for long and that appointment should not ordinarily await the attainment of majority. Where the family has survived for long, its circumstances must be seen before the competent authority may consider such appointment. It is not to be ordinarily granted, where a person died close to his retirement."

Considering the rules stated above relating to the compassionate appointment and the law laid down by the Apex Court referred hereinabove, Full Bench of this Court in Special Appeal No.356 of 2012, Shiv Kumar Dubey Vs. State of U.P. & others and other connected appeals, reported in 2014 (2) ADJ, 312 laid down the following principles :

(i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved;

(ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules;

(iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner;

(iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment;

(v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out;

(vi) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner;

(vii) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government;

(viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family.

On the aforesaid principles of law, we propose to examine the present case on the existing facts.

Learned Standing Counsel provided the copies of the applications filed by the respondent, which have been confronted to the learned counsel appearing on behalf of the respondent and are placed on record. The applications dated 20.02.2002 and 09.09.2008 are referred hereinbelow :

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The father of the respondent died on 31.07.2001. The first application claiming compassionate appointment was moved on 20.02.2002. This application was within time. In this application, name, age and other details pertaining to all family members of the deceased employee, particularly about their marriage, employment and income and details of the financial crises as required under Rule 6 was not mentioned. The application was not maintainable for the want of requisite details. However, the claim of the respondent has been entertained and the respondent has been given the opportunity to appear in Sub Inspector (M) test, for which he was eligible but he failed. The application claiming the compassionate appointment on the post of Sub Inspector was moved on 09.09.2008. This application was beyond the period of five years. In the said application, name of the family members, age of the family members and other details pertaining to all family members of the deceased employee, particularly about their marriage, employment and income, which was required under Rule 6 and was mandatory was not provided. Therefore, the application was not maintainable at all. It may be mentioned here that these details are required to assess that whether any financial help to meet the financial crises, which arose on account of the death of the deceased employee was required, by way of compassionate appointment or not.

Even if the case of the respondent that the eligibility is to be considered on the date when the application is being considered, is accepted it is not necessary to offer the said post on compassionate ground. At the most, it can be said that the person may be eligible for the consideration for the post, but it is not necessary that he must be given appointment on post opted.

On being becoming eligible, applicant may become entitle for consideration, for appointment on compassionate ground on a particular post, but his claim of compassionate appointment is required to be tested under the rules, policies and law laid down by the Court. The applicant may get appointment or may not, at all or may be offered particular post, which may not be suited to applicant, on the claim being tested under the rule, policies and law declared by the Court.

The compassionate appointment can only be provided only under the Statutory provision and under the Government Policy. The Government Order No.208/(1)(6)-U-Pu-11200(326)/10, dated 08.06.2011 provides that the post of compassionate appointment is to be decided by the appointing authority and it is not the right of the dependent of the deceased employee to claim appointment on any particular post and the appointing authority is not bound to accept the claim of the claimant of particular post. Therefore, in the view of the aforesaid Government Order, the appointing authority is not bound to offer the particular post sought by the person concerned.

Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner. The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government, after considering all the facts to take an appropriate decision. The power of relaxation is in the nature of an exception and is subject to the existence of objective consideration to the satisfaction of the government.

In the present case, no reasonable justification has been given nor any document has been filed explaining the cause of delay. Therefore, we are of the view that the State Government has rightly refused to relax the period.

The compassionate appointment do not constitute a reservation of a post in favour of the member of the family of the deceased employee. It can not be claimed as a matter of right. The compassionate appointment is exception to the general rule of recruitment. The object and purpose providing the compassionate appointment is to enable the dependent members of the family of the deceased employee to tied over the immediate financial crises caused by the death of the bread-earner. In determining as to whether the family is in financial crises, all relevant aspects must be borne in mind including the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment and for such determination, the details sought is required to be given in the application as provided under Rule 6 of the Rules.

In the present case, the respondent in the application has not given the name and age and other details pertaining to all family members of the deceased employee, particularly about their marriage, employment and income and the details of the financial crises as required under Rule 6. In the application, he was not able to substantiate any financial crises. Moreover, the respondent is maintaining himself and his family members since last 14 years and is involved in litigation, incurring expenses, which shows that he and his family members are not in financial crises.

The respondent has declined the offer of the compassionate appointment on the post of Constable.

On the facts and circumstances, we are of the view that the respondent is not at all entitled for any compassionate appointment.

In view of the above, we are of the view that the direction of the learned Single Judge to reconsider the claim of the respondent for compassionate appointment, is not justified.

Before parting with the case, we feel it appropriate to issue certain directions to the police department and other Government departments, which are :

We direct accordingly,

1. In order to achieve the object of the compassionate appointment and to meet the immediate financial crises, which arises on account of the death of the deceased employee, it would be appropriate to dispose of the application of the compassionate appointment within a maximum period of six months from the date of its presentation.

2. The determination of the financial crises is the most relevant consideration and for determining the financial crises of the family and all relevant aspects must be borne in mind including the income of the family; the terminal benefits received by the family, the age, dependency and marital status of its members, together with the income from any other source of employment or from immovable properties and specific findings in this regard must be recorded.

It is seen that this aspect is not being taken as an important factor and no finding is being recorded in this regard.

We are of the view that without determining the financial crises and recording finding in this regard, the compassionate appointment can not be given, if given, is illegal.

It is informed that similar kind of lapses in the case of the compassionate appointment is goingon in the other departments of the State Government, resulting in grave irregularity and illegality in the compassionate appointment. It is also causing unnecessary litigation burdening the Court as well as causing harassment to the party concerned.

In the circumstances, we direct Chief Secretary, Government of U.P., Lucknow to issue circular to all department of the State of U.P. to abide by the law laid down in the present case and by the Full Bench of this Court in the case of Shiv Kumar Dubey Vs. State of U.P. and others, reported in 2014 (2) ADJ, 312 (FB).

Principal Secretary (Establishment), U.P. Government, Lucknow is directed to issue the Government Order/Circular to all departments to follow the aforesaid directions.

I.G. (Police Headquarter) is also directed to follow the aforesaid direction while giving compassionate appointment and in this regard necessary direction be issued.

In the result, the appeal is allowed. The order of the learned Single Judge, dated 26.07.2013 passed in Writ Petition No.32832 of 2012, is hereby quashed.

Dt. 08.05.2015

sfa/R./