Nitesh Kumar Mishra vs State Of U.P. Through Prin. Secy. ...
2015 Latest Caselaw 2314 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 939 of 2015
 

 
Petitioner :- Nitesh Kumar Mishra
 
Respondent :- State Of U.P. Through Prin. Secy. Home Deptt. Lko. & Ors.
 
Counsel for Petitioner :- Amit Bose,Abhishek Bose
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Sri Amit Bose, learned counsel for petitioner, Sri Devendra Upadhyay, learned Additional Chief Standing counsel and perused the record.

Facts in brief of the present case are that petitioner's father Sri Vinay Prakash Mishra, (now deceased) died during the tenure of his services while posted at Police Station Kotwali Nagar, Bahraich on 21.04.2015 at SGPGI where he was under treatment.

Thereafter, an application on behalf of the petitioner was submitted for considering his case for compassionate appointment under U.P. Dying in Harness Rules, 1974 (hereinafter referred to as the Rules, 1974), vide order dated 07.11.2014 passed by respondent No. 3/Additional Superintendent of Police (Establishment), U.P. Police Headquarters, Allahabad rejected the claim of the petitioner for compassionate appointment under Rules, 1974 on the ground that his mother Smt. Reeta Mishra, w/o late Sri Vinay Prakash Mishra, is already working as Clerk in the office of District Magistrate, Bahraich. The said fact was communicated vide order dated 25.11.2014 passed by Superintendent of Police, Bahraich.

Sri Amit Bose, learned counsel for petitioner while challenging the impugned order submits that while refusing to grant compassionate appointment to one member of the family the deceased government servant the post to be considered is that whether the family of the deceased government servant is reduced to a destitute status as a result of the death of the deceased government servant and the said question has to be considered even if one spouse of the deceased government servant is already in employment of the Central or State Government. In other words the mere fact that one spouse of the deceased government servant is already in service of the State or Central Government does not prevent the authorities to consider the aforesaid question and the authorities concerned cannot avoid considering the aforesaid question merely on the ground that the spouse of the deceased government servant is already in service of the Central or State Government.

He further submits that the provisions of Rule 5 (i) of the Dying in Harness Rules in so far as they provide for compassionate appointment in place of a deceased government servant only on the condition that the spouse of the deceased government servant is not already in service of the Central or State Government does not raise a presumption that the family of the deceased government servant is not reduced to a destitute status on the death of the deceased government servant merely on the ground that the spouse of the deceased government servant is already in service of the State or the Central Government. On the other hand, the factual and legal position is otherwise and that is that it can be that despite the spouse of the deceased government servant being already in employment of the State or Central Government still on the death of the deceased government servant the family can still be reduced to a destitute status for a variety of reasons and on the other hand there can be families of deceased government servants who may not be reduced to a destitute status as the spouse of the deceased government servant is already in service of the State or Central Government.

Accordingly, it is argued by him that tt is a pure question of fact as to whether the family of the deceased government servant has been reduced to a destitute status or not as the spouse of the deceased government servant is already in service of the State or Central Government and the said question has to be decided by the authorities in every individual case separately. It cannot be said in an omnibus manner that merely because the spouse of the deceased government servant is already in service of the State or the Central Government one member of the family of the deceased government servant is not entitled to compassionate appointment and that too without examining the poor pecuniary condition that the family is reduced as a result of the death of the government servant concerned.

Sri Amit Bose, learned counsel for petitioner thus, argued that any other interpretation of the provisions of Rule 5(i) of the Dying in Harness Rules would defeat the very object and purpose of grant of compassionate appointment as is permissible under the aforesaid rules and in that view of the matter would render the Dying in Harness Rules to be vulnerable as violating Articles 14 and 16 of the Constitution of India and as such in order to save the aforesaid rules from being rendered unconstitutional as violating Articles 14 and 16 of it has to be interpreted that despite the fact that the spouse of the deceased government servant is in service of the State or Central Government, still the authorities have to consider the question whether the family of the deceased government servant has been reduced to a destitute status as a result of the death of the government servant concerned or due to the fact that the spouse of the deceased government servant is already in service of the State or the Central Government the family of the deceased government servant is not reduced to a destitute status as a result of the death of the main bread earner of the family and if the authorities fail to consider the aforesaid question and proceed to reject the claim for compassionate appointment merely on the ground that the spouse of the deceased government servant is already in service of the State or Central Government, the authorities concerned would be acting arbitrarily and illegally, so the impugned orders are liable to be set aside.

Sri Devendra Upadhyay, learned Additional Chief Standing Counsel while supporting the impugned orders submits that as mother of the petitioner Smt. Reeta Mishra, working and discharging her duties as Clerk in State Government Establishment, so the petitioern is not entitled for compassionate appointment under Rules, 1974. In support of his argument, he has placed reliance on the judgment given by Hon'ble the Apex Court in the case of Sail and another Vs. Awadhesh Singh and others, 2001 (10) SCC 621, so the writ petition is liable to be dismissed.

I have considered the rival submission and perused the record.

The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 ("the Rules, 1974") 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) of Rules, 1974 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) of Rules, 1974 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, 1974 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."

Thus, 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, 1974 of the Rules applies where a government servant has died in harness after the commencement of the Rules, 1974

The first requirement under Rule 5 of Rules, 1974 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 of Rules, 1974 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.

The Rules, 1974 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,1974. 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 of Rules, 1974, 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 of Rule 5 of the Rules, 1974, 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 Rules, 1974 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, 1974. 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.

In the case of Sushma Gosain & Ors. Vs. Union of India & Ors., reported in (1989) 4 SCC, 468, Hon'ble the Apex Court observed as under:-

"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 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 Supreme Court in the case of General Manager (D&PB) & Ors. Vs. Kunti Tiwary & Anr., reported in (2004) 7 SCC, 271. held 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."

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."

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."

Hon'ble the Apex Court in the case of Sail and another Vs. Awadhesh Singh and others, 2001 (10) SCC 621, in paragraphs No. 6 held as under:

"6. Having regard to the submissions made by the learned Counsel for both parties, the only question that comes up for our consideration is whether under the Memorandum of Agreement it is permissible for a dependent of the deceased to claim an appointment on compassionate ground even when no other dependent of the deceased is already in service. Be it stated that the Memorandum of Agreement in question is not a statutory scheme and therefore would be unenforceable in an application under Article 226 of the Constitution of India. The Memorandum of Agreement for appointment on compassionate ground had been evolved by the employer so that on the sudden death of an employee his dependents would not be on the roads as destitutes and can maintain themselves if an appointment is given to any one of the dependents of the deceased. Such a scheme cannot at all be conceived if some other dependent of the deceased is already in service. The very purpose for which such scheme had been evolved would get frustrated if a claim on priority basis is made by a dependent of the deceased notwithstanding the fact that other dependent of the deceased is already in service. In this view of the matter we are unable to sustain the decision of the Patna High Court in the impugned judgments. It may be stated that a Bench of this Court has already taken a similar view in the case of S. Mohan v. Govt. of T.N. and Anr. with which we have our respectful concurrence."

Admittedly, in the present case, after the death of Sri Vinay Prakash Mishra, the petitioner submitted an application for considering his case for compassionate appointment, rejected by order dated 07.11.2014 passed by respondent No. 3/Additional Superintendent of Police (Establishment), U.P. Police Headquarters, Allahabad. on the ground that his mother Smt. Reeta Mishra, is already working in the State Government established.

Keeping in view the said facts as well as the Rule 5 of Rules, 1974, 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.

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.

Accordingly, once the mother of the petitioner is working on the post of Clerk under District Magistrate, Bahraich. So the petitioner is not entitled for compassionate appointment as such, I do not find any illegality or infirmity in the impugned order under challenge in the present writ petition, the same lacks merit and is dismissed.

Order Date :- 15/Sept./2015

Ravi/