Km. Santosh Dubey vs State Of U.P. Through Secy. Home ...
2017 Latest Caselaw 2052 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 03.05.2017
 
Delivered on 07.07.2017
 

 
Case :- SERVICE SINGLE No. - 410 of 2003
 
Petitioner :- Km. Santosh Dubey
 
Respondent :- State Of U.P. Through Secy. Home Deptt. Civil Sectt.
 
Counsel for Petitioner :- Rajesh Kumar,Anupam Dwivedi,D P S Chauhan,S.K. Singh,S.N.Bhardwaj
 
Counsel for Respondent :- C.S.C.,R.K. Dwivedi
 

 
                                                         *****
 
Hon'ble Vivek Chaudhary, J.

1. Petitioner has filed the present writ petition praying for mandamus commanding the opposite parties to forthwith give her appointment under Dying-in-Harness Rules and for quashing order dated 26.04.2003 and further for quashing of Government Orders dated 26.03.2003 and 30.05.2001.

2. The case of petitioner is that her father was a Constable in U.P. Civil Police, who was murdered on 14.03.1981 while he was in service and, hence, petitioner is entitled for an appointment under Dying-in-Harness Scheme. Admittedly, at the time of death of her father petitioner was hardly four months of age as is clear from her High School Certificate filed by her as Annexure No.4 to the writ petition, which notes her date of birth as 15.07.1981. After attaining the age of twenty one years, she has filed an application for being appointed under Dying-in-Harness Rules and further claiming for grant of exemption of age while appointing her. Petitioner has strongly relied on two judgments of this Court reported in 2011 (29) LCD 2433; Dinesh Singh vs. State of U.P. & others and the judgment dated 02.11.2010 delivered in Special Appeal No.1794 of 2010; Subhash Yadav vs. State of U.P. & others.

3. Admittedly, the family of petitioner survived the harness period and the application has been made after twenty one years of death of her father. Article 16 of the Constitution of India provides equality for appointment in service of State. Dying-in-Harness Rules are exception to the aforesaid General Fundamental Rules of every citizens. There are repeated judgments by which, the Apex Court as well as this Court have repeatedly held that purpose of Dying-in-Harness Rules is to provide support to meet the sudden financial crisis and is not a mode to provide employment to a person. These rules are for a situation where it becomes necessary, due to sudden death of sole bread earning members of the family to provide an employment under dying-in-harness. The said law has been settled repeatedly by the following judgments.

4. An appointment on compassionate basis claimed after a long time has seriously been deprecated by Apex Court in Union of India Vs. Bhagwan 1995 (6) SCC 436, Haryana State Electricity Board Vs. Naresh Tanwar, (1996) 8 SCC 23. In the later case the Court said:

"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. ..... 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."

5. In State of U.P. & Ors. Vs. Paras Nath AIR 1998 SC 2612, Court said:

"The purpose of providing employment to a dependent of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case."

6. In Haryana State Electricity Board Vs. Krishna Devi JT 2002 (3) SC 485 = 2002 (10) SCC 246 the Court said:

"As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we are of the opinion that it was not to meet the immediate financial need of the family ...."

7. In National Hydroelectric Power Corporation & Anr. Vs. Nanak Chand & Anr. AIR 2005 SC 106, Court said:

"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."

8. In State of Jammu & Kashmir Vs. Sajad Ahmed AIR 2006 SC 2743, Court said:

"Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the set back. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution."

(emphasis added)

9. Following several earlier authorities, in M/s Eastern Coalfields Ltd. Vs. Anil Badyakar and others, (2009) 13 SCC 122 = JT 2009 (6) SC 624 the Court said:

"The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over."

10. In Santosh Kumar Dubey Vs. State of U.P. & Ors. 2009 (6) SCC 481, Court said:

"The very concept of giving a compassionate appointment is to tide over the financial difficulties that is faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. 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."

11. The Court considered that father of appellant in Santosh Kumar Dubey vs. State of U.P. & Ors. reported in 2009 (6) SCC 481 became untraceable in 1981 and for about 18 years the family could survive and successfully faced and over came the financial difficulties. In these circumstances it further held:

"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."

12. In I.G. (Karmik) and Ors. v. Prahalad Mani Tripathi 2007 (6) SCC 162, Court said:

"Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion."

13. In Mumtaz Yunus Mulani Vs. State of Maharashtra & Ors, 2008 (11) SCC 384, Court held that now a well settled principle of law is that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or public sector undertakings is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over sudden financial crises.

14. The importance of penury and indigence of the family of the deceased employee and need to provide immediate assistance for compassionate appointment has been considered in Union of India (UOI) & Anr. Vs. B. Kishore 2011(4) SCALE 308. This is relevant to make the provisions for compassionate appointment valid and constitutional else the same would be violative of Articles 14 and 16 of the Constitution of India. The Court said:

"If the element of indigence and the need to provide immediate assistance for relief from financial deprivation is taken out from the scheme of compassionate appointments, it would turn out to be reservation in favour of the dependents of an employee who died while in service which would be directly in conflict with the ideal of equality guaranteed under Articles 14 and 16 of the Constitution."

15. In Local Administration Department and another vs. M. Selvanayagam Alias Kumaravelu; 2011 (13) SCC 42, the Apex Court in paras-10, 11 & 12 held as under:-

"10. We think that the explanation given for the wife of the deceased not asking for employment is an after-thought and completely unacceptable. A person suffering from anaemia and low blood pressure will always greatly prefer the security and certainty of a regular job in the municipality which would be far more lucrative and far less taxing than doing menial work from house to house in an unorganised way. But, apart from this, there is a far more basic flaw in the view taken by the Division Bench in that it is completely divorced from the object and purpose of the scheme of compassionate appointments."

"11. 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."

"12. Ideally, the appointment on compassionate basis should be made without any loss of time but having regard to the delays in the administrative process and several other relevant factors such as the number of already pending claims under the scheme and availability of vacancies etc. normally the appointment may come after several months or even after two to three years. It is not our intent, nor it is possible to lay down a rigid time limit within which appointment on compassionate grounds must be made but what needs to be emphasised is that such an appointment must have some bearing on the object of the scheme."

16. Thus, it is well settled that compassionate appointments are an exception of General Rules and grant of relaxation of time is a further exception to the said exceptions for appointment under Dying-in-Harness Rules. The same has to be construed for the purpose of giving support to the family which is in harness. Admittedly, dying-in-harness application was moved by her after twenty one year of death of her father. A four months child had grown up got educated and had survived the harness period from which the family must have gone through at the time of death in the year 1981. But, there is nothing on record to show that now in the year 2001 family is going through in such circumstances where its survival is impossible. On the contrary, it appears that petitioner and all her family members have been able to get good education for the last twenty years and have survived well.

17. In view of aforesaid, there is no force in the present writ petition.

18. Hence, it is dismissed. No order as to costs.

Order Date :- 07.07.2017

Suresh/

(Vivek Chaudhary, J.)