Smt. Ishraj Mishra And Another vs Union Of India Thru The Sec, ...
2017 Latest Caselaw 6434 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						Reserved on 01.11.2017             
 
						Delivered on  07.11.2017             
 

 
Court No. - 35
 

 
Case :- WRIT - A No. - 71522 of 2010
 

 
Petitioner :- Smt. Ishraj Mishra And Another
 
Respondent :- Union Of India Thru The Sec, Ministry Of Finance And Others
 
Counsel for Petitioner :- Vibhu Sinha,Sunil
 
Counsel for Respondent :- C.S.C. Income Tax Dept,Ashish Agarwal,Govind Krishna
 

 
Hon'ble Bharati Sapru,J.

Hon'ble Siddharth,J.

(Delivered by Hon'ble Siddharth, J.)

Heard Sri Sunil, learned Counsel for the petitioners and Sri Uttam Singh, holding brief of Sri Ashish Agarwal, learned Counsel for the respondents.

The above noted writ petition has been filed by the petitioners challenging the order dated 22/29.9.2009 passed by the respondent No.2, Chief Commissioner of Income Tax, Ashok Marg, Lucknow and the order dated 04.10.2010 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in Original Application No. 1351 of 2009.

By these orders, the claim of the petitioners for appointment on compassionate basis in place of his deceased father has been turned down.

The brief facts of the petition are that the father of the petitioner No.2, Late Sri A.P. Mishra, died on 28.9.2001 leaving behind the petitioner No.1, widow and two sons, including the petitioner No.2 and one daughter. After the death of late Sri A.P. Mishra, petitioner No.2 was the lone bread winner and hence the petitioner No.1 applied for employment of the petitioner No.2 on compassionate basis before the respondent No.3, Chief Commissioner of Income Tax, M.G. Marg, Allahabad, on 21.11.2001. Initially, the respondent No.2 informed the petitioner No.1 that her prayer for compassionate appointment of petitioner No. 2 shall be considered as and when some vacancy arises but the petitioners were never informed about any such vacancy. When on 15.7.2008, the respondent No.2 issued letters for compassionate appointment to certain candidates, the petitioner No.1 approached the respondent No.2 reiterating her claim but no head was paid. The petitioners approached the Central Administrative Tribunal by filing an Original Application No. 133 of 2009, praying for a direction to the respondents, to grant compassionate appointment to the petitioner No.2. The aforesaid Original Application was allowed vide order dated 13.2.2009 directing the respondents to consider the grievance of the petitioners and passed reasoned and speaking order in accordance with law.

Vide order dated 30.3.2009, the respondent No.2 rejected the claim of the petitioners on the ground that the petitioner No.2 has attained the age of 36 years on the date of application and, therefore, could not be appointed in group "C" cadre. The aforesaid order was again challenged by the petitioners by way of Original Application No. 622 of 2009 before the Central Administrative Tribunal, which was quashed vide order dated 30.3.2009 on the ground, that order dated 30.3.2009 passed by the respondent No.2 is a cryptic and non-speaking order and in pursuance thereof another order dated 22/29.9.2009 was passed by the respondent No.2, rejected the claim of the petitioner No.2 by a detailed order again.

The aforesaid order dated 22/29.9.2009 was challenged by the petitioners by means of 3rd Original Application No. 1351 of 2009 which was decided by the Central Administrative Tribunal, Allahabad Bench, Allahabad vide order dated 04.10.2010 by following observations:-

"Under these circumstances, perusal of the order shows that whatever was required to be considered by the respondents, was considered at the time of passing the order on the representation of the applicant as per directions of the Tribunal and it cannot be said that the order is cryptic and non-speaking. It has been argued by learned counsel for the respondents that in order to consider the applications for compassionate appointment, applications are to be forwarded to the Committee, and the Committee shall consider each and every application on its merits vis-a-vis other applications and the case of the applicant was not recommended for compassionate appointment hence he was not given the appointment. It has also been alleged on behalf of the respondents that at the time of moving an application on 21.11.2001, the applicant was aged about 36 years, on this ground also his case was not considered fit, whereas it has been alleged by learned counsel for the applicant that in the cases of compassionate appointment, respondents shall have to give age relaxation, and appointment on compassionate ground cannot be refused on the ground of over age. He further argued that annexure A-7 is the report of the Committee, which considered the application for compassionate appointment and this report shows that against 13 vacant posts, appointment was given only to five persons and the persons to whom compassionate appointment was given, some of the persons are over age and relaxations have been given to those persons. Hence, age relaxation ought to have been to the applicant also and the respondents are not justified in rejecting the application of the applicant on the ground of over age. I have perused this document, annexure A-7, and in order to give age relaxation to the persons, who were recommended and subsequently appointed, were considered more pressing and genuine. Hence, it cannot be said that the respondents have not used the discretion of age relaxation in the case of the applicant. Various other circumstances and eligibility are to be considered of each individual. It is a fact that applicant No. 2 is M. Com. and at present he is aged about 43 years. It cannot be expected that during this period he remained unemployed or is dependent only on meager amount, received by the widow of the deceased employee, of family pension. There is another son also of the deceased and nothing has been mentioned about the other son that whether he is employed or not. It may be presumed from all these circumstances that family of the applicant is surviving even after the death of the father-sole bread earner of the family. At the time of death of the deceased employee, applicant No. 2 was major and highly qualified. He was fully in a position to earn his livelihood. Learned counsel for the applicant cited following Judgments in this connection: -

{i} [2009] 3 UPLBEC 2212 Hari Ram vs. Food Corporation of India and others;

{ii} Judgment of CAT Allahabad Bench, Allahabad in O.A. No. 164 of 2009 Anil Kumar vs. Union of India and others;

{iii} [2000] 6 SCC 493 Balbir Kaur and another vs. Steel Authority of India Ltd. And another.

I have perused the above mentioned Judgments of the Honble Apex Court, High Court of Allahabad and Central Administrative Tribunal, Allahabad Bench, and I am of the view that considering the over all facts and circumstances of the present case, no benefit can be given to the applicant on the basis of above mentioned Judgments. Each and every case is to be decided on its own facts. Case of the applicant was rejected on its own merits, and it will not be justified at this stage that compassionate appointment be given to the applicant.

9. For the reasoned mentioned above, I am of the opinion that this O.A. lacks merits. The respondents are justified in rejecting the case of the applicant for compassionate appointment. His case was considered by the respondents in accordance with the directions and parameters issued by the Department of Personnel and Training. O.A. is liable to be dismissed.

10. O.A. is dismissed accordingly. No order as to costs."

Against the aforesaid order of the Central Administrative Tribunal, Allahabad Bench, Allahabad, the above noted writ petition has been preferred by the petitioners.

The counter affidavit filed on behalf of the respondents states that the case of the petitioner No. 2, for compassionate appointment on group "C" post, was referred to the Committee formed as per Rules and the Committee considered and submitted its report in respect of 43 pending cases, including the case of the petitioner No.2 on compassionate grounds. As per the Rules, the case of the petitioner No.2, alongwith 15 other cases, was considered for appointment for the vacancies of the year 2002-2003 as his father died in harness on 28.9.2001. In the relevant year, there was only one vacancy and the petitioner No.2 was not found fit, as on the date of application, he was aged about 36 years and one Rohit Kumar Kannujia (SC) was recommended by the Committee for appointment in the vacancy arising in the subsequent year. Other candidates were found eligible and given appointment.

When the above noted writ petition was filed, this Court passed an order dated 24.03.2011 requiring the petitioners to bring on record the financial background of the family, terminal benefits received, sources of survival and family pension being received by the respondent No.1 and accordingly, petitioners filed supplementary affidavit dated 07.5.2013 wherein they stated the condition of the family as follows:-

"4. That the deceased left behind his wife and five children including 2 sons and 3 daughters, the details of the family members are as below:-

a. Ishraj Mishre wife

b. Kusum Tripathi (daughter) married in the year 1984

c. Anil Kumar Mishra (son) married in the year 1993

d. Kamlesh Kumar Mishra (son) married in the year 1996

e. Asha Tripathi (daughter) married in the year 1999

f. Rekha Tripathi (daughter) married in the year 2002

5. That the deponent and another son i.e. Kamlesh is further having their family are having minor children deponent is having one son and one daughter whereas Kamlesh is having two daughters all are studying in different grades.

6. That the deceased was owing 2 Biswa ancestral agriculture land which is now devolved upon the petitioner No.1.

7. That the deponent is graduate in commerce and is running private tutorials on individual basis for its survival.

8. That the younger brother of the deponent is civil diploma holder and is working in construction and building structuring he is living out of Allahabad.

9. That the deponent could only be able to derive Rs. 3000/- to Rs. 3500/- per month from its tutorials and the younger brother is earning a meager sum of Rs. 4000/- per month.

10. That a sum of Rs.5,95,577/- has been granted to the family of the deceased as post death benefits including as sum of Rs.3,50,000/- as gratuity, Rs.129792/- as GPF, Rs.110875/- as leave encashment, and CGE insurance of Rs.44910/-.

11. That the family pension as received to the petitioner No.1 is sum of Rs.14000/- per month presently.

12. That after the death of the father of the deponent the family was compelled to construct a house for shelter and hence a house was constructed from the aforesaid sum of amount which was received and a sum of Rs.800000/- was spend over the construction including the cost of land as purchased, it is pertinent to mention that this amount was spend in support of debts received from well wishers and close relations of the family.

13. That the youngest daughter Ms. Rekha has got married after the death of father and which burdened the financial crunch to the amount of Rs.200000/-.

14. That the petitioner is an old aged lady is also suffering with asthma and sugar and has also undergone with the treatment of liver its monthly expenditure of medicines and treatment reaches out of Rs.4000/- to 4500/- approximately.

15. That under such disclosure of circumstances the deponent with another petitioner approached this Hon'ble court for appropriate directions to the respondents for giving the employment to the deponent under dying in harness rules otherwise gross prejudice will be caused to be interest of the petitioner and its dependents".

The averments made in the supplementary affidavit clearly shows that the family of deceased Sri A.P. Mishra cannot be said to be in penurious condition and the age of the petitioner No.2 at the time of making application for compassionate appointment in the year 2001 was 36 years and now he must be around 53 years of age and, therefore, the findings of the Central Administrative Tribunal, Allahabad Bench, Allahabad that the petitioner No.2 was major at the time of death of his father and, therefore, in a position to earn his livelihood cannot be faulted with. It is further required to be stated that the application on compassionate basis is not vested right but only an ameliorating relief for financial constraint bereaved family has suffered and no one has vested right to claim the same. This legal position has been reiterated by this Court and also by the Hon'ble Apex Court. In the case of "MGB Gramin Bank Vs. Chakrawarti Singh, (2014) 13 SCC 583", the Apex Court had held as under:-

"6. 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.

7. In Umesh Kumar Nagpal v. State of Haryana & Ors., (1994) 4 SCC 138, this Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court observed as under: (SSC pp.140-141, paras 2, 4 & 6)

"2. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased..... The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.

4. The only ground which can justify compassionate employment is the penurious condition of the deceased's family.

6. The consideration for such employment is not a vested right.... The object being to enable the family to get over the financial crisis."

(Emphasis added)

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

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

In view of the above factual and legal position, the orders passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad as well as by the respondent No.2, impugned in the writ petition, cannot be faulted with.

Accordingly, the writ petition fails and is hereby dismissed. However, there shall be no order as to costs.

Order Date :- 07.11.2017

Ruchi Agrahari