Mahesh Kumar Dixit vs U.O.I. Thru. Secy.,Min.Of ...
2017 Latest Caselaw 7009 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 7
 

 
Case :- SERVICE BENCH No. - 27864 of 2017
 
Petitioner :- Mahesh Kumar Dixit
 
Respondent :- U.O.I. Thru. Secy.,Min.Of Communication,Deptt.Of Posts & Ors
 
Counsel for Petitioner :- Saurabh Lavania,Himanshu Kamboj
 
Counsel for Respondent :- A.S.G.
 

 
Hon'ble Anil Kumar,J.

Hon'ble Daya Shankar Tripathi,J.

Heard Sri Saurabh Lavania, learned counsel for the petitioner and Sri S.B. Pandey, learned Additional Solicitor General of India.

Facts of the present case, in brief, are that the petitioner's father Surya Bhan Dixit, who was working in the Postal and Telegraph Department, Government of India, due to his medical health was unable to discharge his duties, as such the request has been made that looking into the financial condition of his family, who is in harness, his son Mahesh Kumar Dixit (petitioner) may be given compassionate appointment.

On 18.03.1998, the petitioner was approved for appointment in the Postal Department on the post of Postal Assistant. However, the petitioner has not been given his actual posting, so he filed O.A. No. 1250 of 2002 before the Central Administrative Tribunal, Allahabad Bench, Allahabad. On the assurance given by the Officer respondent that he will be appointed in Postal Assistant Cadre, the petitioner/claimant withdrew the said original application vide order dated 27.11.2002. Thereafter, on 22.07.2003 an order of appointment was issued to him on the post of GDS and the petitioner/claimant has accepted the terms and conditions of the said appointment and has been engaged in a part time job of Gramin Dak Sevak with promise that as soon as the vacancy of Postal Assistant exists, he would be appointed. Thereafter, in the year 2015, petitioner/claimant filed Original Application No. 20 of 2015 with the following relief:-

"(a) quash and set-aside the order dated 5.12.2014 as contained in Annexure no. A-1 and direct the Opposite parties to appoint the applicant in Postal Assistant cadre as per their allotment order dated 18.03.1998 as contained in Annexure no. A-10.

(b) Any other relief deemed just and proper be also granted in favour of the applicant with costs of the O.A."

By means of the order dated 8th September, 2017, the Central Administrative Tribunal, Lucknow Bench, Lucknow has dismissed the said original application filed by the petitioner with the following observations:-

"9. In the case of Shiva Kanti (supra), the applicant was the widow of Postal employee (Group 'D'), who died in harness. In the year 1997, her appointment on compassionate ground was approved by the Chief Postmaster General, U.P. Circle, Lucknow, but later-on she was asked to give her consent for appointment on the post of GDS on the ground that no post is available under 5% quota meant for compassionate appointment. It was alleged that one Smt. Dubhai was offered appointment on compassionate ground ignoring the claim of the applicant. The Tribunal observed that once having approved the appointment of the applicant, she should have been offered the appointment in preference to the claim of a person, who has been considered subsequently and the respondents were directed to consider the claim of the applicant and appoint her on any available post in any of the Divisions. The facts of the case are distinguishable from the case, in hand. The applicant of the said O.A. had neither consented to join on the post of GDS, nor he worked on such post. In the instant case, the applicant was offered the post of GDS and it was clearly mentioned in the offer letter dated 22.7.2003 that he will not claim for appointment on any regular departmental vacancy and he will be governed under the GDS (Conduct & Employment) Rules, 2001 as amended from time to time.

10. In view of terms and conditions mentioned in the appointment letter dated 22.7.2003, the applicant has lost his claim for appointment on the post of Postal Assistant on compassionate ground as he had consented to join the post of GDS leaving the claim for appointment on the post of Postal Assistant and he has also worked on the post of GDS for about 14 years."

Sri Saurabh Lavania, learned counsel for the petitioner/claimant submits that the impugned order passed by the Central Administrative Tribunal, Lucknow Bench, Lucknow thereby rejecting the original application filed by the petitioner is wholly illegal and arbitrary, as the petitioner is entitled for appointment on the post of Postal Assistant in regular cadre in Postal and Telegraph Department, Government of India, so the impugned order is liable to be set aside.

Sri S.B. Pandey, learned counsel for the respondents while rebutting the contention as raised by Sri Saurabh Lavania, learned counsel for the petitioner, submits that once the petitioner has accepted the terms and condition of the appointment letter dated 22.07.2003, by which he has been given appointment on the post of Extra Departmental Agent/Gramin Dak Sevak on compassionate ground, he cannot take 'U turn' and raise his grievance after 14 years in respect to give appointment on the post of Postal Assistant Cadre, so the present writ petition is liable to be dismissed.

Sri Saurabh Lavania, learned counsel for the petitioner in rebuttal submits that the appointment of the petitioner is temporary in nature, so he can very well claim the appointment on higher post in permanent nature.

We have learned counsel for the parties and gone through the record.

The recruitment/appointment on the basis of compassionate ground is exception and no person has any right to claim appointment on the post of a particular status. The intention is to provide immediate financial help to the bereaved family of the deceased employee who has demised in harness leaving the family in penury. The compassionate appointment is not a regular source of recruitment and the employee cannot claim that he should be conferred or is entitled as a matter of right, a particular post of a particular status.

The object and purpose of compassionate appointment is to provide assistance to the bereaved family of the deceased employee, who has suffered a shock and financial scarcity due to sudden demise of the sole bread-earner. Neither the provisions pertaining to compassionate appointment confers any status nor provides reservation of a vacancy as it is not a source of recruitment where under a person as and when becomes eligible may apply and claim appointment.

In the case of Umesh Kumar Nagpal v. State of Haryana and Ors.,1994 (68) FLR 1191 (SC) it was held that as a Rule, in public service appointment should be made strictly on the basis of open invitation of applications on merit. The appointment on compassionate ground is not another source of recruitment, but merely an exception to the aforesaid recruitment taking into consideration the fact of the death of 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. But such 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.

Again in Director of Education (Secondary) and Anr. V. Pushpendra Kumar and Ors. 1998]3SCR432, the Apex Court observed as under:

"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-earned 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 the ends meet, a provision is made for giving gainful appointment to one of the dependants 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. Care has, therefore to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to general provision, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds for the dependant of a deceased employee."

In Sanjay Kumar v. State of Bihar and Ors. JT 2000 (10) SC 156, the Apex Court reiterated that the compassionate appointment is provided only to enable the family of the deceased employee to tide over sudden crises resulting due to the death of sole bread-earner who had left family in penury without any means of livelihood but it cannot be treated to be a reserved vacancy for the dependants of the deceased Government servant who died in harness.

In the case of Haryana State Electricity Board v. Krishna Devi, 2002 (LL) 773, the Apex Court while reiterating the objective of compassionate appointment as laid down in the earlier cases further observed that the 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.

In the case of Commissioner public instructions and Ors. v. K.R. Vishwanath, 2005 (107) FLR 153 the Apex Court has 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 envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit."

In the case of State of Madhya Pradesh and others Vs. Ramesh Kumar Sharma, AIR 1994 SC 845, Hon'ble the Apex Court has held that in the matter in respect to appointment on compassionate ground, the applicant has got not right to any particular post of his or her choice.

In view of the said facts, once the petitioner has accepted the appointment as per terms and conditions of the appointment order dated 22.07.2003 for appointment on the post of Extra Departmental Agent/Gramin Dak Sevak, then he cannot raise a claim for appointment on a higher post after lapse of 14 years.

So far as the argument advanced by learned counsel for the petitioner that the appointment of the petitioner is purely temporary in nature on the post of Extra Departmental Agent/Gramin Dak Sevak is concerned, it is noteworthy to mention here that as per judgment in the case of Ravi Karan Singh Vs. State of U.P. and others, 1999(3) UPLBEC 2263, a Division Bench of this Court has held that an appointment under the Dying-in-Harness Rules has to be treated as a permanent appointment. In this regard, the petitioner can raise his grievance separately, if so advised.

For the foregoing reasons, we do not find any illegality or infirmity in the impugned judgment passed by Central Administrative Tribunal, Lucknow Bench, Lucknow dismissing O.A. No. 20 of 2015 (Mahesh Kumar Dixit Vs. Union of India and others).

In the result, the writ petition is dismissed with the observation made hereinabove.

Order Date :- 17.11.2017

SR

[Daya Shankar Tripathi, J.]  [Anil Kumar, J.]