State Of U.P ... vs Abdul Malik & Anr.
2017 Latest Caselaw 7243 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 7
 
Case :- SERVICE BENCH No. - 28786 of 2016
 
Petitioner :- State Of U.P Thru.Prin.Secy.Industries Deptt. Lko. & 2 Ors.
 
Respondent :- Abdul Malik & Anr.
 
Counsel for Petitioner :- C.S.C.
 
Counsel for Respondent :- C.S.C,L.K.Pathak
 

 
Hon'ble Anil Kumar,J.

Hon'ble Daya Shankar Tripathi,J.

Heard Sri Hari Govind Upadhyay, learned counsel for petitioner-State, Sri L.K. Pathak, learned counsel for respondent No. 1 and perused the record.

Facts in brief of the present case are that father of Abdul Malik/respondent No. 1, late Abdul Baki Siddiqui was working on the post of Foreman in Government Printing Press, Aishbagh, Lucknow, died during the tenure of his services, as the family of the deceased was in harness, so Abdul Malik/respondent No. 1 submitted an application for considering his case for compassionate appointment.

By an order dated 21.08.1995, he has been given compassionate appointment on the post of Junior Clerk in the Government Printing Press, Aishbagh, Lucknow, subsequently, the same was modified by an order dated 16.01.1997 passed by competent authority thereby giving appointment to respondent No. 1/Abdul Malik on the post of Copy Holder in Government Printing Press, Aishbagh, Lucknow on compassionate ground and joined his duties on the said. While he was working and discharging his duties on the post of Copy Holder, he raised his grievances that one Sri Sunil Kumar, similarly situated to him has been given compassionate appointment on the post of Reviser cum Copy Holder in the year 1995 as per Government Order dated 13.12.1995, so he may also be appointed on the post of Reserve cum Copy Holder.

Thereafter Dy. Director (Incharge), Government Printing Press, Aishbagh, Lucknow had issued a letter inter alia recommending the case of the respondent No. 1 for giving compassionate appointment on the post of Reviser cum Copy Holder, no heed has been paid, so he approached the State Public Service Tribunal, Lucknow (hereinafter referred to as the Tribunal) by filing Claim Petition No. 1242 of 2011 (Abdul Malik Vs. Stae of U.P. and others) with a prayer that the competent authority may be directed to consider his case for compassionate appointment on the post of Reviser cum Copy Holder in the pay scale of Rs. 1200/- to 1800/- w.e.f. 16.01.1997 as provided in Appexdix ''A' of The Rules, known as Uttar Pradesh Printing and Stationary Technical Services Rules, 1995 (hereinafter referred to as the Rules, 1995). Thereafter, the Tribunal allowed the claim petition by order order dated 29.04.2015 with the following direction:-

"On consideration on the facts, record and arguments the point for considration is whether the appointemnt of the petitoner on the post of copy holder in payscale of Rs. 950-1500/- is legally justifiable or not. Whgile considerting this aspects of the matter, we have gone thorugh the record and found that it is admitted that when the peittoner was initially appointed on the post of junior clerk in the payscale of Rs. 950-1500/- then he gave a representation to Staet Govt. to consider him for appointment on the post of Reviser cum Copy Holder in the payscale of Rs. 1200-1800/-. The State Govt. directed O.P.s. to appoint him as Reviser cum Copy Holder in the payscale of Rs. 1200-1800/- vide its order datsed 27.11.1996 . Once the matter has been decided by the State and the O.P.s, had two options:-

1. They should complied the order of the State Govt.

Or

2. If they dis-agreed with the order of State Govt. then they should have referred the matter back to the Govt.

But they have neither sent back the matter to the State Govt. nor complied the order of the State Govt. and appoint him in the pay scale of Rs. 950-1500/- as copy holder. This is violation of Govt. Order dated 27.11.1996. Further the argument that the post of Reviser cum copy holder has been bifurcated into copy holder and Reviser cum copy holder is not legally sustainable because Rules of 1995 cannot be over ruled by the Govt. Order. The Govt. Order dated 31.07.1996 provides that change in designation will be effected only after amendment in the Service Rules of 1995 which has not been done till today. Moreover, the mater decided by the Govt. cannot be questioned by the Director and the appointment of the petitioner in the pay scale of Rs. 950-1500/- as Copy Holder is in violation of the Govt. Order dated 03.01.1996. Hence, we are of the view that there is a ground to consider the relief as prayed by means of this claim petition."

Thereafter, Review petition No. 142 of 2015 has been filed before Tribunal, dismissed by an order dated 24.08.2016

Learned State counsel while challenging the impugned orders passed by U.P. State Public Service Tribunal submits that under U.P. Recruitment of Dependents of Government Servant (Dying in Harness) Rules, 1974 (hereinafter referred to as the Rules, 1974), compassionate appointment is given to the dependents of the deceased employee to meet the financial crises caused due to the sudden demise of the bread earner and once the said benefit has been given to the family member of the deceased then in that circumstances he cannot ask the same for another post after accepting the same earlier, so the order passed by Tribunal is contrary to law.

He further submits that in the rpesent case after accepting the compassionate appointment on the post of Copy Holder in the year 1997, after lapse of 15 years he raised his grievances for gving compassionate appointment on the post of Reviser cum Copy Holder in the pay scale of Rs. 1200-1800/-, so in the background of the siad facts and the basic concept as to give compassionate appointment to provide livelihood to family members of the deceased, so the order passed by the Tribunal thereby allowing the claim petition of the respondent No. 1 to give him compassionate appointment on the psot of Reviser cum Copy Holder is contrary to the provisions of Rules, 1974.

He further submits that the appointment on the post of Reviser cum Copy Hodler is to be made by way of promotion as per the Rules, 1995, so keeping in view the said facts, the direction given by the Tribunal thereby appointing the claimant/respondent No. 1 on the post of Resrever cum Copy Holder is contrary to law.

Accordingly, it is submitted by learned State Counsel that the orders passed by Tribunal are liable to be set aside.

Sri L.K. Pathak, learned counsel for respondent No. 1/Abdul Malik submits that in the presnet case initially respondent No. 1 has been given compassionate appointment on the post of Junior Clerk, however he did not join on the said post and the Government order was issued in his favaour in the year 1996 (27.11.1996) that his case for appointment on compassionate ground be considered on the post of Reviser cum Copy Holder as in the identical circumstances one Sri Sunil Kumar has been given appointment on the said post, however, nothing has been done on one hand and on the other hand vide order dated 16.01.1997, the respondent No. 1/Abdul Malik's appointment on the post of Junior Clerk has been cancelled, given appointment on the post of Copy Holder and formal letter issued for appointment on 17.01.1997 thereby appointing him on the post of Copy Holder.

He further submits that as per Rules, 1995, the post of Reviser cum Copy Holder is a single post so it is deemed that the respondent No. 1 was once appointed on the post of Copy Holder is being appointed on the post of Reviser cum Copy Holder in view of the Government Order dated 27.11.1997 as the similarly situated person has been appointed on the said post, as such the recommendation has been made by authority concerned/Joint Director, Government Printing Press, Aishbagh, Lucknow to the competent authority to appoint him on the said post, however when no heed has been paid, respondent No. 1 approached Tribunal and Tribunal has rightly issued a direction thereby directing the appointing authorty to obey the direction given by the higher authority and the competent authority is bound by the said direction and in alternative the Tribunal has also held that if appointing authority is disagree to the same he should refer the same to the Government, as such there is no illegality or infirmity in the impugned judgment passed by the Tribunal under challenge in the present writ petition.

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

It is settled law that compassionate appointment cannot be regarded as a method of recruitment. Unlike selecting the best of the candidates by preparing a panel in respect of qualification and suitability of the candidates after evaluating their comparative merits for suitability for the post, in the case of compassionate appointment the only consideration is the comparative adverse pecuniary circumstances; the worse it is the more the chance for favourable consideration. If any panel is prepared, it is in relation to such indigent family conditions only and not on respective merit of candidates in the list awaiting consideration for compassionate appointment .

Appointment on compassionate grounds is not a method of recruitment but is a facility to provide for immediate rehabilitation of the family in distress, for relieving the dependent family members of the deceased employee from destitution. (See. Dhalla Ram Vs./ Union of India AIR 1999 SC 564)

In State of Haryana Vs. Suraj Bhan, 1996 (3) SCC, the Supreme Court held that in case of Driver who was medically decategorised compensation may be arranged/allowed, but he is not entitled to get compassionate appointment in respect of his son. In Hindusthan Aeronautics Ltd. Vs. A.S. Radhiki Thirumalai, 1996 (6) SCC 394, the Supreme Court held that compassionate appointment could not be claimed as a matter of vested right.

The matter is no longer res integra, Supreme Court has summarized the factors that are required to be consdiered in case for compassionate appointment. Iin the case of Bhawani Prasad Sonkar Vs. Union of India, 2011 (4) SCC 209. These are:-

Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.

An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.

An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the bread winner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.

Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee, viz. Parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.

Reverting to the facts of present case, respondent No. 1's father late Abdule Baki Siddiqui was employee in the Government Printing Press, Aishbag, Lucknow who died during the tenure of his services and his family was in harness at that time, so respondent No. 1 submitted an application for compassionate appointment and initially the Dy. Director by order dated 17.01.1997has given appointment on the post of Junior Clerk in the Government Printing Press, Aishabagh, Lucknow on compassionate basis, however, respondent No. 1 did not join on the said post and he raised his grievances that in view of the Government Order dated 27.11.1996, he should be appointed on the post of Revisor cum Copy Holder claiming parity with one Sri Sunil Kumar, thereafter the said order was cancelled and subsequent order was passed by the competent authority thereby giving respondent No. 1 appointment on the post of Copy Holder and on the said post he has joined and after joining on the said post he again raised his grievances after lapse of 15 years that he should be appointed on the post of Resivor cum Copy Holder.

It is late in dispute to quarell that the compassionate appointment is given to a person looking into pecuniary condition of the family members of the deceased who are in harness 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 for 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 confer 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. (See. Umesh Kumar Nagpal v. State of Haryana and Ors.,1994 (68) FLR 1191 (SC), Sanjay Kumar v. State of Bihar and Ors. JT 2000 (10) SC 156, Haryana State Electricity Board v. Krishna Devi, 2002 (LL) 773, Commissioner public instructions and Ors. v. K.R. Vishwanath, 2005 (107) FLR 153, State of Madhya Pradesh and others Vs. Ramesh Kumar Sharma, AIR 1994 SC 845 )

Thus, when the respondent No. 1 voluntarily joined and accepted the appointment on the post of Copy Holder, thereafter started working and discharging his duties, so the grievances raised by him at a belated stage i.e. after 15 years that he should be given appointment on the post of Revisor cum Copy Holder cannot be in any manner considered under the compassionate appointment, so the finding given by the Tribunal in the impugned judgment that the competenet authority is bound by the ordre passed by the State Government and if disagree with the it then they have to options, namely, (a) should comply the order of the State Govenrment or (b) disagree with the order of State Government then they should have refer the matter back to the Government, are the direction which are totally in contravention to the very aims and objects of the appointment as per the U.P. Recruitment of Dependents of Government Servant (Dying in Harness) Rules, 1974.

So far as the argument raised by Sri L.K. Pathak, learned counsel for respondent No. 1 that one Sri Sunil Kumr has been given appointment on the post of Revisor cum Copy Holder as per Government Order, so respondent No. 1 is also entitled for the same, it is settled principle of law that the benefit of Article 14 of the Constitution of India cannot be given in negative manner as well as 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.

For the foregoing reasons, the orders dated 29.04.2015 passed in Claim Petition No. 1242 of 2011 (Abdul Malik Vs. State of U.P. and others) and order dated 24.08.2016 passed in review petition No. 142 of 2015 by U.P. State Public Service Tribunal are set aside.

In the result, writ petition is allowed.

Order Date :- 24.11.2017

Ravi/

(Daya Shankar Tripathi, J.)  (Anil Kumar, J.)