Ajay Kumar Singh S/O Late ... vs State Of U.P. Through Prin. Secy. ...
2019 Latest Caselaw 825 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20                 AFR
 
Case :- SERVICE SINGLE No. - 7047 of 2011
 
Petitioner :- Ajay Kumar Singh S/O Late R.B.Singh
 
Respondent :- State Of U.P. Through Prin. Secy. Home U.P. Govt. Lko. & Ors
 
Counsel for Petitioner :- Ajay Kumar Singh,Lalendra Pratap Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajnish Kumar,J.

Heard, Shri Lalendra Pratap Singh, learned counsel for the petitioner and Shri Anil Chaubey, learned Standing Counsel.

Brief facts of the case, as emerge from the pleading, for disposal of the present writ petition are that the father of the petitioner had died during service on 01.08.1997. The mother of the petitioner had applied in the year 1998 for compassionate appointment and moved several representations but no decision was taken thereon. However with the efflux of time she was not willing for employment. Therefore the whole family decided for suitable employment of the petitioner on compassionate ground under dying-in-harness rules. It appears that some representation was preferred by her before the State Government and in response to the quarry of the State Government, the Superintendent of Police, Karmik, U.P., while sending the information vide letter dated 23.09.1998 stated that the required information is being sought from the concerned department and after receipt of the same, it would be provided. At endorsement no.4 of the said letter, the mother of the petitioner was asked that if she wants employment or for any of her son or daughter then she may contact to the Senior Superintendent of Police, Lucknow / CBCID, Lucknow. The petitioner, after attaining the age of majority on 28.03.2001 preferred an application for compassionate appointment. The mother of the petitioner had also submitted an affidavit dated 06.12.2001 stating therein that she has no objection in appointment of petitioner on compassionate ground. After completing his high school in the year 2004, the petitioner again preferred his application before the concerned authorities for suitable employment. The petitioner has completed his B.A in the year 2009.

The respondents considered the application of the petitioner and the petitioner was directed to appear before the Chief Medical Officer, Lucknow for medical examination by means of the letter dated 22.02.2005. In pursuance thereof the petitioner appeared before the Chief Medical Officer, Lucknow and his medical was conducted. The matter was referred to the State Government in view of proviso to the Rule-5 of 'The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974' for relaxation being beyond five years. The State Government rejected the claim of the petitioner on the ground that the petitioner had applied on 30.07.2004, after seven years of death of his father and after considering the financial condition of the family found that the petitioner is not eligible for relaxation. Accordingly in pursuance thereof the impugned order dated 14.06.2010 was passed by means of which the claim of the petitioner for compassionate appointment has been rejected. Therefore the petitioner has approached this Court by means of the present writ petition.

Submission of the learned counsel for the petitioner is that on account of death of father of the petitioner during service the mother of the petitioner had applied for compassionate appointment under dying in harness rules. But on account of her illness she could not pursue her application for compassionate appointment. However in pursuance of letter dated 23.09.1998 of Superintendent of Police, Karmik, the mother of petitioner had submitted an application / affidavit for appointment of the petitioner on compassionate ground on 06.12.2001. The petitioner had also, on attaining the age of majority, applied on 28.03.2001. Therefore, there was no delay in making the application. He further submitted that on the application of the petitioner the medical of the petitioner was got conducted in which he was found fit, therefore it was obligatory on the part of the opposite parties to appoint the petitioner under dying-in-harness rules on compassionate ground.

Lastly, learned counsel for the petitioner admitted that there was delay in making the application for compassionate appointment. But submitted that even in such a case the claim is to be considered in the light of undue hardship faced by the family. The undue hardship faced by the family has not been properly considered by the State Government while deciding the application for relaxation of limitation. This Hon'ble Court in a bunch of writ petitions leading being Writ-A No.30675 of 2013 (Antariksha Singh Vs. State of U.P and others) vide judgment and order dated 19.07.2018 has held that while deciding undue hardship if total income from all the sources of the family exceeds from the salary of the deceased employee then it can be said that no undue hardship will be caused to the family and for relaxation of delay in considering the application for compassionate appointment, undue hardship faced by the family of deceased employee is the relevant consideration. Therefore, the impugned order is liable to be quashed and the petitioner is liable to be appointed on compassionate ground.

On the other hand, learned Standing Counsel Submitted that the petitioner had applied with a delay of seven years on 30.07.2004. His mother could have made an application for appointment immediately after the death of father of the petitioner, if she was facing undue hardship and the financial condition of the family was not good. But she had not made any application. Therefore the application of the petitioner has rightly been rejected.

I have considered the submission of learned counsel for the parties and perused material placed on record by the parties.

The submission of learned counsel for the petitioner that immediately after the death of father of the petitioner on 01.08.1997, the mother of the petitioner had applied for compassionate appointment but on account of illness she could not pursue the same is misconceived and wrong because nothing has been brought on record to substantiate that the mother of the petitioner had applied for appointment on compassionate ground. An application dated 29.08.1998 contained in Annexure No.8 (Page-40 to the writ petition) indicates that the mother of the petitioner had only claimed the dues of her deceased husband.

In this regard the averment made in paragraph-6 of the writ petition is relevant in which it has been stated that "the wife of the deceased Smt. Gayatri Devi applied for her appointment on any suitable post on the basis of compassionate ground, but with the efflux of time she is not willing for employment, the whole family unanimously decided for the suitable employment of the petitioner being the eldest son on the basis of compassionate ground under dying-in-harness rules, and the mother of the petitioner i.e wife of the deceased preferred an application and affidavit in this respect to the concerned authorities". There is no whisper of any illness of mother of petitioner. It is also apparent from the averment that there was a collective decision of family for suitable employment of petitioner on compassionate ground. Therefore it appears that the family wanted a suitable employment for petitioner after completion of his studies, which is not the purpose of appointment on compassionate ground under dying-in-harness rules.

Admittedly, the letter dated 23.09.1998 was received by the mother of the petitioner because the learned counsel for the petitioner submitted that in pursuance thereof the mother of the petitioner had submitted an affidavit dated 06.12.2001, but it is clear that for three years she did not take any action or claimed appointment for herself or any of her children and only after attaining the age of majority by the petitioner and making application by him she submitted an affidavit giving her consent and no objection for appointment of the petitioner on compassionate ground. Therefore it is apparent that in pursuance of the letter dated 23.09.1998, no application was submitted by the mother of the petitioner for more than three years. Therefore this contention of the learned counsel for the petitioner is also misconceived and wrong therefore not acceptable.

The petitioner, after attaining the age of majority, had applied on 28.03.2001 for compassionate appointment and the mother of the petitioner had submitted an affidavit on 06.12.2001 that she has no objection in appointment of the petitioner on compassionate ground and he is entitled for it. It is apparent from the material placed on record and as admitted by learned counsel for the petitioner that the petitioner had not taken any action for about three years thereafter and after passing high school examination in the year 2004 he preferred an application for suitable appointment. Therefore, it appears that since the petitioner was not in immediate need and he was not eligible for the suitable post to which he wanted on compassionate ground he had not taken any action for all these years and after passing the high school he approached to the authorities for appointment on compassionate ground.

The claim of petitioner was beyond five years so after medical examination, the matter was referred to the State Government for consideration for relaxation in accordance with law. Therefore the contention of the learned counsel for the petitioner that since his case was considered and he was found medically fit therefore it was obligatory on the part of the opposite parties to appoint the petitioner is misconceived and not acceptable because the petitioner could not have been appointed without grant of relaxation by the Government in accordance with the rules. It is also pertinent to note that the petitioner had not taken any action for more than five years after his medical examination on 31.03.2005. It was only after rejection of his claim by means of the order dated 14.06.2010, the petitioner had approached this Court claiming the appointment on compassionate ground.

In view of above it is apparent that the petitioner or his family had no need of immediate relief and financial assistance for survival of family.

The purpose of the compassionate appointment is to give immediate relief to the family in case of death of bread earner of the family.

A full bench of this Court in the case of Shiv Kumar Dubey and Others Vs. State of U.P and Others; 2014 (2) ADJ 312 (FB) considered the question of appointment on compassionate ground under dying-in-harness rules and after considering several judgments of this Court and the Hon'ble Apex Court formulated the principles which must govern the compassionate appointment in pursuance of dying-in-harness rules in paragraph 29 of the judgment which are reproduced as under:-

"29. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules:

(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."

The Hon'ble Apex Court in the case of State of Jammu and Kashmir and Others. Vs. Sajad Ahmed Mir (2006) 5 SCC 766 has held as under:-

"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."

The Hon'ble Apex Court in the case of Santosh Kumar Dubey Vs. State of U.P and Others (2009) 6 SCC 481 has held that the father of the appellant had died in the year 1981 and about 18 years had passed and the family could survive and successfully faced and overcome the financial difficulties that they faced on missing of the earning member therefore it is not a fit case. The relevant paragraph nos.11, 12 and 13 of the said judgment are reproduced as under:-

"11. 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.

12. 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.

13. In the present case, the father of the appellant became untraceable in the year 1981 and for about 18 years, the family could survive and successfully faced and overcame the financial difficulties that they faced on missing of the earning member. 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."

In the present case the father of the petitioner had died in the year 1997 and about 22 years have passed.

The Supreme Court in the case of Chief Commissioners of Customs & Central Excise, Lucknow Vs. Prabhat Singh; (2013) 1 UPLBEC 357 has held that delay in seeking such a claim is an antithesis for the purpose for which compassionate appointment was conceived. Delay in raising such a claim is contradictory to the objects sought to be achieved and courts and tribunals should not fall prey to any sympathy syndrome, so as to issue directions for compassionate appointments, without reference to the prescribed norms.

The delay in making the application for compassionate appointment and lackadaisical approach of petitioner itself indicates that there was no such financial crises and the grounds for delay that the mother of the petitioner was ill and not in a position to serve can not be accepted that too without any proof. In case the family was in dire need on account of the death of the bread earner then the mother of the petitioner could have applied for the job and accepted the same.

So far as the argument of learned counsel for the petitioner that undue hardship faced by the family has not been considered is concerned, nothing has been pleaded or brought on record or argued to controvert the consideration made in this regard in the impugned order. However in the present case, it is immaterial also because in spite of death of bread earner, the family survived and substantial period is over. The plea of the petitioner that mother of the petitioner had applied immediately after death of his father also seems to be false as discussed above so the petitioner has also not come with clean hands. Therefore the petitioner is not entitled for any relief and benefit of the judgment relied by him.

The Hon'ble Supreme Court in the case of Umesh Kumar Nagpal Vs. State of Haryana; (1994) 4 SCC 138, has held that the compassionate appointment can not be granted after a lapse of reasonable period and the consideration for such employment is not a vested right which can be exercised at any time in future.

In view of above I am of the considered opinion that the claim of the petitioner has rightly been considered and rejected by means of the impugned order. The writ petition has been filed on misconceived and baseless grounds which lacks merit and is liable to be dismissed.

The writ petition is accordingly dismissed.

No order as to costs.

Order Date :- 8.3.2019 (Rajnish Kumar, J.)

Haseen U.