Kunal Sharma vs State Of Uttar Pradesh Through ...
2021 Latest Caselaw 8082 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 7310 of 2021
 

 
Petitioner :- Kunal Sharma
 
Respondent :- State Of Uttar Pradesh Through Sec. Industrial Dev.
 
Counsel for Petitioner :- Ashish Kumar
 
Counsel for Respondent :- K N Singh
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard learned counsel for the petitioner, Shri Surya Bhan Singh, learned Standing Counsel for the State respondents and Shri Sachit Dwivedi, Advocate holding brief of Shri K.N. Singh, learned counsel for New Okhla Industrial Development Authority (NOIDA).

Kunal Sharma has invoked the remedy under Article 226 of Constitution of India questioning the validity of order dated 23.11.2020 passed by respondent no.3/General Manager, Personal, New Okhla Industrial Development Authority, Noida. Further prayer has been made to condone the delay/relax the limitation for filing the application for compassionate appointment and consider the claim of petitioner for compassionate appointment.

It appears that father of petitioner, Late Rajendra Kumar Sharma was working as Helper in the respondent Authority. He died in harness on 12.02.2002. At the time of his death, the petitioner was not born.

Learned counsel for the petitioner submits that after the death of sole bread earner, the family of the deceased employee has lived in great distress and suffered financial crisis. Even the petitioner could not complete his studies due to lack of financial support. After attaining the age of majority, the petitioner has moved an application for compassionate appointment on 22.09.2020 but the respondent-Authority, in most arbitrary manner, had rejected the claim of the petitioner on 23.11.2020, without considering the rules, regulations or administrative instructions and the financial condition of the family. The order is unsustainable in the eyes of law. The order impugned is liable to be tested in the light of parameters laid down by the Full Bench of this Court in Special Appeal no.3560/2012 (Shiv Kumar Dubey vs. State of U.P. and others).

Per contra, counsel for the respondents submits that rightful order has been passed as the petitioner has moved an application after lapse of 18 years, whereas the maximum age limit provided in the relevant provisions are five years from the date of death of the deceased employee and as such, no interference is required in the matter.

Heard rival submissions and perused the record.

The object of compassionate appointment is just to mitigate the financial crisis being faced by the family of the deceased employee. It is not a hereditary right. Admittedly, after the death of the deceased employee in the year 2002, till now the family has survived. The petitioner was not born at the time of death of his father and now after lapse of more than 18 years, he is settling a claim for compassionate appointment, which has rightly been negated by the department.

A Division Bench of this Court in Writ petition No.10211 of 2015, Kumari Kamlesh Vs. Union of India and Others in a case where the bread winner of the family died on 26.07.1981 while still in service and the applicant for grant of compassionate appointment was made on 15.12.1995 after the applicant had attained the age of majority, the Division Bench of this Court relying on several Supreme Court decisions held as under:

"The Supreme Court in Commissioner of Public Instructions & Ors. Vs. K.R. Vishwanath dealt at length with the object regarding compassionate ground and observed:-

"As was observed in State of Haryana and Ors. v. Rani Devi & Anr. (AIR 1996 SC 2445), it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in-harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased-employee. In Rani Devi's case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of India v. Asha Ramachandra Ambekar (Mrs.) and Anr. (1994 (2) SCC 718), it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. (1994 (4) SCC 138), that as a rule in public service appointment should be made strictly on the basis of open invitation of application and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement 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."

In Smt. Sushma Gosain and Ors. v. Union of India and Ors. 1989 (4) SCC 468, it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. 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. The above view was reiterated in Phoolwati (Smt.) v. Union of India and Ors., 1991 Supp (2) SCC 689, and Union of India and Ors. v. Bhagwan Singh 1995 (6) SCC 476. In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. 1998 (5) SCC 192, it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely 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 ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased-employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision."

In Umesh Kumar Nagpal Vs. State of Haryana & Ors, (1994) 4 SCC 138, the Supreme Court observed:-

"The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of 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. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destination and to help it get over the emergency..................For these very reasons, the compassionate employment cannot be granted after a lapse of reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."

The aforesaid decisions of the Supreme Court leave no manner of doubt that though the claim for appointment on compassionate grounds cannot be upheld on the touchstone of Article 14 or 16 of the Constitution but such a claim can be considered to be reasonable and permissible on the basis of sudden crisis occurring in the family of the employee who dies while in service. The appointment on compassionate grounds, therefore, cannot be claimed as a matter of right but can be claimed only in terms of the Rules or Regulations framed in this regard and that the Courts cannot confer ''benediction impelled by sympathetic consideration' dehors the Rules. Such an appointment, therefore, should be immediately provided to a member of the family to redeem the sudden financial crisis in the family.

In Sanjay Kumar Vs. The State of Bihar & Ors, 2000 (10) SC 156 the Supreme Court again considered the case for compassionate appointment made by a minor after he attained majority and it was observed as follows:-

"We are unable to agree with the submissions of the learned senior counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread-earner who had left the family in penury and without any means of livelihood. In fact, such a view has been expressed in the very decision cited by the petitioner in Director of Education and another v. Pushpendra Kumar and others, (supra). It is also significant to notice that, on the date when the first application was made by the petitioner on 2.6.88, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time, as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief."

The aforesaid decision emphasises that the appointment on compassionate grounds is given to tide over the immediate difficulties faced by the family of the deceased. It has also been emphasized by the Supreme Court that a minor cannot claim appointment on compassionate ground unless the Scheme itself envisages that as and when such a minor becomes a major, he can be appointed without any time consciousness or time limit. To grant any relief to him would be clearly contrary to the decisions of the Supreme Court where the cases of minors had been considered and rejected on the ground that there cannot be a reservation of vacancy till such time as the minor becomes a major.

Thus, in view of the aforesaid, it is not possible to accept the claim of the petitioner that he should be given appointment on compassionate ground after a period of more than 14 years."

The Supreme Court in the case of Jagdish Prasad V. State of Bihar and another reported in (1996) 1 SCC 301 dismissing the appeal filed by the son of deceased employee held in paragraph 3 as under:

"3. It is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that,therefore, the court is required to examine whether the appointment should be made on compassionate grounds. We are afraid, we cannot accede to the contention. The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words,if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased Government servant which cannot be encouraged,de hors the recruitment rules."

The Supreme Court in the case of Haryana State Electricity Board and another V. Hakim Singh reported in (1997) 8 SCC 85 has observed that If the family members of the deceased employee can manage for fourteen years after his death one of his legal heirs cannot put forward a claim as though it is a line of succession by virtue of a right of inheritance. The object of the provisions should not be forgotten that it is to give succor to the family to tide over the sudden financial crisis befallen the dependants on account of the untimely demise of its sole earning member.

The Supreme Court in the case of State of J & K and others V. Sajad Ahmed Mir reported in AIR 2006 SC 2743 in paragraph 17 has held as under:

"17. In the case on hand, the father of the applicant died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was dismissed by the learned single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. The said fact was indeed a relevant and material fact which went to show that the family survived in spite of death of the employee. Moreover, in our opinion, the learned single Judge was also right in holding that though the order was passed in 1996, it was not challenged by the applicant immediately. He took chance of challenging the order in 1999 when there was inter-departmental communication in 1999. The Division Bench, in our view, hence ought not to have allowed the appeal."

A Full Bench of this Court while deciding Special Appeal No.356 of 2012, Shiv Kumar Dubey vs. State of U.P. and others alongwith other connected cases has formulated the principles governing appointments on compassionate grounds under the Dying in Harness Rules, 1974. The principles elucidated in para 29 of the judgment read as follows:-

"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 26 C.M.W.P. No. 13102 of 2010 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."

Thus in view of the law settled by the Supreme Court and the Full Bench of this Court, I find no merit in the writ petition and the same is accordingly dismissed.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 16.7.2021

A. Pandey