Raj Kumar Maurya vs Union Of India And 3 Others
2021 Latest Caselaw 8277 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 34
 

 
Case :- WRIT - A No. - 7930 of 2021
 

 
Petitioner :- Raj Kumar Maurya
 
Respondent :- Union Of India And 3 Others
 
Counsel for Petitioner :- Vineet Kumar Singh
 
Counsel for Respondent :- Vivek Ratan Agrawal
 

 
Hon'ble Yashwant Varma,J.

The Court has heard Sri Vineet Kumar Singh learned counsel for the petitioner and Sri Vivek Ratan Agarwal learned counsel who has appeared for the respondent Bank.

The petitioner assails a decision dated 1 June 2021 taken by the respondents denying his claim for appointment on compassionate grounds. The Competent Authority of the respondents by the impugned order has agreed with the recommendations and report submitted by a three members committee constituted in accordance with the applicable Scheme. In an earlier round of litigation1, the decision of the respondents was quashed by the Court upon it being found that the General Manager had acted without jurisdiction in proceeding to deal with the claim himself rather than placing it before the three member committee as required under the Scheme. It was consequent to the direction of remand as issued on that writ petition that the matter came to be placed before the respondents again.

The Committee while refusing the prayer for appointment on compassionate grounds has essentially taken into consideration the following salient facts:-

a. The deceased at the time of death had about 20 months of service left and was survived by his wife, one son [the petitioner here] and two married daughters;

b. The petitioner at the time of making the said application was 34 years and 6 months old; he held a graduate degree in Arts awarded to him in 2005;

c. The family had received net financial benefits to the tune of Rs. 35,33,338 at the time of death of the employee;

d. While the last drawn salary of the deceased employee was Rs. 57612, the net monthly income of the family from all sources was Rs. 48472; this included the sum of Rs. 20,000 per month being received in the form of family pension.

On the basis of the aforesaid facts, the Committee firstly opined that the family could not be said to be facing a severe financial crisis or being left in a state of penury. It has then referred to the fact that in terms of the extant rules governing appointments to the clerical cadre, the maximum age is prescribed to be 21 to 28 years with a further relaxation of 3 years in case of applicants belonging to the OBC category. They have found that the petitioner was 39 years old in June 2021 and was over age even when he had initially applied [being 34 years and 6 months old] for being accorded appointment on compassionate basis.

Too often the Court is called upon to consider challenges to denial of requests for compassionate grounds addressed essentially on purely legal grounds with petitioners abjectly failing to establish a situation of financial destitution which is a sin qua non for the grant of a request for appointment on compassionate grounds. It must at the outset be noted that learned counsel for the petitioner neither questioned nor assailed the findings recorded by the Committee with respect to the financial resources of the family of the deceased employee, the quantum of terminal benefits paid or the monthly family pension which was being drawn.

It thus becomes important to firstly notice the salient principles which must govern the grant of compassionate appointment. The Court need not burden this judgment with a plethora of decisions rendered on the subject except to recall the judgment rendered by the Full Bench of the Court in Shiv Kumar Dubey Vs. State of U.P And Others2. Lucidly explaining the principles which must weigh while considering requests for appointment on compassionate basis the Full Bench observed:-

"(29) (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.

(30) As regards the judgment of the Division Bench in Vivek Yadav (supra), the first part of the judgment of the Division Bench in Vivek Yadav's case holds in paragraph 4 that since Rule 5 contemplates an application by a competent person, in a case where the applicant is a minor, it will not be possible for a minor to make an application during the period of his minority. Therefore, considering the object of the Rules, it was held that the proviso to Rule 5 must normally be exercised in such cases. This observation, with respect, requiring that the proviso to Rule 5 must normally be exercised for the purpose of dealing with a case in a just and equitable manner would not be reflective of the correct position in law. The subsequent decision in Subhash Yadav (supra) only holds that the Government cannot dismiss an application which has been moved after five years blindfolded but has to apply its mind rationally to all the facts and circumstances of the case. In this regard, we clarify that the second proviso to Rule 5 requires an applicant, who invokes the power of dispensation or relaxation under the first proviso of the time limit of five years, to make out a case of undue hardship by elucidating, in writing, with necessary documentary evidence and proof, the reasons and justification for the delay. The Government may, in an appropriate case, when it is satisfied on the basis of the material that a case of undue hardship is made out, exercise the power which is conferred upon it under the first proviso to Rule 5 of the Rules but this power has to be exercised where a demonstrated case of undue hardship is made out to the satisfaction of the State Government. We answer the reference accordingly in the aforesaid terms."

Tested on the anvil of the aforesaid principles, it becomes necessary to note that the petitioner has miserably failed to establish or prove that the family is facing a financial crisis. As noted above, the petitioner himself is 39 years old and had obtained his Graduate degree in 2005. The writ petition carries no details with respect to his financial or employment status. Learned counsel for the petitioner further apprised the Court that he is married and has five children. Upon being queried further, it was submitted that the petitioner used to impart private tuition. His income from the aforesaid vocation has not been disclosed. The sisters of the petitioner are already married and living with their respective families. The writ petition does not assert or establish that they are dependent either upon the widow of the deceased employee or the petitioner here.

While the aforesaid position on facts as found would have been sufficient to uphold the decision of the respondents, since learned counsel also articulated certain legal challenges, it would be apposite to briefly notice and deal with the same before closing proceedings on this writ petition.

Learned counsel would contend that the finding with respect to the petitioner being overage has come to be returned against the letter and spirit of the Scheme. According to him, Clause 7.1 of the Scheme confers ample discretion in the respondents to relax the maximum age requirement and offer appointment to the petitioner notwithstanding the fact that he was 39 years old. In order to appreciate the submission, the Court extracts Clause 7.1 of the Scheme which reads thus:-

"7.1. Upper age limit could be relaxed wherever found to be necessary. The lower age limit should, however, in no case be relaxed below 18 years of age.

(Note-1: Age eligibility shall be determined with reference to the date of application and not the date of appointment;

Note-2: Authority competent to take a final decision for making compassionate appointment in a case shall be competent to grant relaxation of age limit also for making such appointment)."

However the aforesaid clause cannot be read in isolation and in any case without also noticing Clause 5.2 which is in the following terms:

"5.2 Applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules. Recruitment Rules will mean the norms which are in force at the time of making the compassionate appointment."

Clause 5.2 embodies the principal command to the competent authority, namely to ensure that the applicant is "eligible and suitable for the post...". As would be evident from a conjoint reading of Clauses 5.2 and 7.1, while a power to relax the upper age limit does stand conferred, that power cannot possibly be recognised as being entitled to be exercised overriding the express stipulations in respect of eligibility that may otherwise operate. Harmoniously construed, this Court has no doubt that the power to relax the upper age limit would have to be in sync and in any case subservient to the provisions otherwise governing recruitment in the respondent Bank. Clause 7.1 cannot be viewed as providing a carte blanche to the competent authority to either countermand or overwrite the provisions otherwise stipulating age for entry into service. The power to relax must be recognised as being available to be exercised only within the band of flexibility provided in the recruitment rules.

The respondents have noted that even if the benefit of a three year relaxation was extended to the petitioner as available to other applicants belonging to the OBC category, he would still be overage. The maximum age prescribed under the relevant rules is 21-28 years. The petitioner was 34 years old when he initially applied and 39 years when his case was ultimately considered by the competent committee. It is thus manifest that on both occasions he was ineligible to have been offered appointment. The aforesaid ground as taken by the respondents to deny the claim for compassionate appointment is independently sufficient in law to uphold the ultimate conclusion as recorded in the impugned order.

Learned counsel lastly urged that the competent authority has merely approved the report of the committee and that the impugned order consequently deserved interference on this ground also. However, the Court notes that the competent authority had before him a detailed report drawn by the committee which dealt with all possible aspects of the matter. Thus it has committed no illegality while proceeding to affirm those conclusions.

In the end, both on account of a failure on the part of the petitioner to establish a situation of financial distress and his own ineligibility to be offered appointment, the Court finds no merit in the challenge laid.

The writ petition fails and shall stand dismissed.

Order Date :- 20.7.2021/Vivek Kr.

(Yashwant Varma, J.)