Vijay Laxmi Yadav vs State Of U.P. Thru. Addl. Chief ...
2021 Latest Caselaw 6686 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 12
 

 
Case :- SERVICE SINGLE No. - 12955 of 2021
 

 
Petitioner :- Vijay Laxmi Yadav
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home & Ors.
 
Counsel for Petitioner :- Ganga Prasad Srivastava,Rishi Kumar Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Irshad Ali,J.

1. In view of COVID-19 pandemic, this case is being heard through video conferencing.

2. Heard learned counsel for the petitioner and learned ACSC for the respondent - State.

3. Brief fact of the case is that petitioner's father died on 22.07.1985 while holding the post of Constable. At that time the petitioner was minor as her date of birth is 03.02.1984 and after attaining majority on 02.02.2002, she moved an application on 02.02.2005 for grant of compassionate appointment under Dying in Harness Rules, 1974.

4. Learned counsel for the petitioner submitted that the petitioner is repeatedly requesting to the respondents to ensure appointment on the compassionate ground in accordance with her qualification, however, the respondents are sitting tight over the matter and are not taking decision in the matter.

5. A query was made to learned counsel for the petitioner that why the petitioner approached to this court after a long spell of time of almost 15 years, he submitted that after attaining majority, the petitioner was continuously making applications before the respondent department but the same could not be decided and now she has filed the present writ petition before this court. He submitted that in case direction is issued for consideration of claim of the petitioner, ends of justice would be met.

6. On the other hand, learned ACSC submitted that there are latches of more than 15 years on the part of the petitioner in approaching this court from the date she attained majority and moved an application for grant of compassionate appointment, therefore, she is not entitled for grant of appointment on compassionate ground under Dying in Harness Rules, 1974.

7. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

8. Relevant fact for consideration before this Court is that father of the petitioner was working as Constable under Civil Police and was posted under Superintendent of Police, Azamgarh. He died on 22.07.1985 by sustaining a bullet injury while an encounter with dacoits in district Azamgarh and at that time the petitioner was minor. She attained majority on 02.02.2002 and moved an application for grant of compassionate appointment under Dying in Harness Rules, 1974 on 02.02.2005 and reminder to the same was moved on 02.09.2020.

9. Grant of appointment on compassionate grounds in the respondent - department is regulated and governed by the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974.

10. The concept of dying in harness is unique to Service Law Jurisprudence.

11. The validity of the concept of appointments on the basis of an employee dying in harness was called in question before the courts. The constitutional validity of the aforesaid appointments soon came to be tested. The compassionate ground appointments passed the test of constitutional validity by a slender margin. The justification to make compassionate ground appointments was provided on the footing that the kin of the deceased stood on the brink of financial penury or faced an immediate financial crisis on account of the death of working member of the family. This feature alone constituted the kin of a deceased employee into one class and on the footing alone the rationale of compassionate ground appointments was justified.

12. It would be apposite to reinforce the narrative with good authority.

13. The purpose of compassionate appointments provides their justification. The death of a bread winner forces the family of the deceased into penury. The immediacy of the financial crisis creates the requirement for urgent redressal. The concept of compassionate appointments is created only to enable the bereaved family to tide over the immediate financial crisis.

14. The Hon'ble the Supreme Court in the case of Umesh Kumar Nagpal Vs. State of Haryana, reported at (1994) 4 SCC 138, explained the purpose of compassionate appointment as under:

"2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. 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 of 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 destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."

15. A similar sentiment was echoed by the Hon'ble Supreme Court in the case of Director of Education (Secondary) vs. Pushpendra Kumar, reported at (1998) 5 SCC 192 in the following terms:

"8. 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-earner 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 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 by taking away completely the right conferred by 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 the general provisions, 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 of the dependant of a deceased employee. In Umesh Kumar Nagpal Vs. State of Haryana [(1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that 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. In that case the Court was considering the question whether appointment on compassionate grounds could be made against posts higher than posts in Classes III and IV. It was held that such appointment could only be made against the lowest posts in non-manual categories. It was observed: (SCC p. 140, para 2) "The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."

16. However, there is a caution. Compassionate ground appointments are an exception and cannot be made the rule. The exception can be maintained only by strictly adhering to the pre-conditions of the appointment in a strict fashion. A relaxation in the aforesaid pre-conditions would open a floodgate of appointments on compassionate grounds. It will turn the compassionate ground appointments into a regular source of recruitment. The constitutionally accepted mode of appointment to public office or any other post under the State Government or its instrumentalities is by open and transparent recruitment process. Such recruitment process would invite eligible persons from the open market to compete for appointment. This process is consistent with the mandate of Article 14 and Article 16 of the Constitution of India.

17. It was with this constitutional mandate in mind that the Hon'ble Supreme Court in the case of Mumtaz Yunus Mulani Vs. State of Maharashtra, reported at (2008) 11 SCC 384 cautioned that compassionate appointment were not an alternative mode of recruitment to public employment, by laying down as under:

"However, it is now a well-settled principle of law that appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis."

18. The Hon'ble Supreme Court reiterated the purpose and limitations of compassionate ground appointment in the case of State of Haryana Vs. Ankur Gupta, reported at (2003) 7 SCC 704 and held as under:

"6. As was observed in State of Haryana Vs. Rani Devi [(1996) 5 SCC 308 : 1996 SCC (L&S) 1162 : JT (1996) 6 SC 646] it need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the premise that he was dependent 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. InRani Devi case [(1996) 5 SCC 308 : 1996 SCC (L&S) 1162 : JT (1996) 6 SC 646] it was held that the 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 LIC of India Vs Asha Ramchhandra Ambekar [(1994) 2 SCC 718 : 1994 SCC (L&S) 737 : (1994) 27 ATC 174] it was pointed out that the 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 contemplate such appointments. It was noted in Umesh Kumar Nagpal Vs. State of Haryana [(1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] that as a rule, in public service appointments should be made strictly on the basis of open invitation of applications 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 the 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.

7. In the case of Director of Education (Secondary) Vs. Pushpendra Kumar [(1998) 5 SCC 192 : 1998 SCC (L&S) 1302] it was observed that in the 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 grant 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."

19. It was in the experience of the State Government that a large number of applications for compassionate ground appointments were made much after the death of the government servants. Rule 5 of the said Rules provides for the said contingency. Rule 5 authorizes the State Government to condone the delay in making of an application for an appointment on compassionate grounds. The State Government undoubtedly has the power to condone the delay in filing of an application for appointment on compassionate grounds. However, while considering the scope of such power, purpose of compassionate ground appointments can not be lost sight of. The stated purpose which is the only justifiable ground for such appointments, is that the family which is facing immediate financial crisis, should be supported by providing an employment to a member of such family to tide over the crisis.

20. Only present and imminent financial crisis provides the sole justification for making appointments on compassionate grounds. Delay in making such applications for appointment on compassionate grounds raises a presumption that the immediate financial crisis has been tided over. Lifting of the immediate financial penury, denies the justification for making an appointment on compassionate grounds.

21. The criteria of financial hardship faced by the family of the deceased caused by his death, provides a thin membrane of legitimacy to compassionate appointments. Bereft of this thin cover of legitimacy or if any other criteria is employed to make compassionate appointments, the appointments would become vulnerable to a constitutional challenge. Appointments based on descent or claims of appointment which rest on heredity, invite the wrath of Article 16 of the Constitution of India.

22. It would be apposite to fortify the narrative with good authority.

23. The Hon'ble the Supreme Court set its face against appointments based on descent in the case of Bhawani Prasad Sonkar Vs Union of India and Others and spoke as under:

"Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve."

"In Umesh Kumar Nagpal vs. State of Haryana [(1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] , while emphasising that a compassionate appointment cannot be claimed as a matter of course or in posts above Classes III and IV, this Court had observed that: (SCC p. 140, para 2)

1. "2. ... The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. 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 of 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 destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."

"Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:

(i) 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.

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

(iii) 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 breadwinner 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.

(iv) 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."

24. A similar view against impermissibility of appointments based on descent was taken at an earlier point in time in the case of V. Sivamurthy Vs. State of Andhra Pradesh, reported at (2008) 13 SCC 730, wherein it has been provided as under:

"18. (a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are a well-recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies."

25. Delay in making a claim for compassionate grounds appointment dilutes the case of immediate financial penury and consequently negates the entitlement for appointment on compassionate grounds.

26. Appointments on compassionate grounds cannot wait for the claimants to attain majority or to enable them to acquire additional qualifications and get a better deal in appointments. In fact, such grounds militate against claim for compassionate grounds appointment.

27. The Hon'ble Supreme Court in the case of Sanjay Kumar Vs. State of Bihar and Others reported at 2000 (7) SCC 192 reiterated the purpose of a compassionate grounds appointments to tide over the sudden crisis resulting from the death of the earner in a family. However, the reservation of a vacancy to enable such person to attain majority was negatived by the Hon'ble Supreme Court by holding thus:

"3. 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 breadearner 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 Vs. Pushpendra Kumar [(1998) 5 SCC 192 : 1998 SCC (L&S) 1302 : (1998) 2 Pat LJR 181] . It is also significant to notice that on the date when the first application was made by the petitioner on 2-6-1988, 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."

28. A Division Bench of this Court after citing good authority, also concluded that financial penury ceased to exist in case an application was made long years after the death of the employee in the case of Smt. Sonal Lavaniya and another Vs. Union of India and another reported at 2003 (5) AWC 4070 has been held as under:

"38. The purpose of providing such an employment has been to render the financial assistance to the family, which has lost the bread earner immediately after the death of the employee. If the application has been filed after expiry of 9 years the element of immediate need stood evaporated and there was no occasion for the respondents to consider the case of the petitioner for such a relief. The observation made by the learned Tribunal are in consonance with the law laid down by the Hon'ble Apex Court and no exception can be taken out."

29. A similar view was taken by learned Single Judge of this Court in the case of Sanjeev Kumar Vs. Food Corporation of India and Others; Writ A No. 11083 of 2018, order dated 03.05.2018, wherein it has been held as under:

"In a case of compassionate appointment, it is the immediacy of appointment that is of prime consideration to ameliorate the financial hardship be falling the bread winner of the family. If the family of the bread winner or the claimant has managed to survive for 27 years after the death of the government servant, it cannot be said that there is any immediacy of the appointment. Compassionate appointment is an exception to the well established Rule of equality in the matter of recruitment to government service and therefore exceptional grounds must exist to justify such appointment."

30. The question of delay in filing applications for appointment under Dying-in-harness Rules and the consequences of such delay on the right to be appointed on compassionate grounds was posed to a Full Bench of this Court in the case of Shiv Kumar Dubey Vs. State of U.P. reported at 2014 (2) ADJ 312. For ease of reference, the relevant part of the judgment is reproduced hereunder:

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

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;

[emphasis supplied]

(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;

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;

[emphasis supplied]

(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;

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;

[emphasis supplied]

(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;

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;

[emphasis supplied] 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." (emphasis supplied).

31. The facts of the case found earlier shall now be considered in the light of the judicial authority stated in the preceding part of the judgment.

32. The father of the petitioner died in harness on 22.07.1985. The petitioner made an application for grant of appointment on compassionate grounds on 02.02.2002. Delay in making the application for appointment on compassionate grounds, is defended on the sole ground, that on the date of death of the father of the petitioner, the petitioner was minor. The petitioner applied for appointment on compassionate grounds when she attained majority.

33. The petitioner has approached this Court more than 15 years after the cause of action arose. The issue of delay and laches on the part of the petitioner, raised by learned Additional Standing Counsel, shall now be considered. The writ petition is barred by delay and laches. The petitioner has approached this Court almost after more than 15 years from the date of death of her father. There is no satisfactory explanation for laches and the delay in filing the petition on the part of the petitioner.

34. In view of the delay in filing the application, for grant of appointment on compassionate grounds, this Court consistent with the narrative in the earlier part of the judgment, finds that the financial crisis, if any, occasioned by the death of the father of the petitioner, was not existing when the application for grant of compassionate grounds appointment was made by the petitioner. There is no lawful basis for grant of appointment on compassionate grounds to the petitioner.

35. Emotional distress and financial penury are two distinct facts. Emotional distress occasioned by the death of the employee is not material for appointment on compassionate grounds. Immediate financial penury, caused to the family by the death of the employee, is the only relevant consideration for appointment under dying-in-harness rules.

36. The courts have consistently observed that delay and laches on part of the litigant will lead to denial of relief. In this regard the Hon'ble Supreme Court has settled the law with clarity and observed it with consistency.

37. In the wake of preceding discussion, the writ petition is devoid of merit and is hereby dismissed.

Order Date :- 28.6.2021

Adarsh K Singh