Mukesh Giri vs State Of U.P. Thru. Addl. Chief ...
2021 Latest Caselaw 3195 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- SERVICE SINGLE No. - 5385 of 2021
 

 
Petitioner :- Mukesh Giri
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home,Lko.& Ors
 
Counsel for Petitioner :- Awadhesh Kumar Tiwari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Dhari Singh,J.

The petition seeks issuance of a writ in the nature of certiorari quashing the impugned order dated 18.05.2017 passed by the Secretary, Home Department, Uttar Pradesh, Lucknow and the order dated 15.01.2021, contained at Annexure 1 & 2 to the petition. The petition also seeks for issuance of a writ in the nature of mandamus to command the respondents to consider the appointment of the petitioner according to his qualification on the suitable post under the Dying in Harness Rule on the compassionate appointment.

Learned counsel for the petitioner has submitted that the petitioner's father namely Ram Tahal Giri while posted as Constable at Lucknow died on 01.03.1990 leaving behind his daughter aged 07 years and two sons namely Sanjay Giri aged 4 years and Mukesh Giri one year. Learned counsel for the petitioner has also submitted that the Senior Superintendent of Police, Lucknow sent a letter dated 26.12.1995 to the Superintendent of Police, Karmik, U.P. Police Head Quarter, Allahabad requesting therein to provide the employment to the legal heir of the deceased on attaining the age of majority under the dying in harness rules. It is submitted that the petitioner after attaining the age of majority, applied for appointment on compassionate grounds on 17.11.2008, which was denied on the ground of delay. Learned counsel for the petitioner has submitted that there is no objection in the legal heir of the deceased and Rule 5 of the Dying in Harness Rules 1974 entitles the dependent of the deceased employee to get the employment if he/she fulfills the educational qualification prescribed for the post. Learned counsel further submits that the action of the respondents in denying the employment under the dying in harness rules is absolutely illegal, arbitrary and in utter violation of the Rule 5 of the Dying in Harness Rules.

Per-contra, Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State has vehemently opposed the submissions made by the learned counsel for the petitioner and submitted that the father of the petitioner was died in the year 1990 and the petitioner has applied for the appointment on compassionate ground in the year 2008 i.e. after eighteen years from the death of his father. It is submitted that the appointment on compassionate ground is an exception and not as a rule. The appointment on compassionate grounds is given to the deceased family so that they are able to tide over the emergent financial crises and in the present case, the father of the petitioner died thirty years back and there was a huge delay when the petitioner applied for the compassionate appointment. Therefore, the petitioner is not entitled for any relief and the writ petition is liable to be dismissed.

Heard learned counsel for the parties and perused the record.

It is not disputed that father of the petitioner, had died while in service on 01.03.1990. At that time, the petitioner was minor. The petitioner moved an application seeking appointment on the compassionate ground after attaining the age of majority. This application was filed on 17.11.2008 i.e. after eighteen years. 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 employee on account of whose sudden death, the compassionate appointment is being claimed, had died long back in the year 1990. The question of providing immediate relief to the legal heirs in distress by granting such an appointment, as is sought for at the belated stage, therefore, does not arise. It should not be lost sight of that an appointment on compassionate ground in relaxation of the normal recruitment process is not to be taken as an alternative mode of recruitment. It is granted with a specified purpose taking into account the urgency of the situation. 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.

This Court vide judgement dated 25.2.2015 rendered in Writ Petition No. 1320 (S/S) of 2003 : Rangit Singh Vs. G.M. State Bank of India and others has held as under ( paras 15, 16 and 17):

15. The object of granting appointment on compassionate grounds is to enable family of the deceased employee to tide over sudden financial crisis created on the death of sole bread earner. It is provided to relieve the family of deceased employee from financial destitution and help the family to get over imminent/emergent financial emergency/crisis. Mere death of an employee in harness does not entitle his family to such source of livelihood. The government or public authority or the employer is required to examine financial condition of the family of the deceased employee and only if it is satisfied that there is emergent financial crisis in the family, a job can be offered to the eligible family member of the deceased employee. The only ground which would justify compassionate appointment is the penury condition of the family at the time of death of the employee. Such employment, irrespective of the financial condition, would be legally impermissible.

16. The above circumstances are required to exist for the reason that compassionate appointment is not a vested right to be exercised at any point in time in future. Employment on compassionate ground cannot be granted after lapse of a reasonable period. Ordinarily, employment in public service is given only in accordance with rules after inviting applications amongst the eligible persons. Giving employment on compassionate grounds is an exception, for the reasons given above.

17. In the above regards, this court takes a cue from the judgments rendered by the Hon'ble Supreme Court of India in Umesh Kumar Nagpal v. State of Haryana and others, (1994) 4 SCC 138; State Bank of India and others v. Jaspal Kaur, 2007(1) ESC 66 (SC); General Manager (D & PB) and others v. Kunti Tiwary and another, (2004) 7 SCC 271, and also decision of August 7, 2013 in MGB Gramin Bank v. Chakrawarti Sinch (Civil Appeal No.6348 of 2013 arising out of S.L.P. (C) No.13957 of 2010."

The Hon'ble Supreme Court of India in Bhawani Prasad Sonkar v. Union of India (2011) 4 Supreme Court Cases-209, considered the scope of giving employment on compassionate grounds. The following needs to be extracted from the cited judgment from para 15 :-

"15. Now, it is well settled that compassionate employment is given solely on humanitarian ground 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."

In case of Santosh Kumar Dubey Vs. State of U.P. and others, (2009) 6 SCC 481, the following has been held by the Hon'ble Supreme Court of India in paras 11 and 12 :-

"11. The very concept of giving a compassionate appointment is to tide over the financial difficulties that are 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 ground should be reasonable and proximate to the time of the death of the bread earner of the family, in as much as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crises 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."

In case of Umesh Kumar Nagpal Vs. State of Haryana reported in (1994) 4 SCC 158, the Hon'ble Supreme Court of India has observed as under : (relevant portion of paras 2, 3 and 6 )

"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 Government 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 dependents 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 dependents 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...........................

3. Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible.

6. For these very reasons, the compassionate employment cannot be granted after a lapse of a 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."

While passing the impugned order dated 18.05.2017, the competent authority assigned the reasons about the financial condition of the deceased family which is as follows :

4- ?0???0 ????? ????????, ???????? ?? ?????????? ???? ?????? ??? ??? ???? ?? ?????? 19-3-1990 ?? ?????? ?? ???? ?????? ?? ??? ??? ????????? ???? ?????? ???? ????? ???? ?????? ?????? 17.11.2008 ?? ???? ?????? ?? ??? ??? ???????? ???? ????????? ???? ???????? ???? ???? ???? ??? ?? ?????? ?? ????? ?????? ?? ?? ??? ?? ??? ???? ????? ?? ?????? ?? ??? 05 ???? ???? ????? ???? ?? ?????? ??? ???? ???? ????? ???? ?????? ???? ???? ?? ?????? ?? ???? 19.3.1990 ?? ???? 18 ???? 07 ??? 28 ???? ?? ??????? ???????? ????????? ???? ???????? ???? ??? ?? ?????? ?????? ??? ???? ?????? ?? ??? ??? ???????? ??????? ???? ???? ???? ????????? ???? ???? ?? ???-???? ?? ??????? ???? 13 ???? 07 ??? 28 ???? ?? ?????? ????? ??? ?????? ?0???0 ??????? ??? ??? ?????? ?????? ?? ???????? ?? ????? ????????-1974 (??????????) ??? ????? ??????????? ?? ???????? ???????? ???

It is settled law that the compassionate employment cannot be granted after the lapse of a reasonable period. 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 bread-earner. In the instant case, the family of the deceased have five bighas of irrigated land and also they were getting the family pension. In such circumstances, I don't find any illegality in the impugned order.

Taking into consideration the facts and circumstances brought on record, no justifiable ground has been made out warranting interference by this Court in the present proceedings under Article 226 of the Constitution of India.

This writ petition is accordingly dismissed.

Order Date :- 8.3.2021

VNP/-