Arti vs State Of U.P. And 3 Others
2021 Latest Caselaw 11318 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Chief Justice's Court
 
Fresh List
 
Serial No. 3
 

 

 
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
***
 
Case :- SPECIAL APPEAL No. - 278 of 2021
 
(In Writ-A No. 2045 of 2021)       
 

 
Arti									 ... Appellant
 
			
 
		Through:- Mr. Ashutosh Mani Tripath, Advocate
 

 
v/s
 

 
State of U.P. and others 					       ... Respondents
 
	
 
		Through:-  Mr. P.K. Ganguly, Standing counsel
 

 

 
Coram:  HON'BLE RAJESH BINDAL, CHIEF JUSTICE
 
	     HON'BLE PIYUSH AGARWAL, JUDGE
 
ORDER

RAJESH BINDAL,C.J.

1. This intra-Court appeal filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, is directed against the order dated 24.09.2021 passed by learned Single Judge dismissing the Writ Petition.

2. The facts, in brief, are that the appellant's father, Late Jagdish Narain Mishra, was working as Assistant Teacher (L.T. Grade) in Sri Bhola Nath Shanti Niketan Inter College, Belwa Bazar, Mariahu, Jaunpur (hereinafter referred to in short as "College"). He died during service on January 21, 2005, leaving behind his wife, son Ashutosh Mishra, and two daughters, Anju and the appellant, Arti. At that time the appellant claimed to be unmarried.

However, it appears that subsequently the appellant got married sometime in the year 2006-07. As per own case of the appellant, as stated in Annexure-5 to the writ petition, she applied for compassionate appointment on October 24, 2008 under the U.P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974 (hereinafter referred to in short as "the Rules"). The application of the appellant seeking compassionate appointment was rejected by the District Inspector of Schools, Jaunpur (hereinafter referred to in short as "DIOS") vide order dated September 9, 2011/ December 13, 2012 on the ground that after examining the matter, it has come to his notice that the applicant, Arti, is married. Aggrieved against the same the appellant filed Writ Petition (Writ-A) No. 21185 of 2013 challenging the aforesaid order passed by DIOS. The learned Single Judge finding that despite being married, the petitioner is not excluded from the definition of the family as defined under Rule 2(c) of the Rules, allowed the writ petition vide order dated January 06, 2020 and set aside the aforesaid order passed by the DIOS. The learned Single Judge further directed the DIOS to reconsider the appellant's claim for compassionate appointment and observed that the candidature of the petitioner would not be ignored only for the reason that she is a married daughter. Pursuant to the aforesaid order dated January 06, 2020, the DIOS reconsidered the claim of the appellant regarding compassionate appointment and rejected the same vide order dated 29.12.2020. Feeling aggrieved, appellant filed Writ Petition (Writ-A) No. 2045 of 2021, which has been dismissed by learned Single Judge vide order dated 24.09.2021 affirming the order passed by DIOS, which is under challenge.

4. The learned Single Judge, while dismissing the writ petition of the appellant, has noticed the reasons given by of DIOS in the order rejecting the claim of the appellant for compassionate appointment and observed as under:

"A perusal of the impugned order records that late Sri Jagdish Narayan Mishra was survived by four persons, his wife, his son Ashutosh Mishra, his daughter Anju Devi and petitioner Arti Mishra. In respect of the petitioner, it is recorded that she has got married 15 years ago and her husband is employed, and finding that no hardship existed so as to consider the case for appointment of the petitioner, the application was rejected."

5. Despite repeated opportunity, learned counsel for the appellant could not point out any illegality, irregularity or infirmity in the aforesaid findings recorded by learned Single Judge. Moreover, even before this Court, despite opportunity, learned counsel for the appellant could not establish from the record the penury condition of the appellant or the family of the deceased so as to entitle her for consideration of her request for compassionate appointment sympathetically. He also could not satisfy the Court as to why the application seeking compassionate appointment was made at such a belated stage.

6. It is well settled that if the family had sufficient means to carry on its affairs for long time, in such a case compassionate appointment cannot be made. The purpose of compassionate appointment is not to provide employment by succession but it is to meet immediate hardship arose due to sudden demise of sole bread earner of the family leaving behind the legal heirs in penury.

7. In Mumtaz Yunus Mulani Vs. State of Maharashtra and others (2008) 11 SCC 384, the Court held that now a well settled principle of law is that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or public sector undertakings 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 sudden financial crises.

8. The purpose of compassionate appointment is not for providing a post against post. It is not reservation in service by virtue of succession. If the family is not in penury and capable to maintain itself for a long time, no mandamus would be issued after a long time for providing compassionate appointment to a legal heir of the deceased employee. In Santosh Kumar Dubey Vs. State of U.P. and others JT 2009 (8) SC 135 and M/s Eastern Coalfields Ltd. Vs. Anil Badyakar and others JT 2009(6) SC 624 the Apex Court has declined to issue any mandamus after expiry of a long time. In Santosh Kumar Dubey Vs. State of U.P.'s case (upra) after considering the Rules the Apex Court said that if family of the deceased has been able to survive, after five years no mandamus or direction should be issued for giving compassionate appointment.

9. Recently, the Supreme Court in State of Himachal Pradesh and Anr. vs. Shashi Kumar reported in (2019) 3 SCC 653 had an occasion to consider the object and purpose of appointment on compassionate ground. The Court referring to earlier judgment in Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 observed as under:

"21. ... it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal v. State of Haryana [ (1994) 4 SCC 138 : 1994 SCC (L&S) 930]. The principles which have been laid down in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930] have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract:

"2. ... 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. ... 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. (emphasis added)

10. The Court further referring to its earlier decision in Mumtaz Yunus Mulani Vs. State of Maharashtra's case (surpa), in para 26, observed:

"26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra (2008) 11 SCC 384 has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme."

11. Hon'ble Supreme Court very recently in Civil Appeal No. 6003 of 2021 (The State of Uttar Pradesh and others Vs. Premlata) decided on October 5, 2021, in para 10 of the judgment, referring to the above authorities on the subject, said as under:

"10. Thus as per the law laid down by this court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and 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.

(emphasis added)

12. Taking into account the above binding precedents and in view of the discussions made hereinabove, we do not find any error in the order passed by learned Single Judge, impugned herein, so as to warrant interference.

13. The appeal lacks merits and is, accordingly, dismissed.

            	      			(Piyush Agrawal)	       (Rajesh Bindal)
 
Allahabad				     	        Judge	           Chief Justice
 
15.11.2021
 
P. Sri./shiraz						
 

 

 

 

 

 
	
 
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