Arun Kumar vs U.I.O. Thru Secy. Ministry Of ...
2022 Latest Caselaw 20816 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 5
 
Case :- WRIT - A No. - 10229 of 2017
 
Petitioner :- Arun Kumar
 
Respondent :- U.I.O. Thru Secy. Ministry Of Defence New Delhi And Others
 
Counsel for Petitioner :- Ajay Sharma
 
Counsel for Respondent :- A.S.G.,Sanjeev Singh
 

 
Hon'ble Rajnish Kumar,J.

1. Heard, Shri Ajay Sharma, learned counsel for the petitioner and Shri Sanjeev Singh, learned counsel for respondents no.3 and 4.

2. This writ petition has been filed challenging the order dated 25th of July 2016 passed by the  Welfare Committee, Cantonment Board, Lucknow i.e. opposite party no.3, so far as it concerns to the petitioner, by means of which the claim of the petitioner for compassionate appointment on  account of death of his father in harness has been rejected.

3. Learned counsel for the petitioner submits that the case of the petitioner has not been considered in terms of para 11 of the scheme for compassionate appointment dated 18th  July 2013, which provides that  in deserving cases even where there is already an earning member in the family of a dependent family member may be considered for compassionate appointment, but all the factors mentioned therein have not been considered, while considering the claim of the petitioner.  Therefore the impugned order is not sustainable in the eyes of law and liable to be set aside.

4. Learned counsel for respondents no.3 and 4 submits that the claim of the petitioner has been considered in accordance with law and as per the scheme for compassionate appointment dated 18th  July 2013.  There is no illegality or error in the order impugned in considering the matter by the Board, therefore the writ petition is misconceived and is liable to be dismissed.

5. Having considered the submissions of learned counsel for the parties, I have perused the record.

6. The father of the petitioner died on 03.04.2012, while in service.  The petitioner had moved an application for compassionate appointment on 18.05.2012.  The case of the petitioner was not being considered in view of rider of 5% vacancies under the scheme of compassionate appointment, therefore the petitioner had approached this court by means of writ petition No.1784 (SS) of 2015;Arun Kumar Versus Union of India and others.  The writ petition was dismissed alongwith other connected writ petitions by means of order dated 22.04.2015 with the observation that the case of the petitioner shall be considered  strictly in accordance with the waiting list as and when the appropriate vacancy in the appropriate category meant for compassionate appointment accrues and is available in the Cantonment Board, Lucknow. Thereafter, on occurrence of vacancies, the case of the petitioner alongwith others has been considered by the Cantonment Board in its meeting held on 25th of July 2016.

7. Upon consideration of application of the petitioner,  personal interview with him, field report and inspection of his residence by the Committee, it was found that the petitioner is staying with his mother, younger brother and sister.  On the basis of inspection the condition of his house and financial condition has also been assessed.  It has also been found that the mother of the petitioner Smt. Asha is an employee  of Cantonment Board and getting  a monthly salary of Rs.28,950/- per month and a monthly pension of Rs.4,780/-. The house hold goods such as motorcycle, colour T.V. and refrigerator etc. have also been found in the house of the petitioner. It has also been considered that the petitioner is married and has two children. Considering the over all financial condition and the fact that the mother of the petitioner is in service, the petitioner has not been found fit for appointment on compassionate ground. The consideration made in regard to the petitioner is extracted here-in-below:-

"(ii) Shri Arun Kumar S/0 Late Ramesh Budhu

Date of Death of the employee 03.04.2012.  Date of application for compassionate appointment 18.05.2012.

On the basis of examination of documents submitted by Shri Arun Kumar and the personal interview held with him, field report and inspection of his residence by the committee, it was found that he is staying with his mother, younger brother and sister.  He is living in a house situated near MES power house which is basically the Cantt. Board Staff quarter originally allotted to his father an upon his death was allotted to his wife i.e. Smt. Asha who is a permanent employee of this office and getting a monthly salary of Rs.28,950/- p.m. and a monthly pension Rs.4,780/-.  House hold goods such as motorcycle, colour T.V. and refrigerator etc. are found in his house. He is married and has two children.

Keeping in view over all financial position and the fact that his mother is still employed under Cantt. Board Lucknow, his family cannot be considered to be in indigent condition i.e. without any source of income. Therefore, the Committee finds hims unfit for granting appointment  on compassionate ground and his application is recommended for rejection."

8. Paragraph 11 of the Scheme of Compassionate Appointment dated 18th July 2013 is extracted here-in-below:-

"WHERE THERE IS AN EARNING MEMBER.

(a) In deserving cases even where there is already an earning member in the family  a dependent family member may be considered for compassionate appointment with prior approval of the PDDE, the Command who, before approving such appointment will satisfy himself that grant of compassionate appointment is justified having regard to number of dependents, assets and liabilities left b the Cantonment Board employee, income of the earning member as also his liabilities including the fact that the earning member is residing with the family of the Cantonment Board employee and whether he should not be a source of support to other members of the family.

(b) In cases where any member of the family of the deceased or medically retired Cantonment Board employee is already in employment  and is not supporting the other members of the family of the Cantonment Board employee, extreme caution has to be observed in ascertaining the economic distress of the members of the family of the Cantonment Board employee so that the facility of appointment on compassionate ground is not circumvented and misused by putting forward the ground that the member of the family already employed is not supporting the family."

9. In view of the aforesaid  provision made under the Scheme for compassionate appointment the number of dependents, assets and liabilities left by the Cantonment Board employee, income of the earning member as also his liabilities including the fact that the earning member is residing with the family of the Cantonment Board employee are to be considered, which have been considered, which is reflected from the order dated 26th July 2016, which has been reproduced above.

10. In view of aforesaid consideration made by the Cantonment Board it is apparent that the case of the petitioner has been considered in terms of the aforesaid provision made in the Scheme for compassionate appointment. The petitioner has failed to point out any liability left by the deceased employee which has not been considered, which may have any bearing on the decision.

11. The appointments in the public services are made strictly on the basis of open invitation of applications and merit. The compassionate appointment is an exception to general rule of appointments in the public service, which can be made after examining the financial condition of the family of the deceased and only after specifying that if no provision of employment is made, the family will not be able to meet out the crises, the job is offered to the eligible member of the family.

12. The Hon'ble Supreme Court has considered the issue in the State of Uttar Pradesh and others Versus Premlata; (2022) 1 SCC 30. The relevant paragraphs 8 to 10 are extracted here-in-below:-

"8. While considering the issue involved in the present appeal, the law laid down by this court on compassionate ground on the death of the deceased employee are required to be referred to and considered. In the recent decision this court in Civil Appeal No.5122 of 2021 in the case of the Director of Treasuries in Karnataka & Anr. vs. V. Somashree, had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this court in N.C. Santhosh vs. State of Karnataka and Ors. reported in (2020) 7 SCC 617, this Court has summarized the principle governing the grant of appointment on compassionate ground as under:­

(i) that the compassionate appointment is an exception to the general rule;

(ii) that no aspirant has a right to compassionate appointment;

(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;

(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy;

(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.

9. As per the law laid down by this court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Article 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right.

9.1 In the case of State of Himachal Pradesh and Anr. vs. Shashi Kumar reported in (2019) 3 SCC 653, this court had an occasion to consider the object and purpose of appointment on compassionate ground and considered decision of this court in case of Govind Prakash Verma vs. LIC reported in (2005) 10 SCC 289, in para 21 and 26, it is observed and held as under:­

"21. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289, has been considered subsequently in several decisions. But, before we advert to those decisions, 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 [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:

(Umesh Kumar Nagpal case [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930] , SCC pp. 139­40, para 2)

"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. 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 non­manual 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."

"26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [Mumtaz Yunus Mulani v. State of Maharashtra, (2008) 11 SCC 384 : (2008) 2 SCC (L&S) 1077] 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. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case."

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. The object is not to give such family a post much less a post held by the deceased.

10.1 Applying the law laid down by this court in the aforesaid decisions and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the submissions on behalf of the respondent and the interpretation by the Division Bench of the High Court on Rule 5 of Rules 1974, is required to be considered.

10.2 The Division Bench of the High Court in the present case has interpreted Rule 5 of Rules 1974 and has held that ''suitable post' under Rule 5 of the Rules 1974 would mean any post suitable to the qualification of the candidate irrespective of the post held by the deceased employee. The aforesaid interpretation by the Division Bench of the High Court is just opposite to the object and purpose of granting the appointment on compassionate ground. ''Suitable post' has to be considered, considering status/post held by the deceased employee and the educational qualification/eligibility criteria is required to be considered, considering the post held by the deceased employee and the suitability of the post is required to be considered vis a vis the post held by the deceased employee, otherwise there shall be no difference/distinction between the appointment on compassionate ground and the regular appointment. In a given case it may happen that the dependent of the deceased employee who has applied for appointment on compassionate ground is having the educational qualification of Class­II or Class­I post and the deceased employee was working on the post of Class/Grade­ IV and/or lower than the post applied, in that case the dependent/applicant cannot seek the appointment on compassionate ground on the higher post than what was held by the deceased employee as a matter of right, on the ground that he/she is eligible fulfilling the eligibility criteria of such higher post. The aforesaid shall be contrary to the object and purpose of grant of appointment on compassionate ground which as observed hereinabove is to enable the family to tide over the sudden crisis on the death of the bread earner. As observed above, appointment on compassionate ground is provided out of pure humanitarian consideration taking into consideration the fact that some source of livelihood is provided and family would be able to make both ends meet.

10.3 In the present case as observed hereinabove initially the respondent applied for appointment on compassionate ground on the post of Assistant Operator in Police Radio Department. The same was not accepted by the Department and rightly not accepted on the ground that she was not fulfilling requisite eligibility criteria for the post of Assistant Operator. Thereafter the respondent again applied for appointment on the compassionate ground on the post of Workshop Hand. The case of the respondent was considered, however, she failed in the physical test examination, which was required as per the relevant recruitment rules of 2005. Therefore, thereafter she was offered appointment on compassionate ground as Messenger which was equivalent to the post held by the deceased employee. Therefore appellants were justified in offering the appointment to the respondent on the post of Messenger. However, the respondent refused the appointment on such post."

13. As per scheme of compassionate appointment dated 18th July 2013, 5% of direct recruitment vacancies are to be utilized for making compassionate appointment, therefore, unless it is found that unless some source of livelihood is provided, the family would not be able to make both ends meet, the appointment on compassionate ground is made which is an exception to the appointment on merit by open invitation, it would be unjust and unfair with the aspirants of direct selection.

14. In view of above and considering the over all facts and circumstances of the case  this court does not find any illegality or error in the impugned order.  The writ petition is misconceived and lacks merit. It is, accordingly, dismissed. No order as to costs.

.

.................................................(Rajnish Kumar,J.)

Order Date :- 13.12.2022

Banswar