Sandeep Kumar Yadav vs State Of U.P. Through Its ...
2022 Latest Caselaw 15157 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 
Case :- WRIT - A No. - 269 of 2011
 
Petitioner :- Sandeep Kumar Yadav
 
Respondent :- State Of U.P. Through Its Principal Secy.Home Detp.Lucknow
 
Counsel for Petitioner :- Mandeep Kumar Mishra,Aakash Srivastava,Alok Kumar Srivastava,Manish Kumar Jaiswal,Sunil Mohan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saurabh Lavania,J.

Heard learned counsel for the parties.

In view of the facts stated in the affidavits filed in support of the applications [(C.M. Application Nos. 436 of 2020 and 437 of 2020) (Applications for condonation of delay and recall)] the same are allowed.

The order dated 31.07.2019, dismissing the petition for want of prosecution, is hereby recalled.

The writ petition is restored to its original number.

By means of present petition, the petitioner has challenged the order dated 27.04.2010 as also the order dated 07.05.2010 passed by respondent Nos. 1 & 4 respectively. The orders impugned relate to providing appointment on compassionate ground.

It is stated by the learned counsel appearing on behalf of the petitioner that the father of the petitioner was expired on 24.03.1991 and at relevant point of time, he was working on the post of constable in P.A.C. and as the petitioner was minor i.e. about 4 years old, he could not apply for that post on compassionate ground at point of time. After attaining the age of majority i.e. 18 years in the year 2005, the petitioner applied for compassionate appointment on appropriate post in the year 2007. The matter of appointment of the petitioner on compassionate ground was referred to State Government and vide order dated 27.04.2010, the State Government rejected the claim of the petitioner for appointment on compassionate ground and based upon the same the impugned order dated 07.05.2010 was passed.

The law on the issue for providing compassionate appointment is well settled. The Supreme Court in the case of Commissioner of Public Instructionsv.K.R. Vishwanath(2005) 7 SCC 206 laid down the following principles:--

"...the claim of person concerned for appointment on compassionate ground is based on the premises 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. ...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."

Further certain principles of law have been laid down by the Supreme Court in the case ofV. Shivamurthyv.State of Andhra Pradesh(2008) 13 SCC 730, namely:--

"(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.

(b) Two well recognized contingencies which are carved out as exceptions to the general rule are:

(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the bread-winner while in service.

(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the bread winner.

Another contingency, though less recognized, is where land holders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project affected persons. (Particularly where the law under which the acquisition is made does provide for market value and solatium, as compensation).

(c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies.

(d) Compassionate appointments are permissible only in the case of a dependant member of the family of the employee concerned, that is, spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, Classes III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts."

Further, the Supreme Court in the case ofChief Commissioner, Central Excise and Customs, Lucknowv.Prabhat Singh(2013) (5) AWC 5062 (SC) has held that compassionate appointment is not a gift to all those who seeks court's intervention and the Court may issue directions in the case where appointment on compassionate ground, could deprive a really needy family requiring financial support, and thereby, push into penury a truly indigent, destitute and impoverished family. Relevant portion of the said judgment is quoted below:--

"We are constrained to record that even compassionate appointments are regulated by norms. Where such norms have been laid down, the same have to be strictly followed...The very object of making provision for appointment on compassionate ground, is to provide succor to a family dependent on a government employee, who has unfortunately died in harness. On such death, the family suddenly finds itself in dire straits, on account of the absence of its sole bread winner. Delay in seeking such a claim, is an anti thesis, for the purpose for which compassionate appointment was conceived. Delay in raising such a claim, is contradictory to the object sought to be achieved... Courts and Tribunals should not fall prey to any sympathy syndrome, so as to issue directions for compassionate appointments, without reference to the prescribed norms. Courts are not supposed to carry Santa Claus's big bag on Christmas eve, to disburse the gift of compassionate appointment, to all those who seek a court's intervention. Courts and Tribunals must understand, that every such act of sympathy, compassion and discretion, wherein directions are issued for appointment on compassionate ground, could deprive a really needy family requiring financial support, and thereby, push into penury a truly indigent, destitute and impoverished family. Discretion is therefore ruled out. So are, misplaced sympathy and compassion."

A division Bench of this Court in the case ofVishal Singhv.State of U.P.reported in 2018 (2) ESC 1036 (All.) (DB) was pleased to hold that the appointment on compassionate ground is given to tide over the immediate financial difficulties faced by the family of the deceased and that a minor cannot claim appointment on compassionate ground unless scheme itself envisages that as and when such minor becomes major, he can be appointed without any time limit.

Considering the facts of the case particularly the huge delay of about 16 years in claiming compassionate appointment by the petitioner which can be deduced from the fact that after attaining the age of majority in the year 2005, the petitioner applied for compassionate appointment in the year 2007 and his father, who was a Government servant, expired in the year 1991 as also taking note of the pronouncements of Apex Court as well as of this Court on the issue, this Court is of the view that no interference is called for in the matter. The petition is thus dismissed.

Order Date :- 31.10.2022/Arun/-