Shikha Saxena Mishra vs State Of U.P. And 3 Others
2023 Latest Caselaw 3292 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on 23.01.2023
 
Judgment delivered on 02.02.2023
 
Court No. - 34
 

 
Case :- WRIT - A No. - 7140 of 2022
 

 
Petitioner :- Shikha Saxena Mishra
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Siddharth Khare,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Chandan Agarwal
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. In present case, following dates and events are not in dispute that mother of petitioner died in harness while working as a Assistant Teacher in a Junior High School run by Board of Basic Education in district Budaun on 20.06.2012. Petitioner, a married daughter, filed an application for compassionate appointment with a no objection of her sister, soon after death of her mother, though specific date of submitting application is not on record. However, respondent no. 4 Basic Shiksha Adhikari, Budaun vide order dated 28.04.2015 as well as order dated 25.02.2016 on ground that married daughter was not included in definition of family under relevant Rules, rejected her application.

2. Petitioner approached this Court by way of filing a Service Single No. 7882 of 2016 (Shikha Saxena Mishra vs. State of U.P. and others) which was disposed of vide order dated 13.04.2016 directing respondents to consider case of petitioner in light of judgment passed by Division Bench in case of Smt. Vimla Srivastava vs. State of U.P. and others, Writ C No. 60881 of 2015, decided on 04.12.2015 whereby married daughter was also held to be entitled for compassionate appointment.

3. Case of petitioner was reconsidered, however, vide order dated 11.07.2016 it was rejected again on same ground that petitioner being a married daughter was not included in definition of family which compelled petitioner to move another writ petition Service Single No. 29421 of 2019 which was again allowed by order dated 13.01.2021 with a direction to reconsider case of petitioner afresh in accordance with law.

4. Thereafter, claim of petitioner was reconsidered vide a detailed order dated 10.12.2021 which is impugned in writ petition. Claim of petitioner was again rejected on ground that financial status of petitioner as well as her husband was found to be good and there was no ground for appointment of petitioner.

5. Sri Siddharth Khare, learned counsel for petitioner as referred a Government Order dated 17.06.2014 which was passed in compliance of a direction passed by co-ordinate Bench of this Court in case of Prakash Agrawal vs. Registrar General, High Court, Allahabad, Service Single No. 2228 of 2014 decided on 17.04.2014 in which the Bench held that appointment under Rules i.e. Rules for Compassionate Appointment cannot be refused merely on ground that financial status of petitioner is sound on basis of payment of retiral benefits after death.

6. Learned counsel submits that only on above grounds, claim of petitioner was rejected. He further referred paragraph 29 of writ petition that husband of petitioner though is a junior advocate having no income to even sustain himself, therefore, both petitioner as well as her husband were completely dependant on her mother. He also pointed out that application of petitioner was filed well in time and delay, if any, was due to respondents, therefore, cannot be considered adversely to petitioner.

7. Above submissions are opposed by Sri Akash Mishra holding brief of Sri Chandan Agarwal, learned counsel for respondents that scope of compassionate appointment is to tide over immediate financial crisis and in present case, mother of petitioner died in harness in the year 2012, therefore, financial crisis, if any, in all probability have surpassed during last 10 years and he placed reliance upon judgment of Supreme Court in State of Maharashtra and another v. Madhuri Maruti Vidhate (Since After Marriage Smt. Madhuri Santosh Koli), 2022 SCC OnLine SC 1327 that whole object of granting compassionate appointment to enable family to tide over sudden crisis.

8. Heard leaned counsel for parties and perused record.

9. Before dealing with rival submissions, a few paragraphs of judgment passed by Supreme Court in Central Coalfields Limited through its Chairman and Managing Director and Others vs. Parden Oraon, 2021 SCC Online SC 299 which are relevant are mentioned hereinafter -:

"8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The 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 the job is offered to the eligible member of the family1. It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a significant lapse of time and after the crisis is over.

9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the Respondent's son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the Respondent's husband is missing since 2002. Two sons of the Respondent who are the dependents of her husband as per the records, are also shown as dependents of the Respondent. It cannot be said that there was any financial crisis created immediately after Respondent's husband went missing in view of the employment of the Respondent. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, we are convinced that the Respondent's son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondent's husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondent's son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing."

(emphasis supplied)

10. It is well settled that scope of compassionate appointment is to tide over immediate financial crisis and that already ten years have passed since mother of petitioner died.

11. Learned counsel for petitioner has not disputed details of property either named of petitioner or her husband which includes a house and two plots. However, a vague submission has been made that there is no income from said property. The averment of learned counsel for petitioner that her husband though an advocate is not earning is also not supported by any document i.e. any details of passbook or I.T. returns, if any.

12. Definition of family has now been amended which includes married daughter also. However, law remains same for compassionate appointment that it is for tide over immediate crisis. Mother of petitioner died in 2012 and there is no material on record that petitioner is still financially weak to claim compassionate appointment. It is also not in dispute that petitioner has received money after death of her mother in family partition including properties and she has utilized that money in purchasing a property which also shows that there is no financial crisis.

13. In these circumstances, though petitioner has approached respondent authorities within prescribed period, however, benefit, if any, on ground of being married daughter was available with petitioner only after a judgment passed by this Court in December, 2015 i.e. after three years of death of her mother.

14. Above referred factual aspect as well as legal position, as discussed above, it cannot be construed that petitioner and her husband are in financial crunches so that she requires compassionate appointment to tide over financial crisis. Details of property and money received during partition also shows that financial position of petitioner and her husband is quite good. There is another factor which also goes against petitioner that scope to grant compassionate appointment to tide over immediate financial crisis has already been over.

15. As death of mother of petitioner was occurred a decade ago and looking to condition of petitioner and her husband, no case for interference is made out.

16. Accordingly, petition lacks merit and is dismissed.

Order Date :- February 02, 2023

Nirmal Sinha

[Saurabh Shyam Shamshery, J.]