Deepak Kumar vs State Of U.P. And 2 Others
2023 Latest Caselaw 7755 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 4169 of 2023
 
Petitioner :- Deepak Kumar
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Anand Mohan Pandey,Ashish Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajiv Joshi,J.

Heard Shri Anand Mohan Pandey, learned Counsel for the petitioner and learned Standing Counsel for the State respondents.

The instant writ petition under Article 226 of the Constitution of India has been filed for the following relief:-

"i) Issue a writ order or direction in the nature of mandamus commanding the respondents to consider the matter of the petitioner and appoint the petitioner as clerk (class 3) in respondents department i.e. respondent no.3 forthwith."

Brief facts of the present case are that the father of the petitioner was working as Junior Engineer in the office of Lft Sichai Khand, Allahabad and he died in harness on 09.012017 leaving behind the petitioner as legal heir. Consequent upon the death of his father, the petitioner applied for compassionate appointment on class III post but the respondent no.3, Executive Engineer, Lift Sichai Khand, Prayagraj appointed the petitioner on the post of Baildar vide order dted 20.04.2017 and the petitioner joined on the said post.

Learned Counsel for the petitioner states that the petitioner is fully eligible to be appointed on Class III post but the respondents have given him appointment on the post of Baildar, which is Class IV post.

Learned Standing Counsel states that it is admitted to the petitioner that the compassionate appointment was offered to him on 20.04.2017 and he accepted the offer and joined the post of Baildar and after about five years he filed this writ petitioner claiming that he has the qualification for Class III post.

In support of his argument he placed reliance upon the judgement of this Court dated 01.04.2022 passed in Special Appeal No.148 of 2022 (Iqbal Khan Vs. State of U.P. & Ors) in which an order passed by learned Single Judge in Writ-A No.9064 of 2019 (Iqbal Khan Vs. State of U.P. and 2 Ors) was under challenge. For ready reference the order dated 18.07.2019 passed by the learned Single Judge in Writ-A No.9064 of 2019 is quoted hereunder:-

"Petitioner had applied for compassionate appointment, consequent upon death of his father. An order was passed on 14.5.2015, declining appointment on the post of Pharmacist and offering him appointment on the post of Lab Attendant or any other post for which petitioner possess requisite qualification. Pursuant to this direction, petitioner applied for the post of Lab Attendant and has been offered appointment also. Petitioner has been working since July, 2015. He has now approached this Court with the grievance that qualification for the post of Pharmacist had been amended and that amended rule had not been taken note of as per which he is eligible for appointment to the post of Pharmacist.

Learned Standing Counsel has obtained instructions, according to which, appointment on the post of Pharmacist is to be made through U.P. Subordinate Service Selection Commission and, therefore, in view of the provision contained in Rule 5 read with rule 3 of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the 'Rules of 1974'), no compassionate appointment can be granted on such post. It is stated that the vacancies have otherwise been notified on the post of Pharmacist to the Selection Commission.

Rules of 1974 clearly provides that appointment can be offered only on a post for which recruitment is not required to be undertaken by the U.P. Subordinate Service Selection Commission.

Since post of Pharmacist is earmarked to the Commission for recruitment, the petitioner's claim for compassionate on it cannot be considered. The petitioner has been appointed on the post of Lab Attendant in July, 2015, and therefore, he has otherwise acquiesced to his appointment on the said post. There is no challenge laid to the order declining petitioner's claim on the post of Pharmacist. In that view of the matter, no relief can be granted to the petitioner. The writ petition is dismissed."

While dismissing the aforesaid Special Appeal the Court has held as under:-

"21. In a most recent judgment in the case of The State of Uttar Pradesh and others vs. Premlata in Civil Appeal No.6003 of 2021, decided on 05.10.2021, Hon'ble Supreme Court considered the provisions of U.P. Rules 1974 and summarized the principles of compassionate appointment in the context of U.P. Rules, 1974, as under:

"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. 139-40, 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 Class-II or Class-I 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 ........

11. In view of the above and for the reasons stated above, the Division Bench of the High Court has misinterpreted and misconstrued Rule 5 of the Rules 1974 and in observing and holding that the ''suitable post' under Rule 5 of the Dying-In-Harness Rules 1974 would mean any post suitable to the qualification of the candidate and the appointment on compassionate ground is to be offered considering the educational qualification of the dependent. As observed hereinabove such an interpretation would defeat the object and purpose of appointment on compassionate ground.

(Emphasis supplied by us)

In the case of Navendra Kumar Upadhyay Vs. State of U.P. and others (Special Appeal No.1601of 2012) decided on 22.10.2021, a Division Bench of this Court considered in detail the principles and object of Compassionate appointment and concluded as under :-

35. We have discussed above in detail the case of the petitioner / appellant and the principles of law on compassionate appointment laid down by this Court and by Hon'ble Supreme Court, which are briefly summarized as under: -

(a) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved;

(b) The object of compassionate appointment is to enable the family of the deceased - employee to tied over the sudden financial crisis due to death of the bread earner which has left the family in penury and without means of livelihood, it is an exception to the normal rule of public employment, it is a concession. The basic intention to grant compassionate appointment is that on the death of the employee, his family is not deprived of the means of livelihood. It can not be claimed by way of inheritance. Compassionate Appointment can not be treated as a Bonanza. It is not disbursement of gift. It is not sympathy syndrome. It is meant to provide minimum relief for meeting immediate hardship to save the bereaved family from sudden financial crisis due to death of sole bread winner. If employer finds that Financial arrangement made for family subsequent to death of the employee is adequate members of the family can not insist for compassionate appointment.

(c) 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.

(d) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment;

(e) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules;

(f) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out;

(g) An applicant has no right to claim compassionate appointment in a particular class or group. It is not for conferring status on the family. A candidate for compassionate appointment has no right to any particular post of choice. He can only claim to be considered.

(h) 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.

(i) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family.

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

(k) 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. The whole object of granting compassionate employment is to enable the family to tide over the sudden financial crisis.

(l) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner;

(m) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government;

(n) The father of the petitioner died on 07.07.1991 when petitioner was aged about eight years. He applied for compassionate appointment sometime in the year 2006-07 and the District Basic Education Officer granted appointment unauthorisedly, without grant of relaxation by the Competent Authority/ State Government. Thus, the petitioner unauthorisedly and in contravention of the government order, without relaxation of period for submission of application, obtained appointment on compassionate ground, which is nullity. Therefore, the appointing authority has lawfully cancelled the order of appointment of the petitioner. Hence impugned order of the learned Single Judge does not suffer from any manifest error of law.

In view of the law laid down by Hon'ble Supreme Court and this Court referred above, I am not inclined to grant any relief as claimed by the petitioner. Hence, the writ petition is dismissed.

Order Date :- 17.3.2023

S.P.