Brajendra Pratap Singh And Anr. vs State Of U.P.And 4 Ors.
2025 Latest Caselaw 6389 ALL

Allahabad High Court

Brajendra Pratap Singh And Anr. vs State Of U.P.And 4 Ors. on 24 March, 2025

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


2025:AHC:42394
 
Reserved :- 19.03.2025
 
Delivered :- 24.03.2025
 
Court No. - 6
 

 
Case :- WRIT - A No. - 60608 of 2013
 

 
Petitioner :- Brajendra Pratap Singh And Anr.
 
Respondent :- State Of U.P.And 4 Ors.
 
Counsel for Petitioner :- Arvind Srivastava Iii,K.Ajit
 
Counsel for Respondent :- Raghvendra Pratap Singh,Rajan Upadhyay
 

 
Hon'ble Saurabh Shyam Shamshery,J.
 

1. Heard Sri Arvind Srivastava-III, learned counsel for petitioners and Sri Ashish Kumar Nagvanshi, learned Additional C.S.C. for State.

2. In present case, few facts are not disputed that father of petitioners died in harness on 21.07.2005 and thereafter his elder son/elder brother of petitioner-1 was given compassionate appointment on supernumerary Class-IV post on 18.01.2007. Unfortunate, elder brother of petitioner-1 died on 10.12.2007. Thereafter, about 1 year and 7 months, petitioner-1 filed an application for compassionate appointment on 19.07.2009 claiming that being unmarried brother of deceased, his claim be considered.

3. A dispute arose in regard to salary of deceased brother of petitioner-1 and that application of petitioner-1 was not considered, therefore, a writ petition being Writ A No. 51964/2010 was filed which was disposed of vide order dated 27.08.2010 with a direction to consider claim of petitioner-1 as well as unpaid salary of his deceased brother.

4. It is case of petitioner that since his claim was not considered, therefore, a contempt proceeding was undertaken and during said proceeding, impugned order dated 26.03.2011 was passed whereby claim of petitioner-1 was rejected on a ground that in terms of Government Order dated 31.01.1997, unmarried brother was not included in definition of "Family" being dependent upon an employee died in harness. Relevant part of impugned order is quoted below :-

"उक्त आदेशों के अनुपालन में याची द्वारा अपनी नियुक्ति के संबंध में प्रत्यावेदन के साथ उपलब्ध करायी गयी शासन की राजाज्ञा संख्या-1836/79-5-2004-400 (222) /99 दिनांक 02.07.2004 उ0प्र0 बेसिक शिक्षा के अन्तर्गत सेवारत शिक्षक/शिक्षणेत्तर कर्मचारियों की सेवाकाल में मृत्यु हो जाने की स्थिति में उनके आश्रितों के सेवायोजन के संबंध में अविवाहित मृतक के ऊपर निर्भर अविवाहित भाई, अविवाहित बहन और विधवा माँ का उल्लेख किया गया है। तथा दूसरी शासन की राजाज्ञा सख्या 6/12/73/कार्मिक-2/2007 दिनांक 09.02.2007 की प्रति भी उपलब्ध करायी गयी है जो उ०प्र० सेवाकाल में मृत सरकारी सेवकों के आश्रितों की भर्ती (आठवाँ सशोधन) नियमावली, 2007 से सबंधित है में कुटुम्ब के अन्तर्गत मृत सरकारी सेवक में जो संबंधी उल्लिखित हैं उनमें पत्नी या पति, पुत्र, अविवाहित पुत्रियां तथा विधवा पुत्रियां मृत सरकारी सेवक पर अविवाहित भाई, अविवाहित बहन और विधवा माता यदि मृत सरकारी सेवक अविवाहित था यह सभी संबंधी माने गये है। उक्त राजाज्ञायें अशासकीय सहायता प्राप्त पूर्व माध्यमिक विद्यालयों के शैक्षिक/शिक्षणेत्तर कर्मचारियों की सेवाकाल तक मृत्यु हो जाने की दशा में उनके परिवार के किसी एक सदस्य को नियुक्ति प्रदान किये जाने से संबंधित शासन की राजाज्ञा संख्या 231/15-6-97-28(66)/90 दिनांक 31.01.1997 प्रभावी है जिसमें परिवार के सदस्य का तात्पर्य मृत कर्मचारी की विधवा या विधुर, पुत्र, अविवाहित या विधवा पुत्री से है। चूंकि याची का प्रकरण अशासकीय सहायता प्राप्त जूनियर हाईस्कूल से संबंधित है और इस पर उक्त राजाज्ञा दिनांक 31.01.1997 ही अद्यतन प्रभावी है। ऐसी दशा में उक्त विवेचना से स्पष्ट है कि याची मृतक के परिवार के सदस्त की श्रेणी में न होने के कारण मृतक आश्रित में अपने मृत अविवाहित भाई की जगह पर नियुक्ति पाने का पात्र नहीं है।"

5. Initially this writ petition was filed against impugned order dated 26.03.2011, however, during pendency of this writ petition, an amendment application was allowed vide order dated 26.05.2022 whereby Government Order dated 31.01.1997 was also challenged to the extent of definition of "Family" mentioned therein.

6. Learned counsel for petitioners has submitted that provisions of Uttar Pradesh Recruitment of Dependent of Government Servant (Dying in Harness) Rules, 1974 were amended in the year 2007 whereby definition of Family was extended and unmarried brother of deceased employee was also included, therefore, same analogy ought to have been applied in present case and extended definition of Family ought to have been considered and claim of petitioner may not be rejected on a ground being unmarried brother of deceased, however, in terms of amended definition of "Family", he is entitled for consideration of compassionate appointment.

7. Per contra, learned Additional C.S.C. has supported the impugned order that provisions of Rules, 1974 as amended are applicable only on government servants whereas deceased brother of petitioner-1 was not a government servant, therefore, said provision is not applicable in present case and compassionate appointment is to be governed by provisions of Government Order dated 31.01.1997 only.

8. Learned Additional C.S.C. also submitted that brother of petitioner- died on 10.12.2007 i.e. 17 years ago, therefore, to consider claim of petitioner-1 for compassionate appointment would be against object of it i.e. to tide over immediate financial crisis, if any.

9. I have considered above submissions and perused the record.

10. It is not disputed that brother of petitioner-1 was granted compassionate appointment on 18.01.2007, however, he met with an accident on 10.12.2007. The petitioner-1 after a substantial delay has filed an application for compassionate appointment i.e. 19.07.2009. Consideration on application kept pending and after interference of this Court, application was finally decided by the impugned order dated 26.03.2011 after relying upon the Government Order dated 31.01.1997 that unmarried brother of deceased employee died in harness was not included in the definition of Family.

11. It is well settled that compassionate appointment is not a right and has to be granted only in terms of any scheme or provision or Rules.

12. Reliance made by learned counsel for petitioner on Rules of 1974 as amended would have no legal basis since said Rules were applicable only on government employee whereas deceased being working as Class-IV employee in respondent non-government school under grant-in-aid, therefore, deceased employee could not be termed as government employee, as such, consideration for compassionate appointment would only be in terms of G.O. dated 31.01.1997. Admittedly, in said G.O., unmarried brother of deceased was not included in definition of Family.

13. Supreme Court in Bhawani Prasad Sonkar v. Union of India, (2011) 4 SCC 209 has held as follows :-

"19. In V. Sivamurthy v. State of A.P. [(2008) 13 SCC 730 : (2009) 1 SCC (L&S) 335] this Court while observing that although appointment 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, yet appointments on compassionate grounds are well-recognised exception to the general rule, carved out in the interest of justice to meet certain contingencies, highlighted the following two well-recognised contingencies as exceptions to the general rule: (SCC p. 741, para 18)

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

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

20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:

(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.

(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.

(iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.

(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts."

14. As referred above, compassionate appointment has to be made only in terms of Scheme or Government Order applicable and as referred above, provisions of applicable Government Order dated 31.01.1997 is against claim of petitioner.

15. At this stage, Court also takes note that brother of petitioner-1 died on 10.12.2007 and, therefore, after about more than 17 years, very object of compassionate appointment to tide over immediate financial crisis does not exist and in this regard, reference of a recent judgment passed by Supreme Court in Canara Bank vs. Ajithkumar G.K., 2025 SCC Online SC 290 would be relevant and its relevant paragraph 25 are quoted below :-

"25. The first sub-issue is in relation to the lapse of time since the respondent's father passed away. It has been in excess of two decades. It does not require anyone to put on a magnifying glass here to assess the time that has been taken for the application of the respondent for compassionate appointment to be finally decided. The parties have reached the third tier in the second round. One of the foremost factors for appointment on compassionate ground is that the same should be offered at the earliest. Unless appointment is made soon after the need to mitigate hardship arises, tiding over the immediate financial crisis owing to (i) sudden premature and untimely death of the deceased employee or (ii) medical incapacitation resulting in the employee's unfitness to continue in service, - for which benevolence is shown by offering an appointment - may not exist and thereby the very object of such appointment could stand frustrated."

16. In aforesaid circumstances, claim for compassionate appointment of petitioner cannot be considered not only that provisions are against him but law is also against him.

17. In view of above, this Court does not find any ground to grant relief as sought, therefore, present writ petition lacks merit, hence, dismissed.

Order Date :- March 24, 2025

Sinha_N.

[Saurabh Shyam Shamshery, J.]