State Of Gujarat vs Anjanaben Sureshbhai Joshi
2023 Latest Caselaw 5710 Guj

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/LETTERS PATENT APPEAL NO. 675 of 2022
              In R/SPECIAL CIVIL APPLICATION NO. 22339 of 2017
                                    With
                 CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                 In R/LETTERS PATENT APPEAL NO. 675 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI                                 Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI                                 Sd/-
==========================================================

1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

2 To be referred to the Reporter or not ? No

3 Whether their Lordships wish to see the fair copy No of the judgment ?

4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== STATE OF GUJARAT Versus ANJANABEN SURESHBHAI JOSHI ========================================================== Appearance:

MR. JAYNEEL PARIKH, LD. ASST. GOVERNMENT PLEADER for the Appellant(s) No. 1,2,3 MR. MANOJ T DANAK(6264) for the Respondent(s) No. 1,2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI and HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

Date : 07/08/2023

CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI)

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1. By way of this appeal under Clause 15 of the Letters Patent, the appellant-State of Gujarat has challenged the legality and validity of the order passed by the learned Single Judge dated 06.05.2019 in Special Civil Application No.22339 of 2017, whereby the petition filed by the respondents herein was partly allowed by issuing direction to the appellant-State authority to consider the case of the respondents herein for seeking compassionate appointment.

2. Brief facts leading to filing of the present Letters Patent Appeal are that the Special Civil Application No.22339 of 2017 was filed by the original petitioners seeking appointment on compassionate ground. The husband of the respondent No.1 and the father of the respondent No.2, namely, Sureshkumar Dalsukhbhai Joshi was working as a Head Constable with the appellant-authorities. While in service, he met with an accident and passed away on 11.02.2006. Immediately after the sad demise of her husband, on 24.02.2006, the respondent No.1 preferred an application seeking appointment on compassionate basis for herself or for his son, i.e., the respondent No.2. The said application came to be rejected by the office of the appellants by assigning the reason that the application was not preferred within the stipulated period of six months and secondly that the respondent No.2 had not cleared the 10th standard examination which was a condition precedent at the time of preferring an application for compassionate appointment. It is the specific case of the respondents that after completion of standard 10th examination, immediately on 03.06.2011, they again preferred an application seeking compassionate appointment. The said application also came

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to be rejected on 27.09.2011 and, thereafter, various correspondence were being made to the appellant-authority, however, the case of the respondents was not considered by the appellant-authority.

3. Thereafter, being aggrieved and dissatisfied with the inaction on the part of the appellant-authority, the respondents approached this Court by way of filing Special Civil Application which was partly allowed on issuing direction to the appellant- authority to consider the representation of the respondents and take an appropriate decision in accordance with law within a period of six months.

4. Being aggrieved by and dissatisfied with the impugned judgment and order passed by the learned Single Judge, the State has preferred the present Letters Patent Appeal by raising manifold contentions.

5. Learned AGP Mr. Jainil Parikh appearing for the appellants has submitted that the judgment and order passed by the learned Single Judge is capricious, erroneous, bad in law and without appreciating and considering the facts available on record in its true spirit and not in proper perspective and, hence, requires to be quashed and set aside. It is submitted that at the time of considering the Special Civil Application, the learned Single Judge has not considered the main purpose and objective underlying the policy of granting appointment on compassionate basis. Now the law is well settled in that regard and the Hon'ble Apex Court, in catena of decisions, has held that on account of the death of the main breadwinner of the family, to avoid financial and other hardships,

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immediately within two years, appointment to be made. Learned AGP has submitted that after lapse of certain period of time, as a matter of right, one cannot come forward and seek an appointment on compassionate basis as the hardships and difficulties faced by the family members of the deceased might have existed for some initial period of time. However, at the relevant point of time, the respondent No.1 had not submitted any particulars as sought by the appellants in spite of various communications and subsequently an application was preferred by the respondents at a belated stage which was not considered by the authority. The application preferred by the respondent No.1 was not well within the statutory policy framed by the appellant-authority for compassionate appointments and, therefore, the said application was rejected. Learned AGP has further submitted that the express provision mentioned in the circulars goes on to show that after fulfilling certain requisite qualifications, application for compassionate appointment can be considered. Undisputedly, here in the present case, the respondent No.1 was not holding and fulfilling the said conditions at the relevant point of time and, therefore, her application was rightly not considered. It is the specific condition that at the time of preferring an application, the aspirant candidate (applicant seeking compassionate appointment) should have to produce the certificate of passing of standard 10 th examination and above. The respondent No.2 had initially preferred application in the year 2006 and at that point of time, as per his say, he studied upto 6th standard. It is true that he was major at the relevant point of time, but he did not possess the basic requisite criteria of minimum qualification of 10th standard, and as such, his

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application was not considered. Thereafter, in the year 2011, again he preferred application specifically stating that he has already cleared the standard 10th examination, however, as per the condition of the Government Resolution, immediately within a period of six months, application is required to be made and at that point of time, the person seeking compassionate appointment, should have to possess the requisite qualifications which the respondents herein were not fulfilling at the relevant point of time and, therefore, their application was not considered.

6. Learned AGP has further submitted that the Special Civil Application filed by the original petitioners-respondents herein was considered by the learned Single Judge on the premise that at the relevant point of time the respondent No.2 was minor and he had not passed 10 th standard examination and in that position, the period of six months was not liable to be applied to the case of the petitioners to hold him disentitled by raising ground that he had not completed eighteen years of age. It is also observed that the petitioner-respondent No.2 had already cleared the 10th standard examination then in the year 2011 and, therefore, had crossed the said barrier and, therefore, the ground of petitioner not attaining eighteen years of age within six months could not stand valid to reject the claim of the petitioner for compassionate benefit. The learned Single Judge has put emphasis upon the said factual findings and passed order, but in fact, such observations are not correct so far as factual aspect of the matter is concerned. Learned AGP has submitted that, in fact, the father of the respondent No.2 has passed away on 11.02.2006 and an

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application seeking compassionate appointment was preferred on 24.02.2006, and in the said application itself it is clearly stated that the aspirant candidate, i.e, the son of the deceased was major and completed 19 years, but he was not possessing the requisite qualification, i.e., standard 10 th examination. He cleared the said examination in the year 2011 and immediately after clearing of the said examination, they again preferred an application after a long period of five years and, therefore, their case was not considered. The learned Single Judge has arrived at such conclusion solely on the premise that at the time of submission of application, the respondent No.2 was minor and after attaining the age of majority, he has preferred the application for compassionate appointment, however, the facts are altogether quite contrary as narrated in the operative part of the impugned order. The record indicates that at the time of preferring an application seeking appointment on compassionate basis, the respondent No.2 has specifically stated that the respondent No.2 is major but not possesses the standard 10th qualification.

7. In such circumstances, referred to above, learned AGP prays that there being merit in this appeal, same may be allowed by quashing and setting aside the judgment and order passed by the learned Single Judge.

8. Per contra, learned advocate Mr. Manoj T. Danak appearing on behalf of the respondents has submitted that the learned Single Judge has passed just, fair and reasonable order after considering and appreciating all the materials available on record in true spirit and proper perspective and, therefore, does not warrant any interference at the end of this Court.

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Learned advocate Mr. Danak has submitted that it is clearly observed by the learned Single Judge that immediately after obtaining the certificate of clearance of standard 10 th examination, an application was preferred within the stipulated period of six months. Not only that after the sad demise of the husband of the respondent No.2, she preferred an application which was not considered by the appellant-authorities. The respondent No.1 has made various correspondences and forwarded all the necessary documents as sought for by the appellant-authority. Learned advocate Mr. Danak has put reliance upon the decision Ajitsinh Chandrasinh Gohil vs. Additional Director General of Police, (2007) 3 GLH 313 and submitted that in the said case at the time of death of the deceased father, the son had not attained the majority and, therefore, after attaining the age of majority, the son had preferred an application which was after the completion of stipulated period of six months. It is held by this Hon'ble High Court that in view of clause 8(b) of the policy of the State Government, it is permissible for the applicant to make an application within two years after attaining the age of majority. Learned advocate Mr. Danak has submitted that after considering all the materials available on record, the learned Single Judge has passed just, fair and reasonable order and as there is no infirmity in the impugned judgment and order passed by the learned Single Judge, the view adopted by the learned Single Judge is required to be confirmed.

9. Having heard the learned counsel appearing for the respective parties and having gone through the materials available on record, the only question that falls for our

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consideration is whether the learned Single Judge has committed any error in passing the impugned order.

10. Before adverting to the rival submissions canvassed on either side, we would like to examine the factual aspects of the matter which are as follows;

10.1 The husband of the respondent No.1 and the father of the respondent No.2 was working in the police department as the head constable. While in service, he met with an accident and passed away on 11.02.2006. The respondent No.1 had preferred an application on 24.02.2006, seeking appointment on compassionate basis for herself or for the respondent No.2. It is stated in the said application in an unequivocal terms that the respondent No.2 is major but is not possessing the requisite qualification of passing of standard 10 th examination.

10.2 The office of the appellant addressed a letter to the respondent No.1 seeking certain details as mentioned therein for the purpose of processing her application for compassionate appointment. Thereafter, the appellants have made several communications and reminders to the respondents on 21.06.2006, 07.06.2008, 17.12.2008 etc. intimating them to supply necessary and requisite documents as sought for in order to process their application seeking appointment on compassionate basis, however, the same was not supplied till 03.06.2011.

10.3 As per the Government Resolution dated 16.03.2005, the prescribed minimum education qualification is of having passed 10th standard examination for Class-IV employees and 12th standard examination for Class-III employees. It is clearly

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stated in the circular dated 20.02.2010 issued by the Office of the Directorate General of Police that a person seeking compassionate appointment ought to have cleared the 10 th standard examination within a period of six months from the date of death of the deceased person. However, the respondent No.2 had cleared the 10th standard examination in the year 2011.

10.4 The appellants have processed the application preferred by the respondents seeking appointment on compassionate basis after submitting all requisite documents by the respondents and during the scrutiny, it was found that the respondent No.2 had not cleared his 10 th standard examination at the time of preferring an application for compassionate appointment, i.e., on 24.02.2006 which was the essential requirement. Hence the said application was rejected as the same was no in consonance with the Government Resolution dated 16.03.2005 and circular dated 20.02.2010.

10.5 Thereafter, the respondents have once again made various communications on 19.11.2011, 13.02.2012 and 18.06.2016 requesting to reconsider the decision of not granting appointment on compassionate basis and also to grant lump sum compensation in terms of Government Resolution dated 05.07.2011. The said applications of the respondents were also rejected on 13.07.2016 specifically stating that earlier application, seeking appointment on compassionate basis has already been rejected and, therefore, the same cannot be considered for grant of lump sum compensation in terms of Clause 5 of the Government Resolution dated 05.07.2011.

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10.6 On the strength of the above stated factual aspect, it is found out that immediately for the first time the application was preferred well within the stipulated period of six months for seeking appointment on compassionate basis. In the said application itself, it is clearly stated by the respondents that the respondent No.2 was major but not possessing the requisite qualification of certificate of standard 10 th examination. Thereafter, on number of occasions, communications were being made by the Office of the Appellant intimating the respondents to produce necessary documents in support of their application so that they can process further and decide the application, however, reasons best known to the respondents, they have chosen not to give any reply to the said communications. It is also found out from the record that on 27.09.2011, the application of the respondents was rejected by the appellant by assigning specific reason that the respondents have to submit the necessary documents within the span of six months after the sad demise of the Government employee that he or she is major and possessing the requisite qualification of clearing the 10th standard examination, however, the respondent No.2 was not possessing the said basic requisite qualification at the relevant point of time or could not be able to secure the said qualification within the stipulated period of six months after the sad demise of his father, and in absence of the requisite document of qualification, their application cannot be considered.

10.7 Thereafter, on 19.11.2011, an application was made by

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the respondent No.2 specifically stating that at least lump sum amount be given to the family members of the deceased employee, which also came to be rejected.

11. Now we would like to quote the findings of fact recorded by the learned Single in Paras-5.7, 6 and 6.1 which are as under;

5.7 As regards the contention of the respondents that Resolution dated 05th July, 2011 had come into force substituting the policy of giving actual appointment and in that view the actual compassionate appointment could not be given, is not to be countenanced in view of the facts of the present case in asmuch as, the petitioner attains majority prior to coming into force the new policy. The right of the petitioner was ripened in the year 2011 when he became major. The policy prevalent at the time of arisal of cause of action and creation of right in the petitioner to be enforced, would apply. In Himanshu Jaisinh Dutt (supra) confirmed by the Division Bench, the Court directed the authorities to consider the petitioner thereof for appointment on compassionate ground.

6. It turns out on admitted facts of this case that the petitioner was minor and he had not passed 10 th standard examination. Once that was the position, the period of six months was not liable to be applied to the case of the petitioner to hold him disentitled by raising ground that he had not completed eighteen years of age. The petitioner had already passed the 10th Standard examination, therefore, he had crossed the said barrier. However, the ground of petitioner having not attained eighteen years of age within six months could not stand valid to reject the claim of the petitioner for compassionate benefit.

6.1 In the aforesaid view, the petitioner partly succeeds. The respondents are directed to consider

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the case of the petitioner to grant to him appointment on compassionate basis by taking necessary decision in accordance with law and in light of what is held and observed above within a period of six weeks from the date of receipt of a copy of the present order."

12. A plain reading of the aforesaid observations made by the learned Single Judge clearly reveals that the learned Single Judge has considered the petition of the petitioners- respondents herein on the premise that at the time of submitting an application, the respondent No.2 was minor and had not possessed the qualification of passing of standard 10 th examination and after attaining the age of majority, the respondent No.2 has cleared the standard 10 th examination and, therefore, the ground of petitioner having not attained the age of 18 years within six months could not stand valid to reject the claim of the petitioners for compassionate benefit. The said observation made by the learned Single Judge is factually incorrect and quite contrary to the documents available on record, hence perverse to that extent. The record itself shows and suggests that at the time of preferring an application, seeking compassionate appointment, the respondent No.1 has specifically stated that the respondent No.2 is major but not possessing the requisite qualification of passing of standard 10th examination. The said application was preferred in the year 2006. The respondent No.2 has cleared the 10th standard examination in the year 2011 and after clearing the said examination, he has once again preferred an application, but as per the Government Resolution and circulars, the application for seeking appointment on

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compassionate ground can be preferred immediately within a span of six months after the sad demise of the Government employee. Admittedly, in the case on hand, the said application was preferred well within prescribed time, however, at that time, the petitioner was not possessing requisite qualification and after a period of more than five years, they again preferred an application for the same cause of action, which is not in consonance with the guidelines issued by the Government from time to time. In the case of Ajitsinh Chandrasinh Gohil (supra), upon which reliance is placed by the learned Single Judge, the situation is quite different. In the said case, at the time of making an application for compassionate appointment, the petitioner was minor and not attained the age of 18 years and on this ground the application for compassionate appointment was rejected. In the said case, the petition of the petitioner was allowed relying upon Clause 8(b) of the policy of the State Government, in which, permission was granted to the aspirants to make an application within a period of two years after attaining the age of majority. However, in the case on hand, the situation is altogether different. In the present case, at the time of making an application, the respondent No.2 was already major and, therefore, the principles enunciated in the said judgment would not apply to the case on hand as the facts of both the cases are quite different and distinct.

13. It is found out that the learned Single Judge has passed the impugned judgment and order solely on the ground that at the time of preferring an application for seeking appointment on compassionate basis, the applicant was minor and after

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attaining the age of 18 years, within a span of two years, he had obtained the requisite qualification of clearing the 10 th standard examination, but in fact, the facts are quite different. It is found out from the documents placed by the petitioners that at the time of making an application, seeking appointment on compassionate basis, the petitioner was major but he did not possess the basic requisite qualification, and in absence of requisite qualification, their application was rejected. Therefore, we are of the considered opinion that there being a material error of fact and law apparent on the face of the record, the impugned judgment and order of the learned Single Judge is not sustainable and the same is required to be quashed and set aside.

14. Additionally, we have noticed that the original petitioner have not challenged the validity of the Government Resolution or its terms in any form and undisputedly, the issue of compassionate appointment is governed by the said Government Resolution. So when the original petitioners are not fulfilling the basic requirement and the element of criteria, there is hardly any reason for extending the benefit to the petitioners and apart from that by now, it has been propounded that compassionate appointment is not a matter of absolute right, it depends upon several factors and therefore, no undue sympathy deserves to be extended, particularly, when the petitioners are not fulfilling the relevant criteria. At this stage, we may quote the few observations contained in the decision on the issue of compassionate appointment and since same are relevant, we deem it proper

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to quote hereunder.

15. The Hon'ble Supreme Court, in the case of The State of West Bengal vs. Debabrata Tiwari & Ors., reported in 2023 LiveLaw (SC) 175, has held in paragraph No.7 as under;

"Policy of Compassionate Appointment: The Rationale:

7. The majesty of death is that it is a great leveller for, it makes no distinction between the young and the old or the rich and the poor. Death being as a consequence of birth at some point of time is inevitable for every being. Thus, while death is certain, its timing is uncertain. Further, a deceased employee does not always leave behind valuable assets; he may at times leave behind poverty to be faced by the immediate members of his family. Therefore, what should be done to ensure that death of an individual does not mean economic death for his family? The State's obligation in this regard, confined to its employees who die in harness, has given rise to schemes and rules providing for compassionate appointment of an eligible member of his family as an instance of providing immediate succour to such a family. Support for such a provision has been derived from the provisions of Part IV of the Constitution of India, i.e., Article 39 of the Directive Principles of State Policy.

7.1. It may be apposite to refer to the following decisions of this Court, on the rationale behind a policy or scheme for compassionate appointment and the considerations that ought to guide determination of claims for compassionate appointment.

i. In Sushma Gosain vs. Union of India, (1989) 4 SCC 468, this Court observed that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. That the

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purpose of providing appointment on compassionate grounds is to mitigate the hardship caused due to the death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress.

ii. In Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138, this Court observed that the object of granting compassionate employment is to enable the family of a deceased government employee to tide over the sudden crisis by providing gainful employment to one of the dependants of the deceased who is eligible for such employment. That 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, provided a scheme or rules provide for the same. This Court further clarified in the said case that compassionate appointment is not a vested right which can be exercised at any time after the death of a government servant. That the object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, compassionate employment cannot be claimed and offered after lapse of considerable amount of time and after the crisis is overcome.

iii. In Haryana State Electricity Board vs. Hakim Singh, (1997) 8 SCC 85, ("Hakim Singh") this Court placed much emphasis on the need for immediacy in the manner in which claims for compassionate appointment are made by the dependants and decided by the concerned authority. This Court cautioned that it should not be forgotten that the object of compassionate appointment is to give succour to the family to tide over the sudden

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financial crisis that has befallen the dependants on account of the untimely demise of its sole earning member. Therefore, this Court held that it would not be justified in directing appointment for the claimants therein on compassionate grounds, fourteen years after the death of the government employee. That such a direction would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession.

iv. This Court in State of Haryana vs. Ankur Gupta, AIR 2003 SC 3797 held that in order for a claim for compassionate appointment to be considered reasonable and permissible, it must be shown that a sudden crisis occurred in the family of the deceased as a result of death of an employee who had served the State and died while in service. It was further observed that appointment on compassionate grounds cannot be claimed as a matter of right and cannot be made available to all types of posts irrespective of the nature of service rendered by the deceased employee.

v. There is a consistent line of authority of this Court on the principle that appointment on compassionate grounds is given only for meeting the immediate unexpected hardship which is faced by the family by reason of the death of the bread earner vide Jagdish Prasad vs. State of Bihar, (1996) 1 SCC 301. When an appointment is made on compassionate grounds, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion, vide I.G. (Karmik) vs. Prahalad Mani Tripathi, (2007) 6 SCC 162. In the same vein is the decision of this Court in Mumtaz Yunus Mulani vs. State of Maharashtra, (2008) 11 SCC 384, wherein it was declared 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. vi. In State of Jammu and Kashmir vs. Sajad Ahmed Mir, AIR 2006 SC 2743, the facts before this Court

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were that the government employee (father of the applicant therein) died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was dismissed by the learned Single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. This Court remarked that the said facts were relevant and material as they would demonstrate that the family survived in spite of death of the employee. Therefore, this Court held that granting compassionate appointment after a lapse of a considerable amount of time after the death of the government employee, would not be in furtherance of the object of a scheme for compassionate appointment.

vii. In Shashi Kumar, this Court speaking through Dr. D.Y.Chandrachud, J. (as His Lordship then was) observed that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. That the basis of the policy is that it recognizes that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. That it is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. The pertinent observations of this Court have been extracted as under:

"41. Insofar as the individual facts pertaining to the Respondent are concerned, it has emerged from the record that the Writ Petition before the High Court was instituted on 11 May 2015. The application for compassionate appointment was submitted on 8 May 2007. On 15 January 2008 the Additional Secretary had required that the amount realized by

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way of pension be included in the income statement of the family. The Respondent waited thereafter for a period in excess of seven years to move a petition Under Article 226 of the Constitution. In Umesh Kumar Nagpal (supra), this Court has emphasized that the basis of a scheme of compassionate appointment lies in the need of providing immediate assistance to the family of the deceased employee. This sense of immediacy is evidently lost by the delay on the part of the dependant in seeking compassionate appointment."

7.2. On consideration of the aforesaid decisions of this Court, the following principles emerge:

i. That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions and must be resorted to only in order to achieve the stated objectives, i.e., to enable the family of the deceased to get over the sudden financial crisis.

ii. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis.

iii. Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate employment cannot be claimed or offered after a lapse of time and after the crisis is over.

iv. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending

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for years.

v. 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 if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source.

7.3. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis due to the death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be in a position to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Having regard to such an object, it would be of no avail to grant compassionate appointment to the dependants of the deceased employee, after the crisis which arose on account of death of a bread-winner, has been overcome. Thus, there is also a compelling need to act with a sense of immediacy in matters concerning compassionate appointment because on failure to do so, the object of the scheme of compassionate would be frustrated. 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 thus lose its significance 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 for consideration.

7.4. As noted above, the sine qua non for entertaining a claim for compassionate appointment

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is that the family of the deceased employee would be unable to make two ends meet without one of the dependants of the deceased employee being employed on compassionate grounds. The financial condition of the family of the deceased, at the time of the death of the deceased, is the primary consideration that ought to guide the authorities' decision in the matter.

7.5. Considering the second question referred to above, in the first instance, regarding whether applications for compassionate appointment could be considered after a delay of several years, we are of the view that, in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Further, the financial circumstances of the family of the deceased, may have changed, for the better, since the time of the death of the government employee. In such circumstances, Courts or other relevant authorities are to be guided by the fact that for such prolonged period of delay, the family of the deceased was able to sustain themselves, most probably by availing gainful employment from some other source. Granting compassionate appointment in such a case, as noted by this Court in Hakim Singh would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession which is contrary to the Constitution. Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee."

16. We would also like to quote one another decision on the issue of compassionate appointment in the case of Iqbal

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Khan vs. The State of U.P. & Ors., Special Appeal No.148 of 2022, more particularly, paragraph Nos.10,11,12, 13 and 22, which reads thus;

"Object and principles of Compassionate Appointment:-

10. The Apex Court in the case of Hamza Haji vs. State of Kerala reported in 2006 (7) SCC 416 in paragraphs 28 and 29 has observed as under: -

"In Hip Foong Hong vs. H. Neotia and Company (1918 Appeal Cases 888) the Privy Council held that if a judgment is affected by fraudulent conduct it must be set aside. In Rex vs. Recorder of Leicester (1947 (1) K B 726) it was held that a certiorari would lie to quash a judgment on the ground that it has been obtained by fraud. The basic principle obviously is that a party who had secured a judgment by fraud should not be enabled to enjoy the fruits thereof. In this situation, the High Court in this case, could have clearly either quashed the decision of the Forest Tribunal in OA No.247 of 1979 or could have set aside its own judgment in MFA No.328 of 1981 dismissing the appeal from the decision of the Forest Tribunal at the stage of admission and vacated the order of the Forest Tribunal by allowing that appeal or could have exercised its jurisdiction as a court of record by invoking Article 215 of the Constitution to set at naught the decision obtained by the appellant by playing a fraud on the Forest Tribunal. The High Court has chosen to exercise its power as a court of record to nullify a decision procured by the appellant by playing a fraud on the court. We see no objection to the course adopted by the High Court even assuming that we are inclined to exercise our jurisdiction under Article 136 of the Constitution of India at the behest of the appellant."

11. A Full Bench of this Court in the case of Shiv Kumar Dubey and others vs. State of U.P. and

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others, 2014(2) ADJ, 312 (Para 29), considered various aspects relating to compassionate appointment and held as under :-

"We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules:

(i) 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;

(ii) 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;

(iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner;

(iv) 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;

(v) Where a long lapse of time has occurred since the date of death of the deceased employee, the

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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;

(vi) 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;

(vii) 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;

(viii) 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." (Emphasis supplied by us)

12. In Civil Misc. Writ Petition No. 13102 of 2010, Union of India Vs. Smt. Asha Mishra, decided on 7.5.2010, a Division Bench of this Court has observed as under: -

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"The principles of consideration for compassionate appointment have been firmly settled and have been reiterated from time to time. Compassionate appointment is not a vested right or an alternate mode of employment. It has to be considered and granted under the relevant rules. The object of compassionate appointment is to tide over an immediate financial crisis. It is not a heritable right to be considered after an unreasonable period, for the vacancies cannot be held up for long and that appointment should not ordinarily await the attainment of majority. Where the family has survived for long, its circumstances must be seen before the competent authority may consider such appointment. It is not to be ordinarily granted, where a person died close to his retirement. The Court, however, has emphasised time to time and more authoritatively in National Institute of Technology Vs. Neeraj Kumar Singh, (2007) 2 SCC 481 that such appointment can be granted only under a scheme. It should not be considered after a long lapse of time."

13. The judgment in the case of Smt. Asha Mishra (supra) has also been taken notice by the Full Bench of this Court in Shiv Kumar Dubey (supra) reiterating the legal principles so mandated therein. Recently, the Apex Court in Civil Appeal No. 897 of 2021, in the matter of Central Coalfields Limited Through its Chairman an Managing Director and Ors. Vs. Parden Oraon decided on 09.04.2021, in paragraph 9 has observed as under:-

"9. ... 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

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gone missing."

22. 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

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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

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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

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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."

17. We would also like to quote some relevant observations made by the Hon'ble Apex Court in the case of State of Madhya Pradesh vs. Narmada Bachao Andolan & Anr., reported in (2011) 7 SCC 639, which are as under;

"The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact-situation of the decision on which reliance is placed, as it has to be ascertained by analysing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision.

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A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide: Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38; Govt. of Karnataka & Ors. v. Gowramma & Ors., AIR 2008 SC 863; and State of Haryana & Anr. v. Dharam Singh & Ors. (2009) 4 SCC 340)."

18. Considering the principles laid down in the aforesaid two decisions, we are of the opinion that the present appeal filed by the State deserves to be allowed.

19. In the result, the appeal succeeds and is hereby allowed. The impugned judgment and order dated 06.05.2019 passed by the learned Single Judge is hereby quashed and set aside, and consequently, the Special Civil Application No.22339 of 2017 is hereby dismissed.

20. In view of the order passed in the main appeal, Civil Application (For Stay) No.01 of 2019 also does not survive and is disposed of accordingly. No order as to costs.

(ASHUTOSH SHASTRI, J)

(DIVYESH A. JOSHI,J)

VAHID