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Rajasthan High Court · body

2007 DIGILAW 416 (RAJ)

Uco Bank v. Sanjay Trivedi

2007-02-26

MOHAMMAD RAFIQ, S.N.JHA

body2007
JUDGMENT 1. 1. This special appeal is directed against the order of the learned Single Judge allowing the writ petition of the respondent. The respondent had filed the writ petition, S.B. Civil Writ Petition No. 2296/2002 seeking direction for his appointment on compassionate ground on the death of his father in harness while in employment of the appellant Bank. 2. Brief facts of the case that K.N Sharma, father of the respondent, who was Assistant Chief Officer in the appellant Bank, died on 6.7.1995. On 24.7.1995, the respondent, who happened to be the youngest of the three sons, applied for compassionate appointment. The application was rejected on 17.11.1995. The respondent filed representation seeking re-consideration of his claim. The representation was rejected on 2.8.1996. The writ petition was filed some time in 2002. 3. The learned Single Judge, allowing the writ petition by the impugned order, directed the appellants "to provide appointment" to the respondent. As the respondent had become over age, the learned Judge also directed that age bar be relaxed. The learned Judge referred to the case of one Vrijesh Shah who had been appointed by the appellant Bank after relaxing the upper age limit. The learned Judge observed that the Bank can not adopt pick and choose method and reject the claim of the respondent on the ground of age bar. 4. Shri G.K. Garg, counsel for the appellants submitted that it is the settled law that in exercise of power of judicial review under Article 226 of Constitution the High Court can only direct the Government or other authorities to consider the case of a person; it can not straightway direct his appointment. Counsel referred to State of Haryana v. Naresh Kumar Bali, (1994) 4 SCC 448 . In any case, counsel urged, the learned Single Judge could not direct relaxation of age which is matter of discretion to be exercised by competent authority, and not by this Court on judicial side. Counsel submitted that the learned Judge committed error in directing appointment of the respondent citing the case of the Vrijesh Shah. The claim of Vrijesh Shah was allowed on different facts, and in any view, wrong exercise of discretion in one case cannot justify similar wrong exercise of discretion in another case. 5. Counsel submitted that the learned Judge committed error in directing appointment of the respondent citing the case of the Vrijesh Shah. The claim of Vrijesh Shah was allowed on different facts, and in any view, wrong exercise of discretion in one case cannot justify similar wrong exercise of discretion in another case. 5. Counsel submitted that the case of respondent did not come within the ambit of the Scheme framed by the Bank for compassionate appointment, inasmuch as his two elder brothers are employed. One of them is engaged in his own business and the other one is in private employment. Besides, it was stated, the widow of K.N. Sharma is in receipt of family pension. She had also been paid gratuity etc. at the time of death of K.N. Sharma. Therefore, having regard to the financial condition of the family it was not considered to be a suitable case for compassionate appointment. Counsel lastly submitted that in any view of the matter the claim of the respondent could not be allowed on account of delay. In this regard counsel cited the case of Umesh Kumar Nagpal v. State of Haryana & Ors., (1994) 4 SCC 138 .Shri Sanjeev Prakash Sharma, counsel for the respondent submitted that the only ground on which the claim of the respondent was rejected as per the reply filed before the Single Judge was that the respondent was overage. No ground regarding financial condition of the family was taken. Counsel heavily relied on the case of Vrijesh Shah. It was submitted that Vrijesh Shah came from a well-to-do family. His grand-father was a senior 1 engineer in the Government department. He owns a house in a posh locality at Jaipur and, therefore, his financial condition was not such as to entitle him to compassionate appointment, but not only his case was found to be suitable for compassionate appointment but his age was also relaxed by two years. On the point of delay, Shri Sharma submitted that 'the respondent had filed appeal against rejection of his application for compassionate appointment on 1.1.2001 which was entertained and the respondent was informed that orders from the superior authorities were being obtained. The respondent was thus led to believe that his case for compassionate appointment was under consideration and, therefore, he did not file the writ petition earlier. 6. The respondent was thus led to believe that his case for compassionate appointment was under consideration and, therefore, he did not file the writ petition earlier. 6. We have given our anxious consideration on the submission of the counsel for the parties. 7. The nature and scope of compassionate appointment is well settled by a catena of decisions of the Apex Court. Among other things, it has been held that compassionate appointment is a measure of financial support to the bereaved family so that it may meet the crisis caused by the sudden and unexpected death of the bread earner. It is not an employment guarantee scheme in the sense that in every case of death in harness one member of the family must be appointed. Compassionate appointment is justified only in cases where the family can not sustain itself but for such financial support. It has also been emphasised that having regard to the nature of compassionate appointment, it should be made within reasonable time and if financial condition of the family is such that it has been able to sustain itself without such support/appointment, appointment on compassionate ground would not be justified. 8. We may observe that Article 16 of the Constitution envisages equality of opportunity in public employment. The scheme of compassionate appointment in Government departments/banks/corporations etc. has nevertheless been upheld as being recognition of the past service rendered by the deceased employee. But the fact remains that compassionate appointment is in nature of exception to the general rule of equality in employment. That being so, the provision should be given strict interpretation so that it may not work to the detriment of the candidates at large from open market and efficiency in service. 9. We find substance in the contention of Shri Garg that the learned Single Judge should not have issued a direction straightway to appoint the respondent. The direction at best could have been to consider the respondent's case. Secondly, we also find substance in the submission that the learned Single Judge should not have directed relaxation of upper age limit which is a matter of discretion to be applied by the concerned authority in the facts of the case. The direction at best could have been to consider the respondent's case. Secondly, we also find substance in the submission that the learned Single Judge should not have directed relaxation of upper age limit which is a matter of discretion to be applied by the concerned authority in the facts of the case. That power is normally exercised where because of some rule it is not possible to grant relief like where the authority is satisfied that it is a fit case for granting relief but on account of some rule like the rule relating to the upper age limit, the benefit cannot be provided. There must be justification to relax the rule. In other words, rule is relaxed only to do away hardship. 10. As regards the case of Vrijesh Shah, even if we were to think that he should not have been offered compassionate appointment having regard to the financial condition of the family, it would be difficult to uphold the order of the learned Single Judge granting similar benefit to the respondent, for, it is well settled that benefit of similarity can be extended only if it does not result in injustice or illegality. Article 14 of the Constitution is not designed to perpetuate any wrong or illegality. Inasmuch as validity of appointment of Vrijesh Shah is not under challenge, it is not proper to make further comment. We are however constrained to observe that on the facts stated in this regard we are not inclined to grant similar relief to the respondent on the ground that Vrijesh Shah did not deserve appointment on compassionate ground by relaxing the upper age limit. 11. What really stands against the respondent is the delay. Even if we were to take another view of the matter, we are not able to reconcile to the direction for appointment after eleven years of the death of the respondent's father. Besides, application for compassionate appointment was rejected on 24.7.1995, thereafter the respondent applied for reconsideration which was rejected on 17.11.1995. We are satisfied that the cause of action was complete, if not on 24.7.1995, on 17.11.1995. Filing of so called appeal was of no avail. In the absence of any provision of appeal in this matter, we do not think, he can claim benefit of the fact that the appeal remained pending. We are satisfied that the cause of action was complete, if not on 24.7.1995, on 17.11.1995. Filing of so called appeal was of no avail. In the absence of any provision of appeal in this matter, we do not think, he can claim benefit of the fact that the appeal remained pending. It is well settled that pendency of unsolicited and unprovided representation is not adequate explanation of delay. In any case, the appeal was filed after more than five years of the rejection of his representation. All said and done, the direction for appointment after over eleven years of the death of deceased can not be in consonance with the object of compassionate appointment. In that view of the matter, we are satisfied that the learned Single Judge was not justified in issuing direction for compassionate appointment of the respondent and order of the learned Single Judge can not be sustained.In the result, the appeal is allowed, the order of the learned Single Judge dated 1:9.2006 is set aside and the writ petition is dismissed.Appeal Allowed - Writ Petition Dismissed. *******