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Allahabad High Court · body

2008 DIGILAW 1977 (ALL)

AVANISH KUMAR DIXIT v. UNION OF INDIA

2008-09-17

RAJIV SHARMA

body2008
JUDGMENT Hon’ble Rajiv Sharma, J.—Heard counsel for the petitioner as well as learned Additional Standing Counsel appearing for the Union of India. 2. It has been submitted by the counsel for the petitioner that after the death of the father of the petitioner, who while proceeding to join his duties after expiry of his leave met with an accident and expired on 15.9.1997, on 1.10.1997, the mother of the petitioner moved an application for appointment on compassionate ground stating therein that his elder son, namely, the petitioner may be offered an appointment under the provisions of Dying in Harness Rules as the family is under a pitiable financial hardship and further that both the sons are umemployed and two daughters are of marriageable age. It is also stated in the application that they have no dwelling house of their own. On the said application, the Department had asked the petitioner to move a proper application on requisite format for appointment on compassionate ground under the Dying in Harness Rules. In pursuance to the said letter dated 6.10.1997, the petitioner duly applied on 15.10.1997 for appointment on compassionate ground on requisite proforma and as no action was taken on the said application, he sent a reminder on 8th January, 1998. The application, so preferred, by the petitioner was rejected by the Department on 9.11.1999. Thereafter, the mother of the petitioner made a fresh representation on 10.12.1999 for considering the case of the petitioner for appointment on compassionate ground. The said representation was also rejected on 27.3.2000. Again a fresh representation was made by the mother of the petitioner for making appointment of petitioner on compassionate ground considering the acute need and financial crisis having no source of income, which too was rejected by the Department vide order dated 8.1.2000 intimating her that keeping in view the amount which has been paid to her after the death of her husband and the family pension which she is getting, it is not possible to offer an appointment to the petitioner under the provisions of Dying in Harness Rules, accordingly, your application is hereby rejected. 3. Counsel for the petitioner submits that there is a scheme which has been formulated by the Department for making appointment of the dependants of the deceased persons, a copy of which has been annexed as Annexure-5 to the writ petition. 4. 3. Counsel for the petitioner submits that there is a scheme which has been formulated by the Department for making appointment of the dependants of the deceased persons, a copy of which has been annexed as Annexure-5 to the writ petition. 4. Learned counsel for the petitioner submits that while rejecting the application of petitioner for appointment on compassionate ground, Opp. Parties have neither considered the financial condition of the family nor the family background that the family was wholly dependant upon the earnings of the deceased. 5. A counter affidavit has been filed by the Union of India wherein it has been stated that the Department, after considering the entire burden of the family as well as keeping in view, the amount received by the family after the demise of the petitioner’s father, has informed the petitioner’s mother regarding refusal of her request for compassionate appointment of the petitioner. It has further been stated in the counter affidavit that the petitioner’s appointment on compassionate ground was considered by a Committee of Officers, who after taking into consideration all post death benefits received by the petitioner’s mother vis-a-vis the liabilities were of the view that the sufficient amount has been received by the mother of the petitioner to clear off the liabilities and to maintain the family. It has also been stated in the counter affidavit that the petitioner’s mother has received a sum of Rs. 5,67,815/- as post death benefit and is also getting family pension at the rate of Rs. 4,290/- per month plus usual dearness allowance and as such petitioner’s case was not found fit for an appointment on compassionate ground under the Dying in Harness Rules. 6. It has been submitted by the Additional Standing Counsel, appearing for the Union of India, that after considering the financial condition and the family liabilities, it has been found by the Department that sufficient amount has been paid as post death benefits to the mother of the petitioner and she is also getting a family pension, which in the opinion of the committee, constituted to look into the matter of appointment of petitioner on compassionate ground, was found sufficient to maintain the family and there was no financial hardship and as such petitioner’s application for appointment on compassionate ground was rejected. 7. 7. In order to appreciate the rival submissions of the counsel for the parties, a reference to Clause 8 of the Scheme, which has been relied upon by the learned counsel for the petitioner, which deals with procedure for employment on compassionate ground is necessary. The same is reproduced below : “8. Procedure of appointment—Heads of office will make the proposal and the Head of Department/Ministry will decide the appointment proposal. The appointment proposal will be made in the prescribed form containing all particulars of the candidate and the specific relaxation required in age, qualifications etc. The Head of Department/Ministry will take into account all the circumstances of the family, the benefits such as CGEIS/CPF/GPF, Gratuity etc. received, the existence of any earning member in the family of the one hand and on the other hand size of the family, ages of children, essential needs, liabilities and the financial condition of the family. Financial benefits received would necessarily be a ground for rejecting the proposal vis-a-vis other adverse factors urging acceptance.” 8. In the aforesaid Scheme formulated for making appointment on compassionate ground under the Dying in Harness Rules, it is specifically provided that before making such appointments the amount of post death financial benefit will be taken into consideration by the Department. 9. In the instant case, the Committee constituted to consider the case of the petitioner for making an appointment on compassionate ground under the Dying in Harness Rules has found that the amount of post death financial benefit as well as family pension granted to the mother of the petitioner are sufficient to maintain the family and as such the committee has refused for making the appointment of petitioner on compassionate ground under the Dying in Harness Rules. In the contention of the learned counsel for the petitioner that the family of the deceased is in acute financial hardship appears to have no substance in view of the fact that the mother of the petitioner has received an amount of Rs. 5,67,815/- as post death benefit and is also getting a monthly pension at the rate of Rs. 4,290/- plus other admissible allowance and as such the Department rightly rejected the application of the petitioner for appointment on compassionate ground. 10. 5,67,815/- as post death benefit and is also getting a monthly pension at the rate of Rs. 4,290/- plus other admissible allowance and as such the Department rightly rejected the application of the petitioner for appointment on compassionate ground. 10. The Apex Court in the case of General Manager (D and P) and others v. Kunti Tiwary and another (Civil Appeal) 126 of 2004 disposed of on 5.1.2004 has categorically held that the amounts paid have to be taken into consideration. 11. The Apex Court in the case of State of Haryana and others v. Rani Devi and another, JT 1996 (6) SC 646, has observed that “it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right.” 12. In the case of Life Insurance Corporation of India v. Asha Ramchandra Ambekar (Mrs.) and another, 1994 (2) SCC 718 , it was pointed out that High Courts and Administrative Tribunals cannot confer benediction implied by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. 13. The Apex Court in the case of Umesh Kumar Nagpal v. State of Haryana and others, 1994 (4) SCC 138 , noted that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.” 14. Thus, appointment on compassionate ground under the Dying in Harness Rules is provided to the dependants of a deceased employee with the intention to maintain the family of the deceased employee, who was the only bread earner of the family and after his death, the post death benefits are insufficient to maintain the family and there will be financial hardship in meeting out the liabilities of the family, but the said appointment on compassionate ground can only be provided to the dependants of the deceased employee after taking into consideration the amount of post death financial benefits and family pension etc. vis-a-vis the liabilities of the family and other relevant factors. It is not that in each and every case of death of a Government servant, the appointment on compassionate ground under the Dying in Harness Rules can be provided without taking into consideration the financial assistance extended to the family after the death of the government servant. The appointment under the Dying in Harness Rules can be provided only in exceptional circumstances where the financial benefits extended to the family are insufficient to maintain the family and meet out the liabilities of the family. 15. In view of the above legal position and the provisions of Dying in Harness Rules, 1974, I do not find any illegality or infirmity in the order rejecting the claim of the petitioner by the authority for appointment under the Dying in Harness Rules. 16. Accordingly, the writ petition is dismissed. 17. No order as to cost. ————