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Allahabad High Court · body

2009 DIGILAW 1883 (ALL)

RAM v. STATE OF U P

2009-04-30

DILIP GUPTA

body2009
DILIP GUPTA, J. The relief claimed in the present petition is for a direction upon the respondents to grant compassionate appointment to the petitioner on a Class IV post. It is stated in the petition that the father of the petitioner who was working as a Headmaster in the Primary School died in harness on 1st September, 1990. The mother of the petitioner moved an application on 24th October, 2005 for releasing the pension and other benefits. Subsequently, on 1st August, 2006, the mother of the petitioner made a representation (Annexure-6 to the writ petition) claiming compassionate appointment for her son who is the petitioner. Learned counsel appearing for the petitioner submitted that though under the U. P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred to as the rules), compassionate appointment can be granted within a period of 5 years from the date of death, but this Rule was amended in 1999 by adding a proviso that the State Government may dispense with such time limit if the time limit causes undue hardship in any particular case. He, therefore, submitted that his claim be examined and a direction be issued to the respondents to consider his case for grant of compassionate appointment. In support of this contention he has placed reliance upon the decision of the Supreme Court in Ram Nagesh Vs. State of U. P. & Ors. , 2006 (8) ADJ 547 . Learned Standing Counsel appearing for the respondents, however, contended that compassionate appointment is granted to tide over immediate financial difficulties which the family of the deceased may face but in the present case, the application for grant of compassionate appointment to the petitioner was filed by his mother on 1st August, 2006 almost after a period of 16 years. He, therefore, contended that in such a case compassionate appointment cannot be granted. In order to appreciate the contentions of the learned counsel for the parties, it would first be appropriate to ascertain why compassionate appointment is provided to a member of the deceased employee. The Supreme Court in Commissioner of Public Instructions & Ors. Vs. K. R. Vishwanath, 2005 AIR SCW 4102, dealt at length with the object regarding compassionate ground and observed:- "as was observed in State of Haryana and Ors. v. Rani Devi & Anr. The Supreme Court in Commissioner of Public Instructions & Ors. Vs. K. R. Vishwanath, 2005 AIR SCW 4102, dealt at length with the object regarding compassionate ground and observed:- "as was observed in State of Haryana and Ors. v. Rani Devi & Anr. ( AIR 1996 SC 2445 ), 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 Article 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. Die-in-harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased-employee. In Rani Devis case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of India v. Asha Ramachandra Ambekar (Mrs.) and Anr. ( 1994 (2) SCC 718 ), it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. ( 1994 (4) SCC 138 ), that as a rule in public service appointment should be made strictly on the basis of open invitation of application 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. " "in Smt. Sushma Gosain and Ors. v. Union of India and Ors. 1989 (4) SCC 468 , it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati (Smt.) v. Union of India and Ors. , 1991 Supp (2) SCC 689, and Union of India and Ors. v. Bhagwan Singh 1995 (6) SCC 476 . In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. 1998 (5) SCC 192 , it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased- employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. " (emphasis supplied) In Umesh Kumar Nagpal Vs. State of Haryana & Ors. (1994) 4 SCC 138 the Supreme Court observed:- "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 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 non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destination and to help it get over the emergency. . . . . . . . . . . . . . . . . . For these very reasons, the compassionate employment cannot be granted after a lapse of reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. 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, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. " (emphasis supplied) The aforesaid decisions of the Supreme Court leave no manner of doubt that though the claim for appointment on compassionate grounds cannot be upheld on the touchstone of Article 14 or 16 of the Constitution but such a claim can be considered to be reasonable and permissible on the basis of sudden crisis occurring in the family of the employee who dies while in service. The appointment on compassionate grounds, therefore, cannot be claimed as a matter of right but can be claimed only in terms of the Rules or Regulations framed in this regard and that the Courts cannot confer benediction impelled by sympathetic consideration dehors the Rules. Such an appointment, therefore, should be immediately provided to a member of the family to redeem the sudden financial crisis in the family. The facts of the present case reveal that the father of the petitioner died in harness on 1st September, 1990. The application that has been brought on record shows that the mother of the petitioner for the first time submitted the application on 1st August, 2006 after a period of 16 years for seeking compassionate appointment in favour of the petitioner. No explanation whatsoever has been given in the writ petition for this inordinate delay in filing the application and nor has the petitioner placed before the Court any undue hardship which may be caused to him. The petitioner is, therefore, not entitled to grant of compassionate appointment. Learned counsel for the petitioner, however, submitted that a direction may be given to the State Government to examine the case of the petitioner as was done in the case of Ram Nagesh (supra ). A perusal of the judgment in Ram Nagesh (supra) indicates that such a direction was issued because the learned Standing Counsel had no objection if the writ petition was disposed with a direction to the respondents to decide the representation. In the present case, as noticed hereinabove, the petitioner has not pointed out any exceptional circumstances for not seeking compassionate appointment within the stipulated time. In fact the application was moved after a period of 16 years from the date of death of the father of the petitioner. It is, therefore, not possible to accept the contention of the learned counsel for the petitioner that the State Government may be directed to examine his case. There is, therefore, no merit in the petition. It is, accordingly, dismissed. .