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2009 DIGILAW 2732 (ALL)

ASHISH SHARMA v. STATE OF U. P.

2009-07-31

ARUN TANDON

body2009
JUDGMENT Hon’ble Arun Tandon, J.—Heard Sri B.B. Paul, learned Senior Advocate assisted by Sri A.P. Paul, learned counsel for the petitioner and learned Standing Counsel for State-respondents. 2. In paragraph-4 of the writ petition it has been stated that the father of the petitioner, who was appointed as an Assistant Teacher in Junior High School, Madrakh, Block Lodha, District Aligarh had expired as early as on 8th May, 1989 due to harness. 3. After 20 years of the death of the bread earner, petitioner has approached this Court by means of present petition for a writ of mandamus commanding the respondents to consider the application for compassionate appointment. 4. In support of the case, learned counsel for the petitioner has placed reliance upon the Judgments of this Court in the case of Pushpendra Singh v. Regional Manager, U.P.S.R.T.C. Aligarh and another, 2000 (1) ESC 448 (All) and Lalitesh Chandra Pathak v. Special Secretary, Government of U.P. and others, 2005 All CJ 2092. 5. I am of the considered opinion that compassionate appointments are offered to mitigate against the immediate uncalled for hardship, faced by the family members/dependants because of the death of the bread earner. It is not a source of employment. Such immediate uncalled for hardship cannot continue for 20 years. 6. So far as the judgment relied upon on behalf of the petitioner in the case of Pushpendra Singh (supra) is concerned, the same has not taken any contrary view. It has only followed the judgments of the Hon’ble Supreme Court of India in the case of Umesh Kumar Nagpal v. State of Haryana and others, (1994) 4 SCC 138 as well as in the case of Haryana State Electricity Board v. Naresh Anwar, 1996 (2) SLR 11. The last paragraph of the judgment is only a direction in the facts of the case and does not lay down any proposition of law. 7. The last paragraph of the judgment is only a direction in the facts of the case and does not lay down any proposition of law. 7. So far as the judgment in the case of Lalitesh Chandra Pathak (supra) is concerned, the same has also referred to the judgments of the Hon’ble Supreme Court in the case of Umesh Kumar Nagpal and Haryana State Electricity Board (supras) and has thereafter proceeded to hold that since there is a provision under the U.P. Rules for an application being filed even after five years of the death of the employee, if application is filed, the same be considered and the application is to be decided by means of a reasoned speaking order. 8. This Court only repeat the law laid down by the Hon’ble Supreme Court of India qua the nature of compassionate appointment in support of its conclusion that in the facts of the present case since a period of 20 years has elapsed since the death of the employee, no direction for the application for compassionate appointment being considered, be granted. 9. An employment on compassionate ground should be provided strictly in accordance with the Rules and the Court cannot take a view as to make it violative of Articles 14 and 16 of the Constitution of India. [Vide Cochin Dock Labour Board v. Leemamma Samuel and others, (1998) 9 SCC 87 ]. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. [Vide U.P.S.R.T.C. v. Pukhraj Singh and others, (1999)1 SCC 190 ; and A.P.S.R.T.C. v. K. Pochaiah and others, (1999) 1 SCC 191 ]. 10. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial difficulties faced by the bereaved family which has lost its bread-earner. Mere death of a Government employee in harness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to meet the crisis and then that a job is to be offered to the eligible member of the family. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to meet the crisis and then that a job is to be offered to the eligible member of the family. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, it being not a vested right. 11. In Smt. Sushma Gosain and others v. Union of India and others, AIR 1989 SC 1976 , the Apex Court held as under : “It can be stated unequivocally that in all claims for appointment on compassionate ground, 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 appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant.” 12. The aforesaid judgment was approved and the principle laid down therein was reiterated by the Hon’ble Supreme Court in Smt. Phoolwati v. Union of India and others, AIR 1991 SC 469 . 13. In Umesh Kumar Nagpal v. State of Haryana and others, (1994) 4 SCC 138 , the Hon’ble Apex Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court has observed as under : “It appears that there has been a good deal of obfuscation on the issue. As a rule, appointment in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. 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. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. 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 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....... .......The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased, there are millions of other families which are equally, if not more, destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned.... Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased....... Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased....... The decision does not justify compassionate employment either as a matter of course.... The only ground which can justify compassionate employment is the penurious condition of the deceased’s family...... The consideration for such employment is not a vested right.... The object being to enable the family to get over the financial crisis. (Emphasis added) 14. The same view has been reiterated in Jagdish Prasad v. State of Bihar and another, (1996) 1 SCC 301 ; State of Bihar and others v. Samsuz Zoha and others, AIR 1996 SC 1961 ; Himachal Road Transport Corporation v. Dinesh Kumar, (1996) 4 SCC 560 ; and Hindustan Aeronautics Ltd. v. A. Radhika Thirumalai (Smt.), (1996) 6 SCC 394 . It has categorically been held that compassionate employment cannot be claimed as a matter of course since it is not a vested right. 15. In Sanjay Kumar v. State of Bihar and others, JT 2000 (10) SC 156, the Hon’ble Supreme Court again reiterated that the purpose of the rules providing for compassionate employment is only to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread-earner who had left the family in penury without any means of livelihood, and that there cannot be a reservation of a vacancy for the dependants of the deceased Government servant who died in harness. 16. In State of Manipur v. Mohd Rajaodin, (2003) 7 SCC 511 , the Hon’ble Supreme Court considered, a case where the application was filed at a much belated stage as the dependant therein was 10 years of age at the time of death of his father. The Hon’ble Supreme Court reiterated that the purpose of giving compassionate employment is only to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service, only to alleviate the distress of the family and at a belated stage as these grounds are no more in existence the employment cannot be given. The Hon’ble Supreme Court reiterated that the purpose of giving compassionate employment is only to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service, only to alleviate the distress of the family and at a belated stage as these grounds are no more in existence the employment cannot be given. While deciding the said case reliance had been placed upon its earlier judgments, particularly, in State of U.P. and others v. Paras Nath, (1998) 2 SCC 412 ; State of Haryana and others v. Rani Devi and another, (1996) 5 SCC 308 . 17. Thus, the writ petition lacks merit and is accordingly dismissed. ———