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Allahabad High Court · body

2009 DIGILAW 582 (ALL)

VIPIN KUMAR PANDEY v. STATE OF U P

2009-02-20

DILIP GUPTA

body2009
This petition has been filed for quashing the order dated 10th July, 2007 by which compassionate appointment was de nied to the petitioner by the Deputy Inspec tor General of Police (Establishment) U. P. and for a direction upon the respondents to grant compassionate appointment to the peti tioner under the U. P. Recruitment of De pendents of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred to as the rules) 2. The records of the writ petition indicate that the father of the petitioner Ganeshdher Pandey was working as a Constable in the U. P. Police and it is claimed that he was miss ing since 23rd August, 1996 from Police Lines Obra, District Sonebhadra and could not be traced. A certificate dated 23rd July, 1999 was issued by the Superintendent of Police certi fying that the father of the petitioner was missing from 23rd August, 1996 and inspite of best efforts could not be traced. Thereafter, a communication dated 19th July, 1997 was sent to the brother of the petitioners father regarding payment of pension/gpf and con sequently, the mother of the petitioner moved an application for payment of the dues which were ultimately paid on 29th October, 1999. 3. The petitioner has brought on record the communication dated 16th July, 2004 sent by the petitioners mother to the Superintendent of Police District Sonebhadra wherein a re quest was made to grant compassionate ap pointment to her son, who is the petitioner in the present petition, as she was not in a posi tion to work. It was further stated that earlier also an application had been moved but de tails of the said application have not been mentioned. The petitioner has also brought on record the representation dated 13th Feb ruary, 2007 for grant of appointment. The pe titioner then filed Writ Petition No. 18104 of 2007 which was disposed of with a direction to the Deputy Inspector General of Police (Es tablishment) that in case the petitioner files a fresh comprehensive representation, the same should be considered and decided in accordance with law as expeditiously as is possible, preferably within two months from the date of filing of the same. The petitioner subse quently filed a representation dated 14th June, 2007 which was rejected by the order dated 10th July, 2007 which has been impugned in the present petition. The petitioner subse quently filed a representation dated 14th June, 2007 which was rejected by the order dated 10th July, 2007 which has been impugned in the present petition. In the said order, it has been mentioned that the Government Order dated 20th March, 1987 provides that the ben efits should be given to the Family of an em ployee who is said to be missing within a period of one year and in the subsequent Gov ernment Order dated 9th December, 1988 it has been clarified that the family of an em ployee who is missing will not be entitled to compassionate appointment under the Rules. It is, in such circumstances, that the compas sionate appointment has been denied to the petitioner. 4. I have heard learned counsel for the pe titioner and learned Standing Counsel appear ing for the respondents. 5. Learned counsel for the petitioner sub mitted that benefit of Rule 5 of the Rules is available in all types of death including pre sumptive death and, therefore, the Deputy Inspector General of Police (Establishment) committed an illegality in rejecting the ap plication solely on the ground that compas sionate appointment cannot be granted in case of presumptive death and in support of his contention he has placed reliance upon a judg ment of this Court in Ajay Kumar Shukla v. State of U. P. & Ors. , reported in (2005) 1 UPLBEC 858 : (2005 All LJ 790 ). 6. 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 16th June, 2004 after a period of more than 7 years. He, there fore, contended that in such a case compas sionate appointment cannot be granted and in support of this contention, reliance has been placed upon a decision of this Court in Ravi Shanker Tewari v. Police Maha Nideshak U. P. & Ors. , 1998 (2) UPLBEC 1183 . 7. In order to appreciate the contentions of the learned counsel for the parties, it would first be appropriate to ascertain why compas sionate appointment is provided to a member of the deceased employee. 8. The Supreme Court in Commissioner of Public Instructions & Ors. , 1998 (2) UPLBEC 1183 . 7. In order to appreciate the contentions of the learned counsel for the parties, it would first be appropriate to ascertain why compas sionate appointment is provided to a member of the deceased employee. 8. The Supreme Court in Commissioner of Public Instructions & Ors. v K. R. Vishwanath, 2005 AIR SCW 4102 : ( AIR 2005 SC 3275 ) dealt at length with the object regarding compassionate ground and ob served: "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 com passionate 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 ap plicable to all types of posts irrespective of the nature of service rendered by the de ceased-employee. In Rani Devis case (supra) it was held that scheme regarding appoint ment 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 : ( AIR 1994 SC 2148 ), it was pointed out that High Courts and Admin istrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in re spect 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 : (1994 AIR SCW 2305), that as a rule in public service appointment should be made strictly on the basis of open invitation of application and merit. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. , 1994 (4) SCC 138 : (1994 AIR SCW 2305), that as a rule in public service appointment should be made strictly on the basis of open invitation of application and merit. The ap pointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement tak ing 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 appoint ments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into con sideration the financial condition of the fam ily of the deceased. " "in Smt. Sushma Gosain and Ors. v. Union of India and Ors. 1989 (4) SCC 468 : ( AIR 1989 SC 1976 ) 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 reit erated in Phoolwati (Smt.) v. Union of India and Ors. , 1991 Supp (2) SCC 689: ( AIR 1991 SC 469 ) and Union of India and Ors. v. Bhagwan Singh, 1995 (6) SCC 476 . In Di rector of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. , 1998 (5) SCC 192 : (1998 All LJ 1525) 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. 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, how ever, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provi sions 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 be ing made on compassionate grounds of the dependant of the deceased-employee. As it is in the nature of exception to the general pro visions 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) 9. In Umesh Kumar Nagpal v. State of Haryana & Ors. (1994) 4 SCC 138 : (1994 AIR SCW 2305) the Supreme Court ob served: "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 Gov ernment or the public authority concerned has to examine the financial condition of the fam ily of the deceased, and it is only if it is satis fied, 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 mem ber 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 fi nancial 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. . . . . . . . . . . . . . . . . . For these very reasons, the compassionate employment cannot be granted after a lapse of reasonable period which must be specified in the rules. The con sideration 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 bread-win ner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. " (Emphasis supplied) 10. 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 can not confer benediction impelled by sympa thetic consideration dehors the Rules. Such an appointment, therefore, should be imme diately provided to a member of the family to redeem the sudden financial crisis in the family. 11. In Ravi Shanker Tewari (supra), on which reliance has been placed by learned Standing Counsel, the Court also examined whether the provisions of the Rules would also cover presumptive death of an employee and the Court observed : ". . . . . . . . . . . . . . . As a Rule, appointment in the public service should be made strictly on the basis of open invitation applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Government nor the public authorities are at liberty to follow any other procedure or relax qualifications laid down by rules for the post. There are, however, some exceptions carved out in the interest of justice and to meet cer tain contingencies. No other mode of appointment nor any other consideration is permissible. Neither the Government nor the public authorities are at liberty to follow any other procedure or relax qualifications laid down by rules for the post. There are, however, some exceptions carved out in the interest of justice and to meet cer tain contingencies. One such exception is in favour of the dependants of an employee dy ing 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 pro vide gainful employment to one of the dependants of the deceased who may be eli gible for such appointment. The sole object of granting compassionate employment is thus to enable the family to overcome the sudden financial crisis which has erupted on account of death of the bread-winner. The expression death has, therefore to be given meaning in the light of the object and purpose for which Rules of 1974 have been brought into existence by way of an excep tion to the general Rule that the appointment in public service should be made on the basis of open invitation and merit. The object of the Rules is to mitigate the hardship and to prevent destitution in the family of the de ceased employee. This object would be frus trated if the benefit of appointment on com passionate ground is deferred to a period of more than 7 years. During the long period of 7 years, complexion of the family, its needs and requirements may totally change. It is possible that after 7 years period, the family which was in penury, may become affluent. The financial crisis which was sought to be tide over immediately on the death of the de ceased may not persist after the long period of seven years. Therefore, the very purpose of the Rules would be frustrated if benefit of appointment on compassionate ground is claimed after the statutory period of 7 years when the death of a missing employee is to be presumed. Normally, the Rules of 1974 would not apply to the case of presumption, fictional or civil deaths. Therefore, the very purpose of the Rules would be frustrated if benefit of appointment on compassionate ground is claimed after the statutory period of 7 years when the death of a missing employee is to be presumed. Normally, the Rules of 1974 would not apply to the case of presumption, fictional or civil deaths. However, no general Rule of law can be laid down in this regard. There may be certain situation when though a claim for appointment on compassionate ground may be made after 7 years but the death is capable of being proved on a par ticular date within the said period. For ex ample, if it is established that a person lost his life in a road, water or air accident or in a tragedy resulting from out-break of fire or the like and the dead body is not recovered, in that event after the expiry of the period of 7 years, the date of death may be presumed to be the date of accident or the tragedy. In such tragic cases, there are hardly any chances of manipulations as may be done in the case of a presumptive death drawn on the basis that a person was missing for the last 7 years. If a general Rule that the dependant of the de ceased employee may apply for appointment after seven years on compassionate ground, is laid down, in that event the possibility of the employees fleeing away in harness with a view to make available appointment to his dependant after the expiry of the period of 7 years cannot be ruled out and once the ap pointment is made, such employee, who has fled away, may appear after the expiry of the statutory period of 7 years. This tendency, if at all, may be curbed by interpreting the ex pression death as physical death for the pur pose of Rules of 1974 and the death of a per son whose body is not found or is traced out, but he has lost his life in an accident of road, water, or air or any tragedy of the type men tioned above. Barring the deaths in the above circumstances, all other presumptive, fictional and national deaths are held to be outside the purview of Rules of 1974. " (Emphasis supplied) 12. Barring the deaths in the above circumstances, all other presumptive, fictional and national deaths are held to be outside the purview of Rules of 1974. " (Emphasis supplied) 12. However, in Ajay Kumar Shukla : (2005 All LJ 790) (supra), on which reliance has been placed by learned counsel for the petitioner, the Court observed : "the question that arises for consideration is whether the Rules of 1974 contemplate a death of a particular kind in order to benefit the heirs or whether all kinds of death could be included under the Dying-in-Harness Rules, 1974. It may be stated here that a human being can die under various circumstances, for ex ample, a person may die on account of natu ral causes or on account of an accident or that the person may commit suicide, or die in war, or in antiterrorist activities, or there may be a presumptive death, namely, that a person is missing since long and therefore, presumed to be dead. The Rules of 1974 does not specify the manner of death that would qualify for an employment to the heirs. Therefore, in my view, all kinds of death caused by every pos sible manner would be included in the Dy ing-in-Harness Rules and the benefit of em ployment has to be given to the dependant of the person, who dies-in-harness. In my view, a person who is missing since long and is presumed to be dead, his heirs are entitled to be considered for employment on compassionate ground. " 13. It would thus be seen that in Ravi Shanker Tewari (supra), the Court had restricted the grant of compassionate appoint ment in cases of civil death to a situation where it was established that a person lost his life in a road, water or air accident or in a tragedy resulting from out-break of fire or the like and the dead body could not be recov ered. This decision was not noticed in the subsequent decision rendered in Ajay Kumar Shukla (supra) and it was observed that if a person is missing since long and presumed to be death then his heirs are entitled to be considered for employment on compassionate ground. This decision was not noticed in the subsequent decision rendered in Ajay Kumar Shukla (supra) and it was observed that if a person is missing since long and presumed to be death then his heirs are entitled to be considered for employment on compassionate ground. A perusal of the judgment in Ajay Kumar Shukla (supra) indicates that the Court did not notice die important factor on which reliance had been placed in the earlier judg ment in Ravi Shanker Tewari (supra) and also the decisions of the Supreme Court referred to above namely Commissioner of Public In structions & Ors. ( AIR 2005 SC 3275 ) (su pra) and Umesh Kumar Nagpal (supra) that compassionate appointment should be pro vided to a member of the family of the de ceased to immediately redeem the sudden financial crisis in the family and not after a long period and that the consideration for such employment is not a vested right which can be exercised at any time in future. 14. The facts of the present case reveal that the father of the petitioner is said to have been missing from 23rd August, 1996. The first ap plication that has been brought on record shows that appointment was claimed on 16th June, 2004 after a period of more than seven years. It is true that an application for com passionate appointment could not have been moved within the statutory period of 7 years in case of presumptive death, but at the same time it has also be seen, as has also been no ticed by the Supreme Court and this Court, that compassionate appointment is given to tide over immediate financial difficulties that a family of the deceased may face. 15. It also needs to be mentioned that even in cases where minors have claimed compas sionate appointment on attaining majority, the Courts have rejected the contention advanced on their behalf that the delay should not be made a ground to deny appointment since as minor, they could not have claimed appoint ment. 16. In Haryana State Electricity Board & Anr. It also needs to be mentioned that even in cases where minors have claimed compas sionate appointment on attaining majority, the Courts have rejected the contention advanced on their behalf that the delay should not be made a ground to deny appointment since as minor, they could not have claimed appoint ment. 16. In Haryana State Electricity Board & Anr. v. Hakim Singh, JT 1997 (8) SC 332 : ( AIR 1997 SC 3887 ) the Supreme Court ex amined the case of a widow who had applied after a period of 14 years for appointing her son who was only four years old when his father died-in-harness contending that she could make the application only when her son attained majority. The High Court had allowed the writ petition but while allowing the Ap peal, the Supreme Court observed: "we are of the view that the High Court has erred in over stretching the scope of the compassionate relief provided by the Board in the circulars as above. It appears that High Court would have treated the provision as a lien created by the Board for a dependent of the deceased employee. If the family mem bers of the deceased employee can manage for fourteen years after his death one of his legal heirs cannot put forward a claim as though it is a line of succession by virtue of a right of inheritance. The object of the provisions should not be forgotten that it is to give succour to the family to tide over the sudden financial crisis be-fallen the dependents on account of the untimely demise of its sole earning member. 17. In Jagdish Prasad v. The State of Bihar & Anr. , JT 1995 (9) SC 131 the Supreme Court rejected the case of a minor for giving compassionate appointment after he attained majority and observed as follows:- "it is contended for the appellant that when his father died-in-harness, the appellant was minor; the compassionate circumstances con tinue to subsist even till date and that, there fore, the Court is required to examine whether the appointment should be made on compas sionate grounds. We are afraid, we cannot accede to the contention. We are afraid, we cannot accede to the contention. The very object of appointment of a dependent of the deceased employees who die-in-harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he at tained majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased Government ser vant which cannot be encouraged, dehors the recruitment rules. " 18. In Haryana State Electricity Board v. Naresh Tanwar & Anr. , reported in JT 1996 (2) 542, the question of providing compas sionate appointment to the heir of the deceased employee of the Haryana State Elec tricity Board was considered. The widow of the deceased employee made an application after 12 years that since her son had attained majority, he should be given employment on compassionate ground. This was rejected and, therefore, she filed a writ petition in the High Court. The High Court allowed the writ peti tion holding that the compassionate appoint ment to achieve its purpose cannot be re stricted to 3 years and if assistance to the members of the deceased employee is re quired to be given, the family member must necessarily attain majority and then become eligible to apply for getting appointment. The Supreme Court allowed the Appeal and set aside the judgment of the High Court observ ing: 0 "it has been indicated in the decision of Umesh Kumar Nagpal (1994 AIR SCW 2305) (supra) that compassionate appointment can not be granted after a long lapse of reason able period and the very purpose of compas sionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem be ing suffered by the members of the family of the deceased employee. In the other decision of this Court in Jagdish Prasads case, it has been also indicated that the very object of appointment of dependent of deceased-em ployee who died in-harness is to relieve im mediate hardship and distress caused to the family by sudden demise of the earning mem ber of the family and such consideration can not be kept binding for years. It appears to us that the principle of com passionate appointment as indicated in the aforesaid decisions of this Court, is not only reasonable but consistent with the principle of employment in government and public sec tor. The impugned decisions of the High Court therefore cannot be sustained. " 19. In Sanjay Kumar v. The State of Bihar & Ors. , 2000 (10) JTSC 156 ( AIR 2000 SC 2782 ) Supreme Court again considered the case for compassionate appointment made by a minor after he attained majority and it was observed as follows: "we are unable to agree with the submis sions of the learned senior counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended 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 and without any means of livelihood. In fact, such a view has been expressed in the very decision cited by the petitioner in Director of Education and an other v. Pushpendra Kumar and others, (1998 All LJ 1525): (supra ). It is also significant to notice that, on the date when the first appli cation was made by the petitioner on 2-6-88, the petitioner was a minor and was not eli gible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time, as the petitioner be comes a major after a number of years, un less there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief. " 20. Thus, on the same analogy, in the case of presumptive deaths also, compassionate appointment need not be given as there has necessarily to be a delay of seven years or more in claiming compassionate appointment. There cannot be reservation of the vacancy till such time as the period prescribed of seven years is over. 21. " 20. Thus, on the same analogy, in the case of presumptive deaths also, compassionate appointment need not be given as there has necessarily to be a delay of seven years or more in claiming compassionate appointment. There cannot be reservation of the vacancy till such time as the period prescribed of seven years is over. 21. Even otherwise, there is nothing on the record in the present case which may estab lish that the father of the petitioner lost his life in the circumstances enumerated in Ravi Shanker Tewari (supra ). 22. In view of the decisions of the Supreme Court referred to above, the inevitable con clusion that follows is that the petitioner is not entitled to claim compassionate appoint ment under the Rules. 23. The writ petition is accordingly, dis missed. Petition dismissed. 2 .