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2010 DIGILAW 1643 (ALL)

Sanjay Yadav v. State of U. P. & Ors.

2010-05-18

DEVENDRA KUMAR ARORA

body2010
Devendra Kumar Arora, J.:- Heard learned counsel for the parties and perused the record. 2. By means of this writ petition, the petitioner has prayed for a writ in the nature of certiorari for quashing of the impugned order dated 11.6.2009, passed by opposite party no. 3, as contained in Annexure No. 11 to the writ petition. Petitioner has further prayed for a writ in the nature mandamus commanding the opposite parties to consider the appointment of the petitioner on a suitable post under Dying in Harness Rules on the compassionate ground within a prescribed period. 3. Submission of learned counsel for the petitioner is that father of petitioner namely, Shanti Swaroop Yadav, while posted as Constable at Lucknow died due to illness on 18.1.1998 leaving behind his widow Smt. Ram Dulari and the petitioner as legal heirs and successor. Since at the time of death of his father, petitioner was minor, as such, when he became major in the year 2001and also passed Prathama Examination (equal to High School), his mother moved an application before the opposite party no. 3 seeking appointment to the petitioner under Dying in Harness Rules on the compassionate ground. The petitioner's mother also submitted an affidavit before the Senior Superintendent of Police, Lucknow stating therein that she has no objection if petitioner is given appointment under Dying in Harness Rules. However, petitioner's matter remained pending with the opposite parties. In the meantime, the State Government issued Notification dated 28.7.2006 and vide 7th Amendment relaxation of limitation was provided. The State Government also issued a Government Order dated 08.9.2006 to that effect. When no heed was paid by the opposite parties on petitioner's application for appointment under Dying in Harness Rules, the petitioner again moved an application for appointment under Dying in Harness Rules on 01.02.2007 to the Senior Superintendent of Police, Lucknow. Petitioner's matter was sent to the Government vide letter dated 27.5.2009. Thereafter, on 11.6.2009 opposite party no. 3 informed the petitioner that monthly income of family is sufficient for maintenance of the deceased family and it has not been found justified to provide him limitation for employment under Dying in Harness Rules. 4. Petitioner's matter was sent to the Government vide letter dated 27.5.2009. Thereafter, on 11.6.2009 opposite party no. 3 informed the petitioner that monthly income of family is sufficient for maintenance of the deceased family and it has not been found justified to provide him limitation for employment under Dying in Harness Rules. 4. Learned counsel for the petitioner submitted that the petitioner has a legal right to get employment under Dying in Harness Rules and action of the opposite parties in not considering petitioner's application for giving an appointment under Dying in Harness Rules is illegal, arbitrary and mala fide. Learned counsel for the petitioner has placed reliance upon a decision reported in 2010 (28) LCD 277 in which it has been observed that while evaluating the financial destitution or penurious condition authorities have to keep in mind as to whether dependent of deceased employee has got sufficient source of livelihood to meet out the minimum requirement of life. Further submission of learned counsel for petitioner is that the petitioner being sole claimant for getting employment in place of deceased father, has a rightful claim for being appointed on a suitable post. The surviving family members of the deceased are facing great financial crisis and the opposite parties are under obligation to make appointment of petitioner on suitable post under Dying in Harness Rules on the compassionate ground. 5. Learned Standing Counsel while opposing writ petition, submitted that the petitioner was minor at the time of death of his father and, therefore, his application for employment was rightly not considered. Secondly, an appointment under Dying in Harness Rules cannot be claimed as a matter of right because object of making an appointment on compassionate ground is to enable the family to tide over the sudden crisis and apparently, in the present case, the petitioner was a minor and on attaining the age of majority in the year 2001 he has claimed appointment under Dying in Harness Rules as a matter of right. Present writ petition is, therefore, misconceived and deserves to be dismissed. 6. I have considered arguments of learned counsel for respective parties and gone through the record. 7. Admittedly, in the present case, father of the petitioner died in the year 1998 and at that time petitioner was minor and was not eligible for giving appointment under Dying in Harness Rules. 6. I have considered arguments of learned counsel for respective parties and gone through the record. 7. Admittedly, in the present case, father of the petitioner died in the year 1998 and at that time petitioner was minor and was not eligible for giving appointment under Dying in Harness Rules. Since the petitioner was not eligible being minor, he approached the authorities for appointment under Dying-in-Harness Rules, 1974 after attaining the age of majority in the year 2001. 8. The whole object of giving a compassionate appointment is intended to enable the family to tide over the sudden crisis and financial difficulties which was faced by the family of the deceased due to death of earning member of the family. The benefit of Rules, 1974 is given to the dependent of the deceased government servant so that the family could over-come such financial constraints. 9. The reason for appointment on compassionate ground, therefore, has to be reasonable and approximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service. 10. The Hon'ble Supreme Court in the matter of Umesh Kumar Nagapl vs. State of Haryana reported in (1994) 4 SCC 138 : (1994 AIR SCW 2305) pleased to observe as under:- "The whole object of granting compassionate employment is to enable the family to tide over the sudden crises. The object is not to give a number of such family a post muchless a post for post held by the deceased. What is further, mere death of an employee in harness does not entitled 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 crises that a job is to be offered to the eligible member of the family. 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 crises that a job is to be offered to the eligible member of the family. Compassionate employment cannot be granted after a lapse of a 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 crises 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 crises is over. 11. In Haryana Electricity Board vs. Naresh Tanwar and another, JT 1996 (2) SC 542, it has been held by the Supreme Court that the compassionate employment is not a vested right. It is an exception to a general Rule. The object of compassionate appointment is to get the immediate relief to the family of the deceased and it is not a legal right." 12. In the State of H. P. and another vs. Jafli Devi (SMT) (1997) 5 SCC 301 , it has been held by the Supreme Court that the policy laid down by the Government regarding compassionate appointment should not be departed from by the High Court on the ground of sympathetic considerations and hardship of the person concerned. 13. The Hon'ble Supreme Court in the matter of Director of Education (Secondary) and another vs. Pushpendra Kumar and others reported in (1998) 5 SCC 192 : (1998 All LJ 1525 : AIR 1998 SC 2230 : 1998 Lab IC 2132) pleased to observe in para-8 as under:- "8. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure 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, a provision is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee. In Umesh Kumar Nagpal v. State of Haryana this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that 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." 14. The Hon'ble Supreme Court in the matter of I. G. (Karmik) vs. Prahalad Mani Tripathi reported in 2007 (6) SCC 162 : (2007 (4) ALJ 308: AIR 2007 SC (Supp) 1264) pleased to hold as under:- "7. Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. The Hon'ble Supreme Court in the matter of I. G. (Karmik) vs. Prahalad Mani Tripathi reported in 2007 (6) SCC 162 : (2007 (4) ALJ 308: AIR 2007 SC (Supp) 1264) pleased to hold as under:- "7. Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread-earner. When an appointment is made on compassionate ground, it should be kept confined only t the purpose it seeks to achieve, the idea being not to provide for endless compassion." 15. The Hon'ble Supreme Court in the matter of Akhilesh Kumar Verma vs. State of U. P. and others reported in (2008) 1 UPLBEC 369 : (2008 (2) ALJ 593) pleased to observe in paras-10, 11,12 and 13 as under:- "10. In Sanjay Kumar v. State of Bihar and others, JT 2000 (10) SC 156 : ( AIR 2000 SC 2782 ) the Apex Court reiterated that the compassionate appointment is provided only to enable the family of the deceased employee to tide over sudden crises resulting due to the death of sole bread-earner who had left family in penury without any means of livelihood but it cannot be treated to be a reserved vacancy for the dependents of the deceased Government servant who died-in-harness. 11. In the case of Haryana State Electricity Board v. Krishna Devi, 2002 LLJ 773 , the Apex Court while reiterating the objective of compassionate appointment as laid down in the earlier cases further observed that the application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated. 12. In the case of Commissioner, Public Instruction and others v. K. R. Viswanath, 2005 (107) FLR 153 : ( AIR 2005 SC 3275 ) the Apex Curt has observed as under:- "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. 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." 13. If the family has sufficient means to survive for years together and can take care of the minors who have turned into major after undergoing educational qualification etc. that itself would be evident to show that now the family is not in financial crises as it could have at the time of sudden demise of the deceased necessitating compassionate appointment at a late stage i. e., after several years." 16. The Hon'ble Supreme Court in the matter of Santosh Kumar Dubey vs. State of Uttar Pradesh and others reported in (2009) 6 SCC 481 pleased to observe in paras-11 and 12 as under:- "11. The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. 12. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service." 17. The Hon'ble Supreme Court in the matter of General Manager, Uttaranchal Jal Sansthan vs. Laxmi Devi and others reported in (2009) 7 Supreme Court Cases 205 : ( AIR 2009 SC 3121 : 2009 Lab IC 3613) pleased to hold as under:- "19. It is a trite law that a regular vacancy cannot be filled up except in terms of the recruitment rules as also upon compliance with the constitutional scheme of equality. It is a trite law that a regular vacancy cannot be filled up except in terms of the recruitment rules as also upon compliance with the constitutional scheme of equality. In view of the Explanation appended to Rule 2 (a), for the purpose of this case we would, however, assume that such regular appointment was not necessarily to be taken recourse to. In such an event sub-clause (iii) of clause (a) as also the Explanation appended thereto would be rendered unconstitutional. 20.The provision of law which ex facie violates the equality clause and permits appointment through the side-door being unconstitutional must be held to be impermissible and in any event requires strict interpretation." 18. The Hon'ble Supreme Court in the matter of Sanjay Kumar vs. State of Bihar and other reported in AIR 2000 Supreme Court 2782 pleased to hold that the vacancy cannot be reserved for a dependent of a government servant till he attains the majority after number of years. Para-3 of the same reads as under:- "3. We are unable to agree with the sub-missions 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 v. Pushpendra Kumar supra. It is also significant to notice that on the date when the first application was made by the petitioner on 02.06.1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there is some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief." 19. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there is some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief." 19. On the basis of analysis of the aforesaid judgments, this Court comes to the conclusion that no directions can be issued for considering the application of petitioner for employment under Dying in Harness Rules as the petitioner moved the application about three years after the death of his father, on attaining the age of majority in the year 2001 and thereafter kept silence for about six years and again woke up in the year 2007 claiming appointment under the provisions of Dying in Harness Rules.. Thus, it is admitted position that after death of petitioner's father in the year 1998 the family did not face the sudden financial crisis otherwise mother of the petitioner would have claimed appointment on compassionate ground to overcome the sudden economic crisis occurred in the family on account of death of her husband. 20. This Court is of considered view that an employment under Dying in Harness Rules cannot be claimed as a matter of right as the purpose of giving appointment to the family member of the deceased government servant is to meet out the immediate exigency and not for endless compassion. Further, it is settle position that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or the Public Sector Undertaking is to see that the dependents of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis. 21. Accordingly, the writ petition is devoid of merits and is liable to be dismissed. 22. The writ petition is dismissed. No order as to costs.