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2010 DIGILAW 2148 (ALL)

MOHD. JAID KHAN v. STATE OF U. P.

2010-07-22

DEVENDRA KUMAR ARORA

body2010
JUDGMENT Hon’ble Devendra Kumar Arora, J.—Heard learned counsel for the parties and perused the record. 2. By means of present writ petition, the petitioner has prayed for a writ in the nature of mandamus commanding the opposite parties No. 2 & 3 to appoint the petitioner under Dying in Harness Rules as per his qualification. 3. Submission of learned counsel for the petitioner is that father of petitioner namely, Ashiq Ali, while he was posted as Assistant Teacher, Basic School, Bhagwatganj, Block Mandhata, district Pratapgarh died on 19.10.1996 during the period of his service, leaving behind his widow Noorjahan Begum, unmarried daughter Shabnam Bano and four sons namely, Mohd. Saif, Mohd. Kaish, Mohd. Jaid and Mohd. Junaid. Just after death of her husband, petitioner’s mother Noorjahan Begum who was 40 years old, moved an application on 12.5.1997 for her appointment under Dying in Harness Rules, 1974. When no action was taken on her application for appointment, she moved several applications thereafter on 10.3.1998, 10.7.1999, 10.1.2001, 8.5.2002 and on 8.4.2004 before the respondent No. 3 and other concerned authorities but no action was taken by the authorities concerned. The petitioner passed High School in the year 2004, Intermediate in the year 2006 and B. A. in the year 2009 from Faizabad University in the Second Division. The petitioner on becoming major in the year 2006 moved an application before the respondent Nos. 2 and 3 on 5.5.2007 seeking appointment under Dying in Harness Rules as per his qualification. When no action was taken by the authorities concerned, the petitioner moved another application on 10.6.2009 before *the authorities concerned for redressal of his grievance but no action was taken by the opposite parties. Since the dependents of the deceased are still facing financial hardship, the petitioner has approached this Court. 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. 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 the provisions of Dying in Harness Rules. 5. 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 the provisions of Dying in Harness Rules. 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 2006 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 1996 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 2007. 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. 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 Nagpal v. State of Haryana, (1994) 4 SCC 138 , 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. 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. In Haryana Electricity Board v. 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.” 11. In the State of H. P. and another v. 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. 12. In the State of H. P. and another v. 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. 12. The Hon’ble Supreme Court in the matter of Director of Education (Secondary) and another v. Pushpendra Kumar and others, (1998) 5 SCC 192 , 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. 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.” 13. The Hon’ble Supreme Court in the matter of I.G. (Karmik) v. Prahalad Mani Tripathi, 2007 (6) SCC 162 , 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 to the purpose it seeks to achieve, the idea being not to provide for endless compassion.” 14. The Hon’ble Supreme Court in the matter of Akhilesh Kumar Verma v. State of U.P. and others, 2008(1) ADJ 175, 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, 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. 12. In the case of Commissioner, Public Instruction and others v. K.R. Viswanath, 2005 (107) FLR 153, the Apex Court 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. 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.” 15. The Hon’ble Supreme Court in the matter of Santosh Kumar Dubey v. State of Uttar Pradesh and others, (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.” 16. The Hon’ble Supreme Court in the matter of General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and others, (2009) 7 SCC 205 , pleased to hold as under : “19. 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.” 16. The Hon’ble Supreme Court in the matter of General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and others, (2009) 7 SCC 205 , 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. 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.” 17. The Hon’ble Supreme Court in the matter of Sanjay Kumar v. State of Bihar and others, AIR 2000 SC 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 2.6.1988, 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.” 18. 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.” 18. As per record of the writ petition, the petitioner became major after ten years of his father’s death and approached the authorities on 5.5.2007 and after keeping silence for about two years again woke up in the year 2009 claiming appointment under the provisions of Dying in Harness Rules. The petitioner approached this Court in the month of May, 2010. It is evident from the sequence of events that after death of petitioner’s father in the year 1996 the family did not face any financial crisis otherwise mother of the petitioner would have approached this Court at the relevant time claiming appointment to overcome the sudden economic crisis occurred in the family on account of death of her husband. 19. The pleadings of the writ petition further show that petitioner’s mother moved first application on 12.5.1997 and thereafter on 10.3.1998, 10.7.1999, 10.1.2001, 8.5.2002 and lastly on 8.4.2004. The casual approach of the petitioner’s mother indicates that application was moved by her only for the sake of seeking Government job without there being any financial difficulty. Similarly, the petitioner moved an application on attaining the age of majority in the year 2007 and thereafter in the year 2009 and now approached this Court to claim appointment under the rules as a legal right without establishing financial crisis and demonstrating as to how the family survived for the last about 14 years. 20. 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. 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 ten years after the death of his father, on attaining the age of majority. 21. 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 ten years after the death of his father, on attaining the age of majority. This Court is of the 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. As such, present writ petition does not warrant any interference by this Court. 22. Accordingly, the writ petition is devoid of merits and is liable to be dismissed. The writ petition is dismissed. No order as to costs. ————