Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 3666 (ALL)

Jainandra Som v. State of U. P. & Ors.

2010-12-07

DILIP GUPTA

body2010
Dilip Gupta, J.:- The petitioner claims compassionate appointment under the Uttar Pradesh Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974 (hereinafter referred to as the 'Rules') as his father died in harness on 25th November, 2006 while working in the Police Department. 2. A perusal of the impugned order shows that the claim for compassionate appointment was rejected since the petitioner was employed as a Signal Operator in the Indian Army from 2006 to 30th March, 2010 though he submitted his resignation on 31st March, 2010. 3. Learned counsel for the petitioner submitted that it is true that he was working as a Signal Operator from 2006 to 30th March, 2010, but prior to the consideration of his application for compassionate appointment, he had submitted his resignation on 31st March, 2010 and, therefore, the application for compassionate appointment should not have been rejected for this reason. It is also his submission that the order dated 28th March, 2010 passed by the Commandant, 6th Battalion P.A.C. Meerut is without jurisdiction since he is not the Officer competent to pass the order. 4. The petitioner does not dispute that he was working as a Signal Operator in the Indian Army from 2006 to 30th March, 2010. It is his submission that he had tendered his resignation on 31st March, 2010 before the order was passed on 28th September, 2010 rejecting his claim. 5. Rule 5 of the aforesaid Rules which deals with conditions under which compassionate appointment is given is as follows:- "5. It is his submission that he had tendered his resignation on 31st March, 2010 before the order was passed on 28th September, 2010 rejecting his claim. 5. Rule 5 of the aforesaid Rules which deals with conditions under which compassionate appointment is given is as follows:- "5. Recruitment of a member of the family of the deceased.- In case, a government servant dies in harness after the commencement of these rules and the spouse of the deceased government servant is not already employed under the Central Government or a State Government or a Corporation owned or Controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commissioner, in relaxation of the normal recruitment rules if such person-- (i)fulfils the educational qualifications prescribed for the post; (ii)is otherwise qualified for government service; and (iii) makes the application for employment within five years from the date of the death of the government servant : Provided that where the State Government is satisfied that the times limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense such or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner. (2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death." 6. It is, therefore, clear that compassionate appointment shall be given to one member of the family of the deceased who is not already employed under the Central Government or a State Government. In the instant case, the petitioner was an employee of the Central Government from 2006 to 30th March, 2010 though it may be that before the consideration of his claim for compassionate appointment, he tendered his resignation. 7. In the instant case, the petitioner was an employee of the Central Government from 2006 to 30th March, 2010 though it may be that before the consideration of his claim for compassionate appointment, he tendered his resignation. 7. In order to appreciate the contentions advanced by 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. 8. 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 Devi's 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 ) : ( AIR 1994 SC 2148 ), 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. 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 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 : ( 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 reiterated 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 Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. 1998 (5) SCC 192 : ( AIR 1998 SC 2230 : 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, 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) 9. In Umesh Kumar Nagpal Vs. State of Haryana & Ors. reported in (1994) 4 SCC 138 : (1994 AIR SCW 2305)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 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) 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 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 aforesaid decisions also emphasise that the appointment on compassionate grounds is given to tide over the immediate difficulties faced by the family of the deceased. 11. The impugned order rejects the claim of the petitioner for compassionate appointment on the ground that he was in Central Government service from 2006 to 30th March, 2010. There is, therefore, no infirmity in the said order as there was no financial crisis. 12. The petitioner has also submitted that the impugned order was passed by an authority not competent to pass the said order, but he has not substantiated this submission. Even otherwise, the claim of the petitioner has been rejected for good and valid reason and there is no good reason to interfere with the said decision. 13. There is, therefore, no merit in this petition. It is, accordingly, dismissed.