Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 346 (ALL)

MANISH KUMAR MUSADDI v. STATE OF U. P.

2011-02-14

DEVENDRA KUMAR ARORA

body2011
JUDGMENT Hon’ble Devendra Kumar Arora, J.—Heard learned counsel for the parties and perused the record. By means of present this writ petition, the petitioner has prayed for a writ in the nature of certiorari quashing the impugned order dated 4.5.2010 passed by opposite party No. 3, contained in Annexure No. 1 to the writ petition by which application of the petitioner for compassionate appointment was rejected. The petitioner has further prayed for a writ in the nature of mandamus commanding the opposite parties to consider and appoint the petitioner on compassionate ground. Submission of learned counsel for the petitioner is that elder brother of petitioner namely, Pawan Kumar was appointed on the post of N. R. E. P. (Account Clerk) and during his service he met with an accident resulting into his death on 16.3.2010. Pawan Kumar left behind two children and widow namely, Smt. Minakshi Agarwal (27 years). Petitioner being younger brother of deceased applied for appointment under Dying in Harness Rules with the plea that he is unmarried and is going to marry with widow of Late Pawan Kumar. The widow of deceased Smt. Minakshi Agarwal is suffering with mental agony and her health is also not good and she is not in a position to join service. Family members of the petitioner has no objection if the petitioner is given appointment under Dying in Harness Rules. Petitioner is graduate and is only person who can look after the dependents of Late Pawan Kumar. The petitioner’s application was rejected by the impugned order dated 4.5.2010 on the ground that as per rules, petitioner does not come within the category of family members of the deceased Pawan Kumar. 2. The further submission of learned counsel for the petitioner is that Under Rule 10 of the U. P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974 (hereinafter referred to as ‘Rules, 1974) State Government has power to remove difficulties and the State Government is empowered to consider the claim of the petitioner for compassionate appointment. 3. Learned counsel for the petitioner relied upon a decision in Smt. Geeta Singh v. State of U. P. and others, 2008(5) ADJ 345 , in which it has been observed that if the person who is claiming compassionate appointment is a needy person, then the respondent authority must consider the case of such candidate sympathetically and provide compassionate appointment to such needy person. Learned Standing Counsel while opposing writ petition, submitted that the petitioner is younger brother of the deceased and, as such, he does not fall within the definition of family members of the deceased. Petitioner is, therefore, not entitled to get any appointment on compassionate ground under U. P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974. The application of the petitioner for employment was rightly rejected. The writ petition is, therefore, misconceived and deserves to be dismissed. 4. I have considered arguments of learned counsel for respective parties and gone through the record. 5. In the present case, petitioner is younger brother of the deceased. As per Rule 2(c) of the Rules, 1974, brother does not come within the definition of family of the deceased. Only because petitioner will marry with widow of deceased and family members have no objection to the petitioner’s being appointed on compassionate ground, does not make a ground for appointment under the provisions of Dying in Harness Rules, 1974. It is admitted position that wife of the deceased did not ask for appointment on compassionate ground. 6. Rule 2(c) of the U. P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974 defines the family of the deceased as Wife or Husband, son & daughter (un-married), widowed daughter and the dependent un-married brother, sister, widowed mother, if deceased employee was un-married and if none of the persons in the said category is available or physically and mentally incapable then the dependent grand son and unmarried grand daughters have also been included. 7. From the pleadings of the present writ petition, it is apparent that the petitioner was not dependent upon the deceased elder brother. The pleadings further show that the elder brother was living in joint family alongwith the father. The whole claim of the petitioner is that he will marry with widow of the deceased bother and will accept the children and, therefore, he be given appointment under the provisions of Rules, 1974 by invoking powers under section 10 of the Rules, 1974. From the pleadings of the writ petition, it is evident that the petitioner in order to get employment agreed to marry with the widow of his elder brother and also agreed to take care of her children. From the pleadings of the writ petition, it is evident that the petitioner in order to get employment agreed to marry with the widow of his elder brother and also agreed to take care of her children. The pleadings further show that the whole family live as a joint family and apart from the petitioner, there are three elder brothers also living in joint family and the family is in position to take cate of the widow and her children. Widow of the deceased is hardly 27 years of age and she could very well approach the authority concerned for her appointment on compassionate ground. 8. The Hon’ble Supreme Court in the matter of I.G. (Karmik) v. Prahalad Mani Tripathi, 2007 (6) SCC 162 , pleased to observe 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.” 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 ...........” 9. 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 ...........” 9. It is well settled position that compassionate appointment is not a constitutional right and is in pursuance to an exception carved out in the shape of scheme and, therefore, it has to be strictly complied with in its letter and spirit. The inclusion of any other relation in the definition of family of the scheme of compassionate appointment would amount to enlarge the scope of the scheme. Needless to say that the object of the scheme to enable the family to get over the financial crisis which it faces at the time of death of sole bread-earner by giving employment to the dependents of the deceased Government employee defined under the scheme within a reasonable time as prescribed and the scheme cannot be used as devices to ensure appointment as a matter of right. As a result of foregoing discussions, this Court is of the considered view that the scheme providing compassionate appointment to the dependent of the deceased though includes the dependent unmarried brother if the deceased employee unmarried but it does not include any person who will marry to the widow of the deceased Government servamnt. On the basis of the aforesaid analysis, this Court comes to the conclusion that the petitioner who is unmarried younger brother of the deceased employee, in no manner was dependent of the deceased employee and on that pretext that he will marry with the widow of deceased brother, cannot be given appointment on compassionate ground under Rules, 1974. However, it is always open for the widow of the deceased who is aged about 27 years, can approach the authority concerned for her appointment. In view of the above, this writ petition is misconceived and does not warrant any interference from this Court. Writ Petition is dismissed. No order as to costs. —————