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Allahabad High Court · body

2012 DIGILAW 1117 (ALL)

Manoj Kumar v. State of U. P. and others

2012-05-10

DILIP GUPTA

body2012
Dilip Gupta, J.;— The claim of the petitioner for grant of compassionate appointment has been rejected by the order dated 5th May, 2009 passed by the Additional Superintendent of Police (Establishment). 2. The petitioner had claimed compassionate appointment as his father died in harness on 28th March, 1990 while working as a Constable in the police department. This application was filed on 30th September, 2006 after a period of sixteen years. The claim of the petitioner was forwarded to the State Government. The application filed by the petitioner for condoning the delay in filing the application for grant of compassionate appointment under 'The Uttar Pradesh Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974' (hereinafter referred to as the ''Rules') has been rejected by the State Government by the order dated 31st March, 2009. Accordingly, the Additional Superintendent of Police (Establishment) by the order dated 5th May, 2009 informed the petitioner that the claim of the petitioner cannot be granted for compassionate appointment. 3. Learned counsel for the petitioner has submitted that the petitioner was a minor when his father died in harness and, therefore, the State Government committed an illegality in not condoning the delay in filing the application. 4. Learned Standing Counsel appearing for the respondents has, however, submitted that the order passed by the State Government on 31st March, 2009 has not been assailed in this petition and only the consequential order dated 5th May, 2009 passed by the Additional Superintendent of Police (Establishment), Allahabad has been assailed. It is also his submission that compassionate appointment is given to tide over immediate difficulties which the family of the deceased may face and, therefore, is not to be granted after lapse of 16 years. 5. I have carefully considered the submissions advanced by the learned counsel for the parties. 6. In order to appreciate the contentions advanced by the learned counsel for the parties, it would be appropriate to ascertain why compassionate appointment is provided to a member of the deceased employee but before that it is also necessary to refer to the provisions of Rule 5(1) of the Rules. 7. Rule 5 of the Rules deals with compassionate appointment and is as follows:- "5. 7. Rule 5 of the Rules deals with compassionate appointment and 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 shall, on making an application for the purpose, 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 Commission, 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 time 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. ................." 8. A perusal of the aforesaid Rule 5 of the Rules indicates that subject to the conditions contained in the said Rule, an application seeking compassionate appointment can be made within five years from the date of death of a Government servant. The proviso stipulates that where the State Government is satisfied that the time 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. 9. 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. 9. 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 ), 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. ( 1994 (4) SCC 138 ), 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. 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." 10. In Smt. Sushma Gosain and Ors. v. Union of India and Ors. 1989 (4) SCC 468 , 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, 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 , 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. 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) 11. In Umesh Kumar Nagpal Vs. State of Haryana & Ors. reported in (1994) 4 SCC 138 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 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) 12. 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. 13. The Supreme Court has time and again considered whether a minor can claim compassionate appointment after he attains majority. 14. In Jagdish Prasad Vs. 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 continue to subsist even till date and that, therefore, the Court is required to examine whether the appointment should be made on compassionate grounds. 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 attained 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 servant which cannot be encouraged, dehors the recruitment rules." 15. In Haryana State Electricity Board Vs. Naresh Tanwar & Anr., reported in JT 1996 (2) 542, the question of providing compassionate appointment to the heir of the deceased employee of the Haryana State Electricity 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 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 petition holding that the compassionate appointment to achieve its purpose cannot be restricted to 3 years and if assistance to the members of the deceased employee is required 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 observing:- "It has been indicated in the decision of Umesh Kumar Nagpal (Supra) that compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. In the other decision of this Court in Jagdish Prasad's case, it has been also indicated that the very object of appointment of dependent of deceased-employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years. 16. It appears to us that the principle of compassionate 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 sector. The impugned decisions of the High Court therefore cannot be sustained." 17. In Haryana State Electricity Board & Anr., Vs. Hakim Singh JT 1997 (8) SC 332, the Supreme Court also examined 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 Appeal, 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. The High Court had allowed the writ petition but while allowing the Appeal, 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 members 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 succor 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. 18. In Sanjay Kumar Vs. The State of Bihar & Ors., 2000 (10) SC 156 the Supreme Court also considered the case for compassionate appointment made by a minor after he attained majority and rejected it observing as follows:- "We are unable to agree with the submissions 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 another v. Pushpendra Kumar and others, (supra). It is also significant to notice that, on the date when the first application was made by the petitioner on 2.6.88, 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 are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief." 19. The aforesaid decision emphasises that a minor cannot claim appointment on compassionate ground unless the Scheme itself envisages that as and when such a minor becomes a major, he can be appointed without any time consciousness or time limit. The very basis of compassionate appointment is to see that the family gets immediate relief." 19. The aforesaid decision emphasises that a minor cannot claim appointment on compassionate ground unless the Scheme itself envisages that as and when such a minor becomes a major, he can be appointed without any time consciousness or time limit. To grant any relief to him would be clearly contrary to the decisions of the Supreme Court where the cases of minors had been considered and rejected on the ground that there cannot be a reservation of vacancy till such time as the minor becomes a major. 20. Under proviso to Rule 5 of the Rules, the State Government could have condoned the delay if it was satisfied that the time limit fixed for making the application for employment caused undue hardship to the petitioner. The reason given by the petitioner that he was a minor at the time when his father died in harness and he attained majority only after expiry of the five years cannot be accepted as a good reason for condoning the delay in view of the decisions of the Supreme Court referred to above. This apart, the petitioner has not brought on record the order passed by the State Government and nor has he assailed the said order. The Additional Superintendent of Police (Establishment) has only rejected the application on the basis of the decision taken by the State Government. 21. Thus, it is not possible to accept the claim of petitioner for grant of compassionate appointment after a period of more than 16 years for the reason that he was minor when his father died in harness. There is, therefore, no illegality in the impugned order which may call for any interference under Article 226 of the Constitution. 22. The writ petition is, accordingly, dismissed. _