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2015 DIGILAW 217 (ALL)

SHIVMURTY DEVI v. STATE OF U. P.

2015-02-04

RAKESH TIWARI, VIJAY LAKSHMI

body2015
JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record. The appellant has filed this intra Court appeal challenging the validity and correctness of the impugned judgment and order dated 30.10.2012 passed by the Writ Court in Civil Misc. Writ Petition No. 61250 of 2009, Shivmurty Devi v. State of U.P. and others, whereby the aforesaid writ petition was dismissed. 2. Brief facts giving rise to the instant special appeal are that the appellant’s husband died-in-harness on 3rd October, 1989. She applied for an appointment under the Dying in Harness Rules on compassionate ground in the year 1991. The respondents by a letter dated 17th August, 1991 informed her that there was no vacancy in the department and, therefore, her claim could not be considered. The respondents further informed that as and when vacancy arises in the future, her claim would be considered. When the case of the appellant was not considered she filed Civil Misc. Writ Petition No. 61250 of 2009, which was dismissed vide judgment and order dated 30.10.2013, hence the instant special appeal. 3. The impugned judgment and order of the Writ Court is assailed on the ground that while dismissing the writ petition the writ Court has seen only the part of the appellant and has not of respondent No. 3 and the communication between him and the appellant. The writ Court failed to notice that whenever respondent No. 3 had directed the appellant to submit any document with regard to compassionate appointment she had submitted the same, hence there is no delay in seeking the compassionate appointment by her after the death of her husband. Rather, respondent No. 3 kept the matter pending for the last several years by making her run from pillar to post as such the impugned judgment and order of the writ Court is liable to be set aside. 4. For ready reference, the relevant portion of the impugned judgment and order of the Writ Court is quoted below. “The petitioner filed the present writ petition in the year 2009 contending that a vacancy on the post of sweeper has now arisen and, therefore, her claim for compassionate appointment should be considered. In my view such belated claim of the petitioner cannot be considered in view of the decision of the Supreme Court in the case of Sanjay Kumar v. State of Bihar, 2000 (7) SCC192. In my view such belated claim of the petitioner cannot be considered in view of the decision of the Supreme Court in the case of Sanjay Kumar v. State of Bihar, 2000 (7) SCC192. In the light of the aforesaid, the claim of the petitioner being highly belated, no relief can be granted. The writ petition is dismissed.” From perusal of the aforesaid finding of the Writ Court and the record it appears that after the death of her husband on 3rd October, 1989, the appellant applied for an appointment on compassionate ground in the year 1991. 5. The writ Court has rightly held that the claim of the appellant cannot be considered at such a belated stage in view of the decision of the Supreme Court in the case of Sanjay Kumar v. State of Bihar, 2000(7) SCC 192 . The purpose of giving compassionate appointment at the time of death of the bread earner is to enable the family to tide over the sudden crisis. 6. Mere death of an employee in harness does not entitle his family to such resource of livelihood. The Apex Court has also held that the purpose of granting such appointment is to provide succor to the family at the time of need and not to create a new mode of back door entry. Providing appointment to a member of the deceased family by way of compassionate appointment is an exception carved out of the general rule for appointment on the basis of open invitation of application and merit. The exception was to be resorted to in cases of penury where the dependent(s) of an employee are left without any means of livelihood and that unless some source of livelihood was provided a family would not be able to make both ends meet. 7. It is well-settled by a catena of decisions of the Apex Court that a compassionate appointment cannot be claimed as a matter of course irrespective of the financial status of the family of the deceased at the time of his death. Where a family has been provided with sufficient funds and a running income it cannot be said that the family is suffering any such hardship to give compassionate appointment to one of the members of the family. Today the country is facing large-scale unemployment. There are lacs of persons awaiting opportunity of employment. Where a family has been provided with sufficient funds and a running income it cannot be said that the family is suffering any such hardship to give compassionate appointment to one of the members of the family. Today the country is facing large-scale unemployment. There are lacs of persons awaiting opportunity of employment. In order to provide social justice to the millions of unemployed and educated young men and women, it is necessary that the employment should be given to eligible and deserving persons. The family of the deceased-employee was not found in indigent circumstances. In our considered opinion, there appears to be no illegality or infirmity in the impugned judgment as it is not shown to us that the family of the deceased was living in cold penury after the death of the husband of the appellant. The order of the writ Court, therefore, does not require any interference by this Court. For the reasons stated above, the special appeal is dismissed. ——————