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2016 DIGILAW 647 (ALL)

MANOJ KUMAR v. STATE OF U. P.

2016-02-23

ASHWANI KUMAR MISHRA

body2016
JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—Petitioner’s brother, who was in employment, is stated to have died in harness on 13.2.1998. On the date of his death, it is claimed that deceased was unmarried. An application for grant of compassionate appointment has been filed by the petitioner on 23.12.2010 alleging that he was born on 1.1.1992 and was minor on the date of his brother’s death, and that within a year of attaining majority, he has moved the application for grant of compassionate appointment. Such application has been rejected by the State of U.P. on the ground that on the relevant date unmarried brother was not a part of the family, as defined under Section 2-C of the Rules of 1974, and consequently, the claim is not maintainable. 2. Learned counsel for the petitioner submits that immediately after petitioner has attained age of majority, he has filed application and in the facts and circumstances of the case, petitioner was entitled to grant of compassionate appointment. Reliance has been placed upon a decision of this Court in Umesh Chandra Sharma v. State of U.P. and others, 2006 (1) AWC 273 , wherein it has been observed that petitioner therein was a minor on the date of death of the deceased and that an application was moved after attaining age of majority, which was required to have been considered and the order of the State Government suffered from non application of mind. 3. Prayer made in the writ petition is opposed by learned Standing Counsel, as well as learned counsel appearing for the respondent No. 3 and 4 on the ground that a claim for grant of compassionate appointment is not liable to be considered, even otherwise, as nearly 12 years had lapsed on the date of filing of the application, and that law is otherwise settled that compassionate appointment cannot be claimed as a matter of right. 4. I have heard learned counsel for the parties and have perused the records. 5. A perusal of the record shows that after death of petitioner’s brother a compassionate appointment was proposed to petitioner’s mother, but the appointment was brought to an end on 27.9.2001 on account of denial of approval by the competent authority. 4. I have heard learned counsel for the parties and have perused the records. 5. A perusal of the record shows that after death of petitioner’s brother a compassionate appointment was proposed to petitioner’s mother, but the appointment was brought to an end on 27.9.2001 on account of denial of approval by the competent authority. Thereafter, petitioner made an application for grant of compassionate appointment on 23.12.2010, which was approved by the Nagar Palika Parishad subject to grant of approval by the State Government, but no such approval was received, as such, the conditional appointment granted was cancelled on 26.11.2011 and the claim of petitioner has been rejected by the order dated 14.1.2016, holding that on the relevant date of death of deceased brother, petitioner was not included within the definition of the family, and as such, his claim is not covered under the rules. 6. It is not in dispute that petitioner’s brother had died in the year 1998. Application for grant of compassionate appointment has been made after nearly 12 years. The mere ground that applicant was not a major would not be sufficient to condone the delay in view of the fact that the object for grant of such compassionate appointment is to tide over the sudden difficulty caused due to death of sole bread earner and such crisis cannot be presumed to exist even after 12 years of death. 7. Law is otherwise settled that compassionate appointment cannot be claimed as a matter of right. It is also to be observed that ‘family’ as defined in the Rules of 1974 did not include ‘brother’ in 1998 and it was only by way of amendment introduced in 2001 that brother was included in the definition of ‘family’, and thus petitioner was not a member of the ‘family’ on the relevant date. In view of the fact that by now a period of 18 years have expired and the object of providing compassionate appointment cannot be said to subsist, in view of the law laid down by the Apex Court in Umesh Kumar Nagpal v. State of Haryana and others, (1994) 4 SCC 138 , wherein following has been observed in para 6 : “6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. For these very reasons, the 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 crisis which it faces at the time of the death of the sole 1 (1989) 4 SCC 468 : 1989 SCC (L&S) 662 : (1989) 11 ATC 878 : (1989) 4 SLR 327, breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over." 8. In Haryana State Electricity Board v. Hakin Singh, (1997) 8 SCC 85 , the Apex Court had an occasion to deal with the aspect of right of a minor to seek compassionate appointment upon attaining majority. Facts as well as the law laid down in the judgment is apposite and is reproduced : “Learned Single Judge of the High Court distinguished Sohan Lal’s case on the premise that the claimant therein waited for five years after attaining majority and that made him disentitled to employment on compassionate grounds, whereas in the present case the request was made soon after respondent attained majority. Learned Single Judge found support from three other decisions of the High Court as the facts therein were more comparable with the facts in this case. The extended period of three years indicated in the circular has been interpreted by the High Court to mean in the case of a minor child as applicable from the date he became a major. High Court has observed that “this is the only possible way to give effect to the policy of giving employment to the deceased employee where his dependents happen to be minor children.” Accordingly, learned Single Judge allowed the writ petition and directed the Board to entertain the claim of the respondent. Though the Board has filed an appeal before a Division Bench of the High Court the same was dismissed summarily. However, the Division Bench granted further period of three months to the Board to comply with the directions issued by the learned Single Judge. During consideration of the Special Leave Petition an endeavour was made to have the matter otherwise settled between the parties. However, the Division Bench granted further period of three months to the Board to comply with the directions issued by the learned Single Judge. During consideration of the Special Leave Petition an endeavour was made to have the matter otherwise settled between the parties. But learned counsel for the Board, after taking instructions, submitted to us that a decision on the legal position is very much warranted from this Court as large number of similar claims are pending consideration before the Board. The rule of appointments to public service is that they should be on merits and through open invitation. It is the normal route through which one can get into a public employment. However, as every rule can have exceptions, there are a few exceptions to the said rule also which have been evolved to meet certain contingencies. As per one such exception belief is provided to the bereaved family of a deceased employee by accommodating one of his dependents in a vacancy. The object is to give succour to the family which has been suddenly plunged into penury due to the ultimately death of its sole bread-winner. This Court has observed time and again that the object of providing such ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment. The first circular which afforded such a beneficial provision to the dependants of a deceased employee was issued by the Board on 14.9.1983 wherein it was specified that “only one member of the family of the deceased employee is to be considered for employment in the Board’s service as a goodwill gesture and the intention is not that the employment is to be provided as a matter of course.” In the circular the time-limit within which the dependent of the deceased employee is to be accommodated was fixed as one year. The circular further stressed that “the request for employment would be entertained only in the case in which the widow submits application for employment immediately after the death of her husband.” On 26.9.91983 the Board issued a circular clarifying that the purpose of such a provision was not that employment would be given as a matter of course. The circular further stressed that “the request for employment would be entertained only in the case in which the widow submits application for employment immediately after the death of her husband.” On 26.9.91983 the Board issued a circular clarifying that the purpose of such a provision was not that employment would be given as a matter of course. However, the Board extended the period as in the case of a widow with minor children from one year to three years “provided a request for giving such employment is made to the Board within one year of the death of the employee.” High Court relied on an earlier decision of the same High Court in which after considering the same circulars it was observed thus: “Neither in the service of the Haryana Government nor in the service of the respondent-Board a person below the age of 18 years can be given employment. Therefore, if a deceased employee is survived by minors, it is impossible to give effect to the condition incorporated in the circulars of the Board dated 26.9.1985 and 1.10.1986, which requires submission of application within three years of the death of the employee. A condition which is impossible to be performed is ordinarily liable to be treated as arbitrary and unconstitutional but if such condition can be given a reasonable meaning so as to avoid the charge of unconstitutionality that interpretation has to be preferred. Therefore, the instructions contained in the circulars dated 26.9.1985 and 1.10.1986 will have to be interpreted to mean that in case of a minor child the period of three years would be applicable from the date he becomes major.” Learned Single Judge followed the aforesaid observations and issued the impugned directions to the Board. 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. 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 succour to the family to tide over the sudden financial crisis befallen the dependents on account of the untimely demise of its sole earning member. This Court has considered the scope of the aforesaid circulars in Haryana State Electricity Board v. Naresh Tanwar and another etc. etc, [ 1996 (2) JT 542 ]. In that case widow of a deceased employee made an application almost twelve years after the death of her husband requesting for accommodating her son in the employment of the Board, but it was rejected by the Board. When she moved the High Court the Board was directed to appoint him on compassionate grounds. This Court upset the said directions of the High Court following two earlier decisions rendered by this Court, one in Umesh Kumar Nagpal v. State of Haryana and others, 1994 (4) SCC 138 , the other in Jagdish Prasad v. State of Bihar and another, 1996 (1) SCC 301 . In the former, a Bench of two Judges has pointed out that “the whole object of granting compassionate employment is to enable to family to tide over the sudden crisis. In the former, a Bench of two Judges has pointed out that “the whole object of granting compassionate employment is to enable to family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for the post held by the deceased.” In the latter decision, which also was rendered by a Bench of two Judges, it was observed that “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.” The learned Judges pointed out that if the claim of the dependent which was preferred long after the death of the deceased employee is to be countenanced it would amount to another mode of recruitment of the dependent of the deceased Government servant “which cannot be encouraged, dehors the recruitment rules.” It is clear that the High Court has gone wrong in giving a direction to the Board to consider the claim of the respondent as the request was made far beyond the period indicated in the circular of the Board dated 1.10.1986. Respondent, if he is interested in getting employment in the Board, has to pass through the normal route now. “ 9. Again in Sanjay Kumar v. State of Bihar and others, (2000) 7 SCC 192 , the Apex Court considered the issue and observed as under : “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. 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 is some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief.” 10. No provision in the rules applicable have otherwise been shown to exist recognizing a right of compassionate appointment in a minor upon attaining majority. 11. For the reasons, aforesaid, I am not inclined to interfere with the order under challenge in exercise of writ jurisdiction under Article 226 of the Constitution of India. The writ petition fails and is dismissed accordingly.