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2017 DIGILAW 339 (UTT)

Amit v. Union of India

2017-06-29

ALOK SINGH, V.K.BIST

body2017
JUDGMENT : V.K. Bist J. 1. Heard Mr. Anil Anthwal, Advocate for the appellant, Mr. Paresh Tripathi, Advocate assisted by Ms. Sonia Chawla, Advocate for the University/respondent nos.2 & 3 and Mr. S.S. Chauhan, Deputy Advocate General for the State of Uttarakhand/respondent no.4. 2. Father of the petitioner was peon in Hemwati Nandan Bahuguna Garhwal University Srinagar, Pauri Garhwal (hereinafter referred to as the University). He died in harness on 05.09.2001. At the time of the death of his father, petitioner was about three years old and his elder brother was about 6 years old. 3. The case of the petitioner, in brief, is that after the death of his father, his mother sent various representations to the University for Appointment of her elder son under Dying in Harness Rules but nothing was done on her representations. On 24.07.2010 his mother again represented to the Vice Chancellor of the University seeking compassionate appointment for her son. Further representations were made on 07.03.2011 and 04.07.2013. The case of the petitioner is that he is living with her mother in his native place and there is no source of income to meet expenses. His elder brother is in service and lives outside. It is also stated that the petitioner is major and is fully qualified to be appointed in the University. Last representation was submitted by the mother of the petitioner on 06.11.2013. The matter was considered by the University and vide order dated 13.02.2015 her representation was rejected. By the said order the mother of the petitioner was informed that since her elder son is serving in Army, therefore, as per rules second son cannot be given appointment under Dying in Harness Rules. 4. Petitioner filed Writ Petition No.121 of 2016 (S/S) challenging the order of the University and prayed that direction be issued to the respondent nos.2 & 3 to consider his claim for compassionate appointment under Dying in harness Rules, 1974. Learned Single Judge heard the matter and dismissed the writ petition summarily on 23.02.2016 in the following manner:- “7. Admittedly, now the elder brother of the petitioner namely Dinesh has joined Defence Force and he is gainfully employed by now. The mother of the petitioner had submitted various representations before the respondent authorities for appointment of the petitioner on compassionate ground. Admittedly, now the elder brother of the petitioner namely Dinesh has joined Defence Force and he is gainfully employed by now. The mother of the petitioner had submitted various representations before the respondent authorities for appointment of the petitioner on compassionate ground. The Registrar/respondent no.3 has rejected the representation of the mother of the petitioner vide order dated 13.02.2015 on the ground that her elder son is serving in Defence Forces after attaining the age of majority. Hence the present writ petition before this Court. 8. Heard the learned counsel for the petitioner as well as learned counsel for the respondents. 9. Having gone through the entire material available on record as well as the contention of the petitioner and respondents, this Court is not inclined to interfere in the matter or give any relief to the petitioner for the reason that Shri Pursotam Dutt, father of the petitioner died in harness about more than fifteen years back. After a gap of fifteen years the situation as it was at the relevant time does not exist anymore. An appointment on compassionate ground is given primarily so that the family which has lost its only breadwinner is able to meet the difficult time which has befallen upon the family. That period is evidently over. Now merely because the petitioner has now attained the age of majority, he cannot be given an appointment on compassionate ground, after a gap of 15 years. 10. There is no occasion to interfere in the matter. The writ petition lacks merit and is dismissed.” 5. Rule 5 of the Dying in Harness Rules, 1974 deals with such appointment, which is being reproduced below:- “5. 10. There is no occasion to interfere in the matter. The writ petition lacks merit and is dismissed.” 5. Rule 5 of the Dying in Harness Rules, 1974 deals with such appointment, which is being reproduced below:- “5. Recruitment of a member of the family of the deceased- (1) 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 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 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 with 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. From the bare reading of the Rule 5(1)(iii) of the aforesaid rules, it is clear that application seeking compassionate appointment under Dying in Harness Rules should be made within five years from the date of the death of the government servant. The delay in making application can be condoned by the State Government provided same is satisfied that the time limit fixed for making the applications for employment causes undue hardship to the dependant of the family of the deceased. 7. The delay in making application can be condoned by the State Government provided same is satisfied that the time limit fixed for making the applications for employment causes undue hardship to the dependant of the family of the deceased. 7. There is no doubt that object underlying a provision for grant of compassionate appointment is to enable the family of deceased employee to tide over the sudden crisis due to death of only bread earner in the family. It was felt that employer should think about the family of his employee who has given precious time of his life to his employer and who has left his family in penury and without any means of livelihood. Therefore, rules for compassionate appointment were made. The rules must be applied sympathetically but by considering the intent of the rules. The family of a deceased employee which is in dire need of help should be provided compassionate appointment in time. If there is no suitable post for appointment supernumerary post should be created for that purpose as held by the Hon’ble Supreme Court in Smt. Sushma Gosain and others vs Union of India and others (1989)4 Supreme Court Cases, 468. 8. In V. Sivamurthy v. State of Andhra Pradesh and others (2008) 13 SCC 730 , the Hon’ble Supreme Court has laid down the principles relating to compassionate appointment. Paragraph 18 of the judgment is referred hereinafter: “18. The principles relating to compassionate appointments may be summarized thus : (a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are well recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies. (b) Two well recognised contingencies which are carved out as exceptions to the general rule are : (i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the bread-winner while in service. (ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner. (ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner. Another contingency, though less recognized, is where land holders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project affected persons. (Particularly where the law under which the acquisition is made does provide for market value and solatium, as compensation). (c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies. (d) Compassionate appointments are permissible only in the case of a dependant member of family of the employee concerned, that is spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, class III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts. 9. In the present case, the father of the petitioner died in harness on 05.09.2001. At that time the family of the deceased employee was in dire need of help as his both sons (petitioner and his elder brother) were very small. It appears that mother of the petitioner did not submit any application for compassionate appointment at that time. Application was submitted and pressed by her when elder son got appointment in Army and petitioner became major. In our view, the prayer of the petitioner cannot be allowed on two counts. First, the petitioner’s family has managed the family affairs for about fifteen years and at present is not facing financial crises as elder brother of the petitioner is employed in the Army. Secondly, the petition is barred by latches. Writ Petition was filed in January 2016 i.e. about fifteen years after the death of his father. There appears no justification for ignoring such huge delay. The Hon’ble Supreme Court has categorically held in catena of judgment that compassionate appointment cannot be claimed and offered after lapse of sufficient time. In (1994) 4 SCC 138 , Umesh Kumar Nagpal v. State of Haryana the Hon’ble Supreme Court has observed in the following manner: “6. There appears no justification for ignoring such huge delay. The Hon’ble Supreme Court has categorically held in catena of judgment that compassionate appointment cannot be claimed and offered after lapse of sufficient time. In (1994) 4 SCC 138 , Umesh Kumar Nagpal v. State of Haryana the Hon’ble Supreme Court has observed in the following manner: “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. 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.” Jagdish Prasad v. State of Bihar and another reported in (1996) 1 SCC 301 is the identical case where Hon’ble Suprme Court categorically held that compassionate appointment cannot be given after long delay. Paragraph 3 of the judgment is quoted below: “3. 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, de hors the recruitment rules.” Similar view is taken by the Hon’ble Supreme Court in paragraph 20 and 21 of (2009) 13 SCC 112 , Eastern Coalfields Limited vs. Anil Badyakar and others. “20. The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. “20. The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over. 21. In the instant case the employee died in harness in the year 1981 and after a long squabble by the dependents of the deceased, they arrived at a settlement that the son-in-law of the second daughter who is unemployed may request for appointment on compassionate grounds. The request so made was accepted by the Personal Manager of the Company subject to the approval of the Director of the Company. The Director (P), who is the competent authority for post facto approval, keeping in view the object and purpose of providing compassionate appointment has cancelled the provisional appointment on the ground that nearly after 12 years from the date of death of the employee such an appointment could not have been offered to the so-called dependent of the deceased employee. 22. In our considered view, the decision of the employer was in consonance with Umesh Kumar Nagpal’s case and the same should not have been interfered with by the High Court. Accordingly, we allow this appeal and set aside the orders passed by the High Court. There will be no order as to costs.” In Union of India and Another vs. Shashank Goswami and Another (2012) 11 SCC 307 the Hon’ble Supreme Court has held that appointment on compassionate ground cannot be claimed as a matter of right. It is merely an exception to relevant service rules taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. Paragraph 9 and 10 of the judgment are referred hereinafter: “9. There can be no quarrel to the settled legal proposition that the claim for appointment on compassionate grounds is based on the premise that the applicant was dependant on the deceased employee. Strictly, such a 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. Strictly, such a 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. Appointment on compassionate grounds cannot be claimed as a matter of right. 10. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate grounds is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the 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 and not to confer a status on the family. Thus, the applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate grounds 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 view of above discussion, we are of the view that appeal filed by the petitioner must fail. Same is dismissed. No order as to cost.