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2018 DIGILAW 2319 (ALL)

Sandeep Kumar v. State Of U. P.

2018-11-14

P.K.S.BAGHEL, SALIL KUMAR RAI

body2018
JUDGMENT : 1. This special appeal arises from a judgment of the learned Single Judge dated 12th April, 2018 whereby he has dismissed the writ petition of the appellant/petitioner seeking a direction for his appointment on compassionate ground. 2. Broad facts necessary for the disposal of the special appeal are that the appellant’s father late Ramashankar was appointed in aided Intermediate College on 15th March, 1982 as an Assistant Teacher (Art). Unfortunately, he died in harness on 1.9.1988. It is stated in paragraph no. 6 of the writ petition that the petitioner was in womb when his father died and is the only child of his parents. The petitioner in the year 2007 moved an application for appointment on compassionate ground. His application for the appointment was rejected by the District Inspector of Schools and the Joint Director vide orders dated 10.2.2017 and 28.12.2017. Aggrieved by the said orders, he has preferred the writ petition. The leaned Single Judge has dismissed the writ petition on the ground that he has moved the application for compassionate appointment after about 20 years of the death of his father and the petitioner has filed a Junior High School examination certificate wherein his date of birth is recorded 25.1.1989. The learned Single Judge has noted that the petitioner could not explain the fact as to how he has born after two years of the death of his father. 3. We find that the learned Single Judge has relied upon a large number of judgments of the Supreme Court on the issue involved in the present case. 4. We have heard the learned counsel for the appellant and the learned Standing Counsel. 5. It is a trite law that appointment on compassionate ground is an exception to the appointments in the public services which requires that the appointments should be made on the basis of open invitation of the applications and merit. To this general rule, some exceptions are carved out to meet certain contingencies. The appointment on compassionate ground is one of such exception. The object of granting compassionate employment is to enable the family of the deceased employee to tide over the crisis due to sadden death of the breadwinner of the family leaving behind the family without any source of livelihood. The appointment on compassionate ground is one of such exception. The object of granting compassionate employment is to enable the family of the deceased employee to tide over the crisis due to sadden death of the breadwinner of the family leaving behind the family without any source of livelihood. The State Government have framed the statutory rule under the proviso of Article 309 of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 for providing the employment to a dependant of a Government servant, to mitigate the hardship caused to the family of the employee. 6. However, it is a well settled law that after a long lapse of time, there is no need to give the compassionate appointment if the family has carried on without any support. In some what similar facts and circumstances of the case, the Supreme Court in the case of Union of India & Others vs. Bhagwan Singh 1995 (6) SCC 476 held as under: “5. It is common ground, that normally all appointments on compassionate grounds should be made within a period of five years from the date of occurrence of the event entitling the eligible persons to be appointed. In this case Ram Singh died on 12.9.1972. He left behind his wife, two major sons and the respondent, a minor aged 12 years then. The respondent attained majority in 1980/81. There is no material on record to show that the respondent applied within 5 years of “the event” or within one year from the date of his attaining majority. As early as 21.9.1987 an application filed by the respondent was dismissed. The subsequent applications filed in that behalf were dismissed on 19.6.1990 and 11.6.1991. There is material on record to show that the respondent was aged 33 years at the time of making the application and the last application which was allowed by the Tribunal was one filed nearly 20 years after the death of Ram Singh. Patently the application is barred. 6. The facts of this case disclose that on the date when Ram Singh died (12.9.1972) he had, besides the respondent, who was a minor then, two major sons and a wife. The two major sons and the wife did not seek any appointment on compassionate grounds. As stated by this Court in Smt. Sushma Gosain v. Union of India : (SCC p. 470, para 9) “............. The two major sons and the wife did not seek any appointment on compassionate grounds. As stated by this Court in Smt. Sushma Gosain v. Union of India : (SCC p. 470, para 9) “............. in all claims for 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 appointment should, therefore, be provided immediately to redeem the family in distress.” 7. The above decision was followed in Phooltvati v. Union of India. The reason for making compassionate appointment, which is exceptional, is to provide immediate financial assistance to the family of a Government servant who dies in harness, when there is no other earning member in the family. Matters which should be considered while giving an appointment in public services on compassionate grounds have been laid down by a Bench of this Court in Umesh Kumar Nagpal v. State of Haryana to the following effect: (SCC pp. 139-40, para 2) “As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the 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 post held by the deceased. The whole object of granting compassionate employment is thus to enable the 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 post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of 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.................” 8. It is settled law, that even if the Court reaches the conclusion that the applicant has made out a case, all that the High Court or Administrative Tribunal can do, is only to direct the authority concerned to consider the claim of the applicant in accordance with relevant law or rules, if any.” In Haryana State Electricity Board vs. Naresh Tanwar & Another 1996 (8) SCC 23 , the Supreme Court has observed as under: “8. By the impugned judgments, the High court proceeded on the footing that compassionate appointment to achieve its purpose cannot be restricted within the time-frame of three 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. 9. It has been indicated in the decision of Umesh Kumar Nagpal 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 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.” 10. Applying the aforesaid principles in the present case, we find that the father of the appellant died on 15th March, 1982 i.e. about 40 years ago. It is averred in the writ petition that at the time of his death, the appellant was not even born and first time he moved an application in the year 2007 and at present he is more than 29 years old. 11. From the records, we find that the Joint Director, Jhansi/Chitrakoot Dham Region in his communication dated 10th February, 2017 to Director of Education (Madhyamik), Uttar Pradesh has informed that the petitioner has submitted two separate application forms in one of the form, he has mentioned the date of birth 2nd January, 1990 and in the anther form, he has mentioned the date of birth 7.5.1989. He is also submitted fabricated documents regarding his qualification. He has filed forged statement of marks of 2001, 2003 and 2004 of standard VIII and his application was filed after about 20 years of the death of his father. 12. For all the reasons mentioned above, we are of the view that there is no error in the judgment of the learned Single Judge. Accordingly, the special appeal lacks merit and is dismissed.