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2019 DIGILAW 42 (ALL)

Pratibha Dubey v. State of U. P.

2019-01-04

SUDHIR AGARWAL

body2019
JUDGMENT : SUDHIR AGARWAL, J. 1. Heard Sri Shiv Sagar Singh, learned counsel for petitioner and learned Standing Counsel for respondents. 2. Petitioner is claiming a mandamus commanding respondents to give her compassionate appointment on the post of Constable (Ministerial), a Group 'C' post under U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the “Rules, 1974”). 3. Petitioner's husband, Krishna Nand Dubey was a Constable in U.P. Police Force and died in harness on 14.07.1993. Thereafter petitioner applied for compassionate appointment in 1996 after acquiring education so as to claim appointment on a higher status post. This itself shows that petitioner immediately after death of her husband did not suffer penurious condition so as to require immediate succor for her maintenance and, therefore, the very objective of compassionate appointment would have forfeited if petitioner would have been given appointment after three years. Still, respondents considered petitioner's application made in 1996 and offered her appointment on a Class-IV post on 22.04.1998 but petitioner insisted for compassionate appointment on a Group 'C' post and did not accept offer of appointment made in 1998 on Class-IV post. 4. In these circumstances, in my view, petitioner's right to claim compassionate appointment stood exhausted as held by Supreme Court in State of Rajasthan Vs. Umrao Singh, 1994(6) SCC 560 wherein Court has clearly held that once an appointment has been made and the incumbent has joined on a lower post, right to claim compassionate appointment exhausted on that very date and he cannot be allowed to set up his claim for appointment on a higher post on compassionate basis and the decision given by High Court of Rajasthan otherwise was reversed by Apex Court. In para 8 of the judgment, Court held: "...He was appointed to the post of LDC by order dated 14.12.1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of "endless compassion".” 5. In a case where compassionate appointment is offered but not accepted by the person concerned, in such a case also right to claim compassionate appointment will stand exhausted. 6. Again this issue was considered by a Division Bench of this Court in Dinesh Chandra Sharma Vs. Otherwise, it would be a case of "endless compassion".” 5. In a case where compassionate appointment is offered but not accepted by the person concerned, in such a case also right to claim compassionate appointment will stand exhausted. 6. Again this issue was considered by a Division Bench of this Court in Dinesh Chandra Sharma Vs. District Inspector of Schools, Meerut and others, 2000(4) AWC 3262 . There the legal heir of the deceased employee was given appointment on compassionate basis as Clerk. Subsequently, he became qualified for the post of Assistant Teacher and claimed that he was entitled to be considered for appointment on the said post on compassionate ground. Relying on Umrao Singh (supra), Court held that once appointment has been made on compassionate ground, the claimant is not entitled to get any other appointment on different post simply because he has now obtained qualification for other post subsequently. 7. In Kamlesh Kumar Pandey Vs. State of U.P. and another 2001 (3) UPLBEC 2188 , Sri Pandey was appointed on compassionate basis as a Class-IV employee. He accepted appointment and joined service without any objection. Claiming thereafter appointment on a class-III post he approached this Court. Rejecting the claim, it was held: "Once having accepted an appointment, may be on Class-IV post under existing situation out of will and volition, the 'chapter' of Dying in Harness is closed. No one should be permitted to reagitate this matter in future on the basis of change of circumstances in further leaving everything in turmoil and in a state of indecisiveness. It if is permitted, no litigation will ever come to an end." (Para 10) 8. Similar is the view taken by another Single Judge in Raghunandan Pandey Vs. District Inspector of Schools, Basti and others, 2004(3) AWC 2535 and in para 8 of the judgment the Court said: "It is well settled that appointment on compassionate ground is given only to tide away the sudden financial crisis which the family of the deceased employee faces because of the sudden death of the sole bread earner of the family. Thus, once a member of the family of the deceased employee is given appointment on such ground, which is also accepted by the claimant, the reason for giving such appointment, which is for support to the family of the deceased employee, does not exist thereafter. Thus, once a member of the family of the deceased employee is given appointment on such ground, which is also accepted by the claimant, the reason for giving such appointment, which is for support to the family of the deceased employee, does not exist thereafter. The appointment under the Dying-in-Harness Rules cannot be made an alternate source or mode of appointment." 9. In Shyamdhar Mishra Vs. State of U.P., 2006(2) AWC 1415 reiterating the aforesaid view following Umrao Singh (supra), this Court in para 9 of the judgment held: "In my view, once the appointment is made on the compassionate ground, the said rule comes to an end and no further appointment could be made under the said Rules. The authority could not, in any manner, reconsider the case of the petitioner or of any other person where an appointment had already been given at some anterior point of time, on compassionate ground under the Dying-in-Harness Rules." (emphasis added) 10. The same thing has been reiterated in Suresh Prasad Singh Vs. State of U.P. and others, 2006(4) AWC 3718 (para 5). 11. Another Division Bench of this Court, following Umrao Singh (supra), in Shardendu Tiwari Vs. State of U.P. & others in Special Appeal 908 of 2006 decided on 22.8.2006 held as under : "The submission of learned Standing Counsel that once compassionate appointment is accepted, the right is exhausted and there cannot be any second consideration for the same right is well founded. The judgment of Apex Court in State of Rajasthan (supra) fully support the said submission." 12. In Rajesh Mahajan Vs. State of U.P. and others 2014 (2) ADJ 55 , this Court said “Once an appointment is made on compassionate basis, the incumbent ceased to have any right to claim further appointment on any other post equivalent or higher status”. 13. Here also, learned Single Judge relied on judgment in State of Rajasthan Vs. Umrao Singh (supra). 14. Moreso, husband of petitioner died in 1993 and in 1998 when compassionate appointment was offered on Class-IV post petitioner could afford to refuse the same by insisting that she should have been given compassionate appointment on a higher status post. It clearly shows that petitioner never suffered any penurious condition. This writ petition has been filed in 2004 and today we are in 2019. It clearly shows that petitioner never suffered any penurious condition. This writ petition has been filed in 2004 and today we are in 2019. Looking to entire facts and circumstances of case, the mandamus as sought by petitioner cannot be issued since the very purpose of compassionate appointment will stand defeated if after such a long time any direction for compassionate appointment is issued. 15. A direction for appointment on compassionate basis after a long time has seriously been deprecated by Court in Union of India Vs. Bhagwan 1995 (6) SCC 436, Haryana State Electricity Board Vs. Naresh Tanwar, (1996) 8 SCC 23 . In the later case, Court said: “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. ….. 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. In Managing Director, MMTC Ltd., New Delhi and Anr. Vs. Pramoda Dei Alias Nayak 1997 (11) SCC 390 , Court said: “As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tied over the sudden financial crises and not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment.” 17. In Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors. AIR 1998 SC 2230 , Court said: “The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread earner which has left the family in penury and without any means of livelihood.” 18. In State of U.P. & Ors. Vs. Paras Nath, AIR 1998 SC 2612 , Court said: “The purpose of providing employment to a dependent of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. In State of U.P. & Ors. Vs. Paras Nath, AIR 1998 SC 2612 , Court said: “The purpose of providing employment to a dependent of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case.” 19. In S. Mohan Vs. Government of Tamil Nadu and Anr. 1999 (I) LLJ 539, Court said: “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.” 20. In Sanjay Kumar Vs. The State of Bihar & Ors. AIR 2000 SC 2782 it was held: “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” 21. In Haryana State Electricity Board Vs. Krishna Devi JT 2002 (3) SC 485 = 2002 (10) SCC 246, Court said: “As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we are of the opinion that it was not to meet the immediate financial need of the family ....” 22. In Punjab National Bank & Ors. Vs. Ashwini Kumar Taneja AIR 2004 SC 4155 , court said: “It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis.” 23. In National Hydroelectric Power Corporation & Anr. Vs. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis.” 23. In National Hydroelectric Power Corporation & Anr. Vs. Nanak Chand & Anr. AIR 2005 SC 106 , Court said: “It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises.” 24. In State of Jammu & Kashmir Vs. Sajad Ahmed AIR 2006 SC 2743 , Court said: “Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the set back. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution.” (emphasis added) 25. In I.G. (Karmik) and Ors. v. Prahalad Mani Tripathi 2007 (6) SCC 162 , Court said: “Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion.” 26. In Mumtaz Yunus Mulani Vs. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion.” 26. In Mumtaz Yunus Mulani Vs. State of Maharashtra & Ors, 2008 (11) SCC 384 , Court held that now a well settled principle of law is that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or public sector undertakings is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over sudden financial crises. 27. Following several earlier authorities, in M/s Eastern Coalfields Ltd. Vs. Anil Badyakar and others, (2009) 13 SCC 122 = JT 2009 (6) SC 624 the Court said: “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.” 28. In Santosh Kumar Dubey Vs. State of U.P. & Ors. 2009 (6) SCC 481 , Court said: “The very concept of giving a compassionate appointment is to tide over the financial difficulties that is faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in Government service.” 29. The Court considered that father of appellant Santosh Kumar Dubey (supra) became untraceable in 1981 and for about 18 years the family could survive and successfully faced and over came the financial difficulties. This also cannot be treated as a bonanza and also as a right to get an appointment in Government service.” 29. The Court considered that father of appellant Santosh Kumar Dubey (supra) became untraceable in 1981 and for about 18 years the family could survive and successfully faced and over came the financial difficulties. In these circumstances it further held: “That being the position, in our considered opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions.” 30. The importance of penury and indigence of family of deceased employee and need to provide immediate assistance for compassionate appointment has been considered in Union of India (UOI) & Anr. Vs. B. Kishore 2011(4) SCALE 308. This is relevant to make the provisions for compassionate appointment valid and constitutional else the same would be violative of Articles 14 and 16 of the Constitution of India. Court said: “If the element of indigence and the need to provide immediate assistance for relief from financial deprivation is taken out from the scheme of compassionate appointments, it would turn out to be reservation in favour of the dependents of an employee who died while in service which would be directly in conflict with the ideal of equality guaranteed under Articles 14 and 16 of the Constitution.” 31. It is thus clear that rule of compassionate appointment has an object to give relief against destitution. It is not a provision to provide alternate employment or an appointment commensurate with the post held by the deceased employee. It is not by way of giving similarly placed life to the dependents of the deceased. While considering the provision pertaining to relaxation under Rules, 1974 the very object of compassionate appointment cannot be ignored. This is what has been reiterated by a Division Bench of this Court in Smt. Madhulika Pathak Vs. State of U.P. & ors. 2011 (3) ADJ 91 . 32. In Bhawani Prasad Sonkar Vs. While considering the provision pertaining to relaxation under Rules, 1974 the very object of compassionate appointment cannot be ignored. This is what has been reiterated by a Division Bench of this Court in Smt. Madhulika Pathak Vs. State of U.P. & ors. 2011 (3) ADJ 91 . 32. In Bhawani Prasad Sonkar Vs. Union of India and others (2011) 4 SCC 209 , Court said that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our Constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of Constitution of India. No other mode of appointment is permissible. Nevertheless, concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, scheme has to be strictly construed and confined only to the purpose it seeks to achieve. 33. In MGB Gramin Bank Vs. Chakrawarti Singh (2014) 13 SCC 583 , Court has said that compassionate appointment cannot be granted as of right and application for compassionate appointment need be decided as expeditiously as possible. Compassionate appointment is not a vested right. Courts should not stretch the scheme for compassionate appointment by liberal interpretation on humanitarian grounds beyond permissible limits so as to allow compassionate appointment after a long time from the date of death. Either such appointments are made immediately or within a reasonable time of death and if appointment is not claimed for long time or made, it would be travesty of justice to compassionate appointment after a long time. 34. This has been followed in Canara Bank and others Vs. M. Mahesh Kumar and others (2015) 7 SCC 412 . Court stressed upon aforesaid recent authorities that every appointment to public office must strictly adhere to the mandatory requirement of Articles 14 and 16 of Constitution of India. 34. This has been followed in Canara Bank and others Vs. M. Mahesh Kumar and others (2015) 7 SCC 412 . Court stressed upon aforesaid recent authorities that every appointment to public office must strictly adhere to the mandatory requirement of Articles 14 and 16 of Constitution of India. Compassionate appointment is an exception so as to provide employment to remove financial constraints suffered by bereft family of a government servant who die in harness and family has lost its bread earner. However, it was held that mere death of a government employee in harness does not entitle the family to claim compassionate appointment. 35. In view of above discussion, no relief can be granted to petitioner. Writ petition lacks merit. Dismissed accordingly. 36. Interim order, if any, stands vacated.