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2020 DIGILAW 1286 (ALL)

Om Prakash v. State Of U. P.

2020-11-04

PRADEEP KUMAR SRIVASTAVA, PRITINKER DIWAKER

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JUDGMENT : Pritinker Diwaker, J Order on Civil Misc. Delay Condonation Application 1. Heard learned counsel for the appellant on the application seeking condonation of delay in filing the appeal. 2. For the reasons mentioned in the application, the same is allowed. 3. Delay in filing the appeal is condoned. 4. Office to allot regular number to the appeal. Order on Appeal 5. Sri Prakash Chandra Srivastava, for the appellant, Sri Shad Khan, for the respondent nos. 2 & 3 and Sri Ankit Gaur, learned State counsel for respondent no. 1. 6. Challenge in this appeal is to the order dated 09.09.2020 passed by learned Single Judge dismissing the writ petition filed by the appellant seeking compassionate appointment. 7. Facts of the case in brief are that one Chameli Devi, who was working as Peon in the Department of Vidyut Janpad Anurakshan Khand-First, Kasimpur, Aligarh died during service on 03.11.2011. The appellant claiming himself to be adopted son of Chameli Devi, filed an application seeking compassionate appointment. As the relation between the appellant and the deceased was doubted by the department, the appellant approached the civil court for obtaining succession certificate. It has been informed that second appeal between the parties in this relation is still pending before this Court. 8. When the compassionate appointment was denied to the petitioner, he filed the writ petition before this Court seeking compassionate appointment. By the impugned judgment, writ Court has dismissed the writ petition on the ground that as on date, the appellant is overage and, therefore, he is not entitled for compassionate appointment. 9. Learned counsel for the appellant submits that there is no upper age limit prescribed for appointing a person on compassionate ground and, therefore, the writ Court has erred in law in dismissing the writ petition. He submits that immediately after the death of his mother, the appellant had applied for compassionate appointment and he cannot be blamed for any delay, if occurred, on the part of department. He admits that as on date, the appellant is aged about 46 years and has already received about Rs. 13 Lakhs towards the retiral dues of the deceased. 10. We have heard the parties. 11. He admits that as on date, the appellant is aged about 46 years and has already received about Rs. 13 Lakhs towards the retiral dues of the deceased. 10. We have heard the parties. 11. In our opinion, the only issue which has to be examined is whether the applicant, who has already received the retiral dues and praying for compassionate appointment, after a delay of long period, aged about 46 years at present is entitled to compassionate appointment or not. 12. It is trite to say that law in respect of compassionate appointment is very clear and the same cannot be treated as a bounty and is to be given to the needy if the said person is facing hardship. There cannot be inherent right to compassionate appointment but rather, it is a right to provide a succor to a needy family. 13. In the case of Umesh Kumar Nagpal v. State of Haryana [ (1994) 4 SCC 138 ], the Apex Court held that: “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.” 14. An appointment on compassionate basis claimed after a long time has seriously been deprecated in Union of India Vs. Bhagwan 1995 (6) SCC 436 and Haryana State Electricity Board Vs. Naresh Tanwar, (1996) 8 SCC 23 . The Court has 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." 15. In State of U.P. & Ors. Vs. 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." 15. In State of U.P. & Ors. Vs. Paras Nath AIR 1998 SC 2612 , the 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." 16. 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." 17. 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." 18. In SBI v. Anju Jain, (2008) 8 SCC 475 , Court said: “Appointment on compassionate ground is never considered a right of a person. In fact, such appointment is violative of rule of equality enshrined and guaranteed under Article 14 of the Constitution. As per settled law, when any appointment is to be made in Government or semi-government or in public office, cases of all eligible candidates must be considered alike. That is the mandate of Article 14. Normally, therefore, the State or its instrumentality making any appointment to public office, cannot ignore such mandate. As per settled law, when any appointment is to be made in Government or semi-government or in public office, cases of all eligible candidates must be considered alike. That is the mandate of Article 14. Normally, therefore, the State or its instrumentality making any appointment to public office, cannot ignore such mandate. At the same time, however, in certain circumstances, appointment on compassionate ground of dependants of the deceased employee is considered inevitable so that the family of the deceased employee may not starve. The primary object of such scheme is to save the bereaved family from sudden financial crisis occurring due to death of the sole bread earner. It is thus an exception to the general rule of equality and not another independent and parallel source of employment.” 19. In the present case, the appellant has already survived for more than nine years after the death of his mother and as such, he had no financial constraint. Moreover, he has already received Rs. 13 Lakhs towards the retiral dues of his mother and thus, has sufficient amount for his survival. Law in this respect is also clear. In the case of Punjab National Bank & Ors V. Ashwini Kumar Taneja (2004) 7 SCC 265 , and in General Manager (D&PB) & Ors V Kunti Tiwari & Anr (2004) 7 SCC 271 , the Apex Court has held that: “compassionate appointment has to be made in accordance with the Rules, Regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. Whereas the scheme provides that in case the family of the deceased gets the retrial/terminal benefits exceeding a particular ceiling, the dependant of such deceased employee, would not be eligible for compassionate appointment.” 20. Considering the cumulative effect of the entire facts, we are of the view that the appellant is not entitled for compassionate appointment. Learned single Judge was justified in dismissing the writ petition. The appeal has no substance, the same is accordingly dismissed.