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Allahabad High Court · body

2025 DIGILAW 1325 (ALL)

Archana Gautam v. State of U. P.

2025-11-15

AMITABH KUMAR RAI

body2025
JUDGMENT : AMITABH KUMAR RAI, J. 1. Heard Shri Arun Kumar Shukla, learned counsel for the petitioner, Shri Badrish Tripathi, learned Standing Counsel for the State-respondent Nos.1, 3, Shri Pradeep Tiwari, learned counsel for respondent No.2 and Shri Ran Vijay Singh, learned counsel for the respondent No.4. 2. The present writ petition has been filed seeking relief for issuance of writ of mandamus directing respondents to appoint petitioner on a suitable post according to her qualification under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as “Rules 1974” ) on compassionate grounds. 3. The facts which emerge from the record are that the father of the petitioner, namely, late Mahadeo Prasad died on 26.05.1990 while working on the post of Headmaster, Prathmik Vidyalaya, New Hyderabad, Ward Hasanganj, Lucknow. The petitioner, after attaining the age of majority, applied for appointment under Rules, 1974 on compassionate grounds through an application dated 10.10.1993 before the Secretary, Basic Shiksha, Anubhag-5, U.P. Government, Lucknow. Subsequent applications were also moved by the petitioner on 19.10.1993 and 22.11.1993 before Anubhag Adhikari, Shiksha Anubhag-5, U.P. Sachivalaya, Lucknow and District Basic Education Officer, Nagar Mahapalika, Lucknow respectively. The mother of the petitioner also submitted an affidavit dated 21.10.1994 recommending compassionate appointment in favour of the petitioner and the brother of the petitioner also gave a no-objection for providing compassionate appointment to the petitioner. 4. It is the case of the petitioner that despite completion of all formalities, the respondents did not pass any order for providing compassionate appointment to the petitioner. Consequently, petitioner represented the matter before the then Chief Minister of the State of U.P., on which a recommendation was made on 07.11.2002 by the Secretary to the Chief Minister directing the Secretary, Basic Education, Government of U.P. to take necessary action. Subsequently, the Nagar Shiksha Adhikari, Lucknow wrote letter to the Secretary, Basic Education Board, U.P., Allahabad dated 28.03.2003 seeking guidelines for the grant of compassionate appointment to the petitioner. Another letter dated 19.02.2004 was issued by the Joint Secretary, Government of U.P., Shiksha, Anubhag-5 to the Secretary, Basic Shiksha Parishad, U.P., Allahabad for considering the case of petitioner for grant of compassionate appointment. 5. Another letter dated 19.02.2004 was issued by the Joint Secretary, Government of U.P., Shiksha, Anubhag-5 to the Secretary, Basic Shiksha Parishad, U.P., Allahabad for considering the case of petitioner for grant of compassionate appointment. 5. The sum and substance of the aforesaid correspondences is that several representations were moved by the petitioner for grant of compassionate appointment and the authorities kept the matter pending while making several inter-departmental correspondences but did not take any decision regarding consideration of the case of the petitioner for compassionate appointment. Ultimately, the petitioner filed the instant writ petition, in which this Court, vide order dated 27.05.2004, granted four weeks’ time to the counsel for the Basic Shiksha Adhikari to file a counter affidavit. In pursuance of the directions of this Court, the counter affidavit was filed, to which the petitioner also filed a rejoinder affidavit. During the course of the hearing of the present case, it transpires from order sheet that vide order dated 28.08.2006, it was recorded that the counter affidavit is not available on record and the learned counsel for the petitioner was permitted to file a copy of the counter affidavit after certifying it to be a true copy. However, from the record, it transpires that no such copy has been filed till date, though the rejoinder affidavit is available on record. On 01.08.2023, the instant writ petition was dismissed for want of prosecution, as no one appeared to press the matter on behalf of the petitioner. An application for recall was moved on 05.12.2023 and the writ petition was restored vide order dated 19.02.2024. 6. The matter pertains to the year 2004 regarding claim for compassionate appointment with respect to a deceased employee who died way back in the year 1990. As such, this Court did not consider it proper to further adjourn the present case. Accordingly, the present writ petition is being decided on the basis of the pleading in the memo of the writ petition. 7. During the course of hearing, the counsel for the petitioner contended that the case of the petitioner was kept pending and the authorities did not consider her claim for compassionate appointment, which amounts to inaction on the part of the respondents. Accordingly, appropriate directions be issued for consideration of the case of the petitioner for compassionate appointment on a suitable post which may be provided by the respondents. 8. Accordingly, appropriate directions be issued for consideration of the case of the petitioner for compassionate appointment on a suitable post which may be provided by the respondents. 8. From the various correspondences between the departmental authorities, it transpires that the case of the petitioner could not be considered for compassionate appointment as there was some doubt regarding the eligibility, since the father of the petitioner, before his death, had attained the age of superannuation but was continuing in service owing to the extension of retirement on the account of session benefit and for the said reason, the petitioner’s case for compassionate appointment could not be considered. In this regard, the counsel for petitioner has pointed out the letter dated 14.10.1998 of the Secretary, U.P. Basic Shiksha Parishad, Allahabad, annexed to the writ petition as Annexure-11, wherein it has been clarified that the dependent of a teacher who continues to work on the basis of session benefit or being an awardee of a national/State award after attaining superannuation is also entitled to compassionate appointment, if the such teacher dies within such period. 9. It is the specific case of the petitioner that non-consideration of her claim for compassionate appointment is due to the fault of the department, as any doubt, if at all, stood clarified way back by the letter dated 14.10.1998 issued by the Secretary, U.P. Basic Shiksha Parishad, Allahabad. Hence, the petitioner cannot be made to suffer due to the failure of the department in keeping the matter pending and not considering her case for compassionate appointment. 10. The object of grant of compassionate appointment to a dependent of a deceased employee is to tide over the immediate crisis so as to enable the family of the deceased employee to get over the financial crises caused by the death of the sole bread earner. Out of pure humanitarian condition and having regard to the fact that unless one source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful employment to one of the dependents of the deceased employee who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment to posts by following a prescribed procedure. Such a provision makes a departure from the general provisions providing for appointment to posts by following a prescribed procedure. Since such a provision enables appointment without following the regular procedure, it is in the nature of an exception to the general rule. 11. The Full Bench of this Court in the case of Shiv Kumar Dubey vs. State of U.P. and Ors. 2014 SCC Online All 16214 : (2015) 3 All LJ 420 , formulated the principles governing compassionate appointment under the Rules, 1974 in paragraph 29 of the judgment. Paragraph 29 of the judgment is reproduced herein below:- “29. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules: (i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved; (ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules; (iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner; (iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment; (v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out; (vi) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner; (vii) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government; (viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family. ” 12. One of the factors for consideration of compassionate appointment, as per the principle formulated at Sl. No. ‘(v)’ of paragraph 29 is that if a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining whether a case for the grant of compassionate appointment has been made out. 13. In the present case, the father of the petitioner died way back in the year 1990 and thus, after the lapse of 35 years, the sense of immediacy for seeking compassionate appointment has came to an end. The next question that arises for consideration is that the petitioner filed the writ petition in the year 2004 and it was the departmental authorities who failed to take any decision. Hence, due to the fault of the departmental authorities, the petitioner cannot be made to suffer, as her case for compassionate appointment was never considered by the department, though she was entitled to such consideration. 14. The facts of the case indicate that the sense of immediacy in the matter of compassionate appointment has been lost, which is attributable to the departmental authorities to a great extent, but to some extent to the petitioner also, as after the death of the deceased employee in the year 1990 and submission of the application seeking compassionate appointment way back in the year 1993, the respondent filed writ petition only in the year 2004, i.e., after 11 years of the submission of application. Now at this juncture, to entertain a claim for compassionate appointment after 35 years of the death of the deceased employee would be of no avail, because admittedly, the dependents of the deceased employee have been able to eke out a living even though petitioner could not secure appointment on compassionate grounds. Now at this juncture, to entertain a claim for compassionate appointment after 35 years of the death of the deceased employee would be of no avail, because admittedly, the dependents of the deceased employee have been able to eke out a living even though petitioner could not secure appointment on compassionate grounds. The compassionate appointment is not source of recruitment but is an exception to the general rule of recruitment to tide over the immediate crisis so as to enable the family of the deceased employee to get over the financial crises caused by the death of the sole bread earner. 15. This Court is of the view that it is not a fit case to direct the departmental authorities to consider the case of appointment of the petitioner on compassionate grounds after the lapse of 35 years from the death of the deceased employee at this stage. At the same time, the Court deprecates the manner in which the departmental authorities dealt with the application for compassionate appointment of the petitioner. The delay on the part of the departmental authorities in taking a decision regarding such claims frustrates the very object of the scheme of compassionate appointment. The Government officials should act with utmost proactiveness and immediacy while deciding claims of compassionate appointment so as to ensure that the wholesome object of the scheme is fulfilled. 16. Recently, the Hon’ble Supreme Court in the case of State of West Bengal vs. Debabrata Tiwari and others , (2025) 5 SCC 712 : 2023 SCC Online SC 219 , while dealing with a somewhat similar issue, held that a direction for consideration of compassionate appointment after a long lapse of time cannot be given as the sense of immediacy stands lost, though the delay was attributable to the authorities of the appellant-State as well. Paragraph 46 of the judgment is reproduced herein below:- “46. The sense of immediacy in the matter of compassionate appointment has been lost in the present case. This is attributable to the authorities of the Appellant-State as well as the Respondents-Writ Petitioners. Now, entertaining a claim which was made in 2005-2006, in the year 2023, would be of no avail, because admittedly, the Respondents-Writ Petitioners have been able to eke out a living even though they did not successfully get appointed to the services of the Municipality on compassionate grounds. Now, entertaining a claim which was made in 2005-2006, in the year 2023, would be of no avail, because admittedly, the Respondents-Writ Petitioners have been able to eke out a living even though they did not successfully get appointed to the services of the Municipality on compassionate grounds. Hence, we think that this is therefore not fit cases to direct that the claim of the Respondents-Writ Petitioners for appointments on compassionate grounds, be considered or entertained.” 17. In view of the above discussions, this Court is not inclined to issue any such direction for consideration of the case of the petitioner for grant of compassionate appointment after lapse of 35 years from the death of the deceased employee. 18. The writ petition is, accordingly, dismissed . No order as to costs.