Allahabad High Court
Smt. Asha Devi And Another vs State Of U.P. Thru' The Principal ... on 5 April, 2018
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 13 AFR Case :- WRIT - A No. - 33241 of 2007 Petitioner :- Smt. Asha Devi And Another Respondent :- State Of U.P. Thru' The Principal Secretary And Others Counsel for Petitioner :- Dr. Daya Shanker,Bipin Lal Srivastava,Siddharth Varma Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.
Petitioner's husband was forest guard and died in harness on 11.08.1992. He was survived by his widow and two sons and two daughters as well. It transpires from the record that an application was moved by the petitioner no. 1 seeking appointment on compassionate ground vide application dated 14.2.1993 but subsequently, she withdrew her application on 15.3.1993 and the ground taken for withdrawal of the application is that she had small children and she had to look-after them. However, she requested in the withdrawal application itself that after his sons become major, they should be given compassionate appointment.
Application of withdrawal of claim, which has been filed alongwith counter affidavit, has been admitted by the petitioners in the rejoinder affidavit.
The petitioners have placed reliance Judgements of this Court on Manoj Kumar Saxena v. District Magistrate, Bareilly and Others, (2000)2 UPLBEC 1694 Chandra Deo Srivastava vs. State of U.P. and Others and Vivek yadav v. State of U.P. and Others, (2010) 4 UPLBEC, 2776 I find that even though sons had become major in the year 2001 and yet petitioners failed to approach this Court for long six years and this writ petition has been filed in the year 2007 only. The object behind the compassionate appointment is to mitigate the immediate hardship due to the sudden death of the bread-earner in the family. After lapse of 25 years when the family has already survived for so many years the very purpose has come to end.
Moreover, there is no vested right to compassionate appointment. Instructions and Rules providing for compassionate appointment have come to be considered time and again by courts and it is now settled that there is no permanent guarantee of appointment on compassinate ground.
In case of Commissioner of Public Instructions and Others v. K.R. Vishwanath, the Apex Court dealt at length with the object regarding appointment on compassionate ground and observed:
"As was observed in State of Haryana and Ors. v. Rani Devi & Anr. (AIR 1996 SC 2445), it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased-employee. Strictly this 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. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased-employee. In Rani Devi's case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of India v. Asha Ramchandra Ambekar (Mrs.) and Anr. (1994 (2) SCC 718), it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. (1994 (4) SCC 138), that as a rule in public service appointment should be made strictly on the basis of open invitation of application and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of 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. But such appointments on compassionate ground 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."
In Smt. Sushma Gosain and Ors. v. Union of India and Ors. (1989 (4) SCC 468), it was observed that in all claims of 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 appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without anyThe above view was reiterated in Phoolwati (Smt.) v. Union of India and Ors. (1991 Supp (2) SCC 689), and Union of India and Ors. v. Bhagwan Singh (1995 (6) SCC 476). In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. (1998 (5) SCC 192), it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased-employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision time consciousness or limit.The above view was reiterated in Phoolwati (Smt.) v. Union of India and Ors. (1991 Supp (2) SCC 689), and Union of India and Ors. v. Bhagwan Singh (1995 (6) SCC 476). In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. (1998 (5) SCC 192), it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased-employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision."
(emphasis supplied) In a most recent decision while dealing with issue of compassionate appointment in matters where the issue was that dependent was a minor and the question of relaxation in terms of time or age the full bench has formulated the principles as most guiding factors governing compassionate appointment under the Dying-in-Harness Rules vide para 29 and 30 of the judgment of the full bench in Shiv Kumar Dubey v. State of U.P. 2014 (2) ADJ 312 (FB) that read as under:
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. 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. 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.
30. As regards the judgment of the Division Bench in Vivek Yadav (supra), the first part of the judgment of the Division Bench in Vivek Yadav's case holds in paragraph 4 that since Rule 5 contemplates an application by a competent person, in a case where the applicant is a minor, it will not be possible for a minor to make an application during the period of his minority. Therefore, considering the object of the Rules, it was held that the proviso to Rule 5 must normally be exercised in such cases. This observation, with respect, requiring that the proviso to Rule 5 must normally be exercised for the purpose of dealing with a case in a just and equitable manner would not be reflective of the correct position in law. The subsequent decision in Subhash Yadav (supra) only holds that the Government cannot dismiss an application which has been moved after five years blindfolded but has to apply its mind rationally to all the facts and circumstances of the case. In this regard, we clarify that the second proviso to Rule 5 requires an applicant, who invokes the power of dispensation or relaxation under the first proviso of the time limit of five years, to make out a case of undue hardship by elucidating, in writing, with necessary documentary evidence and proof, the reasons and justification for the delay. The Government may, in an appropriate case, when it is satisfied on the basis of the material that a case of undue hardship is made out, exercise the power which is conferred upon it under the first proviso to Rule 5 of the Rules but this power has to be exercised where a demonstrated case of undue hardship is made out to the satisfaction of the State Government. We answer the reference accordingly in the aforesaid terms.
The case in hand is worse where the compassionate appointment was already offered well within time to the widow of the deceased considering the immediacy but she had her own volition refused to except the offer only on the ground that her children were not major, but there was no order deferring the offer to a later stage. Further even though after minor son became major and moved application seeking appointment on compassionate basis, he did not approach the Court will within reasonable time for consideration of his application.
Now at this stage any consideration for a compassionate appointment would certainly amount to violation to the spirit of object behind the scheme of compassionate appointment and the rules framed in that regard. No exception in normal condition can be drawn to the procedure to be followed in matters of public employment and no policy which has been framed up as a rule to carve out exception to this general rule, can be stretched too far, to frustrate the rule of law that guarantees to the citizen equality before law in matters of public employment.
In Umesh Kumar Nagpal v. State of Haryana and Others (1994) 4 SCC 138, the Apex Court has held that such appointments are exception to the general rule of open appointment and is aimed to relief from immediate hardship and such consideration, therefore, cannot be kept binding for years.
The writ petition therefore lacks merit and is accordingly dismissed.
Order Date :- 5.4.2018 Sanjeev