Andhra HC (Pre-Telangana)
G. Suryanarayana Murthy vs Govt. Of A.P., Transport R And B Dept. And ... on 10 July, 2002
Equivalent citations: 2002(5)ALT270
Author: Bilal Nazki
Bench: Bilal Nazki
JUDGMENT Bilal Nazki, J.
1. The father of the petitioner died on 29-1-90 (sic. September, 1989) in harness. He left behind the Writ Petitioner, his mother and his sister. On the date of death of his father the petitioner was minor. The petitioner's mother made an application to the Superintending Engineer seeking appointment of her son on compassionate grounds. On 31-10-89 the Superintending Engineer informed the petitioner's mother to renew the application after the petitioner becomes major. On 5-8-93 the mother of the petitioner again made an application renewing the request. The petitioner had become major in the meantime. He also filed a separate application. By an order dated 14-12-93 the third respondent rejected both the applications stating that the petitioner had become major after more than two years from the date of death of his father and therefore he was not eligible for appointment on compassionate grounds. Then the petitioner made an application for relaxing the condition laid down in G.O.Ms.No. 165, dated 20-3-89 which was also rejected. On 8-1-94 the mother of the petitioner again made a representation. This representation was not replied to. On 30th July, 1995 she gave a representation to the Minister and again her request was rejected on 22-3-96. On 3-6-96 she gave another representation which was rejected on 3-7-97. By this rejection order it was made clear to the petitioner and his mother that rules could not be relaxed. Thereafter the petitioner filed an O.A. which was also dismissed.
2. Admittedly the petitioner's father died in September, 1989. He was under-aged and he became major somewhere in 1993. He made a representation which was rejected on the ground that G.O.Ms.No. 165 stipulated that compassionate appointment could only be offered within two years of the date of death of the Government servant. Since the petitioner had not become major within the prescribed limit of two years he could not be offered compassionate appointment. Now, whether a person whose father died in harness in 1989 can be appointed on compassionate grounds in 2002 is the question before this Court. Such questions have already been decided by this Court as well as by the Apex Court. The appointment on compassionate grounds is an exception to the general rule of appointments. All appointments to the public offices have to be made in accordance with the mandate of Article 16 of the Constitution which would mean that the best suitable candidate must be appointed to a job after considering all eligible candidates. The appointment on compassionate grounds without a competition is an exception and this exception has been accepted by the Courts in our country including the Apex Court because if an earning member of a family dies suddenly and dies in harness his family would be put to financial crunch and in order to provide succor to such a family the mode of appointment on compassionate grounds has been accepted by the Courts. The purpose of such appointments is only to provide immediate help to the family whose earning member dies. The Supreme Court went even to the extent that compassionate appointment may not be offered where the family does not suffer financially in case of death of an earning member. In this case reliance may be placed on a judgment of Supreme Court in Umesh Kumar Nagpal v. State of Haryana, . The Supreme Court laid down:
"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 dependants 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 dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable to 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 pubic 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."
The Court further laid down in paragraph 6 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."
Even after this judgment, the Supreme Court in Union of India v. Bhagwan Singh, reiterated its view and in similar set of facts where an application had been made after 20 years of the death of the father of the applicant, the rules in that case prescribed that the application may be made within 5 years and the Tribunal had ordered appointment, the Supreme Court struck it down with the following observations:
"It is evident, that the facts in this case point out, that the plea for compassionate employment is not to enable the family to tide over the sudden crisis or distress which resulted as early as September 1972. At the time Ram Singh died on 12-9-1972 there were two major sons and the mother of the children who were apparently capable of meeting the needs in the family and so they did not apply for any job on compassionate grounds. For nearly 20 years, the family has pulled on, apparently without any difficulty. In this background, we are of the view that the Central Administrative Tribunal acted illegally and wholly without jurisdiction in directing the Authorities to consider the case of the respondent for appointment on compassionate grounds and to provide him with an appointment, if he is found suitable. We set aside the order of the Tribunal dated 22-2-1993. The appeal is allowed. There shall be no order as to costs."
The view that, appointment on compassionate grounds is an appointment in exception to the rules and is only permissible when the purpose is to obliviate the financial difficulties of the family of whose an earning member dies in harness, is consistently followed by the Supreme Court from the year 1994. In Haryana Electricity Board v. Naresh Tanwar, 1996 (2) SLR 11 (SC) the Supreme Court again in similar set of facts when the son was not major at the time of death of his father and he sought compassionate appointment on attaining majority, relied on the Nagpal's case (1 supra). The Supreme Court also relied on another judgment in Jagdish Prasad v. State of Bihar (C.A. No. 10682 of 1995 decided on 13-11-95) which was nor reported. In this judgment, the Supreme Court held;
"The very object of appointment of a department of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependant of a deceased Government servant which cannot be encouraged, de hors the recruitment rules."
Following the Nagpal's judgment (1 supra) the Supreme Court again ruled 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.
3. Again in State of U.P. v. Paras Nath, the Supreme Court stuck to the law laid down by it. The Court held:
"The purpose of providing employment to a dependant 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."
Following all these judgments we do not find that at this point of time the petitioner has any claim to an appointment on compassionate grounds. The Writ Petition is accordingly dismissed.