Allahabad High Court
Sharad Kumar vs State Of U.P. Thru Secretary Law Deptt. & ... on 2 April, 2019
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 20 Case :- SERVICE SINGLE No. - 2754 of 2012 Petitioner :- Sharad Kumar Respondent :- State Of U.P. Through Secretary Law Department & 2 Others Counsel for Petitioner :- Ramesh Kumar Srivastava,Suresh Chandra Tiwari Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Manish Kumar Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner, learned Additional Chief Standing counsel appearing for the respondent no. 1 and Sri Utsav Mishra, Advocate holding brief of Sri Gaurav Mehortra, learned counsel appearing for the respondents no. 2 and 3.
2. By means of the present petition, the petitioner has prayed for the following reliefs:-
"(i) A writ, order, direction in the nature of the certiorari quashing the impugned rejection order dated 27.01.2006, 07.08.2009, 06.02.2010 and 27.03.2010 which are being enclosed as Annexure No. 1 to 3 to the writ petition.
(ii) A writ order order or direction in the nature of certiorari quashing the impugned order dated 25.01.2006 after summoning the original from the opposite parties.
(iii) A writ, order or direction in the nature of mandamus commanding the opposite parties to reconsider the case of the petitioner for compassionate appointment on the post of IV class establishment.
(iv) Issue any other suitable writ, order or direction which the Hon'ble Court may deem fit and proper in the circumstances of the case as also in the interest of justice."
3. The case set forth by the petitioner is that the father of the petitioner Sri Shiv Bhajan was posted as Class IV employee on the post of Peon under the District Judge, District-Hardoi and died-in-harness on 25.09.1994. It is contended that at the time of death of his father, the petitioner was a minor having been born in the year 1986 and thus was about eight years of age at the time of death. It is further contended that the mother of the petitioner had submitted an application for being given compassionate appointment but her case was not considered on the ground of she having crossed the prescribed age limit of 32 years inasmuch as at the time of submitting her application, she was aged about 38 years.
4. Be that as it may, the petitioner attained majority in the year 2004 and thereafter for the very first time moved an application on 10.01.2006 for consideration of his case for compassionate appointment. Copy of application dated 10.01.2006 is annexure 4 to the writ petition. The said application of the petitioner was rejected on 27.01.2006, copy of which has been filed as annexure 1 to the writ petition. Instead of challenging the said order, the petitioner preferred an application for review of the order dated 27.01.2006 on the ground of it being non speaking which resulted into a second rejection order dated 07.08.2009, a copy of which has been filed as annexure 2 to the writ petition. Thereafter, the petitioner preferred Writ Petition No. 358 (SS) of 2010 Inre; Sharad Kumar Vs. State of U.P and Ors which was disposed of by this Court vide judgment and order dated 27.01.2010 with the direction to the respondent no. 2 to consider the petitioner's representation for compassionate appointment and decide the same within a specified time. Incidentally, the said judgment has not been brought on record in the present petition. The judgment of this Court dated 27.01.2010 thereafter resulted in the respondents passing the third rejection order dated 27.03.2010, a copy of which is annexure 3 to the writ petition. More than two years later, the petitioner preferred the present petition on 28.05.2012 challenging the three rejection orders dated 27.01.2006, 07.08.2009 and 27.03.2010, copies of which are annexures 1, 2 and 3 to the writ petition.
5. Learned counsel for the petitioner while seeking to challenge the aforesaid three orders contends that the claim of the petitioner was initially rejected through an order of 27.01.2006 which order was patently non speaking and did not contain any reasons and subsequently an application for review filed by the petitioner, the second rejection order was passed on 07.08.2009. Thereafter, in pursuance to the judgment and order dated 27.01.2010 passed by this Court for deciding the representation, the respondent proceeded to pass third order of rejection dated 27.03.2010 which again is a non speaking order and thus it is contended that the respondents have proceeded in a patently arbitrary manner in rejecting the claim of the petitioner for compassionate appointment and the orders have been passed in a very casual and mechanical manner and the same is the violative of Article 14 and 16 of the Constitution of India.
6. Learned counsel for the petitioner also contends that the reasons for rejection of his claim are only forthcoming in the second rejection order dated 07.08.2009 which indicates that the petitioner has approached after a period of more than five years of the death of the employee and the reasons assigned in the said rejection order that a person should approach immediately in order to meet over the financial crisis and financial hardship cannot be conceded inasmuch as the petitioner was a minor at the time of death of his faterh but after attaining majority has been running from pillar to post for the redressal of his grievances and for getting compassionate appointment but no avail. It is thus contended that the impugned orders thus merit to be quashed and the respondents be directed to reconsider the case of the petitioner for compassionate appointment on a suitable post.
7. Learned counsel for the petitioner has cited the following judgments in support of his contentions:-
(i) Subhash Yadav Vs. State of U.P and Ors reported in 2011 (1) ESC 136 (All) (DB)
(ii) Durgesh Kumar Upadhayay Vs. State of U.P and Ors reproted in 2015 (33) LCD 2369
(iii) Bachchha Raj Vs. State of U.P and Ors reported in 2016 (34) LCD 709
(iv) Adams Paul and Ors Vs. State of U.P and Ors reported in 2015 (33) LCD 2449
(v) The Chief Commissioner Vs. Prabhat Singh reported in 2012 (1) ALJ 330
(vi) Union of India Vs. Phool Chan Pal reported in 2011 (6) ADJ 917
(vii) Vivek Yadav Vs. State of U.P and ors reported in 2010 4 UPLBEC 2776
8. Sri Utsav Mishra, Advocate holding brief of Sri Gaurav Mehortra, learned counsel appearing for the respondents no. 2 and 3 has argued on the basis of averments contained in the counter affidavit as well as instructions as available to him that initially the petitioner's mother Smt. Urmila Devi had preferred an application claiming compassionate appointment but as her age was exceeding the prescribed age limit, consequently her claim for compassionate appointment was rejected through order dated 19.04.2008. Even before the claim of the petitioner's mother could be decided, the petitioner had also moved an application for compassionate appointment which was rejected on 27.01.2006 and thereafter a second rejection order followed on 07.08.2009 and a third rejection order was passed on 21.03.2010 which incidentally was not communicated to the petitioner yet the rejection order dated 27.03.2010, a copy of which is annexure 3 to the writ petition was in fact passed. It is also contended that the petitioner for the very first time preferred an application for claiming compassionate appointment after period of 12 years from the date of death of his father and two years after attaining majority. It is also contended that repeatedly the case of the petitioner has been rejected and thereafter the petitioner has now approached this Court in the year 2012 claiming compassionate appointment on the death of his father which occurred in the year 1994 i.e after 18 years. It is also argued that at the time of filing earlier writ petition no. 358 (SS) of 2010 which was decided on 27.01.2010, both the rejection orders dated 27.01.2006 and 07.08.2009 were very well in existence but were never quashed by the writ Court rather writ Court only directed for consideration of the representation and as such, the said rejection orders are deemed to have been affirmed/held to be correct. Even after re-consideration of the case of the petitioner, the case has again been rejected on 27.03.2010. The petitioner waited for a period of more than two years and again thereafter has raised challenge to the rejection order dated 27.03.2010 and at the same time is again challenging the earlier two orders of 27.01.2006 and 07.08.2009. Thus, it is contended that after such a long lapse of time of the death of the employee concerned, i.e he having died on 25.09.1994, such belated claim for compassionate appointment should not be permitted.
9. In this regard, reliance has been placed by Sri Utsav Mishra on the judgment of the Hon'ble Supreme Court in the case of Umesh Kumar Nagpal Vs. State of Harayana reported in 1994 (4) SCC 138 as well as the recent judgment of the Hon'ble Supreme Court in the case Government of India and Ors Vs. P. Venkatesh decided on 01.03.2019 vide Civil Appeal No. 2425 of 2019.
10. Heard learned counsels for the contesting parties and perused the records.
11. From a perusal of record, it clearly comes that the father of the petitioner was in employment in a Class IV post under the District Judge, Hardoi who expired on 25.09.1994 during his service period. At the time of death of the said employee, the petitioner was a minor, his date of birth being of the year 1986 but he attained majority in the year 2004. No application for compassionate appointment was moved by the petitioner on attaining majority rather a period of almost two years were allowed to lapse when the petitioner preferred an application for the very first time on 10.01.2006 for being considered for compassionate appointment. The said application was rejected was on 27.01.2006. The petitioner sat silent but again after almost three years preferred an application dated 12.12.2008 for review of the said order dated 27.01.2006. Thereafter, the respondents proceeded to pass a detailed order on 07.08.2009 giving the reasons for rejecting the claim of the petitioner for compassionate appointment. After rejection of his claim for compassionate appointment, not by one but by two orders dated 27.01.2006 and 07.08.2009, the petitioner preferred a writ petition no. 358 (SS) of 2010 claiming compassionate. This Court did not interfere with both the orders dated 27.01.2006 and 07.08.2009 rather only directed the respondents to consider the representation of the petitioner for compassionate appointment. Upon the said representation, the respondents proceeded to pass the order for the third time rejecting the claim of the petitioner through order dated 27.03.2010. Again the petitioner continued to wait a period of more than two years when the present petition has been filed in May, 2012 challenging all the orders dated 27.01.2006, 07.08.2009 and 27.03.2010. Thus, on the date when all the three orders were sought to be challenged, there stood three rejection orders against the petitioner and a period of almost 18 years had lapsed since the death of his father in the year 1994. But for the fact that the writ Court through judgment and order dated 27.01.2010 directed the respondents to decide the representation of the petitioner, the writ petition was already bad by delay and laches on the part of the petitioner.
12. The claim is now being set forth by the petitioner for claiming compassionate appointment through the instant petition filed in the year 2012 being filed after 18 years of the date of death of his father, eight years from the date when he attained majority in the year 2004 and more than six years of the initial rejection order dated 27.01.2006 which has not been interfered with by the writ Court in the earlier round of litigation and thus, the present petition is clearly bad on account of delay and laches on the part of the petitioner.
13. The Hon'ble Supreme Court in the case of Umesh Kumar Nagpal (supra) has held that the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis and the object is not to give a member of such family a post much less a post for post held by the deceased. The Hon'ble Supreme Court also held that mere death of an employee in harness does not entitle his family to such source of livelihood. For this very reason, it was held that the compassionate employment cannot be granted after lapse of reasonable period inasmuch as consideration for such employment is not a vested right which can be exercised at any time in future. For the sake of convenience, the relevant observations of Umesh Kumar Nagpal (supra) is reproduced below:-
"2...The whole object of granting compassionate employment is thus to enable the 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 public 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 posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency."
"6. 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. Likewise, the Hon'ble Supreme Court in the case of Sanjay Kumar Vs. State of Bihar reported in (2000) 7 SCC 192 has held as under:-
"3...........This Court has held in a number of cases that 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: In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education and Anr. v. Pushpendra Kumar and Ors. (Supra). It is also significant to notice that on the date when the first application was made by the petitioner on 2.6.1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there is some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief."
15. Thereafter, the Hon'ble Supreme Court in the case of State of J & K and Ors Vs. Sajad Ahmed Mir reported in (2006) 5 SCC 766 has held as under:-
" 11.........The father of the applicant who was in service, died in harness in March, 1987 and for the first time, the application was made by the applicant after more than four years i.e. in September, 1991. The family thus survived for more than four years after the death of the applicant's father. Even at that time, the applicant, under the relevant guidelines, could not have been appointed and hence relaxation was prayed. It is no doubt true that the case of the applicant was favourably considered by the Departments and recommendation was made, but it is also a fact which has come on record that in March, 1996, a decision was taken by the authorities not to give appointment to the applicant on compassionate ground. From the affidavit in reply filed by the authorities in the High Court as also from the finding of the learned single Judge, it is clear that the applicant had knowledge about rejection of his application in 1996 itself. Nothing was done by the applicant against the said decision. Considerable period elapsed and only in 1999, when there was some inter- Departmental communication and Administrative Officer informed the Chief Engineer vide a letter dated 8th June, 1999 that the applicant could not be appointed on compassionate ground that the applicant woke up and filed a writ petition in the High Court. It is also pertinent to note that the letter of 1999 itself recites that the case of the applicant for compassionate appointment was considered and the prayer had already been turned down by the Administrative Department and the said fact had been communicated to the office of the Chief Engineer. A copy of the said letter was also annexed to the letter of 1999. In our opinion, therefore, the learned single Judge was right in dismissing the petition on the ground of delay and laches by holding that the applicant had not done anything for a considerable period after March, 1996 when his claim was rejected even though he was informed about the decision and was very much aware of it. The Division Bench, in our view, was not justified in setting aside the said order and in directing the authorities to consider the case of the applicant for compassionate appointment and by giving directions to give other benefits.
11. We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought 'compassion', the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule.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.
17. In the case on hand, the father of the applicant died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was dismissed by the learned single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. The said fact was indeed a relevant and material fact which went to show that the family survived in spite of death of the employee. Moreover, in our opinion, the learned single Judge was also right in holding that though the order was passed in 1996, it was not challenged by the applicant immediately. He took chance of challenging the order in 1999 when there was inter-departmental communication in 1999. The Division Bench, in our view, hence ought not to have allowed the appeal."
16. In the case of Sushma Gosain Vs. Union of India reported in (1989) 4 SCC 468, the Hon'ble Supreme Court observed that in the claims of appointment on compassionate grounds, there should be no delay inasmuch as the purpose of providing appointment on compassionate grounds is to mitigate the hardship due to death of the breadwinner in the family.
17. Recently, the Hon'ble Supreme Court in the case of P. Venkatesh (supra) while considering a similar matter pertaining to repeated representations having been submitted by the person claiming compassionate appointment and the Courts directing for decision on the said representation has held that the compassionate appointment is intended to enable the family of a deceased employee to tide over the crisis which is caused as a result of the death of an employee, while in harness. The essence of the claim lies in the immediacy of the need. The Hon'ble Supreme Court after considering the aforesaid, rejected an application for compassionate appointment where the person concerned had approached the Tribunal after a period of a decade of the death of the deceased employee. In the present case, as already indicated above, the petitioner has approached this Court after a period of almost eighteen years from the death of employee concerned after repeated rejections in the year 2006, 2009 and 2010. What is even more relevant is that in the earlier round of litigation, both the rejection orders dated 27.01.2006 and 07.08.2009 were not interfered with by this Court. Accordingly, the observations of the Hon'ble Supreme Court in the case of P. Venkatesh (supra) would be squarely applicable in the facts of the instant case. For the sake of convenience, the relevant observations in the case of P. Venkatesh (supra) are reproduced as under:-
"The primary difficulty in accepting the line of submissions, which weighed with the High Court, and were reiterated on behalf of the respondent in these proceedings, is simply this: Compassionate appointment, it is well-settled, is intended to enable the family of a deceased employee to tide over the crisis which is caused as a result of the death of an employee, while in harness. The essence of the claim lies in the immediacy of the need. If the facts of the present case are seen, it is evident that even the first recourse to the Central Administrative Tribunal was in 2007, nearly eleven years after the death of the employee. In the meantime, the first set of representations had been rejected on 3 January 1997. The Tribunal, unfortunately, passed a succession of orders calling upon the appellants to consider and then re-consider the representations for compassionate appointment. After the Union Ministry of Information and Broadcasting rejected the representation on 13 November 2007, it was only in 2010 that the Tribunal was moved again, with the same result. These successive orders of Tribunal for re-consideration of the representation cannot obliterate the effect of the initial delay in moving the Tribunal for compassionate appointment over a decade after the death of the deceased employee. This 'dispose of the representation' mantra is increasingly permeating the judicial process in the High Courts and the Tribunals. Such orders may make for a quick or easy disposal of cases in overburdened adjudicatory institutions. But, they do no service to the cause of justice. The litigant is back again before the Court, as this case shows, having incurred attendant costs and suffered delays of the legal process. This would have been obviated by calling for a counter in the first instance, thereby resulting in finality to the dispute. By the time, the High Court issued its direction on 9 August 2016, nearly twenty one years had elapsed since the date of the death of the employee.......
The recourse to the Tribunal suffered from a delay of over a decade in the first instance. This staleness of the claim took away the very basis of providing compassionate appointment. The claim was liable to be rejected on that ground and ought to have been so rejected. The judgment of the High Court is unsustainable."
18. Accordingly, when the facts of the instant case are tested on a touch stone of the law laid down by the Hon'ble Supreme Court in the case of Umesh Kumar Nagpal, Sanjay Kumar, Sajad Ahmad Mir and P. Venkatesh (supra), what this Court finds is gross delay on the part of the petitioner in initially approaching the authorities claiming compassionate appointment and thereafter this Court for claiming compassionate appointment.
19. The judgments cited on behalf of the petitioner are distinguishable on their own facts and even otherwise this Court is bound by the recent judgment of the Hon'ble Supreme Court in the case of P. Venkatesh (supra) wherein the delay in preferring an application for claiming compassionate appointment has been categorically held to make a person ineligible for such appointment.
20. Keeping in view the aforesaid facts and circumstances, it is thus apparent that no claim for interference with the impugned orders is made out.
21. The writ petition lacks merits and is accordingly dismissed.
Order Date :- 2.4.2019 Pachhere/-