Allahabad High Court
Smt. Soni vs U.O.I. Thru Secy. For Railway ... on 10 September, 2020
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 14 Case :- SERVICE SINGLE No. - 14994 of 2020 Petitioner :- Smt. Soni Respondent :- U.O.I. Thru Secy. For Railway Administration, New Delhi &Anr Counsel for Petitioner :- Sushil Kumar Rastogi Counsel for Respondent :- S.P. Shukla Hon'ble Chandra Dhari Singh,J.
1. Heard learned Counsel for the petitioner and Sri Shiv P. Shukla, learned Counsel for the Union of India.
2. The petitioner has approached this Court with the following prayers:
"(i) A suitable writ, order or direction in the nature of mandamus commanding the opposite parties to appoint the petitioner on compassionate grounds in place of deceased employee named Parsadi (Gang Man) in N.E.R. in the appropriate post according to her status and qualifications and be also commanded, the opposite parties to pay salary and other benefit admissible for the post of appointment.
(ii) A suitable writ, order or direction in the nature of certiorari quashing the impugned order of refugal passed in view of decision take by opposite parties informed to the petitioner by means of letter dated 29.06.2020 as contained in Annexure No.3 enclosed with the writ petition.
(iii) Cost and any other relief to which this Hon'ble Court been just and proper under the circumstances of the case be also a warded in the interest of justice."
3. Submission of learned Counsel for the petitioner is that one Parsadi son of Itwari was employed in the North Eastern Railway who died during the tenure of his service on 17.05.1980 leaving behind his wife, two minor sons and daughters. After the death of Parsad, the minor son, namely, Sona Lal applied for compassionate appointment but unfortunately, during the course of process, Sona Lal was died leaving behind his wife i.e. petitioner on 24.12.2014. After the death of Sona Lal, his wife applied for compassionate appointment on 02.03.2020 enclosing all the necessary documents.
4. Learned Counsel for the petitioner has further submitted that initially, the opposite parties have given assurance for compassionate appointment to the petitioner but on 29.06.2020, the opposite parties have sent a letter stating therein that in view of the directions issued by the Railway Board, the widow of the son of the deceased employee is not entitled for compassionate appointment as there is no provision in this regard.
5. Learned Counsel for the petitioner has contended that the direction of the Railway Board cannot override the effect of a statutory provisions of Act and Rules. In the case of Gudiya Awasthi Vs. State of U.P. and others; 2019 (133) ALR 563, the Hon'ble Apex Court has held that the son's widow comes within the definition of family for the purpose of compassionate appointment, hence the petitioner is entitled for compassionate appointment. As per the definition of the dependant of the deceased employee, the petitioner being the son's widow is near relatives of the deceased employee and other dependant have given no objection to the petitioner for compassionate appointment.
6. Learned Counsel appearing on behalf of the petitioner has next contended that the U.P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974 (in short 'Dying-in-harness Rules, 1974'), includes the widowed daughter-in-law in the definition of family of the deceased employee. The word 'near relative' as incorporated in Railway Rules is comprehensive enough and more liberal to include 'near relative' of the deceased employee to provide bread to all even the widowed daughter in law.
7. Lastly it has been submitted by learned Counsel for the petitioner that the opposite parties have denied the compassionate appointment illegally and without application of mind and, therefore, the instant writ petition is liable to be allowed with a direction to the opposite parties to appoint the petitioner on compassionate ground.
8. Per contra, learned Counsel appearing on behalf of Union of India has submitted that the authorities have rightly denied the compassionate appointment. The deceased employee was died in the year 1980 and after lapse of 40 years, the petitioner is claiming compassionate appointment without any plausible explanation. Learned Counsel has further submitted that as per the Dying-in-harness Rules, 1974 have been framed under the proviso to Article 309 of the Constitution and regulate the grant of compassionate appointment to the members of the family of a government servant who dies in harness.
9. Learned Counsel appearing on behalf of Union of India while inviting the attention of this Court towards Rule 2(c) of the Dying-in-harness Rules, 1974 has again submitted that the widowed daughter-in-law shall not be included in the definition of family and, therefore, she is not entitled for compassionate appointment.
10. I have considered the submissions of learned Counsel for the parties and perused the record.
11. Before coming to the controversy involved in the instant case, it would be apt to point out that the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in -Harness Rules, 1974 has been framed in exercise of powers conferred by Article 309 of the Constitution of India. The said Dying-in-harness Rules 1974 are special set of rules, which have been made for providing a source of livelihood, and to give some respite to the members of the deceased Government servant's family at a time when the family is suddenly struck with a calamity where the sole bread earner dies. The overall idea and concept of these rules is to keep the family in main streamline of the society for which economic security and social status is to be provided by the State Government.
12. 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 Government 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 interest of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee died 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 has been made in the Rules to provide gainful employment to one of the dependents of the deceased, who may be eligible for such employment.
13. Thus, it can be easily summed up that 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 held by the deceased. Mere death of an employee in harness does not entitle his family to such source of livelihood.
14. In the instant case, admittedly the deceased employee was died in harness on 17.05.1980 leaving behind his wife, two minors sons and daughters and after his death one of the sons, namely, Sona Lal applied for compassionate appointment but during process, Sona Lal died on 24.12.2014. Thereafter, the wife of Sona Lal i.e. the petitioner applied for compassionate appointment on 02.03.2020 after lapse of more than six years from the date of her husband's death and after lapse of more than 40 years of the deceased employee. The petitioner while inviting the attention of this Court towards "Persons eligible to be appointed on Compassionate Grounds" of Master Circular No.16: Appointment on Compassionate Grounds annexed as Annexure-7 to the writ petition has submitted that she comes under the definition of ''near relatives' and therefore, she is entitled for compassionate appointment, which reads as under:
(III) Persons eligible to be appointed on Compassionate Grounds:-
Son/ daughter/ widow/ widower of the employees are eligible to be appointed on compassionate grounds in the circumstances in which such appointments are permissible. Where the widow cannot take up employment and the sons/ daughters are minor, the case may be kept pending till the first son/ daughter becomes a major i.e. attains the age of 18 years, subject to time limits as provided under Para (V) of the Circular. The benefit of compassionate appointments may also be extended to a "near relative/ adopted son/ daughter." The eligibility of a near relative/ adopted son/ daughter to such appointments will be subject to the following conditions:-
(a) Near relative:-
(i) Such appointment is not permissible where the railway employee who has died in harness has left behind only the widow, with no son/ daughter to be supported by her,
(ii) The son or daughter of the employee or ex-employee is a minor one and the widow cannot take up employment.
(iii) A clear certificate should be forthcoming from the widow that the "near relative" will act as the bread winner of the family.
(iv) if the family certifies at a later date that the "near relative", who was appointed on compassionate grounds, refuses to support the family, the services of that employee are liable to be terminated
(v) Once a "near relative" is appointed on compassionate grounds, no further appointment shall be given later to a son, or daughter or the widow of the employee, on compassionate grounds,
(vi) The appointment of the "near relative" shall not be considered, if a son or daughter, or the widow herself is already working and is earning.
A blood relation who is considered to be a bread winner of the family can be considered as "near relative" for the purpose of appointment on compassionate grounds."
15. Clause (a)(iii) provides that a near relative is entitled for compassionate appointment if he/ she obtains a clear certificate from the widow of the deceased employee that he/ she will act as the bread-winner of the family but the petitioner neither filed such certificate nor produce. In absence of such certificate, she cannot claim for compassionate appointment.
16. The policy of the State Government is to extend the benefit of compassionate appointment to the bereaved members of the family of the deceased government servant as on account of sudden demise of the sole earning member, the family is devoid of means to meet both the ends. It has further been provided that those members of the family would be entitled for compassionate appointment who is wholly dependent upon the deceased government servant in which widow has been given preference and thereafter, daughter, thereafter, son and thereafter unmarried daughter including adopted son and adopted daughter. Thus, welfare policy of the State Government is consider the dependent member of the bereaved family for compassionate appointment is based on dependency and as such, the test in the matter of compassionate appointment should be the test of dependency, and criteria and yardstick for compassionate appointment should be dependency or lack of dependency.
17. In the case in hand, the claim for compassionate appointment is made after a lapse of 40 years. No plausible reason has been assigned for acceptance of her claim, which suffers from delay spanning over number of years. It is settled position flowing from various decision of the Apex Court that the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis and to relieve the family of the financial destitution and to help it get over the emergency. None of the decisions of the Apex Court justify compassionate employment either as a matter of course and the only ground which can justify compassionate employment is the penurious condition of the deceased's family.
18. In Umesh Kumar Nagpal v. State of Haryana and Ors., JT 1994 (3) SC 525, the quintessence of what has been observed by the Apex Court is excerpted below :
"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 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 destination and to help it get over the emergency..................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, bread-winner, the compassionate employment cannot be claimed land offered whatever the lapse of time and after the crisis is over."
19. The aforesaid decision of the Supreme Court leave no manner of doubt that though the claim for appointment on compassionate grounds cannot be upheld on the touchstone of Article 14 or 16 of the Constitution but such a claim can be considered to be reasonable and permissible on the basis of sudden crisis occurring in the family of the employee who dies while in service. The appointment on compassionate grounds, therefore, cannot be claimed as a matter of right but can be claimed only in terms of the Rules or Regulations framed in this regard and that the Courts cannot confer ''benediction impelled by sympathetic consideration'' dehors the Rules. Such an appointment, therefore, should be immediately provided to a member of the family to redeem the sudden financial crisis in the family.
20. The Hon'ble Supreme Court in the case of Haryana State Electricity Board and another V. Hakim Singh reported in (1997) 8 SCC 85 has observed that if the family members of the deceased employee can manage for 14 years after death of the deceased, one of his legal heirs cannot put forward a claim as though it is a line of succession by virtue of a right of inheritance. The object of the provisions should not be forgotten that it is to give succor to the family to tide over the sudden financial crisis befallen the dependents on account of the untimely demise of its sole earning member.
21. The Hon'ble Supreme Court in the case of State of J & K and others v. Sajad Ahmed Mir reported in AIR 2006 SC 2743 in paragraph 17 has held as under:
"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."
22. The Hon'ble Supreme Court in the case of MGB Gramin Bank vs. Chakrawati Singh, AIR 2013 SC 3365 has observed that compassionate appointment cannot be claimed as a matter of right, as it is not a vested right.
23. It is apt to mention here that reasonable time has been signified to mean such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances. In the instant case, it does not appear from the conspectus of the facts that the petitioner was justified in making application after a lapse of 40 years.
24. Yet another aspect is the absence of penurious condition of the family. The petitioner does not claim that the family is still trapped into penury. Besides the death of a person dying-in-harness cannot be exploited by the deceased family to its advantage to claim compassionate appointment at any point of time in future. The Court must decry it as immoral to convert such crisis into an opportunity and it cannot be approved that the heirs of the deceased should be at liberty to claim compassionate appointment, which would virtually amount to a kind of reservation in favour of dependents of the deceased employee. As stated hereinabove, compassionate appointment is an exception carved out in the interest of justice to enable the family to tide over the sudden crisis and such exception cannot be stretched and magnified beyond all proportions to be applied in all circumstances and in all cases of dying-in-harness. In the above conspectus, I converge to the view that the impugned order does not suffer from any taint and it was rightly passed in accordance with law and the case laws relied upon by the petitioner's Counsel are of no avail to him.
25. In the above conspectus, the petition fails and is dismissed. There shall be no order as to costs.
Order Date :- 11.9.2020 akverma