Allahabad High Court
Shashi Sharma vs State Of U.P. And Another on 8 October, 2020
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 83 Case :- WRIT - A No. - 8301 of 2020 Petitioner :- Shashi Sharma Respondent :- State of U.P. and Another Counsel for Petitioner :- Ram Lal Mishra Counsel for Respondent :- C.S.C. Hon'ble Ajay Bhanot,J.
1. By the impugned order dated 15.06.2018 passed by the respondent No.2-Executive Engineer Prantiya Khand, Public Works Department (P.W.D.), Budaun, the claim of the petitioner for an appointment on compassionate ground was rejected on the foot that she is a married daughter of the deceased employee.
2. Sri Ram Lal Mishra, learned counsel for the petitioner submits that the petitioner's mother died in harness as an employee of the State Government on 16.12.2017. Her application has not been decided till date. The petitioner claims that the impugned order dated 15.06.2018 has been passed in the teeth of the law laid down in the judgment rendered by the Division Bench of this Court in Special Appeal Defective No.863 of 2015 (Neha Srivastava Vs. State of U.P. and another) on 23.12.2015.
3. Learned Standing Counsel for the State - respondents submits that the case of the petitioner has to be considered in accordance with law after considering the financial condition of the petitioner.
4. Heard Sri Ram Lal Mishra, learned counsel for the petitioner and learned Standing Counsel for the State - respondents.
5. I find that the candidature of the petitioner cannot be rejected on the foot that she is a married daughter of the deceased employee. There is good authority to support the claim that a married daughter comes within the ambit of the definition of family of the deceased under the Uttar Pradesh Dying in Harness Rules.
6. In Smt. Vimla Srivastava Vs. State of U.P. and another) reported at 2016 (8) ADJ 21 (DB), the Division Bench of this Court held as under:
"24. We are in respectful agreement with the view which has been expressed on the subject by diverse judgments of the High Courts to which we have made reference above.
25. During the course of submissions, our attention was also drawn to the judgment rendered by a learned Single Judge of this Court in Mudita vs. State of U.P.13. The learned Single Judge while proceeding to deal with an identical issue of the right of a married daughter to be considered under the Dying-in-Harness Rules observed that a married daughter is a part of the family of her husband and could not therefore be expected to continue to provide for the family of the deceased government servant. The judgment proceeds on the premise that marriage severs all relationships that the daughter may have had with her parents. In any case it shuts out the consideration of the claim of the married daughter without any enquiry on the issue of dependency. In the view that we have taken we are unable to accept or affirm the reasoning of the learned Single Judge and are constrained to hold that Mudita does not lay down the correct position of the law.
26. In conclusion, we hold that the exclusion of married daughters from the ambit of the expression "family" in Rule 2 (c) of the Dying-in-Harness Rules is illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution.
27. We, accordingly, strike down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules.
28. In consequence, we direct that the claim of the petitioners for compassionate appointment shall be reconsidered. We clarify that the competent authority would be at liberty to consider the claim for compassionate appointment on the basis of all the relevant facts and circumstances and the petitioners shall not be excluded from consideration only on the ground of their marital status.
29. The writ petitions shall, accordingly, stand allowed. There shall be no order as to costs."
7. The view taken by the Division Bench of this Court in Smt. Vimla Srivastava (supra) to consider the the claim of the petitioner has been followed by another Division Bench of this Court in Neha Srivastava Vs. State of U.P. and another registered as Special Appeal Defective No.863 of 2015, in The relevant paragraph of the judgment is reproduced hereunder:
"As indicated above, the coordinate Bench of this Court in Smt. Vimla Srivastava v. State of U.P. & Anr. (Supra) while proceeding with the matter had held that the exclusion of married daughters from the ambit of expression "family" in Rule 2 (c) of the Dying-in-Harness Rules is illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution. The Court had also struck down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules and proceeded to direct the respondent authorities to consider the claim of the applicant on the basis of all relevant facts and circumstances and directed that her right could not be excluded from consideration only on the ground of their marital status."
8. The judgment of this Court in Neha Srivastava (supra) entitles the petitioner for consideration for appointment on compassionate grounds like any other family member of the deceased, as per law. However, the criteria for appointment on compassionate grounds has not been relaxed in any manner. The authority has to consider whether the petitioner faces imminent financial penury on account of the death of her mother. Her candidature has to be examined on its merits as a member of the family of the deceased employee. The authority will have to apply its mind to all the relevant considerations which should precede any appointment under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.
9. The nature and concept of compassionate grounds as well as the scope of the enquiry and considerations to be borne in mind by the appointing authority before making such appointments are discussed in the subsequent paragraphs.
10. Grant of appointment on compassionate grounds in the respondent corporation is regulated and governed by the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the "Rules").
11. The concept of dying in harness is unique to Service Law Jurisprudence.
12. The validity of the concept of appointments on the basis of an employee dying in harness was called in question before the courts. The constitutional validity of the aforesaid appointments soon came to be tested. The compassionate ground appointments passed the test of constitutional validity by a slender margin. The justification to make compassionate ground appointments was provided on the footing that the kin of the deceased stood on the brink of financial penury or faced an immediate financial crisis on account of the death of working member of the family. This feature alone constituted the kin of a deceased employee into one class and on the footing alone, the rationale of compassionate ground appointments was justified.
13. It would be apposite to reinforce the narrative with good authority.
14. The purpose of compassionate appointments provides their justification. The death of a bread winner forces the family of the deceased into penury. The immediacy of the financial crisis creates the requirement for urgent redressal. The concept of compassionate appointments is created only to enable the bereaved family to tide over the immediate financial crisis.
15. The Hon'ble the Supreme Court in Umesh Kumar Nagpal Vs. State of Haryana, reported at (1994) 4 SCC 138, explained the purpose of compassionate in following terms:
"2.The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. 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 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. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."
16. A similar sentiment was echoed by the Hon'ble Supreme Court in the case of Director of Education (Secondary) v. Pushpendra Kumar, reported at (1998) 5 SCC 192 in the following terms:
"8. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure 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, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee. In Umesh Kumar Nagpal v. State of Haryana [(1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that 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. In that case the Court was considering the question whether appointment on compassionate grounds could be made against posts higher than posts in Classes III and IV. It was held that such appointment could only be made against the lowest posts in non-manual categories. It was observed: (SCC p. 140, para 2) "The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."
17. However, there is a caution. Compassionate ground appointments are an exception and cannot be made the rule. The exception can be maintained only by strictly adhering to the pre-conditions of the appointment in a strict fashion. A relaxation in the aforesaid pre-conditions would open a floodgate of appointments on compassionate grounds. It will turn the compassionate ground appointments into a regular source of recruitment. The constitutionally accepted mode of appointment to public office or any other post under the State Government or its instrumentalities is by open and transparent recruitment process. Such recruitment process would invite eligible persons from the open market to compete for appointment. This process is consistent with the mandate of Article 14 and Article 16 of the Constitution of India.
18. It was with this constitutional mandate in mind that the Hon'ble Supreme Court in the case of Mumtaz Yunus Mulani v. State of Maharashtra, reported at (2008) 11 SCC 384 cautioned that compassionate appointment were not an alternative mode of recruitment to public employment, by laying down the law thus:
"However, it is now a well-settled principle of law that appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis."
19. The Hon'ble Supreme Court reiterated the purpose and limitations of compassionate ground appointment in the case of State of Haryana v. Ankur Gupta, reported at (2003) 7 SCC 704 held thus:
"6. As was observed in State of Haryana v. Rani Devi [(1996) 5 SCC 308 : 1996 SCC (L&S) 1162 : JT (1996) 6 SC 646] it need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the premise that he was dependent 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. InRani Devi case [(1996) 5 SCC 308 : 1996 SCC (L&S) 1162 : JT (1996) 6 SC 646] it was held that the 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 LIC of India v. Asha Ramchhandra Ambekar [(1994) 2 SCC 718 : 1994 SCC (L&S) 737 : (1994) 27 ATC 174] it was pointed out that the 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 contemplate such appointments. It was noted in Umesh Kumar Nagpal v.State of Haryana [(1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] that as a rule, in public service appointments should be made strictly on the basis of open invitation of applications 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 the 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.
7. In Director of Education (Secondary) v. Pushpendra Kumar [(1998) 5 SCC 192 : 1998 SCC (L&S) 1302] it was observed that in the 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 grant 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.
20. Only present and imminent financial crisis provides the sole justification for making appointments on compassionate grounds. Delay in making such applications for appointment on compassionate grounds raises a presumption that the immediate financial crisis has been tided over. Lifting of the immediate financial penury, denies the justification for making an appointment on compassionate grounds.
21. The criteria of financial hardship faced by the family of the deceased caused by his death, provides a thin membrane of legitimacy to compassionate appointments. Bereft of this thin cover of legitimacy or if any other criteria is employed to make compassionate appointments, the appointments would become vulnerable to a constitutional challenge. Appointments based on descent or claims of appointment which rest on heredity, invite the wrath of Article 16 of the Constitution of India.
22. The Hon'ble the Supreme Court set its face against appointments based on descent in the case of Bhawani Prasad Sonkar Vs Union of India and Others, reported at (2011) 4 SCC 209. The Hon'ble the Supreme Court in Bhawani Prasad Sonkar (supra), spoke as follows:
"Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve."
"In Umesh Kumar Nagpal v. State of Haryana [(1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] , while emphasising that a compassionate appointment cannot be claimed as a matter of course or in posts above Classes III and IV, this Court had observed that: (SCC p. 140, para 2) "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. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."
"Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:
(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.
(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.
(iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.
(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.
23. The question of delay in filing applications for appointment under Dying-in-harness Rules and the consequences of such delay on the right to be appointed on compassionate grounds was posed to a Full Bench of this Court in the case of Shiv Kumar Dubey Vs. State of U.P. reported at 2014 (2) ADJ 312. For ease of reference, the relevant part of the judgment in Shiv Kumar Dubey (supra) is reproduced hereunder:
"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;
[emphasis supplied]
(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;
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;
[emphasis supplied]
(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;
[emphasis supplied]
(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;
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;
[emphasis supplied] 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."
(emphasis supplied).
24. In view of the above discussions, the order dated 15.06.2018 passed by the respondent No.2-Executive Engineer Prantiya Khand, Public Works Department (P.W.D.), Budaun is quashed.
25. The matter is remitted to the respondent No.2-Executive Engineer Prantiya Khand, Public Works Department (P.W.D.), Budaun. A writ in the nature of mandamus is issued commanding the respondent No.2-Executive Engineer Prantiya Khand, Public Works Department (P.W.D.), Budaun to execute the following direction :
I. The respondent No.2-Executive Engineer Prantiya Khand, Public Works Department (P.W.D.), Budaun shall decide the representation 26.02.2020 (Annexure No.7 to the writ petition) of the petitioner in the light of the law laid down by the Division Bench of this Court in Neha Srivastava (supra), and the observations made in this judgment within a period of four months month from the date of production of a computer generated copy of this order, downloaded from the website of High Court, Allahabad. The computer generated copy of such order shall be self attested by the petitioner (party concerned) along with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. The authority/official shall verify the authenticity of such computerized copy of the order from the official website of High Court, Allahabad and shall make a declaration of such verification in writing.
II. The respondent No.2-Executive Engineer Prantiya Khand, Public Works Department (P.W.D.), Budaun shall consider the case of the petitioner for appointment on compassionate grounds in light of the observations made in the body of this writ petition specially in regard to the financial condition of the petitioner.
26. The writ petition is allowed to the extend indicated above.
Order Date :- 8.10.2020 Ashish Tripathi