Allahabad High Court
Ram Autar Singh vs U.P. Power Corporation Ltd.,Thru' ... on 25 April, 2014
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- WRIT - A No. - 18001 of 2003 Petitioner :- Ram Autar Singh Respondent :- U.P. Power Corporation Ltd.,Thru' Deputy General Manager Counsel for Petitioner :- Swapnil Kumar Counsel for Respondent :- Nripendra Mishra,A.Khanna,SC Hon'ble Sudhir Agarwal, J.
1. Heard Sri Swapnil Kumar, learned counsel for petitioner and perused the record.
2. The cause of action, giving rise to the present case, is denial of compassionate appointment to petitioner by respondent no. 1, i.e., U.P. Power Corporation Limited. Petitioner's father, Sri Mahipal Singh, working as Assistant Store Keeper, died on 17.9.1996. He did not suffer natural death but he was murdered and the charge of crime was levelled upon his son, Purushottam and one Ram Babu, who were tried in Crime No. 264 of 1996 under Section 302 I.P.C. The legal heirs of deceased employee Mahipal Singh requested respondent no. 1 to appoint Purushottam on compassionate basis but since he was facing criminal trial in respect to murder of his father, i.e., the deceased employee himself, wherein though ultimately he was acquitted giving benefit of doubt, respondent no. 1 did not proceed to appoint him and, in my view, rightly. It is interesting to notice that copy of the affidavit filed before Executive Engineer which is signed by other family members of deceased employee and which also included the signatures of petitioner, I find that he did not feel necessity of compassionate appointment on that date. The deceased employee left besides widow, two married sons, i.e. Sri Ram Autar Singh and Ram Babu, two married daughters Smt. Rukmani Devi and Smt. Nirmala Devi and one unmarried son, i.e. Purushottam. Petitioner, therefore, was already settled and looking after his family in 1999 and did not find any necessity of employment though he was eldest son of deceased employee, but later on, on 14.3.2001, petitioner himself submitted an application seeking employment but this application has been rejected by Executive Engineer by means of impugned order dated 28.2.2003. It is, thus, evident that appointment on compassionate basis is being sought as a matter of right after the death of employee and not to mitigate the penurious condition of family due to sudden death of the sole bread earner. If the family is not in penury and financial scarcity is not a reason for seeking compassionate appointment, in my view, the respondents are well within their rights and fully justified in declining such appointment to petitioner.
3. Repeatedly, it has been held that the purpose and object of compassionate appointment is to enable the members of family of the deceased employee in penury, due to sudden demise of the sole breadwinner, get support and succour to sustain themselves and not to face hardship for their bore sustenance.
4. In Managing Director, MMTC Ltd., New Delhi and Anr. Vs. Pramoda Dei Alias Nayak 1997 (11) SCC 390 the Court said:
"As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tied over the sudden financial crises and not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment."
5. In S. Mohan Vs. Government of Tamil Nadu and Anr. 1999 (I) LLJ 539 the Supreme Court said:
"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."
6. In Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors. AIR 1998 SC 2230 the Court said:
"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."
7. In Sanjay Kumar Vs. The State of Bihar & Ors. AIR 2000 SC 2782 it was held:
"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"
8. In Punjab Nation Bank & Ors. Vs. Ashwini Kumar Taneja AIR 2004 SC 4155, the court said:
"It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis."
9. An appointment on compassionate basis claimed after a long time has seriously been deprecated by Apex Court in Union of India Vs. Bhagwan 1995 (6) SCC 436, Haryana State Electricity Board Vs. Naresh Tanwar, (1996) 8 SCC 23. In the later case the Court said:
"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. ..... the very object of appointment of dependent of deceased-employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years."
10. In State of U.P. & Ors. Vs. Paras Nath AIR 1998 SC 2612, the Court said:
"The purpose of providing employment to a dependent 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."
11. In Haryana State Electricity Board Vs. Krishna Devi JT 2002 (3) SC 485 = 2002 (10) SCC 246 the Court said:
"As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we are of the opinion that it was not to meet the immediate financial need of the family ...."
12. In National Hydroelectric Power Corporation & Anr. Vs. Nanak Chand & Anr. AIR 2005 SC 106, the Court said:
"It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises."
13. In State of Jammu & Kashmir Vs. Sajad Ahmed AIR 2006 SC 2743 the Court said:
"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." (emphasis added)
14. Following several earlier authorities, in M/s Eastern Coalfields Ltd. Vs. Anil Badyakar and others, (2009) 13 SCC 122 = JT 2009 (6) SC 624 the Court said:
"The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over."
15. In Santosh Kumar Dubey Vs. State of U.P. & Ors. 2009 (6) SCC 481 the Apex Court said:
"The very concept of giving a compassionate appointment is to tide over the financial difficulties that is faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in Government service."
16. The Court considered that father of appellant Santosh Kumar Dubey (supra) became untraceable in 1981 and for about 18 years the family could survive and successfully faced and over came the financial difficulties. In these circumstances it further held:
"That being the position, in our considered opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions."
17. In I.G. (Karmik) and Ors. v. Prahalad Mani Tripathi 2007 (6) SCC 162 the Court said:
"Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion."
18. In Mumtaz Yunus Mulani Vs. State of Maharashtra & Ors, 2008 (11) SCC 384 the Court held that now a well settled principle of law is that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or public sector undertakings 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 sudden financial crises.
19. The importance of penury and indigence of the family of the deceased employee and need to provide immediate assistance for compassionate appointment has been considered in Union of India (UOI) & Anr. Vs. B. Kishore 2011(4) SCALE 308. This is relevant to make the provisions for compassionate appointment valid and constitutional else the same would be violative of Articles 14 and 16 of the Constitution of India. The Court said:
"If the element of indigence and the need to provide immediate assistance for relief from financial deprivation is taken out from the scheme of compassionate appointments, it would turn out to be reservation in favour of the dependents of an employee who died while in service which would be directly in conflict with the ideal of equality guaranteed under Articles 14 and 16 of the Constitution."
20. It is thus clear that rule of compassionate appointment has an object to give relief against destitution. It is not a provision to provide alternate employment or an appointment commensurate with the post held by the deceased employee. It is not by way of giving similarly placed life to the dependents of the deceased. While considering the provision pertaining to relaxation under Rules, 1974 the very object of compassionate appointment cannot be ignored. This is what has been reiterated by a Division Bench of this Court in Smt. Madhulika Pathak Vs. State of U.P. & ors. 2011 (3) ADJ 91.
21. Recently a Full Bench of this Court has also have the occasion to look into this aspect of the matter in Shiv Kumar Dubey and others Vs. State of U.P. and others 2014 (2) ADJ 312 and has formulated certain principles after considering a catena of authorities on the subject in para 29 of the judgment as under:
"(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."
22. Looking to the entire factual matrix of this case in the light of exposition of law discussed above, it cannot be said that petitioner is entitled to obtain a writ of mandamus commanding the respondents to provide him compassionate appointment.
23. Counsel for petitioner, however, placed reliance on a decision of this Court in Satish Kumar Pal Vs. State of U.P. and others 2008 (4) AWC 3596 wherein the issue was totally different and has nothing to do with the issue of compassionate appointment, its objective, purpose etc. There a person was selected for appointment on the post of Jail Warden. Subsequently, his candidature was rejected on the ground that he has not completed 18 years of age on cut of date, i.e., 1.7.1995. The date of birth of petitioner being 2.7.1977, he came to this Court stating that his date of birth being 2.7.1977 a day earlier i.e. on 1.7.1992, he completed 18 years of age and, therefore, he was not ineligible. Relying on the Apex Court decision in Prabhu Dayal Sesma versus State of Rajasthan (1986) 4 SCC 59 this Court upheld this contention. Still respondent-department took the plea that during pendency of matter, vacancy in question has already been filled in by appointing another person and the period for which select list could have operated has also expired and, therefore, the aforesaid person could not have been given appointment. Repelling this contention of department, this Court said that due to pendency of matter before this Court, petitioner, who was otherwise eligible for appointment and wrongly denied the same, cannot be denied relief since the respondents cannot take advantage of their own wrong and "the act of Court shall prejudice none" is the principle applicable therein. It was held that while deciding a controversy in the pending matter, the right, title and status of parties should ordinarily be considered from the situation prevailing at the time when the litigant approached the Court and he cannot be divested of his valuable rights of employment or source of livelihood only because of pendency of a writ petition. The Court also applied the dictum laid down in Purushottam Vs. Chairman, M.S.E.B. (1999)6 SCC 49 to hold that the right of a person for appointment against the post for which he has been selected cannot be taken away on the pretext that the panel in the meantime has expired or the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the person concerned, but on the erroneous decision of the employer himself. Such person, therefore, has a right to be appointed on the post in question and it cannot be taken away illegally by employer. The exposition of law and issue raised therein is totally different and has no application to the case in hand. Petitioner, therefore, has rightly been denied appointment on compassionate basis.
24. In view of above, I find no merit in the writ petition. Dismissed.
Dt. 25.04.2014 PS