Allahabad High Court
Chandan Singh vs U.O.I. Thru Secy. Defence And Others on 10 February, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - A No. - 63731 of 2005 Petitioner :- Chandan Singh Respondent :- U.O.I. Thru Secy. Defence And Others Counsel for Petitioner :- Amit Saxena,Ashish Kumar,N.K. Maurya,T.N. Tewari Counsel for Respondent :- S.S.C.,Anil Pathak,Shashi Kant Upadhya Hon'ble Sudhir Agarwal,J.
1. Heard Sri Ashish Kumar, learned counsel for petitioner and learned Standing Counsel for State.
2. This writ petition under Article 226 of Constitution of India has been filed, seeking a writ of mandamus, commanding respondents to consider and appoint him on compassionate appointment on any Group 'C' and 'D' post in any department of Government of India.
3. Admittedly, petitioner's father Dharm Singh died on 15.01.2002, leaving behind his widow and other family members, as described in Paragraph No. 4 of writ petition, which is quoted below :-
4. That is further submitted that the father of petitioner Late Dharm Singh breathed his last on 15/01/2002 during the course of his employment on the post of carpenter leaving behind the following family members.
(i) Smt. Ram Murti Devi (wife) aged about 52 years.
(ii) Smt. Sita Devi (married daughter) aged about 32 years.
(iii) Chandan Singh (son/petitioner) aged about 27 years.
(iv) Smt. Sharda Devi (married daughter) aged about 26 years.
(v) Km. Sarla Devi (unmarried daughter) aged about 24 years.
(vi) Mangal Singh (son) aged about 21 years.
(vii) Vikram Singh (son) aged about 17 years.
(viii) Arun Kumar Singh (son) aged about 16 years.
(ix) Rohan Singh (son) aged about 14 years.
(x) Aashu Singh (son) aged about 12 years.
All the aforesaid members were totally dependent for their fooding, lodging, maintenance and studies etc. upon Late Dharm Singh as he was the only earning member in the family.
4. Petitioner claimed compassionate appointment, but when same was not considered, he filed present petition.
5. Petitioner's father died on 15.01.2002 while working as Carpenter and now, 18 years have passed. At this fag end, no direction for compassionate appointment can be issued, as it would be contrary to the concept of compassionate appointment.
6. It is well settled that if the family had sufficient means to carry on its affairs for long time, in such a case, compassionate appointment cannot be made. The purpose of compassionate appointment is not to provide employment by succession, but it is to meet immediate necessity arrived at due to sudden demise of sole bread earner of the family leaving the legal heirs in penury.
7. The purpose of compassionate appointment is not for providing a post against post. It is not reservation in service by virtue of succession. If the family is not in penury and capable to maintain itself for a long time, no mandamus would be issued after a long time for providing compassionate appointment to a legal heir of the deceased employee.
8. 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.
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 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."
11. 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."
12. 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."
13. 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."
14. 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"
15. 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 ...."
16. In Punjab National 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."
17. 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."
18. 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)
19. 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."
20. 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 dependents 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.
21. 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."
22. 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."
23. 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."
24. 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."
25. 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.
26. In Bhawani Prasad Sonkar Vs. Union of India and others (2011) 4 SCC 209, Court said 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 Constitution of India. No other mode of appointment is permissible. Nevertheless, concept of compassionate appointment has been recognized 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, scheme has to be strictly construed and confined only to the purpose it seeks to achieve.
27. In MGB Gramin Bank Vs. Chakrawarti Singh (2014) 13 SCC 583, Court has said that compassionate appointment cannot be granted as of right and application for compassionate appointment need be decided as expeditiously as possible. Compassionate appointment is not a vested right. Courts should not stretch the scheme for compassionate appointment by liberal interpretation on humanitarian grounds beyond permissible limits so as to allow compassionate appointment after a long time from the date of death. Either such appointments are made immediately or within a reasonable time of death and if appointment is not claimed for long time or made, it would be travesty of justice to compassionate appointment after a long time.
28. This has been followed in Canara Bank and others Vs. M. Mahesh Kumar and others (2015) 7 SCC 412. Court stressed upon aforesaid recent authorities that every appointment to public office must strictly adhere to the mandatory requirement of Articles 14 and 16 of Constitution of India. Compassionate appointment is an exception so as to provide employment to remove financial constraints suffered by bereft family of a government servant who die in harness and family has lost its bread earner. However, it was held that mere death of a government employee in harness does not entitle the family to claim compassionate appointment.
29. Competent Authority has to examine the financial condition of deceased employee and it is only if it is satisfied that without providing employment, family will not be able to meet the crisis that a job is to be offered to an eligible member of family. This is further subject to the condition that such person possess required eligibility and qualifications, etc.
30. In view of above exposition of law and in the facts and circumstances of the case, I do not find any merit in the writ petition.
31. Dismissed. Interim order, if any, stands vacated.
Order Date :- 10.2.2020 I. Batabyal