Allahabad High Court
Sudhir Kumar Shukla vs Union Of India And 2 Others on 1 February, 2019
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 7 Case :- WRIT - A No. - 1656 of 2019 Petitioner :- Sudhir Kumar Shukla Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Devendra Kumar Counsel for Respondent :- A.S.G.I.,Ajay Shankar Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the parties.
2. The petitioner is aggrieved by the orders dated 23.03.2018 and 12.10.2018 passed by the respondent no.3-Zonal Manager, UCO Bank, by which the petitioner's application for grant of compassionate appointment had been rejected. In the order dated 26.03.2018, it has been noted, the Committee constituted for grant of compassionate appointment had observed-the claimant family had survived for sufficient time after the occurrence of the death of the employee/petitioner's father, Sri Shyam Sunder Shukla, on 12.10.2015. Therefore, it was assumed the family had dependable means of sustenance. By the subsequent order dated 12.10.2018, it had been further observed-the petitioner's mother was being paid family pension of Rs.17,731/- per month and his brother was gainfully employed, getting a salary of Rs.12,000/- per month. Therefore, it had been inferred, the family of the petitioner was neither indigent nor under financial distress as may call for grant of compassionate appointment.
3. Learned counsel for the petitioner submits, initially upon the death of his father, the petitioner's claim for compassionate appointment had been favourably considered by the bank. The then Zonal Head of the bank had issued a letter dated 06.08.2016 assuring the petitioner to create a lien for the next five years-to grant compassionate appointment, on a clerical post. During that time period the petitioner was expected to acquire a graduation degree, being the minimum qualification required for a clerical post. Therefore, it has been submitted, the impugned orders passed by the Zonal Manager rejecting the claim of the Manager are wholly contrary to the lien created and promise held out by the bank.
4. Sri Ajay Shankar, Advocate appearing for the respondent nos. 2 and 3 would submit, in matters of grant of compassionate appointment, there could never arise a lien in favour of the petitioner. A compassionate appointment by very nature, is an exception to the general rule of equal opportunity to be granted in matters of employment, based on merit considerations. It has to be granted to tide over the immediate and extreme financial hardship that may visit the family of a deceased employee.
5. In this regard, it has been submitted, besides their other financial assets, the bank had paid to the family of the deceased employee, terminal dues of about Rs.27,00,000/-. Over and above that, family pension in excess of Rs.17000/- per month was being paid to the mother of the petitioner. Therefore, it has been submitted there was no error in the orders impugned in the present writ petition.
6. Having heard learned counsel for the parties, in the first place, it is difficult to accept the contention advanced by the learned counsel for the petitioner that there ever existed a lien in favour of the petitioner as may have extended for a period of five years from the date of death of his father. Also, compassionate appointment, being regulated by terms of a binding rule/scheme tends to confer a concession, in favour of those persons who may have been hit by an unfortunate and unforeseen loss of life of the sole bread winner of their family. Yet, by very nature, it is not an alternative source of recruitment. It remains a concession to be availed and granted promptly, in cases of extreme financial hardship that may arise on account of sudden occurrence of death of a person who may leave behind unfulfilled financial commitments towards his family and hopes that may not be allowed to wither or fade for want of minimal financial means required to protect human dignity and fair opportunity in life, to the surviving members of the family of the deceased.
7. A three judge bench of the Supreme Court in Director of Education (Secondary) v. Pushpendra Kumar, (1998) 5 SCC 192, had considered the legality of grant of compassionate appointment. The Supreme Court held the same to be an exception made to the general provisions (for grant of public appointment), on humanitarian considerations, such that the exception may not subsume or interfere with the general provision governing the right of other persons eligible for appointment. Also, the rationale for its grant was founded on principle of avoidance of destitution. It was thus held:
"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 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.
9. In the said case, this Court has considered the earlier judgment in Sushma Gosain v. Union of India. It has been observed that the said judgment "has been misinterpreted to the point of distortion" and that it does not justify compassionate employment as a matter of course".
8. In SBI v. Anju Jain, (2008) 8 SCC 475, grant of compassionate appointment was held to be a concession (but not a right), to be granted by way of an exception made to the general rule of equality in matters of employment. The purpose of its grant was linked to the immediate loss of earning suffered by the family of the deceased employee. It was held:
"31. We are of the view that both the courts were wrong in granting relief to the writ petitioner. Appointment on compassionate ground is never considered a right of a person. In fact, such appointment is violative of rule of equality enshrined and guaranteed under Article 14 of the Constitution. As per settled law, when any appointment is to be made in Government or semi-government or in public office, cases of all eligible candidates must be considered alike. That is the mandate of Article 14. Normally, therefore, the State or its instrumentality making any appointment to public office, cannot ignore such mandate. At the same time, however, in certain circumstances, appointment on compassionate ground of dependants of the deceased employee is considered inevitable so that the family of the deceased employee may not starve. The primary object of such scheme is to save the bereaved family from sudden financial crisis occurring due to death of the sole bread earner. It is thus an exception to the general rule of equality and not another independant and parallel source of employment.
32. ................
33. Compassionate appointment is really a concession in favour of dependants of a deceased employee. If during his career, he had committed illegalities and the misconduct is proved and he is punished, obviously his dependants cannot claim right to the employment. With respect, the learned Single Judge was wholly wrong in observing that such an action would be violative of the principles of natural justice".
(emphasis supplied)
9. Further, in Santosh Kumar Dubey v. State of U.P., (2009) 6 SCC 481, compassionate appointment was again based to tide over immediate loss of earning. It was emphasized, the request/application for grant of compassionate appointment need be made within reasonable/proximate to the time of occurrence of the death. A caveat was added, to not treat it as another source of recruitment or a bonanza to obtain appointment in service. It was held:
"11. The very concept of giving a compassionate appointment is to tide over the financial difficulties that are 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.
12. 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".
(emphasis supplied)
10. Again, in Union of India v. Shashank Goswami, (2012) 11 SCC 307, the Supreme Court laid down:
"9. There can be no quarrel to the settled legal proposition that the claim for appointment on compassionate grounds is based on the premise that the applicant was dependant on the deceased employee. Strictly, such a 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. Appointment on compassionate grounds cannot be claimed as a matter of right.
10. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate grounds 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 and not to confer a status on the family...................."
(emphasis supplied)
11. Again, in MGB Gramin Bank v. Chakrawarti Singh, (2014) 13 SCC 583, the Supreme Court held:
"6. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its breadearner. Mere death of a government employee in harness does not entitle the family to claim compassionate employment. The competent authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing 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. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.
7. In Umesh Kumar Nagpal v. State of Haryana this Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court observed as under: (SCC pp. 140-41, paras 2, 4 & 6) "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 the post held by the deceased....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.
4. ... The only ground which can justify compassionate employment is the penurious condition of the deceased's family.
* * *
6. ... The consideration for such employment is not a vested right.... The object being to enable the family to get over the financial crisis...."
8. An "ameliorating relief" should not be taken as opening an alternative mode of recruitment to public employment. Furthermore, an application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated".
(emphasis supplied)
12. Applying the above principle, there never existed a vested right in favour of the petitioner to claim compassionate appointment. All he could have claimed was a concession (to the general rule), to be granted public appointment without first succeeding in an open public examination.
13. Though no Rule or other law has been shown to exist as may ascribe any particular meaning to the word lien used in the communication issued by the bank dated 06.08.2016, nor any provision has been shown to exist as may warrant grant of appointment on compassionate basis, three years after the death of petitioner's father, yet it may be useful to note the observation of the Supreme Court as to the meaning of that word as made in Triveni Shankar Saxena v. State of U.P., 1992 Supp (1) SCC 524. It was held:
"17. We shall now examine what the word ''lien' means. The word ''lien' originally means "binding" from the Latin ligamen. Its lexical meaning is "right to retain". The word ''lien' is now variously described and used under different contexts such as ''contractual lien', ''equitable lien', ''specific lien', ''general lien', ''partners lien', etc. In Halsbury's Laws of England, (4th edn. volume 28 at page 221, para 502) it is stated:
"In its primary or legal sense "lien" means a right at common law in one man to retain that which is rightfully and continuously in his possession belonging to another until the present and accrued claims are satisfied."
18. In Stroud's Judicial Dictionary, (5th edn. volume 3 at page 1465) the following passage is found:
"Lien. (1) A lien -- (without effecting a transference of the property in a thing) -- is the right to retain possession of a thing until a claim be satisfied; and it is either particular or general. So, as regards Scotland, ''lien' is defined as including ''the right of retention' [Sale of Goods Act, 1893 (c. 71), S. 62], or it ''shall mean and include right of retention' [Factors (Scotland) Act, 1890 (c. 40), S. 1]; see hereon Great Eastern Railway Co. v. Lord's Trustees1"
19. In Words and Phrases, Permanent Edition, Vol. 25, the definition of word ''lien' when used to explain the equitable lien, is given thus:
"A ''lien' from a legal standpoint, embodies the idea of a deed or bond, and necessarily implies that there is something in existence to which it attaches."
20. At page 393 of the same volume it is stated:
"The word ''lien' has a well known signification. In law it signifies an obligation, tie, or claim annexed to or attaching upon any property, without satisfying which such property cannot be demanded by its owner, vide Storm v. Waddell, N.Y."
21. Again at page 399 of the same volume it is stated:
''Lien' is a term of very large and comprehensive signification, but which never imports more than security, vide Mobile Building and Loan Assn. v. Robertson."
22. In Black's Law Dictionary, (6th edn., page 922) the following passage is found:
"The word ''lien' is a generic term and, standing alone, includes liens acquired by contract or by operation of law."
23. ................................
24. A learned Single Judge of the Allahabad High Court in M.P. Tewari v. Union of India following the dictum laid down in the above Paresh Chandra case and distinguishing the decision of this Court in P.L. Dhingra v. Union of India has observed that "a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier", with which view we are in agreement.
14. In absence of any right having ever vested in the petitioner, it is difficult to contemplate, how a lien may be claimed by the petitioner. The petitioner only had a right to be considered for grant of a compassionate appointment, immediately upon the occurrence of the untimely death of his father. However, admittedly, the petitioner requested for that claim to be considered later or after he acquired a degree in graduation. He thus allowed vital time to pass. Now, he cannot be heard to complain against the rejection of his application, since the exceptional circumstance to grant compassionate circumstance had ceased to exist. Time had passed and it permanently altered the petitioner's position. He cannot build a bridge of 'lien' and compel the authorities to see his eligibility for a suitable job, in 2018, from the stand point of his unfortunate circumstance emerging at the death of his father, in 2015.
15. The concession ought to have been claimed and pursued at the point in time when the circumstance to claim that concession arose i.e. when financial distress may have arisen i.e. at the time of the untimely death of the petitioner's father and not three years thereafter. Instead of seeking and accepting a job that may have been on offer at that time-when his financial need may be assumed to have been most severe and pressing, the petitioner pleaded to be given time to obtain qualification for a post of his choice. By such conduct, the petitioner, by necessary implication, signified, he was not facing destitution or an extreme financial circumstance as may warrant invocation of the exception to the general provision, on any general notion of humanitarian consideration.
16. There may never exist a uniform principle or rule to prescribe precisely, acts based on humanitarian considerations, to be offered in response to the uncertain event of death that may visit the bread winner of any family unit in a society. Members of every family unit, who suffer such an unfortunate event are likely to respond differently, subject to their own socio-economic background, upbringing, financial and other circumstances, pre-disposition, health etc. As held by the Supreme Court, grant of compassionate appointment should be confined to prevent destitution and to urgently ameliorate extreme financial circumstances, solely in the interest of the unfortunate family unit in particular and, the society in general.
17. Such action may never be taken as may debilitate or compromise basic human dignity that lies in seeking a better social and economic status on one's own merit and hard work. Certainly such measures may not be adopted at the cost of denial of equal opportunity to appointment that otherwise exists for the benefit of each eligible candidate in the society. It cannot be lost sight, for every compassionate appointment granted there is an implied rejection of equal opportunity to appointment to some unknown yet deserving candidate/s whose claim gets denied without consideration. It may also include the claim of a candidate who may be otherwise more needy and meritorious and who may have been able to successfully fight off his circumstances, to gain vital eligibility.
18. Therefore, purely from the societal point of view, grant of compassionate appointment in such a case would only be akin to grant of a bonanza or appointment through an alternative source of recruitment as the petitioner did not seek any appointment as a means of his sustenance, upon occurrence of the death of the bread winner of his family, rather, he sought a guaranteed job in future, on that basis. That would clearly fall foul with the very basic principle for grant of compassionate appointment.
19. In the facts such as these, appointment if granted after three years, may never be a legal/valid compassionate appointment but a public appointment granted contrary to the general rule, by applying compassionate considerations, beyond legal sanction or unreasonably and/or in an arbitrary manner. For the exercise of grant of compassionate appointment, by way of concession, to be legal and justified, both, presence of the circumstance (to carve out the exception to the general rule), as also the time within which the concession may be sought, pursued and availed, would always remain relevant and decisive.
20. It may be made clear here itself, the case would have been entirely different if the petitioner had pressed his application for grant of compassionate appointment in 2013 and had been litigating before this court, in case the same had been rejected at that point in time.
21. In the present case, the respondent bank had applied itself to the relevant aspects and found, though the circumstance did occur for the petitioner to claim the concession, to be granted compassionate appointment, however, not only he did not avail it at any time bearing reasonable or close proximity to the circumstance (of death of his father), that gave rise to the claim for compassionate appointment, but having survived the potential threat of destitution, he claimed the concession after much time to secure a public appointment. Therefore, there appears no error in the order or approach of the respondent bank.
22. Also, the principle of promissory estoppel cannot be invoked in such circumstance as the petitioner can never claim to have altered his position to his detriment by getting himself better educated, on the alleged promise of a clerical job. Education is the necessary tool at the hands of a citizen to acquire knowledge; to improve and; to grow which will always stand in good stead to the petitioner even though he had been denied the job by the respondent bank. He cannot be heard to complain on that count, even if he had been forced to acquire education on a promise, as alleged.
23. Thus, irrespective of the substantial amount of terminal dues paid to the petitioner's mother alongwith family pension in excess of Rs.17,000/-, it is difficult to find fault in the reasoning given by the bank that the petitioner's family does not suffer from financial stringency and they do not face any financial distress. That burden was never discharged by the petitioner.
24. The writ petition lacks merit and is accordingly dismissed. No order as to costs.
Order Date :- 1.2.2019 S.Chaurasia