Allahabad High Court
Deepanshu vs State Of U.P. And 2 Others on 28 July, 2022
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 33 Case :- WRIT - A No. - 10832 of 2022 Petitioner :- Deepanshu Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rashmi Tripathi,Anuradha Sundaram Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sangeeta Chandra,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel.
2. This petition has been filed by the petitioner challenging the order dated 03.02.2022 passed by the respondent no.2 denying compassionate appointment to the petitioner on the ground that a Government Order has been issued on 18.05.2017 wherein it has been stated that till such time that all supernumerary appointments on compassionate ground are adjusted in vacancies of Class III posts, no compassionate appointment on class III posts be made. Appointments can be given in vacancies of Class IV posts.
3. Learned counsel for the petitioner says that in terms of the Government Order dated 18.05.2017, the petitioner has been offered appointment on Class IV post.
4. Learned counsel for the petitioner has placed reliance upon a Coordinate Bench decision rendered in Writ-A No.10149 of 2021: Sameer Pandey Vs. State of U.P. and two others, where this Court had observed that no such Government Order as dated 18.05.2017 can restrain the respondents from appointing the petitioner on Group-C post and has referred to a Full Bench decision in Shiv Kumar Dubey and others Vs. State of U.P., 2014 (2) ADJ 312, and consequential Government Order dated 17.06.2014 to say that the petitioner's case be considered for suitable employment in terms of his qualification without considering the ban allegedly imposed by the Government Order dated 18.05.2017 referred to in the letter communicated to him on 24.03.2021 offering appointment on Class IV posts to him.
5. It has been submitted that after this Court had passed the order dated 18.08.2021 Sameer Pandey had not been appointed on a Class III posts and he had been forced to file a contempt petition.
6. The representation of Sameer Pandey was considered in terms of the order dated 18.08.2021 but he was offered appointment on a Class IV post. Sameer Pandey filed Writ A No.2296 of 2022 challenging the order dated 01.12.2021 passed by the Director, Ayurvedic, Unani Sevayen, Directorate, Lucknow. The Court had allowed the writ petition by observing that the order was contemptuous keeping in view of the earlier judgement passed by this Court in Writ-A No.10149 of 2021 and a direction was issued to the respondent no.2 i.e. the Director, Ayurvedic and Unani Sevayen, Directorate, Lucknow, to give compassionate appointment to the petitioner on Class III post, and if no such post is vacant, on a supernumerary post as directed in the earlier judgement dated 18.08.2021 in Writ A No.10149 of 2021 within a period of six weeks from the date of passing of the order dated 07.04.2022.
7. The Coordinate Bench of this Court has relied upon a Full Bench decision in Shiv Kumar Dubey Vs. State of U.P., 2014 (2) ADJ 312, for coming to the conclusion that a supernumerary Class III post be created for the petitioner to be appointed on Class III post. However, as per my limited understanding, the judgement of the Full Bench in Shiv Kumar Dubey (supra) has not held that supernumerary Class III post be created to adjust the dependent of a deceased employee allegedly qualified for such Class III post.
8. In the Dying in Harness Rules, 1974 as amended on 12.08.1991 Rule 3 as substituted provides that these Rules shall apply for recruitment of dependents of deceased government servants to public services and posts in connection with the affairs of the State of U.P., except services and posts which are within the purview of the U.P. Public Service Commission, or were previously within the purview of U.P. Public Service Commission and have later on been placed within the purview of UP Subordinate Services Selection Commission. Substituted Rule 8 (3) provides that an appointment made under these rules shall be made in the existing vacancy with the proviso that if no vacancy exists, the appointment shall be made forthwith against a supernumerary post which shall be deemed to have been created for this purpose and which shall continue till a vacancy becomes available.
9. In Shiv Kumar Dubey (Supra) the Full Bench of this Court was considering the correctness of two decisions rendered by Division Benches on the interpretation of the provisions of U. P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules 1974. While considering the principles which had been settled by a body of precedents on the subject, the Full Bench observed that appointments to public offices have to comply with the requirements of Article 14 and Article 16 of the Constitution. Article 16 provides for equality of opportunity in matters of public employment. Compassionate appointment is in the nature of an exception to the ordinary norm of allowing equality of opportunity to every eligible person to compete for public employment. The reason for the exception as envisaged in the Rules is that the immediacy of the financial hardship that is sustained by a bereaved family by the death of its earning member is sought to be alleviated in a situation in which the government servant dies while in service. The Rules have been made by the State Government in exercise of its powers conferred by the Proviso to Article 309 of the Constitution. The Rules make it abundantly clear that the purpose and object underlying the provision for compassionate appointment is not to reserve a post for a member of the family of the deceased government servant who has died while in service. The basic object and purpose is to provide a means to alleviate the financial distress of a family caused by the death of its member who was in government service.
10. The Full Bench quoted Umesh Kumar Nagpal vs. State of Haryana (1994) 4 SEC 138, where the Supreme Court explained the basic purpose of providing compassionate appointment to the dependent of a deceased employee who has died in harness: -
"The object is not to give a member of such family a post much less a post for a post held by the deceased ....., mere death of an employee in harness does not entitle his family to such source of likelihood. 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 class three and four 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 financial destitution and to help it get over the emergency. - - - For these very reasons, the compassionate employment cannot be granted after a lapse of 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 breadwinner, the compassionate appointment cannot be claimed and offered whatever the lapse of time and after the crisis of is over. - - -".
12. The Full Bench also quoted from the Supreme Court judgement in Director of Education (Secondary) vs. Pushpendra Kumar (1998) 5 SEC 192, where it held that compassionate appointment is an exception to the general provision and, being an exception, it should not interfere unduly with the rights of other persons.. The Supreme Court observed Thus : -
"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 employment to one of the dependents 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 appointment, which is in the nature of an exception to the general provision, does not unduly interfere with the right of other persons who are eligible for appointment to seek open employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee."
13. The Supreme Court in the aforesaid case of Pushpendra Kumar(Supra) was considering the dispute relating to compassionate appointment of the respondents The respondents had approached the High Court seeking appointment in class-III posts although they were offered appointment in class-IV post because class-III post were not available. All the Writ Petitions were allowed by the High Court by the impugned judgements. In cases where appointment had been made on a class-IV post, the High Court had quashed such orders and had directed the appointment of the applicant to be made on class-III post provided he possesses the necessary qualifications for such posts and that such appointment may be made in any institution in the district and if there is no such vacancy, then a supernumerary post should be created. The Supreme Court after considering the relevant provisions contained in the Regulations framed under Section 9 (4) of the U.P. Intermediate Education Act, 1921 observed that :-
".....,The construction placed by the High Court on the regulations governing the appointment of dependents of teaching/non-teaching staff in non-government recognised aided institutions, dying in harness would result in all vacancies in class-III posts in non-government recognised aided institutions which were required to be filled by direct recruitment being made available to the dependents of persons employed on the teaching/non-teaching staff of such institutions who died in harness, and the right of other persons who are eligible for appointment to seek employment on those posts by direct recruitment would be completely excluded. On such a construction, the provision in the Regulations would be open to challenge on the ground of being violative Of the right to equality in the matter of employment in as much as other persons who are eligible for appointment and who may be more meritorious than the dependents of deceased employees would be deprived of the right of being considered for such appointment under the Rules. The construction which leads to such a result has to be avoided. Having regard to the fact that there are large number of class four posts and appointment on the post is made by direct recruitment, the object underlying the provision for giving employment to a dependent of a person employed on teaching/non-teaching staff dying in harness would be achieved if the said provision in the Regulations is construed to mean that in the matter of appointment of a dependent of a teaching/non-teaching staff in a non-government recognised aided institution dying in harness,if a post in class-III is not available in the institution in which the deceased employee was employed or in any other institution in the district, the dependent would be appointed on a class-IV post in the institution in which the deceased employee was employed and for that purpose a supernumerary post in class-IV may be created. If the regulations are thus construed, the respondent applicants would only be appointed on a class-IV post and they could not seek direction for being appointed on class-III post and for creation of supernumerary post in class-III for that purpose....".
The Supreme Court allowed the Appeal and held that the direction given by the High Court cannot be upheld whereby the respondents have been directed to be appointed on class-III post if they possess the requisite qualifications for such a post, and in case no class-III post is available, then a supernumerary class-III post be created for the purpose purpose of such appointment.
14. The Supreme Court in Umesh Kumar Nagpal (Supra) had cautioned;..... "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."
15. In State of UP and Others vs. Pankaj Kumar Vishnoi (2013) 11 SEC 178. The Supreme Court was considering the validity of the judgement by the Division Bench of the High Court which had directed the department to give the respondent one more opportunity and to hold another test and to extend him the benefit of compassionate appointment on the post of Sub-Inspector, solely on the ground that the respondent needed time to practise and qualify the Sub-Inspectors Physical Efficiency Test. The department had on failure of the respondent to qualify the Physical Efficiency Test of Sub-Inspector, offered appointment on the post of Constable to the respondent, which was not accepted by him. The Supreme Court had relied upon judgement rendered by it in I.G. Karmik vs. Prahlad Mani Tripathi (2007) 6 SEC 162 and Union of India and others versus Shashank Goswami (2012) 11 SEC 307 to observe that "......the claim for appointment on compassionate grounds is based on the premise that the applicant was dependent 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. An appointment on compassionate grounds 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 grounds, it should be kept confined only to the object it seeks to achieve, the idea being not to provide for endless compassion."
16. The Full Bench of this Court in Shiv Kumar Dubey (Supra) quoted the judgement rendered by the Supreme Court in the case of Chief Commissioner Central Excise and Customs Lucknow vs. Prabhat Singh (2013) 1 UPLBC 357; where the Supreme Court had extended words of caution in the following manner: -
"..........courts and tribunals should not fall prey to any sympathy syndrome, so as to issue directions for compassionate appointments, without reference to the prescribed norms. Courts are not supposed to carry Santa Claus's big bag on Christmas eve, to disburse the gift of compassionate appointment, to all those who seek court's intervention.Courts and Tribunals must understand, that every such act of sympathy, compassion and discretion, wherein directions are issued for appointment on compassionate grounds, would deprive a really needy family requiring financial support, and thereby, push into penury a truly indigent, destitute and impoverished family. Discretion is therefore ruled out. So Are, misplaced sympathy and compassion."
17. The Full Bench in Shiv Kumar Dubey (Supra) in paragraph 31 of its judgement formulated principles which must govern compassionate appointment in pursuance of Dying in Harness Rules. It emphasised that there is no general or vested right to compassionate appointment and that the provisions for 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. 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 justification supported by documentary another 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.
18. This Court has considered both the judgments of Coordinate Benches in Sameer Pandey's Case. The judicial conscience of this Court does not permit it to agree with the judgements passed by the Coordinate Benches. However, judicial propriety demands that instead of disagreeing with the judgement and dismissing the petition, this matter should be referred to the Hon'ble the Chief Justice for constituting a Larger Bench to consider the following substantial questions of law:-
(i) Whether "suitable appointment" in terms of qualifications as given under Rule 5 of the 1974 Rules would mean that if a dependent of a deceased Government employee is qualified to hold a class III post, a supernumerary Class-III post should be created for him and he be given appointed, more so when it has been held by Hon'ble Supreme Court that a dependent of a deceased employee when he claims compassionate appointment is asking for an exception to be carved out for him against the normal rules governed by Article 14 and 16 of the Constitution for equality of opportunity in matters of public employment?
(ii) Whether the Coordinate Bench decision in Writ-A No. 10149 of 2021, 'Sameer Pandey vs. State of U.P. has correctly appreciated the observations of the Full Bench in Shiv Kumar Dubey (Supra)?
(iii) Whether the direction in Sameer Pandey (Supra) could have been given for ignoring the Government Order dated 18.05.2017, when it is settled law that compassionate appointment can be offered only in accordance with the Scheme including Government Order, if any, issued by the Government. The Government Order dated 18.05.2017 was not challenged in Writ-A No. 10149 of 2021 and the Authorities could not be issued any Mandamus to act against the provisions of the Scheme/Government Orders?
19. The office is directed to place this matter before Hon'ble the Chief Justice for appropriate orders.
Order Date :- 28.7.2022 Rahul