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YOGENDRA KUMAR SINGH versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Yogendra Kumar Singh v. State Of U.P. And Others - WRIT - A No. 66016 of 2006 [2006] RD-AH 20608 (5 December 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 38

Civil Misc. Writ Petition No. 66016 of 2006

Yogendra Kumar Singh

  Vs.

State of U.P.  and others

Hon'ble V.K. Shukla, J.

Petitioner's father was constable in U.P. Police. He died in harness on 3.11.2003. Petitioner has been appointment as constable under Dying in  Harness Rules, 1974 on 18.01.2006, and petitioner has joined the said assignment pursuant to order dated 18.01.2006. Petitioner is contending that he is entitled to be appointed as Sub-Inspector and his application to that effect is pending, as such prays that suitable direction be issued. Petitioner has placed reliance on the judgment passed by this Court in writ petition No. 29068 of 2003, Raj Kumar Pundir vs. State of U.P. and others, and contends that similar benefit  is liable to be extended to petitioner as well by offering appointment to him as Sub-Inspector of Police.

Learned counsel for the petitioner, Sri Vivek Prakash Mishra, contended with vehemence that petitioner was qualified to be appointed as Sub-Inspector, and he has been illegally offered appointment as constable, and in all eventuality he is entitled to be offered appointment commensurate to his educational qualification as Sub-Inspector has been done in the case of Raj Kumar Pundir vs. State of U.P., as such writ petition deserves to be allowed.

Learned Standing Counsel, on the other hand contended that provision of providing compassionate appointment is to save the family in crisis, and the said opportunity  having been availed by the petitioner by accepting the post of constable, petitioner cannot be permitted to claim appointment as Sub Inspector under Dying in Harness Rules. In case petitioner thinks himself to be eligible for that post, he may apply and seek such appointment though open market, as such writ petition is liable to be dismissed.

Before proceeding to consider claim of petitioner, view point through Judicial pronouncements qua providing of employment under Dying in Harness Rules is being looked into:-

Hon'ble Apex Court in the case of State of Rajasthan V. Umrao Singh (1994) 6 SCC 560 has taken following view. Relevant para 8 and 9 is being quoted below:-

8.Admittedly the respondent's father died in harness while working as Sub -Inspector, CID (Special Branch) on 16.3.1988. The respondent filed an application on 8.4.1988 for his appointment on compassionate ground as Sub Inspector of L.D.C. According to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 14.12.1989. He accepted the appointment as L.D.C. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of 'endless compassion'. Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case.

9.Since both the sides relied on Naresh Kumar Bali's case, we will not refer to the same. We had indicated our mind in that very ruling in paragraph 15 of the said judgment. It reads as under (SCC p. 452, para 15)

     "Though the respondent claimed that he had applied for the post of a teacher the Subordinate Service Selection Board had not chosen him for the post of teacher because he did not have the requisite qualification. In fact, the respondent did not object to his appointment as a clerk and his claim for consideration for the post of teacher was one year after his appointment. Thus, the appointment on compassionate ground as per the scheme had been completed".

Therefore, once the right has consummated as we indicated earlier, any further or second consideration for a higher post on the ground of compassion would not arise.

Division Bench of this court in the case of  Pankaj Swami Vs. Vice Chancellor  2003(3) ESC 1268 has taken following view. Relevant para 2,3,4, and 5 are being quoted below:-

2."Facts and circumstances giving rise to this case are that petitioner's father, who was in service of the respondents died in harness on 223.4.1997. Petitioner made an application for appointment on compassionate ground . He was appointed as a Lab Assistant in the Chemistry Department of Meerut College, Meerut. Subsequently petitioner joined the said post and  now, the present writ petition has been filed by the petitioner praying that respondents should be directed to make his appointment suitable  to his qualification.

3.We have heard the learned counsel for the parties and perused the record of the case.

4An identical case was considered by the Hon'ble Apex Court in State of Haryana V. Naresh Kumar Bali, (1994) 4 SCC 448 and it was held that once the applicant accepts the appointment on compassionate ground he cannot make a further claim  for appointment on any other post on any ground whatsoever. It may be for the reason that it cannot be a case of compassion for all time to come. In State of Rajasthan V. Umrao Singh (1994) 6 SCC 560 the Hon'ble Supreme Court while rejecting a similar claim held as under:-

  "He accepted the appointment as L.D.C. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of  endless compassion. Eligibility to Police is one thing, the process of selection is yet another thing.  Therefore, once the right has consummated as we have indicated earlier, any further or second consideration for a higher post on the ground of compassionate would not arise.

5.    As the case stand squarely covered by the aforesaid judgment of the Hon'ble Apex Court, therefore, no relief can be granted to the petitioner.

Petition is accordingly dismissed.    

In view of pronouncement of Hon'ble Apex Court, once appointment has been offered and same has been accepted, then  opportunity to get compassionate appointment stands consumed and incumbent cannot claim that he/she  be absorbed/ offered appointment as a matter of right against other post, commensurate to their qualification.

At this juncture, the object of providing compassionate appointment is being looked, which has been exhaustively dealt with by Hon'ble Apex Court in the case of State of J & K Vs. Sajjad Ahmad Mir 2006 AIR SCW 3706, where Hon'ble Apex Court has taken the view that compassionate appointment cannot be claimed as matter of right, at the  cost of others. Relevant extract of aforementioned judgment (paragraphs 10, 11, 12, 13,14,and 15) dated 17.07.2006 is being quoted below:

"10. Having heard the learned counsel for the parties, in our opinion, the appeal should be allowed. Certain facts are not in dispute. The father of the applicant who was in service, died-in-harness in March, 1987 and for the first time, the application was made by the applicant after more than four years i. e. in September, 1991. The family thus survived for more than four years after the death of the applicant's father. Event at that time, the applicant, under the relevant guidelines, could not have been appointed and hence relaxation was prayed. It is no doubt true that the case of the applicant was favourably considered by the Departments and recommendation was made, but it is also la fact which has come on record that in March, 1996, a decision was taken by the authorities not to give appointment to the applicant on compassionate ground. From the affidavit-in-reply filed by the authorities in the  High Court as also from the finding of the learned single Judge, it is clear that the applicant had knowledge about rejection of his application in 1996 itself. Nothing was done by the applicant against the said decision. Considerable period elapsed and only in 1999, when there was some inter-Departmental communication and Administrative Officer informed the Chief Engineer vide a letter dated 8th June, 1999 that the applicant could not be appointed on compassionate ground that the applicant  woke up and filed a writ petition in the High Court. It is also pertinent to note that the letter of19099 itself recites that the case of the applicant for compassionate appointment was considered and the prayer had already been turned down by the Administrative Department and the said fact had been communicated to the office of the Chief Engineer. A copy  of the said letter was also annexed to the letter of 1999. In our opinion, there ore, the learned single Judge was right in dismissing the petition on the ground of delay and latches  by holding that the applicant had not done anything for a considerable period after March, 1996 when his claim was rejected even though he was informed about the decision and was very much aware of it. The Division Bench, in our view, was not justified in setting aside the said order and in directing the authorities to consider the case of the applicant for compassionate appointment and by giving directions to give other benefits.

11. We may also observe that when the Division Bench of the High Court was  considering the case of the applicant holding that he had sought' compassion', the Bench ought to have considered the large issue as well  and it is that such an appointment is an exception to the general rule. 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 setback. 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.

12.  In State  of Haryana and Ors. Vs. Rani Devi and Anr (1996) 5 SCC 308 : AIR 1996 SC 2445), it was held that the claim of applicant for appointment on compassionate ground is based on the premise that he was Dependant  on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 and 16 of the Constitution. However, such claim is considered reasonable as also allowable on the basis of sudden crisis  occurring in the family of the employee who had served the State and died while in service. That is why it is necessary  for the authorities to frame Rules, Regulations or to issue such administrative instructions which can stand the test of Articles 14 and16 . Appointment on compassionate ground cannot be claimed as a matter or right.

13.    In Life Insurance Corporation of India V. Asha Ramchandra Ambekar (Mrs.) & Anr. (1994)2 SCC 718, it was indicated that 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.

14.     In Umesh Kumar Nagpal V. State of Haryana  & ors. (1994) 4 SCC 138, it was ruled that public service appointment should be made strictly on the basis of open invitation of applications and on merits. The appointment on compassionate ground cannot be a source of recruitment. It is merely an exception to the requirement of law keeping in view the fact of the death of 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. Such appointments on compassionate ground, therefore, have to be made in accordance with Rules,Regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. This favorable treatment to the Dependant of the deceased employee must have clear nexus with the object sought to be achieved  thereby, i.e. relief against destitution. At the same time, however,  it should not be forgotten that as against the destitute family of the deceased, there are millions and 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 expectation, and the change in the status and affairs of the family engendered by the  erstwhile employment, which are suddenly upturned.

In Smt. Sushma Gosain & Ors. V. Union of India & Ors. (1989) 4 SCC 468, it was observed that in claims of appointment on compassionate grounds, there should be no delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress."

  Thus inevitable conclusion is that purpose of providing compassionate appointment is to mitigate hardship due to death of bread earner in family, and once said object stands fulfilled by showing compassion and offering appointment, then any further compassion is clearly at the cost of others, who are in the que of job seekers, who can come forward to apply and comptete  with each other, when normal rule of appointment would be followed. Further compassion is clearly dehors the mandate of Article 14 and 16 and is not at all permissible under the constitutional scheme, which guarantees of equality in the matter of employment.

Much capital has been sought to be made, of the judgment, in case of Raj Kumar Pundir v. State of U.P., Civil Misc. Writ Petition No.29068 of 2003, decided on 08.04.2004. The said decision will not come to rescue of petitioner, for the simple reason that in the said case, claim of incumbent was processed for the post of Sub-Inspector, and subsequent to the same, on the strength of letter of Sri Banshi Lal, D.I.G. (Establishment) U.P. Police Head Quarter,, compassionate appointment was offered on the post of Constable. In this background, when writ petition had been filed, interim protection was accorded that petitioner my be permitted to join as Constable, without any prejudice to his rights claimed in writ petition. Here, in the present case, fact and situation is altogether different. Petitioner intended to be appointed as Sub-Inspector (Ministerial)/Steno, and in this regard had written letter dated 12.12.2005. Said application was forwarded by Senior Superintendent of police, Aligarh on 03./10.2006 to the D.I.G. (Establishment). D.I.G. (Establishment) approved the name of petitioner for Constable. Petitioner on 27.01.2006, addressed letter to D.I.G. (Establishment) mentioning therein that he does not intend to join. The fact of the matter is that petitioner joined thereafter, and thus consumed the opportunity of being provided compassionate appointment. Petitioner earlier was given opportunity for the post of Sub-Inspector, but he failed in Physical Test, held at Police Lines, Lucknow on 27/28/29th June, 2006. Consequently, case of petitioner is clearly distinguishable from the aforementioned judgment as in the said case joining as Constable was not to prejudice the claim of incumbent, whereas here petitioner joined, and started performing and discharging his duties.  

In view of above discussion, writ petition fails and is dismissed.

05.12.2006

SRY


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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