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Abhimanyu Ratna Bhardwaj v. State Of U.P. & Others - SPECIAL APPEAL No. 1505 of 2005 [2006] RD-AH 74 (2 January 2006)


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Court No.32

Special Appeal No.1505 of 2005

Abhimanyu Ratan Bhardwaj vs. State of U.P. & others

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

This special appeal arises from the order of the Hon'ble Single Judge of this Court dated 17.11.2005 dismissing the appellant's writ petition no.70738 of 2005 claiming compassionate appointment against class III post.

Learned counsel for the appellant contended that since the appellant has intermediate qualification, he is entitled to be given appointment against Class III post.  We do not find any force in the submission.

Admittedly, the father of the appellant died on 20.3.1999.  At that stage the appellant was minor and was undergoing education in school.  For the first time his mother moved an application on 16.2.2004 requesting the respondents to provide compassionate appointment to her son namely, the appellant showing his qualification as high school passed.  Admittedly, on the said date the appellant was not having intermediate qualification.  It appears that subsequently in the year 2004 the appellant passed intermediate examination and thereafter submitted another application dated 19.7.2004 seeking compassionate appointment in clerical cadre. Under the Rules the application for compassionate appointment ought to have been filed within five years from the date of death of the deceased and in the present case the period of five years expired on 19.3.2004 on which date, admittedly, the appellant was not possessing intermediate qualification.  It is in these circumstances that the application was submitted on behalf of the appellant through his mother on 16.2.2004 requesting for compassionate appointment on the basis of qualification possessed by the appellant on the said date.  Considering these facts the Special Secretary, U.P. Government vide letter dated 4/5.4.2005 (annexure 6 to the affidavit filed in support of the stay application) informed the District Magistrate, Mahamaya Nagar that the claim of the appellant for compassionate appointment be considered on the basis of the qualification he possessed on the date of his first application i.e. 16.2.2004.  We do not find any error in the view taken by the State Government in the aforesaid letter.

Learned counsel for the appellant placed reliance on a Division Bench judgment of this Court in the case of Hiraman vs. State of U.P. and others, 1994 (1) UPLBEC 420 and contended that the compassionate appointment is liable to be considered on the basis of qualification possessed by the legal heirs claiming compassionate appointment and if he possesses the qualifications requisite for appointment in class III post, he is entitled to be considered for class III post instead of class IV post.  The facts of the aforesaid case are totally different inasmuch as there was a vacancy on the post of clerk against which one Karunesh Kumar Srivastava, whose father was working as Assistant Teacher in Nehru Intermediate College, Semari Sukrauli, Post Office Sikrauli, District Deoria, expired but in spite of direction issued by the District Inspector of Schools the management did not appoint him as clerk but appointed him as peon.  Karunesh Kumar Srivastava represented the matter to the District Inspector of Schools and during the pendency of his representation joined college as peon on 17.5.1990.  Subsequently, the management in order to frustrate the claim of Karunesh Kumar Srivastava sought to promote a daftari.  Karunesh Kumar Srivastava approached this Court by filing writ petition, which was allowed by the Hon'ble Single Judge quashing the order of appointment on the post of said daftari namely, Hiraman and a mandamus was issued directing to appoint Karunesh Kumar Srivastava on the post of clerk with effect from 12.5.1990 i.e. the date since when he was appointed as peon.  Hiraman filed special appeal against the aforesaid judgment of Hon'ble Single Judge but the same was dismissed by the Division Bench vide judgment dated 10.12.2003.  Thus, the same is not applicable to the facts of the present case.

Even otherwise, the learned counsel for the appellant unfortunately has cited a judgment, which has already been set aside in appeal.  This is improper.  Hiraman approached the Hon'ble Supreme Court in Civil Appeal No.5355 of 1997 and the Hon'ble Supreme Court allowed the aforesaid appeal and the judgment of this Court in special appeal aforesaid was set aside on 8.8.1997 which is reported in JT 1997 (7) SC 324, therefore, the reliance placed by the learned counsel for the appellant on a Division Bench judgment of this Court, which has already been set aside by the Hon'ble Apex Court, is clearly misconceived.  

Besides above, we find that the provision pertaining to compassionate appointment has been dealt with by the Hon'ble Apex Court subsequent to its decision in the case of Sushma Gosain and others vs. Union of India and others, AIR 1989 SC 1976 and the approach pertaining to the provisions for compassionate appointment has undergone major change.  This would be apparent from a judgment of Hon'ble Apex Court in the case of Director of Education (Secondary) and another vs. Pushpendra Kumar and others, (1998) 5 SCC 192 wherein the Hon'ble Apex Court has observed as under: -

"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 provide, 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." (para 8)

In the case of Sanjay Kumar vs. State of Bihar and others, JT 2000 (10) SC 156 it has been held by the Hon'ble Apex Court that there cannot be a reservation of vacancy for the dependant of the deceased of Government Servant, who died in harness.

In the case of State of Haryana vs. Vipin Kumar, AIR 2002 SC 2867 the Hon'ble Apex Court held that the purpose for compassionate appointment is not to confer a status on a family and no person can claim to have the same post or a particular post, hierarchy and cadre.  It is for the employer to consider and decide as to how and on which post the appointment on compassionate basis has to be made. It further held as under: -

"3.   All that need to be done is that, post that is offered to the respondent claiming a post on compassionate ground, should be at least one step below that was held by the deceased employee and that does not mean it should be the immediate post below it, it could be even lower than that."

In the aforesaid facts and circumstances, we do not find any reason to interfere with the judgment under appeal whereby the writ petition of the appellant has been dismissed.

The appeal, therefore, being without merit, is accordingly dismissed.  No order as to costs.




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