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Kunwar Bahadur Yadav v. State Of U.P. And Others - WRIT - A No. 5012 of 2006 [2007] RD-AH 1066 (17 January 2007)


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Court No. 38

Civil Misc. Writ Petition No. 5012 of 2005

Kunwar Bahadur Yadav


State of U.P. and others

Hon'ble V.K. Shukla,J.

Petitioner's father was serving as constable in U.P. Police. He died in harness on 14.10.1985. Petitioner has contended that he was minor at that point of time and application for grant of compassionate appointment has been made  and various correspondence were made and thereafter on 22.01.2004 decision has been taken rejecting the claim of the petitioner for grant of compassionate appointment. At this juncture present writ petition has been filed.

Sri U.K. Goswami, Advocate, learned counsel for the petitioner contended with vehemence that in the present case claim of the petitioner has been illegally rejected and in all eventuality petitioner was entitled for compassionate appointment.

Learned standing counsel, on the other hand, contended that already 21 years period have elapsed and purpose of awarding compassionate appointment is already over, as such no interference be made.

After respective arguments have been advanced, undisputed position which is emerging is that father of petitioner died on 14.10.1985. About more than 21 years period have already elapsed. Hon'ble apex Court in the case of State of J. & K. vs. Sajjad Ahmed Mir, reported in 2006 AIR SCW 3706, has taken the view that compassionate appointment cannot be claimed as matter of right, at the cost of others, and when matter was taken up fifteen years period had already passed from the date of death, and said fact was relevant and material fact that family survived, in spite of death of employee. 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.

15. 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."

On the touchstone of the principle enunciated above, here in spite of death of bread earner in the family, petitioner has survived and substantial period of 21 years is over, then there is no necessity to say goodbye to normal rule of appointment, and show favour to petitioner.

Apart from this in the present case foundation and basis for passing the order dated 22.01.2004 is Government Order dated 13.05.2003 wherein policy decision has been taken qua the claim of relaxation inter se incumbent who had laid their life while discharging their duties and incumbents who had died from illness etc. Validity of said Government Order dated 13.05.2003 has not at all been questioned and same has been made foundation and basis for passing of the order dated 21.01.2004.

Counsel for the petitioner has placed reliance on the judgment of this Court in Civil Misc. Writ Petition No. 26536 of 2005 (Ram Nagesh Vs. State of U.P. and others) decided on 11th September, 2006. The judgment cited by the learned counsel for the petitioner will not come to rescue of the petitioner in view of the judgment of Hon'ble Apex Court and in view of the decision of the State Government which has been referred to in the impugned order itself.

Consequently, no interference is warranted as such writ petition being devoid of substance, is dismissed.

No orders as to cost.

Dated:17rd January, 2007



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