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MAHENDRA PRATAP SHARMA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Mahendra Pratap Sharma v. State Of U.P. And Others - WRIT - A No. - 11036 of 2006 [2007] RD-AH 17490 (6 November 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 23.10.2007

Delivered on 06.11.2007

Civil Misc. Writ Petition No. 11036 of 2006

Mahendra Pratap Sharma

Vs.

State of U.P. and others

Hon'ble Sudhir Agarwal, J.

1. Aggrieved by the order dated 18.9.2002 passed by respondent no.2, Director, Panchayat Raj, U.P.,Lucknow, rejecting claim of the petitioner for compassionate appointment under U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules 1974 (hereinafter referred to as "1974 Rules"), the petitioner has approached this Court by filing the present writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari for quashing the aforesaid order and has also sought a writ of mandamus commanding the respondents to grant exemption to the petitioner from moving application after lapse of 5 years and to consider him for compassionate appointment against a class III post keeping in view his educational qualification.

2. Petitioner's father late Ram Kishore Sharma was working as Village Panchayat Officer and died in harness on 2.8.1989. It appears that petitioner's mother Smt. Satyawati Devi was sought to be given benefit of 1974 Rules by the respondents but she sent a letter dated 9.3.1992 stating that due to her mental condition she was not able to serve the department and since both of her sons were minor, till one of her son becomes major, a vacancy may be kept reserved for compassionate appointment under 1974 Rules. The mother of the petitioner also subsequently died on 19.3.1995. She was getting family pension in her lifetime but after her death, it was paid to the unmarried daughter, i.e. sister of the petitioner and after her marriage, the family pension was sanctioned to the minor sons through their legal guardian Sri Rajveer Sharma. The petitioner whose date of birth is 24.1.1983 passed his High School in 1997 and Intermediate in 2000 and submitted an application on 28.2.2001 before the District Panchayat Raj Officer, Aligarh, claiming compassionate appointment under 1974 Rules due to death of his father on 2.8.1989 stating that since now he has attained majority, he should be considered for the said appointment. He submitted a reminder letter dated 4.8.2001 and thereafter approached this Court in writ petition no. 18812 of 2002 having received no response from the respondents. The aforesaid writ petition was finally disposed of vide judgment dated 6.5.2002, permitting the petitioner to make a fresh representation before the Director, Panchayat Raj, U.P. Government who was further directed to decide the same within a period of three months. Pursuant to the said order, the petitioner appears to have made representation dated 11.6.2002 before the Director, Panchayat Raj, Lucknow who has rejected the same by order dated 18.9.2002 impugned in this writ petition. In order to complete the facts, Sri Singh, learned counsel for the petitioner has informed that the petitioner had obtained his graduation degree in Commerce from Agra University in 2004.

3. The respondents have filed counter affidavit disputing the claim of the petitioner stating that initially after the death of father of the petitioner, the petitioner's mother Smt. Satyawati Devi submitted an application dated 30th August 1989 requesting to provide compassionate appointment to Sri Kishan Lal who was younger brother of her deceased husband. The claim could not be accepted since the brother of the deceased employee was not entitled for compassionate appointment under 1974 Rules. It is also said that the widow of the deceased employee also informed the authorities on 30.8.1989 that her children--two sons aged about five years and two years and a daughter aged about 12 years were minor and, therefore, none of them were eligible for compassionate appointment at that time. She also sent a letter dated 9.3.1992 requesting the authorities to keep a post vacant till one of her sons becomes major to get appointment. Further the petitioner's application dated 28th February 2001 which was received in the concerned office on 11th April 2001. It was considered and by order dated 9th May 2001, the same was rejected being contrary to Rule 5 of 1974 Rules. It is contended that the representation has rightly been rejected and the petitioner is not entitled to compassionate appointment.

4. In the rejoinder affidavit filed by the petitioner it is not disputed that the claim of the petitioner's uncle for compassionate appointment was rejected by the respondents but it is said that thereafter his mother informed the respondents that after attaining majority one of her son may be provided compassionate appointment. It is stated that the petitioner and his family members are not getting any help from his uncle as his uncle is residing separately. It is also stated that in a number of cases, the State Government has made compassionate appointment after a long time relaxing five years requirement under 1974 Rules and, therefore, adherence to the said time schedule in the case of the petitioner is apparently arbitrary and discriminatory.

5. Sri B.N. Singh, learned counsel for the petitioner vehemently contended that proviso to Rule 5 of 1974 Rules as amended vide notification dated 13.10.1993 by (Third Amendment) Rules, 1993, it was open to the State Government to relax limitation of five years for making appointment under 1974 Rules in appropriate cases but in the case of the petitioner, the said discretion has not been exercised validly. He further contended that in fact, respondent no.2 has not considered the question of exercising power of relaxation under proviso to Rule 5 of 1974 Rules at all and, therefore, the impugned order is liable to be set aside. He also placed reliance on certain authorities of this Court namely, Manoj Kumar Saxena Versus. District Magistrate, Bareilly and others 200(2) ESC 967 (All.); Shri Ram Pandey Versus Senior Superintendent of Police, Varanasi and others 2001(3) ESC 995 (All.); Dharmendra Singh Versus State of U.P. and others (2005) 3 UPLBEC 2426; Indrajeet Singh Negi Versus District Magistrate, Rudraprayag and another (2006) 2 UPLBEC 43 and Vaibhav Singh Versus State of U.P. and others (2006) 2 UPLBEC 1807.

6. I have heard learned counsel for the parties and perused the record. The point in short required to be considered in this case is as to whether after more than a decade a person can claim compassionate appointment and whether the authorities must relax the normal recruitment procedure in favour of a person whose father or mother died in harness long back and merely because the children were minor and they could not apply for compassionate appointment within a reasonable time but have survived well for such a long time.

7. The purpose and objective of compassionate appointment is to provide immediate succour to the bereaved family whose sole bread earner has died in harness. It is not a source of recruitment. It only enables the family to tide over the sudden situation crisis and not to give a member of such family a post much less a post held by the deceased. It is not a kind of right of succession in the service when the employee has died in harness. The compassionate appointment has always been considered to be an exception to the Rules made in favour of the family of the deceased employee in consideration of services rendered by him and legitimate expectations, change in status and affairs of the family endangered by the erstwhile employment which are suddenly upturned. It cannot be allowed as a matter of course. There is no question of reserving a vacancy for the Dependents of deceased employee so as to provide them as and when they claim the same after acquiring requisite qualification, age etc. If compassionate appointment is allowed after reasonably long time, it would defeat the very object of assisting the family of deceased employee to tide over the sudden crisis resulting due to the death of bread earner, leaving his/her family in penury and without any means of livelihood. The matter has been considered by the Apex Court as well as this Court time and again and it would be useful to have a bird's eye view on some of such authorities of Apex Court.

8. In the case of Sushma Gosain and others Vs. Union of India and others, A. I. R. 1989 S.C. 1976, the Apex Court while considering the object of granting appointment observed as under:

"The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. "

9. In the case of Umesh Kumar Nagpal Vs. State of Haryana and others, 1994 (4) SCC 138, the Apex Court reiterating the said purpose further explained nature of right of legal heirs qua employment, as under:

"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 post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. 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 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............ Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased...........The decision does not justify compassionate employment either as a matter of course.......................The only ground which can justify compassionate employment is the penurious condition of the deceased's family.......... The consideration for such employment is not a vested right.............. The object being to enable the family to get over the financial crisis."

10. In the case of Haryana State Electricity Board and another Vs. Hakim Singh, Judgment Today 1997 (8) SC 332, the Apex Court cautioned that the object of providing compassionate employment is only to relieve the family from financial hardship. Therefore, an ameliorating relief should not be taken as opening of alternative mode of recruitment to public employment.

11. Again in Director of Education (Secondary) and another Vs. Pushpendra Kumar and others 1998 (5) SCC 192, the Apex Court observed as under :

"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-earned 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 the 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. 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 provision, 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 for the dependant of a deceased employee." (emphasis added)

12. In Sanjay Kumar Vs. State of Bihar and others, Judgment Today 2000 (10) SC 156, the Apex Court reiterated that the compassionate appointment is provided only to enable the family of the deceased employee to tide over sudden crises resulting due to the death of sole bread-earner who had left family in penury without any means of livelihood but it cannot be treated to be a reserved vacancy for the dependants of the deceased Government servant who died in harness.

13. In the case of Haryana State Electricity Board Vs. Krishna Devi, 2002 LLJ 773, the Apex Court while reiterating the objective of compassionate appointment as laid down in the earlier cases further observed that the 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.

14. If the family has sufficient means to survive for years together and can take care of the minors who have turned into major after undergoing educational qualification etc. that itself would be evident to show that now the family is not in financial crises as it could have at the time of sudden demise of the deceased necessitating compassionate appointment at a late stage i.e. after several years.

15. In State of Manipur Vs. Mohd. Rajaodin, 2003 (7) SCC 511, the Apex Court reiterated that the purpose of giving compassionate appointment is only to mitigate hardship caused to the family of the deceased on account of his unexpected death in service, only to alleviate the distress of the family but at a belated stage as these grounds are no more in existence, therefore, the employment cannot be claimed or provided.

16. Thus, in view of catena of decisions in the matter of compassionate appointment, some of which have been discussed and referred above, it is clear that the compassionate appointment cannot be claimed as a 'vested right'. The term 'vested right' has been considered and described by the Apex Court in the case of Mosammat Bibi Sayeeda and others Vs. State of Bihar and others, AIR 1996 SC 1936 wherein after referring to dictionary meaning in various dictionary, the Apex Court has observed as under :

"Rights are vested when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest."

17. Thus, the vested right may arise from contract, statute or by operation of law. However, asking for compassionate appointment after attaining the majority by no stretch of imagination can be said to be a vested right.

18. This Court cannot be oblivious of the fact that unemployment is a major problem in our country. Lacs and millions educated unemployed persons are wandering for employment and even for a single petty Class IV vacancy, hundreds and thousands applied which includes not only those who possesses the minimum qualification of secondary levels or less but even graduate and post-graduate. At times it has been seen that even persons having doctorate have applied for the lowest class of service i.e. Class IV. In such a situation, public employment must be available to eligible and suitable persons to be filled in by competition and all who are willing should be given an opportunity of consideration. Asking for a vacancy to be kept reserve so as to be filled-in future on the basis of notional extended distress to the family continuing for years together would amount to denial of such right of consideration to other similarly placed unemployed and destitute persons whose only faults is that their ancestors could not get the opportunity of employment and, therefore, they should also suffer the same misfortune. Compassionate appointment in fact has an element of an immediate help to the family of the deceased employee. The heirs in distress lacking sufficient and reasonable means to survive with some honour must request for such help immediately or within a reasonable time. To some extent, no doubt, it is a condition of service and the benefit available to employee in general but extension of such conditions of service to an unreasonable extent would or may erode the difference between valid and invalid and any such stretch may render the provisions of the compassionate appointment to be judged on the anvil of Article 16 of the Constitution of India which confers right of equal opportunity in public employment to all persons. The Court cannot shut its eyes to the fact that still majority of people are continuing to be tiny, poor starving little Indians and still are below poverty line. Their distress and penury appears to be everlasting, as if they are bound to live in distress permanently. Their misery and destitute is not the result of sudden demise of the sole bread-earner but is caused by their fate and for the reason of non availability of employment. They are not in a position, even though they are alive, to earn two times simple bread what to talk of bread and butter. The distress of such persons is neither negligible nor can be ignored. In the pragmatic society, efforts had to be made to read and apply law wherever permissible which will extend an opportunity of equal consideration for public employment to public at large irrespective of their lineage, ancestral hierarchy etc.

19. In State of Jammu & Kashmir and others Vs. Sajad Ahmed Mir AIR 2006 SC 2743 similar facts were involved and considering the same, the Apex Court held that when the deceased employee died in 1987 and his son approached the authorities in 1999, i.e., more than a decade, the same itself disentitles him to claim any benefit of compassionate appointment and observed that the view taken by the High Court in favour of the dependant of the deceased employee amounts to misplaced sympathy. It reiterated the objective of compassionate appointment as under:

" 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 larger 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 of India."

20. Coming to various judgments relied upon by learned counsel for the petitioner, I am of the view that in view of the law laid down by the Apex Court in the above mentioned cases, issuance of direction to respondents to consider the petitioner for compassionate appointment after more than 1?? decade would be contrary to the basic purpose and objective of the scheme of compassionate appointment and, therefore, none of these judgments relied by the petitioner helps him in any manner.

21. There is another aspect of the matter. 1974 Rules was amended by Third Amendment Rules 1993 vide notification dated 13.10.1993 which came into force from the said date. Prior to the aforesaid amendment Rule 5 of 1974 Rules was as under:

"Yadi Is Niyamawali Ke Prarambh Hone Ke Paschat Kisi Sarkari Sewak Ki Sewa Kaal Main Mrityu Ho Jaye To Uske Kutumb Ke Aise Ek Sadasya Ko Jo Kendriya Sarkar Ya Rajya Sarkar Ke Athwa Kendriya Sarkar Ya Rajya Sarkar Ke Swamitwadhin Ya Uske Dwara Niyukta Kisi Nigam Ke Adhin Pahle Se Sewayojit Na Ho, Is Prayojan Ke Liye Avedan Karne Par Bharti Ke Samanya Niyamo Ko Shithil Karte Huye, Sarkari Sewa Mein Uparyukt Sawayojan Pradan Kiya Jayega Jo Rajya Lok Sewa Ayog Ke Antargat Na Ho, Kintu Pratibandh Yah Hai Ki Sadasya Us Pad Ke Liye Vihit Shaikshik Arhata Rakhta Ho Tatha Wah Anya Prakar Se Bhi Sarkari Sewa Ke Liye Arha Ho. Aisi Kisi Avilamb Aur Yathashkya Usi Vibhag Mein Di Jani Chahiye. Jisme Mrit Sarkari Sewak Apni Mrityu Ke Purva Sewayojit Tha."

In place of the aforesaid provision by the Third Amendment notification dated 13.10.1993, Rule 5 was substituted as under:

"Yadi Is Niyamawali Ke Prarambh Hone Ke Paschat Kisi Sarkari Sewak Ki Sewa Kaal Main Mrityu Ho Jaye To Uske Kutumb Ke Aise Ek Sadasya Ko Jo Kendriya Sarkar Ya Rajya Sarkar Ke Athwa Kendriya Sarkar Ya Rajya Sarkar Ke Swamitwadhin Ya Uske Dwara Niyantrit Kisi Nigam Ke Adhin Pahle Se Sewayojit Na Ho, Is Prayojan Ke Liye Avedan Karne Par Bharti Ke Samanya Niyamo Ko Shithil Karte Huye, Sarkari Sewa Mein Uparyukt Sawayojan Pradan Kiya Jayega Jo Rajya Lok Sewa Ayog Ke Kshetrantargat Na Ho, Yadi Aisa Vyakti--

(Ek) Pad Ke Liye Vihit Shaikshik Arhta Rakhta Ho,

(Do) Anya Prakar Se Sarkari Sewa Ke Liye Arha Ho, Aur

(Tin) Sarkari Sewak Ki Mrityu Ke Dinank Ke Panch Varsh Ke Bhitar Sewayojan Ke Liye Avedan Karta Hai:

Parantu Jahan Rajya Sarkar Ka Yeh Samadhan Ho Jaye Ki Sewayojan Ke Liye Avedan Karne Ke Liye Niyat Samay Seema Se Kisi Vishista Mamle Mein Anuchit Kathinai Hoti Hai Wahan Wah Apekshaon Ki Jinhe Wah Mamle Mein Nyaysangat Aur Sampurna Riti Se Karyawahi Karne Ke Liye Avashyak Samjhe, Abhimukta Ya Shithil Kar Sakta Hai.

(2) Aisi Naukri Yathashakya Usi Vibhag Main Di Jani Chahiye Jisme Mrit Sarkari Sewak Apni Mrityu Ke Purva Sewayojit Tha."

22. Admittedly, the petitioner's father died on 2.8.1989 when the old Rule 5 was in operation which neither made any provision with respect to period within which the application for compassionate appointment was to be submitted nor authorised the State Government to relax the requirement of the said period. On the contrary, a perusal of the then existing Rule 5 makes it clear that it stresses upon to provide employment on compassionate ground to the concerned person without any delay. Meaning thereby that the application ought to have been submitted by the successor of the deceased employee claiming compassionate appointment without any undue delay and with utmost expediency. Any delayed application was liable to be dealt with as if the family has sufficient means to survive and, therefore, would be disentitled for compassionate appointment. The amendment made by 1993 notification is prospective and cannot help the petitioner to take any advantage of the new Rule since the cause of action in his case arose in 1989 when a different provision was in existence. Moreover, the discretion conferred by the proviso under condition no.3 of Rule 5 as stood after the amendment, gives a discretion to the State Government and that too is preceded by a condition, namely, in special cases where undue hardship has caused and it is expedient and in the interest of justice that the provision pertaining to five years period needs to be relaxed, it does not give any right to a person to claim relaxation thereunder. In the circumstances, in my view, Rule 5 as brought on on the statute book by notification dated 13.10.1993 cannot help the petitioner for maintaining his application for compassionate appointment after more than 12 years. In case the application for compassionate appointment is to be considered after such a long span of time, that would frustrate the very objective and purpose of compassionate appointment and, therefore, cannot be permitted by this Court.

23. In the result, in my view, the relief as sought by the petitioner cannot be granted and the order passed by respondent no.2 cannot be said to have suffered any error apparent on the face of record warranting any interference. The writ petition lacks merit and is accordingly dismissed.

Dated:November 6;2007

Akn.


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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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