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BRIJENDRA SINGH versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Brijendra Singh v. State Of U.P. And Others - WRIT - A No. 17190 of 2007 [2007] RD-AH 5924 (3 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                  Court No. 39

Civil Misc. Writ Petition No.17190 of 2007

Brijendra Singh

Versus

State of U.P. and others.

Hon'ble V.K. Shukla,J.

Petitioner claims that he was appointed  against Class IV post under the provision of U.P. Dying in Harness Rules, 1974 at Shivdan Singh Inter College, Iglas, District  Aligarh when his father died on 8.7.1991. Petitioner has contended that he was not provided  employment commensurate to his educational qualification, as such he preferred Civil Misc. Writ Petition No.  1792 of 1994, which was finally disposed of by this court asking the D.I.O.S., Aligarh to consider the case of petitioner qua his entitlement on 18.12.1995. Petitioner has contended that till date no decision has been taken. Petitioner has contended that  he came across an advertisement published on 24.1.2007 wherein various posts have been advertised. Petitioner submits that he represented the matter before the Manager for consideration of his claim. Petitioner has contended that action of the respondents is  highly contemptuous and petitioner is entitled to be appointed on Class III post. At this juncture present writ petition has been filed.

Sri Rishi Chadha, learned counsel for the petitioner contended with vehemence that petitioner is entitled for class III post commensurate to his educational qualification  and not offering appointment, is clearly unjustifiable and in the teeth of direction issued by this court.

Learned Standing Counsel on the other hand contended that once petitioner had been offered appointment against Class IV post, then claim of petitioner for Class III post cannot be accepted by any means, as purpose of compassionate appointment already stood consummated.

After respective arguments have been advanced, undisputed factual position, which is emerging is that  petitioner was offered compassionate appointment by the order of the D.I.O.S. on 18.4.1988. Petitioner claimed that he was entitled for Class III post and he preferred Civil Misc. Writ Petition  1792 of 1994, in this regard this Court relying on the judgment in the case of  Naveen Kumar Upadhyaya Vs. Director of Education (Secondary ) U.P. at Allahabad and  Smt. Sushma Gosai Vs. Union of India reported in AIR 1989 SC 1975 directed the D.I.O.S. to consider the claim of petitioner as to whether  petitioner is entitled  for Class III post in term of Regulations 101 to 107 of  U.P. Intermediate Education Act, 1921. Suffice, it would be to mention that judgment of  Naveen Kumar Upadhyaya Vs. Director of Education (Secondary ) U.P. at Allahabad ,followed in other case has not at all  been approved by the Hon'ble Apex Court  in the case of Director of Education Vs. Pupnendra AIR 1998 SC 2230  and therein strongly qua appointment against Class III post, strong observations have been made and qua the judgment of Sushma Gosai Vs. Union of India AIR 1989 SC 1976, referring the case of Umesh Kumar Nagpal Vs. State of Haryana, 1994 (4) SCC 138 , in paragraph 9 it has been observed, that said judgment has been misinterpreted  to the point of distortion. Non deciding the matter by District Inspector of Schools is not at all solicited, and same is deprecated and as petitioner has been appointed as Class IV employee in the year 1988, as such on admitted position matter is decided. Petitioner has joined on Class IV post and has been performing and discharging his duty on Class IV post and object of providing compassionate appointment has been fulfilled.

      Before proceeding to consider claim of petitioner, view point through Judicial pronouncements are 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 as Class IV employee and same has been accepted, then  opportunity to get compassionate appointment stand consumed and petitioners cannot claim that they  be absorbed/ offered appointment as matter of right against other post of  Class III, Assistant Clerk, commensurate to his 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. In this background petitioners claim for observation against advertised post is unsustainable.

Consequently, present writ petition  has no force and same is dismissed

Dt. 03.04.2007

T.S.                                                                                      

                                                                                       


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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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