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RAJESH KUMAR SAHU versus CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD AND OTHERS

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Rajesh Kumar Sahu v. Central Administrative Tribunal, Allahabad And Others - WRIT - A No. 17845 of 2003 [2003] RD-AH 120 (25 April 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 38

CIVIL MISC. WRIT PETITION NO. 17845 Of 2003

Rajesh Kumar Sahu -----           Petitioner

Versus

The Central Administrative Tribunal,

Allahabad Bench, Allahabad & ors. -----        Respondents    

    --------------

Hon'ble Dr.B.S.Chauhan,J.

Hon'ble Ghanshyam Dass, J.

(Delivered by Hon'ble Dr. B.S.Chauhan, J.)

This writ petition has been filed against the judgment and order dated 27.2.2003, by which the claim of the petitioner for employment on compassionate ground has been rejected by the learned Central Administrative Tribunal (Allahabad Bench).

Facts and circumstances giving rise to this case are that the petitioner had applied for appointment on compassionate ground as his father died in harness and his case was approved for appointment as Postal Assistant vide order dated 12.9.2001. However, the appointment could not be offered as no post was available and only to the extent of 5% of posts were to be filed up by appointment on compassionate ground. Being aggrieved and dissatisfied, petitioner approached the learned Tribunal. The Tribunal could not find it possible to issue any direction in favour of the petitioner to appoint him as a Postal Assistant as no post was available in that category. Hence this petition.

Learned counsel for the petitioner has submitted that as the petitioner's father has died in harness and petitioner's case has been approved for employment on compassionate ground vide order dated 12.9.2001, he ought to have been offered the appointment as Postal Assistant and learned Tribunal's judgment is liable to be reversed.

In the instant case admittedly only 5% of the posts could be filled up by appointment on compassionate ground and if no post was available in that category within that limit, the Tribunal could not have issued any direction to fill up the vacancy over and above the quota fixed by the statutory authorities.

In  Umesh  Kumar  Nagpal  Vs.   State  of  Haryana &  ors.,  (1994) 4 SCC 138,  the  Hon'ble  Apex Court has considered the nature of the right  which a dependant  can  claim    while   seeking  employment  on  compassionate ground.  The  Court  has observed as under:-  

"It appears that there has been a good  deal  of obfuscation on the issue.  As a  rule,  appointment in the public services  should  be made strictly on the basis  of  open  invitation  of   applications   and merit. No other mode of appointment nor any other consideration is  permissible. Neither the Governments nor the  public authorities  are at liberty to follow any other procedure or     relax    the qualifications laid down by the rules for the  post.  However, to this general rule which is to be followed strictly in every case,  there  are some exceptions  carved out  in  the interest of justice  and  to meet  certain  contingencies. One such exception  is in favour of the dependants of  an  employee  dying  in  harness  and  leaving  his family in penury and without any means of livelihood.  In such cases, out  of  pure humanitarian  consideration  taking  into consideration the fact  that unless  some source of  livelihood   is  provided, the family would not be able to make  both ends meet, a provision is made in the rules to provide gainful  employment  to  one of the dependants  of the deceased who may be eligible for such employment. 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.  (Emphasis added).    

The  same  view  has been  reiterated  in Jagdish Prasad  Vs.  State of Bihar, (1996) 1 SCC 301;  State  of Bihar Vs.  Samsuz Zoha, AIR  1996 SC 1961;  Himachal Road Transport Corporation Vs. Dinesh Kumar,  (1996)  4 SCC 560;  and  Hindustan Aeronautics  Ltd.   Vs.  A.  Radhika  Thirumalai, (1996) 6 SCC 394.  It has categorically been held that compassionate  employment cannot be  claimed as a matter of course not being a vested right.  

In Haryana State Electricity Board & Anr. Vs.  Hakim Singh, JT 1997 (8) SC 332, the Hon'ble  Apex Court  placed  reliance upon  the  judgments  referred to above and observed that the object of  providing for compassionate employment is only to  relieve the  family  from   financial   hardship, therefore,  an 'ameliorating relief should not be taken as   opening   an   alternative   mode   of  recruitment to public employment.  

Similarly,  in Haryana State  Electricity Board Vs.  Naresh Tanwar & Anr., (1996) 8 SCC 23, the Hon'ble  Apex  Court reiterated and  followed the law laid  down in Umesh Nagpal's case (supra) and directed  the applicants involved therein  to  apply for  employment on compassionate ground "by giving full  details of the family  circumstances and the economic conditions."        

In  Director  of Education (Secondary)  & Anr.  Vs.   Pushpendra Kumar & ors., (1998) 5 SCC 192, the Apex Court has 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-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 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).        

In Chairman, Bihar Rajya Vidyut Board Vs. Chhathu Ram,  (1999)  5  SCC   673,  the  Hon'ble Supreme Court  held  that  in   absence  of   the statutory provisions, an adopted son cannot claim appointment  on compassionate ground.  Similarly, in General Secretary, American Express Bank Union Vs.  American Express Bank Ltd., (1999) SCC (L&S) 1235, the  Hon'ble  Supreme Court held that  mere adoption  of recruitment policy in pursuance of a Settlement between the union and the employer for compassionate   employment  of    the   specified categories  of  relations of employees  on  their retirement,  death  or  incapitation,  cannot  be enforced  unless  adopted  by   the  employer  by  bringing  the  Standing  Order/  Statutory  Rule. similarly, in West Bengal State Electricity Board  Vs.  Sameer  Kumar Sarkar, ( 1999) 7 SCC 672, the   Hon'ble Apex   Court   held   that   embargo   on  compassionate  employment  in  case of  death  of employee  within two years prior to reaching  the age of superannuation, was not invalid.          

Undoubtedly,  in  Balbir Kaur Vs.   Steel Authority  of India & ors., (2000) 6 SCC 493, the Hon'ble Supreme  Court  held that appointment  on  compassionate ground is not a vested right but it should not  be denied in deserving cases for  the  reason that  it would be tantamount to denial  of  economical and social justice as enshrined in the  Constitution and law must be, in its adaptability  and flexibility,   applied  depending    upon   a situation for the benefit of the society.    

In Sanjay Kumar Vs.  State of Bihar, JT 2000 (10) SC 156, the Hon'ble Supreme Court again reiterated   that the  purpose   of  the   rules  providing for compassionate employment is only to  enable the  family  of the deceased  employee  to  tide over sudden crisis resulting due to death of  the bread-earner  who  had  left  the  family  in  puniary and  without any means of livelihood, but  such an appointment  cannot  be  held   as  if  a  reservation  for  the dependents of the  deceased  Government servant who died in harness. In  Regional Manager, A.P.S.R.T., Nellore Vs.  C.M.   Pawana Kumari, 2001 AIR SCW 4779, the Apex Court held that direction cannot be  issued to appoint  a  person  on  compassionate ground dehores the scheme framed by the employer nor the court has  a power to modify the scheme or  rules framed in  this  regard.  Similar view has been reiterated in the Divisional Manager, A.P.S.R.T.C.   Vs. K. Radha Krishna, 2001 AIR SCW 5190  while deciding a case of appointment on compassionate ground under Re-employment Children Quota provided  under the Circular issued by  the Corporation.

In  Surya  Kant  Kadam   Vs.   State   of  Karnataka  &  ors.,  AIR 2001 SC 3145,  the  Apex Court held  that  in  absence  of  any  statutory rules, appointment on compassionate ground can be governed   by  the   executive  instructions  and in spite of  the  fact that the said  instructions may not have  a  statutory  force, the  same  are bound to be observed by the employer.

In  State  of Haryana & ors.  Vs.   Vipin Kumar, AIR 2002 SC 2867, the Apex Court held that compassionate  employment is not given to offer a status on  a  family and no person can  claim  to have the  same  post  and   if  rules/  executive instructions  provide  that appointment shall  be made on one  stage below, it can be made not only next below  post  but to any other lower post  as the rules  provide only that the appointment  may  be offered  at least  one step below the post  the deceased  Government was holding and there can be no bar in  offering  still a lower post  for  the reason that   the  purpose  of   appointment   on compassionate ground is to redeem the family from financial  constrains and not to confer any other benefit or status.

In  Steel  Authority of India  Ltd.   Vs.  Awadesh Singh,  (2001)  10 SCC 621,  the  Hon'ble Supreme Court  held  that if rule  prohibits  an appointment  on compassionate ground if any other  member of  the family is already in service,  the said rule is valid and no direction can be issued against such a scheme.

While reiterating the purpose of making appointment on compassionate ground, the Hon'ble Supreme Court, in Haryana State Electricity Board Vs.  Krishna  Devi,  2002 (2) LLJ 773, held  that the main  object behind giving such employment is to provide immediate financial help to the family of the deceased   employee.    Such   appointment cannot be   made   in  absence    of   Rules   or Instructions.   Application for such employment must be made within the period prescribed by the Rules/Instructions. 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.

Thus, it is evident that such employment cannot be claimed as a vested right. The  concept  of  vested right  has  been explained  by the Apex Court in Bibi Sayeeda  Vs. State of  Bihar, AIR 1996 SC 1936, wherein it has been described as under:-    

"The word 'vested' is defined in Black's  Law  Dictionary  (6th  Edition)  at  page  1563,  as  'vested',   Fixed;    accrued; settled;   absolute;   complete.   Having  the  character or given in the rights  of absolute ownership;  not contingent;  not subject  to  be defeated by  a  condition  precedent.' ,Rights are 'vested'  when  right  to enjoyment,    present   or prospective,  has become property of some  particular  person or persons as  present interest;   mere  expectancy   of  future benefits,  or  contingent interest in  property  founded  on anticipated continuance  of  existing laws, does  not constitute  vested rights. In Webster's Comprehensive Dictionary  (International Edition) at page   1397,  ''vested' is defined as (Law held by a tenure subject  to no contingency;     complete; established  by law as a permanent right; vested interest."                        

Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned.  Vested right can arise from contract, statute or by operation of law.

The Court has no competence to issue a direction contrary to law.  (vide Union of India & Anr.  v.  Kirloskar Pneumatic Co.  Ltd.  (1996) 4 SCC 453;   State  of U.P.  & ors.   v.   Harish Chandra &  ors.,  (1996)  9 SCC  309;   and  Vice Chancellor,  University  of Allahabad & ors.,  v. Dr.  Anand  Prakash Mishra & ors., (1997) 10  SCC 264).

In  State  of Punjab & ors. v. Renuka  Singla &  ors. (1994) 1 SCC 175, dealing with a similar situation, the Hon'ble Apex Court observed as under:-

"We fail to appreciate as to how the High Court  or  this Court can be generous  or liberal  in issuing such directions which in  substance  amount  to  directing  the authorities  concerned  to violate  their own statutory rules and regulations."    

Similarly, in  Karnataka   State   Road Transport Corporation v.  Ashrafulla Khan & ors., JT 2002 (2)  SC  113, the Hon'ble Apex Court  has held as under

"The  High Court under Article 226 of the Constitution  is required to enforce rule of  law  and not pass order or  direction which  is  contrary  to   what  has  been injected by law."

In view of the above, as the compassionate employment cannot be claimed as a matter of right being not a vested right nor the court can issue a direction to fill up the vacancy over and above the quota fixed by the statutory authorities we do not find any force in the petition.

Petition is accordingly dismissed. However, as the Tribunal has observed that some other post had been offered to the petitioner, if he is willing he can accept the same.

25 .4.2003

AKSI


Copyright

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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