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Rajesh Kumar Sahu v. Central Administrative Tribunal, Allahabad And Others - WRIT - A No. 17845 of 2003  RD-AH 120 (25 April 2003)
COURT NO. 38
CIVIL MISC. WRIT PETITION NO. 17845 Of 2003
Rajesh Kumar Sahu ----- Petitioner
The Central Administrative Tribunal,
Allahabad Bench, Allahabad & ors. ----- Respondents
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.
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