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Smt. Sunita Bhadooria v. State Of U.P. Thru' Chief Secre. And Another - WRIT - A No. 73391 of 2005  RD-AH 7123 (7 December 2005)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 73391 OF 2005
Smt Sunita Bhadooria ------------- Petitioner
State of Uttar Pradesh & Anr. ------------- Respondents
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Dilip Gupta, J.
(By Hon'ble Dr. B.S. Chauhan, J)
This writ petition has been filed for quashing the provisions of Section 2 (c) of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter called the Rules 1974) as being ultra vires Articles 14 and 39 (a) of the Constitution of India as a son and daughter have to be treated at par and require equal protection of law. A further relief has been sought for quashing the order dated 17.11.2005, by which the petitioner has been denied appointment on compassionate ground.
The facts and circumstances giving rise to this case are that petitioner claims to be the only child. Her mother died on 15.7.2001 in harness while working as Beldar in U.P. Power Corporation. She filed an application for compassionate employment. As there had been no response by the respondents, the last reminder was filed on 9.11.2005, which has been rejected vide letter dated 17.11.2005, on the ground that the Rules do not provide for compassionate employment to married daughter. Hence this petition.
Shri A.P.N. Giri, the learned counsel for the petitioner has submitted that son and daughter cannot be given different treatment. The definition of 'family' in Section 2 (c) requires to be quashed, as does not include married daughters but includes the sons and unmarried daughters. Thus, it is violative of Article 14 of the Constitution of India. The Rules have been framed for the benefit of the bereaved family, and social welfare legislation requires liberal interpretation. He, therefore, submits that the petition deserves to be allowed.
On the other hand, Shri C.K. Rai, learned Standing Counsel, appearing for respondent has vehemently opposed the petition, submitting that the petition does not disclose full facts. There is no pleading about the status of the petitioner's father and it has not been mentioned as to how she claims to be wholly dependant upon the deceased mother in spite of being married, and nor has it been disclosed as on what day she got married, though she is 32 years of age. There is no evidence or reliable document on record to show that she had ever made any representation/application for employment on compassionate ground prior to 9.11.2005, which stood rejected vide letter dated 17.11.2005. The averments to the effect that she had been making representations repeatedly seem to be without any basis and are afterthought. It is for the legislature to determine the manner it wants to grant relief to the people. The petition cannot be entertained on such vague pleadings. More so, the petitioner cannot claim to be a member of the two families simultaneously. In case the married daughter is included in the family definition of her parents, she cannot claim herself to be a family member of her husband. Therefore, the averments made in the petition are contradictory, and the petition is liable to be dismissed at the threshold.
We have considered the rival submissions made by the learned counsel for the parties and perused the record. The admitted facts as they emerge, as under:-
1.Petitioner has not disclosed whether her father is alive, and if not, then when did he die and what was his status.
2.Petitioner has not revealed as on what date she got married and what is the financial condition of her husband.
3.Petitioner has not indicated how she was dependant upon her mother if her husband was alive.
4.Petitioner has received (as death-cum-retiremental benefit) a sum of Rs.3,72,750/-, which shall be sufficient for her.
5.It is not the part of the pleading as to whether the Rules 1974 have ever been adopted by the respondent-Corporation.
If the case is examined in view of the aforesaid admitted facts, it will be a futile exercise to proceed with the case, in the absence of any material pleading regarding adoption of the said Rules by the Corporation, and without disclosing the father's status and without disclosing the financial condition of the petitioner's husband. The petition has been filed in a most casual and caveliar manner and it does not warrant any decision whatsoever. Filing this kind of petition is not only abuse of the process of the Court but amounts to criminal contempt, as explained by the Hon'ble Supreme Court in Re: Sanjiv Datta, (1995) 3 SCC 619. The Court has observed as under:-
"Some members of the profession have been adopting perceptibly casual approach to the practice of the profession, as is evident from their absence when the matters are called out, the filing of incomplete and inaccurate pleadings, many times even illegible and without personal check and verification, the non-payment of court fees and process fees, the failure to remove office objections, the failure to take steps to serve the parties, yet al. They do not realize the seriousness of these acts and omissions. They not only amount to the contempt of the Court but do positive dis-service to the litigants and create embarrassing situation in the court leading to avoidable unpleasantness and delay in the disposal of matters. This augurs ill for the health of our judicial system" (Emphasis added).
In view of the above, the petition does not deserve to be decided. However, even if it is presumed that the 1974 Rules have been adopted, the Court has to examine the purpose of framing of the said Rules, as is evident from the title of the Rules 1974. This is applicable only in the case of the dependants of the government servants. Therefore, the first issue which arises is whether the petitioner can claim herself to be a dependant of her deceased mother and for want of pleadings this issue cannot be decided. The definition of 'family' includes unmarried and widowed daughters. Thus, it impliedly excludes the married daughter. The said clause (3) of sub-rule (2) of Rules 1974 does not warrant any quashing, nor it can be held to be ultra vires any of the provisions of the Constitution, for the reason that married daughters form part of the family member of their husbands.
Thus, in view of the above, the petition is totally misconceived. Even otherwise, the issue of compassionate employment has been considered by the Court from time to time.
An employment on compassionate ground should be provided strictly in accordance with the Rules and the Court cannot take a view so as to make it violative of Articles 14 and 16 of the Constitution of India.(Vide Cochin Dock Labour Board Vs. Leemamma Samuel & Ors., (1998) 9 SCC 87). The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. (Vide U.P.S.R.T.C. Vs. Pukhraj Singh & Ors., (1999)1 SCC 190; and A.P.S.R.T.C. Vs. K. Pochaiah & Anr.,(1999) 1 SCC 191).
Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family which has lost its bread-earner. Mere death of a Government employee in harness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing 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 consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, it being not a vested right.
In Smt Sushma Gosain & Ors. Vs. Union of India & Ors., AIR 1989 SC 1976, the Apex Court held as under:-
"It can be stated unequivocally that in all claims for appointment on compassionate ground, there should not be any 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 appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant."
The aforesaid judgment was approved and the principle laid down therein was reiterated by the Hon'ble Supreme Court in Smt. Phoolwati Vs. Union of India & Ors., AIR 1991 SC 469.
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 ustify 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 & Anr., (1996) 1 SCC 301; State of Bihar & Ors. Vs. Samsuz Zoha Ors., AIR 1996 SC 1961; Himachal Road Transport Corporation Vs. Dinesh Kumar, (1996) 4 SCC 560; and Hindustan Aeronautics Ltd. Vs. A. Radhika Thirumalai (Smt.), (1996) 6 SCC 394. It has categorically been held that compassionate employment cannot be claimed as a matter of course since it is not 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 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 & Ors., (1999) 5 SCC 673, the Hon'ble Supreme Court held that in the 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 W.B. State Electricity Board & Ors. Vs. Sameer K. 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 & Anr. Vs. Steel Authority of India Ltd. & 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 tantamount to denial of economic and social justice as enshrined in the Constitution and law must be, in its adaptability and flexibility, applied depending upon the situation for the benefit of the society.
In Sanjay Kumar Vs. State of Bihar & Ors., 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 penury without any means of livelihood, and that there cannot be a reservation of a vacancy for the dependants 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 de hores the scheme framed by the employer and nor the Court had 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 2415, 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 a post one stage below, it can be made not only on the 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 Servant was holding and there can be no bar in offering 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. & Anr. Vs. Awadesh Singh & Ors., (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.
In State of Manipur Vs. Mohd Rajaodin, (2003) 7 SCC 511, the Hon'ble Supreme Court considered the issue involved herein as in that case also the application was filed at a much belated stage as the dependant therein was 10 years of age at the time of death of his father. The Hon'ble Supreme Court reiterated that the purpose of giving compassionate employment is only to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service, only to alleviate the distress of the family and at a belated stage as these grounds are no more in existence the employment cannot be given. While deciding the said case reliance had been placed upon its earlier judgments, particularly, in State of U.P. & Ors. Vs. Paras Nath, (1998) 2 SCC 412; State of Haryana & Ors. Vs. Rani Devi & Anr., (1996) 5 SCC 308.
In Life Insurance Corporation of India Vs. Mrs. Asha Ramchhandra Ambekar & Anr., (1994) 2 SCC 718, the Apex Court held that the High Court and the Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments.
In Teri Oat Estates (P) Ltd. Vs. U.T. Chandigarh, (2004) 2 SCC 130, the Hon'ble Supreme Court held as under:-
"We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a statutory provision."
Similar view has been reiterated in Ramakrishna Kamat Vs. State of Karnataka, (2003) 3 SCC 374.
In State of Haryana & Anr. Vs. Ankur Gupta, (2003) 7 SCC 704, the Hon'ble Apex Court also held that compassionate employment is offered on the premises that the applicant was dependant on the deceased employee. In strict legal sense such claim cannot be upheld on the touchstone of Articles 14 and 16 of the Constitution of India. However, such claim is considered reasonable and permissible only on the ground of sudden crisis occurring in the family of such employee who has served the State and died while in service. Appointment on compassionate ground cannot be claimed as a matter of right.
In the case of Punjab National Bank & Ors. Vs. Ashwini Kumar Taneja, 2004 AIR SCW 4602, the Supreme Court considered whether the retiral benefits are to be taken into consideration while dealing with prayer for compassionate appointment. This contention was repelled after placing reliance on the judgment of the Supreme Court in the case of The General Manager (D & PB) & Ors. Vs. Kunti Tewari & Anr. decided on 05.01.2004. The Supreme Court arrived at such a conclusion on the basis of the same Scheme.
In Commissioner of Public Instructions & Ors. Vs. K.R. Vishwanath, 2005 AIR SCW 4102, the Apex Court insisted upon that the appointment on compassionate ground is provided only to enable the family to get over the sudden financial crisis. However, such appointments can be made in accordance with the Rules taking into consideration the financial condition of the family of the deceased.
In Mukesh Kumar Sharma Vs. The Senior Divisional Manager, Life Insurance Corporation of India, Agra & Ors, (1999) 2 UPLBEC 1128, it has been held that no appointment on compassionate ground can be made if any member of the family stand gainfully employed and the plea that such member is not supporting the claimant cannot nullify the restriction imposed by law.
In Surya Kant Kadam Vs. State of Karnataka & Ors, AIR 2001 SC 3145, it has been held:-
"If the rules or executive orders or instructions of the "Corporation" prohibits some category of person for appointment on compassionate ground in view of the fact that any other member of the family is already in service, such executive instruction is valid and no direction by this Court could be issued in derogation to such instruction or circular or scheme in the light of the observations made in Steel Authority of India (supra). This Court has to desist to invoke its power in exercise of extraordinary discretionary jurisdiction under Article 226 of the Constitution to make a judicial review of specific or executive instruction if the Life Insurance Corporation has modified the Clause 21 of " Instructions, 1979" by promulgating a Circular dated 29/12/2001 in the light of which if in the peculiar facts and circumstances a dependant of Sri Ashwini Kumar Srivastava was adjusted and was given deployment by the respondent "Corporation", such action of the respondent Corporation could not be said to be arbitrary or in derogation to the provisions of Article 14 of the Constitution. In these circumstances, I find force in the contentions and submissions of the respondent-Corporation, therefore, no relief as prayed for can be given to the petitioner."
In A. Umarani Vs. Registrar, Cooperative Societies & Ors., (2004) 7 SCC 112, while considering the case of compassionate appointment it has been held by the Hon'ble Apex Court that even the Supreme Court should not exercise the extraordinary jurisdiction under Article 142 issuing a direction to give compassionate appointment in contravention of the provisions of the Scheme/Rules etc. As the provisions have to be complied with mandatorily and any appointment given or ordered to be given in violation of the scheme would be illegal.
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 Mosammat Bibi Sayeeda & Ors. Vs. State of Bihar & Ors., 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.
We do not find any force in the submissions made by Sri Giri that if the relief sought is not granted to the petitioner she would suffer severe hardship and it would amount to denial of justice.
Justice is the virtue, by which the Society/Court/Tribunal gives to a man what is his due, opposed to injury or wrong. (Wharton's Law Lexicon, 1976 Reprint Edn., p. 552). Justice is an act of rendering what is right and equitable towards one who has suffered a wrong. Therefore, while tempering the justice with mercy, the Court has to be very conscious that it has to do justice in exact conformity to some obligatory law for the reason that human actions are found to be just or unjust as they are in conformity with or in opposition to the law. In Delhi Administration Vs. Gurdip Singh Uban & Ors., (2000) 7 SCC 296, the Hon'ble Apex Court observed as under:-
"The words 'justice' and 'injustice', in our view,. are sometimes loosely used and have different meanings to different persons, particularly to those arrayed on opposite sides..... Justice Cardozo said, 'The Web is tangled and obscure, shot through with a multitude of shades and colours, the skeins irregular and broken. Many hues that seems to be simple, are found, any when analysed, to be complex and uncertain blend. Justice itself, which we are wont to appeal to as a test as well as an ideal, may mean different things to different minds and at different times. Attempts to objectify its standards or even to describe them, have never wholly succeeded." (Selected Writings of Cardozo, pp 223-24; Fallon Publications, 1947)."
Thus, in view of the above, we cannot be persuaded to interpret the provisions of the scheme liberally, in the garb of doing justice, as compassionate employment itself is an exception to the service jurisprudence, otherwise, it could have been in violation of Articles 14 and 16 of the Constitution, and exception always requires to be strictly interpreted even if there is hardship to any individual. Exception is provided with the object of taking it out of the scope of the basic law and what is included in it and what the legislature desires to be excluded. (Vide Union of India & Ors. Vs. M/s.Wood Papers Ltd. & Anr., AIR 1991 SC 2049; Satnam Singh & Anr. Vs. Punjab & Haryana High Court & Ors. , AIR 1997 SC 983; and Grasim Industries Ltd. & Anr. Vs. State of Madhya Pradesh & Anr.., AIR 2000 SC 66).
Even otherwise, there is nothing in the petition to show as to what had been the financial condition of the petitioner's family i.e. the family of the petitioner's husband by which the petitioner being the wife is a member and we also fail to understand as to how she could claim to be member of two families simultaneously for the purpose of the Social Welfare Legislation like the Rules, 1974.
We do not find any force in the submissions made by Shri A.P.N. Giri. The petition is totally misconceived and the Court condemns and deprecates the practice of filing petition without proper pleadings and furnishing full particulars. Filing this kind of petition is not in the interest either the litigant or the Court or of the Society as a whole and on the other hand amounts to obstructing the cause of justice.
Petition is accordingly dismissed.
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