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RADHA MOHAN KUSHWAHA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Radha Mohan Kushwaha v. State Of U.P. And Others - WRIT - A No. 51284 of 2006 [2006] RD-AH 16141 (15 September 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 38

Civil Misc. Writ Petition No. 51284 of 2006

Radha Mohan Kushwaha

  Vs.

State of U.P.  and others

Hon'ble V.K. Shukla, J.

In the present writ petition petitioner's father died in harness. Petitioner applied for grant of compassionate appointment. Petitioner was offered post of "Daftari" and he joined. Petitioner thereafter, has been requesting that commensurate to his educational qualification, he should be offered appointment  on the post of Clerk, such claim has been rejected by means of order dated 11.1.1999. At this juncture present writ petition has been filed.

Sri O. N. Tripathi, Advocate, learned counsel for the petitioner contended with vehemence that appointment ought to have been offered to petitioner, commensurate to his educational qualification, as such action of the respondents is arbitrary and unjustifiable.

Learned Standing counsel on the other hand contended that petitioner was accorded compassionate appointment and he joined on the post of "Daftari" and his claim for clerk is unacceptable.

 Before proceeding to consider the claim of petitioner, view  which has been taken  by Hon'ble Apex Court  in the case of State of J & K. Vs. Sajad Ahmed Mir, 2006 AIR SCW 3708 looked into. Relevant extract of aforementioned judgment (paragraphs  12, 13,14 and 15) dated 17.07.2006 is being quoted below:

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.

15. 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."

               Hon'ble Apex Court, in the case of State of Rajasthan Vs. Shri Umrao Singh JT 1994 (6) 372 has taken view that once appointment has been  accepted and incumbent has started performing and discharging his duty, then  right to be considered for appointment on compassionate ground  was consummated. No further consideration on compassionate  ground would  ever arise. Otherwise, it would be  a case of 'endless compassion'.  Relevant extract of paragraphs No. 8,9,10 and 11 of aforementioned judgment is being quoted below:-

8.    Admittedly the respondents' father died in harness while working as Sub-Inspector, C.I./D. (Special Branch) on 16..3.1988. The respondent filed an application on 8.4.1988 for his appointment on compassionate ground as Sub-Inspector or L.D.C. according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of L.D.C. 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  Singled 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 (supra) , we will now refer to the same. We had indicated our mind in that very ruling in paragraph15 of the said judgment. It reads as under:-

           " 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 a 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" (emphasis supplied).

10. Therefore, once the right has consummated as we indicated earlier, any further or second consideration for a higher post on the ground of compassionate would not arise.

11. It is true that in the decision cited, the direction by the High Court was a positive direction to make the appointment but here the direction was to consider the case. Nevertheless, we find that the High Court was not legally justified in directing a further consideration of the candidature of the respondent for the post of Sub-Inspector. The Civil Appeal will stand allowed and in reversal of the orders of the courts below respondent/s writ petition is dismissed. There shall be no order as to costs.

          Aforementioned judgments of Hon'ble Apex Court has been followed by Division Bench of this court in the case of Pankaj Swami Vs. Vice Chancellor, Chaudhary Charan Singh University, Meerut and others H.C. (2003 (3) 1268 decided on 28.4.2003  wherein also an incumbent, who was offered appointed as 'Daftari'. After joining the said post, request was made that respondents be directed to make his appointment commensurate to his qualification. Division Bench of this Court following the aforementioned judgments, rejected the said claim in following terms. Consequently,  in the present case also petitioner has been offered appointment and thereafter claim, which has been set up, is unacceptable.

Consequently, writ petition devoid of substance, is dismissed.

Dt. 15.9.2006

T.S.

 


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