Accordingly, it is submitted by learned counsel for petitioner as per the actual date of birth of petitioner's father, he has to retire on 31.12.1987 when he attained the age of superannuation of 60 years so he should deem to be in service at the time of his death, in view of the said fact the application submitted by the petitioner for consideration of his case for compassionate appointment under the provisions of Dying in harness rules is maintainable and the opposite party no.1 should consider his case for appointment on compassionate ground. However, ignoring the said material fact, this has been rejected by order dated 31.01.2003 (Annexure No.1), the said action is illegal arbitrary and also in violation of Article 14 and 16 of Constitution of India as there is no other source of livelihood of the deceased's family.
Shri Murli Manohar Srivastava, learned counsel for petitioner further submits that the impugned order dated 31.01.2003 (Annexure No.1) is non-speaking order and no reason has been assigned for rejecting the petitioner's case for giving compassionate appointment, as the same has been passed only on the opinion of the Department of law and Personnel as such the impugned order is without jurisdiction, liable to be set aside.
On the other hand, learned State Counsel submits that the petitioner's father has retired on 13.04.1987 from service after attaining the age of superannuation, thereafter, he died on 31.10.1987 in view of the said fact the application moved by the petitioner for compassionate appointment after the death of his father is not maintainable under law and he is not entitled to get any appointment under dying in harness rules, as the same has been rightly rejected by order dated 31.10.2003 (Annexure No.1), hence the present petition is liable to be dismissed.
In view of the abovesaid facts and going through the record of the case, as compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right.
Appointment based solely on descent is inimical to our Constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules.
The provisions pertaining to compassionate appointment have been dealt by the Hon'ble Supreme Court in the case of Sushma Gosain and others Vs. Union of India and others, AIR 1989 SC 1976, however thereafter the approach pertaining to the provisions for compassionate appointment has undergone major change.
In the case of Life Insurance Corporation of India Vs. Asha Ramchhandra Ambekar (Mrs) Another (1994) 2 SCC 718, the Apex Court has held as under :-
"Para 17 - Thus, apart from the direction as to appointment on compassionate grounds being against statutory provisions, such direction does not take note of this fact. Whatever it may be, the Court should not have directed the appointment on compassionate grounds. The jurisdiction under mandamus cannot be exercised in that fashion. It should have merely directed consideration of the claim of the second respondent. To straightaway direct the appointment would only put the appellant Corporation in piquant situation."
In the case of Umesh Kumar Nagpal Vs. State of Haryana and others, (1994) 4 SCC 138 Hon'ble Supreme court has held that "For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in further. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."
In the case of State of Haryana Vs. Naresh Kumar Bali (1994) 4 Supreme Court Cases 448, the Supreme Court has held as under:-
"The High Court could have merely directed consideration of the claim of the respondent in accordance with the rules. It cannot direct appointment. Such a direction does not fall within the scope of mandamus. Judicial review, it has been repeatedly emphasised, is directed against the decision-making process and not against the decision itself; and it is no part of the court's duty to exercise the power of the authorities itself. There is widespread misconception on the scope of interference in judicial review."
In the case of the Director of Education (Secondary) and another Vs. Pushpendra Kumar and others, (1998) 5 SCC 192, wherein the Hon'ble 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. "
In the case of State of U.P. and others Vs. Paras Nath (1998) 2 SCC 412, the Hon'ble Apex Court has held as under:-
"The purpose of providing employment to a dependent of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased government servant."
In the case of Steel Authority of India Limited v. Madhusudan Das & Ors., (2008) 15 SCC 560, Hon'ble the Supreme Court has held as under:-
"This Court in a large number of decisions has held that the appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for in the rules. The criteria laid down therefor viz. That the death of the sole bread earner of the family, must be established. It is meant to provide for a minimum relief. When such contentions are raised, the constitutional philosophy of equality behind making such a scheme be taken into consideration. Articles 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts which have fallen vacant. Appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said rule. It is a concession, not a right." (See also : General Manager, State Bank of India & Ors. Vs. Anju Jain (2008) 8 SCC 475).
In the case of V. Sivamurthy v. State of Andhra Pradesh & Ors., (2008) 13 SCC 730, the Apex Court while observing that although appointment in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution, yet appointments on compassionate grounds are well recognized exception to the general rule, carved out in the interest of justice to meet certain contingencies, highlighted the following two well- recognized contingencies as exceptions to the general rule.
"(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service.
(ii)appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner."
The importance of giving appointment under dying in harness rule is the importance of penury and indigence of the family of the deceased employee and need to provide immediate assistance for compassionate appointment has been considered by the Apex Court in Union of India (UO) & Anr. V. B. Kishore, 2011 (4) SCALE 308 and it has been held as under:-
"If the element of indigence and the need to provide immediate assistance for relief from financial deprivation is taken out from the scheme of compassionate appointments, it would turn out to be reservation in favour of the dependents of an employee who died while in service which would be directly in conflict with the ideal of equality guaranteed under Articles 14 and 16 of the Constitution."
In the case of Bhawani Prasad Sonkar vs. Union of India and others 2011 (29) LCD 1181, after going through the various judgments rendered earlier by the Hon'ble Apex Court and it has been held as under:-
"Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:
(i)Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.
(ii)An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.
(iii)An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the bread winner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.
(iv)Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee, viz. Parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.
Now reverting to the facts of the present case the petitioner's father Abdul Gaffar retired from service on 13.04.1987 on the ground that he attained the age of superannuation, although he has to work and discharge his duties till 31.12.1987 and the said premature retirement has not been challenged either by petitioner's father when he was alive or by the petitioner and also the fact that his father died on 31.10.1987 i.e. after he has retired from service on 13.04.1987 accordingly keeping in view the aims and object of giving compassionate appointment which is to the effect that the same is provided to tide over the financial difficulties that is faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the date of superannuation of the petitioner's father was 31.12.1987 while he had died during the tenure of his service on 31.10.1987 as such the petitioner has right to get a compassionate appointment so keeping in view the aims and object of compassionate appointment which in nutshell is to provide financial assistance to the family of the deceased to over come difficulties arising due to death of the sole earning member of the family as there is immediately loss of earning for which his family suffers from hardships and the benefit is to be given to the family to over come the said financial constraint. Thus, a request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness.
But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in Government service and the same is also the fundamental and mandatory criteria which is one of the basic and mandatory criteria/requirement as per Rule 5 of U.P. Recruitment of Dependents of Government Servants Dying in harness Rules. So, I am of the opinion that the petitioner cannot drive any benefit from the fact that his father has been wrongly retired from service on 13.04.1987 but he has to retire on 31.12.1987 so he should deem to be in service at the time of death his father accordingly the petitioner is entitled to get appointment on compassionate ground has got no force hence rejected because the public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by the Courts, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion.
For the foregoing reasons, the present writ petition filed by petitioner lacks merit and is, thus, dismissed.
No order as to costs.
Dt: 16.11.2011 Mahesh