JUDGMENT R.B. Misra, J.
1. Heard learned Counsel for the petitioner as well as learned Counsel for the respondents.
2. By means of the present writ petition the petitioner has prayed for quashing the order dated 21.4.2004 (Annexure-4 to the writ petition) passed by the Central Administrative Tribunal, Allahabad (hereinafter in short called as the 'Tribunal') and further for issuance of a writ of mandamus commanding the respondents to appoint the son of the petitioner, namely, Nasir Khan, on compassionate ground on the death of her husband under the Dying-in-Harness Rules prevailing in the Railway Department.
3. The brief facts necessary for adjudication of the present writ petition are that the husband of the petitioner, namely, Zahid Hussain Khan while working in the Railway department died on 26.10.1974, when her only son Nasir Khan was 26 days old as he was born on 1.10,1997 and when he became major in the year 1992. the application dated 15.10.1992 followed by reminder applications dated 12.2.1993, 27.12.1993, 18.2.1994 and 10.9.1994 were presented before the respondent authorities. Petitioner also sent a registered letter dated 15.2.1995 followed by another letter dated 5.5.1996, however, her claim was rejected by the authorities ex-parte on 4.7.1996 on the ;ground that "it is an old case". On meeting with the General Manager, Karmik, North Eastern Railway, Gorakhpur she was assured for considering her case for giving deployment, however, by letter dated 8.9.1997 she was informed that her claim has been rejected as she did not present application within two years after her son attained the age of majority. According to the petitioner, she had moved an application on 15.10.1992 itself, which was within two years, therefore, rejection of her claim was bad, more so, no time limit for giving appointment on compassionate ground was prescribed in view of the Railway Board's letter dated 22.6.1978. According to the respondents the application for and on behalf of the petitioner was received to the respondents on 28.5.1996 and 10.6.1996 only, which was beyond the stipulated period because as per service record of deceased employee he had a son of 2 years 9 months and 13 days old at the time of his death on 26.10.1974 as evident from the declaration given for and on behalf of the petitioner at the time of taking family pension, however, being aggrieved the petitioner filed original Application No. 1430 of 1998 before the learned 'Tribunal'.
4. Learned 'Tribunal' has carefully noted that undisputedly the husband of the petitioner died on 26.10.1974, even if taking that her son was 26 days old, she could have applied for herself for getting appointment on compassionate ground, which she did not do, and on her own showing the son of the petitioner attained the age of majority in the year 1992, however, as observed by the learned 'Tribunal' that if the petitioner was really in need of financial help, she could have approached the 'Tribunal' promptly, whereas, the petitioner kept on giving applications and reminders, which were not to strengthen her claim and waiting for such a long time was itself an indication that the financial condition of the petitioner was not so bad and even after six years of attaining the age of majority preferring the original application on 11.12.1998 before the learned 'Tribunal' has frustrated the cause of the petitioner.
5. Learned 'Tribunal' in the light of the verdict of the Supreme Court in (1997) 8 SCC 85, Haryana State Electricity Board and Anr. v. Hakim Singh, and also in view of the decision of the Supreme Court in (1996) 1 SCC 301, Jagdish Prasad v. State of Bihar and Anr., has observed that even the delay in claiming compassionate appointment for so long without any assistance from the department is itself sufficient ground to reject the claim of petitioner for getting the compassionate appointment, which cannot be sought on the line of succession. Learned 'Tribunal' in its order dated 21st April, 2004, the impugned order, has rightly observed that the family of the petitioner had been able to survive from the years 1974 to 1998 without any problem and this is a good ground to reject the claim of the petitioner for appointment on compassionate ground.
6. Rejecting the claim of the writ petitioner in the light of the decision of Hakim Singh (supra), the observations of the learned Tribunal that the object of grant of compassionate appointment was to tide over the sudden crisis, with which the family members of deceased employee were facing due to sudden death of some bread earner of the family, was the correct observation.
7. The object of compassionate appointment is to enable the penurious family of the deceased employee to tide over sudden financial crisis and not to provide employment. This is because as a rule appointments in public service should be made strictly on the basis of open invitation of applications and no other mode of appointment nor any other consideration is permissible. However, to this general rule, which is to be followed strictly in all cases of public appointment, there are certain exceptions carried out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee died-in-harncss and leaving his family in penury and without any means of livelihood. In such cases out of 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 employee, who may be eligible for such employment. So, the whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis. Laying down the above principles in Umesh Chandra Nagpal v. State of Haryana and Ors., (1994) 4 SCC 138: Jagdish Prasad v. State of Bihar and Anr., (1996). 1 SCC 301 and S. Mohan v. Government of T.N. and Anr., (1998) 9 SCC 485. the Supreme Court has cautioned that the object is not to give a member of such family a post not less than the post held by the deceased employee.
8. Mere death of an employee not sufficient to entitle the dependant of the family for compassionate appointment. The Government or the public authority concerned has to examine the financial condition of the family and it is only when 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 Supreme Court has cautioned that it must be remembered that as against the destitute family of the deceased, there are millions of other families, which are equally, if not more destitute. It is, therefore, pointed out by the Supreme Court in Umesh Chandra Nagpal (supra); Jagdish Prasad (supra); Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors., (1998) 5 SCC 192: that an exception to the general rule that all appointments in public service shall be made strictly on the basis of open selection on merits, is made in favour of the family of the deceased employee in consideration of the service rendered by him and the legitimate expectations and changes in the status and affairs of the family engendered by erstwhile employment which are suddenly upturned. The Supreme Court also indicated that the compassionate appointment cannot be granted after a lapse of reasonable period if that be so, it must be specified in the rules and the object being to enable the family to tide over the financial crisis which it faces because of the sudden death of the sole bread-earner, the compassionate employment cannot be claimed and offered after long lapse of time moreso, when the crisis is over, it is because, the consideration of such employment is not the vested right, which can be exercised at any time in future.
9. The compassionate appointment could be made only in consonance to the rules applicable and no direction for giving appointment on compassionate ground de hors the rules could be issued in view of State of Rajasthan v. Chandra Narain Verma, (1994) 2 SCC 752 and also in the light of the decision of the Supreme Court in State of Uttar Pradesh and Ors. v. Paras Nath, (1998) 2 SCC 412. In the present case, there appears no rule is framed by the respondents for considering the dependents for giving appointment on the compassionate ground.
10. In view of the decision of the Supreme Court in (1994) 4 SCC 448, State of Haryana v. Naresh Kumar Bali, the compassionate appointment cannot be insisted upon for a particular post.
11. Circumstances which negative necessity of compassionate appointment : The Railway Servant died leaving his widow, his two major sons and a minor son aged twelve years and application for compassionate appointment for the youngest son had been made after lapse of twenty years after the death of the railway servant and the same has been refused. The respondent then made an application before the Central Administrative Tribunal against such refusal and the Tribunal directed the authority to consider his case and if found fit to provide him with employment. The Supreme Court in appeal of Union of India has set aside the order of the Tribunal by observing that the plea for compassionate appointment is to enable the family to tide over the sudden crisis or distress, here the same resulted long age and when the railway employee died, there were two major sons and the mother, who were apparently surviving and capable of meeting the needs of the family and however no body applied for any job on compassionate ground that for nearly twenty years and the family has pulled on apparently without any difficulty and in these background learned Tribunal is said to have acted illegally and without jurisdiction in directing the authorities to consider the case of the respondent for appointment on compassionate ground and to give him appointment if found suitable in view of Union of India and Ors. v. Bhagwan Singh, (1995) 6 SCC 476. In another decision the Supreme Court has held that when at the time of death of the father, the son was only four years old, he having applied for compassionate appointment twenty three years after the death of the father, is not entitled to appointment on compassionate ground in the light of decision in Jagdish Prasad (supra) and Paras Nath (supra). When the father died in 1965 the son was less than six years old. After attaining majority he applied for compassionate appointment on 15th July, 1987. Such belated claim cannot be allowed in view of Dhalla Ram v. Union of India and Ors., AIR 1999 SC 564.
12. No time limit for making the claim-if belated petition entertainable. Ex- employee of Haryana State Electricity Board died during the minority of his sons and his sons on attaining majority 12 or 13 long years respectively after death claimed compassionate appointment. Under the scheme of the Government prevalent at that time on the employee's death, there was no time-limit for making such a claim. The High Court in writ petition directed the Board to allow their claims. The Supreme Court while setting aside the order of the High Court held that the High Court's order allowing the claim at a belated stage is not sustainable because compassionate appointment cannot be granted after a long lapse of reasonable period and very purpose is intended to meet the immediate financial problem being faced by the members of the deceased family and such consideration cannot be kept pending for years. Allowing the appeal of the State Electricity Board and setting aside the order of the High Court, the Supreme Court has. however, observed that the claimants are not precluded from making representation for consideration of their cases giving full details of the circumstances and economic conditions of the family in view of Haryana S.E.B. v. Naresh Kanwar and Anr., (1996) 8 SCC 23.
13. The employment on compassionate ground cannot be claimed as a vested right. The concept of vested right has been explained by the Supreme Court in Mosammat Bibi Sayeeda and Ors. v. State of Bihar and Ors., AIR 1996 SC 1396, 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."
14. 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
15. Thus, in view of the above, as the time is an essential factor in a case like this as the purpose of providing the compassionate employment is to feed the starving family, no application should be entertained after expiry of 15 years and petition is liable to be rejected only on this sole ground.
16. In view of the above observations, when the petitioner herself did not come forward for getting appointment on compassionate ground promptly then the vested right cannot be said to have accrued to the petitioner as well as to her son and the delay in approaching the Court has defeated the very object of the claim for empassionate appointment as the purpose of compassionate appointment was to tide over the sudden crises, with which the family members of the deceased employee, were facing due to sudden death of husband of the petitioner on 26.10.1974. The very fact that the family of deceased had survived from the years 1974 to 1998 without any assistance from the department, is a good ground for rejecting the claim of the petitioner for being appointed on compassionate ground. We do not find any illegality and impropriety in the impugned order dated 21st April, 2004 passed by the 'Tribunal', therefore, there is no scope of any interference.
17. In view of the above observations, petitioner is not entitled to any relief as prayer for, therefore, the writ petition is dismissed.