Hon'ble Vivek Kumar Birla,J.
(Delivered by Hon'ble Vivek Kumar Birla, J.) The present petition has been filed challenging the judgment and order dated 21 November 2013 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad1 whereby the Original Application No. 1039 of 2013 seeking for quashing the order dated 25 February 2013 passed by the Railway Authorities rejecting the claim of the petitioner for compassionate appointment on account of the death of his father Kishan Singh on 9 June 2000, was dismissed.
The father of the petitioner was working as a Gangman at Mathura Junction, North Central Railway. He died in harness on 9 June 2000 leaving behind his widow Chandra Kala, two minor daughters and two minor sons including the petitioner. After the death of her husband Chandra Kala, who was aged about 33 years, moved an application before the concerned Railway Authority for grant of appointment on compassionate grounds. The said application was entertained by the Authorities and various notices and reminders were issued to Chandra Kala to produce documents, which included the educational qualification, date of birth and caste certificates but the widow neither appeared before the Authorities for consideration of her case for compassionate appointment nor she submitted the documents. As such her claim for compassionate appointment was closed in 2004.
Subsequently Chandra Kala, mother of the present petitioner, moved another application dated 22 January 2013 seeking appointment of the petitioner on compassionate ground as he had attained the age of 18 years. The aforesaid application was rejected by the Divisional Railway Manager on the ground that the issue regarding appointment on compassionate ground had already been closed in 2004 and that there was no justification in entertaining the said application after 8 years.
This order was challenged by the petitioner in Original Application No. 1039 of 2013 before the Tribunal. The Original Application was rejected by the Tribunal by the order dated 21 November 2013 with the following observations:-
"It is evident from the entire proceedings that the applicant and his mother had not shown sufficient interest in pursuing their case for compassionate appointment and the applicant has raised his claim at very belated stage. It needs to be noted that the object behind compassionate appointment is to enable the family to tide over the immediate financial crisis that it may face on account of sudden death of the sole breadwinner and save the family from financial destitution. Therefore, it is clear that the essence of policy of granting compassionate appointment is to provide immediate succor to the family of the deceased employee. If the family has been also able to sustained itself for a considerable period since the death of the employee, the ground for obtaining compassionate appointment gets diluted. The above view finds in support from the judgment of Apex Court in the case of Susma Gosai Vs. U.O.I. Ors - JT 1985 (3) SC 570 wherein it has been held that the delay defeats the very purpose of compassionate appointment. In the instant case, the father of the applicant died in the year 2000 and more than 13 years have elapsed. Therefore, it can be reasonably inferred that the family has sufficient mean of livelihood and his claim for compassionate appointment looses force in the light of the basic objective of the scheme."
The contention of learned counsel for the petitioner is that since the petitioner was a minor at the time of death of his father and was studying in Class 1, he could not apply for providing compassionate appointment and when he became 18 years of age and after he had passed Class 10, an application was moved for grant of appointment on compassionate ground. The Tribunal, therefore, it is the submission, committed an illegality in rejecting the claim of the petitioner on the ground that the father of the applicant had died in the year 2000 and after 13 years it cannot reasonably be inferred that the family had no sufficient means of livelihood. In this connection learned counsel for the petitioner has placed reliance on the Full Bench decision of this Court in Shiv Kumar Dubey Vs. State of U.P.2 and has submitted that delay alone cannot be a ground for rejecting the claim of the petitioner for seeking appointment on compassionate ground.
A specific query was made by the Court regarding the Scheme / Rules / Regulations applicable in the case of the petitioner for the grant of appointment on compassionate ground, but learned counsel did not place it. However, reliance was placed on paragraph 29 (vi) of the aforesaid decision of the Full Bench in Shiv Kumar Dubey (supra) to contend that the Authority has a discretion to relax the time period in cases of undue hardship and the case of the petitioner should have been considered for grant of compassionate appointment.
We are not impressed with the submission advanced by learned counsel for the petitioner. Undisputedly, the claim of Chandra Kala for grant of compassionate appointment on the death of her husband on 9 June 2000 was considered and was closed in 2004 as she did not appear before the concerned authority for the purpose of processing her claim for compassionate appointment. An application was subsequently filed by her on 22 January 2013 for granting compassionate appointment to the petitioner, who is her son. This was after 13 years from the death of her husband and after 8 years from the rejection of her claim.
In the decision of Full Bench of this Court in Shiv Kumar Dubey (supra), U.P. Recruitment of Dependants of Government Servants Dying and Harness Rules, 1974 were under consideration wherein a period of 5 years has been provided for moving an application for grant of compassionate appointment in Rule 5, which can be relaxed under exceptional cases.
For convenience, the entire paragraph 29 of the aforesaid Full Bench decision is reproduced:-
29. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules:
(i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved;
(ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules;
(iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner;
(iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment;
(v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out;
(vi) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner;
(vii) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government;
(viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family." (emphasis supplied) The aforesaid Full Bench decision clearly holds that the power to relax the limitation, (or say at the best the reasonable time period, if no period is provided), is in the nature of an exception and is conditioned by the existence of objective consideration to the satisfaction of the government. The burden lies on the applicant to establish such a case on the basis of reasons and justification supported by documentary and other evidence. Para 29 (viii) clearly holds that the provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of the member of the family of the deceased employee. Hence no general right can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority.
It is also clear that even if a rule provides for a period of time within which an application has to be made, the operation of the rules is not suspended during the minority of a member of the family.
In MGB Gramin Bank Vs. Chakrawarti Singh3, the Supreme Court has pointed out that compassionate appointment cannot be claimed as a matter of right, as it is not a vested right and the observations are:
"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. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right.
The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds.
In several other decisions, the Supreme Court has also dealt with cases of minors seeking compassionate appointment. In Haryana State Electricity Board & Anr. Vs. Hakim Singh5, the Supreme Court dealt with a case of a widow who had applied after a period of 18 years for appointing her son who was four years old when his father died in harness, contending that she could make the application only when her son attained majority. The High Court had allowed the writ petition. While allowing the appeal, the Supreme Court observed as follows:
"We are of the view that the High Court has erred in over stretching the scope of the compassionate relief provided by the Board in the circulars as above. It appears that High Court would have treated the provision as a lien created by the Board for a dependent of the deceased employee. If the family members of the deceased employee can manage for fourteen years after his death one of his legal heirs cannot put forward a claim as though it is a line of succession by virtue of a right of inheritance. The object of the provisions should not be forgotten that it is to give succor to the family to tide over the sudden financial crisis be-fallen the dependents on account of the untimely demise of its sole earning member."
Similarly, in Jagdish Prasad Vs. The State of Bihar & Anr.6, the Supreme Court rejected the case of a minor who had claimed compassionate appointment after he had attained majority while observing as follows:-
"It is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that, therefore, the Court is required to examine whether the appointment should be made on compassionate grounds. We are afraid, we cannot accede to the contention. The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased Government servant which cannot be encouraged, dehors the recruitment rules."
In Haryana State Electricity Board Vs. Naresh Tanwar & Anr.7, the widow of a deceased employee had made an application after twelve years claiming compassionate appointment for her son who had since attained majority. The High Court allowed the writ petition holding that compassionate appointment could not be restricted to a period of three years and if assistance to the members of the family of a deceased employee is required to be given, the member of the family must necessarily attain majority before becoming eligible to apply for appointment. While setting aside the judgment of the High Court, the Supreme Court observed as follows:
"It has been indicated in the decision of Umesh Kumar Nagpal (Supra) that compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. In the other decision of this Court in Jagdish Prasad's case, it has been also indicated that the very object of appointment of dependent of deceased-employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years.
It appears to us that the principle of compassionate appointment as indicated in the aforesaid decisions of this Court, is not only reasonable but consistent with the principle of employment in government and public sector. The impugned decisions of the High Court therefore cannot be sustained."
In Sanjay Kumar Vs. The State of Bihar & Ors.8, the Supreme Court again dealt with a case of compassionate appointment of a minor who had made an application upon attaining majority. The Supreme Court observed as follows:
"This Court has held in a number of cases that compassionate appointment is intended 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 and without any means of livelihood. ...on the date when the first application was made by the petitioner on 2.6.88, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time, as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief."
In view of the aforesaid decision of the Supreme Court and the position of law as clarified by the Full Bench of this Court in Shiv Kumar Dubey (supra) after considering the decisions of the Supreme Court on the issue, we are of the opinion that the petitioner cannot be permitted to claim compassionate appointment after 13 years of the death of his father in 2000.
In our opinion, the Railways were justified in rejecting the claim of the petitioner for compassionate appointment made after an inordinate delay and the order passed by the Tribunal calls for no interference under Article 226 of the Constitution of India.
The petition is, accordingly, dismissed.
Order Date :- 9.10.2014 Lalit Shukla (Vivek Kumar Birla,J.) (Dilip Gupta,J.)