1. Heard learned counsel for the petitioner and perused the record.
2. The petitioner has sought compassionate appointment, which has been rejected by means of the impugned order dated 23rd February, 2006 passed by the State Government rejecting the claim of the petitioner on the ground of extra ordinary delay and laches and by observing that after such a long time there is no justification for providing compassionate appointment. Hence this writ petition.
3. Petitioner's father working as Assistant Teacher died on 18th July, 1993 when the petitioner was about 11 years of age. His mother send an application dated 09.06.1996 stating that she is not capable of performing any job but requested District Basic Education Officer, Unnao (hereinafter referred to as "D.B.E.O.") that on attaining majority, her children may be provided such employment. The petitioner thereafter claims to have submitted an application for compassionate appointment on 18th July, 2001 after completing education upto B.A. which was considered by the authorities concerned. Ultimately, by means of the impugned order, the same has been rejected. Relying on Division Bench decisions of this Court in Vivek Yadav Vs. State of U.P. & Ors. (2010) 4 UPLBEC 2776 and Subhash Yadav Vs. State of U.P. & Ors. (2011) 1 UPLBEC 494, the learned counsel for the petitioner submitted that unless State Government apply its mind to financial hardships on the part of the family, denying compassionate appointment and rejection of claim merely on the basis of delay is not justified.
4. However, I find no force in the submission.
5. Repeatedly, it has been held that the purpose and object of compassionate appointment is to enable the members of family of the deceased employee in penury, due to sudden demise of the sole breadwinner, get support and succour to sustain themselves and not to face hardship for their bore sustenance.
6. In Managing Director, MMTC Ltd., New Delhi and Anr. Vs. Pramoda Dei Alias Nayak 1997 (11) SCC 390 the Court said:
"As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tied over the sudden financial crises and not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment."
7. In S. Mohan Vs. Government of Tamil Nadu and Anr. 1999 (I) LLJ 539 the Supreme Court said:
"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."
8. In Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors. AIR 1998 SC 2230 the Court said:
"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."
9. In Sanjay Kumar Vs. The State of Bihar & Ors. AIR 2000 SC 2782 it was held:
"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"
10. In Punjab Nation Bank & Ors. Vs. Ashwini Kumar Taneja AIR 2004 SC 4155, the court said:
"It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis."
11. An appointment on compassionate basis claimed after a long time has seriously been deprecated by Apex Court in Union of India Vs. Bhagwan 1995 (6) SCC 436, Haryana State Electricity Board Vs. Naresh Tanwar, (1996) 8 SCC 23. In the later case the Court said :
"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. ..... 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."
12. In State of U.P. & Ors. Vs. Paras Nath AIR 1998 SC 2612, the Court said:
"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. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case."
13. In Hariyana State Electricity Board Vs. Krishna Devi JT 2002 (3) SC 485 = 2002 (10) SCC 246 the Court said:
"As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we are of the opinion that it was not to meet the immediate financial need of the family ...."
14. In National Hydroelectric Power Corporation & Anr. Vs. Nanak Chand & Anr. AIR 2005 SC 106, the Court said:
"It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises."
15. In State of Jammu & Kashmir Vs. Sajad Ahmed AIR 2006 SC 2743 the Court said:
"Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the set back. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution."
16. Following several earlier authorities, in M/s Eastern Coalfields Ltd. Vs. Anil Badyakar and others, (2009) 13 SCC 122 = JT 2009 (6) SC 624 the Court said:
"The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over."
17. In Santosh Kumar Dubey Vs. State of U.P. & Ors. 2009 (6) SCC 481 the Apex Court had the occasion to consider Rule 5 of U.P. Recruitment of Dependents of Government Servants Dying in harness Rules, 1974 (hereinafter referred to as "1974 Rules") and said:
"The very concept of giving a compassionate appointment is 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 family can tide over such financial constraints. The 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."
18. The Court considered that father of appellant Santosh Kumar Dubey became untraceable in 1981 and for about 18 years the family could survive and successfully faced and over came the financial difficulties. In these circumstances it further held:
"That being the position, in our considered opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions."
19. In I.G. (Karmik) and Ors. v. Prahalad Mani Tripathi 2007 (6) SCC 162 the Court said:
"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 this Court, 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."
20. 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 (UOI) & Anr. Vs. B. Kishore 2011(4) SCALE 308. This is relevant to make the provisions for compassionate appointment valid and constitutional else the same would be violative of Articles 14 and 16 of the Constitution of India. The Court said:
"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."
21. It is thus clear that rule of compassionate appointment has an object to give relief against destitution. It is not a provision to provide alternate employment or an appointment commensurate with the post held by the deceased employee. It is not by way of giving similarly placed life to the dependents of the deceased. While considering the provision pertaining to relaxation under 1974 Rules, the very object of compassionate appointment cannot be ignored. This is what has been reiterated by a Division Bench of this Court in Smt. Madhulika Pathak Vs. State of U.P. & ors. 2011 (3) ADJ 91. The decision in Vivek Yadav (supra) has been considered later on by another Division Bench in Nagesh Chandra Vs. Chief Engineer, Vivasthan Ga Warg & Ors. decided on 7th January, 2011 in Special Appeal No.36 of 2011 and Court said:
"Though in the judgment it has been held that when the rules are prevailing for relaxation for making the application, a member of the family, on attaining majority, can file an application for due consideration but in the judgment itself it has been held that the law relating to compassionate appointment is no longer res integra. The right of compassionate appointment does not confer a right but it does give rise to the legitimate expectation in a person covered by the rules that his application should be considered, if otherwise he meets with the requirement."
22. In the case in hand, after the death of deceased employee on 18th July, 1993, his wife took three years in informing D.B.E.O. that she is not capable of service and her two children are minor. She did not refer to any factum of suffering any hardship etc.. On the contrary, she mentions only this much that when her children become major, they may be allowed to serve the department. The entire application filed as Annexure 1 to the writ petition nowhere mentions anything about financial hardship or penury of the family.
23. The petitioner Pradeep Kumar having his date of birth as 30.07.1982 passed High School in 1996 and Intermediate in 1998. He passed out B.A. (Final) in 2001 from D.S.M. College Unnao affiliated to Chhatrapati Sahuji Maharaj University, Kanpur. The application submitted by him on 18th July, 2001 neither mentions nor there is even a whisper about the existence or continued financial crisis or penury of the family though application was made after eight years. It only mentions that now he has passed B.A. (Final) and therefore, be appointed on compassionate basis in the quota meant for such appointment. It shows that he had an assumption that there is a specific quota meant for appointment and he has a vested right to get appointment thereagainst.
24. The D.B.E.O. vide letter dated 31st August, 2001 informed the petitioner that his application was not on the prescribed format and it has several discrepancies. Besides, application having been submitted after five years from the date of death, it ought to be addressed to the Secretary, U.P. Basic Education Board, Allahabad. It is said that formalities were completed and application was submitted thereafter by the petitioner on 4th September, 2001. Since no action was taken, a legal notice dated 24.12.2004 was served upon the respondents. In the entire notice dated 24.12.2004 there is only one sentence that financial condition of the client of noticee's counsel was very bad and the family is at the verge of starvation. Nothing said as to how and in what manner petitioner's family was suffering financial hardship though getting family pension etc.
25. After petitioner's application was rejected by the impugned order dated 23rd February, 2006, he got his writ petition amended by adding paragraphs 14-A to 14-F wherein he has only referred to power of relaxation with respect to the period of five years but nothing has been said about penurious condition of the family and continued financial scarcity for such a long time during which he obtained his education and the family could sustain all difficulties. In the writ petition there is only one paragraph i.e. para 13 that the whole family of the deceased is on the verge of starvation as there is no earning member of the family and it is very difficult for them to mitigate hardship accrued due to the death of the deceased. Nothing has been said as to how and in what manner the family has maintained itself in the last eight years simultaneously providing education upto graduation to the petitioner also.
26. Learned counsel for the petitioner submitted that his application has been dismissed only on the ground of the fact that the application is submitted after five years. But this fact is also not correct, inasmuch as, in the impugned order, Secretary, Basic Education Board, has clearly observed that no material was supplied by the petitioner for considering the question of grant of relaxation in favour of the petitioner.
27. Before this Court also, the petitioner has not placed any such material. In a case where no such material is provided by a person seeking compassionate appointment after a long time, it cannot be said that respondents have exercised their power in a wholly illegal manner.
28. A similar contention has been examined by a Division Bench of this Court recently in Om Prakash Pandey Vs. State of U.P. 2011 (1) ADJ 679 wherein after referring to the decision in Vivek Yadav (supra), the Court said :
"We have no quarrel with the proposition that when the relevant rule gives the scope of relaxation or dispensation of the period of five years, it cannot be rejected merely on the basis of the fact that the application was beyond the prescribed time. Similarly, each and every case has its own ground of acceptance or rejection. Facts vary from case to case. In the instant case, save and except the ground that the Appellant-writ Petitioner was not in a position to make the application in time since he was minor, no other ground is available from the order of the authority. Though there is a format/proforma for making application beyond the period giving details of landed properties, bank account/s and other relevant materials and though the Appellant-writ Petitioner has said that he has made the application but from the annexure we find that proforma is totally unfilled. No cause of any continuance of suffering or hardship has been indicated. In such circumstances, the rejection as made by the authority seems to be valid. Moreover, the widow of the deceased, even having no proper qualification, had not made any application before the authority concerned for her appointment even in the lowest grade to meet the immediate need of the family. Therefore, the grounds, which have been taken by the Appellant herein, are vague in nature. Had it been the case of non-consideration of cause or of rejection without basis, the appellate Court would have interfered with it by sitting in a Court of Appeal, arising out of writ jurisdiction under Article 226 of the Constitution of India. But we cannot go into the reason of the reasonableness of rejection like regular Appellate Court."
29. In this case also the only application placed on record shows that petitioner having completed B.A. (Final) had sought appointment and nothing more than that. The format, in which he has alleged to have been applied, is not on record, in order to show that he has placed relevant material before the authority concerned justifying relaxation of the period of five years. The competent authority, in the impugned order, has clearly observed that no ground was made out by petitioner for relaxation. None has been disclosed in the entire writ petition.
30. In Vivek Yadav (supra) and Subhash Yadav (supra) the Court has clearly held that application was rejected only on the ground that it was moved after five years and it did not appear from the order challenged those cases that the authority concerned applied its mind on the question, whether the situation warrants relaxation or not. But that is not the case in hand. In the case in hand, the authority concerned has addressed itself to this aspect of the matter also and has found that no ground for relaxation has been made out by the petitioner. Challenging the said order, this finding recorded by respondent No.2 in the impugned order has not been shown to be perverse or contrary to record as discussed above.
31. In Local Administration Department and Anr. v. M. Selvanayagam @ Kumaravelu JT 2011 (4) SC 30, Apex Court considered almost a similar case arising out of a judgment of the Madras High Court. One Meenakshisundaram, a Watchman in Karaikal Municipality died on 22nd November, 1988 leaving behind a widow and two sons, one of whom was eleven years old at that time. The widow was thirty-nine years of age but immediately did not make any application for compassionate appointment. On 29th July, 1993, after about four and a half years and odd, she made an application for compassionate appointment of M. Selvanayagam @ Kumaravelu since he had passed S.S.L.C. Examination in April, 1993. However, the appointment could not have been granted since M. Selvanayagam @ Kumaravelu was minor at that time also. Another application thereafter was given after 7 years and 6 months from the date of death of Meenakshisundaram. Having receipt no reply, a writ petition was filed which was disposed of directing the Municipality to pass an order on the application for compassionate appointment. The claim for compassionate appointment ultimately rejected by the Municipality by order dated 19th April, 2000. The writ petition against the said order was dismissed by the learned Single Judge but in intra-court appeal, it was allowed vide judgment and order dated 30th April, 2004 and the Municipality was directed to provide compassionate appointment. It is this order, which was assailed before the Apex Court. The Municipality declined to give compassionate appointment observing that wife of the deceased employee did not make any request immediately after the death for compassionate appointment which shows that she was not facing any financial crisis in the family at that time. This reasoning was negatived by the Division Bench of the High Court but the Apex Court did not approve the judgment of the High Court and said:
"....there is a far more basic flaw in the view taken by the Division Bench in that it is completely divorced from the object and purpose of the scheme of compassionate appointments. It has been said a number of times earlier but it needs to be recalled here that under the scheme of compassionate appointment, in case of an employee dying in harness one of his eligible dependents is given a job with the sole objective to provide immediate succor to the family which may suddenly find itself in dire straits as a result of the death of the bread winner. An appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependents and the financial deprivation caused to the dependents as a result of his death, simply because the claimant happened to be one of the dependents of the deceased employee would be directly in conflict with Articles 14 & 16 of the Constitution and hence, quite bad and illegal. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind.
8. Ideally, the appointment on compassionate basis should be made without any loss of time but having regard to the delays in the administrative process and several other relevant factors such as the number of already pending claims under the scheme and availability of vacancies etc. normally the appointment may come after several months or even after two to three years. It is not our intent, nor it is possible to lay down a rigid time limit within which appointment on compassionate grounds must be made but what needs to be emphasized is that such an appointment must have some bearing on the object of the scheme.
9. In this case the Respondent was only 11 years old at the time of the death of his father. The first application for his appointment was made on July 2, 1993, even while he was a minor. Another application was made on his behalf on attaining majority after 7 years and 6 months of his father's death. In such a case, the appointment cannot be said to sub-serve the basic object and purpose of the scheme. It would rather appear that on attaining majority he staked his claim on the basis that his father was an employee of the Municipality and he had died while in service. In the facts of the case, the municipal authorities were clearly right in holding that with whatever difficulty, the family of Meenakshisundaram had been able to tide over the first impact of his death. That being the position, the case of the Respondent did not come under the scheme of compassionate appointments."
32. In the circumstances, for mere sheer conjuncture and surmises, as argued orally, this Court find it difficult to hold that the impugned order is erroneous and deserve interference.
33. The writ petition therefore lacks merit. Dismissed.
34. Interim order, if any, stands vacated.
Order Date :- 30.5.2011 KA