1.This petition is directed against the order dated 28.09.2013 passed by District Judge rejecting application for compassionate appointment.
2.Heard Sri Pawan Kumar Tiwari, learned counsel for the petitioner and Sri Manish Kumar, learned counsel for respondents.
3.Petitioner claims appointment on the death of his father a Class-IV employee in the judgeship of Sitapur. Petitioner's mother had also moved an application before District Judge, Sitapur stating that her son Prakash Agarwal (present petitioner) may be given compassionate appointment as there is no other source of livelihood.
4.It appears that on above application, District Judge constituted a Committee which sought information vide order dated 25.09.2013 regarding financial status of employee. This information was to be furnished within a week.
5.Submission is that District Judge vide order dated 28.09.2013 rejected the petitioner's application without giving effective opportunity, consequently, order cannot be sustained.
6.Sri Manish Kumar, learned counsel for the respondents has produced the original record before the Court pertaining to petitioner's case.
7.I have perused the order passed by District Judge, Sitapur dated 28.09.2013. District Judge observed that petitioner has not submitted the details of property as directed by the Committee.
8.D.J. has referred to report of Grievance Redressal Committee dated 28.09.2013.
9.A perusal of report dated 28.09.2013 shows that Committee has acknowledged the issuance of letter dated 25.09.2013 by chairman of committee asking Prakash Agarwal to give details of income and property. By this letter a week's time was allowed to give details. Surprisingly, report has been submitted on 28.09.2013 before expiry of the time. It is not clear what prompted the Committee to act in such a haste. Committee should have waited till the expiry of period given in the letter. In any case District Judge having passed order on 28.09.2013, action of Committee looses significance.
10.Learned District Judge has relied upon the decision of Hon'ble Apex Court given in the case of Umesh Kumar Nagpal Vs. State of Haryana reported in 1994(4) SCC 136 wherein it has been held that the Government or the public authority concerned has to examine the financial condition of the family of the deceased.
11.Rule required District Judge to examine the financial condition of the family of the deceased or the applicant but the order has been passed before expiry of the period given to petitioner to furnish the financial details, as such finding recorded in this regard cannot be sustained. Consequently, impugned order being illegal, has to be quashed.
12.Sri Manish Kumar, learned counsel for the respondents has relied upon decision given in the case of Umesh Kumar(supra). Relevant part of the judgment is reproduced below:
" The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if 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 posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution."
13.He has also placed reliance upon the judgment of Apex Court given in State of Gujarat and others Vs. Arvind Kumar T. Tiwari and another {(2012) 9 SCC 545]. Relevant para 8 is reproduced below:
"It is a settled legal proposition that compassionate appointment cannot be claimed as a matter of right. It is not simply another method of recruitment. A claim to be appointed on such a ground, has to be considered in accordance with the rules, regulations or administrative instructions governing the subject, taking into consideration the financial condition of the family of the deceased. Such a category of employment itself, is an exception to the constitutional provisions contained in Articles 14 and 16, which provide that there can be no discrimination in public employment. The object of compassionate employment is to enable the family of the deceased to overcome the sudden financial crisis it finds itself facing, and not to confer any status upon it. (Vide: Union of India & Ors. v. Shashank Goswami & Anr., AIR 2012 SC 2294)."
14.Judgment of Hon'ble Apex Court given in the case of Union of India and another Vs. Shashank Goswami and another [(2012) 11 SCC 307] has also been placed. Relevant part of Para 10 is being reproduced below:
"Thus, applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased."
15.From the above, it is apparent that relevant Rules on the subject are to be followed.
16.Governor of U.P. has framed the Rule i.e. 'U.P. Recruitment of Dependents of Government Servants dying-in-harness Rules, 1974' which has been made under proviso to Article 309 of the Constitution of India ('Rules' in short).
17.Rule 5 provides that employment to dependent of deceased be given subject to following conditions :
(a) Spouse is not employed with Central Government, State Government or with any Corporation owned or controlled by State or Central Government.
(b) Applicant is also not employed as indicated above.
If these conditions are fulfilled, suitable employment has to be offered.
18.Enquiry into financial status of the deceased is not contemplated under Rule 5 of the Rules. Importing any other condition would amount to reading something more in the Rules which is prohibited.
19.Courts cannot add or substract to what is provided under the law. Employment can be offered to a post which is not within the purview of U.P. Public Service Commission. Applicants are thereby offered Class-IV or Class-III posts. If somebody is willing to accept the appointment on these menial posts, his need visa-vis financial condition can be well visualized. Applicant might be having residential house but not getting any rent or paltry amount as rent. Can it be said that he does not need regular income. Even to maintain a house, money is needed as it has to be repaired, taxes are to be paid.
20.U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 are complete code and provide for full mechanism to deal with all the situations. Malady of sudden financial crisis on account of death of bread earner is sought to be remedied by statutory rules framed in exercise of powers conferred under proviso to Article 309 of the Constitution of India. Rules display the legislative intent. What is just should be seen through law. Governor of State of U.P. has decided to make rules making provision for appointment on compassionate ground which should be read in entirety.
21.Rule 4 of the Rule, 1974 has given overriding effect to these rules.
22.Rule 5 makes its incumbent upon the appointing authority to give suitable employment if applicant fulfills the conditions contemplated under Rule 5. State Government has reserved the right to condone the delay in case applicant moved the application beyond five years, taking into consideration the undue hardship in any particular case. Appointee under Rules has been obligated to maintain other members of the family of the deceased who were dependent upon him before his death and are unable to maintain themselves. Failure to maintain them would result in termination of service.
23.Rule 6 provides for contents of the application which should be addressed to the appointing authority and apart from providing the other particulars i.e. date of birth, details of other member of family, income details or financial condition of the family, have also to be mentioned.
24.Rule 7 provides the mechanism for resolving the dispute if more than one member of family claim appointment under the Rules.
25.Rule 8 enables appointing authority to satisfy itself about the suitability of candidate to maintain the minimum standards of work and efficiency expected for the post.
26.Rule 8(3) is important which provides that even if there is no vacancy, a supernumerary post shall be deemed to have been created for facilitating such appointment.
27.From the above, it is apparent that applicant has to mention in his application the details of the financial condition of the family as well as details of employment and income of all members of family.
28.Rule 9 is important which provides that appointing authority shall satisfy itself about the character of candidate as well as physical and mental fitness and in case applicant is male, he has not more than one wife living and in case of female candidate, she has not married a person already having a wife living.
29.Rule 10 gives power to remove difficulty to the State Government in implementation of any provision of these rules.
30.From the above, it can be culled out that under Rule 5, appointing authority has to satisfy itself that spouse or the applicant himself is not employed under the Central Government or State Government or the Corporation owned or controlled by the Central or State Government, he fulfills the educational qualification prescribed for the post and is otherwise qualified i.e. does not suffer from any disqualification. Appointing authority will further satisfy itself that candidate will be able to maintain the minimum standards of work and efficiency and is suitable in all respect, he is physically and mentally fit and has not more than one wife living if applicant is male and if applicant is female, she has not married a person already having a wife. Except these requirements, no other requirement is contemplated under the Rules.
31.Thus, it is apparent that while applicant is bound to give the details of financial condition, appointment cannot be refused on the ground of financial status. U.P. Rules do not authorize appointing authority to refuse the appointment on the ground that applicant is financially sound, if he otherwise fulfills the requirements of Rules 5, 8 and 9. If applicant who lost the bread-earner of family is willing to work on Class-III or Class-IV post, his need to such post is quite manifest.
32.In the case of Umesh Kumar Nagpal (supra), Hon'ble Apex Court has held that such deviation to the constitutional provisions contained in Article 14 & 16 is permissible and Rule is justifiable and valid. It has rational nexus with the object sought to be achieved.
33.No decision has been placed before this Court showing that under Rule 5 of U.P. Rules, 1974, appointment can be refused on the ground of financial status. The judgments referred by Sri Manish Kumar pertain to the cases where there is scheme or departmental instructions containing such an embargo. U.P. Rules are silent in this regard and prescribed limit whereunder appointing authority has to work. Therefore, appointing authority while exercising the power under Rule 5 of the U.P. Rules, 1974 cannot refuse the appointment on the ground of financial status.
34.Sri Manish Kumar has cited a recent decision of Full Bench of our Court reported in UPLBEC 2014 (1) page 589, Shiv Kumar Dubey Vs. State of U.P. and others. Relevant para 29 is being reproduced below :
"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;
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;
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."
35.There is one more aspect which very often dithers the appointing authority while making appointment under these rules. Very often Appointing Authority tends to offer appointment on Class IV post even when applicant is eligible to be appointed on Class III post.
36.It is true that applicant cannot insist that a particular post be given to him but rules prescribed that suitable employment on the post has to be offered.
37.Rule 5 further says that 'suitable employment in government service on the post' has to be given. This post should not be within the purview of U.P. Public Service Commission but candidate has to have educational qualification prescribed for the post.
38.State Government is supposed to be a model employer and therefore it is expected that government and it's officers will work strictly in accordance with rules.
39.If applicant is qualified for being appointed on Class-III post, then he should not be offered appointment on Class-IV post merely on the ground that his father was a Class-IV/III employee. Everyone has a right to augment his income and everyone has a right to give better education to his children. Every educated child has a right to be considered for a post commensurate with his qualification. Any deviation from the rules is not permissible. If applicant is qualified to be appointed on Class-III post, appointing authority should offer him suitable employment. If he is qualified to be appointed as Class-IV employee, he should be offered appointment on Class-IV post. This suitability has to be judged in the light of qualifications of the applicant vis a vis educational qualifications prescribed for the post. Appointing authority acts contrary to the rules if he deliberately offers a lower post i.e. Class-IV post although applicant is eligible for appointment on Class-III post.
40.Unavailability of post cannot be a ground to refuse appointment on Class III if applicant is otherwise eligible. Financial status also can not be a relevant consideration while considering case for appointment on Class III.
41.In order to mitigate the sufferings of dependents, State Government has directed to relax the computer knowledge for a period of one year so that immediately on death employment can be provided. This shows the concern of the State Government which helps in inferring the intent of legislature.
42.It is clarified that applicant has no right to choose the particular post but appointing authority should offer suitable employment and therefore, these two things should not be mixed or confused. Appointing authority has been given discretion to judge the suitability. This discretion is not to be exercised on caprice or whims but in a judicious manner and must be informed of reasons. Appointing authority should give reasons for not offering the appointment, claimed by the applicant. It is once again clarified that applicant has no right to choose the post and appointing authority is not bound to offer the post claimed by applicant but refusal must accompany the reasons for finding him non suitable.
43.It is not at all in the interest of administration that a qualified person is appointed on Class IV post rather it would serve the administration better if eligible and qualified person is given the appropriate task. There is no law that ward of Class IV employee should always be employed on Class IV Post, even if he is well qualified for Class III post.
44.If under qualified person claims appointment on Class IV post, it can be declined by saying that he is not eligible, but where applicant is eligible for appointment on Class III post, then there has to be a strong reason for declining the same and reason must form part of the order. In order to eliminate element of arbitrariness, reasons for finding applicant non suitable for a particular job have to be given.
45.While it is true that rule 8 & 9 do not contemplate any inquiry into the financial status but appointing authority can definitely examine the correctness of the application in the light of Rule 6 which requires details of income of the family. While appointment cannot be refused on the ground of financial status, this can be a relevant criterion for offering a suitable employment. In this manner, all the rules can be read harmoniously.
46.Offering Class IV job to dependent merely because deceased was Class III or IV employee militates against very mandate contained in Article 38 of the Constitution of India and is an affront to 'dignity' of individual emphasized in preamble thereof.
47.When no time is prescribed, legislative intent is to be taken into account which is to provide immediate financial support to the family of deceased. The intention of legislature is manifest, as such, a prompt exercise is expected from the appointing authority. In the absence of any specific mention, three months time can be the reasonable time to pass orders on the application for compassionate appointment.
48.It has been observed in the case of Priyanka Tripathi Vs. State of U.P. and another [Writ petition No. 6168 of 2009(SS)] and Sunil Kumar Vs. District & Sessions Judge Balrampur and others [Writ Petition No. 2975 of 2007 (SS)] relying upon various decisions of Hon'ble Apex Court that three months is a reasonable time when no time is prescribed.
49.From the above, following principles can be deduced on interpretation of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974:
(a) Application should be disposed of within three months from the date dependent applies for a job. Under Rules, no time limit is prescribed but intent of the rule is to provide immediate relief to the bereaved family to meet immediate financial crisis [Shiv Kumar Dubey (supra)]. In this background, Appropriate Authority is supposed to dispose of such applications within a shortest possible time. In any case, application should not be kept pending for more than three months.
(b) Appointment under the Rules cannot be refused merely on the ground that financial status of the applicant is sound. Nor payment of retiral benefits at the time of death, furnishes any ground for refusal.
(c) Non availability of posts is no ground to refuse appointment.
(d) Appointment on Class III post cannot be refused merely on the ground that deceased was Class III/IV employee.
(e) Appointment has to be offered according to qualification and suitability of candidate and the applicant should be given an appointment commensurate therewith. If appointing authority does not give appointment on the post claimed by applicant because of non-suitability, reasons have to be recorded by the appointing authority.
(f) Dependent of deceased has no right to claim particular position or place and it is in the discretion of the appointing authority to pass appropriate order warranted in the facts and circumstances of the case.
50.In the instant case, although District Judge was fully justified in calling for details of financial status, but since time prescribed for furnishing details of property had not expired, rejection of the application before expiry of the period was not correct. Consequently, finding given by District Judge regarding non-submission of details of properties is uncalled for.
51.From the affidavit filed by Meera Agrawal, Prashant Agrawal, Prabhat Agrawal and Smt. Harpyari Devi, petitioner's financial status and need is quite apparent but it is to be seen by District Judge.
52.In view of above, impugned order cannot be sustained and writ petition deserves to be allowed.
53.Writ petition is allowed. Order dated 28.09.2013 is quashed. District Judge is directed to pass fresh order in accordance with law and observations made herein above within three weeks.
54.Copy of the order be sent to Principal Secretary, appointment/ personnel with direction to circulate it among various department of State Government for compliance.
55.Record be sent back.
Order Date :- 17.4.2014 kkv/