JUDGMENT Sudhir Agarwal, J.
1. Heard Sri Gyanendra Kumar Singh, learned counsel for the petitioner and Sri Ajay Singh, learned counsel for the respondents.
2. The petitioner has challenged the order dated 25th February, 2005 passed by the Managing Director, U.P. State Road Transport Corporation, Lucknow, whereby the representation of the petitioner for compassionate appointment has been rejected on the ground of delay and barred by time.
3. In brief, the relevant facts are that the petitioner's father, late Tribhuwan Singh, was a Class IV employee working on the post of Cleaner in the erstwhile Transport Department of the State of U.P. and subsequently transferred to U.P. State Road Transport Corporation, hereinafter referred to as 'UPSRTC' Who died on 8th June, 1993. On the date of death of the petitioner's father, the age of the petitioner was only ten years since his date of birth is 3rd August, 1983. The mother of the petitioner, as stated in para 6 of the writ petition, informed the respondents that she has no interest In service after the death of her husband since she has to take care of her minor son who is the only dream of her future. Subsequently, it appears that the petitioner's mother sent a letter dated 8th December, 1997 (Annexure '1' to the writ petition) stating that the petitioner is studying in Class VIII and is likely to appear in High School Examination in the year 1999, therefore, one vacancy for compassionate appointment may be reserved for her son Which may be given in future. To the same effect, the petitioner's mother sent further reminder dated 2nd March, 1998 (Annexure '2' to the writ petition). The petitioner's mother Sent a letter dated 18.9.1999 to the Regional Manager, UPSRTC, Gorakhpur stating that now her son has attained majority and, therefore, he may be considered for compassionate appointment according for his qualification i.e. High School failed in the year 1999. It appears that the office of the Regional Manager, UPSRTC, Gorakhpur made certain queries from the Service manager, UPSRTC, Gorakhpur and the Assistant Regional Munigir, UPSRTC, Basti regarding the service details of late Tribhuwan Nath Singh. The Service manager, UPSRTC, Gorakhpur sent letter dated 23rd October, 1999 to the Assistant Regional Manager, UPSRTC, Basti stating that in his office none of the representation of the petitioner's mother dated 8th December, 1997 and 2nd March, 1998 and 8th February, 1999 have been received and directed him to enquire into the matter and inform him accordingly. The petitioner's, mother vide letter dated 9th October, 1999 informed that the letters dated 8th December, 1997, 2nd March, 1998 were sent under postal certificates addressed to Sri Ajai Singh, Regional Manager, UPSRTC, Gorakhpur while the letter dated 18th September, 1999 sent by registered post addressed to the Regional Manager, UPSRTC, Gorakhpur.
4. In the meantime the petitioner passed High School examination in the year 2000 and thereafter, Tara Devi the petitioner's mother sent another letter dated 29th July, 2000 addressed to Sri U.P. Singh Regional Manager, UPSRTC, Gorakhpur requesting for compassionate appointment according to the qualification of the petitioner. The said letter was also Sent by registered post. It further appears that the request of the petitioner's mother for compassionate appointment was attended by the respondents in as much as Assistant Regional Manager sent letter dated 18th August, 2001 furnishing all Information regarding late Tribhunwan Nath's service career and also stating that as per record of the UPSRTC, the legal heirs of late Tribuhwan Nath Singh on the date of his death included his wife, one major married daughter Smt. Girija and other children who were minor. However, ultimately, the Managing Director considered the matter and relented the claim of the petitioner compassionate appointment vide order dated 25th February, 2002, Annexure '10' to the writ petition. The petitioner, thereafter, it is claimed that, still his mother sent further letters dated 17th April, 2002 and 8th June, 2004 requesting for reconsideration of the matter, and now has approached this Court challenging the order dated 25th February, 2002 and seeking a direction to decide her representation dated 2.12.1997, 2.3.1998 and 8.2.1999 Instead of 18th September, 1999.
5. I have heard the learned counsel for the petitioner and Sri Ajay Singh for the respondents and perused the record.
6. Learned counsel for the petitioner at the fore-most submitted that the first application was submitted by Tara Devi, the petitioner's mother on 2.12.1997 and, therefore, the assumption on the part of the respondent no, 1 that the application was barred by time is clearly misconceived. He further submitted that in any case it was always open to the authorities to condone delay in filing the representation/application for compassionate appointment and thereafter the case of the petitioner ought to have been considered on merits.
7. From the record, it is clear that the alleged 'first application dated 8.12.1997 is claimed to have been sent by the petitioner addressed to Sri Ajai Singh, Regional manager UPSRTC Gorakhpur under postal certificate which is addressed to Regional Manager UPSRTC, Gorakhpur. The addressee in the postal certificate and application are different and even otherwise postal certificate is not a conclusive evidence that the said letter was received by the addressee. Without going into the genuity of the aforesaid certificate, legal inference from the postal certificate is only that the letter was handed over in the postal department by the sender. However, its receipt by the addressee cannot be presumed unless proved otherwise. No reason has been assigned by the petitioner as to why the aforesaid letters were not sent by registered post. The alleged letters dated 8th December, 1997 and 2nd March, 1998 are almost addressed similarly, their certificates are also addressed similarly. Admittedly, these were not sent by registered post. There is nothing on record to show that the aforesaid representations were ever served or received by the respondents and, therefore, question of consideration of the aforesaid letters/representations on the part of the respondents would not arise.
Even otherwise, assuming that the aforesaid letters were sent by the petitioner's mother, yet the question required to be considered is whether the said letters can be treated to be a valid application for compassionate appointment for the petitioner. Admittedly on the said dates when the said letters are alleged to be sent, the petitioner was minor, The mother of the petitioner had already declined for compassionate appointment: as admitted by the petitioner in paragraph 6 of the writ petition. In these circumstances on the date, when the said letter were sent, there was no valid eligible and suitable person available who could have been considered for compassionate appointment by the respondent. The language of the letters also show that the mother of the petitioner requested that vacancy may be kept reserved so that in future her son after passing High School examination may be considered for compassionate appointment.
8. Incidental question required to be considered, Which may arise in this case is whether the compassionate appointment is a right of the heirs of the deceased employee which they can claim by asking or requesting the employer to keep a vacancy reserved so as to be filled in future when the minor legal heir attain majority.
9. In the case of Sushma Gosain and Ors. v. Union of India and Ors. , the Apex Court while considering the object of granting appointment observed as under The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress.
10. In the case of Umesh Kumar Nagpal v. State of Haryana and Ors. , the Apex Court reiterating the said purpose further explained the nature of right of legal heirs qua employment as herein under:
The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis, The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. 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 this crisis that a job is to be offered to the eligible member of the family.... The favourable treatment given to such dependant of the deceased .. employee in such posts has a rational nexus with the object sought to be achieved, viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered In this connection that as against the destitute family of the deceased/ there are millions of other families which are equally, if not - more, destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change In the status and affairs of the family engendered by the erstwhile employment which are suddenly f upturned.... Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased.... The decision does not justify compassionate employment either as a matter of course.... The only ground which can justify compassionate employment is the penurious condition of the deceased's family.... The consideration for such employment is not a vested right.... The object being to enable the family to get over the financial crisis.
11. In the case of Haryana State Electricity Board and Anr. v. Hakim Singh, , the Apex Court cautioned that the object of providing compassionate employment is only to relieve the family from financial hardship. Therefore, an ameliorating relief should not be taken as opening of alternative mode of recruitment to public employment.
12. Again in Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. , the Apex Court 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-earned which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both the ends meet, a provision is made for giving gainful appointment to, one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enable appointment being made without following the said procedure. it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is un exception and thereby nullify the main provision, Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provision, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds for the dependant of a deceased employee.
13. In Sanjay Kumar v. State of Bihar and Ors. , the Apex Court reiterated that the compassionate appointment is provided only to enable the family of the deceased employee to tide over sudden crises resulting due to the death of sole bread-earner who had left family in penury without any means of livelihood but it cannot be treated to be a reserved vacancy for the dependents of the deceased Government servant who died in harness.
14. In the case of Haryana State Electricity Board v. Krishna Devi 2002 LLJ 773, the Apex Court while reiterating the objective of compassionate appointment as laid down in the earlier cases further observed that the application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated.
15. If the family has sufficient means to survive for years together and can take care of the minors who have turned into major after undergoing educational qualification etc. that itself would be evident to show that now the family is not in financial crises as it could have at the time of sudden demise of the deceased necessitating compassionate appointment at a late stage i.e. after several years.
16. In State of Manipur v. Mohd. Rajaoclin , the Apex Court reiterated that the purpose of giving compassionate appointment is only to mitigate hardship caused to the family of the deceased on account of his unexpected death in service, only to alleviate the distress of the family but at a belated stage as these grounds are no more in existence, therefore, the employment cannot be claimed or provided.
17. Thus, in view of catena of decisions in the matter of compassionate appointment, some of which have been discussed and referred above, it is clear that the compassionate appointment cannot be claimed as a vested right. The term vested right has been considered and described by the Apex Court in the case of Mosammat Bibi Sayeeda and Ors. v. State of Bihar and Ors. AIR 1996 SC 1936 wherein after referring to dictionary meaning in various dictionary, the Apex court has observed as under :
Rights are vested when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest.
18. Thus, the vested right may arise from contract, statute or by operation of law. However, asking for compassionate appointment after attaining the majority by no stretch of imagination can be said to be a vested right.
19. This Court cannot be oblivious of the fact that unemployment is a major problem in our country. Lacs and millions educated unemployed persons are wandering for employment and even for a single petty Class IV vacancy, hundreds and thousands applied which includes not only those who possesses the minimum qualification of secondary levels or less but even graduate and post-graduate. At times it has been seen that even persons having doctorate have applied for the lowest class of service i.e. Class IV. In such a situation, public employment must be available to eligible and suitable person to be filled in by competition and all who are willing should be given an opportunity of consideration. Asking for a vacancy to he Kept reserve so as to be filled-in future on the basis of notional extended distress to the family continuing for years together would amount to denial of such right of consideration to other similarly placed unemployed and destitute persons whose only faults is that their ancestors could not get the opportunity of employment and, therefore, they should also suffer the same misfortune. Compassionate appointment In fact has an element of an immediate help to the family of the deceased employee. The heirs in distress lacking sufficient and reasonable means to survive with some honour must request for such help immediately or within a reasonable time. To some extent, no doubt, it is a condition of service and the benefit available to employee in general but extension of such conditions of service to an unreasonable extent would or may erode the difference between valid and invalid and any such stretch may render the provisions of the compassionate appointment to be judged of the anvil of Article 16 of the Constitution of India which confers right of equal opportunity in public employment to all persons. The Court cannot shut its eyes to the fact that still majority Of people are continuing to be tiny, poor starving little Indians and still are below poverty line. Their distress and penury appears to be ever lasting, as if they are bound to live in distress permanently. Their misery and destitute is not the result of sudden demise of the sole bread -earner but is caused by their fate and for the reason of non availability of employment. They are not in a position, even though they are alive, to earn two times simple bread what to talk of bread and butter. The distress of such persons is neither negligible nor can be ignored. In the pragmatic society, efforts had to be made to read and apply law wherever permissible which will extend an opportunity of equal consideration for public employment to public at large irrespective of their lineage ancestral hierarchy etc.
20. Request made by the petitioner's mother to reserve one post for her minor son, in this view of the matter, cannot be said to be valid and permissible in law. Atleast this Court is Clear in its mind that asking the respondents to keep a vacancy reserved till the petitioner attains majority, if not unlawful or illegal, but unjust and improper and again all canons of justice. Justice is an act of rendering what is right and equitable towards one who has suffered a wrong. There Is no scope of tempering justice with mercy particularly when que of persons who are also entitled for such mercy is endless. The Court need not to remind itself that it is expected to do justice inconformity with the law since in our country it is the rule of law which prevails, Human action are found to be just or unjust as they are In conformity with or in opposition to the law.
21. In these circumstances and in view of the discussions made above, I do not find any reason to interfere with the order passed by the Managing Director, U.P. State Road Transport Corporation rejecting the application of the petitioner foe compassionate appointment on the ground of being barred by time.
22. Besides above, in the present case the impugned order was passed by the Managing Director on 25th February, 2002 and the present writ petition has been filed in December, 2005. The petitioner has not explained the delay and laches of almoat more than three and half years in challenging the order except observing that he sent two letters for reconsideration on 17th April, 2002 and 8th June, 2004. Therefore, this writ petition It also liable to be dismissed on the ground of inordinate delay and laches.
23. In the entirety of circumstances; the writ petition lacks merit and is accordingly dismissed with costs.