JUDGMENT S. Rafat Alam, J.
1. By means of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs ;
"(a) issue a writ, order or direction in the nature of certiorari quashing the order dated 30.6.1995, issued by the District Magistrate, Varanasi (Annexure-15 to the writ petition) ;
(b) issue a writ, order or direction in the nature of mandamus commanding the respondent No. 1 to treat the date of retirement of father of the petitioner late Pashupati Nath Srivastava as 31.1.1991 and to give benefit of dying-in-harness by giving compassionate appointment to the petitioner on Class III post on account of the father of the petitioner having died-in-harness on 5.1.1991 ;
(c) issue any other and/or further writ, order or direction as this Hon'ble Court may deem fit and proper in the ends of justice.
(d) award cost of the petition to the petitioner."
2. Sri B. K. Yadav, learned counsel has appeared on behalf of the petitioner and has also filed his vakalatnama, which is taken on record. None is present on behalf of the respondents nor any counter-affidavit has been filed, although time was granted on 25.9.1999 to file counter-affidavit.
3. I have heard the learned counsel for the petitioner.
4. Brief facts of the case are that father of the petitioner late Pashupati Nath Srivastava was a 'Clerk in the office of the District Magistrate, Varanasi and was attached in the Land Acquisition Office. As per his date of birth recorded in the service book, his retirement was due on 31.1.1991. However, due to serious ailment, he was granted medical leave w.e.f. 1.1.1984 to 20.4.1984. It, however, appears that his father before expiry of the aforesaid leave, filed an application to retire him after giving benefit of leaves admissible to him with prospective date i.e., 31.1.1991. The appointing authority, i.e.. District Magistrate/Collector, partly allowed the application and allowed him to retire voluntarily on the ground of health. But the second prayer to grant him leave under various heads was not found admissible to him and was, therefore, rejected. However, extraordinary leave was sanctioned to him w.e.f. 29.9.1984 to 31.1.1985 and he was treated to have retired with effect from 1.2.1985 vide order dated 18.2.1985 (Annexure-1 to the petition). Admittedly, father of the petitioner thereafter survived till 5.1.1991 and he did not challenge the aforesaid order before any forum and thus, it became final. However, after one and half year of the death of the father of petitioner, the petitioner's mother Smt. Mithilesh Srivastava filed an application before the Divisional Commissioner, Varanasi, on 29.7.1992 (Annexure-2 to the petition) to sanction various leaves which her late husband was entitled under the Financial Handbook and treat him to have retired as on 31.1.1991 in place of 1.2.1985 and prayed in her application that he should be treated to have died in harness since he died on 5.1.1999 and the benefit of compassionate appointment under the dying-in-harness Rules be extended to his son, the present petitioner.
5. It appears that the learned Commissioner forwarded the application of the petitioner to the District Magistrate on 25.8.1992 with the direction to decide the same in accordance with law. However, when no decision was taken, reminder was also sent and ultimately petitioner's mother was asked to appear on 13.5.1994 at 10 a.m. before the Chief Revenue Officer for personal hearing. Consequently, she appeared before him and also filed written submission in support of her representation. Thereafter by the impugned order dated 30.6.1995 (Annexure-15 to the petition), her representation was rejected on the ground that the decision taken on the representation of her husband seeking voluntary retirement on 18.2.1985 cannot be cancelled.
6. Learned counsel for the petitioner vehemently contended that the retirement of the petitioner's father with effect from 1.2.1985 was arbitrary and the leaves under various heads admissible to him had wrongly been denied and, therefore, the same may be set aside and his father may be treated to be in service at the time of his death and that being so, the petitioner being his son, is entitled to be given appointment under the dying-in-hamess Rules.
7. I am of the view that the writ petition has no merit. Admittedly, father of the petitioner retired on his own request on account of his bad health. The order retiring him with effect from 1.2.1985 mentions that the request was made by the petitioner's father along with the report of the medical board to allow 'm to retire. But the request for. sanction of various leaves and to retire him with prospective date was not acceded to. The petitioner's father admittedly survived till 5.1.1991, i.e., for about six years and he did not challenge the same during his life time and, therefore, the said order became final and cannot now be challenged after a lapse of more than ten years at the instance of his wife or his son, the petitioner before this Court, only for the purpose of claiming benefit under the provisions of dying-in-harness Rules.
8. The general rule of appointment to public services is that the appointment should be made on merit and through open invitation. However, there was few exceptions to the aforesaid rule to meet certain contingencies. One of such exceptions is to provide appointment to one of the dependents of the deceased employee against a vacancy on humanitarian ground to save the members of the bereaved family from penury due to untimely death of the sole bread earner. The object and purpose for giving such appointment is to provide Immediate relief to the family on the sudden death of the earning member. Therefore, for claiming compassionate appointment under the dying-in-harness Rules, the financial crisis or penury of the bereaved family is the sole consideration for the purpose of considering the claim for giving such appointment. Nowhere it has been averred in the writ petition claiming that the bereaved family is unable to survive and such appointment is necessary to give succour to the family which has suddenly plunged into penury.
9. It is settled legal position that the dependent of an employee dying-in-harness has no vested right to claim compassionate appointment after a long lapse of time and after the crisis is over. In the case of Haryana State Electricity Board v. Hakim Singh, JT 1997 (8) SC 333, the Apex Court in para 12 has observed as under :
"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 succour to the family to tide over the sudden financial crisis befallen the dependents on account of the untimely demise of its sole earning member."
10. Therefore, compassionate appointment is to be given immediately after the death of the deceased employee to mitigate the hardship of the family and such appointment cannot be claimed as a matter of right after a long lapse of time. Besides that, the father of the petitioner retired from service on his own request in the year 1985 and died in the year 1991 and, therefore, he was not in service at the time of his death and as such, the petitioner does not come within the category of the dependent claiming appointment under the dying-in-harness Rules. I am further of the view that the order dated 30.6.1995 impugned in this petition also does not suffer from any illegality for the reason that the order of retirement of petitioner's father was passed on 18.2.1985 on his own request. If he had any grievance or was aggrieved by the said order, he could have challenged in the appropriate proceeding. Admittedly, he was alive for six years but did not challenge the same and thus it became final and cannot now be interfered with at the instance of the petitioner. Therefore, the respondents have rightly rejected the representation made by the mother of the petitioner to cancel that order after a long lapse of time.
11. For all these reasons, this petition fails and is accordingly, dismissed. There shall, however, be no order as to costs.