Heard Mr Ramesh Pandey, learned Counsel for the petitioner and Sri Badrul Hasan, learned Additional Chief Standing Counsel.
In short, the facts of the case are that Late Shri Rama Shanker Mishra, while working as Collection Amin at Tehsil Bighapur, District Unnao, died on 1.10.1996 leaving behind his widow, three daughters and a son. The mother of the petitioner (Smt.Vijaya Devi) moved an application on 28.8.2000 before the District Magistrate, Unnao, stating therein that her husband expired on 1.10.1996 leaving behind three daughters and one son and daughters, who were of marriageable age and were not inclined to take up any employment. The only son (the petitioner), who was studying in Class X, is not eligible for appointment as he is minor and will attain majority in the year 2004. It was further indicated in the application that the deceased's wife (Smt. Vijaya Devi) is neither qualified nor is able to take up employment due to her continued illness. In this situation, it was, thus, prayed that in view of amended provisions of Section 5 of the Uttar Pradesh Recruitment of Dependents of Government Servant Dying in Harness Rules 1974 ( in short referred to as "1974 Rules") period of five years may be relaxed in respect of her son and he may be considered for employment and a post be kept reserved for employment of her son under the Rules.
The mother of the petitioner, Smt. Vijaya Devi moved an application dated 11.8.2004 before the District Magistrate, Unnao, stating therein that her son, namely, the petitioner, had become major and he may be given compassionate appointment under the provisions of 1974 Rules. The said request of the petitioner's mother for appointment was declined by means of the impugned order dated 8.7.2005.
Being not satisfied with the aforesaid order dated 8.7.2005, the petitioner has filed the instant writ petition and this Court while entertaining the writ petition passed an ad interim order dated 21.11.2005 whereby the petitioner was directed to file a fresh representation before the State of U.P. as well as before the District Magistrate, Unnao for reconsideration of his case and for allowing relaxation of time limit of 5 years as prescribed in the amended Dying in Harness Rules.
In compliance of the aforesaid interim order dated 21.11.2005, the petitioner submitted a representation dated 12/19.12.2005 to the Secretary, Revenue Department, Government of Uttar Pradesh as well as to the District Magistrate, Unnao. The said representation of the petitioner for employment was also rejected on the ground that the application of the petitioner for employment was time barred.
In the backdrop of the aforesaid facts, the petitioner amended the writ petition and questioned the correctness of the order dated 28.9.2006 passed by the opposite party no.1-State Government whereby the application of the petitioner for employment was rejected being time barred.
Learned Counsel for the petitioner has contended that there was no occasion for the State Government to decline the request of the petitioner for employment on compassionate ground when Lekhpal and Tehsildar had reported that the financial condition of the petitioner's family was poor and pitiable and despite the recommendation of the District Magistrate, Unnao twice for granting relaxation in the time limit of 5 years and for considering the case of the petitioner for appointment under the Dying in Harness Rules.
It has also been contended that the State Government has illegally rejected the case of the petitioner for relaxation in the time limit of 5 years without assigning any reason or ground in the impugned order dated 28.9.2006 and as such impugned order is bad in law and cannot be sustained.
Refuting the allegations of the petitioner, Sri Badrul Hasan, learned Additional Chief Standing Counsel submitted that the State Government after appreciating the entire facts and provisions of the 1974 Rules, came to the conclusion that the application of the petitioner's mother [Smt. Vijaya Devi] requesting to reserve one vacancy till petitioner attains majority, was not found sustainable in absence of any such provision under the 1974 Rules. It has also been pointed out that the elder daughter of the deceased employee, who was major and unmarried at the relevant time, could have sought the benefit of seeking compassionate appointment well within the period of limitation. Besides, that the widow of the deceased employee had also not availed the said benefit. In these circumstances and the provisions of 1974 Rules, the State Government came to the conclusion that the request for relaxation could not be legally acceded to.
It has also been argued by the learned Counsel for the State that the Hon'ble Supreme Court and this Court in copious decisions has held that the compassionate appointment under the provisions of the 1974 Rules is given to grant immediate relief to the member of the family of the deceased employee in order to cope with the sudden demise of the bread earner of the family. It is an special legislation by-passing the regular procedure of making recruitment and, if the family of the deceased employee has been able to maintain itself for sufficiently long time, there is no justification for by-passing the regular recruitment process.
Before coming to the controversy involved in the instant case, it would be apt to point out that the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in -Harness Rules, 1974 has been framed in exercise of powers conferred by Article 309 of the Constitution of India. The said 1974 Rules are special set of rules, which have been made for providing a source of livelihood, and to give some respite to the members of the deceased Government servant's family at a time when the family is suddenly struck with a calamity where the sole bread earner dies. The overall idea and concept of these rules is to keep the family in main streamline of the society for which economic security and social status is to be provided by the State Government.
As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Government nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee died in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration, taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision has been made in the Rules to provide gainful employment to one of the dependents of the deceased, who may be eligible for such employment.
Thus, it can be easily summed up that 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 held by the deceased. Mere death of an employee in harness does not entitle his family to such source of livelihood.
The rules which are relevant in present context are Rules 5 and 8. The Rule 5 is extracted herein below:-
"5. Recruitment of a member of the family of the deceased.-- (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person--
(i) fulfils the educational qualifications prescribed for the post,
(ii) is otherwise qualified for Government service, and,
(iii) makes the application for employment within five years from the date of the death of the Government servant:
Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.
(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.
(3) Each appointment under sub-rule (1) should be under the condition that the person appointed under subrule (1) shall upkeep those other family members of the deceased Government servant who are incapable for their own maintenance and were dependant of the above said deceased Government servant immediately before his death.
8. Relaxation from age and other requirements.-- (1) The candidate seeking appointment under these rules must not be less than 18 years at the time of appointment.
(2) The procedural requirements for selection; such as written test or interview by a selection committee or any other authority, shall be dispensed with, but it shall be open to the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able to maintain the minimum standards work and efficiency expected on the post.
(3) An appointment under these rules shall be made against an existing vacancy only."
A perusal of Rules 5 (iii) would show that such cases, namely, of grant of compassionate appointment, would be considered in relaxation of the normal recruitment rules if such persons make applications for employment within five years from the date of the death of the government servant; provided that where the State Government is satisfied that the time- limit fixed for making the application for employment, causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.
Rule 8 provides for relaxation from age and other requirements. The said Rule provides that an appointment under the Rules 1974 shall be made against an existing vacancy only and that the candidate seeking appointment under these rules must not be less than 18 years at the time of appointment.
From a perusal of the aforesaid Rules, it brooks no dispute that the application should have been preferred within a span of five years and in any particular case where the State Government is satisfied that the time limit fixed for making the application for employment results in any undue hardship it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.
In the case in hand, the claim for compassionate appointment is grounded in the fact that he was minor at the time of the death of his father and further that the application may be treated as having been made within the time-limit. No plausible reason has been assigned for acceptance of his claim, which suffers from delay spanning over number of years. It appears from the record that the respondent-State upon consideration of the entire matter rejected the claim for compassionate appointment as being inordinately belated and time-barred. It thus follows that the respondent-State having considered the matter in all its pros and cons, declined to consider the case as being highly belated and time-barred.
Now I revert back to the facts of the case. It is discernible from the entire conspectus that the widow of the deceased preferred not to seek compassionate employment and her conduct was that of quiet acquiescence and rather waited for his son to grow up to attain majority and claim compassionate appointment after a lapse of more than 8 years. It is settled position flowing from various decision of the Apex Court that the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis and to relieve the family of the financial destitution and to help it get over the emergency. None of the decisions of the Apex Court justify compassionate employment either as a matter of course and the only ground which can justify compassionate employment is the penurious condition of the deceased's family.
In Umesh Kumar Nagpal v. State of Haryana and Ors., JT 1994 (3) SC 525, the quintessence of what has been observed by the Apex Court is excerpted below :
"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 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 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 destination and to help it get over the emergency..................For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the Rules. The consideration for such employment is not a vested right, which can be exercised at any time in future. 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, bread-winner, the compassionate employment cannot be claimed land offered whatever the lapse of time and after the crisis is over."
The aforesaid decision of the Supreme Court leave no manner of doubt that though the claim for appointment on compassionate grounds cannot be upheld on the touchstone of Article 14 or 16 of the Constitution but such a claim can be considered to be reasonable and permissible on the basis of sudden crisis occurring in the family of the employee who dies while in service. The appointment on compassionate grounds, therefore, cannot be claimed as a matter of right but can be claimed only in terms of the Rules or Regulations framed in this regard and that the Courts cannot confer ''benediction impelled by sympathetic consideration'' dehors the Rules. Such an appointment, therefore, should be immediately provided to a member of the family to redeem the sudden financial crisis in the family.
In Sanjay Kumar Vs. The State of Bihar & Ors, 2000 (10) SC 156 the Hon'ble Supreme Court again considered the case for compassionate appointment made by a minor after he attained majority and it was observed as follows:-
"We are unable to agree with the submissions of the learned senior counsel for the petitioner. 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. In fact, such a view has been expressed in the very decision cited by the petitioner in Director of Education and another v. Pushpendra Kumar and others, (supra). It is also significant to notice that, 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."
The aforesaid decision emphasis that the appointment on compassionate grounds is given to tide over the immediate difficulties faced by the family of the deceased. It has also been emphasized by the Supreme Court that a minor cannot claim appointment on compassionate ground unless the Scheme itself envisages that as and when such a minor becomes a major, he can be appointed without any time consciousness or time limit. To grant any relief to him would be clearly contrary to the decisions of the Supreme Court where the cases of minors had been considered and rejected on the ground that there cannot be a reservation of vacancy till such time as the minor becomes a major.
Thus, in view of the aforesaid, it is not possible to accept the claim of the petitioner that he should be given appointment on compassionate ground after a period of more than 14 years."
The Hon'ble Supreme Court in the case of Jagdish Prasad V. State of Bihar and another reported in (1996) 1 SCC 301 while dismissing the appeal filed by the son of deceased employee held in paragraph 3 as under:
"3. 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."
The Hon'ble Supreme Court in the case of Haryana State Electricity Board and another V. Hakim Singh reported in (1997) 8 SCC 85 has observed that if the family members of the deceased employee can manage for 14 years after death of the deceased, 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 befallen the dependents on account of the untimely demise of its sole earning member.
The Hon'ble Supreme Court in the case of State of J & K and others V. Sajad Ahmed Mir reported in AIR 2006 SC 2743 in paragraph 17 has held as under:
"17. In the case on hand, the father of the applicant died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was dismissed by the learned single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. The said fact was indeed a relevant and material fact which went to show that the family survived in spite of death of the employee. Moreover, in our opinion, the learned single Judge was also right in holding that though the order was passed in 1996, it was not challenged by the applicant immediately. He took chance of challenging the order in 1999 when there was inter-departmental communication in 1999. The Division Bench, in our view, hence ought not to have allowed the appeal."
In the decision of Full Bench of this Court in Shiv Kumar Dubey vs. State of U.P., 2014 (2) ADJ 312, 1974 Rules were under consideration especially period of 5 years 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 Hon'ble Supreme Court in the case of MGB Gramin Bank vs. Chakrawati Singh, AIR 2013 SC 3365 has observed that compassionate appointment cannot be claimed as a matter of right, as it is not a vested right.
It is apt to mention here that reasonable time has been signified to mean such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances. In the instant case, it does not appear from the conspectus of the facts that the petitioner was justified in making application after a lapse of 8 years. As a matter of fact, he was ineligible for consideration and according to his own showing, after he attained majority he applied for compassionate appointment. By this reckoning, there was no rational basis to relax the rigorous of time-limit as envisaged in the rule aforestated.
Yet another aspect is the absence of penurious condition of the family. The petitioner does not claim that the family is still trapped into penury. Besides the death of a person dying-in-harness cannot be exploited by the deceased family to its advantage to claim compassionate appointment at any point of time in future. The Court must decry it as immoral to convert such crisis into an opportunity and it cannot be approved that the heirs of the deceased should be at liberty to claim compassionate appointment, which would virtually amount to a kind of reservation in favour of dependents of the deceased employee. As stated hereinabove, compassionate appointment is an exception carved out in the interest of justice to enable the family to tide over the sudden crisis and such exception cannot be stretched and magnified beyond all proportions to be applied in all circumstances and in all cases of dying-in-harness. In the above conspectus, I converge to the view that the impugned order does not suffer from any taint and it was rightly passed in accordance with law and the case laws relied upon by the petitioner's Counsel are of no avail to him.
In the above conspectus, the petition fails and is dismissed. In the peculiar facts and circumstances, there shall be no order as to costs.
Order Date : 20.1.2016 Ajit/HM/-
Hon'ble Dr. Devendra Kumar Arora, J.
The writ petition is dismissed vide order of date passed on separate sheets.
Order Date : 20.1.2016 Ajit/HM/-