Order on Delay Condonation Application
1. This is an application seeking condonation of delay in filing this appeal.
2. Heard.
3. Delay in filing this appeal is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.
4. Let this appeal be registered with regular number and old number shall also continue to be shown in bracket for finding out details of case, whenever required by parties with reference to either of two number.
Order Date :- 27.2.2018 sailesh
1. Heard Sri Amit Kumar Upadhyay, Advocate holding brief of Sri A.B. Singhal, learned counsel for the appellant, Sri R.K. Singh and learned Standing counsel for the respondents.
2. This intra-Court Appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 has arisen from the judgment and order dated 07.07.2010, passed by learned Single Judge in Civil Misc. Writ Petition No. 38912 of 2010 (Suraj Kumar vs. Union of India and others), whereby writ petition of petitioner was dismissed on the ground of delay and laches and also considering the fact that after almost ten years from the date of death of appellant's father, direction for compassionate appointment cannot be issued since, that would defeat the very purpose of appointment on compassionate basis.
3. Admittedly appellant-petitioner's father died on 02.03.2000. Appellant- petitioner moved application for compassionate appointment after three years of death of his father which was rejected by competent authority on 31.03.2008. Thereafter writ petition was filed after more than two years and three months from rejection of application for compassionate appointment i.e. after 10 years of the death of appellant's father.
4. On repeated query, learned counsel for the appellant could not explain laches of more than two years for filing writ petition after rejection of his application which was communicated to the appellant in March/April, 2008. Even otherwise, we are satisfied that after such long time, there is no scope to issue direction for compassionate appointment as it is against the very purpose of compassionate appointment.
5. An appointment on compassionate basis claimed after a long time has seriously been deprecated in Union of India Vs. Bhagwan Singh 1995 (6) SCC 436; and 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."
6. 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."
7. 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 "
8. 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."
9. 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."
10. 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."
11. In Santosh Kumar Dubey Vs. State of U.P. (supra), 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 overcame 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."
12. In Local Administration Department and Anr. Vs. M. Selvanayagam @ Kumaravelu JT 2011 (4) SC 30, Apex Court considered a 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."
13. It is thus, abundantly clear that the learned Single Judge was perfectly justified in dismissing the writ petition of the appellant-petitioner.
14. The appeal lacks merit, it is accordingly dismissed.
Order Date :- 27.2.2018 sailesh