The petitioner's father was working as the Junior Engineer in Nagar Palika Parishad, Hathras, died in harness on 06.06.1983. An application was filed for appointment under the Dying-in-Harness rules, since no decision was taken, the petitioner approached this Court by filing Writ Petition No. 10307 of 1991 (Vijay Prakash Swarnkar Versus State of U.P. and others) which was disposed of on 04.04.1991 directing the respondents to offer suitable appointment to the petitioner. Pursuant to the order of the Court, the petitioner was appointed as a clerk on non centralized post on 30.03.1992. Thereafter, the petitioner moved a representation on 29.06.2000 for appointment on the post of Executive Officer Class II, a post in the centralized service, thus claiming parity with other employees appointed directly on the post of centralized service, namely Kumari Roli Gupta as section officer, Smt. Vijay Laxmi Singh as Tax Superintendent, Sri Virendra Kumar Srivastava as executive officer and Sri Amit Kumar Chaturvedi as executive officer class II.
It is further contended that the Chairman, Nagar Palika Parishad, District Magistrate Hathras, and Commissioner, Agra Division, Agra, recommended to the appropriate authority, namely, Principal Secretary Nagar Vikas Vibhag Lucknow and Directorate Local Bodies Lucknow for considering the case of the petitioner for appointment in the centralized service on the post of executive officer class II under the Dying-in-Harness rules and finally the Additional District Magistrate by letter dated 03.09.2013, addressed to the Under Secretary Nagar Vikas Anubhag, Lucknow, forwarded the report of the Executive Officer, Nagar Palika Parishad, as required by the State Government, for appointment/regularization of the petitioner on the post of executive officer class II.
The petitioner has approached this Court seeking a direction to the respondent no. 2 Under Secretary Nagar Vikash Anubhag Lucknow to pass appropriate orders upon the recommendation of the Additional District Magistrate, Hathras dated 03.09.2013 and a further direction has been sought to appoint the petitioner on the post of executive officer grade II under centralized service.
Submission of learned counsel for the petitioner is that the State has been adopting different yardstick in appointment under the Dying-in-Harness rules which is discriminatory as some of the persons have been directly appointed on a centralized service post, whereas, the petitioner was appointed a clerk in a non centralized service. There are several recommendations of the authorities to consider the case of the petitioner for appointment/regularization on the post of executive officer grade II which has not been considered by the State Government.
In rebuttal, the learned Standing would submit that the petitioner has accepted the post of clerk under the Dying-in-Harness rules, subsequently, cannot turn around and make a choice for appointment on a higher post. The claim of the petitioner would exhaust on being appointed as a clerk, a person cannot be appointed directly on a centralized post, since the petitioner has no legal right, the petition as such is not maintainable.
Submissions fall for consideration.
Supreme Court in I.G. (Karmik) & others vs. Prahlad Mani [(2007) 6 SCC 162 held once the appointment on compassionate ground as per the scheme had been completed any further or second consideration for a higher post on the ground of compassion would not arise. Paras 7, 8, 9, 10 and 12 are as follows:-
"7. Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion.
8. In National Institute of Technology & Ors. v. Niraj Kumar Singh [2007 (2) SCALE 525], this Court has stated the law in the following terms:-
"16. All public appointments must be in consonance with Article 16 of the Constitution of India. Exceptions carved out therefore are the cases where appointments are to be given to the widow or the dependent children of the employee who died in harness. Such an exception is carved out with a view to see that the family of the deceased employee who has died in harness does not become a destitute. No appointment, therefore, on compassionate ground can be granted to a person other than those for whose benefit the exception has been carved out. Other family members of the deceased employee would not derive any benefit thereunder."
9. In State of Rajasthan v. Umrao Singh [(1994) 6 SCC 560], this Court has categorically stated that once the right is consummated, any further or second consideration for higher post on the ground of compassion would not arise.
10. Again in State of Haryana and Another v. Ankur Gupta [(2003) 7 SCC 704], this Court held;
"6. As was observed in State of Haryana v. Rani Devi it need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the premise that he was dependent on the deceased employee. Strictly, this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die- in-Harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi case it was held that the scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In LIC of India v. Asha Ramchhandra Ambekar it was pointed out that the High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana that as a rule, in public service appointments should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such 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."
See also Food Corporation of India & Anr. v Ram Kesh Yadav & Another [JT 2007 (4) SC 1].
12. Furthermore, Appellant accepted the said post without any demur whatsoever. He, therefore, upon obtaining appointment in a lower post could not have been permitted to turn round and contend that he was entitled for a higher post although not eligible therefor. A person cannot be appointed unless he fulfils the eligibility criteria."
Full Bench of this Court rendered in Shiv Kumar Dubey Vs. State Of U.P. & Others UPLBEC 2014 (1) page 589 inter alia held as follows:-
"(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;"
Supreme Court in State of Uttar Pradesh and others vs. Pankaj Kumar Vishnoi (2013) 11 SCC 178 held as follows:
"22. It is accepted position that the respondent appeared in the test and could not qualify. Once he did not qualify in the physical test, the High Court could not have asked the department to give him an opportunity to hold another test to extend him the benefit of compassionate appointment on the post of Sub-Inspector solely on the ground that there has been efflux of time. The respondent after being disqualified in the physical test could not have claimed as a matter of right and demand for an appointment in respect of a particular post and the High Court could not have granted further opportunity after the crisis was over".
Applying the law, on the facts of the case in hand, it is not disputed that the petitioner was appointed on Class-IV post under the Dying in Harness Rules to tide over the distress which the family was facing by the sudden death of his father. The appointment offered and accepted by the petitioner exhausted the claim, once right is consummated any further or second consideration for compassionate appointment would not arise. Compassionate appointment is not a vested right and if such a plea is accepted it would violate the principles enshrined in Article 14 and 16 of the Constitution of India.
Compassionate appointment is exception to the general rule of recruitment, such appointments cannot be sought as a matter of right nor there can be choice of the post. It is strange as to how the Under Secretary, Nagar Vikas Anubhag, Lucknow could call for a report for giving the petitioner a higher post against the rules.
The petitioner was appointed in 1992, though his father died in 1983 and after a lapse of 23 years the matter is kept alive, that too, for adjustment on a higher post in the centralized service.
The Principal Secretary, Nagar Vikas Anubhag, Lucknow, shall get enquired as to whether persons could directly be appointed on the post of centralized service in the local bodies.
Registry is directed to supply a copy of this order to Principal Secretary, Nagar Vikas Anubhag, Lucknow for compliance and submit a report to the Court through Registrar General.
For the facts and reasons stated herein above, the writ petition is devoid of merit and is, accordingly, dismissed.
No order as to cost.
Order Date :- 17.09.2014 kkm