Dinesh Singh vs State of U.P.

Devendra Kumar Arora, J.—Heard learned Counsel for the parties and perused the record.

By means of present writ petition, the Petitioner has prayed for a writ in the nature of mandamus commanding the opposite party No. 2 to decide the representation of the Petitioner (Annexure No. 3) within a stipulated period fixed by this Court. Petitioner has also prayed for a writ in the nature of mandamus commanding the opposite party No. 2 to appoint the Petitioner on any suitable post under Dying in Harness Rules.

Submission of learned Counsel for the Petitioner is that father of Petitioner namely, Shiv Singh while he was posted as Assistant Teacher in Primary School, Hanseva, block Hasanganj, district Unnao, died on 16th September, 1988. At the time of death of his father, Petitioner was a minor. The Petitioner became major on 30.4.2005 and then he moved application for appointment under Dying in Harness Rules on 07.11.2006 (Annexure No. 1). The Petitioner also moved an application (Annexure No. 2) to the opposite party No. 2 on 03.02.2008 for redressal of his grievance but nothing has been done so far. Being aggrieved, the Petitioner again moved an application on 13.12.2009 (Annexure No. 3) which is also waiting for its turn for disposal. Due to inaction of opposite party No. 2, the Petitioner and his family is at the verge of starvation and is running from pillar to post.

Learned Standing Counsel, while opposing the writ petition, submitted that the purpose of giving appointment under Dying in Harness Rules is to give immediate relief from the hardships caused to the family due to death of deceased but if a family can carry on livelihood for more than 12 years then there appears to be no financial crisis in the family. There is no law that if the dependent of the deceased is minor then in that situation the authority should wait to provide him appointment on having become major. the appointment cannot be granted to any member of the family under these Rules. Secondly, an appointment under Dying in Harness Rules cannot be claimed as a matter of right because object of making an appointment on compassionate ground is to enable the family to tide over the sudden crisis. Admittedly, in the present case, the Petitioner was a minor at the time of death of his father and on attaining the age of majority he claimed appointment under Dying in Harness Rules as a matter of right. Present writ petition is, therefore, misconceived and deserves to be dismissed.

I have considered arguments of learned Counsel for respective parties and gone through the record.

Admittedly, in the present case, father of the Petitioner died on 16th September, 1988 and at that time Petitioner was minor and was not eligible for giving appointment under Dying in Harness Rules. Since the Petitioner was not eligible being minor, he approached the authorities for appointment under Dying-in-Harness Rules, 1974 after attaining the age of majority in the year 2006.

The whole object of giving a compassionate appointment is intended to enable the family to tide over the sudden crisis and financial difficulties which was being faced by the family of the deceased due to death of earning member of the family. The benefit of Rules, 1974 is given to the dependent of the deceased government servant so that the family could over-come such financial constraints.

The reason for appointment on compassionate ground, therefore, has to be reasonable and approximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service. The Hon''ble Supreme Court in the matter of Umesh Kumar Nagpal Vs. State of Haryana and Others, pleased to observe as under:

The whole object of granting compassionate employment is to enable the family to tide over the sudden crises. The object is not to give a number 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 entitled 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 the crises that a job is to be offered to the eligible member of the family. 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 crises which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crises is over.

In Haryana State Electricity Board Vs. Naresh Tanwar and Another, , it has been held by the Supreme Court that the compassionate employment is not a vested right. It is an exception to a General Rule. The object of compassionate appointment is to get the immediate relief to the family of the deceased and it is not a legal right.

The Hon''ble Supreme Court in the matter of Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others, pleased to observe in para-8 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-earner 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 ends meet, a provision is made for giving gainful appointment to one of the dependents 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 enables 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 an exception and thereby nullify the main provision by taking away completely the right conferred by 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 provisions, 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 of the dependent of a deceased employee. In Umesh Kumar Nagpal v. State of Haryana this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that 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 Hon''ble Supreme Court further in the matter of I.G. (Karmik) and Others Vs. Prahalad Mani Tripathi, pleased to hold as under:

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.

The Hon''ble Supreme Court again in the matter of Akhilesh Kumar Verma Vs. State of U.P., pleased to observe in paras-10, 11,12 and 13 as under:

In Sanjay Kumar v. State of Bihar and others, JT 2000 (10) SC 156, 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.

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.

In the case of Commissioner of Public Instructions and Others Vs. K.R. Vishwanath, , the Apex Curt has 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 appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major, he can be appointed without any time consciousness or limit.

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.

The Hon''ble Supreme Court in the matter of Santosh Kumar Dubey Vs. State of U.P. and Others, has also pleased to observe in paras-11 and 12 as under:

The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints.

The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service.

The Hon''ble Supreme Court in the matter of Sanjay Kumar Vs. The State of Bihar and Others, pleased to hold that the vacancy cannot be reserved for a dependent of a government servant till he attains the majority after number of years. Para-3 of the same reads as under:

We are unable to agree with the sub-missions 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 v. Pushpendra Kumar supra. It is also significant to notice that on the date when the first application was made by the Petitioner on 02.06.1988, 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 is some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief.

In view of the aforesaid analysis of law, it is evident that if the family has sufficient means to survive for years together and can take care of the minor who have turned into major now then it itself would be evident that now the family is not in financial crises as it could have at the time of sudden demise of the deceased.

As per record of the writ petition, the Petitioner became major after about eight years of his father''s death and approached the authorities in the year 2006. It is evident from the sequence of events that after death of Petitioner''s father in the year 1988 the family did not face any financial crisis as no one in the family claimed appointment in order to meet out financial hardships.

The pleadings of the writ petition further show that Petitioner after attaining the age of majority, firstly moved application for appointment under Dying in Harness Rules on 07.11.2006 and thereafter he moved another application on 03.2.2008 and lastly he moved third application on 13.12.2009. The casual approach of the Petitioner indicates that application was moved by him only for the sake of seeking government job without there being any financial difficulty. Petitioner has failed to demonstrate as to how the family survived for the last about 12-13 years.

As per law, an appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or the Public Sector Undertaking is to see that the dependents of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis.

On the basis of analysis of the aforesaid judgments, this Court comes to the conclusion that no directions can be issued for considering the application of Petitioner for employment under the provisions of Dying in Harness Rules as the Petitioner moved the application about eight years after the death of his father, on attaining the age of majority and approached this Court approximately after twelve years.

This Court is, therefore, of the considered view that an employment under Dying in Harness Rules cannot be claimed as a matter of right as the purpose of giving appointment to the family member of the deceased government servant is to meet out the immediate exigency and not for endless compassion. As such, present writ petition does not warrant any interference by this Court.

Accordingly, the writ petition is devoid of merits and is liable to be dismissed.

The writ petition is dismissed. No order as to costs.