Naveen Kumar vs Union of India (UOI) and Others

Nirmal Singh, J.—This is a petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and

Kashmir for a writ of certiorari quashing order dated 21st of May'07, vide which the claim of the petitioner for compassionate appointment has

been rejected. Mandamus is also sought commanding respondents to appoint the petitioner on compassionate grounds.

Father of the petitioner namely Om Parkash, who was serving as Auditor in PCDA (NC), died in harness on 6th of Jan'95. The petitioner was

minor at that time. On attaining majority, the mother of the petitioner applied to the respondent authorities vide representation dated 24th of Jan

'07, that her son (petitioner herein), be given compassionate appointment as Gp.C. The respondents after considering the claim of the petitioner in

terms of standing Government orders on the subject, rejected the same vide order impugned dt. 21st of May '07, and it is this order which is

subject matter of challenge in the present petition.

The grievance of the petitioner is that after the death of his father, his mother filed various representations before the authorities concerned and

every time, assurance was given to her that the case of the petitioner would be considered for compassionate appointment by the respondents as

and when he attains majority but despite these assurances given to his mother, the respondents have rejected the claim of the petitioner. It is further

stated that the family of the petitioner is suffering from financial hardship, and therefore, keeping in view the present condition of the family, the

respondents are bound to appoint the petitioner on compassionate grounds as per the standing Government instructions.

After hearing learned Counsel for the petitioner and perusing the record, I am of the opinion that no case is made out warranting interference by

this Court.

Admittedly, the father of the petitioner died in harness on 6th of Jan'95. The petitioner was minor at that time. The petitioner, even on attaining

the majority, did not file any representation to the respondent authorities for appointing him on compassionate grounds and instead, his mother filed

a representation to the authority concerned on behalf of the petitioner. The widow of deceased employee, however, did not lay any claim even for

herself for being appointed on compassionate grounds even though she was eligible and as per the order impugned, as indicated above, she

applied to the respondents on 24th of Jan'07, seeking compassionate appointment for her son (petitioner herein). The request of the mother of the

petitioner, as per the impugned order, was considered in terms of Government Orders No. DOP & T OM No. 14014/6/94-Estt(D) dated 9th of

Oct'98, MOD(D/Lab) No. 19(4)/824/99/1998-D(Lab) dated 9th of March'01, DOP&T OM No. 14014/19/2002-Estt(D) dt. 5th of May'03

and also CGDA's office letters No. AN/XIX/19001/Corr/CIR dt. 9th of Aug'01 and AN/VIII/19001 /Corr./Cir dated 24th of July'03, which deal

with the subject of compassionate appointment. As the case of the petitioner was not covered by the Government instructions on the subject, the

same has been rejected.

Before considering the legal position so far as the matter regarding compassionate appointment is concerned, I would like to quote the meaning

of words ""Compassion"" and ""Compassionate"" as given in the New Shorter Oxford English Dictionary, which is as under:

Compassion: Participation in another's suffering, fellow-feeling, sympathy. Pity inclining one to show mercy or give aid. Sorrowful emotion, grief.

Have compassion on, pity.

Compassionate - Feeling or showing compassion or sympathy for others. Granted out of compassion rather than from legal obligation. Displaying

sorrowful emotion. Regard or treat with compassion, fell pity for.

Keeping in view the above meaning of the words ""Compassion"" and ""Compassionate', it can be said that compassionate appointment would be

an appointment which is given out of compassion and as a sympathy to the dependant of a deceased employee who dies in harness leaving his

family without any means of livelihood.

It is settled proposition of law that compassionate appointment cannot be claimed as a matter of right as an alternate source of entry into service.

In such case, the object is to enable the family to get over sudden financial crisis which occurs due to the death of bread earner of the family.

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 an employee while in service leaving his family without any means of livelihood. But such appointments 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 as has been laid down by the Apex Court in the case reported as Umesh Kumar Nagpal Vs. State of Haryana and Others, .

In State of U.P. and Others Vs. Paras Nath, , the Apex Court observed as under:

...The purpose of providing employment to the dependant of a government servant dying in harness in preference to anybody else is to mitigate

hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such

appointments are permissible on compassionate grounds provide there are rules providing for such appointments. None of these considerations

van operate when the application is made after a long period of time....

In Haryana State Electricity Board Vs. Krishna Devi, , where the application was made after eight years of the death of deceased employee,

the Apex Court held as under:

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. The High Court did not consider the position of law and

allowed the writ petition relying on an earlier decision of the High Court.

In view of the above settled position of law and as the application was filed after eight years of the death of her husband, we are of the opinion that

the impugned order is not sustainable. If the impugned order is allowed to stand, the purpose of making appointment on compassionate ground

would frustrate....

In General Manager (D and PB) and Others Vs. Kunti Tiwary and Another, , where the family of the deceased employee was getting the

pension and other retiral benefits and the case of respondent in the aforesaid case was rejected by the employer on the ground that the family of

the deceased was not facing any financial hardship, the Apex Court observed as under:

On the basis of the criteria as recommended by the Indian Banks' Association and adopted by the appellant Bank, it could not be said that the

family of the late KN Tiwary had been left in ""penury"" or without any means of livelihood"". The particulars of their income have been noted in their

application and it certainly could not be saidon the basis thereof that the respondents were living hand to mouth. The Division Bench erred in

diluting this criteria of penury to one of ""not very well-to-do"".

In the present case, as noticed above, the father of the petitioner died on 6th of Jan'95. The petitioner was minor at that time and was not

eligible to be considered for appointment on compassionate grounds as the maximum period, as per the impugned order, for applying to get the

benefit under the compassionate scheme is three years. The petitioner, as indicated above, did not lay any claim before the authorities concerned

for appointing him on compassionate grounds even on attaining majority and it is the mother of the petitioner who applied to the respondent

authorities for compassionate appointment of her son in the year 2007 i.e. after a period of about twelve years of death of her husband. A third

person or one legal representative of the deceased employee cannot lay a claim on behalf of other legal representative. This is because, the ward of

the deceased employee on whose behalf, the request is made, may not be interested for being appointed on compassionate grounds or one of the

legal representative who is not eligible for getting such an appointment may file an application and get the claim rejected on behalf of other also.

Therefore, the dependant of a deceased employee who seeks compassionate appointment has to himself lay a claim and no other legal

representative of the deceased employee can apply on his/her behalf.In the instant case, as noticed above, the widow of the deceased employee

has not laid any claim for herself but has applied on behalf of her son that too after a period of twelve years of the death of her husband. Therefore,

keeping in view the fact that the family of the deceased employee was able to maintain itself for such a long time after his death, it cannot be said

that the family was in a state of financial hardship.

At this stage, it would be apt to mention that while passing the order impugned, the respondent authorities have also taken into consideration

the financial position of the family of the deceased. The relevant observations made by the authority concerned in this regard be noted:

...With this objective in view and in order to determine the financial destitution/penurious condition of the family, the Government has fixed the

poverty line as income of Rs. 1767.20 for a family of five members. In this context, it is noticed that the family is receiving the family pension of Rs.

2583+DA thereon per month. She has also received a sum of Rs. 1,20,740/- as terminal benefits after the death of Shri Om Parkash, wife of late

Shri Om Parkash i.e. Smt. Champa Devi is already working in Education department of J & K State. Considering these aspects the Board of

officers and the present liability/income of the family, the case for appointment on compassionate grounds is not covered under the indigency

criteria fixed by the Govt. Moreover, compassionate appointment is made on the availability of vacancy only in the Department within a ceiling of

5% of direct recruitment quota meant for the purpose and that too within a maximum period of three years....

In the present case, as noticed above, the impugned order has been passed in terms of the standing instructions under which the application

could be made within a maximum period of three years, which has not been done as the petitioner was minor and not eligible at the time of death of

his father to seek compassionate appointment. The authorities concerned, while considering the claim of the petitioner have also taken into

consideration the financial position of the family of the deceased. Therefore, the claim of the petitioner, in my view, has rightly been rejected by the

respondents.

It would also be pertinent to mention here that in case the dependant of a deceased employee who is minor at the time of death of the said

employee and is not eligible to seek compassionate appointment within the prescribed limit as per the standing instructions on the subject, the

authorities cannot be directed to wait for years together for the dependant of the said deceased employee to become major and thereafter lay

his/her claim for seeking compassionate appointment.

Therefore, keeping in view the facts and circumstances of the case in hand and also the legal position as enunciated by the Apex Court noticed

above, I am of the considered opinion that the respondents have rightly rejected the claim of the petitioner for compassionate appointment.

For the reasons mentioned above, this petition is found to be without merit arid is dismissed in limine.