Shailendra Singh & Ors. vs State of U.P.& Ors.

Heard Sri C. B. Pandey assisted by Sri Rohit Tripathi, learned counsel for the petitioner and learned Standing Counsel for the respondents.

Though this matter has come up before this Court on the application made by petitioner seeking an interim relief but since counter and rejoinder affidavits have already been exchanged and the time which would have taken for disposal of interim application would be the same for disposal of writ petition, I have heard learned counsel for the parties on merits of the writ petition itself at this stage under the Rules of the Court.

The short controversy involved in this case is whether a person who has been granted appointment on compassionate basis and who has joined and working on the said post can subsequently ask the employer to reconsider his claim for compassionate appointment on another post?

The petitioners'' fathers were working on the post of Gram Panchayat Adhikari/Assistant Development Officer (Panchayat) in Pachayat Raj Department. On account of their death in harness the petitioners applied for appointment on compassionate ground in accordance with U.P. Government Servants (Dying in Harness) Rules, 1974 (hereinafter referred to as the "1974 Rules"). They claim that since the cadre of Gram Panchayat Vikas Adhikari was declared a ''dying cadre'' vide Government Order dated 2261998, instead of appointing them on the post of Gram Panchayat Vikas Adhikari, the Zila Panchayat Raj Adhikari, Bareilly appointed them on the post of Junior Clerk in the pay scale of Rs. 30504590 against supernumerary posts. The orders of appointment of petitioners have been placed on record collectively as Annexure2 to the writ petition. A perusal thereof shows that the petitioners No. 1 to 5 were appointed by District Panchayat Raj Adhikari on the post of Junior Clerk vide orders dated 132001, 3062003, 372003, 13102003 and 1562006. Petitioner No. 6, however, has been appointed as Junior Clerk by the Regional Deputy Director, Panchayat vide order dated 2162002. It is said that subsequently vide Government Order dated 2072004 the State Government''s earlier decision was modified and the cadre of Gram Panchayat Vikas Adhikari was revived. The petitioners thereafter contending that they were entitled to be considered for giving compassionate appointment on the post of Gram Panchayat Vikas Adhikari in view of the subsequent events, approached this Court in Writ Petition No. 9501 (SS) of 2006. In the meantime a similar controversy in another Writ Petition No. 1094 (SS) of 2005 of five other petitioners, who also claim a similar relief, came to be considered Before this Court and thesaid writ petition was disposed of on 1022005 by a Hon''ble Single Judge directing that the case of petitioners in that case be considered by the opposite parties for appointment/absorption on the post of Gram Panchayat Vikas Adhikari against the existing post. Consequently, the earlier writ petition of the present petitioners was also disposed of by this Court vide judgment dated 2412007 in the same terms contained in the judgment of Writ Petition No. 1094 (SS) of 2005; Pursuant thereto it appears that the petitioners made representation dated 122007 before the District Panchayat Raj Officer, Bareilly claiming for absorption against the vacant posts of Gram Panchayat Vikas Adhikari and another representation dated 2362007 in the same terms was also made to Director, Panchayat Raj, U.P., Lucknow. The petitioners also pointed out that one Sri Hariom Rastogi, Gram Panchayat Adhikari posted at Development Division, Bareilly died on 1092006 and his son Sri Mukesh Rastogi thereafter was appointed under 1974 Rules on the post of Gram Panchayat Adhikari in the pay scale of Rs. 30504590. The petitioners, thus claim that similarly they were also entitled to be appointed/absorbed as Gram Panchayat Adhikari. After receiving the representation of the petitioners, the Director, Panchayat Raj sought certain details of those who were given appointment as Junior Clerk against supernumerary posts under 1974 Rules and pursuant thereto the District Panchayat Raj Adhikari, Bareilly vide letter dated 2212007 furnished the entire details to the Director, Panchayat Raj. A perusal thereof shows followings details about all the present petitioners :

A. Sri Surendra Pal Singh, father of petitioner No. 1 was working as Gram Panchayat Adhikari and died on 2171999. Consequently, the petitioner No. 1 was appointed as Junior Clerk against supernumerary post by appointment letter dated 132001.

B. Sri Nathu Lal Gangwar, father of petitioner No. 2 was working as Assistant Development Officer (Panchayat) and died on 622003. Consequently, the petitioner No. 2 was appointed as Junior Clerk against supernumerary post by appointment letter dated 3062003.

C. Sri Dori Lal Gangwar, father W petitioner No. 3 was working as Assistant Development Officer (Panchayat) and died on 752003. Consequently, the petitioner No. 3 was appointed as Junior Clerk against supernumerary post by appointment letter dated 372003.

D. Sri Hari Shanker Saxena, father of petitioner No. 4 was working as Assistant Development Officer (Panchayat) and died on 2832003. Consequently, the petitioner No. 4 was appointed as Junior Clerk against supernumerary post by appointment letter dated 13102003.

E. Sri Hemraj Sagar, father of petitioner No. 5 was working as Gram Panchayat Adhikari and died on 26122003. Consequently, the petitioner No. 5 was appointed as Junior Clerk against supernumerary post by appointment letter dated 1562006.

F. Sri Dhanpal Singh father of petitioner No. 6 was working as Gram Panchayat Adhikari and died on 9102001. Consequently, the petitioner No. 1 was appointed as Junior Clerk against supernumerary post by appointment letter dated 2162002.

He also informed that in the District Bareilly there were 144 sanctioned post of Gram Panchayat Adhikari where against 109 were occupied and 35 were vacant. The petitioners have also placed on record an order dated 2182007 passed by District Panchayat Raj Officer, Bulandshahar wherein in similar circumstance one Sri Satya Prakash Sharma, given appointment against the supernumerary post of Junior Clerk, was absorbed as Gram Panchayat Adhikari in the pay scale of Rs. 30504590. They also pointed out that similar orders were also passed in respect to five other persons by District Panchayat Raj Officer, Hardoi on 2052006; by District PanchaysK Raj Officer, Etah on 912007 and by District Panchayat Raj Officer, Bijnor on 2862007.

However, the case of the petitioners was considered at the level of Director, Panchayat Raj, U.P., Lucknow and after obtaining instructions from the State Government (Department of Personnel), he has passed a detailed order on 2982007 (Annexure1 to the writ petition) impugned in this case rejecting the claim of the petitioners on the ground that in law once they have been given compassionate appointment under 1974 Rules, subsequently, they have no legal or otherwise right to claim appointment/absorption against any other post.

Learned counsel for the petitioners vehemently contended that under 1974 Rules the petitioners were entitled to be appointed against the existing vacancies on a suitable post in classIII and classIV and since at the time of appointment of petitioners the cadre of Gram Panchayat Vikas Adhikari was declared a dying cadre, the petitioners were given appointment on compassionate basis against supernumerary post of Junior Clerk but when the cadre of Gram Panchayat Vikas Adhikari was revived, they were entitled to be absorbed against existing vacancies of Gram Panchayat Vikas Adhikari. He further contended that since in compliance of this Court''s direction, similar benefit has been conferred to a large number of other persons, who were initially appointed as Junior Clerk against supernumerary posts but thereafter were absorbed as Gram Panchayat Vikas Adhikari pursuant to the contempt proceedings initiated before this Court, the petitioners were also entitled for similar relief. He lastly contended that this Court having already held in its judgment dated 1022007 in Writ Petition No. 1094 (SS) of 2005 that if the vacancy on the post of Gram Panchayat Adhikari is available the persons appointed as Junior Clerk against supernumerary posts to be absorbed/appointed as Gram Panchayat Adhikari and the benefit of the judgment has been extended to the petitioners vide judgment dated 2412007 passed by; this Court in petitioners'' earlier Writ Petition No. 9501 (SS) of 2006 denial of such appointment/ absorption by the respondents is wholly arbitrary and in the teeth of the inter parties judgments which is binding upon the respondents.

Learned Standing Counsel, however, opposing the writ petition, contended that the petitioners have no right legal or otherwise, to be appointed against a particular post or to a post in a particular cadre under 1974 Rules. Once they have been given appointment, subsequently they have no right to claim their absorption/appointment against any other post since compassionate appointment once made, exhausted itself, and cannot be claimed again for making appointment on some other post in a different cadre. He submitted that in this regard the Apex Court as well as this Court has clearly held that such an exercise would be wholly illegal and violative of Articles 14 and 16 of the Constitution and, therefore, the entire premise of the claim of petitioners is untenable in law.

I have given my anxious thoughts to the submissions advanced at length. I am clearly of the view that the order dated 2982007 (Annexure1 to the writ petition) passed by Director, Panchayat Raj, U.P., Lucknow is unexceptionable and does not suffer from any illegality and accordingly the petitioners are not entitled for any relief. The reasons for my aforesaid conclusion are as under.

The appointment on compassionate basis is not as a matter of right in the sense that it is not a normal recognised source of recruitment but considering the factum of sudden demise of the Government servant leaving his family in destitute, particularly when the said Government servant is the sole bread earner, in order to save the family from such misery, if any scheme or rules have been made by the employer for providing appointment on compassionate basis, such appointment would not be invalid. However, since the purpose of such an appointment is to save the family of deceased employee from penury it is not a right conferred upon the harness of the deceased employee to claim a post against post but contemplate an employment only to save the bereaved family and not more than that.

In the case of Sushma Gosain and others v. Union of India and others, AIR 1989 SC 1976, the Apex Court while considering the object of granting compassionate appointment observed as under:

"The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the breadearner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress."

In the case of Umesh Kumar Nagpal v. State of Haryana and others, 1994 (4) SCC 138 : (1994 AIR SCW 2305) the Apex Court reiterating the said purpose further explained nature of right of legal heirs qua employment, as under:

"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 for post held by the deceased. What is further, mere death of an employee in harness does not entitle 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 crisis that a job is to be offered to the eligible member of the family...............The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased, there are millions of other families which are equally, if not more, destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned............Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased........... The decision does not justify compassionate employment either as a matter of course.......................The only ground which can justify compassionate employment is the penurious condition of the deceased''s family..........the consideration for such employment is not a vested right ..............The object being to enable the family to get over the financial crisis."

In Haryana State Electricity Board and another v. Hakim Singh, JT 1997 (8) SC 332 : (AIR 1997 SC 3887) the Apex Court cautioned that the object of providing compassionate employment is only to relieve the family from financial hardship, therefore, an ameliorating relief should not be taken as opening of alternative mode of recruitment to public employment.

Again in Director of Education (Secondary) and another v. Pushpendra Kumar and others, 1998 (5) SCC 192 : (1998 All LJ 1525) the Apex Court observed 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 breadearner 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 the ends meet, a provision is made for giving gainful appointment to one of the dependants 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. 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 provision, 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 for the dependant of a deceased employee."

In Sanjay Kumar v. State of Bihar and others, JT 2000 (10) SC 156 : (AIR 2000 SC 2782) 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 breadearner who had left the family in penury without any means of livelihood but it cannot be treated to be a reserved vacancy for the dependants of the deceased Government servant who died in harness.

In State of Manipur v. Mohd. Rajaodin, 2003 (7) SCC 511 : (AIR 2003 SC 3794) the Apex Court reiterated that the purpose of giving compassionate appointment is only to mitigate hardship caused to the family of the deceased on account of his unexpected death in service, only to alleviate the distress of the family but at a belated stage, as these grounds are no more in existence, therefore, the employment cannot be claimed or provided.

In National Institute of Technology and others v. Niraj Kr. Singh, (2007) 2 SCC 481 : (AIR 2007 SC 1155) the Hon''ble Apex Court quoted with approval a Full Bench decision of Andhra Pradesh High Court in the case of Govt. of A.P. v. D. Gopaiah, (2002) 93 FLR 12 (AP) (FB) wherein it was observed "by reason of Articles 14 and 16 of the Constitution of India, great hopes and aspirations were generated in the minds of the people of India that employment shall not be given on descent" and then said that it is only an exception and that too limited to mitigate the hardship of the bereaved family.

In State Bank of India and others v. Jaspal Kaur, JT 2007 (3) SC 35 : (2007 AIR SCW 1044) the Hon''ble Apex Court in para 27 observed as under:

"Hence a major criterion while appointing a person on compassionate grounds should be the financial condition of the family the deceased person left behind. Unless the financial condition is entirely penury, such appointments cannot be made."

In General Manager State Bank of India and others v. Anju Jain 2008 (11) SCALE 647 : (2008 (6) ALJ 235) the Court held as under:

"Appointment on compassionate ground is never considered a right of a person. In fact, such appointment is violative of rule of equality enshrined and guaranteed under Article 14 of the Constitution. As per settled law, when an appointment is to be made in Government or semiGovernment or in public offices, cases of all eligible candidates must he considered alike. That is the mandate of Article 14. Normally State or its instrumentality making any appointment to public office can not ignore such mandate. At the same time, however, in certain circumstances appointment on compassionate ground of dependants of deceased employee is considered inevitable so that the family of the deceased employee may not starve. The primary object of such scheme is to save bereaved family from sudden financial crisis occurring due to demise of sole bread earner. It is thus an exception to the general rule of equality and not another independent and parallel source of recruitment."

In M/s. Indian Drugs & Pharmaceuticals Ltd. & others v. Devki Devi & others JT 2006 (6) SC 136 : (2006 (5) ALJ 489) referring to Pushpendra Kumar (supra) (1998 All LJ 1525) the Court reiterated that in matter of compassionate appointment there cannot be insistence for a particular post. Therefore, it is evident that an appointment which is neither a right nor can be granted to confer a status nor is a claim for a post, but an immediate means provided to the destitute family to mitigate penury, cannot be claimed by a person, who is already serving in a department to improve his status as per his own understanding. The petitioners were all working as Junior Clerk having obtained compassionate appointment cannot be said to be suffering the penury justifying their claim of reconsideration for appointment on another post. Moreover, in the absence of any statutory provision for such reconsideration, in my view, such a claim is wholly untenable in law.

Learned counsel for the petitioners could not show that even though the fathers of petitioners were working in the Department of Panchayat Raj, the petitioners as a result of their death has a legal right and that too vested in them to be appointed on the post of Gram Panchayat Adhikari. 1974 Rules at the best confer a right of consideration upon a member of a family of deceased Government servant to be considered for suitable employment against existing vacancies or the supernumerary post in classIII and classIV only but not against any particular post of in a particular cadre. It is not in dispute that the post of Junior Clerk and that of Gram Panchayat Adhikari are classIII posts and in the pay scale of Rs. 30504590. Therefore, once the right of petitioners has exhausted on getting appointment on a classIII post i.e. of Junior Clerk in pay scale of Rs. 30504590, in my view, the petitioners thereafter have no further right enforceable in law to compel the respondents to consider the petitioners for appointment/absorption against any other post and that too in a different cadre though it is also, in the same pay scale. The issue in my view is squarely covered by certain decisions of the Apex Court as well as this Court and it would be useful to refer some of them.

In State of Haryana v. Naresh Kumar Bali, 1994 (4) SCC 448 : (1994 AIR SCW 2539) the father of the respondent, Bali was working as Constable in the Police Department in State of Haryana and died in harness on 1431976. On the application moved for compassionate appointment by the heirs of the deceased Constable his son Naresh Kumar Bali was appointed as Clerk in the Police Department by the appointment letter dated 1421989. Sri Bali, however, informed the department by his letter dated 1111990 that he had already applied for the post of Teacher in Education Department and, therefore, commensurating to his qualification he should be appointed as Teacher and may be transferred to Education Department. Then again a representation was made by Sri Bali''s mother that his son be appointed on the post of SubInspector. This representation was rejected by department on 1841990. Thereafter another representation was made claiming appointment/adjustment as clerk in Excise Department. This representation was also rejected. He filed a writ petition claiming that he has been discriminated against similarly placed other persons who were appointed on compassionate ground as Inspector, SubInspector etc. The High Court held that there were several instances where appointment has been made on compassionate basis on higher post, therefore, the petitioner should also be given similar benefit and directed his appointment as Inspector. In appeal the Apex Court referring to its earlier judgment in Life Insurance Corporation of India v. Asha Ramchhandra Ambekar, 1994(2) SCC 718 : AIR 1994 SC 2148 held that the principles laid down therein applied to the case of Bali also and the High Court ought not to have issued direction for appointment on the post of Inspector. It also noticed that Sri Bali having already agreed to be appointed as Clerk, there was no occasion for taking a different view due to change in his option subsequently.

In the present case also there is nothing on record to show that the petitioners at any point of time raised any objection for not accepting appointment on the post of Junior Clerk. The appointment letters also nowhere shows that the petitioners were appointed on the post of Junior Clerk for the reason that they could not be appointed as Gram Panchayat Adhikari having been declared as dying cadre. There is neither any pleading nor any material to show that at any point of time petitioners raised any objection or showed reservation in respect to their appointment on the post of Junior Clerk.

So far as the judgment of this Court in Writ Petition No. 1094 (SS) of 2005 is concerned, a perusal thereof clearly shows that the learned Standing Counsel argued that once the petitioners have been appointed as Clerk on compassionate basis they cannot turn around and claim appointment on the post of Gram Panchayat Adhikari at a later stage having no such indefeasible right in the said appointment". The said contention raised by learned Standing Counsel has not been adjudicated by this Court, therefore, the aforesaid judgment cannot be said to be a precedent on the question as to whether the petitioners have a right to claim appointment/absorption on any other post and that too in a different cadre once they have already been appointed on compassionate basis on a particular post. This Court in fact after noticing the various submissions of learned counsel for the petitioners and learned Standing Counsel in Writ Petition No. 1094 (SS) of 2005 has only disposed of the writ petition with the direction to the respondents to consider the case of petitioners since the candidates were considered and appointed on compassionate ground. However, the issue as to whether the petitioners have any such right or not have neither been discussed nor adjudicated therein. The aforesaid judgment, therefore, is not a binding precedent on the question raised in this ease namely "whether the petitioners have any legal right for such reconsideration or not". The judgment in the earlier writ petition of these petitioners also does not decide the aforesaid issue.

On the contrary, in State of Rajasthan v. Umrao Singh, 1994(6) SCC 561 the Apex Court considered a similar issue, and, referring to its earlier decision in Naresh Kumar Bali (supra) held that as soon as one is appointed on compassionate basis, the appointment stands completed. In para 8 of the judgment the Apex Court clearly held:

"....... He was appointed to the post of LDC by order dated 14121989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of "endless compassion"." (Emphasis added)

Again this issue was considered by a Division Bench of this Court in Dinesh Chandra Sharma v. District Inspector of Schools, Meerut and others, 2000(4) AWC 3262 : (2000 All LJ 3090). There the legal heir of the deceased employee was given appointment on compassionate basis as Clerk. Subsequently, he became qualified for the post of Assistant Teacher and claimed that he was entitled to be considered for appointment on the said post on compassionate ground. The Hon''ble Single Judge relying on Umrao Singh (supra) held that once appointment has been made on compassionate ground, the claimant is not entitled to get any other appointment on different post simply because he has qualified for other post subsequently. In special appeal the aforesaid decision was upheld and referring to Umrao Singh (supra) this Court held as under:

"No person is entitled to claim benefit under dyingin harness Rules more than once." (Para 6).

In Kamlesh Kumar Pandey v. State of U.P. and another, 2001 (3) UPLBEC 2188 : (2001 All LJ 2562). Sri Pandey was appointed on compassionate basis as a classIV employee. He accepted the appointment and joined the service without any objection. Claiming thereafter appointment on a classIll post he approached this Court. Rejecting the claim, it was held:

"Once having accepted an appointment, may be on ClassIV post under existing situation out of will and volition, the ''chapter'' of Dying in Harness is closed. No one should be permitted to reagitate this matter in future on the basis of change of circumstances in further leaving everything in turmoil and in a state of indecisiveness. It if is permitted, no litigation will ever come to an end." (Para 10) (Emphasis added)

Similar is the view taken by another Hon''ble Single Judge in Raghunandan Pandey v. District Inspector of Schools, Basti and others, 2004(3) AWC 2535 and in para 8 of the judgment the Court said:

"It is wellsettled that appointment on compassionate ground is given only to tide away the sudden financial crisis which the family of the deceased employee faces because of the sudden death of the sole bread earner of the family. Thus, once a member of the family of the deceased employee is given appointment on such ground, which is also accepted by the claimant, the reason for giving such appointment, which is for support to the family of the deceased employee, does not exist thereafter. The appointment under the DyinginHarness Rules cannot be made an alternate source or mode of appointment. The purpose for which the appointment had been given to respondent No, 5, had already been exhausted on 2111992, when he accepted such appointment on a classIV post."

In Shyamdhar Mishra v. State of U.P., 2006(2) AWC 1415 : (2006 (2) ALJ (NOC) 309 (All)) reiterating the aforesaid view following Umrao Singh (supra) this Court in para 9 of the judgment Held:

"In my view, once the appointment is made on the compassionate ground, the said rule comes to an end and no further appointment could be made under the said Rules. The authority could not, in any manner, reconsider the case of the petitioner or of any otherperson where an appointment had already been given at some anterior point of time, on compassionate ground under the DyinginHarness Rules." (emphasis added)

The same thing has been reiterated in Suresh Prasad Singh v. State of U.P. and others, 2006 (4) AWC 3718 : (2006 (6) ALJ (NOC 1344 (All)) (para 5).

Another Division Bench of this Court following Umrao Singh (supra) in Shardendu Tiwari v. State of U.P. & others in Special Appeal 908 of 2006 decided on 2282006 (Reported in 2006 (6) ALJ 449) held as under :

"The submission of learned Standing Counsel that once compassionate appointment is accepted, the right is exhausted and there cannot be any second consideration for the same right is well founded. The judgment of Apex Court in State of Rajasthan (supra) fully support the said submission."

In view of the above discussion, there can not be any manner of doubt that the petitioners having no right in law or otherwise to force the respondents to reconsider them for appointment on the post of Gram Vikas Adhikari treating advantage of 1974 Rules since they have already been appointed on the post of Junior Clerk giving benefit of 1974 Rules and having exhausted their rights there is no occasion for the respondents to reconsider the cases of the petitioners as claimed by them.

In the result, the writ petition is devoid of merit and it is, accordingly, dismissed,