Shiv Kumar vs State of U.P. and Others

Anil Kumar, J.—Heard Counsel for the parties and perused the record.

By means of the present writ petition, the petitioner has challenged the order dated 26.04.2008 (Annexure-7) passed by Senior Superintendent of Police, Kanpur Nagar/O.P. No. 4.

In brief the facts of the present case are that petitioner''s father Sri Bhola Singh was working as Head Constable in Civil Police, posted at Kanpur Nagar died during his tenure of services on 24.04.1997. After the death of Sri Bhola Singh in harness initially an application for compassionate appointment to the petitioner was moved on his behalf by his mother. Thereafter on 01.07.2004 the petitioner moved an application for considering his case for compassionate appointment. Taking into consideration the said application moved by the petitioner, O.P. No. 4 directed him to submit certain information and documents. According to the petitioner, the same was submitted by him and he was called and directed to appear in a physical and medical test on 07.02.2005 and 09.02.2005 respectively. He appeared in the said test, thereafter his case was recommended by the O.P. No. 4 to DIG (Establishment) Police Headquarter, Allahabad on 11.10.2006 however nothing has been done in the matter in question in spite of repeated requests and reminders made by the petitioner. Lastly, impugned order dated 26.04.2008 (Annexure-7) his case for giving appointment on compassionate ground was rejected by Senior Superintendent of Police, Kanpur Nagar. Hence the present writ petition.

When the matter was taken up for hearing, a query has been made to the learned Counsel for the petitioner, whether the petitioner has got a vested right to get a compassionate appointment under law and also what illegality has been committed by the O.P. No. 4 while rejecting the petitioner''s case for compassionate appointment on the ground of delay keeping in view the fact that the petitioner''s father died in the year 1997 and since then more than 13 years have been passed and the petitioner during the intervening period has maintained his family so whether the petitioner is entitled to get a compassionate appointment at this stage.

In spite of the repeated opportunity has been given to the learned Counsel for the petitioner no reply has been given by him in the matter in question.

In view of the abovesaid facts and going through the record of the case as the object and the genesis of compassionate appointment is on account of "immediate hardship" and to mitigate ''distress'' in the family of a deceased employee.

Further, the provisions pertains to compassionate appointment have been dealt by Hon''ble Supreme Court in the case of Smt. Sushma Gosain and Others Vs. Union of India (UOI) and Others, , however thereafter the approach pertaining to the provisions for compassionate appointment has undergone major change.

In the case of Life Insurance Corporation of India Vs. Mrs. Asha Ramachandra Ambekar and another, , the Apex Court has held as under:

Para 17 - Thus, apart from the direction as to appointment on compassionate grounds being against statutory provisions, such direction does not take note of this fact. Whatever it may be, the Court should not have directed the appointment on compassionate grounds. The jurisdiction under mandamus cannot be exercised in that fashion. It should have merely directed consideration of the claim of the second respondent. To straightaway direct the appointment would only put the appellant Corporation in piquant situation.

In the case of Umesh Kumar Nagpal Vs. State of Haryana and Others, Hon''ble Supreme court has held that "For these very reasons, the 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 further. The object being to enable the family to get over the financial crisis 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 crisis is over."

In the case of State of Haryana Vs. Naresh Kumar Bali, , the Supreme Court has held as under:

The High Court could have merely directed consideration of the claim of the respondent in accordance with the rules. It cannot direct appointment. Such a direction does not fall within the scope of mandamus. Judicial review, it has been repeatedly emphasised, is directed against the decision-making process and not against the decision itself; and it is no part of the court''s duty to exercise the power of the authorities itself. There is widespread misconception on the scope of interference in judicial review.

In the case of the Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others, , wherein the Hon''ble Apex Court has 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 bread-earner which has left the family in penury and without any means of livelihood.

In the case of State of U.P. and Others Vs. Paras Nath, , the Hon''ble Apex Court has held as under:

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.

We may, in this connection, refer to only one judgment of this Court in the case of Union of India v. Bhagwan Singh. In this case, the application for appointment on similar compassionate grounds was made twenty years after the railway servant''s death. This Court observed:

The reason for making compassionate appointment, which is exceptional, is to provide immediate financial assistance to the family of a government servant who dies in harness, when there is no other earning member in the family.

In the case of Punjab National Bank and Others Vs. Ashwini Kumar Taneja, , the Apex Court after relying on its earlier judgment given in the case of State of U.P. and Others Vs. Paras Nath, has held that 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 and to alleviate the distress of the family.

In the case of Steel Authority of India Ltd. Vs. Madhusudan Das and Others, the Apex Court in para 19 has held as under:

In Mohan Mahto Vs. Central Coal Field Ltd. and Others, , this Court observed:

In Mohan Mahto Vs. Central Coal Field Ltd. and Others, this Court observed: (SCC p. 165, paras 6-8)

An employee of a State enjoys a status. Recruitment of employees of the State is governed by the rules framed under a statute or the proviso appended to Article 309 of the Constitution of India. In the matter of appointment, the State is obligated to give effect to the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. All appointments, therefore, must conform to the said constitutional scheme. This Court, however, while laying emphasis on the said proposition carved out an exception in favour of the children or other relatives of the officer who dies or who becomes incapacitated while rendering services in the Yogender Pal Singh and others Vs. Union of India others, .

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 breadearner. 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.

In the case of Sudhir Gupta Vs. General Manager (H.R.D.), Central Bank of India and Another, , this Court has held as under:

Besides, the deceased employee died in 2001 and petitioner''s family is maintaining itself till date and 8 years have already elapsed. The purpose of compassionate appointment is not for providing a post against post. It is not reservation in service by virtue of succession. If the family is not in penury and capable to maintain itself for a long time, no mandamus would be issued after a long time for providing compassionate appointment to a legal heir of the deceased employee. Recently in Santosh Kumar Dubey Vs. State of U.P. and Others, and Eastern Coalfields Ltd. Vs. Anil Badyakar and Others, the Apex Court has declined to issue any mandamus after expiry of a long time. In Santosh Kumar Dubey (Supra) after considering the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 the Apex Court said that after five years if family of the deceased has been able to survive, no mandamus or direction should be issued for giving compassionate appointment.

In view of the abovesaid settled legal proposition of law on the point in issue and taking into consideration the facts of the present case that the petitioner''s father died in the year 1997 and thereafter as per the own case of the petitioner an application was moved by him on 01.07.2004 after attaining the age of majority. The application was moved by the petitioner for considering his case for giving compassionate appointment after more than 7 years from the death of his father and since then now more than 13 years have passed and during the intervening period he is maintaining his family. So, keeping in view the said facts, and taking into consideration the purpose of compassionate appointment i.e. to mitigate the sudden crisis and to provide financial assistance to the family of a deceased government servant who died in harness when there is no other earning member in the family. I do not find any justification and reason to interfere in the matter in question.

For the foregoing reasons, the present writ petition lacks merit and is accordingly dismissed.

No order as to costs.