Dismissed

Neetu Rani v. State of Up and 2 Others

Allahabad HC16 May 2018SPLA/451/2018

Case brief

AI extract

What is this about?

This Special Appeal challenges the rejection of a compassionate appointment petition filed by a widow twenty years after her husband's death, involving her minor son. The Court held that compassionate appointments, intended to alleviate sudden financial crises, are an exception to normal recruitment and cannot be made after a prolonged lapse of time if the family could manage during that period, s

What the court decided

AI extract

Neetu Rani Vs State of Up and 2 Others — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 39 Case :- S PECIAL APPEAL No. - 451 of 2018 Appellant :- Neetu Rani Respondent :- State Of Up And 2 Others Counsel for Appellant :- Ram Prakash Rai Counsel for Respondent :- C.S.C.,Sunil Kumar Misra

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Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.

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The dismissal of the writ petition that was filed for quashing the orders dated 19 December 2017 and 3 February 2018 denying compassionate appointment to the appellant as also to her son Naveen Raghav has led to the filing of this Special Appeal under Chapter VIII Rule V of the High Court Rules 1952.

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It transpires that the husband of the appellant died-in-harness on 12 December 1997 while working as a Conductor in the U.P. State Road Transport Corporation. The appellant filed Writ Petition No. 17502 of 2000 for providing compassionate appointment. However, during the pendency of the writ petition, the appellant moved an application dated 1 October 2002 with a prayer that in case she was not considered eligible for the post of Booking Clerk, she may be offered a Class IV post. An alternative prayer was also made that her son, who was a minor aged about 6 years, may be appointed on compassionate ground as a Booking Clerk after he attained majority. The writ petition was disposed of on 9 November 2017 with a direction to the Regional Manager, Ghaziabad to take a decision on the application dated 1 October 2002. By orders dated 3 February 2018 and 19 December 2017 respectively the appointment of appellant and her son on compassionate grounds were rejected. These two orders were assailed by the appellant in the writ petition out of which this Special Appeal arises.

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The learned Judge while considering the claim of the appellant observed that though the writ petition was filed in 2000 but no efforts were made for 17 years by the appellant to expedite the hearing of the writ petition. In so far as the son of the appellant is concerned, the learned Judge

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observed that the application was moved for the first time in 2017 after the death of his father in 1997.

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Learned counsel for the appellant contended that the petition had been filed in time and that the finding recorded in the order dated 3 February 2018 that the appellant cannot be offered appointment because there is no vacant post of Class IV employee is incorrect. It is his contention that there is a vacant post and, therefore, the appellant should be offered appointment on compassionate ground.

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It transpires from the records and also from the impugned order that the appellant had earlier been offered appointment as a Booking Clerk by order dated 24 December 1999 but she did not join on the said post. The appellant has stated that she was not eligible for the said post and it is for this reason that the appellant had moved an application for appointment on a Class IV post.

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The issue that arises for consideration is that as to whether compassionate appointment should be provided to the appellant in 2018 on the death of her husband in 1997. The appellant contends that the writ petition was filed in 2000 and, therefore, it cannot be said that there was any delay in making a claim for compassionate appointment. The writ petition was filed in 2000 but no efforts were actually made by the appellant for expediting the hearing of the writ petition.

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The Supreme Court in State of J&K & Ors., Vs. Sajad Ahmed Mir has observed that even if an application for seeking compassionate appointment was moved in time but substantial period of time has expired during the pendency of the petition, it will not be appropriate for the Court to issue any direction for appointment on compassionate ground and the observations are:-

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"In the case on hand, the father of the applicant died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was

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dismissed by the learned single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. The said fact was indeed a relevant and material fact which went to show that the family survived in spite of death of the employee."

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In the present case, there is nothing on record to indicate that the appellant moved any application after 2000 for hearing of the writ petition. The appellant has been able to maintain the family for more than 20 years after death of her husband.

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What needs to be noticed is that though the claim for appointment on compassionate grounds cannot be upheld on the touchstone of Article 14 or 16 of the Constitution but such a claim can be considered to be reasonable and permissible on the basis of sudden crisis occurring in the family of the employee who dies while in service. The appointment on compassionate grounds, therefore, cannot be claimed as a matter of right but can be claimed only in terms of the Rules or Regulations framed in this regard and that the Courts cannot confer ''benediction impelled by sympathetic consideration' dehors the Rules. Such an appointment, therefore, should be immediately provided to a member of the family to redeem the sudden financial crisis in the family.

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The contention of the learned counsel for the appellant is that he was a minor when his father died in harness and, therefore, he moved the application only when he attained majority.

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The Supreme Court in Commissioner of Public Instructions & Ors. Vs. K.R. Vishwanath¹ , dealt at length with the object regarding compassionate ground and observed:-

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"As was observed in State of Haryana and Ors. v. Rani Devi & Anr. (AIR 1996 SC 2445), it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was

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1 2005 AIR SCW 4102

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dependant 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 deceasedemployee. In Rani Devi's case (supra) it was held that 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 Life Insurance Corporation of India v. Asha Ramachandra Ambekar (Mrs.) and Anr. (1994 (2) SCC 718), it was pointed out that 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 contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. (1994 (4) SCC 138), that as a rule in public service appointment should be made strictly on the basis of open invitation of application 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 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."

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In Smt. Sushma Gosain and Ors. v. Union of India and Ors. 1989 (4) SCC 468, it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the breadearner 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. The above view was reiterated in Phoolwati (Smt.) v. Union of India and Ors., 1991 Supp (2) SCC 689, and Union of India and Ors. v. Bhagwan Singh 1995 (6) SCC 476. In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. 1998 (5) SCC 192, it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely 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, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased-employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision."(emphasis supplied)

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In Umesh Kumar Nagpal Vs. State of Haryana & Ors.² the Supreme Court observed:-

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2 (1994) 4 SCC 138

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"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 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 posts in Classes III and IV are the lowest posts in nonmanual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destination and to help it get over the emergency.................. For these very reasons, the compassionate employment cannot be granted after a lapse of 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 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."

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(emphasis supplied)

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The claim of the son of the appellant for seeking compassionate appointment has also been rightly rejected. It is not in dispute that the son of the appellant was a minor aged about 6 years at the time of the death of the father. The application claiming compassionate appointment was filed on 23 November 2017 when his father died on 12 December 1997.

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The Supreme Court has time and again dealt with the issue where the applicants who were minor at the time of death of the deceased who died in harness sought appointment on compassionate ground after attaining the age of majority.

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It has been emphasized by the Supreme Court that a minor cannot claim appointment on compassionate ground unless the Scheme itself

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envisages that as and when such a minor becomes a major, he can be appointed without any time consciousness or time limit.

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In Haryana State Electricity Board & Anr., Vs. Hakim Singh³ , the Supreme Court examined the case of a widow who had applied after a period of 14 years for appointing her son who was only four years old when his father died in harness contending that she could make the application only when her son attained majority. The High Court had allowed the writ petition but while allowing the Appeal, the Supreme Court observed:-

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"We are of the view that the High Court has erred in over stretching the scope of the compassionate relief provided by the Board in the circulars as above. It appears that High Court would have treated the provision as a lien created by the Board for a dependent of the deceased employee. If the family members of the deceased employee can manage for fourteen years after his death one of his legal heirs cannot put forward a claim as though it is a line of succession by virtue of a right of inheritance. The object of the provisions should not be forgotten that it is to give succor to the family to tide over the sudden financial crisis be-fallen the dependents on account of the untimely demise of its sole earning member.

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There is, therefore, no illegality in the impugned judgement which may call for any interference.

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The Special Appeal is, accordingly, dismissed.

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Order Date :- 16.05.2018 Arvind

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(Dilip Gupta, J.)

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(Neeraj Tiwari, J.)

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3 JT 1997 (8) SC 332