1. Heard Sri B.D. Mishra holding brief of Sri D.V. Jaiswal learned Counsel for the petitioner and learned standing counsel for the respondents. The petitioners have challenged the orders dated 31st July 2002, 3rd September 2002 and 10th October 2002, whereby the application for compassionate appointment on the post of Bandi Rakshak has been rejected by the D.I.G. (Present Headquarter) U.P., since the said claim was made by the petitioner after more than 16 years of the death of the deceased.
2. The brief factual matrix of the case is that Sri Brij Pal Singh, Bandi Rakshak died on 16th April 1984. Since the petitioner No. 1 was admittedly minor on the said date, therefore, it appears that no application was filed by any legal heir of Late Brij Pal Singh claiming appointment under U.P. Government Servant (dying in harness) Rules, 1974.
3. It appears that for the first time Sri Ajay Pal Singh petitioner No. 1 submitted application on 18th January 2001, seeking appointment under dying in harness Rules 1974, which was rejected by the State Government vide order dated 31st July 2002, (Annexure No. 7) of the Writ Petition. The said order has been communicated by the letter dated 3rd September 2002, sent by D.I.G. Region, Headquarter U.P. (Annexure No. 8) and letter dated 8th October 2002 of Superintendent District Bijnor (Annexure No. 9). The learned Counsel for the petitioner submits that after the death of the father of the petitioner No. 1, he passed High School on 10th June 1997 and Intermediate on 24th June 2000, thereafter he is entitled for consideration for compassionate appointment under dying in harness Rules. He also submits that even if an application is filed after more than 5 years, the same could not have been rejected being barred by time since under the Rules, the respondents have to condone the delay. In support of the said contention he has relied upon the judgment of this Court in Sri Ram Pandey v. Senior S.P. 2001 (3) ESC 148.
4. Learned Standing Counsel, however, submits that there is no error in the orders passed by the respondents and the petitioners is not entitled for claiming compassionate appointment under the Rules.
5. Heard learned Counsel for the parties and perused the record. The provisions pertaining to compassionate appointment under dying in harness Rules have been made to provide immediate financial assistance to the family of deceased Government servant who has left the entire family in sudden financial crisis on account of sudden death.
6. The appointment of compassionate ground is based on the premises that the applicant is dependant on the deceased employee. Strictly such a claim may not 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 deceased employee who has served the State and dies while in service. The compassionate appointment cannot be claimed as a matter of right.
7. It was noted in Umesh Kumar Nagpal v. State of Haryana , that as a rule the appointments in public services Should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not a source of recruitment but merely an exception to the aforesaid requirement. Taking into consideration, the fact of the death of the employee while in service leaving his family without any means of livelihood, the object is to enable the family to get over sudden financial crisis. This follows that the appointment under compassionate grounds should not be delayed since the purpose of providing compassionate appoinment is to mitigate the hardship due to death of the sole bread earner in the family.
8. In the case of Sanjay Kumar v. State of Bihar , the petitioner was 10 years old when his mother who was working as Excise Constable, died. After attaining majority, he submitted application on 2nd June 1988 which was rejected by the Government being barred by time. The High Court allowed the writ petition filed on behalf of petitioner relying upon a judgment of Hon'ble Single Judge of the Patna High Court in Chandra Bhusan v. State 1997 (1) PLJR 626 wherein it was held that the right of compassionate appointment cannot be defeated on the ground of delay which was beyond the control of the applicant. The reliance was also placed on the Apex Court's judgment in Director of Education v. Pushpendra Kumar 1998 AIR SCW 2122 : 1998 Lab IC 2123 : (1998) 2 Pat LJR (SC) 181. However, the Apex Court rejecting the contention of the petitioner, held in para 3 of the judgment as follows:
We are unable to agree with the submissions 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 2.6.1988, 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. (para 3)
9. A similar issue came up for consideration before the Apex court in the case of Director of Defence Metal Research Laboratory and Ors. v. G. Murty , wherein the respondent was two years old at the time of death of his father and applied for compassionate appointment upon attaining the age of majority. The Apex court held that the writ petitioner and his family had coped without the compassionate appointment for about 18 years. There was no warrant in such circumstances for directing writ petitioner's appointment on compassionate basis.
10. A Division Bench of this Court in Special appeal No. 295 of 2000 Birendra Pratap Vishwakarma v. The Chief Medical officer Ballia and Ors. , decided on 6th February 2006, held as under:
If the family or the dependent of the deceased employee or the dependent of the deceased can sustain themselves without any employment or after getting compassionate appointment on a particular post for sufficiently long time that would mean that crises is over and in case they desire to get appointment on a post of Higher status it is always open to them to compete with other persons for public employment in accordance with law but right to claim such higher status under the Dying-in-Harness Rules is not permissible.
11. To the same effect is the view taken by this Court in the case of Ramesh Singh v. State of U.P. and Ors. Writ Petition No. 74086 of 2005, decided on 8th December 2005, wherein it has held:
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.
12. The case of Sri Ram Pandey (Supra) relied by the learned Counsel for the petitioner also reiterates the same view as is apparent from the following:
Our courts in the cases of (Director of Education (Basic), , held that scheme contemplating dying in harness is to meet emergent crises and it shall not be proper to give belated appointment. However, by passage of time and 'experience the Court expanded the theory of compassionate appointment by providing that no rigid rule of limitation should be applied in the matter of compassionate appointment and such a claim may be considered, in the light of the facts and circumstances of each case even if such a claim is being made belatedly. This gave an occasion to the State Government for issuing Government order providing for reference of cases to the Government for seeking approval before making compassionate appointment in case the same was being made beyond five years of the death of the employee in question. No Rule and/or order or decision to the know/edge of this Court lays down that compassionate appointment is to be made even if the family of the deceased employee is not in distress. In other words, compassionate appointment cannot be justified only on the ground that some employee of the State Government or State Authority/instrumentality has died. The condition precedent is not death of an incumbent in service, but also existence of distress of, the family requiring a helping hand by providing compassionate appointment. (Para 8)
13. Thus the judgment relied upon by the learned Counsel for the petitioner, infact negatives the contention instead of helping him. In these circumstances and in the conspectus of the entire facts, the claim of the petitioner for compassionate appointment after 16 years of the death of his father cannot be sustained.
14. In the result, the writ petition fails and is accordingly dismissed.