# Anand Singh v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 1006
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-08-30
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anand-singh-v-state-of-u-p-and-others-41908
- **Pages:** 7

## Headnote

C.S.C.

U.P.
Recruitment
of
Dependent
of
government servant( dying in harness)
rules
1974-Rule-5-compassionate
appointment-claim made after 7 years of
death-govt. Already refused to condone
the delay on ground widow already
getting pension-sufficient amount to
meet financial crisis-held-can not be
claimed as matter of right-guide lines
issued by Apex Court in B.P. Sarkar Case
be strictly followed.

Held: Para 3

I do not find any error in the impugned
order. The claim of the petitioner for
compassionate appointment can not be
considered now after eight years. The
petitioner is not able to establish the
financial
crises
and
facing
undue
hardship and how they have managed
their
finances
upto
now.
The
compassionate appointment is exception
to the general rules of recruitment and
therefore, it has to be considered strictly
in accordance to the rules and principles
laid down by this Court.
Case law discussed:
(1989) 4 SCC 468; (1994) 4 SCC 138; (1996) 1
SCC 301; (1997) 11 SCC 390; (1998) 9 SCC
485; (1998) 5 SCC 192; (1998) 2 SCC 412;
(1998) 5 SCC 452; (2000) 7 SCC 192; (1998) 5
SCC 192; (2004) 7 SCC 265; (2004) 12 SCC
487; (2004) 3 UPLBEC 2534 (SC): (2004) 7
SCC 721; (2006) 5 SCC 766; (2006) 7 SCC
350; (2008) 1 UPLBEC 464 (SC): (2007) 8 SCC
148; [2008 (2) ESC 273 (SC)]; (2011) 4 SCC209

## Text

1006 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

9. Accordingly the orders dated
15.12.2010 and 8.6.2011 passed by the
Commissioner as also the order passed by
the S.D.M. dated 25.9.2007 are set aside
and the writ petition is disposed of
accordingly without prejudice to the rights
of either of the parties to contest the matter
before the appropriate forum in accordance
with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2011

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No.49837 OF 2011

Anand Singh

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ramesh Chand Tiwari

Counsel for the Respondents:
C.S.C.

U.P.
Recruitment
of
Dependent
of
government servant( dying in harness)
rules
1974-Rule-5-compassionate
appointment-claim made after 7 years of
death-govt. Already refused to condone
the delay on ground widow already
getting pension-sufficient amount to
meet financial crisis-held-can not be
claimed as matter of right-guide lines
issued by Apex Court in B.P. Sarkar Case
be strictly followed.

Held: Para 3

I do not find any error in the impugned
order. The claim of the petitioner for
compassionate appointment can not be
considered now after eight years. The
petitioner is not able to establish the
financial
crises
and
facing
undue
hardship and how they have managed
their
finances
upto
now.
The
compassionate appointment is exception
to the general rules of recruitment and
therefore, it has to be considered strictly
in accordance to the rules and principles
laid down by this Court.
Case law discussed:
(1989) 4 SCC 468; (1994) 4 SCC 138; (1996) 1
SCC 301; (1997) 11 SCC 390; (1998) 9 SCC
485; (1998) 5 SCC 192; (1998) 2 SCC 412;
(1998) 5 SCC 452; (2000) 7 SCC 192; (1998) 5
SCC 192; (2004) 7 SCC 265; (2004) 12 SCC
487; (2004) 3 UPLBEC 2534 (SC): (2004) 7
SCC 721; (2006) 5 SCC 766; (2006) 7 SCC
350; (2008) 1 UPLBEC 464 (SC): (2007) 8 SCC
148; [2008 (2) ESC 273 (SC)]; (2011) 4 SCC209

(Delivered by Hon'ble Rajes Kumar, J.)

1. The petitioner's father died in the
year 1999 in harness. At that time the
petitioner was minor. The petitioner
applied for compassionate appointment on
01.12.2007,
after
eight
years.
The
limitation for moving the application is
five years. The State Government has
only power to condone the delay and
relax the period. By the impugned order,
the State Government has refused to
condone the delay on the ground that the
petitioner's
mother
was
getting
the
pension and the pension amount is
sufficient to meet out the financial crises
and after eight years, it can not be said
that the petitioner is facing financial
crises.

2. Heard learned counsel for the
petitioner and learned Standing Counsel.

3. I do not find any error in the
impugned order. The claim of the
petitioner for compassionate appointment
can not be considered now after eight
years. The petitioner is not able to
establish the financial crises and facing
2 All] Anand Singh V. State of U.P. and others

1007
undue hardship and how they have
managed their finances upto now. The
compassionate appointment is exception
to the general rules of recruitment and
therefore, it has to be considered strictly
in accordance to the rules and principles
laid down by this Court.

4. Rule 5 of the U.P. Recruitment of
Dependants
of
Government
Servant
(Dying in Harness) Rules, 1974 provides
for recruitment to a member of the family
of the deceased which reads as follows:

"5. Recruitment of a member of
the family of the deceased-(1) In case a
Government servant dies in harness
after the commencement of these rules
and
the
spouse
of the
deceased
Government servant is not already
employed
under
the
Central
Government or a State Government or
a Corporation owned or controlled by
the Central Government or a State
Government, one member of his family
who is not already employed under the
Central
Government
or
a
State
Government or a Corporation owned
or
controlled
by
the
Central
Government or a State Government
shall, on making an application for the
purposes,
be
given
a
suitable
employment in Government service on
a post except the post which is within
the purview of the Uttar Pradesh
Public
Service
Commission,
in
relaxation of the normal recruitment
rules, if such person-

(i)
fulfils
the
educational
qualifications prescribed for the post,

(ii) is otherwise qualified for
Government service, and

(iii) makes the application for
employment within five years from the
date of the death of the Government
servant:

Provided that where the State
Government is satisfied that the timelimit fixed for making the application
for employment causes undue hardship
in any particular case, it may dispense
with or relax the requirement as it may
consider necessary for dealing with the
case in a just and equitable manner.

(2) As far as possible, such an
employment should be given in the
same department in which the deceased
Government servant was employed
prior to his death."

Rule 5 (iii) of the aforesaid Rules,
1974 provides that the application for
employment should be given within five
years from the date of the death of the
Government servant. The proviso gives
power to the State Government to
dispense with or relax the requirement
in case if the State Government is
satisfied that the time limit fixed for
making the application for employment
causes
undue
hardship
in
any
particular case. Therefore, the time
limit fixed for making the application
can only be dispensed with or relaxed
when the applicant makes out a case of
undue
hardship.
Since
the
compassionate
appointment
is
the
exception to the general rule of
recruitment the undue hardship should
be construed strictly.

5. The law relating to compassionate
appointment is now being settled by the
Apex Court. Some of the judgements of
the Apex Court are referred herein above.
1008 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

6. In Smt. Susma Gosain and others
Vs. Union of India and others, (1989) 4
SCC, 468, the Supreme Court in the
matter of appointment of the petitioner as
Clerk in the office of Director General,
Border Road observed that, "purpose of
providing appointment on compassionate
ground is to mitigate the hardship due to
death of the bread earner in the family.
Such appointment should, therefore, be
provided immediately to redeem the
family in distress. It is improper to keep
such case pending for years. If there is no
suitable
post
for
appointment,
supernumerary post should be created to
accommodate the applicant."

7. In Umesh Kumar Nagpal v. State
of Haryana and others, (1994) 4 SCC,
138, the Supreme Court held that while
giving appointment in public service on
compassionate ground, it is to be
remembered that the appointment is in
relaxation to the general rules. One such
an exception is made in favour of the
dependants of the employee dying-inharness and leaving his family in penury
and without any means of livelihood on
pure humanitarian consideration, the
public authority has to examine the
financial condition of the family of the
deceased, and it is only if it is satisfied,
that but for the provisions of the
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 Supreme Court further held,
"the posts in Class-III and IV are the
posts
in
non-manual
and
manual
categories and hence they alone can be
offered on compassionate ground, the
object being to relieve the family, of the
financial destitution and to hold it get
over the emergency. The provisions of
employment in such lower posts by
making an exception to the rule is
justifiable and valid since it is not
discriminatory. The favourable treatment
given to such dependent 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 purposes. It must be remembered in
this connection that as against 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 has suddenly upturned. In para 6
the
Supreme
Court
held
that
compassionate appointment cannot be
granted after a laps 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.

8. In the case of Jagdish Prasad v.
State of Bihar, (1996) 1 SCC 301, the
Supreme Court observed:

"The very object of appointment
of
a
dependent
of the
deceased
employees who die-in-harness is to
relieve unexpected immediate hardship
and distress caused to the family by
sudden demise of the earning member
of the family."

9. In the case of MMTC Ltd. v.
Pramoda Dei, (1997) 11 SCC 390, it is
observed by the Supreme Court :
2 All] Anand Singh V. State of U.P. and others

1009

"As pointed out by this Court, the
object of compassionate appointment is
to enable the penurious family of the
deceased employee to tide over the
sudden financial crisis and not to
provide employment, and that mere
death of an employee does not entitle
his
family
to
compassionate
appointment."

10. In the case of S. Mohan v.
Government of T.N., (1998) 9 SCC 485,
the Court stated that:

"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 appointment cannot be
claimed and offered whatever the lapse
of time and after the crisis is over."

11. This Court has observed in
Director of Education (Secretary) v.
Pushpendra Kumar, (1998) 5 SCC 192:

"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 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. Since 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 by taking
away completely the right conferred by
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 provisions, does not unduly
interfere with the right of the 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
of
the
dependant of a deceased employee. In
Umesh Kumar Nagpal v. State of
Haryana, this Court has taken note of
the
object
underlying
the
rules
providing
for
appointment
on
compassionate grounds and has held
that 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."

12. In the case of State of U.P. v.
Paras Nath, (1998) 2 SCC 412, the Court
has held that:

"The
purpose
of
providing
employment to a dependant of a
Government servant dying-in-harness
in preference to anybody else, is to
mitigate the hardship caused the family
of the employee on account of his
unexpected death while still in service.
To alleviate the distress of the family,
1010 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

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."

13. In Haryana Public Service
Commission vs. Harinder Singh and
another, (1998) 5 SCC 452, the Supreme
Court
held
that
in
compassionate
appointment, on the death of a defence
personnel killed in 1991 Indo-Pak War,
the
respondent,
when
he
sought
appointment was Civil Engineer gainfully
employed at the time though on contract,
held, that whole idea of reservation is that
those, who are dependent for their
survival on men, who have lost their lives
or become disabled in the service of
nation, should not suffer. A person who
was gainfully employed could not be
termed as dependent of ex-serviceman.

14. In Sanjai Kumar v. State of
Bihar, (2000) 7 SCC, 192, the Supreme
Court
relying
upon
Director
of
Education (Secondary) v. Pushpendra
Kumar, (1998) 5 SCC 192, held that the
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 has left the family in penury and
without any means of livelihood. The
applicant was minor, when he made his
first application and was not eligible for
appointment. There cannot be reservation
of a vacancy till such time such petitioner
become major, after a number of years,
unless there is some specific provisions.
The
very
basis
of
compassionate
appointment is to seek that family gets
immediate relief. The petitioner was 10
years old, when his mother died while she
was working as Excise Constable. The
Supreme Court did not find merit in the
special leave petition against the decision
of the High Court in which the writ
petition was dismissed and the judgment
was affirmed by the Division Bench.

15. In the case of Punjab National
Bank v. Ashwini Kumar Taneja, (2004)
7 SCC 265, it was observed by the Court
that:

"it
is
to
be
seen
that
the
appointment on compassionate ground
is not a source of recruitment but
merely an exception to the requirement
regarding appointments being made on
open invitation of application on
merits. Basic intention is that on the
death of the employee concerned his
family is not deprived of the means of
livelihood. The object is to enable the
family to get over sudden financial
crisis."

16. In the case of National
Hydroelectric Power Corpn. v. Nanak
Chand, (2004) 12 SCC 487, the Court
has stated that:

"It
is
to
be
seen
that
the
appointment on compassionate ground
is not a source of recruitment but
merely an exception to the requirement
regarding appointments being made on
open invitation of application on
merits. Basic intention is that on the
death of the employee concerned his
family is not deprived of the means of
livelihood. The object is to enable the
2 All] Anand Singh V. State of U.P. and others

1011
family to get over sudden financial
crisis."

17. In General Manager (D & FB)
and others v. Kunti Tiwary and
another, (2004) 3 UPLBC 2534 (SC):
(2004) 7 SCC 721, the Supreme Court did
not find any error in the decision of the
bank which had taken a view that
financial condition of the family was not
penurious or without any means of
livelihood.
The
compassionate
appointment was denied on the ground
that it could not be said that the
respondents were living hand to mouth.

18. In the case of State of J. and K.
v. Sajad Ahmed Mir, (2006) 5 SCC 766,
the Court has held that:

"Normally, an employment in the
Government or other public sectors
should be open to all eligible candidates
who can come forward to apply and
compete
with
each
other.
It
is
consonance with Article 14 of the
Constitution.
On
the
basis
of
competitive merits, an appointment
should be made to public office. This
general rule should not be departed
from
except
where
compelling
circumstances demand, such as, death
of the sole breadwinner and likelihood
of the family suffering because of the
setback. Once it is proved that in spite
of the death of the breadwinner, the
family survived and substantial period
is over, there is no necessity to say
"goodbye" to the normal rule of
appointment and to show favour to one
at the cost of the interests of several
others ignoring the mandate of Article
14 of the Constitution."

19. In Union Bank of India and
others v. M.T.Latheesh, (2006) 7 SCC
350, the Supreme Court held that the
dependent of the deceased employee of
the bank making an application under the
scheme for appointment made in 1997, it
is not automatically become entitled to get
compassionate employment nor does the
possession of relevant qualification create
any vested right in his favour to get
appointed to a post specified by the
scheme. His right is limited to get
preferential treatment against the general
principal of appointment subject to the
discretion of the bank.

20.

In
Kendriya
Vidyalaya
Sangathan and others v. Dharmendra
Sharma, (2008) 1 UPLBEC 464 (SC):
(2007) 8 SCC 148, once again the
Supreme Court reminded that the Court
cannot direct compassionate appointment
contrary to the policy. The Kendriya
Vidyalaya Sangathan decided not to make
Group-D appointment and to award work
to contractors. It could not be compelled
to
make
compassionate
appointment
contrary to its policy."

21. In the case of Mumtaz Yunus
Mulani vs. State of Maharashtra and
others, reported in [2008 (2) ESC 273
(SC)], the Apex Court has held that the
claim for compassionate appointment was
made after 12 years of the death of the
deceased. The claim on compassionate
ground has been denied. It has been
observed that it is a settled principle of
law that appointment on compassionate
ground is not a source of recruitment. The
reason for making such a benevolent
scheme by the State or the Public Sector
Undertaking is to see that the dependants
of the deceased are not deprived of the
means of livelihood. It only enables the
1012 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

family of the deceased to get over the
sudden financial crisis.

22. In the case of Bhawani Prasad
Sonkar vs. Union of India and others,
reported in (2011) 4 SCC-209, the Apex
Court has held as follows:

"Thus, while considering a claim for
employment on compassionate ground,
the following factors have to be borne in
mind:

(i)
Compassionate
employment
cannot be made in the absence of rules
or
regulations
issued
by
the
Government or a public authority. The
request is to be considered strictly in
accordance with the governing scheme,
and no discretion as such is left with
any authority to make compassionate
appointment dehors the scheme.

(ii)
An
application
for
compassionate employment must be
preferred without undue delay and has
to be considered within a reasonable
period of time.

(iii)
An
appointment
on
compassionate ground is to meet the
sudden crisis occurring in the family on
account of the death or medical
invalidation of the breadwinner while
in service. Therefore, compassionate
employment cannot be granted as a
matter of course by way of largesse
irrespective of the financial condition of
the deceased/incapacitated employee's
family at the time of his death or
incapacity, as the case may be.

(iv) Compassionate employment is
permissible
only
to
one
of
the
dependants
of
the
deceased/incapacitated employee viz.
parents, spouse, son or daughter and
not
to
all
relatives,
and
such
appointments should be only to the
lowest category that is Class III and IV
posts."

23. In view of the law laid down by
the Apex Court, I do not find any merit in
the petition. The writ petition fails and is
dismissed.
---------