# Arti v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 1065
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-15
- **Case number:** Spl Appl. No. 278 of 2021
- **Bench:** Rajesh Bindal, C.J. Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arti-v-state-of-u-p-ors-46478
- **Pages:** 4

## Headnote

A. Service Law - Compassionate Appointment -
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. If the family had sufficient
means to carry on its affairs for long time, in
such
a
case
compassionate
appointment
cannot be made. The purpose of compassionate
appointment is not to provide employment by
succession, it is not a source of recruitment but
it is to meet immediate hardship arose due to
sudden demise of sole bread earner of the
family leaving behind the legal heirs in penury.
The purpose is not for providing a post against
post. It is not reservation in service by virtue of
succession. (Para 6 to 11)

Late Sri Jagdish Narayan Mishra (Assistant Teacher,
L.T. Grade) was survived by four persons, his wife,
his son Ashutosh Mishra, his daughter Anju Devi and
appellant Arti Mishra. In respect of the appellant, it is
recorded that she has got married 15 years ago and
her husband is employed, and despite opportunity,
learned counsel for the appellant could not establish
from the record the penury condition of the appellant
or the family of the deceased so as to entitle her for
consideration of her request for compassionate
appointment sympathetically. He also could not
satisfy the Court as to why the application seeking
compassionate appointment was made at such a
belated stage. (Para 4, 5)

Compassionate appointment is an exception to
the general rule of appointment in the public
services.
The
whole
object
of
granting
compassionate appointment is thus to enable the
family to tide over the sudden crisis. (Para 11)

Appeal dismissed. (E-4)
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
Precedent followed:

## Text

11 All. Arti Vs. State of U.P. & Ors.
1065

(iii)
Unmarried
and
widowed
daughters;"

10. Validity of the aforesaid provision,
whereby married daughters were excluded for
consideration for appointment on compassionate
basis, was subject matter of challenge before this
Court in Smt. Vimla Srivastava's case (supra).
This Court held that exclusion of married
daughter from the ambit of expression of
"family" as defined under Rule 2(c) of the Rules
is illegal and unconstitutional, hence was struck
down. Special Leave Petition against the
aforesaid judgment was dismissed by Hon'ble
Supreme Court vide order dated July 23, 2019 in
Neha Srivastava's case (supra). Meaning
thereby, after exclusion of married daughter for
being eligible for appointment on compassionate
basis having been struck down by this Court,
even
married
daughters
are
eligible
for
appointment on compassionate basis, and hence,
cannot be treated ineligible, as such, as this
Court has not framed any law rather has merely
declared the law.

11. Considering the fact that the
respondent is in service for the last more than 15
years and, as noticed above, there was no
concealment of fact as such in the application
filed by her seeking compassionate appointment,
we do not find that any ground is made out to
interfere in the order passed by learned Single.
The appeal is, accordingly, dismissed.
----------
(2021)12ILR A1065
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2021

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Spl Appl. No. 278 of 2021

Arti ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Ashutosh Mani Tripathi, Sri D.S.M. Tripathi

Counsel for the Respondents:
Sri P.K. Ganguly

A. Service Law - Compassionate Appointment -
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. If the family had sufficient
means to carry on its affairs for long time, in
such
a
case
compassionate
appointment
cannot be made. The purpose of compassionate
appointment is not to provide employment by
succession, it is not a source of recruitment but
it is to meet immediate hardship arose due to
sudden demise of sole bread earner of the
family leaving behind the legal heirs in penury.
The purpose is not for providing a post against
post. It is not reservation in service by virtue of
succession. (Para 6 to 11)

Late Sri Jagdish Narayan Mishra (Assistant Teacher,
L.T. Grade) was survived by four persons, his wife,
his son Ashutosh Mishra, his daughter Anju Devi and
appellant Arti Mishra. In respect of the appellant, it is
recorded that she has got married 15 years ago and
her husband is employed, and despite opportunity,
learned counsel for the appellant could not establish
from the record the penury condition of the appellant
or the family of the deceased so as to entitle her for
consideration of her request for compassionate
appointment sympathetically. He also could not
satisfy the Court as to why the application seeking
compassionate appointment was made at such a
belated stage. (Para 4, 5)

Compassionate appointment is an exception to
the general rule of appointment in the public
services.
The
whole
object
of
granting
compassionate appointment is thus to enable the
family to tide over the sudden crisis. (Para 11)

Appeal dismissed. (E-4)
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
Precedent followed:

1. Mumtaz Yunus Mulani Vs St. of Mah. & ors., (2008)
11 SCC 384 (Para 7)

2. Santosh Kumar Dubey Vs St. of U.P. & ors., JT
2009 (8) SCC 135 (Para 8)

3. M/s Eastern Coalfields Ltd. Vs Anil Badyakar & ors.,
JT 2009 (6) SC 624 (Para 8)

4. St. of H.P. & anr. Vs Shashi Kumar, (2019) 3 SCC
653 (Para 9)

5. Umesh Kumar Nagpal Vs St. of Har., (1994) 4 SCC
138 (Para 9)

6. The St. of U.P. & ors. Vs Premlata, Civil Appeal No.
6003, decided on 05.10.2021 (Para 11)

Present Special Appeal assails judgment and
order dated 24.09.2021, passed by Hon'ble Mr.
Pankaj Bhatia, J.

(Delivered by Hon'ble Rajesh Bindal, C.J.)

1. This intra-Court appeal filed under
Chapter VIII Rule 5 of the Allahabad High
Court Rules, 1952, is directed against the order
dated 24.09.2021 passed by learned Single
Judge dismissing the Writ Petition.

2. The facts, in brief, are that the
appellant's father, Late Jagdish Narain Mishra,
was working as Assistant Teacher (L.T. Grade)
in Sri Bhola Nath Shanti Niketan Inter College,
Belwa Bazar, Mariahu, Jaunpur (hereinafter
referred to in short as "College"). He died during
service on January 21, 2005, leaving behind his
wife, son Ashutosh Mishra, and two daughters,
Anju and the appellant, Arti. At that time the
appellant claimed to be unmarried.

However, it appears that subsequently the
appellant got married sometime in the year
2006-07. As per own case of the appellant, as
stated in Annexure-5 to the writ petition, she
applied for compassionate appointment on
October 24, 2008 under the U.P. Recruitment of
Dependents of Government Servants (Dying in
Harness) Rules, 1974 (hereinafter referred to in
short as "the Rules"). The application of the
appellant seeking compassionate appointment
was rejected by the District Inspector of
Schools, Jaunpur (hereinafter referred to in short
as "DIOS") vide order dated September 9, 2011/
December 13, 2012 on the ground that after
examining the matter, it has come to his notice
that the applicant, Arti, is married. Aggrieved
against the same the appellant filed Writ Petition
(Writ-A) No. 21185 of 2013 challenging the
aforesaid order passed by DIOS. The learned
Single Judge finding that despite being married,
the petitioner is not excluded from the definition
of the family as defined under Rule 2(c) of the
Rules, allowed the writ petition vide order dated
January 06, 2020 and set aside the aforesaid
order passed by the DIOS. The learned Single
Judge further directed the DIOS to reconsider
the
appellant's
claim
for
compassionate
appointment and observed that the candidature
of the petitioner would not be ignored only for
the reason that she is a married daughter.
Pursuant to the aforesaid order dated January 06,
2020, the DIOS reconsidered the claim of the
appellant regarding compassionate appointment
and rejected the same vide order dated
29.12.2020. Feeling aggrieved, appellant filed
Writ Petition (Writ-A) No. 2045 of 2021, which
has been dismissed by learned Single Judge vide
order dated 24.09.2021 affirming the order
passed by DIOS, which is under challenge.

4. The learned Single Judge, while
dismissing the writ petition of the appellant, has
noticed the reasons given by of DIOS in the
order rejecting the claim of the appellant for
compassionate appointment and observed as
under:

"A perusal of the impugned order
records that late Sri Jagdish Narayan Mishra was
survived by four persons, his wife, his son
11 All. Arti Vs. State of U.P. & Ors.
1067
Ashutosh Mishra, his daughter Anju Devi and
petitioner Arti Mishra. In respect of the
petitioner, it is recorded that she has got married
15 years ago and her husband is employed, and
finding that no hardship existed so as to consider
the case for appointment of the petitioner, the
application was rejected."

5. Despite repeated opportunity, learned
counsel for the appellant could not point out
any illegality, irregularity or infirmity in the
aforesaid findings recorded by learned Single
Judge. Moreover, even before this Court,
despite opportunity, learned counsel for the
appellant could not establish from the record
the penury condition of the appellant or the
family of the deceased so as to entitle her for
consideration
of
her
request
for
compassionate appointment sympathetically.
He also could not satisfy the Court as to why
the
application
seeking
compassionate
appointment was made at such a belated
stage.

6. It is well settled that if the family had
sufficient means to carry on its affairs for
long time, in such a case compassionate
appointment cannot be made. The purpose of
compassionate appointment is not to provide
employment by succession but it is to meet
immediate hardship arose due to sudden
demise of sole bread earner of the family
leaving behind the legal heirs in penury.

7. In Mumtaz Yunus Mulani Vs. State of
Maharashtra and others (2008) 11 SCC 384,
the Court held that now a well settled principle
of law is that appointment on compassionate
ground is not a source of recruitment. The
reason for making such a benevolent scheme by
the State or public sector undertakings is to see
that the dependants of the deceased are not
deprived of the means of livelihood. It only
enables the family of the deceased to get over
sudden financial crises.

8.

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. In Santosh
Kumar Dubey Vs. State of U.P. and others JT
2009 (8) SC 135 and M/s Eastern Coalfields
Ltd. Vs. Anil Badyakar and others JT 2009(6)
SC 624 the Apex Court has declined to issue any
mandamus after expiry of a long time. In
Santosh Kumar Dubey Vs. State of U.P.'s
case (upra) after considering the Rules the Apex
Court said that if family of the deceased has
been able to survive, after five years no
mandamus or direction should be issued for
giving compassionate appointment.

9. Recently, the Supreme Court in State of
Himachal Pradesh and Anr. vs. Shashi
Kumar reported in (2019) 3 SCC 653 had an
occasion to consider the object and purpose of
appointment on compassionate ground. The
Court referring to earlier judgment in Umesh
Kumar Nagpal v. State of Haryana, (1994) 4
SCC 138 observed as under:

"21. ... it is necessary to note that the nature
of
compassionate
appointment
had
been
considered by this Court in Umesh Kumar
Nagpal v. State of Haryana [ (1994) 4 SCC 138 :
1994 SCC (L&S) 930]. The principles which
have been laid down in Umesh Kumar Nagpal
[Umesh Kumar Nagpal v. State of Haryana,
(1994) 4 SCC 138 : 1994 SCC (L&S) 930] have
been subsequently followed in a consistent line
of precedents in this Court. These principles are
encapsulated in the following extract:

"2. ... As a rule, appointments in the public
services should be made strictly on the basis of
open invitation of applications and merit. No other
mode of appointment nor any other consideration
is permissible. Neither the Governments nor the
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
public authorities are at liberty to follow any other
procedure or relax the qualifications laid down by
the rules for the post. However, to this general rule
which is to be followed strictly in every case, there
are some exceptions carved out in the interests of
justice and to meet certain contingencies. One such
exception is in favour of the dependants of an
employee dying in harness and leaving his family
in penury and without any means of livelihood. In
such cases, out of pure humanitarian consideration
taking into consideration 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 in the rules to provide gainful employment
to one of the dependants of the deceased who may
be eligible for such employment. The whole object
of granting compassionate employment is thus to
enable the family to tide over the sudden crisis. ...
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. (emphasis added)

10. The Court further referring to its earlier
decision in Mumtaz Yunus Mulani Vs. State of
Maharashtra's case (surpa), in para 26,
observed:

"26. The judgment of a Bench of two Judges
in Mumtaz Yunus Mulani v. State of
Maharashtra (2008) 11 SCC 384 has adopted the
principle that appointment on compassionate
grounds is not a source of recruitment, but a means
to enable the family of the deceased to get over a
sudden financial crisis. The financial position of
the family would need to be evaluated on the basis
of the provisions contained in the scheme."

11. Hon'ble Supreme Court very recently in
Civil Appeal No. 6003 of 2021 (The State of
Uttar Pradesh and others Vs. Premlata) decided
on October 5, 2021, in para 10 of the judgment,
referring to the above authorities on the subject,
said as under:

"10. Thus as per the law laid down by this
court in the aforesaid decisions, compassionate
appointment is an exception to the general rule of
appointment in the public services and is in
favour of the dependents of a deceased dying in
harness and leaving his family in penury and
without any means of livelihood, and in such
cases, out of pure humanitarian consideration
taking into consideration 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 in the rules to provide gainful employment
to one of the dependants of the deceased who
may be eligible for such employment. The whole
object of granting compassionate employment is
thus to enable the family to tide over the sudden
crisis.

 (emphasis added)

12. Taking into account the above binding
precedents and in view of the discussions made
hereinabove, we do not find any error in the
order passed by learned Single Judge, impugned
herein, so as to warrant interference.

13. The appeal lacks merits and is,
accordingly, dismissed.
----------
(2021)12ILR A1068
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.11.2021

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

First Appeal From Order No. 71 of 2015

Dayal & Anr. ...Appellants
Versus
Sanjeev Batra & Anr. ...Respondents