# Deepak Kumar v. State of U.P. &Ors

- **Citation:** (2019) 1 ILRA 786
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-05
- **Case number:** Writ-A No. 8681 of 2019
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-kumar-v-state-of-u-p-ors-44476
- **Pages:** 13

## Headnote

Rules,
1974
-
Appointment
on
Compassionate grounds- Claim of Petitioner
rejected by Respondent No.2 on the ground
of delay.

Appointment on Compassionate grounds- The
only justifiable ground for such appointments,
is to provide an employment to a member of
such family to tide over the immediate
financial crisis- Delay in making a claim on
compassionate grounds dilutes the case of
immediate financial penury and consequently
negates the entitlement for appointment on
compassionate
grounds.
Writ
petition
dismissed.

Case Law discussed/relied upon: -

## Text

_Characters 0–39,920 of 41,362. This is a partial read: ask again with offset=39920 for what follows._

786 INDIAN LAW REPORTS ALLAHABAD SERIES
beyond 10 years of passing the order of
retirement does not mean that its effect
stand wiped off and that the said entry by
itself is not sufficient to retire the officer
compulsory.

64. In Pyare Mohan Lal a single
entry touching to the integrity of the
officer was held to be enough to retire
him compulsory.

65. Now, we turn to examine the
validity of the order of the compulsory
retirement passed against the petitioner.

66.

In
this
connection,
the
submission is that the entire service
record of the petitioner was not taken into
account which would have otherwise
revealed that the petitioner had an
unblemished career and therefore, retiring
him prematurely is not legally tenable.

67. First of all, there is no material
on record to establish that the entire
service record of the petitioner was
notexamined by the screening Committee
in recommending for his compulsory
retirement. The screening Committee
constituted for pin pointing the officers
for compulsory retirement considered the
case of the petitioner in its meeting held
on 22.01.2013. The said Committee in
view of the fact that his integrity stood
withheld for the year 2007-08 and his
representation against the same had been
rejected coupled with the fact that he was
assessed as a poor officer in the said year
and as an average officer in the year
2011-12 on the basis of his over all
service record opined to retire him
compulsory.

68. The aforesaid recommendations
of the screening Committee were placed
before the full court of the High Court in
its meeting dated 02.02.2013 and upon
deliberation, it was finally resolved to
retire
the
petitioner
compulsorily.
Accordingly,
recommendations
were
made leading to the impugned office
order dated 01.03.2013 issued by the
Chief Secretary State of U.P.

69. In Rajendra Singh Verma
(Dead) (Supra) the Apex Court observed
that where before passing the orders of
compulsory retirement, the whole service
record of the officer is taken into
consideration by the screening Committee
and that the matter is deliberated by the
full court on the basis of the record of the
work, conduct, general reputation of the
officer and since the order of compulsory
retirement is not punitive in nature, the
evaluation
made
by
the
Screening
Committee/Full Court can neither be
termed as arbitrary or capricious nor can be
said to be so irrational so as to shock the
conscious of the court to warrant or justify
any interference.

70. In the view of the above, we are
of the opinion that it is not a case where
any arbitrary or irrationally decision has
been taken by the High Court on the
administrative side in recommending for
the
compulsory
retirement
of
the
petitioner and in retiring him so.

71. The Writ Petition as a whole
lacks merit and is accordingly dismissed
with no order as to costs.
----------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2019

BEFORE
THE HON'BLE AJAY BHANOT, J.
1 All. Deepak Kumar Vs. State of U.P. & Ors.
787
Writ-A No. 8681 of 2019

Deepak Kumar ...Petitioner
Versus
State of U.P. &Ors. ...Respondents

Counsel for the Petitioner:
Sri Pram Shankar Pandey

Counsel for the Respondents:
C.S.C.

A. U.P. Recruitment of Dependent of
Government Servant Dying in Harness
Rules,
1974
-
Appointment
on
Compassionate grounds- Claim of Petitioner
rejected by Respondent No.2 on the ground
of delay.

Appointment on Compassionate grounds- The
only justifiable ground for such appointments,
is to provide an employment to a member of
such family to tide over the immediate
financial crisis- Delay in making a claim on
compassionate grounds dilutes the case of
immediate financial penury and consequently
negates the entitlement for appointment on
compassionate
grounds.
Writ
petition
dismissed.

Case Law discussed/relied upon: -
1. Umesh Kumar Nagpal Vs. State of Haryana,
(1994) 4 SCC 138

2. Director of Education (Secondary) v.
Pushpendra Kumar, (1998) 5 SCC 192

3.
Mumtaz
Yunus
Mulani
v.
State
of
Maharashtra, (2008) 11 SCC 384

4. State of Haryana v. Ankur Gupta, (2003) 7
SCC 704

5. Bhawani Prasad Sonkar Vs Union of India
and Others, (2011) 4 SCC 209

6.of V. Sivamurthy Vs. State of Andhra
Pradesh, (2008) 13 SCC 730

7. Sanjay Kumar Vs. State of Bihar and Others,
2000 (7) SCC 192
8. Smt. Sonal Laviniya and another vs. Union
of India and another, 2003 (5) AWC 4070

9. Sanjeev Kumar Vs. Food Corporation of
India and Others, Writ A No. 11083 of 2018

10. Shiv Kumar Dubey Vs. State of U.P. 2014
(2) ADJ 312 (E-3)

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The claim of the petitioner for
appointment under the Dying in Harness
Rules/Compassionate grounds has been
rejected by order dated 26.09.2018 passed
by respondent no. 2, Director, Panchayat
Raj, U.P., Lucknow on the foot that the
application is highly belated and barred by
limitation.

2. Thus aggrieved, the petitioner
has
assailed
the
order
dated
26.09.2018 passed by respondent no.
2, Director, Panchayat Raj, U.P.,
Lucknow in the instant writ petition.

3. The petitioner has also prayed for
the following reliefs in the instant writ
petition:

"a. issue a writ, order or direction in
the
nature
of
certiorari
quashing
impugned order dated 26.09.2018 passed
by respondent no. 2.

b. Issue a writ, order or direction in the
nature of mandamus commanding and
directing the respondents to re-consider the
application of the petitioner for appointment
on the compassionate ground and time limit
for appointment may be dispensed with and
benefit or relaxation may be given."

4. The order dated 26.09.2018
impugned in the writ petition records that the
claim of the petitioner for appointment under
the Dying in Harness Rules was made five
788 INDIAN LAW REPORTS ALLAHABAD SERIES
years after the death of his father. The
application was found to be barred by
limitation. Accordingly, the order dated
26.09.2018 invalidated the claim of the
petitioner for appointment under the Dying-inharness Rules as applicable to the respondent
Gram Panchayat.

5. Sri Dharmendra Kumar Mishra,
learned counsel holding brief of Sri Prem
Shankar Pandey, learned counsel for the
petitioner submits that the claim of the
petitioner has been wrongly rejected. He could
not be appointed on compassionate grounds in
the immediate aftermath of the death of his
father as he was a minor at that point in time.
The petitioner had not secured requisite
educational qualifications in the period
proximate to the death of his father. The
petitioner cannot be penalized for any delay
on his part as he made the application for
appointment immediately after he attained
majority
and
passed
the
Intermediate
examination.

6. Learned Standing Counsel for the
State respondents submits that the claim of
the petitioner for the appointment on the
compassionate ground has rightly been
rejected by the respondent no. 2 on
26.09.2018. He submits that the delay in
making the appointment was not liable to be
condoned and the family of the petitioner did
not face any immediate financial crisis upon
the death of his father.

7. Heard learned counsel for the
petitioner and learned Standing Counsel
for the State.

8. Certain facts relevant for the
judgment are established beyond the pale
of dispute.

9. The father of the petitioner
namely Sri Keshavdev was a Gram
Panchayat
Adhikari,
Block
Chhata,
District Mathura. He died in harness on
23.03.1994. The petitioner was minor at
the time of the death of his father Late
Keshavdev. Petitioner claims that he
attained majority in the year 2008.

10. The mother of the petitioner had
made a representation for grant of
compassionate appointment for the first
time on 20.10.1994 with a prayer to keep
the post reserved till her son attains
majority. The petitioner submitted his
claim for appointment under the Dyingin-harness
Rules
to
the
competent
authority on 19.05.2016. The respondent
authorities did not act upon his claim and
failed to appoint him under the Dying-inHarness Rules.

11. The petitioner approached this
Court by instituting a writ petition No.
11515 of 2018, Deepak Kumar vs. State
of U.P. and Others. The writ petition was
disposed of finally by judgment and order
entered on 10.05.2018. The operative
portion of the judgment is extracted
hereunder:

"In view of the submissions of
learned counsel for the parties and
considering the fact reflected from the
record that the District Panchayat Raj
Officer has forwarded the application of
the petitioner to the respondent No.4 for
taking final decision, this Court thinks it
proper to dispose of the present petition,
without expressing any opinion on the
merits of the claim of the petitioner. A
direction is, therefore, issued to the
respondent No.1 to take a final decision
under
due
communication
to
the
petitioner expeditiously, preferably within
a period of two months from the date of
submission of certified copy of this order.
1 All. Deepak Kumar Vs. State of U.P. & Ors.
789

The writ petition is, accordingly,
disposed of."

12. In pursuance of the order dated
10.05.2018 passed by this Court in Writ
Petition
No.
11515
of
2018,
the
respondent no. 1 passed the order dated
26.09.2018 which is assailed in the instant
writ petition.

13. The petitioner moved an
application
for
appointment
on
compassionate grounds after a period of
22 years of the death of his father on
19.05.2016.

14. This is the admitted case of the
petitioner.

15. Grant of appointment on
compassionate grounds in the respondent
corporation is regulated and governed by
the Uttar Pradesh Recruitment of
Dependants of Government Servants
Dying
in
Harness
Rules,
1974
(hereinafter referred to as the "Rules").

16. The concept of dying in harness
is unique to Service Law Jurisprudence.

17. The validity of the concept of
appointments on the basis of an
employee dying in harness was called
in question before the courts. The
constitutional validity of the aforesaid
appointments soon came to be tested.
The
compassionate
ground
appointments
passed
the
test
of
constitutional validity by a slender
margin. The justification to make
compassionate ground appointments
was provided on the footing that the
kin of the deceased stood on the brink
of financial penury or faced an
immediate financial crisis on account
of the death of working member of the
family. This feature alone constituted
the kin of a deceased employee into
one class and on the footing alone, the
rationale of compassionate ground
appointments was justified.

18. It would be apposite to reinforce
the narrative with good authority.

19. The purpose of compassionate
appointments
provides
their
justification. The death of a bread
winner forces the family of the
deceased into penury. The immediacy
of the financial crisis creates the
requirement for urgent redressal. The
concept
of
compassionate
appointments is created only to enable
the bereaved family to tide over the
immediate financial crisis.

20. The Hon'ble the Supreme Court
in Umesh Kumar Nagpal Vs. State of
Haryana, reported at (1994) 4 SCC 138,
explained the purpose of compassionate
in following terms:

"2.The
question
relates
to
the
considerations which should guide while
giving appointment in public services on
compassionate ground. It appears that
there has been a good deal of obfuscation
on the issue. 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 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
790 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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 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. The
posts in Classes III and IV are the lowest
posts
in
non-manual
and
manual
categories and hence they alone can be
offered on compassionate grounds, the
object being to relieve the family, of the
financial destitution and to help it get
over the emergency. The provision of
employment in such lowest posts by
making an exception to the rule is
justifiable and valid since it is not
discriminatory. The favourable treatment
given to such dependant 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 purpose. It must be remembered in
this connection that as against the
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
are
suddenly
upturned."

21. A similar sentiment was echoed
by the Hon'ble Supreme Court in the case
of Director of Education (Secondary) v.
Pushpendra Kumar, reported at (1998)
5 SCC 192 in the following terms:

"8.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. 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. Such a
provision makes a departure from the
general
provisions
providing
for
appointment on the post by following a
particular procedure. Since such 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
1 All. Deepak Kumar Vs. State of U.P. & Ors.
791
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 other
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. InUmesh Kumar
Nagpalv.State of Haryana[(1994) 4 SCC
138 : 1994 SCC (L&S) 930 : (1994) 27
ATC 537] 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. In that case the Court was
considering
the
question
whether
appointment on compassionate grounds
could be made against posts higher than
posts in Classes III and IV. It was held that
such appointment could only be made
against the lowest posts in non-manual
categories. It was observed: (SCC p. 140,
para 2)

"The provision of employment in
such lowest posts by making an exception
to the rule is justifiable and valid since it
is not discriminatory. The favourable
treatment given to such dependant 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 purpose. It must be
remembered in this connection that as
against the 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 are suddenly upturned."

22. However, there is a caution.
Compassionate ground appointments are an
exception and cannot be made the rule. The
exception can be maintained only by strictly
adhering to the pre-conditions of the
appointment in a strict fashion. A relaxation
in the aforesaid pre-conditions would open a
floodgate of appointments on compassionate
grounds. It will turn the compassionate
ground appointments into a regular source of
recruitment. The constitutionally accepted
mode of appointment to public office or any
other post under the State Government or its
instrumentalities is by open and transparent
recruitment
process.
Such
recruitment
process would invite eligible persons from
the open market to compete for appointment.
This process is consistent with the mandate
of Article 14 and Article 16 of the
Constitution of India.

23. It was with this constitutional
mandate in mind that the Hon'ble
Supreme Court in the case of Mumtaz
Yunus Mulani v. State of Maharashtra,
reported at (2008) 11 SCC 384 cautioned
that compassionate appointment were not
an alternative mode of recruitment to
public employment, by laying down the
law thus:
792 INDIAN LAW REPORTS ALLAHABAD SERIES

"However, it is now a well-settled
principle of law that appointment on
compassionate grounds 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 family of the deceased to
get over the sudden financial crisis."

24. The Hon'ble Supreme Court
reiterated the purpose and limitations of
compassionate ground appointment in the
case of State of Haryana v. Ankur
Gupta, reported at (2003) 7 SCC 704
held thus:

"6.As was observed inState of
Haryanav.Rani Devi[(1996) 5 SCC 308 :
1996 SCC (L&S) 1162 : JT (1996) 6 SC
646] it need not be pointed out that the
claim of the person concerned for
appointment on compassionate ground is
based on the premise that he was
dependent 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 deceased employee.
InRani Devi case[(1996) 5 SCC 308 :
1996 SCC (L&S) 1162 : JT (1996) 6 SC
646] it was held that the 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. InLIC of
Indiav.Asha
Ramchhandra
Ambekar[(1994) 2 SCC 718 : 1994 SCC
(L&S) 737 : (1994) 27 ATC 174] it was
pointed out that the 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
contemplate
such
appointments. It was noted inUmesh
Kumar Nagpalv.State of Haryana[(1994)
4 SCC 138 : 1994 SCC (L&S) 930 :
(1994) 27 ATC 537] that as a rule, in
public service appointments should be
made strictly on the basis of open
invitation of applications 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 the 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.

7.InDirector
of
Education
(Secondary)v.Pushpendra Kumar[(1998)
5 SCC 192 : 1998 SCC (L&S) 1302] it
was observed that in the matter of
compassionate appointment there cannot
be insistence for a particular post. Out of
1 All. Deepak Kumar Vs. State of U.P. & Ors.
793
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
grant
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.

25. It was in the experience of the
State Government that a large number of
applications for compassionate ground
appointments were made much after the
death of the government servants. Rule 5
of the said Rules provides for the said
contingency. Rule 5 authorizes the State
Government to condone the delay in
making
of
an
application
for
an
appointment on compassionate grounds.
The State Government undoubtedly has
the power to condone the delay in filing
of an application for appointment on
compassionate grounds. However, while
considering the scope of such power,
purpose
of
compassionate
ground
appointments can not be lost sight of. The
stated
purpose
which
is
the
only
justifiable ground for such appointments,
is that the family which is facing
immediate financial crisis, should be
supported by providing an employment to
a member of such family to tide over the
crisis.

26. Only present and imminent
financial
crisis
provides
the
sole
justification for making appointments on
compassionate grounds. Delay in making
such applications for appointment on
compassionate
grounds
raises
a
presumption that the immediate financial
crisis has been tided over. Lifting of the
immediate financial penury, denies the
justification for making an appointment
on compassionate grounds.

27. The criteria of financial hardship
faced by the family of the deceased
caused by his death, provides a thin
membrane of legitimacy to compassionate
appointments. Bereft of this thin cover of
legitimacy or if any other criteria is
employed
to
make
compassionate
appointments, the appointments would
become vulnerable to a constitutional
challenge.
Appointments
based
on
descent or claims of appointment which
rest on heredity, invite the wrath of
Article 16 of the Constitution of India.

28. It would be apposite to fortify
the narrative with good authority.

29. The Hon'ble the Supreme Court
set its face against appointments based on
descent in the case of Bhawani Prasad
Sonkar Vs Union of India and Others,
reported at (2011) 4 SCC 209. The
Hon'ble the Supreme Court in Bhawani
Prasad Sonkar (supra), spoke as follows:

"Now,
it
is
well
settled
that
compassionate employment is given solely
794 INDIAN LAW REPORTS ALLAHABAD SERIES
on humanitarian grounds with the sole
object to provide immediate relief to the
employee's family to tide over the sudden
financial crisis and cannot be claimed as
a matter of right. Appointment based
solely on descent is inimical to our
constitutional scheme, and ordinarily
public employment must be strictly on the
basis of open invitation of applications
and comparative merit, in consonance
with
Articles
14
and
16
of
the
Constitution of India. No other mode of
appointment is permissible. Nevertheless,
the
concept
of
compassionate
appointment has been recognised as an
exception to the general rule, carved out
in the interest of justice, in certain
exigencies, by way of a policy of an
employer, which partakes the character of
the service rules. That being so, it needs
little emphasis that the scheme or the
policy, as the case may be, is binding both
on the employer and the employee. Being
an exception, the scheme has to be strictly
construed and confined only to the
purpose it seeks to achieve."

"InUmesh Kumar Nagpalv.State of
Haryana[(1994) 4 SCC 138 : 1994 SCC
(L&S) 930 : (1994) 27 ATC 537] , while
emphasising
that
a
compassionate
appointment cannot be claimed as a
matter of course or in posts above Classes
III and IV, this Court had observed that:
(SCC p. 140, para 2)

"2. ... The whole object of granting
compassionate employment is thus to
enable the family to tide over the sudden
crisis. 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 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. The
posts in Classes III and IV are the lowest
posts
in
non-manual
and
manual
categories and hence they alone can be
offered on compassionate grounds, the
object being to relieve the family, of the
financial destitution and to help it get
over the emergency. The provision of
employment in such lowest posts by
making an exception to the rule is
justifiable and valid since it is not
discriminatory. The favourable treatment
given to such dependant 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
purpose. It must be remembered in this
connection that as against the 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 are suddenly upturned."

"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
1 All. Deepak Kumar Vs. State of U.P. & Ors.
795
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.

30.

A
similar
stand
against
impermissibility of appointments based
on descent was taken at an earlier point in
time in the case of V. Sivamurthy Vs.
State of Andhra Pradesh, reported at
(2008) 13 SCC 730, hereunder:

"18. (a) Compassionate appointment
based only on descent is impermissible.
Appointments in public service should be
made strictly on the basis of open
invitation
of
applications
and
comparative merit, having regard to
Articles 14 and 16 of the Constitution of
India.
Though
no
other
mode
of
appointment is permissible, appointments
on compassionate grounds are a wellrecognised exception to the said general
rule, carved out in the interest of justice
to meet certain contingencies."

31. Delay in making a claim for
compassionate grounds appointment dilutes
the case of immediate financial penury and
consequently negates the entitlement for
appointment on compassionate grounds.

32. Appointments on compassionate
grounds cannot wait for the claimants to
attain majority or to enable them to
acquire additional qualifications and get a
better deal in appointments. Infact, such
grounds
militate
against
claim
for
compassionate grounds appointment.

33. The Hon'ble Supreme Court in
the case of Sanjay Kumar Vs. State of
Bihar and Others reported at 2000 (7)
SCC 192 reiterated the purpose of a
compassionate grounds appointments to
tide over the sudden crisis resulting from
the death of the earner in a family.
However, the reservation of a vacancy to
enable such person to attain majority was
negatived by the Hon'ble Supreme Court
by holding thus:

"3.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 breadearner
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
inDirector
of
Educationv.Pushpendra
Kumar[(1998) 5 SCC 192 : 1998 SCC
(L&S) 1302 : (1998) 2 Pat LJR 181] . It is
also significant to notice that on the date
when the first application was made by
796 INDIAN LAW REPORTS ALLAHABAD SERIES
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 are some specific provisions.
The
very
basis
of
compassionate
appointment is to see that the family gets
immediate relief."

34. A Division Bench of this Court
after citing good authority, also concluded
that financial penury ceased to exist in
case an application was made long years
after the death of the employee in the case
of Smt. Sonal Laviniya and another vs.
Union of India and another reported at
2003 (5) AWC 4070:

"38.The purpose of providing such
an employment has been to render the
financial assistance to the family, which
has lost the bread earner immediately
after the death of the employee. If the
application has been filed after expiry of
91⁄2 years the element of immediate need
stood evaporated and there was no
occasion for the respondents to consider
the case of the petitioner for such a relief.
The observation made by the learned
Tribunal are in consonance with the law
laid down by the Hon'ble Apex Court and
no exception can be taken out."

35. A similar view was taken by
learned Single Judge of this Court in the
case of Sanjeev Kumar Vs. Food
Corporation of India and Others,
registered as Writ A No. 11083 of 2018,
entered on 03.05.2018:

"In a case of compassionate
appointment, it is the immediacy of
appointment
that
is
of
prime
consideration
to
ameliorate
the
financial hardship be falling the bread
winner of the family. If the family of
the bread winner or the claimant has
managed to survive for 27 years after
the death of the government servant, it
cannot be said that there is any
immediacy
of
the
appointment.
Compassionate
appointment
is
an
exception to the well established Rule
of equality in the matter of recruitment
to government service and therefore
exceptional grounds must exist to
justify such appointment. "

36. The question of delay in filing
applications for appointment under
Dying-in-harness
Rules
and
the
consequences of such delay on the
right
to
be
appointed
on
compassionate grounds was posed to a
Full Bench of this Court in the case of
Shiv Kumar Dubey Vs. State of U.P.
reported at 2014 (2) ADJ 312. For
ease of reference, the relevant part of
the judgment in Shiv Kumar Dubey
(supra) is reproduced hereunder:

"29. We now proceed to formulate
the
principles
which
must
govern
compassionate appointment in pursuance
of Dying in Harness Rules:

(i)
A
provision
for
compassionate
appointment is an exception to the
principle that there must be an equality of
opportunity
in
matters
of
public
employment.
The
exception
to
be
constitutionally valid has to be carefully
structured and implemented in order to
confine compassionate appointment to
only those situations which subserve the
basic object and purpose which is sought
to be achieved;
1 All. Deepak Kumar Vs. State of U.P. & Ors.
797

[emphasis supplied]

(ii) There is no general or vested
right to compassionate appointment.
Compassionate
appointment
can
be
claimed only where a scheme or rules
provide for such appointment. Where such
a provision is made in an administrative
scheme or statutory rules, compassionate
appointment must fall strictly within the
scheme or, as the case may be, the rules;

(iii) The object and purpose of
providing compassionate appointment is
to enable the dependent members of the
family of a deceased employee to tide
over the immediate financial crisis caused
by the death of the bread-earner;
[emphasis supplied]

(iv) In determining as to whether the
family is in financial crisis, all relevant
aspects must be borne in mind including
the income of the family; its liabilities, the
terminal benefits received by the family;
the age, dependency and marital status of
its members, together with the income
from any other sources of employment;

(v) Where a long lapse of time has
occurred since the date of death of the
deceased
employee,
the
sense
of
immediacy for seeking compassionate
appointment would cease to exist and this
would be a relevant circumstance which
must weigh with the authorities in
determining as to whether a case for the
grant of compassionate appointment has
been made out;
[emphasis supplied]

(vi) Rule 5 mandates that ordinarily,
an
application
for
compassionate
appointment must be made within five
years of the date of death of the deceased
employee. The power conferred by the
first proviso is a discretion to relax the
period in a case of undue hardship and
for dealing with the case in a just and
equitable manner;

(vii)
The
burden
lies
on
the
applicant, where there is a delay in
making an application within the period
of five years to establish a case on the
basis of reasons and a justification
supported by documentary and other
evidence. It is for the State Government
after considering all the facts to take an
appropriate decision. The power to relax
is in the nature of an exception and is
conditioned by the existence of objective
considerations to the satisfaction of the
government;
[emphasis supplied]

(viii) Provisions for the grant of
compassionate
appointment
do
not
constitute a reservation of a post in
favour of a member of the family of the
deceased employee. Hence, there is no
general right which can be asserted to the
effect that a member of the family who
was a minor at the time of death would be
entitled
to
claim
compassionate
appointment upon attaining majority.
Where the rules provide for a period of
time withinwhich an application has to be
made, the operation of the rule is not
suspended during the minority of a
member
of
the
family."
(emphasis
supplied).

37. The facts of the case found
earlier shall now be considered in the
light of the judicial authority stated in the
preceding part of the judgment.

38. The father of the petitioner
died in harness on 23.03.1994. The
petitioner made an application for
798 INDIAN LAW REPORTS ALLAHABAD SERIES
grant of appointment on compassionate
grounds on 19.05.2016. Delay in making
the application for appointment on
compassionate grounds is defended on
the sole ground that on the date of death
of the father of the petitioner, the
petitioner was minor. The mother of the
petitioner had submitted an application
for reserving a post for the petitioner till
he attain majority. The petitioner applied
for
appointment
on
compassionate
grounds when he attained majority. On
these established facts and in view of the
legal
narrative
in
the
preceding
paragraphs, the claim of the petitioner is
untenable in law.

39. There are other aspect to the
contrary as well.

40. In the writ petition, it is stated
that the date of birth of the petitioner is
15.08.1990.
According
to
which,
petitioner was 26 years at the time of
submission
of
the
application
for
compassionate grounds appointment.

41. In view of the delay in filing the
application for grant of appointment on
compassionate
grounds,
this
Court
consistent with the narrative in the earlier
part of the judgment, finds that the
financial crisis, if any, occasioned by the
death of the father of the petitioner was
not existing when the application for grant
of compassionate grounds appointment
was made by the petitioner. There is no
lawful basis for grant of appointment on
compassionate grounds to the petitioner.

42.