# Hira Lal & Ors v. Ram Das 2006 (3)

- **Citation:** (2012) 3 ILRA 1635
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-11-08
- **Case number:** Civil Misc. Writ Petition No. 56688 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hira-lal-ors-v-ram-das-2006-3-42389
- **Pages:** 14

## Headnote

C.S.C.
Sri Chandra Dutta
Sri Pradeep Kumar
Sri Pradeep Verma
Sri Shailendra Kumar Verma

Constitution
of
India,
Article
226Payment of salary-petitioner appointed
on post of peon-after following the
procedure prescribed under law-salary
not paid as Respondents No. 4 working
on
compassionate
ground-and
the
respondent No. 6 being adopted son
entitled to work on class 4th post-both
appointment
under
compassionate
ground challenged-as Respondent No. 4
on the retirement date was minorlikewise
Respondent
No.
5-under
Mohammedan Law there is no concept of
adoption even otherwise could not be
appointed on age of 65 years-even then
with collusion of Respondent No. 3 and 4
succeeded
to
get
salary-both
appointments
quashed-direction
to
release
salary
to
petitioner
being
1636 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
appointed under reserve quota-State
Government to recover entire amount of
salary from Respondents No. 2 and 3 in
equal proportion.

Held: Para-58

Since appointment of respondents No.4
and 5 are wholly illegal and have been
quashed hereinabove, the amount of
salary
paid
to
them
also
wholly
unauthorized and illegal. However, since
they have been allowed to work by DIOS
as well as the Principal of the College,
the responsibility enabling illegal and
unauthorized appointment to them lie
upon respondents No.2 and 3. In these
circumstances, in my view, recovery of
amount paid to respondent No.4 and 5
towards salary must be directed from
respondents
No.2
and
3
in
equal
proportion.
Case Law discussed:
1997 (11) SCC 390; 1999 (I) LLJ 539; AIR
1998 SC 2230; AIR 2000 SC 2782; AIR 2004
SC 4155; 1995 (6) SCC 436; (1996) 8 SCC 23;
AIR 1998 SC 2612; 2002 (3) SC 485=2002
(10) SCC 246; AIR 2005 SC 106; AIR 2006 SC
2743; (2009) 13 SCC 122=JT 2009 (6) SC
624; 2009 (6) SCC 481; 2007 (6) SCC 162;
2011 (4) SCALE 308; 2011 (3) ADJ 91; JT
2011 (4) SC 30

## Text

_Characters 0–39,957 of 46,163. This is a partial read: ask again with offset=39957 for what follows._

3 All] Dinesh Kumar V. State Of U.P. & Others
1635
233, Chaturbhuj Pandey Vs. VI A.D.J.,
Kanpur & Ors. 2005 (60) ALR 697,
Hira Lal & Ors. Vs. Ram Das 2006 (3)
ARC 657 and Saadat Ali Vs. J.S.C.C.,
Moradabad & ors. 2006 (2) ARC 208.

16.

Considering
the
above
authorities and exposition of law laid
down therein, this Court in Civil Misc.
Writ petition No.19834 of 2003 (Sri Om
Prakash Vs. Sri Anil Kumar) decided
on 30.10.2012 held as to what shall be the
first date of hearing and in para 19 of the
judgment it said as under:

"19. In the present case the written
statement
was
filed
on
25.7.1995
whereafter 24.8.1995 was fixed as the
date for first hearing but on that date
there was some holiday and the matter
was taken up on 25.8.1995 which, in my
view, should have been the first date of
hearing. All deposits made thereon or till
that date are liable to be given due credit
to find out whether there is compliance of
requirement of Section 20(4) of Act, 1972
or not."

17. In the present case when I apply
the aforesaid dictum, I find that deposit
made on 4.8.1988 satisfy requirement of
deposit made on the first date of hearing
of the suit. In fact in appears that dispute
raised by petitioner was regarding rate of
rent and his entire claim of non
compliance of Section 20(4) was founded
on the ground that monthly rent was
Rs.240/- per month while the Courts
below have determined monthly rent at
Rs.40/- per month and this is a finding of
fact in respect whereto nothing has been
shown perverse or contrary to record.

18. I, therefore, find no reason to
interfere with the impugned judgment.
The writ petition therefore lacks merit.
Dismissed.

19. Interim order, if any, stands
vacated.
----------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 56688 of 2008

Dinesh Kumar

 ...Petitioner
Versus
State Of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri V.K. Singh
Sri G.K. Singh
Sri P.K.Singh

Counsel for the Respondents:
C.S.C.
Sri Chandra Dutta
Sri Pradeep Kumar
Sri Pradeep Verma
Sri Shailendra Kumar Verma

Constitution
of
India,
Article
226Payment of salary-petitioner appointed
on post of peon-after following the
procedure prescribed under law-salary
not paid as Respondents No. 4 working
on
compassionate
ground-and
the
respondent No. 6 being adopted son
entitled to work on class 4th post-both
appointment
under
compassionate
ground challenged-as Respondent No. 4
on the retirement date was minorlikewise
Respondent
No.
5-under
Mohammedan Law there is no concept of
adoption even otherwise could not be
appointed on age of 65 years-even then
with collusion of Respondent No. 3 and 4
succeeded
to
get
salary-both
appointments
quashed-direction
to
release
salary
to
petitioner
being
1636 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
appointed under reserve quota-State
Government to recover entire amount of
salary from Respondents No. 2 and 3 in
equal proportion.

Held: Para-58

Since appointment of respondents No.4
and 5 are wholly illegal and have been
quashed hereinabove, the amount of
salary
paid
to
them
also
wholly
unauthorized and illegal. However, since
they have been allowed to work by DIOS
as well as the Principal of the College,
the responsibility enabling illegal and
unauthorized appointment to them lie
upon respondents No.2 and 3. In these
circumstances, in my view, recovery of
amount paid to respondent No.4 and 5
towards salary must be directed from
respondents
No.2
and
3
in
equal
proportion.
Case Law discussed:
1997 (11) SCC 390; 1999 (I) LLJ 539; AIR
1998 SC 2230; AIR 2000 SC 2782; AIR 2004
SC 4155; 1995 (6) SCC 436; (1996) 8 SCC 23;
AIR 1998 SC 2612; 2002 (3) SC 485=2002
(10) SCC 246; AIR 2005 SC 106; AIR 2006 SC
2743; (2009) 13 SCC 122=JT 2009 (6) SC
624; 2009 (6) SCC 481; 2007 (6) SCC 162;
2011 (4) SCALE 308; 2011 (3) ADJ 91; JT
2011 (4) SC 30

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri P.K.Singh, learned
counsel for the petitioner, learned Standing
Counsel for respondents No.1 and 2 and Sri
Shailendra
Kumar
Maurya,
Advocate
holding brief of Sri Pradeep Verma,
Advocate, for respondent No.4. None
appeared on behalf of respondents No.3 and
5 despite service of notice, though the case
has been called in revised.

2. As requested and agreed by learned
counsel for the parties, this case was heard
finally and and is being decided under the
Rules of the Court.

3. There are three orders, which have
given a cause of action to the petitioner and
have been assailed in this writ petition.
They are the orders dated 14.2.2006
(Annexure 2 to the writ petition); 30.7.2007
(Annexure 3 to the writ petition); and
25.7.2008 (Annexure 1 to the writ petition).
All are passed by District Inspector of
Schools, Allahabad (hereinafter referred to
as "DIOS").

4. The DIOS vide first impugned
order
dated
14.2.2006
directed
Manager/Principal of Jari Bandhan Inter
College, Baijnath Ganj, Gorigon, Allahabad
(hereinafter referred to as "College") to
appoint Sri Sunil Kumar Yadav, respondent
no.4, Son of Late Ram Awadh, (Assistant
Teacher) working in the College till his
death, as "Peon" in the pay scale of
Rs.2250-3200
as
a
compassionate
appointee. The Principal/Manager has been
directed
to
make
appointment,
as
contemplated in Regulation 107, Chapter III
Regulations framed under Intermediate
Education Act, 1921 (hereinafter referred
to as "Act, 1921") and send compliance
report to the DIOS.

5. The second order dated 30.7.2007
has been passed by DIOS in purported
compliance of this Court's order dated
28.2.2006, in Writ Petition No.11251 of
2006, whereby he (DIOS) was required to
decide representation of Smt. Sabira
Begum, (respondent no.5 in the present writ
petition) in respect to compassionate
appointment on Class IV in the College.
Therein he (the DIOS) has held that
respondent no.5, Smt. Sabira Begum, is
entitled for compassionate appointment
being widow and legal heir of a deceased
Class IV employees, Late Kallu, working in
the College and accordingly directed
3 All] Dinesh Kumar V. State Of U.P. & Others
1637
Principal of the College to appoint her as
Class a IV employee in the College.

6. The third order dated 25.7.2008
(Annexure 1 to the writ petition) has been
passed by DIOS pursuant to this Court's
order dated 8.2.2008 in Writ Petition
No.40280 of 2007, filed by present
petitioner, earlier, in which DIOS was
directed to decide petitioner's representation
objecting compassionate appointment of
respondents no.4 and 5. The DIOS, by
means of order dated 25.7.2008 has rejected
petitioner's representation.

7. The facts in brief giving rise to the
present dispute are narrated as under:

8. The College is imparting education
upto intermediate classes and is governed
by the provisions of Act, 1921. Payment of
salary to the staff, teaching and non
teaching,
both,
is
governed
by
the
provisions of Uttar Pradesh High Schools
and Intermediate Colleges (Payment of
Salaries of Teachers and Other Employees)
Act, 1971 (hereinafter referred to as "Act,
1971").

9. One Kallu, a class IV employee
working in the college died on 13.12.2001.
After the death of Kallu, her widow Smt.
Sabira
Begum
sought
compassionate
appointment of one Ali Ahmad (Ali Hasan)
stating that he is adopted son. The Principal
did not agree probably for the reason that in
Muslim Law, there is no concept of
adoption and there could not have been an
adopted son of an employee who was a
Muslim. It is in these circumstances, Smt.
Sabira Begum and Ali Ahmad (Ali Hasan),
both, came to this Court in Writ Petition
No.29715 of 2003 in which notices were
issued at that time but no interim order was
passed. The said writ petition was
ultimately dismissed vide judgment dated
18.3.2004.

10. The Principal of College, being
Appointing
Authority
of
Class
IV
employees, sought permission of DIOS for
making recruitment and appointment in the
aforesaid vacancy, which was granted vide
order dated 24.1.2005 (Annexure 4 to the
writ petition). While granting permission,
DIOS, however, directed that appointment
should be made from a candidate belong to
either Scheduled Caste or Scheduled Tribe
since there are five sanctioned posts in the
College and therefore, one would fall within
the quota prescribed in SC/ST category.

11. Consequently, Principal of the
College advertised vacancy on 5.2.2005 in
daily newspaper "Northern India Patrika"
and "Nyayadhish" and after considering
various candidates, Selection Committee
recommended petitioner for appointment in
the
aforesaid
vacancy.
The
relevant
documents were forwarded to DIOS for his
approval which was considered by Regional
Level Committee and vide letter dated
20.9.2005 it directed DIOS to take a
decision at its own level under the rules and
regulations. Consequently, DIOS granted
approval vide letter dated 10.10.2005. The
petitioner was appointed as a Class IV
employee in the College vide appointment
letter dated 15.10.2005 issued by Principal
of the College. The petitioner belongs to
reserved category (SC). Pursuant to the
aforesaid appointment, the petitioner joined
on 21.10.2005 and has been working since
thereafter accordingly.

12. It appears that Committee of
Management preferred a Writ Petition
No.6277 of 2006 stating that vacancy, in
which petitioner was appointed, ought to
have been filled in, from dependent of
1638 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
deceased employee Kallu i.e. Smt. Sabira
Begum, respondent no.5. The writ petition
filed by Committee of Management was
dismissed by this Court's judgment dated
9.5.2007.

13. The petitioner, however, was not
paid salary during pendency of the above
writ petition and therefore after dismissal of
writ petition, represented before DIOS that
since writ petition of management has been
dismissed, he should be paid salary. Failing
to get any response from DIOS, regarding
payment of salary, petitioner came to this
Court in writ petition No.40280 of 2007
which was disposed of vide order dated
8.2.2008 directing DIOS to consider and
decide petitioner's representation regarding
payment of salary. Pursuant thereto the
DIOS passed the impugned order rejecting
petitioner's
representation
and
also
cancelling/revoking order dated 10.10.2005
whereby approval was granted to the
petitioner's selection. The DIOS has held
that the aforesaid approval was obtained by
concealment of material facts and therefore,
the said approval was liable to be revoked.

14. Learned counsel for the petitioner,
Sri P.K.Singh, contended that there were
five sanctioned posts out of which three
were already occupied by Sri Ram Raj, Sri
Lalan Prasad and Sri Rajendra Prasad
appointed on 8.7.1972, 8.7.1978 and
1.3.1987. There were two vacancies in 2005
when the process of recruitment on Class
IV post begun after permission granted by
DIOS
on
24.1.2005.
No
claim
for
compassionate appointment against any of
the vacancy in Class IV was pending for
consideration at that time. Therefore,
recruitment, selection and appointment of
petitioner on a Class IV post can neither be
said to be illegal nor any material fact was
concealed and DIOS has completely
misdirected himself by distorting the facts
in a mixed up manner. Assailing the
appointment
of
respondent
no.5
in
particular, Sri P.K.Singh, Advocate, said
that at the time of appointment, she was
above the age of 60 years, therefore could
not have been appointed at all and her
appointment made in 2007 is patently
illegal and in flagrant violation of relevant
statutory provisions applicable in this
regard. So far as Sunil Kumar, respondent
no.4 is concerned, who is alleged to have
been appointed on 16.2.2006 or 31.7.2007,
it is contended that he was not at all
available for appointment when vacancy in
question was advertised i.e. in 2005. The
petitioner
was
selected
and
actually
appointed in 2005 therefore, petitioner's
appointment cannot be said to have been
vitiated in law for an illegal appointment
made subsequently in 2006 or 2007 when
there was no vacancy of Class IV in the
college. He contended that DIOS, in a
wholly illegal and arbitrary manner, has
passed the impugned orders and the same
are liable to be set aside.

15. A counter affidavit has been filed
by
Principal
stating
that
petitioner's
appointment was made illegally since there
was no vacancy. The respondents no.4 and
5 were already appointed vide appointment
letters dated 30.7.2007 as a result whereof
there was no vacancy in Class IV hence
petitioner could not have been appointed. It
is further said that before the claim of
petitioner, application for compassionate
appointment for the benefit of respondent
no.4 was already pending, inasmuch as, his
mother Smt. Ganga Devi, Wife of Late Ram
Awadh had filed an application on 7.9.2001
requesting for compassionate appointment
of respondent no.4.
3 All] Dinesh Kumar V. State Of U.P. & Others
1639

16. Another counter affidavit has been
filed by respondent no.4 himself stating that
his father Ram Awadh, Assistant Teacher,
working in the college died in 1999. The
respondent no.4 at that time was minor. His
date of birth being 10th July, 1986, vide
Annexure 1 to the counter affidavit of
respondent no.4, he passed High School in
June, 2001 and Intermediate in 2003. He
attained the age of majority i.e. 18 years on
10th July, 2004 but in anticipation, moved
an application on 2nd May, 2004 for
claiming appointment on and after 10th
July, 2004 as a Class III employee in the
College. The application was forwarded to
DIOS by Management vide letter dated
31.5.2004.

17. It is not clear as to when DIOS
granted approval and neither order of
appointment allegedly issued in 2006 to
respondent no.4 is on record nor otherwise
said to have been issued on a particular date
but it appears that he was allowed to join
and work on 16th February, 2006. The
respondent no.2, however, has mentioned
the date of appointment of respondent no.4
as 16.2.2007.

18. The respondents no.1 and 2 have
also filed counter affidavit. With respect to
the age of appointment of respondent no.5,
in para 13 of counter affidavit, it has been
said that there is a restriction with respect to
minimum age but no restriction about
maximum age.

19. In the counter affidavit of
respondent no.2, however, in para 8 it has
been
stated
that
Sri
Sunil
Kumar,
respondent no.4 was appointed after
attaining majority, on 16.2.2007, while
respondent no.5, Smt. Sabira Begum, was
appointed by DIOS vide order dated
31.7.2007.

20. No individual counter affidavit
sworn by respondent no.5 himself has been
filed.

21. Now coming to first aspect, i.e. on
the
correctness
of
appointment
of
respondent no.5, I am of the view that it was
patently illegal.

22. It is admitted and evident from the
record that respondent no.5, after the death
of her husband Kallu, did not claim any
appointment for herself but requested for
appointment for her adopted son Ali Ahmad
(Ali Hasan). For this purpose she along with
Ali Ahmad filed writ petition no.29715 of
2003 which was ultimately dismissed on
18.3.2004. Therefore, till dismissal of writ
petition, no claim was set up by respondent
no.5 for her appointment on compassionate
basis after the death of her husband.

23. Though, respondents no.1 and 2 in
para 18 of their counter affidavit have stated
that application was given by respondent
no.5
requesting
for
compassionate
appointment on 7.6.2003 but no such
application has been placed on record to
show whether it was an application for
appointment of her ownself or for the
benefit of Ali Ahmad (Ali Hasan) for which
purpose respondent no.5 filed writ petition
no.29715 of 2003. It is also inconceivable,
when the aforesaid writ petition was
pending before this Court in 2003 and was
dismissed on 18.3.2004, what was the
occasion for respondent no.5 to move an
application for appointment of herself and if
so, when such an application was given by
her.

24. It is no doubt true that respondent
no.5 filed writ petition no.11251 of 2006
which was disposed of on 28.2.2006
directing DIOS to decide her application for
1640 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
compassionate appointment but in that writ
petition also she has not disclosed about her
earlier writ petition filed along with Ali
Ahmad (Ali Hasan) in which she has sought
compassionate appointment for her adopted
son Ali Ahmad (Ali Hasan). An order,
which was obtained by petitioner in writ
petition no.11251 of 2006 is clearly by
concealment of material fact. Come what
may but alleast there is nothing on record to
show that respondent no.5 till 15.10.2005,
when petitioner was actually appointed by
the Principal of the College after approval
granted by DIOS, had never moved any
application
claiming
appointment
on
compassionate
basis
for
herself
and
therefore, to claim that petitioner could not
have been appointed since claim of
compassionate appointment of respondent
no.5 was pending consideration before
DIOS is clearly incorrect.

25. So far as claim for compassionate
appointment of alleged adopted son is
concerned, suffice it to mention that firstly,
this claim stood negated after dismissal of
writ petition no.29715 of 2003 and
secondly; there is no concept of adoption,
recognised in Muslim Law. In absence of
any recognition of principle of adoption in
Muslim Law there would not have been any
occasion to claim that there was any legal
heir of the deceased Kallu by way of
adopted
son
available
for
claiming
compassionate appointment and hence
request for this behalf was a nullity since its
inception.

26. The petitioner has specifically
pleaded and placed on record the
documents to show her age. He has
specifically stated that Smt. Sabira Begum
had crossed the age of 60 years as per the
medical certificate issued by Department
of Radiology and Ultrasound, MLN
Hospital,
Allahabad
on
9.8.2002.
Obviously on the date of appointment in
2007, respondent no.5 must be around 65
years of age. The averments contained in
para 22 of writ petition have not been
denied in the counter affidavit sworn by
Principal of College though he has
mentioned that he is filing counter
affidavit on behalf of respondent no.5. In
para 12 of counter affidavit, he simply
says that the contents of paras 21, 22 and
23 of the writ petition are not concerned
to him. To the same effect is the reply
given in the counter affidavit filed by the
respondent
no.4.
The
respondent
no.5,having not filed any reply by not
appearing, has left these pleadings of
petitioner uncontrovered.

27. The respondents no.1 and 2 in a
very strange and interesting manner have
replied para 22 of writ petition in para 13
of the counter affidavit by asserting that
department has no document relating to
the age of respondent no.5 but for
compassionate appointment no limit of
maximum age has been prescribed.

28. This Court finds it interesting
that copy of service book of respondent
no.5 has been filed along with counter
affidavit, sworn by Principal of the
College, and on pages 16 and 17 thereof
date of birth of respondent no.5 has been
mentioned as 3.10.1952. The basis of date
of birth is not disclosed anywhere. In the
column of signature/thumb impression,
respondent no.5 has put her thumb
impression showing that she is not literate
at all. Her date of appointment has been
mentioned as 31.7.2007.

29. The averments made in para 22
of writ petition in respect to the age of
respondent no.5 as such have not been
3 All] Dinesh Kumar V. State Of U.P. & Others
1641
contradicted or disputed by any of the
respondents. However, from the copy of
service book filed along with the counter
affidavit of Principal of the College, it has
been shown that her age was about 55
years on the date of her appointment since
her date of birth mentioned is 3.10.1952.
It thus has to be examined whether in
respect to the age, there is any restriction
for appointment and whether appointment
of petitioner made in 2005 could have
vitiated in law for the so called
appointment of respondents no. 4 and 5,
which admittedly are subsequent to the
date of appointment of the petitioner.

30. Now, I would consider validity
of appointment of respondent no.5 in the
context of her age.

31. The case set up by official
respondents, there is no maximum age
prescribed for compassionate appointment
hence it can be made at any point of time,
at any age.

32. The submission is not only
misleading but thoroughly misconceived.
Even a thoroughly erratic person cannot
argue that if no maximum age is
prescribed, a person can be appointed at
any age, for the first time, in a service,
governed by statutory rules where age of
superannuation is prescribed. Here the age
of superannuation of Class IV employee
in Secondary Schools/Colleges is 60
years. Therefore by no stretch of
imagination, a person, who has completed
60 years can be appointed for the first
time as direct recruit. It is now settled that
appointment on compassionate basis is a
direct recruitment and not promotion or
transfer etc. Therefore, even if there is no
maximum age prescribed, by implication
of statutory provisions prescribing age of
superannuation, the restraint is there. No
appointment can be permissible after the
age of 60 years on a Class IV post which
is presently the age of superannuation in
Secondary Schools/College governed by
Intermediate Education Act, 1921 and the
Regulations framed thereunder. Another
aspect is that an appointment can be made
on compassionate basis only when
incumbent is fit and suitable for the post
in question. This also has to be examined.

33. Secondly a compassionate
appointment is to mitigate immediate
financial hardship suffered by deceased
employee and not to serve as source of
recruitment. It is not a right of a person to
claim, as a matter of course, as and when
he or she likes. The deceased employee
Kallu, husband of respondent no.5,
admittedly died on 13.12.2001. The
respondent No.5 did not find any hardship
or
otherwise
reason
to
claim
compassionate appointment immediately
thereafter for himself. Instead she tried to
get a stranger accommodated in the garb
of
compassionate
appointment
by
requesting the authorities to give him (Ali
Ahmad i.e. Ali Hasan) compassionate
appointment but failed in her attempt after
dismissal of her writ petition No.29715 of
2003 on 18.3.2004. Thereafter, in 2004
and 2005 also she did not make any
application
for
compassionate
appointment as there is nothing on record
to show that any such application was
filed by her. It is only for the first time in
2006, when the petitioner had already
been appointed as a Class IV employee on
15.10.2005, she claimed that she is
entitled for compassionate appointment
amd came to this Court in Writ Petition
No.11251 of 2006 without disclosing the
factum of her earlier writ petition and got
an order for deciding her representation
1642 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
whereupon, in a clandestine manner, the
authorities of Education Department and
that of the College came to her rescue and
appointed her though there was no
vacancy at that time at all. All this show
the way in which provision relating to
compassionate appointment has been
misused by respondent authorities.

34. In Managing Director, MMTC
Ltd., New Delhi and Anr. Vs. Pramoda
Dei Alias Nayak 1997 (11) SCC 390 the
Court said:

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

35. In S. Mohan Vs. Government
of Tamil Nadu and Anr. 1999 (I) LLJ
539 the Supreme Court said:

"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."

36. In Director of Education
(Secondary) & Anr. Vs. Pushpendra
Kumar & Ors. AIR 1998 SC 2230 the
Court said:

"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."

37. In Sanjay Kumar Vs. The State
of Bihar & Ors. AIR 2000 SC 2782 it was
held:

"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"

38. In Punjab Nation Bank & Ors.
Vs. Ashwini Kumar Taneja AIR 2004 SC
4155, the court said:

"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."

39. An appointment on compassionate
basis claimed after a long time has seriously
been deprecated by Apex Court in Union of
India Vs. Bhagwan 1995 (6) SCC 436,
Haryana State Electricity Board Vs.
Naresh Tanwar, (1996) 8 SCC 23. In the
later case the Court said:

"compassionate appointment cannot
be granted after a long lapse of reasonable
period
and
the
very
purpose
of
compassionate
appointment,
as
an
exception to the general rule of open
recruitment, is intended to meet the
immediate financial problem being suffered
by the members of the family of the
3 All] Dinesh Kumar V. State Of U.P. & Others
1643
deceased employee. ..... the very object of
appointment of dependent of deceasedemployee who died in harness is to relieve
immediate hardship and distress caused to
the family by sudden demise of the earning
member
of
the
family
and
such
consideration cannot be kept binding for
years."

40. In State of U.P. & Ors. Vs. Paras
Nath AIR 1998 SC 2612, the Court said:

"The purpose of providing employment
to a dependent of a government servant
dying in harness in preference to anybody
else, is to mitigate the hardship caused to
the family of the employee on account of his
unexpected death while still in service. To
alleviate the distress of the family, 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."

41. In Hariyana State Electricity
Board Vs. Krishna Devi JT 2002 (3) SC
485 = 2002 (10) SCC 246 the Court said:

"As the application for employment of
her son on compassionate ground was
made by the respondent after eight years of
death of her husband, we are of the opinion
that it was not to meet the immediate
financial need of the family ...."

42. In National Hydroelectric Power
Corporation & Anr. Vs. Nanak Chand &
Anr. AIR 2005 SC 106, the Court said:

"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 crises."

43. In State of Jammu & Kashmir
Vs. Sajad Ahmed AIR 2006 SC 2743 the
Court said:

"Normally,
an
employment
in
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 in 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 except where
compelling circumstances demand, such as,
death of sole bread earner and likelihood of
the family suffering because of the set back.
Once it is proved that in spite of death of
bread earner, the family survived and
substantial period is over, there is no
necessity to say 'goodbye' to normal rule of
appointment and to show favour to one at
the cost of interests of several others
ignoring the mandate of Article 14 of the
Constitution."

44.

Following
several
earlier
authorities, in M/s Eastern Coalfields Ltd.
Vs. Anil Badyakar and others, (2009) 13
SCC 122 = JT 2009 (6) SC 624 the Court
said:

"The principles indicated above would
give
a
clear
indication
that
the
compassionate appointment is not a vested
1644 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
right which can be exercised at any time in
future. The compassionate employment
cannot be claimed and offered after a lapse
of time and after the crisis is over."

45. In Santosh Kumar Dubey Vs.
State of U.P. & Ors. 2009 (6) SCC 481 the
Apex Court had the occasion to consider
Rule 5 of U.P. Recruitment of Dependents
of Government Servants Dying in harness
Rules, 1974 (hereinafter referred to as
"1974 Rules") and said:

"The very concept of giving a
compassionate appointment is to tide over
the financial difficulties that is faced by the
family of the deceased due to the death of
the earning member of the family. There is
immediate loss of earning for which the
family suffers financial hardship. The
benefit is given so that the family can tide
over such financial constraints. The request
for appointment on compassionate grounds
should be reasonable and proximate to the
time of the death of the bread earner of the
family, inasmuch as the very purpose of
giving such benefit is to make financial help
available to the family to overcome sudden
economic crisis occurring in the family of
the deceased who has died in harness. But
this, however, cannot be another source of
recruitment. This also cannot be treated as
a bonanza and also as a right to get an
appointment in Government service."

46. The Court considered that father
of appellant Santosh Kumar Dubey
(supra) became untraceable in 1981 and for
about 18 years the family could survive and
successfully faced and over came the
financial difficulties. In these circumstances
it further held:

"That being the position, in our
considered opinion, this is not a fit case for
exercise of our jurisdiction. This is also not
a case where any direction could be issued
for giving the appellant a compassionate
appointment
as
the
prevalent
rules
governing the subject do not permit us for
issuing any such directions."

47. In I.G. (Karmik) and Ors. v.
Prahalad Mani Tripathi 2007 (6) SCC
162 the Court said:

"Public employment is considered to
be a wealth. It in terms of the constitutional
scheme cannot be given on descent. When
such an exception has been carved out by
this Court, the same must be strictly
complied
with.
Appointment
on
compassionate ground is given only for
meeting the immediate hardship which is
faced by the family by reason of the death of
the bread earner. When an appointment is
made on compassionate ground, it should
be kept confined only to the purpose it seeks
to achieve, the idea being not to provide for
endless compassion."

48. The importance of penury and
indigence of the family of the deceased
employee and need to provide immediate
assistance for compassionate appointment
has been considered by the Apex Court in
Union of India (UOI) & Anr. Vs. B.
Kishore 2011(4) SCALE 308. This is
relevant to make the provisions for
compassionate
appointment
valid
and
constitutional else the same would be
violative of Articles 14 and 16 of the
Constitution of India. The Court said:

"If the element of indigence and the
need to provide immediate assistance for
relief from financial deprivation is taken out
from
the
scheme
of
compassionate
appointments, it would turn out to be
reservation in favour of the dependents of
3 All] Dinesh Kumar V. State Of U.P. & Others
1645
an employee who died while in service
which would be directly in conflict with the
ideal of equality guaranteed under Articles
14 and 16 of the Constitution."

49. It is thus clear that rule of
compassionate appointment has an object to
give relief against destitution. It is not a
provision to provide alternate employment
or an appointment commensurate with the
post held by the deceased employee. It is
not by way of giving similarly placed life to
the dependents of the deceased. While
considering the provision pertaining to
relaxation under 1974 Rules, the very object
of compassionate appointment cannot be
ignored. This is what has been reiterated by
a Division Bench of this Court in Smt.
Madhulika Pathak Vs. State of U.P. &
ors. 2011 (3) ADJ 91.

50.

In
Local
Administration
Department
and
Anr.
v.
M.
Selvanayagam @ Kumaravelu JT 2011
(4) SC 30, Apex Court considered almost a
similar case arising out of a judgment of the
Madras
High
Court.
One
Meenakshisundaram,
a
Watchman
in
Karaikal
Municipality
died
on
22nd
November, 1988 leaving behind a widow
and two sons, one of whom was eleven
years old at that time. The widow was
thirty-nine years of age but immediately did
not make any application for compassionate
appointment. On 29th July, 1993, after
about four and a half years and odd, she
made an application for compassionate
appointment of M. Selvanayagam @
Kumaravelu since he had passed S.S.L.C.
Examination in April, 1993. However, the
appointment could not have been granted
since M. Selvanayagam @ Kumaravelu was
minor at that time also. Another application
thereafter was given after 7 years and 6
months from the date of death of
Meenakshisundaram. Having received no
reply, a writ petition was filed which was
disposed of directing the Municipality to
pass an order on the application for
compassionate appointment. The claim for
compassionate appointment was ultimately
rejected by Municipality vide order dated
19th April, 2000. The writ petition against
the said order was dismissed by the learned
Single Judge but in intra-court appeal, it
was allowed vide judgment and order dated
30th April, 2004 and the Municipality was
directed
to
provide
compassionate
appointment. It is this order, which was
assailed before the Apex Court. The
Municipality
had
declined
to
give
compassionate appointment observing that
wife of the deceased employee did not
make any request immediately after the
death for compassionate appointment which
shows that she was not facing any financial
crisis in the family at that time. This
reasoning was negatived by the Division
Bench of the High Court but the Apex
Court did not approve the view taken by
High Court and said:

"....there is a far more basic flaw in the
view taken by the Division Bench in that it
is completely divorced from the object and
purpose of the scheme of compassionate
appointments. It has been said a number of
times earlier but it needs to be recalled here
that under the scheme of compassionate
appointment, in case of an employee dying
in harness one of his eligible dependents is
given a job with the sole objective to
provide immediate succor to the family
which may suddenly find itself in dire straits
as a result of the death of the bread winner.
An appointment made many years after the
death of the employee or without due
consideration of the financial resources
available to his/her dependents and the
financial
deprivation
caused
to
the
1646 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
dependents as a result of his death, simply
because the claimant happened to be one of
the dependents of the deceased employee
would be directly in conflict with Articles 14
& 16 of the Constitution and hence, quite
bad and illegal. In dealing with cases of
compassionate appointment, it is imperative
to keep this vital aspect in mind.

8.
Ideally,
the
appointment
on
compassionate basis should be made
without any loss of time but having regard
to the delays in the administrative process
and several other relevant factors such as
the number of already pending claims under
the scheme and availability of vacancies
etc. normally the appointment may come
after several months or even after two to
three years. It is not our intent, nor it is
possible to lay down a rigid time limit
within
which
appointment
on
compassionate grounds must be made but
what needs to be emphasized is that such an
appointment must have some bearing on the
object of the scheme.

9. In this case the Respondent was only
11 years old at the time of the death of his
father. The first application for his
appointment was made on July 2, 1993,
even while he was a minor. Another
application was made on his behalf on
attaining majority after 7 years and 6
months of his father's death. In such a case,
the appointment cannot be said to sub-serve
the basic object and purpose of the scheme.
It would rather appear that on attaining
majority he staked his claim on the basis
that his father was an employee of the
Municipality and he had died while in
service. In the facts of the case, the
municipal authorities were clearly right in
holding that with whatever difficulty, the
family of Meenakshisundaram had been
able to tide over the first impact of his
death. That being the position, the case of
the Respondent did not come under the
scheme of compassionate appointments."

51. In the present case, respondents
No.1 to 3 claimed to have appointed
respondent No.5 by letter of appointment
dated 30/31.7.2007, as is evident from the
copy
of
her
service
book,
without
answering the question whether on that date
she was 55 years of age or 60 years.
Considering specific and clear pleadings of
the petitioner about age of respondent no.5
that she was about 65 years of age in 2007
and absence of any rebuttal/denial on the
part of respondent no.5 as also for lack of
any specific reply by respondents, I am
inclined to uphold the above submission on
the basis of uncontroverted pleadings of the
petitioner. The appointment of respondent
no.5 at the age of 65 on a Class IV post is
ex
faice
illegal
and
impermissible
considering the fact that the age of
superannuation of a Class IV employee of a
Secondary School / College is 60 years and
therefore by no stretch of imagination, a
person having crossed 60 years can be
appointed on a Class IV post.

52. Moreover, suffice it to mention
that she was not entitled for compassionate
appointment on that date not only having
not approached for such appointment within
a reasonable time but also for the reason
that there was no vacancy in Class IV post.
The respondents have completely failed to
consider that in vacancy caused by the death
of Kallu, in absence of any claim otherwise
by his legal heir, it was already filled in by
appointment of petitioner vide appointment
letter dated 15.10.2005 leaving no such
vacancy. In the second vacancy since
respondent no.4 was already appointed
therefore, respondent no.5 could not have
been appointed at all.
3 All] Dinesh Kumar V. State Of U.P. & Others
1647

53. Now coming to the validity of
appointment of respondent no.4. A copy of
service book of respondent no.4 filed along
with counter affidavit sworn by the
Principal of the College. His date of birth
has been shown as 10.7.1986.