# Jitendra Kumar v. The State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 2081
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-16
- **Case number:** Writ A No. 9392 of 2019
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-kumar-v-the-state-of-u-p-ors-44699
- **Pages:** 16

## Headnote

C.S.C.

A.
Uttar
Pradesh
Recruitment
of
Dependants of Government Servants
Dying in Harness Rules, 1974 - Rule 5 -
Compassionate appointments are an
exception and cannot be made the rule -
delay in making a claim dilutes the case
of
immediate
financial
penury
-
Petitioner's mother died in harness on
18.10.1999 - He attained majority in
2003-
Made
a
representation
on
11.10.2018 and approached this Court
by
present
petition
to
decide
the
representation - Dismissing this petition,
the High Court held - The concept of
compassionate appointments is created
2082 INDIAN LAW REPORTS ALLAHABAD SERIES
only to enable the bereaved family to
tide over the immediate financial crisis.
They are an exception and cannot be
made the rule - Mere death of an
employee in harness does not entitle his
family to such source of livelihood. (Para
14, 16, 17 & 19)

B. Strictly, this claim cannot be upheld
on the touchstone of Article 14 or 16 of
the Constitution of India. (Para 21, 24, 26
& 27)

C. Delay in making applications for
appointment on compassionate grounds
raises a presumption that the immediate
financial crisis has been tided over. (Para
23, 28, 30, 31, 32 & 33)

D. The refusal to permit agitation of stale
claims is based on the principle of
acquiescence. (Para 54)

E. The rule of delay and laches by
preventing the assertion of
belated
claims puts to final rest long dormant
claims. The policy of litigative repose,
creates certainty in legal relations and
curtails fruitless litigation. (Para 55)

C.
Emotional
distress
and
financial
penury are two distinct facts. Emotional
distress occasioned by the death of the
employee
is
not
material
for
the
appointment on compassionate grounds.
(Para 38)

D. Third party interest created on the
account of delay cannot be disturbed while
exercising extraordinary jurisdiction under
Art. 226. (Para 39, 42, 43 & 44)

Writ petition has been filed to decide
representation
dated
11.10.2018,
for
appointment on compassionate grounds.

Writ Petition dismissed (E-4)

Precedent followed: -

## Text

_Characters 0–39,982 of 51,995. This is a partial read: ask again with offset=39982 for what follows._

2 All. Jitendra Kumar Vs The State of U.P. & Ors.
2081

21. Learned Additional C.S.C., who
has appeared on behalf of all the
respondents, though sought to defend the
order passed by the Appellate Authority
but did not dispute the fact that the
Appellate Authority / Appellate Tribunal
had the power to condone the delay as per
the provisions of second proviso to
Section 90 of the Motor Vehicles Act,
1988.

22. Having considered the rival
submissions, I am of the opinion that
prima facie there appears no delay in
filing the appeals / Misc. cases before the
Tribunal however, the delay if any
noticed by the Tribunal ought to have
been condoned when the petitioners have
explained in their memo of appeal /
affidavit that the order was neither
published nor communicated and that no
knowledge about the order was received
by the petitioners upon enquiry from the
office of the respondent no. 2 and that the
copy of the order was only received by
the
petitioners
on
21.02.2019
the
Appellate Tribunal should have been
proceeded in the matter by deciding the
appeals / Misc. cases filed by the
petitioners on merits.

23. It is well settled that power to
condone the delay has to be liberally
construed to advance the cause of justice
and the limitation should not be used to
shut
out
adjudication
on
merits,
particularly, where the delay is not
inordinate which, if condoned, would
cause substantial prejudice to the other
affected party. Accordingly, this Court
considers it appropriate to set aside the
orders passed by the State Transport
Appellate Tribunal, U.P., Lucknow, dated
26.04.2019 and the Appellate Tribunal
therefore is directed to proceed in the
matter and to decide the appeals / Misc.
cases filed by the petitioners on its merit.

24. The Appellate Tribunal will
consider all legal and factual pleas on
merits to be raised before it by the
petitioners.

25. With the above directions, the
writ petition stands allowed.
----------

(2019)10ILR A 2081

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.08.2019

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ A No. 9392 of 2019

Jitendra Kumar ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ms. Manisha Chaturvedi

Counsel for the Respondents:
C.S.C.

A.
Uttar
Pradesh
Recruitment
of
Dependants of Government Servants
Dying in Harness Rules, 1974 - Rule 5 -
Compassionate appointments are an
exception and cannot be made the rule -
delay in making a claim dilutes the case
of
immediate
financial
penury
-
Petitioner's mother died in harness on
18.10.1999 - He attained majority in
2003-
Made
a
representation
on
11.10.2018 and approached this Court
by
present
petition
to
decide
the
representation - Dismissing this petition,
the High Court held - The concept of
compassionate appointments is created
2082 INDIAN LAW REPORTS ALLAHABAD SERIES
only to enable the bereaved family to
tide over the immediate financial crisis.
They are an exception and cannot be
made the rule - Mere death of an
employee in harness does not entitle his
family to such source of livelihood. (Para
14, 16, 17 & 19)

B. Strictly, this claim cannot be upheld
on the touchstone of Article 14 or 16 of
the Constitution of India. (Para 21, 24, 26
& 27)

C. Delay in making applications for
appointment on compassionate grounds
raises a presumption that the immediate
financial crisis has been tided over. (Para
23, 28, 30, 31, 32 & 33)

D. The refusal to permit agitation of stale
claims is based on the principle of
acquiescence. (Para 54)

E. The rule of delay and laches by
preventing the assertion of
belated
claims puts to final rest long dormant
claims. The policy of litigative repose,
creates certainty in legal relations and
curtails fruitless litigation. (Para 55)

C.
Emotional
distress
and
financial
penury are two distinct facts. Emotional
distress occasioned by the death of the
employee
is
not
material
for
the
appointment on compassionate grounds.
(Para 38)

D. Third party interest created on the
account of delay cannot be disturbed while
exercising extraordinary jurisdiction under
Art. 226. (Para 39, 42, 43 & 44)

Writ petition has been filed to decide
representation
dated
11.10.2018,
for
appointment on compassionate grounds.

Writ Petition dismissed (E-4)

Precedent followed: -
1. Umesh Kumar Nagpal Vs St. of Haryana,
(1994) 4 SCC 138 (Para 17)
2. Director of Education (Secondary) Vs Pushpendra
Kumar, (1998) 5 SCC 192 (Para 18)
3. Mumtaz Yunus Mulani Vs St. of Mah.,
(2008) 11 SCC 384 (Para 20)
4. St. of Haryana Vs Ankur Gupta, (2003) 7
SCC 704 (Para 21)
5. Bhawani Prasad Sonkar Vs UOI & ors.,
(2011) 4 SCC 209 (Para 26)
6. V. Sivamurthy Vs St. of A.P., (2008) 13 SCC
730 (Para 27)
7. Sanjay Kumar Vs St. of Bihar, (2000) 7 SCC
192 (Para 30)
8. Smt. Sonal Laviniya & anr. Vs UOI & anr.,
(2003) (5) AWC 4070 (Para 31)
9. Sanjeev Kumar Vs Food Corpn. Of India &
ors., Writ A No. 11083 of 2018, entered on
03.05.2018 (Para 32)
10. Shiv Kumar Dubey Vs St. of U.P., (2014)
(2) ADJ 312 (Para 33)
11. R & M Trust Vs Koramangala Residents
Vigilance Group & ors., (2005) 3 SCC 92 (Para 42)
12. Maharashtra State Rd. Transport Corpon.
Vs Balwant Regular Motor Service, AIR 1969
SC 329 (Para 43)
13. Shiv Dass Vs UOI, (2007) 9 SCC 274 (Para
44)
14. Shankara Co-op Housing Society Ltd. Vs M.
Prabhakar 7 ors., (2011) 5 SCC 607 (Para 45)
15. C. Jacob Vs Director of Geology & Min.
Indus. Est. & anr., (2008) 10 SCC 115 (Para
47)
16. S.S. Rathore Vs St. of M.P.., (1989) 4 SCC
582 (Para 48)
(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Ms. Manisha Chaturvedi,
learned counsel for the petitioner and
2 All. Jitendra Kumar Vs The State of U.P. & Ors.
2083
learned
Standing
Counsel
for
the
respondents.

2. The petitioners claims, that he is
entitled for appointment, under the dying-inharness rules. The petitioner has made, several
representations on 08.02.2015, 06.05.2017,
09.07.2017,
15.11.2017
and
lastly
on
11.10.2018, for grant of appointment on
compassionate grounds. However, the same
has not been decided till date.

3. The prayer made by the
petitioner, is for a direction to the
authorities, to decide his representation
dated 11.10.2018, for appointment on
compassionate grounds.

4. The submission of Ms. Manisha
Chaturvedi, learned counsel for the
petitioner, is that the petitioner could not
apply for appointment, on compassionate
grounds, in the immediate aftermath of
the death of his mother, since he was
minor at that point in time. The petitioner
applied for appointment after he attained
majority. The petitioner cannot be faulted,
for the delay, on his part in making such
application. Her prayer is that, the claim
of the petitioner, for appointment under
dying-in-harness rules, may be decided
within a stipulated period of time.

5. Learned Standing Counsel raises
a
preliminary
objection
to
the
maintainability of the writ petition. He
submits that the petition is barred by
delay
and
laches.
No
satisfactory
explanation to the delay and laches on
part of the petitioner, in approaching this
court has been made in the writ petition.
He submits, that the delay in making the
claim for appointment is not liable to be
condoned. The family of the petitioner,
did not face any immediate financial
crisis, upon the death of his mother.

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

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

8. The mother of the petitioner was
working on the post of Peon in the
Nazarat, Collectorate, Gorakhpur. She
died in harness on 18.10.1999. The
petitioner was a minor, at the time of the
death of his mother. Petitioner claims, that
he attained majority, in the year 2003.

9. The petitioner submitted an
application, for grant of appointment, on
compassionate grounds, for the first time on
13.07.2007. Thereafter several applications,
were submitted by the petitioner, on
06.05.2017 and 11.10.2018 ,before the
authority
concerned.
The
respondent
authorities, did not act upon his claim, and
failed to appoint him, under the "U.P.
Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974".

10. The petitioner approached this Court
by instituting the instant writ petition, on
28.05.2019, with a prayer to decide the
representation
of
the
petitioner
dated
11.10.2018. The said representation of the
petitioner, for appointment on compassionate
grounds was moved almost 19 years after the
death of the mother of the petitioner. The writ
petition has been instituted by the petitioner,
almost 20 years after the death of his mother.

11. This is the admitted case of the
petitioner.
2084 INDIAN LAW REPORTS ALLAHABAD SERIES

12. 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 " Dying in
Harness Rules").

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

14. 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.

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

16. 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.

17. 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
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
2 All. Jitendra Kumar Vs The State of U.P. & Ors.
2085
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."

18. 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
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
2086 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

19. 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.

20. 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:

"However, it is now a wellsettled 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."

21. 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 in State of
Haryana v. Rani Devi [(1996) 5 SCC 308
2 All. Jitendra Kumar Vs The State of U.P. & Ors.
2087
: 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. In LIC of India
v. 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 in Umesh
Kumar
Nagpal
v.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. In Director 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 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
2088 INDIAN LAW REPORTS ALLAHABAD SERIES
thereby nullify the main provision by
taking
away
completely
the
right
conferred by the main provision.

22. 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.

23. 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.

24. 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.

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

26. 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
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
2 All. Jitendra Kumar Vs The State of U.P. & Ors.
2089
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."

"In Umesh Kumar Nagpal v.
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)

1. "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
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
2090 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

27.

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."

28. 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.

29. 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.

30. 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 in Director of
Education v. 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 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."

31. 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,
2 All. Jitendra Kumar Vs The State of U.P. & Ors.
2091
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."

32. 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."

33. 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:

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;

[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;

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;
2092 INDIAN LAW REPORTS ALLAHABAD SERIES

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;

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]

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 within which 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).

34. 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.

35. The mother of the petitioner died in
harness on 18.10.1999. The petitioner made
an application for grant of appointment on
compassionate grounds on 11.10.2018. Delay
in making the application for appointment on
compassionate grounds, is defended on the
sole ground, that on the date of death of the
mother of the petitioner, the petitioner was
minor. 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.

36. Moreover, in the light of the
discussion in the earlier part of the
judgment, post cannot be kept reserved,
for the kin of a deceased employee, till
they attain majority.

37. 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 mother 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.

38. Emotional distress and financial
penury are two distinct facts. Emotional
2 All. Jitendra Kumar Vs The State of U.P. & Ors.
2093
distress occasioned by the death of the
employee is not material for appointment
on compassionate grounds. Immediate
financial penury, caused to the family by
the death of the employee, is the only
relevant consideration for appointment
under dying-in-harness rules.

39. There is yet another aspect of the
matter. The petitioner has approached this Court
20 years, after the cause of action arose. The
issue of delay and laches on the part of the
petitioner, as pointed out by learned Standing
Counsel, shall now be considered. The petition is
barred by delay and laches. The petitioner has
approached this Court almost after 20 years from
the date of death of his mother. There is no
satisfactory explanation for laches and the delay
in filing the petition on the part of the petitioner.
Further third party rights have been entrenched.
The law has long set its face against the indolent
litigants to approach this Court after a long
delay.

40.