# Kapil Kumar v. State of U.P. and others

- **Citation:** (2009) 1 ILRA 101
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-11-04
- **Case number:** Special Appeal No. 909 of 2007
- **Bench:** S. Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kapil-kumar-v-state-of-u-p-and-others-41293
- **Pages:** 5

## Headnote

Constitution
of
India-Art.226Compassionate appointment claimed by
dependent of Seasonal worker-No Such
Scheme
providing
compassionate
appointment existed either prior or after
the death of such seasonal employeeabsence of policy or rule-can not be
claimed as a matter of right-single judge
rightly declined to grant any relief.

Held: Para 12

In the case in hand, it is admitted
position that there is no scheme for
providing compassionate appointment to
the seasonal employee. The question as
to whether the claim for compassionate
appointment can be considered at par
with the regular employee, we do not
propose to repeat except to find it
appropriate to record our agreement
with detailed reasons given by the
Hon'ble Single Judge considering the
distinction between regular and seasonal
employees
and
various
terms
and
conditions of their services in order to
hold that they do not stand at par but
constitute two different classes.

Case law discussed:
AIR 1996 SC 580=1995 SCW4500, 2006 (1)
ESC
316,
2007(3)SC398,
2006(7)SCC350,
1994(3)SC525,
(2006)5
SCC
523,
1996(5)SCC308, (1994)2SCC718.

(De levered by Hon'ble S. Rafat Alam, J.)

## Text

1 All] Kapil Kumar V. State of U.P. and others
101
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2008

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. 909 of 2007

Kapil Kumar

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

Counsel for the Appellant:
Sri S.N. Pandey
Sri Havaldar Verma

Counsel for the Respondents:
Sri Ravindra Singh
S.C.

Constitution
of
India-Art.226Compassionate appointment claimed by
dependent of Seasonal worker-No Such
Scheme
providing
compassionate
appointment existed either prior or after
the death of such seasonal employeeabsence of policy or rule-can not be
claimed as a matter of right-single judge
rightly declined to grant any relief.

Held: Para 12

In the case in hand, it is admitted
position that there is no scheme for
providing compassionate appointment to
the seasonal employee. The question as
to whether the claim for compassionate
appointment can be considered at par
with the regular employee, we do not
propose to repeat except to find it
appropriate to record our agreement
with detailed reasons given by the
Hon'ble Single Judge considering the
distinction between regular and seasonal
employees
and
various
terms
and
conditions of their services in order to
hold that they do not stand at par but
constitute two different classes.

Case law discussed:
AIR 1996 SC 580=1995 SCW4500, 2006 (1)
ESC
316,
2007(3)SC398,
2006(7)SCC350,
1994(3)SC525,
(2006)5
SCC
523,
1996(5)SCC308, (1994)2SCC718.

(De levered by Hon'ble S. Rafat Alam, J.)

1. Aggrieved by the judgment dated
22.12007 passed by the Hon'ble Single
Judge dismissing the appellant's Civil
Misc. Writ Petition No. 40099 of 2006,
this intra Court appeal under the Rules of
the Court has been preferred by the
appellant contending that there is no
substantial distinction between a regular
employee and a seasonal employee and,
therefore,
once
the
scheme
for
compassionate appointment was extended
and adopted for regular employee, the
same would be deemed applicable to the
seasonal
employees.
It
is
further
contended
that
being
a
seasonal
employee, the father of the petitioner-
appellant had a right to be engaged
continuously in the successive seasons,
meaning thereby, for all purposes he was
a regular employees and, therefore,
cannot be denied the benefit of the
provisions of compassionate appointment
only on the basis that the petitioner-
appellant's father was engaged as seasonal
employee. Lastly, it is contended that the
Sugar
company
itself
a
Seasonal
Department and, therefore, it can of be
said that the seasonal employee, are not at
par with the regular employee. For this
purpose reliance has been placed on
Aspinwall
&
Co.,
Kulshekar,
Mangalore versus lalitha Padugay &
others, AIR 1996 SC 580 = AIR 1995
SCW 4500. Placing reliance on a
Division Bench judgment of this Court in
the case of State of U.P. & others Vs.
Smt. Malti Devi, 2006 (1) ESC 316, it is
contended that in respect to a government
102 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
servant, this Court has taken a view that
even a daily wager is entitled to get the
benefit of the Rules pertaining to
compassionate
appointment
and,
therefore, there is no reason for not
extending the same to the seasonal
employees of the sugar mills and any
view otherwise is violative of Articles 14
and 16 of the Constitution of India.

2. From the record it appears that the
appellant's father late Sri Bir Singh was
engaged as Seasonal Clerk in Sahkari
Ganna Vikas Limited, Daurala, District
Meerut sometimes in February, 1997 and
died while working in the same capacity
on 1.6.2005 leaving behind his widow and
other children including the appellant.
The
appellant
said
to
have
filed
applications on 13.7.2005 and 22nd
December, 2005 before the Secretary,
Ganna Vikas Limited, Daurala, District
Meerut and the District Cane Officer,
Meerut
requesting
them
to
grant
compassionate appointment to him. The
aforesaid authorities found that there is no
provision
for
giving
compassionate
appointment to the legal heirs of Seasonal
Employee, hence could not accept the
request of the appellant. The petitioner
appellant further made a representation to
the Cane Commissioner, Meerut in this
regard which was also rejected vide order
dated 27th March, 2006 whereupon the
appellant preferred Civil Misc. Writ
Petition No. 40099 of 2006 challenging
the order dated 27th March, 2006 of the
Cane Commissioner, Meerut as also the
order dated 26th May, 2000, copies
whereof are enclosed as Annexures-1 and
6 to the writ petition. He also sought a
writ of mandamus commanding the
respondents to provide appointment on
compassionate basis commensurating to
his qualification. The Hon'ble Single
Judge, having considered the submissions
at length has dismissed the writ petition
vide judgment dated 22.1.2007 which is
impugned in this intra Court appeal.

3. Learned counsel for the appellant
vehemently contended that the denial of
beneficiary scheme of compassionate
appointment to the legal heirs of the
seasonal employee is patently arbitrary,
particularly, when such a scheme is
available to the legal heirs of regular
employees and in support of the aforesaid
submission
placed
reliance
on
the
aforesaid decisions, namely, Aspinwall
(supra) and State of U.P. & others Vs.
Smt. Matti Devi (supra).

4. However, we do not find any
reason to take a different view what has
been taken by the Hon'ble Single Judge.

5. The learned counsel for the
appellant could not dispute this fact that
either on the date of death of his father or
even thereafter no such provision or
scheme
was/is
in
existence
which
provides
for
appointment
on
compassionate basis to the legal heirs of
seasonal employee in a Co-operative
Sugar Development Society. Suffice it to
mention at this stage that compassionate
appointment is not a matter of right unless
it is provided in the statute or in a scheme,
having force of law or binding upon the
employer
or
the employee of the
concerned department. The appointment
in harness is not a regular source of
recruitment. It can be given only if it is
provided in the statute, scheme or
otherwise. In normal course, there are two
sources of recruitment generally provided,
one is direct and second is by promotion
of
the
employees
working
in
the
establishment itself. In respect to the
1 All] Kapil Kumar V. State of U.P. and others
103
direct recruitment a procedure consistent
with Article 16 of the Constitution of
India is to be followed, i.e. advertisement
of the vacancies to public at large to
ensure their right of consideration for
employment of those persons, who are
eligible
for
consideration
for
such
employment.
The
Apex
Court
has
observed, time and again, that the
appointment on compassionate ground is
an exception carved out to the general
rule that recruitment to public services is
to be made in a transparent and
accountable
manner
providing
opportunity to all eligible persons to
compete and participate in the selection
process. The dependants of the employees
died in harness do not have any special or
additional claim to public services other
than the one conferred, if any, by the
employer. (See. State Bank of India &
another Vs. Somvir Singh, JT 2007 (3)
SC398).

6. The whole object of granting
compassionate appointment is to enable
the family to tied over the sudden
financial crisis. The object is not to give a
member of such family a post much less a
post held by the deceased. Deprecating
the
large
scale
appointments
on
compassionate basis ignoring the normal
process of recruitment, in Union of India
& others Vs. M.T. Latheesh, 2006(7)
SCC 350, the Apex Court said that
indiscriminate grant of employment on
compassionate basis would shut the door
for employment to the ever-growing
population of unemployed youth. Since
the appointment on compassionate basis
is an exception to the general rule of
recruitment, it has to be followed strictly
and cannot be expanded by process of
interpretation or by other means. The
general judicial approach in such a matter
is not in favour of widening the scope of
compassionate appointment. The object is
to provide appointments in accordance
with the general rule of recruitment
consistent with Article 16(1) of the
Constitution, except strictly of such cases
which fall within the four corner of the
scheme
meant
for
compassionate
appointment.

7. In Umesh Kumar Nagpal Vs.
State of Haryana, JT 1994 (3) SC 525
the Apex Court held "As a rule,
appointments in 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 interest
of
justice
and
to
meet
certain
contingencies. One such exception is in
favour of the dependents 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 dependents of the deceased
who
may
be
eligible
for
such
employment."

8. In State Bank of India &
another Vs. Somvir Singh (supra) the
Apex Court also observed that the
compassionate
appointment
can
be
104 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
considered only in accordance with the
scheme framed by the employer and no
discretion as such is left with any of the
authorities
to
make
compassionate
appointment de hors the scheme. The
Apex
Court
therein
held
"in
our
considered
opinion
the
claim
for
compassionate appointment and the right,
if any, is traceable only to the scheme,
executive instructions, rules etc. framed
by the employer in the matter of providing
employment on compassionate grounds,
There is no right of whatsoever nature to
claim compassionate appointment on any
ground other than the one. if any,
conferred by the employer by way of
scheme or instructions as he case may
be."

9. Earlier also similar view was
taken
In
Indian
Durgs
&
Pharmaceuticals Ltd. Vs. Devki Devi
&others, (2006) 5 SCC 523. Referring to
State of Haryana Vs. Rani Devi,
1996(5) SCC 308 the Apex Court
observed in para-11 of the judgment in
Indian Durgs& Pharmaceuticals Ltd.
Vs. Devki Devi &others (supra) that the
appointment on compassionate ground
can not be claimed as a matter of right.
Dying In harness scheme cannot be made
applicable
to
all
types
of
posts
irrespective of the nature of service
rendered by the deceased employee.

10. In State of Haryana Vs. Rani
Devi (supra) the Apex Court held that a
scheme
regarding
appointment
on
compassionate ground if extended to all
types of causal or ad hoc employees
including
those
who
worked
as
apprentices
cannot
be
justified
on
constitutional grounds. Such kind of claim
though
cannot
be
upheld
on
the
touchstone of Article 14 and 16 of the
Constitution of India but has been upheld
only on the consideration of providing
measure of sustenance to the family of the
deceased employee due to sudden demise
of the sole bread earner to save the family
from starvation and penury.

11. In LlC of India Vs. Asha
Ramchandra Ambekar, (1994) 2SCC
718 the Apex Court held that if the
regulations framed by LlC do not
contemplate compassionate appointment,
it is not permissible for the Court or the
Tribunal to confer benediction impelled
by sympathetic considerations.

12. In the case in hand, it is admitted
position that there is no scheme for
providing compassionate appointment to
the seasonal employee. The question as to
whether
the
claim
for
passionate
appointment can be considered at par with
the regular employee, we do not propose
to repeat except to find it appropriate to
record our agreement with detailed
reasons given by the Hon'ble Single Judge
considering
the
distinction
between
regular and seasonal employees and
various terms and conditions of their
services in order to hold that they do not
stand at par, but constitute two different
classes.

13. The judgement cited by the
learned counsel for the appellant do not
apply at all to the basic issue raised in this
matter and, therefore, do not help him in
any manner. In Aspinwall (supra) the
dispute was with respect to computation
of gratuity of seasonal workers under the
Payment of Gratuity Act and there is
nothing which may help the appellant in
respect to the issues raised before this
Court in this special appeal. Similarly
Smt. Malti Devi (supra) also has no
1 All] Regional Manager, U.P.S.R.T.C., Agra V. Compotar
105
application to the issue involved in this
case.

14. In view of the aforesaid
discussions, we do not find any error in
the judgment of the Hon'ble Single Judge
impugned in this appeal and, in our view,
the writ petition has rightly been
dismissed by his Lordship holding that the
petitioner-appellant was not entitled for
any relief.

15. The special appeal lacks merit
and it is accordingly dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE RAN VIJAI SINGH, J.

Special Appeal No. 1092 of 2007

Regional
Manager,
U.P.
State
Road
Transport Corporation, Agra ...Appellant

Versus
Compotar

...Respondents

Counsel for the Appellant:
Sri Samir Sharma

Counsel for the Respondents:
Sri B.P. Verma

Road Transport Corporation Act 1950,
Section-4Motor Vehicle Act 1988-Section
173 readwith Motor Vehicle Rules 1988Rule
204(1)-readwith
Code
of
Civil
Procedure Order 1 Rule 3-Appeal against
motor accident claim Tribunal award-by
Regional Manager of the Corporationheld the owner of vehicle is Corporation
and not the Regional Manager-appeal
not maintainable.

Held: Para 14

From reading of Rule 3 of Order 1 CPC
with Rule 204 and 207 of the Rules it is
clear that the owner of the vehicle and
insurer of the vehicle, are necessary
parties to a claim petition. The Regional
Manager, U.P. State Road Transport
Corporation, Agra is not owner of the
Bus involved in the accident. The owner
of the Bus is the U.P. State Road
Transport Corporation, therefore, the
appeal ought to have been filed by the
U.P. State Road Transport Corporation
through its Managing Director and the
appeal filed by the Regional Manager
who
is
simply
an
officer
of
the
corporation is not maintainable.
Case law discussed:
1977 SC 1701, (2003) 3 SCC 472

(Delivered by Hon'ble V.M. Sahai, J.)

1. This appeal under section 173 of
Motor Vehicles Act, 1988 (in brief the
Act 1988) has been filed by Regional
Manager, U.P. State Road Transport
Corporation, Agra challenging the award
of the Motor Accident Claims Tribunal,
Mathura dated 16.01.2007.

2. The brief facts are that an
accident took place on 24.12.2000 at 5.30
P.M. with Bus No. UP-80/E-9852 which
hit Moped on which the claimant and his
friend were traveling. Due to injuries
suffered in the accident the right hand of
the claimant was amputated and the
claimant filed the claim petition under
section
166
of
the
Act
claiming
Rs.15,000/- as compensation along with
12% interest for the permanent disability
suffered by him. The claim petition was
contested by the applicant. The Motor
Accident Claims Tribunal recorded a
finding that the accident took place due to
rash and negligent driving of the driver of
the Bus. It further held that insurer of
Moped was not necessary party. After
considering the facts and circumstances of