# Kuldeep Kumar Mishra v. The Zila Prabhandhak and others

- **Citation:** (2012) 1 ILRA 480
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-20
- **Case number:** Civil Misc. Writ Petition No. 15378 of 2009
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kuldeep-kumar-mishra-v-the-zila-prabhandhak-and-others-42208
- **Pages:** 6

## Headnote

Constitution
of
India,
Article
226compassionate
appointment-claimed
after
18
years
delay-only
reason
disclosed
pendency
of
dispute
of
1 All] Kuldeep Kumar Mishra V. The Zila Prabhandhak and others
481
succession-held-rejection
propercompassionate appointment can not be
claimed as a matter of right.

Held: Para 9

The contention of the petitioner that on
account
of
succession
dispute
the
application remained pending, therefore,
the delay could not defeat his right, is
not
sustainable.
The
purpose
of
succession certificate is to enable the
debtor of the deceased person to seek a
valid discharge by making payment to its
holder. Thus, even if there had been a
dispute with regard to succession for
entitlement to the terminal dues payable
to the deceased employee, there was no
impediment
for
the
petitioner
to
approach the Court, on pressing need, if
there was any, for appointment on
compassionate ground. After such a long
lapse, particularly, when the claim for
compassionate appointment was not
pending before any court, there is no
justification to consider appointment on
compassionate
ground,
as
the
very
purpose for which it is provided stands
exhausted.
Case law discussed:
(1994) 1 SCC 192; (2009) 7 SCC 295; (2007) 9
SCC 571; (2009) 13 SCC 112; (2009) 6 SCC
481

## Text

480 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Further, assumption on the part of the
Tribunal that giving free accommodation
to about 50% of workmen while depriving
others even from house allowance is
discriminatory, also has no basis for the
reason that the facility of housing
accommodation has not been extended by
employer on a pick and choose method
but subject to availability and is provided
following the valid criterion of seniority.
It is voluntary also.

22. Parity with State Government
employees is also something which has
misguided the Tribunal, inasmuch as,
once
it
is
held
that
housing
accommodation
is
the
prime
responsibility of State, what is applicable
to employees of the State Government
would not apply suo motu to employees
of a private industrial establishment.
Besides, the Tribunal has also not
considered anything as to how and why it
was justified in awarding HRA at the rate
of 10% of the basic salary from the date
of appointment of workmen, inasmuch as,
there is nothing on record to show that the
workmen
raised
any
such
dispute
immediately after their appointment or
within a reasonable time thereafter. If
some workmen have already worked for
decades
together
without
being
dissatisfied
with
non-availability
of
housing accommodation or HRA in lieu
thereof, and they are given housing
accommodation seniority-wise as soon as
it becomes available, the Court finds no
justification to allow payment of HRA to
such
workmen
with
such
a
long
retrospectivity causing an extraordinary
financial burden on the employer. In fact,
on this aspect also the tribunal has not at
all considered anything and in a most
casual and abrupt manner, also without
application of mind, it has passed the
award granting relief of house allowance
from the date of appointment. This
direction, therefore, also in my view is
illegal and unsustainable.

23. In view of the above discussion,
the
Tribunal
was
not
justified
in
answering the reference in favour of
workmen and the amount of housing
allowance awarded with retrospective
effect, cannot sustain.

24. Resultantly, the writ petition
succeeds and is allowed. The impugned
award
dated
29th
April
1991
in
Adjudication Case no. 40 of 1989
(Annexure 4 to the writ petition) is hereby
quashed.

25. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2012

BEFORE
THE HON'BLE MANOJ MISRA,J.

Civil Misc. Writ Petition No. 15378 of 2009

Kuldeep Kr. Misra

 ...Petitioner
Versus
The Zila Prabhandhak and others

 ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar (Sharma)
Sri Sant Ran Sharma

Counsel for the Respondents:
Sri N.P. Singh
Sri N.P. Singh
Sri M.P. Singh

Constitution
of
India,
Article
226compassionate
appointment-claimed
after
18
years
delay-only
reason
disclosed
pendency
of
dispute
of
1 All] Kuldeep Kumar Mishra V. The Zila Prabhandhak and others
481
succession-held-rejection
propercompassionate appointment can not be
claimed as a matter of right.

Held: Para 9

The contention of the petitioner that on
account
of
succession
dispute
the
application remained pending, therefore,
the delay could not defeat his right, is
not
sustainable.
The
purpose
of
succession certificate is to enable the
debtor of the deceased person to seek a
valid discharge by making payment to its
holder. Thus, even if there had been a
dispute with regard to succession for
entitlement to the terminal dues payable
to the deceased employee, there was no
impediment
for
the
petitioner
to
approach the Court, on pressing need, if
there was any, for appointment on
compassionate ground. After such a long
lapse, particularly, when the claim for
compassionate appointment was not
pending before any court, there is no
justification to consider appointment on
compassionate
ground,
as
the
very
purpose for which it is provided stands
exhausted.
Case law discussed:
(1994) 1 SCC 192; (2009) 7 SCC 295; (2007) 9
SCC 571; (2009) 13 SCC 112; (2009) 6 SCC
481

(Delivered by Hon'ble Manoj Misra,J. )

1. I have heard Sri Manoj Kumar
Sharma, counsel for the petitioner and Sri
N.P. Singh, counsel for the respondents
and have perused the record. As pleadings
are complete, with the consent of the
counsel for the parties, the petition is being
finally disposed of at the admission stage.

2. The facts, in brief, are that one
Mahendra Nath Misra, who was an
employee of Food Corporation of India,
working on the post of AG-III(Store),
Jhansi, died in harness on 04.12.1991. The
petitioner claims himself to be younger
brother of deceased Mahendra Nath Misra.
It is claimed by the petitioner that his
brother
Mahendra
Nath
Misra
was
suffering from Leprosy as well as Cancer.
Since he was unmarried, the petitioner was
looking
after
him,
and
in
return,
petitioner's elder brother provided for
education of the petitioner. Consequent to
the death of his elder brother, the
petitioner, on 10.02.1992, applied for
appointment on compassionate ground.
This application of the petitioner remained
pending on account of a succession dispute
between one Uma Devi, who claimed
herself to be the legally wedded wife of
Mahendra Nath Misra, and the parental
family of Mahendra Nath Misra. It is
claimed that the Civil Court ultimately, in
the year 2004, decided the dispute whereby
the claim of Uma Devi was rejected and
the succession certificate granted in favour
of the mother of the petitioner was upheld.
After conclusion of the succession case,
the petitioner again set in motion his claim
for compassionate appointment, which was
rejected by the order dated 17.11.2008.
The ground for rejection of the claim was
that under the Govt. of India's instructions
only widow/ son/ daughter /adopted son or
adopted daughter could be considered for
compassionate appointment, therefore, the
petitioner, who was brother of the
deceased employee, was not eligible for
consideration. It is this order, which has
been impugned in this petition.

3. Along with his writ petition, the
petitioner has enclosed a copy of circular
No. 29 of 1990 dated August 20, 1990,
which
contains
the
scheme
for
compassionate
appointment
of
a
son/daughter/near relative of the deceased
employee of Food Corporation of India.
482 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

4. The counsel for the petitioner
submitted that under the scheme, which
was operative on the date of death of his
elder brother, the benefit of compassionate
appointment was available to a "near
relative" also. He claimed, that since the
term "near relative" has not been defined,
it would, therefore, include a brother. He
contended that the application of the
petitioner
for
appointment
on
compassionate ground was thus wrongly
rejected. On the question of delay of nearly
18 years in approaching this court for
seeking compassionate appointment, the
counsel for the petitioner submitted that
the delay was not on the part of the
petitioner, but for the reason that no orders
were passed on his application on account
of the succession dispute. More over, he
submitted,
that
the
scheme
for
compassionate appointment did not bar an
application
submitted
with
a
delay.
Referring to Clause VI of the Scheme,
which
provides
that
the
appointing
authority can also consider the request for
compassionate appointment even when the
death took place long ago, say five years or
so, he submitted that the application can be
entertained. He has further submitted that
the delay cannot defeat his right to seek
compassionate appointment, which had
accrued to him on the date of the death of
his brother.

5. Per contra, Sri N.P. Singh, who
appeared for the Food Corporation of
India, submitted that although the scheme
for
compassionate
appointment
had
provided
for
appointment
of
a
son/daughter/near relative of the deceased
employee
of
a
corporation,
but
subsequently, under the directions of the
Apex Court in the case of Auditor
General of India and others versus G.
Ananta Rajeswara Rao reported in
(1994) 1 SCC 192 decided on 8.4.1993,
vide circular No. 7 of 1997 dated
31.3.1997 the term "near relative" was
deleted from the scheme and since then
only a widow, son or daughter including
adopted son or adopted daughter are
entitled to be considered for appointment
on compassionate ground. Sri N.P. Singh
further submitted that the object of
compassionate appointment is to provide
succour to the bereaved family so as to
enable it to tide over sudden crisis caused
on account of the death of its bread winner.
He submitted that the right to seek
compassionate appointment is not a right
which can be said to be vested in the
applicant. It is only a right to be considered
for
compassionate
appointment.
He
submits that in the instant case, the brother
of the petitioner had died in the year, 1991
whereas the petitioner waited for nearly 18
long years to petition this court for
compassionate appointment. He submits
that even if there was a dispute relating to
succession,
the
appointment
on
compassionate ground could have been
claimed with the intervention of the Court.
It was submitted that since the petitioner
has not approached the Court within a
reasonable period, an adverse inference
should be drawn with regards to the
pressing need of the petitioner, and that
since in any case the period of crisis is
over,
the
question
of
providing
compassionate appointment does not arise.

6. The counsel for the petitioner in
his rejoinder submissions contended that
the deletion of the term "near relative"
would not affect his right as the petitioner
had already applied under the unamended
scheme, therefore, the application should
have been considered on the basis of the
old scheme.
1 All] Kuldeep Kumar Mishra V. The Zila Prabhandhak and others
483

7. After having considered the rival
submissions of the parties, I am of the view
that
since
the
appointment
on
compassionate ground is an exception to
the fundamental principle enshrined under
Article 16(1) of the Constitution of India,
which provides that there shall be equality
of opportunity for all citizens in matters
relating to employment or appointment to
any office under the State, the benefit of
compassionate
appointment
can
be
allowed only with a view to provide for the
bereaved family to tide over sudden crisis
caused on account of the death of its bread
winner. This benefit of compassionate
appointment cannot be used as an alternate
source of recruitment. The Apex Court in
the case of Auditor General of India
(supra) deprecated the term near relative
as vague and undefined. The relevant
portion of the judgment of the apex court,
as contained in paragraph no.5, is
reproduced below:

"A reading of these various clauses in
the Memorandum discloses that the
appointment on compassionate grounds
would not only be to a son, daughter or
widow but also to a near relative which
was vague and undefined. A person who
dies in harness and whose members of the
family need immediate relief of providing
appointment to relieve economic distress
from the loss of the bread-winner of the
family need compassionate treatment. But
all possible eventualities have been
enumerated to become a rule to avoid
regular recruitment. It would appear that
these enumerated eventualities would be
breeding
ground
for
misuse
of
appointments on compassionate grounds.
Articles
16(3)
to
16(5)
provided
exceptions. Further exception must be on
constitutionally valid and permissible
grounds. Therefore, the High Court is right
in holding that the appointment on grounds
of descent clearly violates Article 16(2) of
the Constitution. But, however it is made
clear that if the appointments are confined
to the son/daughter or widow of the
deceased government employee who died
in harness and who needs immediate
appointment on grounds of immediate need
of assistance in the event of there being no
other earning member in the family to
supplement the loss of income from the
bread-winner to relieve the economic
distress of the members of the family, it is
unexceptionable. But in other cases it
cannot be a rule to take advantage of the
Memorandum to appoint the persons to
these posts on the ground of compassion.
Accordingly, we allow the appeal in part
and hold that the appointment in para 1 of
the Memorandum is upheld and that
appointment on compassionate ground to a
son, daughter or widow to assist the family
to relieve economic distress by sudden
demise in harness of government employee
is valid. It is not on the ground of descent
simpliciter, but exceptional circumstance
for the ground mentioned. It should be
circumscribed with suitable modification
by an appropriate amendment to the
Memorandum limiting to relieve the
members of the deceased employee who
died in harness from economic distress. In
other respects Article 16(2) is clearly
attracted."

Keeping in view the aforesaid
observations made by the Apex Court, a
circular was issued by the respondentcorporation thereby deleting the term near
relative from the category of eligible
persons entitled to avail the benefit of
compassionate appointment. However, in
the instant case the deletion of the term
"near relative" may not be fatal to the
claim of the petitioner, as his application
484 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
was filed before the amendment of the
scheme. In that regard reference may be
made to the Apex Court's decisions in the
cases of Maharani Devi & Another
versus Union of India & others reported
in (2009) 7 SCC 295 and SBI versus
Jaspal Rana (2007) 9 SCC 571. But
there is another reason to deny relief to
the petitioner, and that is, the delay of 18
years on the part of the petitioner in
approaching the court for appointment on
compassionate ground.

8. The object of compassionate
appointment
is
not to
provide
an
alternative route for appointment, but to
ameliorate the condition of the bereaved
family caused on account of sudden death
of its bread-winner. It is not a vested right
which can be exercised at leisure. In the
case of Eastern Coalfields Limited v.
Anil Badyakar & Others reported in
(2009) 13 SCC 112, the Apex Court said:

" The principles indicated above
would give a clear indication that the
compassionate appointment is not a
vested 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."

Likewise, in the case of Santosh
Kumar Dubey v. State of Uttar Pradesh
and Others reported in (2009) 6 SCC
481, the Apex Court, observed as under:

"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."

9. The contention of the petitioner
that on account of succession dispute the
application remained pending, therefore,
the delay could not defeat his right, is not
sustainable. The purpose of succession
certificate is to enable the debtor of the
deceased person to seek a valid discharge
by making payment to its holder. Thus,
even if there had been a dispute with
regard to succession for entitlement to the
terminal dues payable to the deceased
employee, there was no impediment for
the petitioner to approach the Court, on
pressing need, if there was any, for
appointment on compassionate ground.
After such a long lapse, particularly, when
the claim for compassionate appointment
was not pending before any court, there is
no justification to consider appointment
on compassionate ground, as the very
purpose for which it is provided stands
exhausted.

10. For the reasons aforesaid,
compassionate appointment cannot be
provided to the petitioner. The petition is,
1 All] Tapeshwar Prasad Gautam V. State of U.P. and others
485
therefore, liable to be dismissed and is,
accordingly, dismissed. No order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2012

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 15950 of 2012

Tapeshwar Prasad Gautam ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Lalji Chaudhary

Counsel for the Respondent:
C.S.C.

U.P.
Secondry
Education
Service
Selection Board, Act 1982-Section 16
(2)-payment
of
salary-petitioner
appointed as Assistant Teacher simply
on
application
without
following
procedures
of
appointment-without
creation of Post-claiming salary on basis
of Apex Court direction in Chandigarh
Administration Case-held-misconceived
in view of Gopal Dubey (FB) Case-salary
can not be paid from state fundappointment
being
contractual-can
pursue Civil suit against Manager.

Held: Para 9

In view of the aforesaid, no relief as
prayed for by the petitioner can be
granted. The petitioner has not been
able to demonstrate that he has been
appointed in the institution under the
provisions
of
the
Intermediate
Education Act or under the provisions of
the U.P. Act No. 05 of 1982. The
appointment of the petitioner appears
to be purely contractual. The petitioner
may seek his remedy, qua payment of
salary, against the manager by way of
Civil Suit.
Case law discussed:
2000 (2) SCC 42; 1999 (1) UPLBEC 01

(Delivered byHon'ble Arun Tandon, J. )

1. Petitioner before this Court seeks
a writ of mandamus directing the
respondents to pay salary to the petitioner
in the grade of Rs.5500-9000 w.e.f.
15.07.1996 along with interest through an
account payee cheque, in the alternative
to consider and decide his representation
dated 19.01.2012.

2. It is the case of the petitioner that
Jai Sat Gurudev Janta Inter College,
Dullahpur, Ghazipur is an institution
recognized under the provisions of the
Intermediate Education Act, 1921 (herein
after referred to as the Act, 1921). It is
further stated that the institution has been
taken on grant-in-aid list in the year 1983
and the provisions of U.P. Act No. 24 of
1971 were made applicable to the said
institution. In paragraph 5 of the writ
petition, it is stated that the petitioner was
appointed as Assistant Teacher (Social
Science) vide letter dated 10.07.1996. He
joined the institution on 15.07.1996. The
respondent, Committee of Management,
is
not
making
payment
of
salary
admissible to the post of Assistant
Teacher of an Intermediate College. On
the contrary petitioner is being paid a
meager amount. It is submitted that the
petitioner is discharging the same duties
as are being discharged by any other
Assistant
Teachers
working
in
the
institution.

3. Reliance has been placed upon the
judgment of the Hon'ble Supreme Court
in
the
case
of
Chandigarh
Administration and others vs. Mrs.