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

- **Citation:** (2016) 3 ILRA 91
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-23
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-v-state-of-u-p-ors-43617
- **Pages:** 6

## Headnote

Service Law - Compassionate Appointment - Death in Harness - Claim by Brother - Minor at the
time of death - Delay of 12 years - Definition of "Family" - U.P. Recruitment of Dependants of
Government Servants Dying in Harness Rules, 1974 - Amendment of 2001 - Scope and object of
compassionate appointment - Right, nature of - Held, not a matter of right - Crisis must be
immediate and subsisting

## Text

3 All. Manoj Kumar Vs. State Of U.P. & Ors.
91

18. Writ petition is allowed, accordingly.

19. No order as to the costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No.- 8212 of 2016

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

Counsel for the Petitioner:
Veer Bhagat Singh Kushwah, Vijay Prakash Singh Kushw

Counsel for the Respondents:
C.S.C., Sunil Kumar

Service Law - Compassionate Appointment - Death in Harness - Claim by Brother - Minor at the
time of death - Delay of 12 years - Definition of "Family" - U.P. Recruitment of Dependants of
Government Servants Dying in Harness Rules, 1974 - Amendment of 2001 - Scope and object of
compassionate appointment - Right, nature of - Held, not a matter of right - Crisis must be
immediate and subsisting
1. That compassionate appointment is not a matter of right, and its object is only to enable the family
of the deceased employee to tide over the immediate financial crisis caused by death in harness; such
object cannot be presumed to subsist after a lapse of long time. (Paras 6, 7)

2. That mere minority of the claimant on the date of death of the employee does not justify
condonation of long delay, particularly when the application for compassionate appointment is moved
nearly 12 years after the death of the deceased employee. (Paras 6, 7)

3.That "brother" was not included within the definition of "family" under the Rules of 1974 on the date
of death (1998), and the subsequent amendment of 2001 cannot be applied retrospectively to create
a right which did not exist on the relevant date. (Paras 5, 7)

4. That compassionate appointment cannot be claimed after the crisis is over, and permitting such
claims after long lapse of time would convert compassionate appointment into an alternate mode of
recruitment, which is impermissible in law. (Paras 6, 7, 8, 9)

5 That no provision has been shown under the applicable rules recognising any vested right of a minor
to claim compassionate appointment on attaining majority, after a substantial lapse of time from the
date of death of the employee. (Para 10)
92 INDIAN LAW REPORTS ALLAHABAD SERIES
Held (Paras 5,11)That the rejection of the petitioner's claim by the State Government does not
suffer from any illegality or arbitrariness, warranting interference under Article 226 of the Constitution
of India. Dismissed
Case Law discussed:
1.
Umesh Kumar Nagpal v. State of Haryana & others, (1994) 4 SCC 138 - Paras 7, 8
2.
Haryana State Electricity Board v. Hakin Singh, (1997) 8 SCC 85 - Para 8
3.
Haryana State Electricity Board v. Naresh Tanwar & another, (1996) 2 JT 542 - Para 8
4.
Jagdish Prasad v. State of Bihar & another, (1996) 1 SCC 301 - Para 8
5.
Sanjay Kumar v. State of Bihar & others, (2000) 7 SCC 192 - Para 9

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Petitioner's brother, who was in employment, is stated to have died in harness on
13.2.1998. On the date of his death, it is claimed that deceased was unmarried. An
application for grant of compassionate appointment has been filed by the petitioner on
23.12.2010 alleging that he was born on 1.1.1992 and was minor on the date of his brother's
death, and that within a year of attaining majority, he has moved the application for grant of
compassionate appointment. Such application has been rejected by the State of U.P. on the
ground that on the relevant date unmarried brother was not a part of the family, as defined
under section 2-C of the Rules of 1974, and consequently, the claim is not maintainable.

2. Learned counsel for the petitioner submits that immediately after petitioner has
attained age of majority, he has filed application and in the facts and circumstances of the
case, petitioner was entitled to grant of compassionate appointment. Reliance has been
placed upon a decision of this Court in Umesh Chandra Sharma vs. State of U.P. and others:
2006 (1) AWC 273, wherein it has been observed that petitioner therein was a minor on the
date of death of the deceased and that an application was moved after attaining age of
majority, which was required to have been considered and the order of the State
Government suffered from non application of mind.

3. Prayer made in the writ petition is opposed by learned Standing Counsel, as well as
learned counsel appearing for the respondent no.3 and 4 on the ground that a claim for grant
of compassionate appointment is not liable to be considered, even otherwise, as nearly 12
years had lapsed on the date of filing of the application, and that law is otherwise settled that
compassionate appointment cannot be claimed as a matter of right.

4. I have heard learned counsel for the parties and have perused the records.

5. A perusal of the record shows that after death of petitioner's brother a compassionate
appointment was proposed to petitioner's mother, but the appointment was brought to an end
on 27.9.2001 on account of denial of approval by the competent authority. Thereafter,
petitioner made an application for grant of compassionate appointment on 23.12.2010,
which was approved by the Nagar Palika Parishad subject to grant of approval by the State
Government, but no such approval was received, as such, the conditional appointment
granted was cancelled on 26.11.2011 and the claim of petitioner has been rejected by the
order dated 14.1.2016, holding that on the relevant date of death of deceased brother,
3 All. Manoj Kumar Vs. State Of U.P. & Ors.
93
petitioner was not included within the definition of the family, and as such, his claim is not
covered under the rules.

6. It is not in dispute that petitioner's brother had died in the year 1998. Application for
grant of compassionate appointment has been made after nearly 12 years. The mere ground
that applicant was not a major would not be sufficient to condone the delay in view of the
fact that the object for grant of such compassionate appointment is to tide over the sudden
difficulty caused due to death of sole bread earner and such crisis cannot be presumed to
exist even after 12 years of death.

7. Law is otherwise settled that compassionate appointment cannot be claimed as a
matter of right. It is also to be observed that 'family' as defined in the Rules of 1974 did not
include 'brother' in 1998 and it was only by way of amendment introduced in 2001 that
brother was included in the definition of 'family', and thus petitioner was not a member of
the 'family' on the relevant date. In view of the fact that by now a period of 18 years have
expired and the object of providing compassionate appointment cannot be said to subsist, in
view of the law laid down by the Apex Court in Umesh Kumar Nagpal vs. State of Haryana
and others: (1994) 4 SCC 138, wherein following has been observed in para 6:-

"6.For these very reasons, the compassionate employment cannot be granted after
a lapse of a reasonable period which must be specified in the rules. The
consideration for such employment is not a vested right which can be exercised at
any time in future. 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 1 (1989) 4 SCC 468: 1989
SCC (L&S) 662:(1989)11ATC878:(1989) 4 SLR 327 breadwinner, the
compassionate employment cannot be claimed and offered whatever the lapse of
time and after the crisis is over. "

8. In Haryana State Electricity Board vs. Hakin Singh: (1997) 8 SCC 85, the Apex
Court had an occasion to deal with the aspect of right of a minor to seek compassionate
appointment upon attaining majority. Facts as well as the law laid down in the judgment is
apposite and is reproduced:-

"Learned Single Judge of the High Court distinguished Sohan Lal's case on the
premise that the claimant therein waited for five years after attaining majority and
that made him disentitled to employment on compassionate grounds, whereas in the
present case the request was made soon after respondent attained majority. Learned
Single Judge found support from three other decisions of the High Court as the facts
therein were more comparable with the facts in this case. The extended period of
three years indicated in the circular has been interpreted by the High Court to
mean in the case of a minor child as applicable from the date he became a
major. High Court has observed that "this is the only possible way to give
effect to the policy of giving employment to the deceased employee where his
dependents happen to be minor children." Accordingly, learned Single Judge
94 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed the writ petition and directed the Board to entertain the claim of the
respondent.

Though the Board has filed an appeal before a Division Bench of the High Court the
same was dismissed summarily. However, the Division Bench granted further
period of three months to the Board to comply with the directions issued by the
learned Single Judge.

During consideration of the Special Leave Petition an endeavour was made to have
the matter otherwise settled between the parties. But learned counsel for the Board,
after taking instructions, submitted to us that a decision on the legal position is very
much warranted from this Court as large number of similar claims are pending
consideration before the Board.

The rule of appointments to public service is that they should be on merits and
through open invitation. It is the normal route through which one can get into a
public employment. However, as every rule can have exceptions, there are a few
exceptions to the said rule also which have been evolved to meet certain
contingencies. As per one such exception belief is provided to the bereaved family
of a deceased employee by accommodating one of his dependents in a vacancy. The
object is to give succour to the family which has been suddenly plunged into penury
due to the ultimately death of its sole bread-winner. This Court has observed time
and again that the object of providing such ameliorating relief should not be taken as
opening an alternative mode of recruitment to public employment.

The first circular which afforded such a beneficial provision to the dependants of a
deceased employee was issued by the Board on 14.9.1983 wherein it was specified
that "only one member of the family of the deceased employee is to be considered
for employment in the Board's service as a goodwill gesture and the intention is not
that the employment is to be provided as a matter of course." In the circular the
time-limit within which the dependent of the deceased employee is to be
accommodated was fixed as one year. The circular further stressed that "the request
for employment would be entertained only in the case in which the widow submits
application for employment immediately after the death of her husband." On
26.9.91983 the Board issued a circular clarifying that the purpose of such a
provision was not that employment would be given as a matter of course. However,
the Board extended the period as in the case of a widow with minor children from
one year to three years "provided a request for giving such employment is made to
the Board within one year of the death of the employee."

High Court relied on an earlier decision of the same High Court in which after
considering the same circulars it was observed thus:

"Neither in the service of the Haryana Government nor in the service of the
respondent-Board a person below the age of 18 years can be given employment.
3 All. Manoj Kumar Vs. State Of U.P. & Ors.
95
Therefore, if a deceased employee is survived by minors, it is impossible to give
effect to the condition incorporated in the circulars of the Board dated 26.9.1985
and 1.10.1986, which requires submission of application within three years of the
death of the employee. A condition which is impossible to be performed is
ordinarily liable to be treated as arbitrary and unconstitutional but if such condition
can be given a reasonable meaning so as to avoid the charge of unconstitutionality
that interpretation has to be preferred. Therefore, the instructions contained in the
circulars dated 26.9.1985 and 1.10.1986 will have to be interpreted to mean that in
case of a minor child the period of three years would be applicable from the date he
becomes major."

Learned Single Judge followed the aforesaid observations and issued the impugned
directions to the Board.

We are of the view that the High Court has erred in over stretching the scope
of the compassionate relief provided by the Board in the circulars as above. It
appears that High Court would have treated the provision as a lien created by
the Board for a dependent of the deceased employee. If the family members of
the deceased employee can manage for fourteen years after his death one of his
legal heirs cannot put forward a claim as though it is a line of succession by
virtue of a right of inheritance. The object of the provisions should not be
forgotten that it is to give succour to the family to tide over the sudden
financial crisis befallen the dependents on account of the untimely demise of its
sole earning member.

This Court has considered the scope of the aforesaid circulars in Haryana State
Electricity Board vs. Naresh Tanwar and Anr. etc. etc [1996 (2) JT 542].

In that case widow of a deceased employee made an application almost twelve years
after the death of her husband requesting for accommodating her son in the
employment of the Board, but it was rejected by the Board. When she moved the
High court the Board was directed to appoint him on compassionate grounds. This
Court upset the said directions of the High Court following two earlier decisions
rendered by this Court, one in Umesh Kumar Nagpal vs. State of Haryana & ors.
[1994 (4) SCC 138], the other in Jagdish Prasad vs. State of Bihar & anr. [1996 (1)
SCC 301]. In the former, a Bench of two Judges has pointed out that "the whole
object of granting compassionate employment is to enable to 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 the post held by the deceased." In the latter decision, which also was
rendered by a Bench of two Judges, it was observed that "the very object of
appointment of a dependent of the deceased employees who die in harness is to
relieve unexpected immediate hardship and distress caused to the family by sudden
demise of the earning member of the family."The learned Judges pointed out that
if the claim of the dependent which was preferred long after the death of the
deceased employee is to be countenanced it would amount to another mode of
96 INDIAN LAW REPORTS ALLAHABAD SERIES
recruitment of the dependent of the deceased government servant "which
cannot be encouraged, dehors the recruitment rules."

It is clear that the High Court has gone wrong in giving a direction to the Board to
consider the claim of the respondent as the request was made far beyond the period
indicated in the circular of the Board dated 1.10.1986. Respondent, if he is
interested in getting employment in the Board, has to pass through the normal route
now. "

9. Again in Sanjay Kumar vs. State of Bihar and others: (2000) 7 SCC 192, the Apex
Court considered the issue and observed as under:-

"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 bread earner 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 & Anr. v. Pushpendra
Kumar & Ors. supra. It is also Significant to notice that on the date when the first
application was made by the petitioner on 2.6.88, 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 is some specific provisions. The very basis
of compassionate appointment is to see that the family gets immediate relief."

10. No provision in the rules applicable have otherwise been shown to exist
recognizing a right of compassionate appointment in a minor upon attaining majority.

11. For the reasons, aforesaid, I am not inclined to interfere with the order under
challenge in exercise of writ jurisdiction under Article 226 of the Constitution of India. The
writ petition fails and is dismissed accordingly.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2016

BEFORE

THE HON'BLE ARVIND KUMAR TRIPATHI, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 133 of 1986

Prabhu & Ors. ...Appellants
Versus
State of U.P. ...Respondent