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

- **Citation:** Writ-A No. 416 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-10
- **Case number:** Writ-A No. 416 of 2020
- **Bench:** Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjeev-kumar-v-state-of-u-p-ors-46268
- **Pages:** 6

## Headnote

C.S.C., Sri Suresh Kumar

A. Compassionate appointment - object is to
allow the dependants of the deceased to
overcome the financial crisis - reservation of
vacancy of post for such appointment till such
time when minor become major is contrary to
the rules of such appointment

The fact that members of the family have survived
for the last twenty three years raises a presumption
that the immediate financial crisis caused by the
death of earning member of the family has been
tided over. The financial penury as existing in the
year 1996 cannot be said to be existing now in the
year 2020, except its emotional aspect. No
appointment on compassionate ground at such
belated stage can be granted. (para 21)

Writ Petition rejected. .(E-10

List of cases cited:

## Text

936 INDIAN LAW REPORTS ALLAHABAD SERIES
has been allowed. The judgment and order
is supported with cogent and justifiable
reasons. In an Intra-Court Special Appeal,
no interference is usually warranted unless
palpable infirmities or perversities are
noticed on a plain reading of the impugned
judgment and order. In the facts and
circumstances of the instant case, on a plain
reading of the impugned judgment and
order, we do not notice any such palpable
infirmity or perversity. As such, we are not
inclined to interfere with the impugned
judgment and order dated 28th January,
2020.

18. At this stage, learned counsel for
the appellant- petitioner has tried to contend
that the petitioner is the senior most teacher
having the prescribed eligibility, and in case
the Regional Level Committee finally
decides in his favour, he may be granted
continuity and other consequential benefits
on the promotional post.

19. Since the matter has been
remitted for consideration afresh as per the
procedure under Rule 14 of the Rules,
1998, we refrain from making any
observation with regard to the rights of the
appellant-petitioner
vis-a-vis
other
teachers
who
may
be
entitled
for
consideration
under
the
statutory
provision, leaving it open to the appellantwrit petitioner to raise all contentions
before the authority concerned.

20. We make it clear that the above
observation does not touch upon merit of
the claim of the appellant- writ petitioner
and also the claims which may be set up
by other contending parties.

21. The Special Appeal stands
disposed of accordingly.
----------
(2020)03-05ILR A936
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE

THE HON'BLE VIVEK VARMA, J.

Writ-A No. 416 of 2020

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

Counsel for the Petitioner:
Sri Chandra Bhan Singh Chandel

Counsel for the Respondents:
C.S.C., Sri Suresh Kumar

A. Compassionate appointment - object is to
allow the dependants of the deceased to
overcome the financial crisis - reservation of
vacancy of post for such appointment till such
time when minor become major is contrary to
the rules of such appointment

The fact that members of the family have survived
for the last twenty three years raises a presumption
that the immediate financial crisis caused by the
death of earning member of the family has been
tided over. The financial penury as existing in the
year 1996 cannot be said to be existing now in the
year 2020, except its emotional aspect. No
appointment on compassionate ground at such
belated stage can be granted. (para 21)

Writ Petition rejected. .(E-10

List of cases cited:

1. Sanjay Kumar Vs. St. of Bihar & ors. 2000 (10) SC
156

2. St. of J & K & ors. Vs. Sajad Ahmed Mir AIR 2006
SC 2743

3. Shiv Kumar Dubey Vs. St. of U.P. 2014 (2)
ADJ 312
3-5 All. Sanjeev Kumar Vs. State of U.P. & Ors.
937
(Delivered by Hon'ble Vivek Varma, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel for
the State respondents.

2. The father of the petitioner,
Rajendra Singh was a Assistant Teacher in
Primary School Nagala Sahjan, Patiyali
District Etah (Kasganj), He died in harness
on 18.09.1996, leaving behind his widow,
one daughter and five sons. The mother of
the petitioner, Smt. Ganga Shri, did not
claim compassionate appointment. She
made an application on 09.11.1999 to the
then Basic Shiksha Adhikari, Etah that her
sons are minor, therefore, the claim may be
considered after her sons attain majority.

3. The petitioner submitted an
application to the District Basic Education
Officer
for
grant
of
compassionate
appointment
for
the
first
time
on
22.07.2004 along with an affidavit of his
mother, which contained a recital to the
effect that neither she nor her other children
have any objection if the petitioner is given
appointment.
The
application
of
the
petitioner was forwarded by the District
Basic Education Officer on 05.10.2004 to
the Secretary, Basic Education, who in turn
recommended to the same to the State
Government for relaxation of time in
giving appointment, which according to the
petitioner is still pending for consideration.

4. Thereafter, on 23.09.2019, the
petitioner again represented to the Director,
Basic Education Lucknow for taking
decision on the recommendation of the
respondent no.2, which also remained
pending.

5. The present writ petition has been
filed for a direction to the respondent no.1
to
take
a
decision
upon
the
recommendation letter dated 11.08.2005
sent by the respondent no.2. He also prayed
for
mandamus
commanding
the
respondents to appoint the petitioner on a
suitable post.

6. Learned Counsel for the petitioner
contended
that
the
application
for
appointment under the dying in harness
was moved by the mother of the petitioner
within the time limit of 5 years and the
claim of the petitioner has not been decided
as yet. Therefore, a direction may be issued
to the State Government to consider the
same.

7. Per contra learned Standing
Counsel
for
the
State
respondents
submitted
that
the
concept
of
compassionate
appointment
under
the
provisions of the U.P. Recruitment of
Dependants of Government Servants Dying
in Harness Rules, 1974 is to enable the
bereaved family to tide over the immediate
financial
crises.
Delay
in
making
application
for
appointment
on
compassionate
grounds
raises
a
presumption that the immediate financial
crises has been tided over.

8. Heard learned counsel for the
parties and perused the record.

9. The object of the U.P. Recruitment
of Dependents of Government Servant
Dying in Harness Rules is to remove the
hardship of the family, whose bread-earner
expired
during
the
course
of
his
employment, leaving the family in sudden
economic crises. The appointment to be
made under the aforesaid Rules is an
exception to the general Rules for selection
and appointment and it is entirely based on
humanitarian
approach
to
financially
938 INDIAN LAW REPORTS ALLAHABAD SERIES
support
dependents
of
the
deceased
Government Servant in the grip of a sudden
penury caused by the death of the sole
bread earner.

10. The rules which are relevant in
present context are Rules 5 and 8. The Rule
5 is extracted herein below:-

"5. Recruitment of a member of
the family of the deceased.-- (1) In case a
Government servant dies in harness after
the commencement of these rules and the
spouse of the deceased Government servant
is not already employed under the Central
Government or a State Government or a
Corporation owned or controlled by the
Central
Government
or
a
State
Government, one member of his family who
is not already employed under the Central
Government or a State Government or a
Corporation owned or controlled by the
Central Government or a State Government
shall, on making an application for the
purposes, be given a suitable employment
in Government service on a post except the
post which is within the purview of the
Uttar Pradesh Public Service Commission,
in relaxation of the normal recruitment
rules if such person--

(i)
fulfils
the
educational
qualifications prescribed for the post,

(ii) is otherwise qualified for
Government service, and,

(iii) makes the application for
employment within five years from the date
of the death of the Government servant:

Provided that where the State
Government is satisfied that the time-limit
fixed for making the application for
employment causes undue hardship in any
particular case, it may dispense with or
relax the requirement as it may consider
necessary for dealing with the case in a just
and equitable manner.

(2) As far as possible, such an
employment should be given in the same
department
in
which
the
deceased
Government servant was employed prior to
his death.

(3) Each appointment under subrule (1) should be under the condition that
the person appointed under sub-rule (1)
shall upkeep those other family members of
the deceased Government servant who are
incapable for their own maintenance and
were dependant of the above said deceased
Government servant immediately before his
death.

8.Relaxation from age and other
requirements.-- (1) The candidate seeking
appointment under these rules must not be
less than 18 years at the time of
appointment.

(2) The procedural requirements
for selection; such as written test or
interview by a selection committee or any
other authority, shall be dispensed with,
but it shall be open to the appointing
authority to interview the candidate in
order to satisfy itself that the candidate will
be able to maintain the minimum standards
work and efficiency expected on the post.

(3) An appointment under these
rules shall be made against an existing
vacancy only."

11. A perusal of Rules 5 (iii) shows
that
the
case
of
compassionate
appointment, would be considered in
relaxation of the normal recruitment rules if
such
persons
make
applications
for
employment within five years from the date
of the death of the government servant;
provided that where the State Government
is satisfied that the time- limit fixed for
making the application for employment,
causes undue hardship in any particular
case, it may dispense with or relax the
requirement as it may consider necessary
3-5 All. Sanjeev Kumar Vs. State of U.P. & Ors.
939
for dealing with the case in a just and
equitable manner.

12. Rule 8 provides for relaxation
from age and other requirements. The said
Rule provides that an appointment under
the Rules 1974 shall be made against an
existing
vacancy
only
and
that
the
candidate seeking appointment under these
rules must not be less than 18 years at the
time of appointment.

13. From the aforesaid Rules, it is
clear that the application should have been
preferred within a period of five years from
the death of the employee and in any
particular case where the State Government
is satisfied that the time limit fixed for
making the application for employment
results in any undue hardship, it may
dispense with or relax the requirement as it
may consider necessary for dealing with
the case in a just and equitable manner.

14. In the case in hand, the claim for
compassionate appointment is based on the fact
that petitioner was minor at the time of the
death of his father and further the application
dated 22.07.2004 for relaxation of time in
giving application remained pending.

15. The widow of her own accord waited
for her son to attain majority and claimed
compassionate appointment thereafter. Prior to
this application she sought reservation of a post
till her sons attains majority. It is settled position
flowing from various decision of the Hon'ble
Supreme Court that the whole object of
granting compassionate employment is to
enable the family to tide over the sudden crisis
and to relieve the family of the financial
destitution and to help it get over the
emergency. None of the decisions of the Apex
Court justify compassionate employment either
as a matter of course and the only ground which
can justify compassionate appointment is the
sudden financial penury of the deceased's
family caused by his death.

16. In Sanjay Kumar Vs. The State of
Bihar & Ors, 2000 (10) SC 156 the Hon'ble
Supreme Court considered the case for
compassionate appointment made by a minor
after he attained majority. The aforesaid
decision emphasised that the appointment on
compassionate grounds is given to tide over the
immediate difficulties faced by the family of the
deceased by observing as follows:

"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 and
another v. Pushpendra Kumar and others,
(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 are some specific provisions.
The
very
basis
of
compassionate
appointment is to see that the family gets
immediate relief."

17. To grant any relief to the
petitioner at this stage would be contrary to
the decisions of the Supreme Court where
the cases of minors had been considered
and rejected on the ground that there cannot
940 INDIAN LAW REPORTS ALLAHABAD SERIES
be a reservation of vacancy till such time as
the minor becomes a major.

18. The Hon'ble Supreme Court in the
case of State of J & K and others V. Sajad
Ahmed Mir reported in AIR 2006 SC 2743
in paragraph 17 has held as under:

"17. In the case on hand, the father
of the applicant died in March, 1987. The
application was made by the applicant after
four and half years in September, 1991 which
was rejected in March, 1996. The writ petition
was filed in June, 1999 which was dismissed by
the learned single Judge in July, 2000. When
the Division Bench decided the matter, more
than fifteen years had passed from the date of
death of the father of the applicant. The said
fact was indeed a relevant and material fact
which went to show that the family survived in
spite of death of the employee. Moreover, in our
opinion, the learned single Judge was also right
in holding that though the order was passed in
1996, it was not challenged by the applicant
immediately. He took chance of challenging the
order in 1999 when there was interdepartmental communication in 1999. The
Division Bench, in our view, hence ought not to
have allowed the appeal."

19. The question of delay in filing
application for appointment under the
Dying-in-Harness
Rules
and
the
consequences of such delay on the right
to be appointed on compassionate
ground was considered by a Full Bench
of this Court in the case of Shiv Kumar
Dubey vs. State of U.P., 2014 (2) ADJ
312.
For
convenience,
the
entire
paragraph 29 of the aforesaid Full
Bench decision is reproduced:-

"29.
We
now
proceed
to
formulate the principles which must
govern compassionate appointment in
pursuance of Dying in Harness Rules:

(i)
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;

(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;

(iii) 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 breadearner;

(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;

(v) 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
3-5 All. Anand Ram Nagar Vs. The Banaras State Bank Ltd. & Ors.
941
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;

(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;

(vii) 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;

(viii) 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)

20. Thus, the law is settled that object
to grant compassionate appointment is to
allow the family to tide over the immediate
financial penury caused by the death of sole
bread earner. Such appointment is not a
matter of right and is in the nature of
concession, which is to be extended for a
specific purpose only.

21. The fact that members of the family
have survived for the last twenty three years
raises a presumption that the immediate
financial crises caused by the death of earning
member of the family has been tided over.
Lifting of the immediate financial penury
denies the justification for making appointment
on compassionate ground. The financial penury
as existing in the year 1996 can not be said to be
existing now in the year 2020, except its
emotional
aspect.
No
appointment
on
compassionate ground at such belated stage can
be granted nor any direction can be issued to
consider the claim of the petitioner.

22. In view of the above discussion, this
Court is of the opinion that no direction is
required to be passed to the State Government
to consider the claim of the petitioner.

23. In the above conspectus, the petition
fails and is dismissed. There shall be no order as
to costs.
----------

(2020)03-05ILR A941
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2019

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE SHAMIM AHMAD, J.

Special Appeal Defective No. 451 of 2011

Anand Ram Nagar ...Appellant
Versus
The Banaras State Bank Limited & Ors.
 ...Respondents