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

- **Citation:** Service Single No. 6603 of 2010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-17
- **Case number:** Service Single No. 6603 of 2010
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-kumar-v-state-of-u-p-ors-46223
- **Pages:** 13

## Headnote

can be considered as per the scheme/rule
applicable at the time of death of employee.

When the father of the petitioner expired on
17.05.1986, there was no Rule or statutory
provision for appointment on compassionate ground
existed in an unaided school/college covered under
the U.P. Intermediate Education Act, 1921.
Therefore, no such vested right accrued after the
death of the petitioner's father. Thereafter the
School/Institution was taken up in grant-in-aid in
01.04.1996. Even after the appointment of the
petitioner in the year 2008, no such provision or rule
existed for appointment of dependent of deceased
in an unaided school/college covered under the U.P.
Intermediate
Education
Act,
1921
which
subsequently taken up in grant. However, till date
no such provision has come up in this regard.The
appointment of the petitioner is not only in violation
of Regulation 105 under Chapter III of the Act,
1921 as it is without the recommendation of the
Committee
required
for
appointment
on
compassionate grounds but has been filed belatedly
after an expiry of 22 and a half years of the death of
the petitioner's father.

(B) Appointment - in violation of Rules
and Article 14 and 16 of the Indian
Constitution are void

Writ Petition Rejected. .(E-10)

List of cases cited:

## Text

_Characters 0–39,954 of 43,359. This is a partial read: ask again with offset=39954 for what follows._

784 INDIAN LAW REPORTS ALLAHABAD SERIES
period
between
15.2.1988
till
superannuation shall count as qualifying
service for calculation of pensionary
benefits. Orders pertaining to same shall be
passed within a period of two months from
the date a copy of this order is produced
before the competent authority.

31. Consequently, the writ petition
stands allowed.
----------
(2020)03-05ILR A784
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2020

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Service Single No. 6603 of 2010

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

Counsel for the Petitioner:
V.K. Bajpai, Alok Gupta, Richa Srivastava,
Sanjay Kumar Srivastava, Shailendra Kumar
Singh, Shikha Srivastava, Suneel Kumar
Singh Kalhan, Yogendra Kumar Mishra

Counsel for the Respondents:
C.S.C., Shubham Gupta

(A) Compassionate Appointment - should not
be provided after an expiry of 22 and a half
years of the death of the petitioner's father -
can be considered as per the scheme/rule
applicable at the time of death of employee.

When the father of the petitioner expired on
17.05.1986, there was no Rule or statutory
provision for appointment on compassionate ground
existed in an unaided school/college covered under
the U.P. Intermediate Education Act, 1921.
Therefore, no such vested right accrued after the
death of the petitioner's father. Thereafter the
School/Institution was taken up in grant-in-aid in
01.04.1996. Even after the appointment of the
petitioner in the year 2008, no such provision or rule
existed for appointment of dependent of deceased
in an unaided school/college covered under the U.P.
Intermediate
Education
Act,
1921
which
subsequently taken up in grant. However, till date
no such provision has come up in this regard.The
appointment of the petitioner is not only in violation
of Regulation 105 under Chapter III of the Act,
1921 as it is without the recommendation of the
Committee
required
for
appointment
on
compassionate grounds but has been filed belatedly
after an expiry of 22 and a half years of the death of
the petitioner's father.

(B) Appointment - in violation of Rules
and Article 14 and 16 of the Indian
Constitution are void

Writ Petition Rejected. .(E-10)

List of cases cited:

1. Rani Srivastava Vs. St. of U.P. 1989 SCC
OnLine All 535 : (1990) 1 LLN 633 : (1990) 16
ALR 357 : (1990) 1 AWC 342

2. Abdul Qadir Vs. St. of U.P. Special Appeal No.
264 of 2017 (followed)

3. Umesh Kumar Nagpal Vs. St. of Haryana
(1994) 4 SCC 138(followed)

4. Commissioner of Public Instructions Vs. K.R.
Vishwanath (2005) 7 SCC 206(followed)

5. St. of J & K Vs. Sajad Ahmad Mir (2006) 5
SCC 766 : 2006 (6) AWC 6209 (SC) (followed)

6. V. Shivamurthy VS. St. of A.P. (2008) 13 SCC
730(followed)

7. UOI Vs. Shashank Goswami (2012) 11 SCC
307: 2012 (5) AWC 4734 (SC) (followed)

8. Chief Commissioner, Central Excise &
Customs, Lucknow Vs. Prabhat Singh (2013) (5)
AWC 5062 (SC) (followed)

9. MGB Gramin Bank Vs. Chakrawarti Singh
(2014)
13
SCC
583:
AIR
2013
SC
3365(followed)
3-5 All. Shailendra Kumar Vs. State of U.P. & Ors.
785
10. Vishal Singh Vs. St. of U.P. 2018 (2) ESC
1036 (All.) (DB) (followed)

11. Shiv Kumar Dubey Vs. St. of U.P. 2014 AWC
3016(followed)

12. Secretary, St. of Karn. & ors Vs. Umadevi &
ors. (2006) 4 SCC 1: 2006 SCC (L&S)
753(followed)

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard learned counsel for the
petitioner,
Sri
Gyanendra
Srivastava,
learned
Standing
Counsel
for
the
respondent Nos. 1 to 3 and Sri Shubham
Gupta, learned counsel for the respondent
No. 4.

2. The writ petition has been filed
seeking direction to the respondents to
accord
financial
approval
to
the
appointment of the petitioner as Assistant
Teacher in Amar Shahid Chandra Shekhar
Azad Inter College, Haraipur, District-
Unnao (in short "College") and for payment
of regular salary from the State Exchequer
w.e.f. 01.11.2008.

3. Prior to filing of the present writ
petition, the petitioner approached this
Court by means of the Writ Petition No.
5854 of 2008 (Shailendra Kumar v.
D.I.O.S. Unnao and others), thereby
seeking direction to the respondents to
appoint the petitioner on suitable post on
compassionate ground under the Dying in
Harness Rules. The said writ petition was
finally disposed of by means of the
judgment and order dated 19.09.2008,
which reads as under:-

"Heard learned counsel for the
petitioner and learned Standing Counsel.

The instant writ petition has been
preferred with the following reliefs:-

1. To issue a writ, order or
direction in the nature of Mandamus
commanding the Opp. Parties particularly
Opp. Party No. 2 to consider the case of the
petitioner
for
his
appointment
on
compassionate grounds under Dying-inharness Rules on any post as per
qualification of the petitioner.

2. To issue a writ, order or
direction in the nature of Mandamus
commanding the Opposite Parties to decide
the petitioner's latest representation dated
12.07.2007 as contained in Annexure No. 9
to this writ petition.

3. To issue any such other order
which this Hon'ble Court may deem fit and
proper in the circumstances of the case.

4. To award cost of the writ
petition.

The petitioner restricts his prayer
only to the extent that his representation as
contained in Annexure No. 9 to the writ
petition may be directed to be disposed of
within the stipulated period.

Learned Standing Counsel has no
objection to this innocuous prayer.

In the facts and circumstances of
the case, I direct the petitioner to file a
fresh comprehensive representation along
with certified copy of this order as well as
complete copy of the writ petition with all
Annexures before opposite party no. 2
within a week from today and on such
representation being filed, as stipulated
above, the concerned competent authority
shall decide the same by a speaking and
reasoned order within three weeks of the
receipt of representation, as contemplated
above, exercising its unfettered discretion
on the basis of record before him in
accordance with relevant Rules, recent
Government
Orders,
Scheme/Policy
without being influenced by any of the
observations in this judgment, since this
786 INDIAN LAW REPORTS ALLAHABAD SERIES
Court has not entered into the merits of the
present case.

Subject to the above observations
and directions, writ petition stands partly
allowed by moulding the relief to the extent
indicated above.

No costs."

4. In compliance of the judgment and
order dated 19.09.2008, the Committee of
Management of the College considered the
case of the petitioner for appointment on
compassionate ground and vide order dated
16.10.2008, the petitioner was appointed by
the
respondent
No.
4/Committee
of
Management of the College on the post of
Assistant Teacher in the pay-scale of Rs.
5500-9000/-.

5. The respondent Nos. 1 to 3/State
filed
the
counter
affidavit
annexing
therewith the order dated 29.05.2009,
passed by the District Inspector of Schools
(DIOS), Unnao, whereby the claim of the
petitioner with regard to appointment on
suitable post on compassionate ground
under the Dying in Harness Rules was
rejected. On coming to know about the
order dated 29.05.2009, the petitioner
amended the writ petition and also
challenged the order dated 29.05.2009.

6. In regard to the reliefs sought in the
writ petition, learned counsel for the
petitioner stated that the father of the
petitioner was a Headmaster of the
Institution and he expired on 17.05.1986.
At that point of time, the petitioner was
minor (one and half year old). On attaining
the age of majority and being found himself
eligible for appointment on the post of
Assistant Teacher, the petitioner applied for
appointment on compassionate ground
before the competent authority and on
account of inaction on the part of the
respondents
in
not
providing
the
appointment
on
suitable
post
on
compassionate
ground,
the
petitioner
approached this Court by means of the Writ
Petition No. 5854 of 2008 (Shailendra
Kumar v. D.I.O.S. Unnao and others),
which was disposed of vide judgment and
order dated 19.09.2008 and in compliance
thereof, the Committee of Management of
the College appointed the petitioner on the
post of Assistant Teacher, as such the
appointment of the petitioner is valid and
he is entitled to salary from the State
Exchequer.

7.
 Per
contra,
Sri
Gyanendra
Srivastava, learned Standing Counsel for
the respondent Nos. 1 to 3, on the basis of
counter affidavit as also the contents of the
impugned
order
dated
29.05.2009,
submitted that the father of the petitioner
expired on 17.05.1986 and at that point of
time, the College was not in grant-in-aid.
The Institution was taken up in grant-in-aid
on 01.04.1996.

8. It is further stated that the provision
for providing compassionate appointment
to the employee of the Institution/College
in
grant-in-aid
came
into
force
on
30.07.1992 subsequently, amended in the
year 1995. It is also stated that at the time
of death of the father of the petitioner i.e.
on 17.05.1986, there was no provision to
provide appointment to the dependent of
the employee of unaided school or college,
as the case may be, covered under U.P.
Intermediate Education Act, 1921 (in short
"Act, 1921") nor there exits any provision
under
the
Act,
1921,
under
which
compassionate
appointment
can
be
provided to the dependent of deceased
employee of unaided school or college,
covered
under
the
Act,
1921.
The
Institution was taken up in grant-in-aid on
3-5 All. Shailendra Kumar Vs. State of U.P. & Ors.
787
01.04.1996
and
beings
so,
under
Regulations 103-107 of Chapter III of the
Act, 1921, the petitioner is not entitled for
appointment on compassionate ground as
when the father of the petitioner expired,
the College in issue was not in grant-in-aid.
The
provisions
as
envisaged
under
Regulation 103-107 of the Act, 1921
were/are
applicable
only
on
the
Institution/College which were/are in grantin-aid and the same would apply if an
employee of the college, during service
tenure, expires after college is taken in
grant-in-aid and it would not apply in
relation to the employee of unaided college.

9. It is further stated that even
otherwise the mandatory provision as
prescribed under Regulation 103-107 of the
Act, 1921 have not been followed for
providing appointment on compassionate
ground to the petitioner. Without following
the procedure prescribed under Regulation
103-107 of the Act, 1921, the Committee of
Management of the College appointed the
petitioner on the post of Assistant Teacher
in the pay-scale of Rs. 5500-9000/-.

10. Accordingly, it is submitted that
the appointment of the petitioner is not
valid and he is neither entitled to continue
on the post in issue nor he is entitled to
payment
of
salary
from
the
State
Exchequer.

11. The prayer is to dismiss the writ
petition.

12. In response to the submissions
made by Sri Gyanendra Srivastava, learned
Standing Counsel for the respondent Nos. 1
to 3, learned counsel for the petitioner
submitted that the appointment of the
petitioner was made in the year 2008 vide
order dated 16.10.2008 and he is still
continuing in the College on the post of
Assistant Teacher and in view of the facts
and circumstances of the case particularly
the continuation of the petitioner on the
post of Assistant Teacher since 16.10.2008
(the date of appointment of the petitioner),
the petitioner is entitled to continue on the
post in question and his appointment on
compassionate ground, at this stage, is not
liable to be interfered with.

13. In support of his contention,
learned counsel for the petitioner placed
reliance on the judgment of this Court
passed in the case of Rani Srivastava v.
State of Uttar Pradesh, 1989 SCC OnLine
All 535 : (1990) 1 LLN 633 : (1990) 16
ALR 357 : (1990) 1 AWC 342. The
relevant
portion
of
the
same
on
reproduction reads as under:-

"2. Undisputedly, Sri Gita Bal
Mandir Junior High School, Kashipur
(Nainital), is recognised under Uttar
Pradesh Basic Education Act, 1972. In
June 1984, the petitioner was appointed on
a fixed salary on probation till 30
November 1984. By letter, dated 15
November 1984, she was made permanent
with effect from 1 December 1984. In
August 1985, a fresh letter was issued that
she is being appointed temporary and her
services were liable to be terminated at any
time. The petitioner immediately made
representation that she having become
permanent by letter, dated 15 November
1984, she could not be appointed afresh
temporary. No action was taken on it. And
the process of issuing letter by secretary
that she was being appointed temporarily
either till June or May or April continued
in 1986, 1987 and 1988. Each time
petitioner
objected.
In
1985,
she
represented to secretary, that she having
been appointed permanently the fresh
788 INDIAN LAW REPORTS ALLAHABAD SERIES
letters
of
appointment
treating
her
temporary were illegal. In 1989, it appears
one of the members raised an issue that for
better administration of college it was
necessary to appoint a male principal and
Basic Shiksha Adhikari also raised peculiar
objection and wrote to the management
that unless regular principal was appointed
he was not willing to grant approval to the
appointment of teachers. Consequently
management
issued
advertisement,
aggrieved by which petitioner approached
this Court.

3. Doubt was raised on the
language of letter appointing petitioner
permanently in November 1984, and it was
urged that the second clause indicated that
petitioner was not a permanent employee.
Needless to say that the order was issued in
printed form containing various clauses.
Therefore, no assistance could be derived
from it. Moreover the original filed with
supplementary affidavit dispelled any doubt
as Cl. 2 and other clauses which were not
relevant were either scored or crossed to
show that it was not applicable.

4. Resignation by petitioner was
yet another issue which was attempted to
be pressed, but it could not be supported by
any document. Even the letters issued in
1985, 1986 and 1987 do not state that since
petitioner had resigned she was being
appointed afresh temporarily. It was a
futile attempt to give strength to letter
appointing petitioner temporarily in 1985.
Mere vague assertion that petitioner being
headmistress must have removed papers
was of no consequence. How could she
remove
the
record
of
secretary
or
committee of management? No material
thus could be brought on record to show
that petitioner resigned in 1985.

5.
Principal
infirmity
in
appointment of petitioner, that could be
pointed out, was that it was made without
issuing
any
advertisement
and
recommendation by selection committee.
May be; but could the management which
appointed petitioner in 1984, and the Basic
Shiksha Adhikari, who did not raise any
objection to payment of salary for five
years raise this objection in 1989? The
appointing authority under rules is the
committee
of
management.
And
the
approving authority is the Basic Shiksha
Adhikari, who under Uttar Pradesh Act 6 of
1979, is also to supervise the payment of
salary and is empowered to inspect and
check. For five years no objection was
raised by him. And then suddenly when one
of the members desired that a male
principal should be appointed, he also
raised an objection. The petitioner had
raised objection as far back as 1985,
against her being treated as temporary
employee. No action was taken on it. Nor
any decision was given. For procedural
irregularity the petitioner should not be
made to suffer. Normally it is to be
presumed that management must have sent
papers for appointment of petitioner to
Basic Shiksha Adhikari who must have
granted approval unless it is rebutted either
by
placing
any
communication
by
management or from record of Basic
Shiksha Adhikari to show that things did
not proceed as they are provided in the Act.
In absence of any material there is no
reason
to
doubt
that
committee
of
management would have appointed without
intimating Basic Shiksha Adhikari and
would have even issued letter appointing
petitioner permanently and Basic Shiksha
Adhikari would not have raised any
objection in respect of payment of salary,
etc., from 1984 to 1989. Change of
secretary or Basic Shiksha Adhikari should
not be permitted to create any difference,
otherwise it shall result in creating
arbitrariness and expose teachers of being
3-5 All. Shailendra Kumar Vs. State of U.P. & Ors.
789
thrown out of employment on one or the
other pretext and shall never have security
which is necessary for efficient discharge of
duty. Equity stands in her favour and
prevents both the appointing and approving
authority from taking recourse to their own
mistakes,
for
causing
prejudice
to
petitioner. Estoppel, the principle of equity,
is the shield for such unjust and unfair
actions."

14. The prayer is to allow the writ
petition.

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

16. From the pleadings made in the writ
petition as also the documents on record, it is
undisputed fact that the petitioner was
appointed vide order dated 16.10.2008 on the
post of Assistant Teacher in the pay-scale of Rs.
5500-9000/-
by
the
Committee
of
Management/respondent No. 4 of the College.

17. It is also undisputed that prior to
issuing the order of appointment dated
16.10.2008, the procedure as prescribed under
Regulation 103-107 of the Act, 1921 was not
allowed.

18. It is also undisputed that the
provisions for providing appointment came into
existence on 30.07.1992 subsequently amended
in the year 1995 and the same were/are
applicable on the Institutions/Colleges covered
under the Act, 1921, which are on grant-in-aid.

19. It is also undisputed rather admitted
that when the father of the petitioner expired on
17.05.1986, the School/Institution, in which the
petitioner was appointed vide order dated
16.10.2008, was not in grant-in-aid as the same
was taken in grant-in-aid on 01.04.1996.

20. It is also admitted fact that the father
of the petitioner expired when the petitioner
was minor (one and half year old) and on
attaining the age of majority, the petitioner
applied for appointment on compassionate
ground in the year 2008 i.e. after 22 and a half
year of death of his father.

21. From Regulations 103-107 under
Chapter III of the Act, 1921, it appears that the
appointment on compassionate ground can only
be made on the recommendation of the
Committee as provided under Regulation 105
and in the instant case as appears from the
record, the appointment of the petitioner was
not made on the recommendation made by the
Committee as provided under Regulation 105
of the Act, 1921.

22. A Division Bench of this Court in the
judgment dated 09.05.2017 passed in Special
Appeal No.264 of 2017 (Abdul Qadir Vs. State
of U.P.) observed as under:-

"Accepted position in the present
case is that father of petitioner-appellant
has died in the year 2012, and at the said
point of time, when father of petitionerappellant has died, there was no provision
under which compassionate appointment
could have been provided to the dependent
of the deceased incumbent who have been
serving in Government aided Madarsa.
Service conditions at the said point of time
was governed by non-statutory rule known
as ''Uttar Pradesh Ashaskeeya Arbi Tatha
Fasi Madarson Ki Manata Niyamawali,
1987. On the date of death of petitionerappellant's father, there was no provision in
existence for offering appointment, is
clearly indicative of the fact that the terms
and condition of service that has been
prevailing on the said date, there has been
no provision for providing compassionate
790 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment, in case incumbent had died in
harness.

Rules in question namely, Uttar
Pradesh Non-Governmental Arbic and
Persian
Madarsa
Recognition,
Administration and Services Regulation,
2016 has been enforced w.e.f. 22.07.2016
wherein categorical mention has been
made that it shall came into force from the
date of notification in the gazette. Part-III
of aforementioned Regulations deals with
teaching and non-teaching employees, and
in the said chapter while considering the
terms and condition of teaching and nonteaching employees, provision has been
incorporated for providing compassionate
appointment to one of the dependent on
death of an employee during service. One
dependent has to apply within a period of
five years in the Madarsa. Thus these
statutory provisions are clear to the effect
that for the first time while introducing the
terms and condition of teaching and nonteaching employees, the aforementioned
provisions
has
been
introduced
for
providing compassionate appoint on death
of employee in Madarsa during service
period and dependent was free to move an
application within a period of five years.

Consequently, under the scheme
of things provided for, Regulations are
clearly prospective in nature and effect and
for the first time time provision has been
incorporated for providing compassionate
appointment on death of incumbent during
service period to one of the dependent
under the terms and condition of service, in
this backdrop, claim that has been made to
provide
compassionate
under
the
aforementioned
regulation,
certainty
cannot be directed by us inasmuch as, we
cannot proceed to enlarge the scope of
aforementioned regulation, as on its face
value, it is prospective in nature and would
not include within its fold all such teaching
and non teaching staff under whose
condition of service, there has been no
provision for providing compassionate
appointment. Compassionate appointment
has to be considered as per the scheme that
has been in vague at the time of death of
employee concerned. Apex Court in the
case of Canara Bank v. Mahesh Kumar
(2015) 7 SCC 412, has further provided
that compassionate appointment cannot be
made in the absence of Rules and
Regulations, and request has to be
considered strictly in accordance with the
governing scheme, and no discretion is left
with any authority to make compassionate
appointment dehors the scheme. Here the
scheme in question introduced by way of
Regulation for providing compassionate
appointment w.e.f. 22.07.2016 in no way
suggests that benefit of the same would be
extended even in reference of those
employees, teaching and non teaching,
whose death has taken place, prior to
enforcement of Regulation.

In view of this, Special Appeal
stands dismissed."

23. Insofar as the arguments made by
the counsel for the petitioner pertaining to
the vested rights accrued in favour of the
petitioner is concerned, the law in this
connection is well settled in the case of
Umesh Kumar Nagpal v. State of Haryana
(1994) 4 SCC 138, the Supreme Court
explained the basic purpose of providing
compassionate
appointment
to
the
dependent of a deceased employee, died in
harness.

"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
3-5 All. Shailendra Kumar Vs. State of U.P. & Ors.
791
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. ... For these very reasons, the
compassionate
employment
cannot
be
granted after a lapse of 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
breadwinner,
the
compassionate
employment cannot be claimed and offered
whatever the lapse of time and after the
crisis is over."

24. The law in this connection is well
settled by the Supreme Court in large number
of cases. The Supreme Court in the case of
Commissioner of Public Instructions v. K.R.
Vishwanath (2005) 7 SCC 206 laid down the
following principles:--

"...the claim of person concerned for
appointment on compassionate ground is based
on the premises 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.
...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."

25. Similar view has been again taken by
the Supreme Court in the case of State of J. &
K. v. Sajad Ahmad Mir, (2006) 5 SCC 766 :
2006 (6) AWC 6209 (SC), wherein the Court
observed as under:-

"Normally,
an
employment
in
Government or other public sectors should be
open to all eligible candidates who can come
forward to apply and compete with each other.
It is in consonance with Article 14 of the
Constitution. On the basis of competitive merits,
an appointment should be made to public office.
This general rule should not be departed from
except
where
compelling
circumstances
demand, such as, death of the sole breadwinner
and likelihood of the family suffering because of
the set back. Once it is proved that in spite of
death of bread earner, the family survived and
substantial period is over, there is no necessity
to say ''goodbye' to the normal rule of
appointment and to show favour to one at the
cost of interests of several others ignoring the
mandate of Article 14 of the Constitution."

26. Certain principles of law has been
laid down by the Supreme Court in the case
of V. Shivamurthy v. State of Andhra
Pradesh (2008) 13 SCC 730, namely:--

"(a) Compassionate appointment
based only on descent is impermissible.
Appointments in public service should be
792 INDIAN LAW REPORTS ALLAHABAD SERIES
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 well recognised exception to the said
general rule, carved out in the interest of
justice to meet certain contingencies.

(b)
Two
well
recognized
contingencies which are carved out as
exceptions to the general rule are:

(i) appointment on compassionate
grounds to meet the sudden crisis occurring
in a family on account of the death of the
bread-winner while in service.

(ii)
appointment
on
compassionate ground to meet the crisis in
a family on account of medical invalidation
of the bread winner.

Another contingency, though less
recognized, is where land holders lose their
entire land for a public project, the scheme
provides for compassionate appointment to
members of the families of project affected
persons. (Particularly where the law under
which the acquisition is made does provide
for
market
value
and
solatium,
as
compensation).

(c) Compassionate appointment
can neither be claimed, nor be granted,
unless the rules governing the service
permit
such
appointments.
Such
appointments
shall
be
strictly
in
accordance with the scheme governing
such appointments and against existing
vacancies.

(d) Compassionate appointments
are permissible only in the case of a
dependant member of the family of the
employee concerned, that is, spouse, son or
daughter and not other relatives. Such
appointments should be only to posts in the
lower category, that is, Classes III and IV
posts and the crises cannot be permitted to
be converted into a boon by seeking
employment in Class I or II posts."

27. Further the Supreme Court in the
case of Union of India v. Shashank
Goswami (2012) 11 SCC 307 : 2012 (5)
AWC 4734 (SC) has held that 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.
Relevant
paragraphs of the aforesaid judgment are
quoted below:-

"9. There can be no quarrel to the
settled legal proposition that the claim for
appointment on compassionate grounds is
based on the premise that the applicant was
dependent on the deceased employee.
Strictly, such a 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. Appointment on compassionate
ground cannot be claimed as a matter of
right.

10. As a rule public service
appointment 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 and not to confer a
status on the family. Thus, the applicant
cannot claim appointment in a particular
class/group of post. Appointments on
3-5 All. Shailendra Kumar Vs. State of U.P. & Ors.
793
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."

28. Once again the Supreme Court in
the case of Chief Commissioner, Central
Excise and Customs, Lucknow v. Prabhat
Singh (2013) (5) AWC 5062 (SC) held that
compassionate appointment is not a gift to
all those who seeks court's intervention and
the Court may issue directions in the case
where
appointment
on
compassionate
ground, could deprive a really needy family
requiring financial support, and thereby,
push into penury a truly indigent, destitute
and impoverished family. Relevant portion
of the aforesaid judgment is quoted below:-
-

"We are constrained to record that
even
compassionate
appointments
are
regulated by norms. Where such norms have
been laid down, the same have to be strictly
followed...The very object of making provision
for appointment on compassionate ground, is to
provide succor to a family dependent on a
government employee, who has unfortunately
died in harness. On such death, the family
suddenly finds itself in dire straits, on account of
the absence of its sole bread winner. Delay in
seeking such a claim, is an anti thesis, for the
purpose for which compassionate appointment
was conceived. Delay in raising such a claim, is
contradictory to the object sought to be
achieved... Courts and Tribunals should not fall
prey to any sympathy syndrome, so as to issue
directions for compassionate appointments,
without reference to the prescribed norms.
Courts are not supposed to carry Santa Claus's
big bag on Christmas eve, to disburse the gift of
compassionate appointment, to all those who
seek a court's intervention. Courts and
Tribunals must understand, that every such act
of sympathy, compassion and discretion,
wherein directions are issued for appointment
on compassionate ground, could deprive a
really needy family requiring financial support,
and thereby, push into penury a truly indigent,
destitute and impoverished family. Discretion is
therefore ruled out. So are, misplaced sympathy
and compassion."

29. In the case of MGB Gramin Bank v.
Chakrawarti Singh reported in (2014) 13 SCC
583 : AIR 2013 SC 3365, the Supreme Court
has observed as follows:

"Every appointment to public
office must be made by strictly adhering to
the mandatory requirements of Articles 14
and 16 of the Constitution. An exception by
providing employment on compassionate
grounds has been carved out in order to
remove the financial constraints on the
bereaved family, which has lost its breadearner. Mere death of a Government
employee in harness does not entitle the
family to claim compassionate employment.
The Competent Authority has to examine
the financial condition of the family of the
deceased employee and it is only if it is
satisfied
that
without
providing
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. More so,
the person claiming such appointment must
possess required eligibility for the post. The
consistent view that has been taken by the
Court is that compassionate employment
cannot be claimed as a matter of right, as it
is not a vested right.

The Court should not stretch the
provision by liberal interpretation beyond
permissible
limits
on
humanitarian
grounds."

30. A division Bench of this Court in
the case of Vishal Singh v.State of U.P.
794 INDIAN LAW REPORTS ALLAHABAD SERIES
reported in 2018 (2) ESC 1036 (All.) (DB)
was pleased to hold that the appointment on
compassionate ground is given to tide over
the immediate financial difficulties faced
by the family of the deceased and that a
minor
cannot
claim
appointment
on
compassionate ground unless scheme itself
envisages that as and when such minor
becomes major, he can be appointed
without any time limit.

31. Full Bench of this Court in the
case of Shiv Kumar Dubey v. State of U.P.,
2014 AWC 3016, formulated the principles
which must govern the compassionate
appointment in pursuance to the Dying in
Harness Rules. In paragraph 29(ii), it was
held by Full Bench of this Court that 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. Relevant
portion in this regard is quoted below:--

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;

32. In view of the facts as stated, it is
clear that a person can not be given
appointment on compassionate ground
unless the Rules or the scheme provides for
such appointment or their exists some
vested rights in his favour.

33. In the present case, from the facts
as narrated above, it is clear that:-

(i) At the time of death of father
of petitioner, there was no Rule or statutory
provisions for providing appointment on
compassionate ground to the dependent of
deceased employee working in unaided
school/college covered under the Act, 1921
and as such no vested right accrued in
favour of the petitioner on the death of his
father to get appointment on compassionate
ground.

(ii) In the year 2008, when the
petitioner was appointed by the Committee
of Management even at that point of time
there was no provision or Rule under which
the dependent of deceased employee of
unaided school/college, covered under the
Act, 1921, subsequently taken up in grantin-aid,
could
be
appointed
on
compassionate ground.

(iii)
Even,
subsequent
to
aforesaid, till date, no provision has been
made under the Act, 1921 for providing
compassionate
appointment
to
the
dependent
of
deceased
employee
of
unaided
school/college
or
unaided
school/college subsequently taken up in
grant-in-aid.

(iv) The appointment of the
petitioner on compassionate ground is in
violation of Regulation 105 under Chapter
3-5 All. Shailendra Kumar Vs. State of U.P. & Ors.
795
III of the Act, 1921, as without the
recommendation of Committee provided
under Regulation 105, the Committee of
Management of the college appointed the
petitioner on compassionate ground on the
post of Assistant Teacher.

(v) The petitioner was appointed
on compassionate ground after 22 and a
half year of death of his father. Highly
belated appointment, against the spirit of
providing compassionate appointment.

34. Taking into consideration the facts
of the case and aforesaid settled legal
preposition on the issue of providing
compassionate appointment, according to
which compassionate appointment can be
given strictly as per the scheme/rule
applicable at the time of death of the
employee and should not be provided at
highly
belated
stage,
as
also
the
Regulations 103-107 of Chapter III of the
Act, 1921 this Court is of the view that the
ground taken in the order impugned to the
effect that the College was not in grant-inaid when the father of the petitioner expired
and accordingly, no right was accrued in his
favour
for
seeking
appointment
on
compassionate ground under the aforesaid
Regulations, is justified.

35.

In
the
aforesaid
factual
background and taking into consideration
the
settled
legal
position,
narrated
hereinabove with regard to compassionate
appointment, this Court is of the view that
the order passed by the District Inspector of
Schools, Unnao dated 29.05.2009 is not
liable to be interfered with.

36. In regard to the submissions made
by the learned counsel for the petitioner
that the petitioner was appointed vide order
dated 16.10.2008 and he is still continuing
in service on the post of Assistant Teacher
in the College in question and the
appointment of the petitioner, at this stage,
is not liable to the interfered with and the
direction
be
issued
to
the
State/Respondents to pay salary to the
petitioner w.e.f. 01.11.2008, this Court
considered the judgment placed by the
learned counsel for the petitioner in support
of his case, referred hereinabove, and on
due consideration of the same and the
judgment of the Apex Court in the case of
Secretary, State of Karnataka and others v.
Umadevi (3) and others, (2006) 4 SCC 1 :
2006 SCC (L&S) 753, wherein the Apex
Court observed that any appointment made
in violation of the Rules as also in violation
of Article 14 and 16 of the Constitution of
India would be nullity, I am of the view that
the petitioner is not entitled to any
indulgence from this Court on the ground
that he is continuing on the post since
01.11.2008. The appointment made in
violation of mandatory provisions of
Statute/Rule would be illegal and thus,
void.
Illegality
cannot
be
rectified.
Illegality cannot be regularized, only an
irregularity can be.

37.