# Shiv Kumar Dubey v. State of U.P. and Ors

- **Citation:** (2014) 1 ILRA 266
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-02-06
- **Case number:** Spcial Appeal No. 356 of 2012
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Sunil Ambwani, Vikram Nath
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kumar-dubey-v-state-of-u-p-and-ors-42773
- **Pages:** 18

## Headnote

Sri Tej Bhan Singh, Sri R.C. Upadhyay, C.S.C.

U.P.
Recruitment
of
dependents
of
Government Servant Dying in Harness
Rules 1974-Rule-5(Provisio I)-guide lines
governing of compassionate appointmentissued-view taken by Division Bench in
Vivek Yadav case-requiring-proviso to Rule5-normally must be exercised-for dealing
case in just and equitable manner-would
not
reflect
correct
position
of
lawsubsequent decision in Salabh Yadav caseholding the government can not dismiss
application blind folded-but to apply its
mind on such application moved beyond 5
years-held-government in appropriate case
being satisfied with material of undue
hardship-can exercise power to condone
the delay.

Held: Para-29&30

## Text

_Characters 0–39,855 of 61,429. This is a partial read: ask again with offset=39855 for what follows._

266 INDIAN LAW REPORTS ALLAHABAD SERIES
and thereby causing a prejudice to the
prosecution due to granting bail that this
Court should recall or cancel the order
which is impugned herein. The allegation
of tampering evidence and terrorizing the
witnesses will require the other side to be
heard appropriately by the court below
and the court below may also require the
evidence to be adduced before it in the
light of Sanjay Gandhi. In that view, this
petition appears of no merit as also not
maintainable before this Court.

13. In the result, the petition is
dismissed with the above direction.

14. It is supposed that if the
petitioner files a petition before the trial
court as per the law laid down in Sanjay
Gandhi, the trial court shall entertain it
and shall hear it after giving notice to the
accused whose liberty is required to be
put under jeopardy and after following the
procedure pointed out by Sanjay Gandhi,
the court shall dispose it of.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE VIKRAM NATH, J.

Spcial Appeal No. 356 of 2012
alongwith Spl. Appl. No. 371 of 2012 and
379 of 2012.

Shiv Kumar Dubey..... Petitioner
Versus
State of U.P. and Ors...... Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri R.P. Mishra, Sri
U.C. Chaturvedi
Counsel for the Respondents:
Sri Tej Bhan Singh, Sri R.C. Upadhyay, C.S.C.

U.P.
Recruitment
of
dependents
of
Government Servant Dying in Harness
Rules 1974-Rule-5(Provisio I)-guide lines
governing of compassionate appointmentissued-view taken by Division Bench in
Vivek Yadav case-requiring-proviso to Rule5-normally must be exercised-for dealing
case in just and equitable manner-would
not
reflect
correct
position
of
lawsubsequent decision in Salabh Yadav caseholding the government can not dismiss
application blind folded-but to apply its
mind on such application moved beyond 5
years-held-government in appropriate case
being satisfied with material of undue
hardship-can exercise power to condone
the delay.

Held: Para-29&30
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
1 All] Shiv Kumar Dubey Vs. State of U.P. and Ors.
267
immediate financial crisis caused by the
death of the bread-earner;
(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 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.

30. As regards the judgment of the
Division Bench in Vivek Yadav (supra),
the first part of the judgment of the
Division Bench in Vivek Yadav's case
holds in paragraph 4 that since Rule 5
contemplates
an
application
by
a
competent person, in a case where the
applicant is a minor, it will not be
possible
for
a
minor
to
make
an
application during the period of his
minority.
Therefore,
considering
the
object of the Rules, it was held that the
proviso to Rule 5 must normally be
exercised
in
such
cases.
This
observation, with respect, requiring that
the proviso to Rule 5 must normally be
exercised for the purpose of dealing with
a case in a just and equitable manner
would not be reflective of the correct
position in law. The subsequent decision
in Subhash Yadav (supra) only holds that
the
Government
cannot
dismiss
an
application which has been moved after
five years blindfolded but has to apply its
mind rationally to all the facts and
circumstances of the case. In this regard,
we clarify that the second proviso to
Rule 5 requires an applicant, who
invokes the power of dispensation or
relaxation under the first proviso of the
time limit of five years, to make out a
case of undue hardship by elucidating, in
writing, with necessary documentary
evidence and proof, the reasons and
justification
for
the
delay.
The
Government may, in an appropriate case,
when it is satisfied on the basis of the
material that a case of undue hardship is
made out, exercise the power which is
conferred upon it under the first proviso
to Rule 5 of the Rules but this power has
to be exercised where a demonstrated
case of undue hardship is made out to
the satisfaction of the State Government.
We answer the reference accordingly in
the aforesaid terms.
268 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law discussed:
(2011)1
UPLBEC
494;
2010(7)ADJ
1;
2000(2)UPLBEC 1694; (1994)4 SCC 138; (1998) 5
SCC 192; (2004)7 SCC 271; 2004 AIR SCW 4602;
AIR 2005 SC 106; (2005) 7 SCC 206; (1989) 4
SCC 468; (1991) Supp.(2) SCC 689; (1995) 6 SCC
476; (2006) 5 SCC 766; (2008) 13 SCC 730;
(2009) 6 SCC 481; AIR 2011 SC 1880; (2012) 7
SCC 248; (2012) 11 SCC 307; 2013(5) AWC
5062(SC); [(2013) 1 UPLBEC 357]; AIR 2013 SC
3365; (1997) 8 SCC 85; JT 1995(9) SC 131;
(1996)8 SCC 23; (2000) 7 SCC 192; C.M.W.P. No.
13102 Of 2010.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. Compassionate appointment to
dependents of employees of the State who
die in harness has been the subject matter of
a considerable body of law. A Division
Bench has referred the correctness of two
decisions rendered by this Court on the
interpretation of the provisions of the Uttar
Pradesh Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974 for consideration by the Full
Bench. The principles which emerge from
the judgments of the Supreme Court provide
a binding framework within which the issue
of interpretation which arises in this
proceeding would have to be resolved. The
question of law for decision of the Full
Bench is:

(1) Whether the judgments in Subhash
Yadav Vs. State of U.P.1 and Vivek Yadav
Vs. State of U.P. & Ors.2 on the
interpretation of the provisions of Rule 5(iii)
and the proviso thereto read with Rule 8 of
the Uttar Pradesh Recruitment of Dependents
of Government Servants Dying in Harness
Rules, 1974, lay down the correct position of
law?"

2. The Uttar Pradesh Recruitment of
Dependents of Government Servants
Dying in Harness Rules, 1974 ("the Rules")
came into force on 21 December 1973. Rule
3 provides that the Rules shall apply to the
recruitment of dependents of deceased
government servants to public services and
posts in connection with the affairs of the
State of Uttar Pradesh, except those which
are within the purview of the Uttar Pradesh
Public Service Commission. The expression
'government servant' is defined in Rule 2(a)
to mean a government servant employed in
connection with the affairs of the State, who
(i) was permanent in such employment; or
(ii) though temporary had been regularly
appointed in such employment; and (iii)
though not regularly appointed, had put in
three years' continuous service in a regular
vacancy
in
such
employment.
The
expression 'regularly appointed' is defined by
the Explanation to Rule 2(a) to mean
"appointed in accordance with the procedure
laid down for recruitment to the post or
service, as the case may be". The expression
'deceased government servant' is defined by
Clause (b) of Rule 2 to mean a government
servant who dies while in service. Rule 2(c)
of the Rules defines 'family'. Rule 5 of the
Rules provides as follows:

"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
1 All] Shiv Kumar Dubey Vs. State of U.P. and Ors.
269
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)fulfills
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.

Provided further that for the purpose
of the aforesaid proviso, the person
concerned shall explain the reasons and
give
proper justification
in
writing
regarding the delay caused in making the
application for employment after the
expiry of the time limit fixed for making
the application for employment along
with the necessary documents/proof in
support of such delay and the Government
shall, after taking into consideration all
the facts leading to such delay take the
appropriate decision.

(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) Every appointment made under
sub-rule (1) shall be subject to the
condition that the person appointed under
sub-rule (1) shall maintain other members of
the family of deceased Government servant,
who were dependent on the deceased
Government servant immediately before his
death and are unable to maintain themselves.

(4) Where the person appointed
under sub-rule (1) neglects or refuses to
maintain a person to whom he is liable to
maintain under sub-rule (3), his services
may be terminated in accordance with the
Uttar
Pradesh
Government
Servant
(Discipline and Appeal) Rules, 1999, as
amended from time to time."

Rule 6 of the Rules provides for the
contents of an application for employment
in the following terms:

"6. Contents of application for
employment.
-An
application
for
appointment under these rules shall be
addressed to the appointing authority in
respect of the post for which appointment
is sought but it shall be sent to the Head
of Office where the deceased Government
servant was serving prior to his death. The
application shall, inter alia, contain the
following information:

(a) the date of the death of the
deceased
Government
servant;
the
department in which he was working and
the post which he was holding prior to his
death;

(b) names, age and other details
pertaining to all the members of the
family of the deceased, particularly about
their marriage, employment and income;

(c)details of the financial condition
of the family; and

(d)
the
educational
and
other
qualifications, if any, of the applicant."

Rule 8 is in the following terms:
270 INDIAN LAW REPORTS ALLAHABAD SERIES

"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 of work and efficiency
expected on the post.

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

3. Before we elucidate the principles
which emerge from the body of precedent on
the subject, it would, at the outset, be
necessary to emphasise certain basic precepts
and interpret the provisions of the Rules as
they stand. Appointments to public offices
have to comply with the requirements of
Article 14 and Article 16 of the Constitution.
Article 16 provides for equality of opportunity
in
matters
of
public
employment.
Compassionate appointment is in the nature of
an exception to the ordinary norm of allowing
equality of opportunity to every eligible
person to compete for public employment.
The reason for the exception as envisaged in
the Rules is that the immediacy of the
financial hardship that is sustained by a
bereaved family by the death of its earning
member is sought to be alleviated in a
situation in which the government servant
died while in service. Rule 5 of the Rules
applies where a government servant has died
in harness after the commencement of the
Rules.

4. The first requirement under Rule
5 is that the spouse of the deceased should
not be already employed by the Central or
State Governments or by a Corporation
owned or controlled by them. Where this
condition is met, one member of the
family can be given suitable employment
in government service in relaxation of the
normal recruitment rules, provided three
conditions are fulfilled. The first is that
the applicant must fulfill the educational
qualifications prescribed for the post; the
second is that the applicant must be
otherwise
qualified
for
government
service; and the third is that the
application for employment must be made
within five years from the date of death of
the government servant. The first proviso
to Rule 5 empowers the State Government
to dispense with or relax the time limit for
making an application for employment,
for dealing with the case in a just and
equitable manner, where government is
satisfied that the time limit of five years
for making an application for employment
causes undue hardship in any particular
case. Under the second proviso, a burden
is cast on the applicant to establish a case
of undue hardship by explaining the
reasons
and
furnishing
a
proper
justification, in writing, regarding the
delay caused in making the application for
employment after the expiry of the time
limit of five years. This explanation has to
be accompanied by necessary documents
and proof in support of the reasons for the
delay. The Government has to take an
appropriate decision after taking into
consideration all the facts leading to such
delay.

5. Rule 6 of the Rules, which deals
with the contents of an application for
employment, amplifies the basic purpose
and object of providing compassionate
appointment. Besides stating the date of
death of the deceased government servant,
1 All] Shiv Kumar Dubey Vs. State of U.P. and Ors.
271
the post and the department in which he
was working, the application has to
mention the names, ages and other details
pertaining to all the members of the
family of the deceased, particularly about
their marriage, employment and income
and the details of the financial condition
of
the
family
together
with
the
educational and other qualifications of the
applicant.

6. The Rules have been framed by
the State Government in exercise of the
powers conferred by the proviso to Article
309 of the Constitution. The Rules make
it abundantly clear that the purpose and
object underlying the provision for
compassionate appointment is not to
reserve a post for a member of the family
of a deceased government servant who
has died while in service. The basic object
and purpose is to provide a means to
alleviate the financial distress of a family
caused by the death of its member who
was in government service. This is the
underlying theme or thread which cuts
across almost every provision of the
Rules. Firstly, the spouse of the deceased
government servant must not already be
employed
in
the
Central
or
State
Governments or their Corporations. If the
spouse is so employed, then obviously,
there would be no warrant to grant
compassionate appointment since the
spouse would be expected to provide to
the members of the family a nucleus for
sustaining their livelihood. Secondly, the
applicant himself should not be employed
with the Central or State Governments or
their Corporations. Thirdly, an application
for appointment has to be made within
five years from the date of death of the
government servant. The rationale for
imposing a limit of five years beyond
which
an
application
cannot
be
entertained is that the purpose of
compassionate appointment is to bridge
the immediacy of the loss of an earning
member and the financial distress that is
sustained in consequence. A lapse of time
is regarded by the Rules as leading to a
dilution
of
the
immediacy
of
the
requirement. The first proviso to Rule 5,
however,
confers
upon
the
State
Government a discretion to dispense with
or relax the requirement of submitting an
application in five years. This power is
not unguided and is not left to the
arbitrary discretion of the decisionmaking authority. Every discretionary
power in public law has to be structured
on objective principles. The first proviso
requires the Government to be satisfied
that the strict application of the norm of
five years for submitting an application
would
cause
undue
hardship.
The
dispensation or relaxation is in order to
deal with a case in a just and equitable
manner. Under the second proviso, the
burden has been cast on the applicant to
furnish reasons and produce a justification
together with evidence in the form of
documents and proof in support of the
cause for the delay in making an
application within the stipulated period.
Finally, on this aspect of interpretation, it
must be emphasized that an applicant for
employment under the Rules has to
disclose in a full, true and candid manner,
details of the financial condition of the
family as well as all relevant details
pertaining to the members of the family of
the deceased including their names, age
and status in regard to their marriage,
employment and income. All these
aspects have a bearing on the financial
need of the family which has to be
assessed before a decision is taken to
grant compassionate appointment. The
discretionary power to relax the time limit
272 INDIAN LAW REPORTS ALLAHABAD SERIES
of five years is in the nature of an
exception. It is a power which is vested in
the State Government, a circumstance
which is indicative of the fact that the
subordinate legislation expects it to be
exercised
with
scrupulous
care.
Ordinarily, the time limit of five years
governs. The State Government may relax
the norm on a careful evaluation of the
circumstances mandated by the second
proviso. It is but a matter of first principle
that a discretionary power to relax the
ordinary requirement should not swallow
the main or substantive provision and
render the basic purpose and object
nugatory.
The
Rules
indicate,
in
consequence, that an application for
compassionate appointment, which is in
relaxation of the normal recruitment
Rules, must be made within a period of
five years of the date of death of the
government
servant.
But
the
State
Government
is
conferred
with
a
discretionary
power
to
relax
the
requirement of five years in order to
alleviate a situation of undue hardship so
as to deal with a case in a just and
equitable manner. The satisfaction of the
State Government before it exercises the
power of relaxation is not a subjective
satisfaction but must be based on
objective considerations founded on the
disclosures made by the applicant for
compassionate
appointment.
Those
disclosures, in writing, must necessarily
have a bearing on the reasons for the
delay and on whether undue hardship
within the meaning of the first proviso to
Rule 5 of the Rules would be caused by
the application of the time limit of five
years. The expression 'undue hardship'
has not been defined in the Rules. Undue
hardship would necessarily postulate a
consideration
of relevant
facts
and
circumstances including the income of the
family, its financial condition and the
extent of dependency.

7. Now, it is in this background that
it is necessary to dwell on the two
judgments of the Division Bench to which
a reference has been made in the order of
referral.

8. In Vivek Yadav (supra), the father
of the appellant, who was working as an
Assistant Agriculture Inspector, died on
26 May 1986. The mother of the appellant
was
illiterate
and
did
not
claim
compassionate
appointment.
The
appellant was born on 2 February 1984
and on completing the age of eighteen,
filed a representation on 4 August 2001
seeking compassionate appointment on
the ground that the financial and social
problems occasioned by the death of his
father continued. The family consisted of
the appellant, his mother, three sisters and
another brother. The representation was
rejected on the ground that it was barred
by time. While interpreting the provisions
of Rule 5, the Division Bench held as
follows:

"... Reading of this rule would
demonstrate that the application must be by a
competent person, who is competent to make
it. A minor, therefore, could not have made
application. The time-limit for an application
contemplated by the rule, therefore, could
only be read to mean 'by a competent
person', in other words, who has attained the
age of majority. In a case, where the
applicant is minor, it would not be possible
for the minor to make an application for
various reasons including that he is minor
and as such he cannot be appointed to a post
in the Government. Rule 5, therefore, will
have to be read in such manner that it gives
effect to the policy of the Government,
1 All] Shiv Kumar Dubey Vs. State of U.P. and Ors.
273
which is to provide employment to a
member of the family of a Government
employee, who dies in harness, so as to
mitigate the hardship. The issue whether the
family of the deceased over long passage of
time continues to face the hardship, would be
examined on the merits of the claim. ..."

Read in isolation, these observations
would seem to indicate that if the dependent
of a deceased employee was a minor at the
time of death and, therefore, unable to apply
for appointment, an application filed after
attainment of majority would be valid
irrespective of the length of time. That would
not be reflective of the correct position in law.
However, a later part of the same judgment, as
we shall notice, explains the position.

9. Noting that the mother was
illiterate, the appellant himself was a
minor and there were elder sisters, the
Division Bench in Vivek Yadav held that
in such cases the proviso to Rule 5 must,
normally, be exercised for the purpose of
dealing with the cases in a just and
equitable manner. The Division Bench
referred to a judgment of a learned Single
Judge in Manoj Kumar Saxena Vs.
District Magistrate, Bareilly & Ors.3,
which had considered various judgments
holding that when an application is moved
for appointment on a compassionate basis
of a member of the family on attaining
majority who was a minor at the time of
death of his father, it could not be said
that there was delay in moving the
application.
The
Division
Bench
specifically did not accept this to be a
correct interpretation of Rule 5, for its
consequence would be to suspend the
operation of the Rule until the applicant
had attained the age of majority. In that
context, the Division Bench held as
follows:-

"In our opinion, that really may not be a
correct reading of the rule as that would
contemplate that the rule would stand
suspended till such time a minor attains
majority and thereafter the minor within 5
years on attaining majority could make
application. No provision whether it be
primary or subordinate legislation must be
read even if it be a beneficial piece of
legislation which has the effect of adding
words against the expression of language of
the provision. The proviso, in our opinion,
which confers power to relax the delay in
making an application within five years, also
must be read to include consideration of an
application even after expiry of 5 years if the
applicant was a minor at the time of death of
the deceased employee and makes an
application within reasonable time of
attaining majority."

The Division Bench observed that the
test to be applied is whether the family of the
deceased continues to suffer financial distress
and hardship occasioned by the death of the
breadwinner so as to relax the period within
which the application could be made. These, it
was held, are matters of fact which the
competent authority would have to consider.
Since the application was rejected merely
because it was beyond the time prescribed, the
order of the authority was set aside and a
direction was issued to take a fresh decision
within a stipulated period.

10. The subsequent judgment of the
Division Bench in Subhash Yadav (supra)
deals with a situation where the father of
the appellant had died in harness on 8
August 1994 when the appellant was six
years of age. The appellant attained the
age of majority on 5 December 2005 and
made an application for compassionate
appointment.
The
State
Government
declined to accord relaxation of the period
274 INDIAN LAW REPORTS ALLAHABAD SERIES
of five years and the writ petition filed by
the appellant was dismissed by a learned
Single Judge who held that since the
appellant had been able to survive for
sixteen years, that was indicative of a lack
of immediacy. The Division Bench held
that the Government erred in rejecting the
application on the ground that there was
an inordinate delay and such a blanket
reason without considering anything else
would not be in conformity with the
power which has been conferred on the
State, to relax the time period, which has
to be exercised reasonably. Hence, the
Division Bench held that the authorities
cannot reject an application "blindfold" if
it had been moved after five years and
were required to apply their mind
rationally, exercising the discretion in
view of other factors relating to the case.

11. Now, it is in this background that it
is necessary for the Court to consider the
principles of law which emerge from the
judgments of the Supreme Court on the
subject.

12. In Umesh Kumar Nagpal Vs. State
of Haryana & Ors.4, the Supreme Court
explained the basic purpose of providing
compassionate appointment to the dependent
of a deceased employee who has 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 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."

13.

In
Director
of
Education
(Secondary) & Anr. Vs. Pushpendra Kumar
& Ors.5, the Supreme Court held that
compassionate appointment is an exception to
the general provision and, being an exception,
it should not interfere unduly with the rights of
other persons. The Supreme Court held thus:

"The object underlying a provision for
grant of compassionate employment is to
enable the family of the deceased employee
to tide over the sudden crisis resulting due to
death of the bread earner which has left the
family in penury and without any means of
livelihood.
Out of
pure humanitarian
consideration and having regard to the fact
that unless some source of livelihood is
provided, the family would not be able to
make both ends meet, a provision is made for
giving gainful appointment to one of the
dependents of the deceased who may be
eligible for such appointment. Such a
provision makes a departure from the general
provisions providing for appointment on the
post by following a particular procedure.
1 All] Shiv Kumar Dubey Vs. State of U.P. and Ors.
275
Since such a provision enables appointment
being made without following the said
procedure, it is in the nature of an exception to
the general provisions. An exception cannot
subsume the main provision to which it is an
exception and thereby nullify the main
provision by taking away completely the right
conferred by the main provision. Care has,
therefore, to be taken that a provision for grant
of compassionate employment, which is in the
nature of an exception to the general
provisions, does not unduly interfere with the
right of other persons who are eligible for
appointment of seek employment against the
post which would have been available to them,
but for the provision enabling appointment
being made on compassionate grounds of the
dependent of a deceased employee."

14. The decision in Umesh Kumar
Nagpal (supra) was followed by the Supreme
Court in General Manager (D&PB) & Ors.
Vs. Kunti Tiwary & Anr.6. The Supreme
Court noted that under the Scheme which
had been adopted by the Indian Banks
Association, the terminal benefits received
by the family of the deceased employee had
to be considered together with the income of
the family, employment of other members,
the size of the family and liabilities, if any.
The Supreme Court in that case held that the
family of the deceased employee had not
been left in penury or without any means of
livelihood and its income was not such as to
lead to the conclusion that the family was
living hand to mouth.

The same view was followed in
Punjab National Bank & Ors. Vs.
Ashwini Kumar Taneja7.

15. In National Hydroelectric Power
Corporation & Anr. Vs. Nanak Chand &
Anr.8, the principle was formulated as
follows:

"It is to be seen that the appointment on
compassionate ground is not a source of
recruitment but merely an exception to the
requirement regarding appointments being
made on open invitation of application on
merits. Basic intention is that on the death of
the employee concerned his family is not
deprived of the means of livelihood. The
object is to enable the family to get over
sudden financial crises."

16. In Commissioner of Public
Instructions
&
Ors.
Vs.
K.R.
Vishwanath9, the following principles
were laid down by the Supreme Court:

"...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."

Specifically dealing with a situation
where a dependent was a minor at the date
of death of the employee, the Supreme
Court referred to the decision in Sushma
Gosain & Ors. Vs. Union of India &
Ors.10 and observed thus:
276 INDIAN LAW REPORTS ALLAHABAD SERIES

"The
purpose
of
providing
appointment on compassionate ground is
to mitigate the hardship due to death of
the bread-earner in the family. Such
appointments
should,
therefore,
be
provided immediately to redeem the
family in distress. The fact that the ward
was a minor at the time of death of his
father is no ground, unless the scheme
itself envisages specifically otherwise, to
state that as and when such minor
becomes a major he can be appointed
without any time consciousness or limit.
The above view was reiterated in
Phoolwati (Smt.) v. Union of India and
Ors.11 and Union of India and Ors. v.
Bhagwan
Singh12.
In
Director
of
Education (Secondary) and Anr. v.
Pushpendra Kumar and Ors, (1998) 5
SCC 192, it was observed that in matter
of
compassionate
appointment
there
cannot be insistence for a particular post.
Out of purely humanitarian consideration
and having regard to the fact that unless
some source of livelihood is provided the
family would not be able to make both
ends meet, provisions are made for giving
appointment to one of the dependants of
the deceased who may be eligible for
appointment. Care has, however, to be
taken
that
provision
for
grant
of
compassionate employment which is in
the nature of an exception to the general
provisions does not unduly interfere with
the right of those other persons who are
eligible
for
appointment
to
seek
appointment against the post which would
have been available, but for the provision
enabling appointment being made on
compassionate grounds of the dependant
of the deceased-employee. As it is in the
nature of exception to the general
provisions
it
cannot
substitute
the
provision to which it is an exception and
thereby nullify the main provision by
taking
away
completely
the
right
conferred by the main provision."

17. In State of J&K & Ors. Vs.
Sajad Ahmed Mir13, the principle was
followed as follows:

"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."

18. The principles of law which
emerge from the decided cases were
summarized in a judgment of the Supreme
Court in V. Shivamurthy Vs. State of
Andhra Pradesh & Ors.14, Hon'ble Mr.
Justice R.V. Raveendran speaking for a
Bench of two learned Judges formulated
those principles thus:

"(a)
Compassionate
appointment
based only on descent is impermissible.
Appointments in public service should be
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
1 All] Shiv Kumar Dubey Vs. State of U.P. and Ors.
277
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."

19.