# Smt. Lalita and another v. Union of India and others

- **Citation:** (2007) 3 ILRA 900
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-23
- **Case number:** Civil Misc. Writ petition No 57671 of 2007
- **Bench:** S. Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-lalita-and-another-v-union-of-india-and-others-41151
- **Pages:** 7

## Headnote

Constitution
of
India-Art.
226Compassionate
appointment-wife
of
deceased employee was 28 years at the
time of death-never claimed for her
appointment-after
18
years
claimed
appointment to her son (adopted) who
was minor at that time-rejection of such
belated claim-held-proper-not a right of
succession of employee-or vested right
of claimant but to provide immediate
succor to the bereaved family-claim after
such long time-contrary to very object of
compassionate appointment.

Held: Para 18

We are, therefore, clearly of the view
that
the
claim
for
compassionate
appointment after a long time would be
contrary to the very basis, purpose and
objective
of
the
scheme
of
compassionate appointment and cannot
be considered at all. We do not find any
fault in the judgment of the learned
Tribunal
dismissing
the
Original
Application of the petitioners.
Case law discussed:
AIR 1989 SC 1976, 1994 (4) SCC-138, JT 1997
(8) SC 332, 1998 (5) SCC 192, JT 2000 (10)
3 All] Smt. Lalita and another V. Union of India and others
901
SC 156, 2002 LLJ 773, 2003 (7) SCC 511, AIR
1996 SC 1936

## Text

900 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
11. Accordingly, I am of the opinion
that findings of the courts below on both
the points, i.e. Denial of benefit of Section
20(4) of the Act to the tenant and subletting are erroneous in law and liable to
be set aside.

12. Accordingly, writ petition is
allowed. Both the impugned judgments,
decree of trial court and order of the
revisional court are set aside. Suit of the
landlord for eviction is dismissed. Decree
for recover of rent/permission to the
landlord
to
withdraw
the
amount
deposited by the tenant shall stand.

13. I have held in Khursheeda Vs.
A.D.J., 2004 (2) ARC 64 that while
granting relief against eviction to the
tenant in respect of building covered by
Rent
Control
Act,
writ
court
is
empowered to enhance the rent to a
reasonable extent.

14. The shop in dispute is quite big
in size and is situated in Varanasi.
Accordingly, it is directed that w.e.f.
October, 2007, onwards tenant petitioner
shall pay rent to the landlord respondent
@ Rs.1750/- per month inclusive of water
tax etc. No further amount over and above
Rs.1750/- per month shall be payable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2007

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ petition No 57671 of 2007

Smt. Lalita and another ...Petitioners
Versus
Union of India and others ...Respondents

Counsel for the Petitioners:
Sri Sanju Ram

Counsel for the Respondents:
Sri Govind Saran
S.C.

Constitution
of
India-Art.
226Compassionate
appointment-wife
of
deceased employee was 28 years at the
time of death-never claimed for her
appointment-after
18
years
claimed
appointment to her son (adopted) who
was minor at that time-rejection of such
belated claim-held-proper-not a right of
succession of employee-or vested right
of claimant but to provide immediate
succor to the bereaved family-claim after
such long time-contrary to very object of
compassionate appointment.

Held: Para 18

We are, therefore, clearly of the view
that
the
claim
for
compassionate
appointment after a long time would be
contrary to the very basis, purpose and
objective
of
the
scheme
of
compassionate appointment and cannot
be considered at all. We do not find any
fault in the judgment of the learned
Tribunal
dismissing
the
Original
Application of the petitioners.
Case law discussed:
AIR 1989 SC 1976, 1994 (4) SCC-138, JT 1997
(8) SC 332, 1998 (5) SCC 192, JT 2000 (10)
3 All] Smt. Lalita and another V. Union of India and others
901
SC 156, 2002 LLJ 773, 2003 (7) SCC 511, AIR
1996 SC 1936

(Delivered by Hon'ble S. Rafat Alam, J.)

1. We have heard Mr. Sajnu Ram,
learned counsel for the petitioners and Sri
Govind saran, learned Standing Counsel
for the respondents- Railway and also
perused the record.

2. The petitioner are aggrieved by
the judgement/order dated 31.7.2007
passed by the Central Administrative
Tribunal, Allahabad Bench, Allahabad (in
short the Tribunal) dismissing Original
Application No 419 of 2004 (Smt. Lalita
and another Vs. Union of India and
another) whereby the petitioners have
sought for mandamus commanding the
respondents to provide compassionate
appointment to petitioner no.2.

3. It is not disputed that Late Lilit
Kumar Singh was the employee of the
Railway Department, and died on 12th
October, 1989. At that time petitioner
no.2 was minor, who claims to be the
adopted son of petitioner no.1 (deceased
employee). Petitioner no.2 has disclosed
his age as 28 years in the affidavit, he
must have attained majority in the year
1998. It is not the case of petitioner no.1
that she had ever made any application
claiming compassionate appointment for
herself. It is on the contrary admitted that
she requested the authority concerned to
provide compassionate appointment to her
son, who is petitioner no.2, which could
not have been granted prior to 1998, since
he was minor. Learned counsel for the
respondents contends that petitioner no.2
could attain the age of majority in the year
1998 and after such a long lapse of time
compassionate appointment could not
have been given. Moreover after 18 years
of the death of the husband of petitioner
no.
l,
the
request
to
provide
compassionate appointment cannot be
considered.

4. We have considered the rival
submissions and are of the view that
though the learned Tribunal has rejected
the claim of the petitioner by disbelieving
the theory of adoption of petitioner no.2,
without entering into that controversy,
even otherwise, the request of the
petitioner for compassionate appointment
should not be considered after such a long
time and has rightly been rejected by the
respondents. The moot point, which we
have considered in this case is whether
after more than a decade a person can
claim compassionate appointment and
whether such request can be considered
only on the ground that earlier the child or
children being minor could not have been
considered
for
compassionate
appointment
but
after
attaining
the
majority they are entitled to be considered
for such appointment.

5. The purpose and objective of
compassionate appointment is to provide
immediate succor to the bereaved family
whose sole bread earner has died in
harness. It is not a source of recruitment.
It only enables the family to tide over the
sudden crisis and not to give a member of
such family a post much less a post held
by the deceased. It is not a kind of right of
succession in the service when the
employee has died in harness. The
compassionate appointment has always
been considered to be an exception to the
Rules made in favour of the family of the
deceased employee in consideration of
services rendered by him and legitimate
expectations, change in status and affairs
902 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
of family endangered by the erstwhile
employment
which
are
suddenly
upturned. It cannot be allowed as a matter
of course. There is no question of
reserving a vacancy for the Dependents of
deceased employee so as to provide them
as and when they claim the same after
acquiring requisite qualification, age etc.
If compassionate appointment is allowed
after reasonably long time, it would defeat
the very object of assisting the family of
deceased employee to tide over the
sudden crisis resulting due to the death of
bread earner, leaving his/her family in
penury and without any means of
livelihood.
The
matter
has
been
considered by the Apex Court as well as
this Court time and again and it would be
useful to have a bird's eye view on some
of such authorities of Apex Court.

6. In the case of Sushma Gosain
and others v. Union of India and others,
AIR 1989 SC 1976, the Apex Court while
considering
the
object
of
granting
appointment observed as under: -

"The
purpose
of
providing
appointment on compassionate ground is
to mitigate the hardship due to death of
the bread-earner in the family. Such
appointment
should,
therefore,
be
provided immediately to redeem the
family in distress,"

7. In the case of Umesh Kumar
Nagpal v. State of Haryana and others,
1994 (4) SCC 138, the Apex Court
reiterating
the
said
purpose
further
explained nature of right of legal heirs
qua employment, as under: -

"The whole object of granting
compassionate employment is, thus, to
enable the family to tide over the sudden
crisis. The object is not to give a member
of such family a post much less a post for
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 favourable treatment given
to such dependant of the deceased
employee in such posts has a rational
nexus with the object sought to be
achieved, viz. relief against destitution.
No other posts are expected or required to
be given by the public authorities for the
purpose. It must be remembered in this
connection that as against the destitute
family of the deceased, there are millions
of other families which are equally, if not
more, destitute. The exception to the rule
made in favour of the family of the
deceased employee is in consideration of
the services rendered by him and the
legitimate expectations, and the change in
the status and affairs of the family
engendered by the erstwhile employment,
which
are
suddenly
upturned..........
Unmindful of this legal position, some
Governments and public authorities have
been offering compassionate employment
sometimes
as
a
matter
of
course
irrespective of the financial condition of
the family of the deceased...........The
decision does not justify compassionate
employment either as a matter of
course..........The only ground which can
justify compassionate employment is the
penurious condition of the deceased's
family........ The consideration for such
employment is not a vested right........ The
3 All] Smt. Lalita and another V. Union of India and others
903
object being to enable the family to get
over the financial crisis."

8. In the case of Haryana state
Electricity Board and another v. Hakim
Singh, JT 1997 (8) SC 332, the Apex
Court cautioned that the object of
providing compassionate employment is
only to relieve the family from financial
hardship. Therefore, an ameliorating relief
should not be taken as opening of
alternative mode of recruitment to public
employment.

9. Again In Director of Education
(Secondary) and another v. Pushpendra
Kumar and others, 1998 (5) SCC 192 the
Apex Court observed as under: -

"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-earned
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 the
ends meet, a provision is made for giving
gainful appointment to one of the
dependants 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.
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. 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 provision, does not unduly
interfere with the right of other persons
who are eligible for appointment to seek
employment against the post which would
have been available to them, but for the
provision enabling appointment being
made on compassionate grounds for the
dependent of a deceased employee."
(emphasis added)

10. In Sanjay Kumar v. State of
Bihar and others, JT 2000 (10) SC 156,
the Apex Court reiterated that the
compassionate appointment is provided
only to enable the family of the deceased
employee to tide over sudden crises
resulting due to the death of sole breadearner who had left the family in penury
without any means of livelihood but it
cannot be treated to be a reserved vacancy
for the dependants of the deceased
Government servant who died in harness.

11. In the case of Haryana State
Electricity Board v. Krishna Devi, 2002
LLJ 773, the Apex Court while reiterating
the
objective
of
compassionate
appointment as laid down in the earlier
cases further observed that the application
made at a belated stage cannot be
entertained for the reason that by lapse of
time, the purpose of making such
appointment stands evaporated.

12. If the family has sufficient
means to survive for years together and
can take care of the minors turned into
major
after
undergoing
educational
qualification etc. that itself would be
evident to show that now the family is not
in financial crisis as it could have at the
time of sudden demise of the deceased
904 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
necessitating compassionate appointment
at a late stage i.e. after several years.

13. In State of Manipur v. Mohd.
Rajaodin, 2003 (7) SCC 511, the Apex
Court reiterated that the purpose of giving
compassionate appointment is only to
mitigate hardship caused to the family of
the deceased on account of his unexpected
death in service, only to alleviate the
distress of the family but at a belated
stage as these grounds are no more in
existence, therefore, the employment
cannot be claimed or provided.

14. Thus, in view of catena of
decisions in the matter of compassionate
appointment, some of which have been
discussed and referred above, it is clear
that
the
compassionate
appointment
cannot be claimed as a 'vested right'. The
term 'vested right' has been considered
and described by the Apex Court in the
case of Mosammat Bibi Sayeeda and
others v. State of Bihar and others, AIR
1996 SC 1936 wherein after referring to
dictionary meaning in various dictionary,
the Apex Court has observed as under:-

"Rights are vested when right to
enjoyment, present or prospective, has
become property of some particular
person or persons as present interest."

15. Thus, the vested right may arise
from contract, statute or by operation of
law. However, asking for compassionate
appointment after attaining the majority
by no stretch of imagination can be said to
be a vested right.

16. This Court cannot be obvious of
the fact that unemployment is a major
problem in our country. Lacs and millions
educated
unemployed
persons
are
wandering employment and even for a
single petty Class IV vacancy, hundreds
and thousands applied which includes not
only those who possesses the minimum,
qualification of secondary levels or less
but even graduate and post-graduate. At
times it has been seen that even persons
having doctorate have applied for the
lowest class of service i.e. Class IV. In
such a situation, public employment must
be available to eligible and suitable
persons to be filled in by competition and
all who are willing should be given an
opportunity of consideration. Asking for a
vacancy to be kept reserve so as to be
filled-in future on the basis of notional
extended distress to the family continuing
for years together would amount to denial
of such right of consideration to other
similarly placed unemployed and destitute
persons whose only faults is that their
ancestors could not get the opportunity of
employment and, therefore, they should
also
suffer
the
same
misfortune.
Compassionate appointment in fact has an
element of an immediate help to the
family of the deceased employee. The
heirs in distress lacking sufficient and
reasonable means to survive with some
honour must request for such help
immediately or within a reasonable time.
To some extent, no doubt, it is a condition
of service and the benefit available to
employee in general but extension of such
conditions of service to an unreasonable
extent would or may erode the difference
between valid and invalid and any such
stretch may render the provisions of the
compassionate appointment to be judged
on the anvil of Article 16 of the
Constitution of India which confers right
of
equal
opportunity
in
public
employment to all persons. The Court
cannot shut its eyes, to the fact that still
majority of people are continuing to be
3 All] Smt. Lalita and another V. Union of India and others
905
tiny, poor starving little Indians and still
are below poverty line. Their distress and
penury appears to be everlasting, as if
they are bound to live in distress
permanently. Their misery and destitute is
not the result of sudden demise of the sole
bread-earner but is caused by their fate
and for the reason of non-availability of
employment. They are not in a position,
even though they are alive, to earn two
times simple bread what to talk of bread
and butter. The distress of such persons is
neither negligible nor can be ignored. In
the pragmatic society, efforts had to be
made to read and apply law wherever
permissible
which
will
extend
an
opportunity of equal consideration for
public employment to public at large
irrespective of their lineage, ancestral
hierarchy etc.

17. In state of Jammu & Kashmir
and others v. Sajad Ahmed Mir, AIR
2006 SC 2743 similar facts were involved
and considering the same, the Apex Court
held that when the deceased employee
died in 1987 and his son approached the
authorities in 1999, i.e., more than a
decade, the same itself disentitles him to
claim any benefit of compassionate
appointment and observed that the view
taken by the High Court in favour of the
dependant of the deceased employee
amounts to misplaced sympathy. It
reiterated the objective of compassionate
appointment as under: -

"We may also observe that when the
Division Bench of the High Court was
considering the case of the applicant
holding that he had sought 'compassion',
the Bench ought to have considered the
larger issue as well as it is that such an
appointment is an exception to the general
rule.
Normally,
an
employment
in
Government or 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 except
where compelling circumstances demand,
such as, death of sole bread earner and
likelihood of the family suffering because
of the setback. 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
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 of India."

18. We are, therefore, clearly of the
view that the claim for compassionate
appointment after a long time would be
contrary to the very basis, purpose and
objective of the scheme of compassionate
appointment and cannot be considered at
all. We do not find any fault in the
judgment
of
the
learned
Tribunal
dismissing the Original Application of the
petitioners.

19. The writ petition, accordingly,
lacks merit and is dismissed.
---------
906 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.08.2007

BEFORE
THE HON'BLE K.S. RAKHRA, J.
THE HON'BLE S.K. JAIN, J.

Criminal Appeal No.1096 of 1982

Bira and others
...Appellants (In Jail)
Versus
State

...Respondent

Counsel for the Appellants:
Sri P.N. Misra
Sri Apul Misra
Sri Ram Babu Sharma

Counsel for the Respondents:
Km. Usha Kiran
A.G.A.

Indian Penal Code- Section 302/149readwith U.P. Children Act-Section 27Sentence of life imprisonment-at the
time of occurrence the appellant was
below than 16 years. No justification of
sending reformatory school considering
the age of appellant at present time as
27 years-Conviction of Appellant-Biraset-a-side-conviction of other appellant
confirmed.

Held: Para 31

In the instant case appellant Bira was a
child within the meaning of section 2(4)
of U.P. Children Act 1951 and now after
27
year
of
the
incident
there
is
absolutely no justification for sending
him to a reformatory school. In similar
situation the Apex court in Jayendra case
(supra) upheld the conviction but the
sentence of imprisonment imposed upon
the accused who was a child on the date
of delinquency but had become major by
the time his appeal, was decided was set
aside we are of the opinion that similar
treatment can be given to the appellant
Bira in this case.
Case law discussed:
AIR 1982 SC 685
AIR1998 (5) SCC697
AIR 1984 SC-237
J.T. 2005 (2) SC - 271

(Delivered by Hon'ble K.S. Rakhra, J.)

1. Seven persons aggrieved by the
judgment and order dated 16.4.1982
passed by VII Addl. Sessions Judge,
Aligarh in S.T. No. 277 of 1980 State Vs.
Bira and others, preferred this appeal
under section 374(2) Cr.P.C. Out of seven
appellants three namely Omveer, Ahmad
Saeed and Suresh have expired during
pendency of appeal and their appeal has
abated vide order dated 18.7.2007. The
remaining appellants namely Bira son of
Saudan, Tara son of Munshi. Onkar son
of Hira Singh, all resident of Kidhara
police
station
harduwaganj
district
Aligarh and Mohd.Shafi resident of
Harduwa police station Harduwaganj
have been sentenced by the trial court to
life imprisonment under section 302/149
IPC
and
three
years
rigorous
imprisonment under section 452 IPC. In
addition to this, appellants Bira, Tara and
Onkar have further been sentenced to
seven years rigorous imprisonment under
section 307 read with 149 IPC and one
and half year's rigorous imprisonment
under section 148 IPC. Similarly Mohd.
Shafi has further been sentenced to five
year's
rigorous
imprisonment
under
section 307 read with 149 IPC and one
year's
rigorous
imprisonment
under
section 147 IPC. The case relates to police
station Harduwaganj district Aligarh and
has arisen out of crime case no.79 of
1980.

2. According to the prosecution,
about 5 to 6 years prior to the date of
occurrence, an attempt was made on the