# Sumit Kumar Sharma v. U.O.I. & Ors

- **Citation:** (2022) 2 ILRA 911
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-02
- **Case number:** Writ-A No. 17061 of 2021
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sumit-kumar-sharma-v-u-o-i-ors-47576
- **Pages:** 5

## Headnote

Law
-
Compassionate
appointment-dying
in
harnesscandidate appointment rejected-father
of the petitioner died in harness leaving
behind his widow and son/petitionerpetitioner
found
unfit
for
post
of
constable on the ground that he was
over age and also because of his marital
status-petitioner was also considered
for driver post but he failed to submit
his driving license-thus the age as on
the date on which the application is
considered would be the relevant date,
and not when the application is madecompassionate
appointment
is
an
exception
to
the
general
rule-the
compassionate ground is a concession
and not a right-Hence, no illegality in
the impugned order.(Para 1 to 13)

B. The appointment on compassionate
grounds is not a source of recruitment,
but a means to enable the family of the
deceased to get over a sudden financial
crisis. The provision of employment in
such lowest posts by making an exception
to the rule is justifiable and valid since it
is not discriminatory. (Para 10)

The writ petition is dismissed. (E-6)
List of Cases cited:

## Text

2 All. Sumit Kumar Sharma Vs. U.O.I. & Ors.
911
State Government. Thus, Rule 5 of U.P.
Dying in Harness Rules, 1974 clearly bars
the appointment of the petitioner on
compassionate ground.

13. Thus, for the reasons given above,
the writ petition lacks merit and is,
accordingly, dismissed. However, there
shall be no order as to costs.
----------
(2022)02ILR A911
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2021

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 17061 of 2021

Sumit Kumar Sharma ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pradeep Kumar, Sri Krishna Nand

Counsel for the Respondents:
A.S.G.I., Sri Vivek Tripathi

A.
Service
Law
-
Compassionate
appointment-dying
in
harnesscandidate appointment rejected-father
of the petitioner died in harness leaving
behind his widow and son/petitionerpetitioner
found
unfit
for
post
of
constable on the ground that he was
over age and also because of his marital
status-petitioner was also considered
for driver post but he failed to submit
his driving license-thus the age as on
the date on which the application is
considered would be the relevant date,
and not when the application is madecompassionate
appointment
is
an
exception
to
the
general
rule-the
compassionate ground is a concession
and not a right-Hence, no illegality in
the impugned order.(Para 1 to 13)

B. The appointment on compassionate
grounds is not a source of recruitment,
but a means to enable the family of the
deceased to get over a sudden financial
crisis. The provision of employment in
such lowest posts by making an exception
to the rule is justifiable and valid since it
is not discriminatory. (Para 10)

The writ petition is dismissed. (E-6)
List of Cases cited:

1. St. of U.P. & ors. Vs Premlata, Civil Appeal
No. 6003 of 2021

2. H.P. & anr. Vs Shashi Kumar (2019) 3 SCC
653

3. Govind Prakash Verma Vs LIC (2005) 10 SCC
289: 2005 SCC (L&S) 590

4. Mumtaz Yunus Mulani Vs St. of Mah. (2008) 2
SCC (L&S) 1077

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Pradeep Kumar Kashyap,
learned counsel for the petitioner as well as
Sri
Shashi
Prakash
Singh,
learned
Additional Solicitor General of India
assisted by Sri Vivek Triapthi, learned
counsel for the respondents.

2. Learned counsel for the petitioner
submits that by means of present writ
petition, petitioner has assailed the order
dated 12.05.2021, passed by the Inspector
General of Police, Central Reserve Police
Force, Central Command, Vibhuti Khand,
Gomati
Nagar,
Lucknow,
whereby
candidature
of
the
petitioner
for
compassionate appointment on one of the
various posts in the CRPF have been
rejected.

3. It is next submitted by learned
counsel for the petitioner that his father was
912 INDIAN LAW REPORTS ALLAHABAD SERIES
posted as Assistant Sub Inspector at 63
Battalion, CRPF and he died on 18.05.2016
in harness leaving behind his widow wife
an petitioner himself as his legal heirs.
Petitioner's father was the only bread earner
of the family and consequently the
petitioner made an application for being
appointed under the dying-in-harness rules
applicable to the said Organisation, for the
posts which have been earmarked for the
same.

4. The petitioner was asked to appear
for physical test on 13.05.2019, at NOIDA,
and which he could not clear and
consequently was found unfit for being
appointed on the post of constable.

5. Consequently, case of the petitioner
was also considered on the post of
Hawildar/Ministerial or Assistant SubInspector, but his candidature was again
rejected on the ground that he was over age
and also because of his marital status.

6. Subsequently, the petitioner was
also considered to be appointed on the Post
of Driver but the same could not be
considered as the petitioner has not
submitted any driving license and while
rejecting the said the application of the
petitioner, it has been stated that they have
considered the application for appointment
but
due
to
the
aforesaid
reasons,
compassionate appointment cannot be
given to the petitioner.

7. It has been submitted by learned
counsel for the petitioner that he had made
the
application
for
compassionate
appointment
in
the
year
2016
and
consequently his age as in 2016 should
have been considered while considering
him for appointment and therefore his
application should not have been rejected
on the ground of over age.

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

9. It has been noticed that age of the
petitioner on the date of consideration of
his
application
for
compassionate
appointment
would
be
a
relevant
consideration.
For
compassionate
appointment, there are several applications
and when ever vacancy is offered to a
candidate, his qualifications and eligibility
has to be considered according to the post
against which he/she is being considered
and therefore the age as on the date on
which the application is considered would
be the relevant date, and not when the
application is made.

10. In this connection reference may
be made to the observations of Hon'ble
Supreme Court in the case of The State of
Uttar Pradesh and others Vs. Premlata in
Civil Appeal No.6003 of 2021 as under:-

8.While considering the issue involved
in the present appeal, the law laid down by
this court on compassionate ground on the
death of the deceased employee are
required to be referred to and considered.
In the recent decision this court in Civil
Appeal No.5122 of 2021 in the case of the
Director of Treasuries in Karnataka & Anr.
vs. V. Somashree, had occasion to consider
the principle governing the grant of
appointment on compassionate ground.
After referring to the decision of this court
in N.C. Santhosh vs. State of Karnataka
and Ors. reported in (2020) 7 SCC 617,
this Court has summarized the principle
governing the grant of appointment on
compassionate ground as under:
2 All. Sumit Kumar Sharma Vs. U.O.I. & Ors.
913

(i)
that
the
compassionate
appointment is an exception to the general
rule;

(ii) that no aspirant has a right to
compassionate appointment;

(iii) the appointment to any public post
in the service of the State has to be made
on the basis of the principle in accordance
with Articles 14 and 16 of the Constitution
of India;

(iv) appointment on compassionate
ground can be made only on fulfilling the
norms laid down by the State's policy
and/or satisfaction of the eligibility criteria
as per the policy;

(v) the norms prevailing on the date of
the consideration of the application should
be the basis for consideration of claim for
compassionate appointment.

9.As per the law laid down by this
court in catena of decisions on the
appointment on compassionate ground, for
all
the
government
vacancies
equal
opportunity should be provided to all
aspirants as mandated under Article 14
and 16 of the Constitution. However,
appointment on compassionate ground
offered to a dependent of a deceased
employee is an exception to the said norms.
The compassionate ground is a concession
and not a right.

9.1 In the case of State of Himachal
Pradesh and Anr. vs. Shashi Kumar
reported in (2019) 3 SCC 653, this court
had an occasion to consider the object and
purpose of appointment on compassionate
ground and considered decision of this
court in case of Govind Prakash Verma
vs. LIC reported in (2005) 10 SCC 289,
in para 21 and 26, it is observed and held
as under:

"21. The decision in Govind Prakash
Verma [Govind Prakash Verma v. LIC,
(2005) 10 SCC 289, has been considered
subsequently in several decisions. But,
before we advert to those decisions, it is
necessary to note that the nature of
compassionate
appointment
had
been
considered by this Court in Umesh Kumar
Nagpal v. State of Haryana [Umesh Kumar
Nagpal v. State of Haryana, (1994) 4 SCC
138 : 1994 SCC (L&S) 930] . The
principles which have been laid down in
Umesh Kumar Nagpal [Umesh Kumar
Nagpal v. State of Haryana, (1994) 4 SCC
138 : 1994 SCC (L&S) 930] have been
subsequently followed in a consistent line
of
precedents
in
this
Court.
These
principles
are
encapsulated
in
the
following extract:

(Umesh Kumar Nagpal case [Umesh
Kumar Nagpal v. State of Haryana, (1994)
4 SCC 138 : 1994 SCC (L&S) 930] , SCC
pp. 13940, para 2)

"2. ... As a rule, appointments in the
public services should be made strictly on
the basis of open invitation of applications
and merit. No other mode of appointment
nor any other consideration is permissible.
Neither the Governments nor the public
authorities are at liberty to follow any
other procedure or relax the qualifications
laid down by the rules for the post.
However, to this general rule which is to be
followed strictly in every case, there are
some exceptions carved out in the interests
of
justice
and
to
meet
certain
contingencies. One such exception is in
favour of the dependants of an employee
dying in harness and leaving his family in
penury
and
without
any
means
of
livelihood. In such cases, out of pure
humanitarian consideration taking into
consideration 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 in the rules to provide
gainful
employment
to
one
of
the
dependants of the deceased who may be
eligible for such employment. The whole
914 INDIAN LAW REPORTS ALLAHABAD SERIES
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 posts in Classes III and IV are
the lowest posts in nonmanual 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.
The
provision
of
employment in such lowest posts by making
an exception to the rule is justifiable and
valid since it is not discriminatory. 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."

"26. The judgment of a Bench of two
Judges in Mumtaz Yunus Mulani v.
State of Maharashtra [Mumtaz Yunus
Mulani v. State of Maharashtra, (2008)
11 SCC 384 : (2008) 2 SCC (L&S) 1077]
has
adopted
the
principle
that
appointment on compassionate grounds is
not a source of recruitment, but a means
to enable the family of the deceased to
get over a sudden financial crisis. The
financial position of the family would
need to be evaluated on the basis of the
provisions contained in the scheme. The
decision in Govind Prakash Verma
[Govind Prakash Verma v. LIC, (2005)
10 SCC 289 : 2005 SCC (L&S) 590] has
been duly considered, but the Court
observed that it did not appear that the
earlier binding precedents of this Court
have been taken note of in that case."

10.Thus as per the law laid down by
this court in the aforesaid decisions,
compassionate
appointment
is
an
exception
to
the
general
rule
of
appointment in the public services and is
in favour of the dependents of a deceased
dying in harness and leaving his family in
penury and without any means of
livelihood, and in such cases, out of pure
humanitarian consideration taking into
consideration 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 in the
rules to provide gainful employment to
one of the dependants of the deceased
who may be eligible for such employment.
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 such
family a post much less a post held by the
deceased."

11. In case, the post offered to the
petitioner, according to him, may not be a
suitable post, it is open for him to make a
2 All. Sumit Kumar Sharma Vs. U.O.I. & Ors.
915
representation to the respondents, who
needless to say, would consider the same
and dispose of in accordance with law.

12. Also looking into the fact that a
very limited number of vacancies are
available on which candidates are to be
considered for compassionate appointment
therefore a very long duration of time may
be consumed for an individual's application
to be considered and needless to say that
eligibility conditions are also a relevant
criteria for appointments and have to be
fulfilled and therefore the eligibility on the
date of consideration of the applications
would be relevant, and the petitioner
admittedly was overage on the said date.

13. This Court does not find any
illegality or infirmity in the impugned
order. There is no merit in the arguments
raised by learned counsel for the petitioner.
Accordingly, present writ petition being
devoid of merits is dismissed.

14. However, in case there are other
vacancies available with the respondents
for which physical criteria or age can be
relaxed, then it is open for the respondents
to consider the case of the petitioner. Let
such consideration be made within a period
of three months from the date of
presentation of a copy of this order and the
decision shall be communicated to the
petitioner.

15. It is needles to say that any
decision by the respondents in the matter of
petitioner, shall be taken in accordance
with law.
----------