# Vijay Laxmi Yadav v. State of U.P & Ors

- **Citation:** (2021) 7 ILRA 698
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-28
- **Case number:** Service Single No. 12955 of 2021
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-laxmi-yadav-v-state-of-u-p-ors-47257
- **Pages:** 13

## Headnote

Law
-
Compassionate
appointment - Uttar Pradesh Recruitment
of Dependents of Government Servants
Dying in Harness Rules, 1974 - Rule 5 -
Delay in making a claim for compassionate
grounds appointment dilutes the case of
7 All. Vijay Laxmi Yadav Vs. State of U.P. & Ors.
699
immediate
financial
penury
and
consequently negates the entitlement for
appointment on compassionate grounds.
(Para 25)

Appointments on compassionate grounds cannot
wait for the claimants to attain majority or to
enable them to acquire additional qualifications
and get a better deal in appointments. In fact,
such
grounds
militate
against
claim
for
compassionate grounds appointment. (Para 26,
32 to 34)

B.
The
purpose
of
compassionate
appointments
provides
their
justification. The death of a bread winner
forces the family of the deceased into penury.
The immediacy of the financial crisis creates
the requirement for urgent redressal. The
concept of compassionate appointments is
created only to enable the bereaved family to
tide over the immediate financial crisis. (Para
13 to 15, 20)

C. Compassionate ground appointments
are an exception and cannot be made
the rule. The exception can be maintained
only by strictly adhering to the preconditions
of the appointment in a strict fashion. A
relaxation in the aforesaid pre-conditions
would open a floodgate of appointments on
compassionate grounds. It will turn the
compassionate ground appointments into a
regular
source
of
recruitment.
The
constitutionally
accepted
mode
of
appointment to public office or any other post
under
the
State
Government
or
its
instrumentalities is by open and transparent
recruitment process, consistent with the
mandate of Article 14 and Article 16 of the
Constitution of India. (Para 16 to 18)

The criteria of financial hardship faced by the
family of the deceased caused by his death,
provides a thin membrane of legitimacy to
compassionate appointments. Bereft of this
thin cover of legitimacy or if any other criteria
is
employed
to
make
compassionate
appointments,
the
appointments
would
become
vulnerable
to
a
constitutional
challenge. Appointments based on descent or
claims of appointment which rest on
heredity, invite the wrath of Article 16 of the
Constitution of India. (Para 21, 23, 24)

D. Emotional distress occasioned by the
death of the employee is not material for
appointment on compassionate grounds.
Emotional distress and financial penury are
two distinct facts. Immediate financial penury,
caused to the family by the death of the
employee, is the only relevant consideration
for appointment under dying-in-harness rules.
(Para 35)

Writ petition dismissed.(E-3)

Precedent followed:

## Text

_Characters 0–39,934 of 42,111. This is a partial read: ask again with offset=39934 for what follows._

698 INDIAN LAW REPORTS ALLAHABAD SERIES
included within the purview. The question
as to whether a claim for protection of right
in a 'shared household' can be sustained,
would have to be, therefore, based upon a
consideration of the case in its entirety.

13. The DV Act has been held to be a
beneficial and an affirmative legislation for
more effective protection of constitutional
rights of women and to ensure that they do
not become victims of any kind of domestic
violence
and
while
interpreting
the
provisions of the Act, a sensitive approach
towards the rights of women is required to
be taken.

14. It would be obligatory on the
Court in a given case to scrutinise the facts
from all angles so as to examine whether
the
plea
advanced
with
regard
to
maintainability is on a sound legal basis or
has been raised solely with a view to
nullify the grievance of the aggrieved
person. The beneficial and the affirmative
object of the enactment would be required
to be taken into view while dealing with
such questions relating to maintainability
and a narrow interpretation, which may
leave the aggrieved woman in distress,
remediless or in a situation of nonadjudication, would have to be eschewed.

15. Having regard to the aforesaid and
looking to the beneficial nature of the
statute and its affirmative purpose, a claim
for protection under the DV Act may not be
thrown out at the threshold and the question
of maintainability would require a proper
appreciation of facts of the case and a
thorough deliberation of the issues raised.

16.

Learned
counsel
for
the
applicants, at this stage, fairly submits that
the applicants would appear before the
court below and file their objections and
contest the case on merits.

17. Having regard to the aforesaid
facts and circumstances of the case, this
Court is not inclined to exercise its inherent
jurisdiction, at this stage.

18. It is made clear that the
observations made hereinabove, are prima
facie in nature and the dismissal of the
present application would not preclude the
applicants from raising all objections,
which may be available to them, including
the point with regard to maintainability of
the proceedings.

19.

Subject
to
the
aforesaid
observations,
the
application
stands
dismissed.
----------
(2021)07ILR A698
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.06.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 12955 of 2021

Vijay Laxmi Yadav ...Petitioner
Versus
State of U.P & Ors. ...Respondents

Counsel for the Petitioner:
Ganga Prasad Srivastava, Rishi Kumar Tripathi

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Compassionate
appointment - Uttar Pradesh Recruitment
of Dependents of Government Servants
Dying in Harness Rules, 1974 - Rule 5 -
Delay in making a claim for compassionate
grounds appointment dilutes the case of
7 All. Vijay Laxmi Yadav Vs. State of U.P. & Ors.
699
immediate
financial
penury
and
consequently negates the entitlement for
appointment on compassionate grounds.
(Para 25)

Appointments on compassionate grounds cannot
wait for the claimants to attain majority or to
enable them to acquire additional qualifications
and get a better deal in appointments. In fact,
such
grounds
militate
against
claim
for
compassionate grounds appointment. (Para 26,
32 to 34)

B.
The
purpose
of
compassionate
appointments
provides
their
justification. The death of a bread winner
forces the family of the deceased into penury.
The immediacy of the financial crisis creates
the requirement for urgent redressal. The
concept of compassionate appointments is
created only to enable the bereaved family to
tide over the immediate financial crisis. (Para
13 to 15, 20)

C. Compassionate ground appointments
are an exception and cannot be made
the rule. The exception can be maintained
only by strictly adhering to the preconditions
of the appointment in a strict fashion. A
relaxation in the aforesaid pre-conditions
would open a floodgate of appointments on
compassionate grounds. It will turn the
compassionate ground appointments into a
regular
source
of
recruitment.
The
constitutionally
accepted
mode
of
appointment to public office or any other post
under
the
State
Government
or
its
instrumentalities is by open and transparent
recruitment process, consistent with the
mandate of Article 14 and Article 16 of the
Constitution of India. (Para 16 to 18)

The criteria of financial hardship faced by the
family of the deceased caused by his death,
provides a thin membrane of legitimacy to
compassionate appointments. Bereft of this
thin cover of legitimacy or if any other criteria
is
employed
to
make
compassionate
appointments,
the
appointments
would
become
vulnerable
to
a
constitutional
challenge. Appointments based on descent or
claims of appointment which rest on
heredity, invite the wrath of Article 16 of the
Constitution of India. (Para 21, 23, 24)

D. Emotional distress occasioned by the
death of the employee is not material for
appointment on compassionate grounds.
Emotional distress and financial penury are
two distinct facts. Immediate financial penury,
caused to the family by the death of the
employee, is the only relevant consideration
for appointment under dying-in-harness rules.
(Para 35)

Writ petition dismissed.(E-3)

Precedent followed:

1. Umesh Kumar Nagpal Vs St. of Har., (1994) 4
SCC 138 (Para 14)

2.
Director of Education (Secondary) Vs
Pushpendra Kumar, (1998) 5 SCC 192 (Para 15)

3. Mumtaz Yunus Mulani Vs St. of Mah., (2008)
11 SCC 384 (Para 17)

4. St. of Har. Vs Ankur Gupta, (2003) 7 SCC 704
(Para 18)

5. Bhawani Prasad Sonkar Vs U.O.I. & ors.,
(2011) 4 SCC 209; [2011] 4 SCR 630 (Para 23)

6. V. Sivamurthy Vs St.of A.P., (2008) 13 SCC
730 (Para 24)

7. Sanjay Kumar Vs St. of Bihar & ors., 2000 (7)
SCC 192 (Para 27)

8. Smt. Sonal Lavaniya & anr. Vs U.O.I. & anr.,
2003 (5) AWC 4070 (Para 28)

9. Sanjeev Kumar Vs Food Corporation of India
& ors., Writ A No. 11083 of 2018, order dated
03.05.2018 (Para 29)

10. Shiv Kumar Dubey Vs St. of U.P., 2014 (2)
ADJ 312 (Para 30)

(Delivered by Hon'ble Irshad Ali, J.)
700 INDIAN LAW REPORTS ALLAHABAD SERIES

1. In view of COVID-19 pandemic,
this case is being heard through video
conferencing.

2. Heard learned counsel for the
petitioner and learned ACSC for the
respondent - State.

3. Brief fact of the case is that
petitioner's father died on 22.07.1985 while
holding the post of Constable. At that time
the petitioner was minor as her date of birth
is 03.02.1984 and after attaining majority
on 02.02.2002, she moved an application
on 02.02.2005 for grant of compassionate
appointment under Dying in Harness Rules,
1974.

4. Learned counsel for the petitioner
submitted that the petitioner is repeatedly
requesting to the respondents to ensure
appointment on the compassionate ground
in accordance with her qualification,
however, the respondents are sitting tight
over the matter and are not taking decision
in the matter.

5. A query was made to learned
counsel for the petitioner that why the
petitioner approached to this court after a
long spell of time of almost 15 years, he
submitted that after attaining majority, the
petitioner
was
continuously
making
applications
before
the
respondent
department but the same could not be
decided and now she has filed the present
writ petition before this court. He submitted
that in case direction is issued for
consideration of claim of the petitioner,
ends of justice would be met.

6. On the other hand, learned ACSC
submitted that there are latches of more
than 15 years on the part of the petitioner in
approaching this court from the date she
attained majority and moved an application
for grant of compassionate appointment,
therefore, she is not entitled for grant of
appointment on compassionate ground
under Dying in Harness Rules, 1974.

7. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record.

8. Relevant fact for consideration
before this Court is that father of the
petitioner was working as Constable under
Civil
Police
and
was posted under
Superintendent of Police, Azamgarh. He
died on 22.07.1985 by sustaining a bullet
injury while an encounter with dacoits in
district Azamgarh and at that time the
petitioner was minor. She attained majority
on 02.02.2002 and moved an application
for grant of compassionate appointment
under Dying in Harness Rules, 1974 on
02.02.2005 and reminder to the same was
moved on 02.09.2020.

9.

Grant
of
appointment
on
compassionate grounds in the respondent -
department is regulated and governed by
the
Uttar
Pradesh
Recruitment
of
Dependants of Government Servants Dying
in Harness Rules, 1974.

10. The concept of dying in harness is
unique to Service Law Jurisprudence.

11. The validity of the concept of
appointments on the basis of an employee
dying in harness was called in question
before the courts. The constitutional
validity of the aforesaid appointments soon
came to be tested. The compassionate
ground appointments passed the test of
constitutional validity by a slender margin.
The justification to make compassionate
ground appointments was provided on the
7 All. Vijay Laxmi Yadav Vs. State of U.P. & Ors.
701
footing that the kin of the deceased stood
on the brink of financial penury or faced an
immediate financial crisis on account of the
death of working member of the family.
This feature alone constituted the kin of a
deceased employee into one class and on
the
footing
alone
the
rationale
of
compassionate ground appointments was
justified.

12. It would be apposite to reinforce
the narrative with good authority.

13. The purpose of compassionate
appointments provides their justification.
The death of a bread winner forces the
family of the deceased into penury. The
immediacy of the financial crisis creates
the requirement for urgent redressal. The
concept of compassionate appointments is
created only to enable the bereaved family
to tide over the immediate financial crisis.

14. The Hon'ble the Supreme Court in
the case of Umesh Kumar Nagpal Vs.
State of Haryana, reported at (1994) 4
SCC 138, explained the purpose of
compassionate appointment as under:

"2. The question relates to the
considerations which should guide while
giving appointment in public services on
compassionate ground. It appears that
there has been a good deal of obfuscation
on the issue. 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
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 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.
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
702 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

15. A similar sentiment was echoed
by the Hon'ble Supreme Court in the case
of Director of Education (Secondary) vs.
Pushpendra Kumar, reported at (1998) 5
SCC 192 in the following terms:

"8. 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 breadearner 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 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 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 to 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 dependant of
a deceased employee. In Umesh Kumar
Nagpal Vs. State of Haryana [(1994) 4
SCC 138 : 1994 SCC (L&S) 930 : (1994)
27 ATC 537] this Court has taken note of
the object underlying the rules providing
for appointment on compassionate grounds
and has held that 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. In that case the
Court
was
considering
the
question
whether appointment on compassionate
grounds could be made against posts
higher than posts in Classes III and IV. It
was held that such appointment could only
be made against the lowest posts in nonmanual categories. It was observed: (SCC
p. 140, para 2) "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
7 All. Vijay Laxmi Yadav Vs. State of U.P. & Ors.
703
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."

16. However, there is a caution.
Compassionate ground appointments are an
exception and cannot be made the rule. The
exception can be maintained only by
strictly adhering to the pre-conditions of
the appointment in a strict fashion. A
relaxation in the aforesaid pre-conditions
would open a floodgate of appointments on
compassionate grounds. It will turn the
compassionate ground appointments into a
regular
source
of
recruitment.
The
constitutionally
accepted
mode
of
appointment to public office or any other
post under the State Government or its
instrumentalities is by open and transparent
recruitment
process.
Such
recruitment
process would invite eligible persons from
the
open
market
to
compete
for
appointment. This process is consistent
with the mandate of Article 14 and Article
16 of the Constitution of India.

17. It was with this constitutional
mandate in mind that the Hon'ble Supreme
Court in the case of Mumtaz Yunus
Mulani
Vs. State
of
Maharashtra,
reported at (2008) 11 SCC 384 cautioned
that compassionate appointment were not
an alternative mode of recruitment to
public employment, by laying down as
under:

"However, it is now a wellsettled principle of law that appointment on
compassionate grounds is not a source of
recruitment. The reason for making such a
benevolent scheme by the State or the
public sector undertaking is to see that the
dependants of the deceased are not
deprived of the means of livelihood. It only
enables the family of the deceased to get
over the sudden financial crisis."

18. The Hon'ble Supreme Court
reiterated the purpose and limitations of
compassionate ground appointment in the
case of State of Haryana Vs. Ankur
Gupta, reported at (2003) 7 SCC 704 and
held as under:

"6. As was observed in State of
Haryana Vs. Rani Devi [(1996) 5 SCC 308
: 1996 SCC (L&S) 1162 : JT (1996) 6 SC
646] it need not be pointed out that the
claim
of
the
person
concerned
for
appointment on compassionate ground is
based on the premise 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. Diein-Harness
Scheme
cannot
be
made
applicable to all types of posts irrespective
of the nature of service rendered by the
deceased employee. InRani Devi case
[(1996) 5 SCC 308 : 1996 SCC (L&S) 1162
704 INDIAN LAW REPORTS ALLAHABAD SERIES
: JT (1996) 6 SC 646] it was held that the
scheme
regarding
appointment
on
compassionate ground if extended to all
types of casual or ad hoc employees
including those who worked as apprentices
cannot
be
justified
on
constitutional
grounds. in LIC of India Vs Asha
Ramchhandra Ambekar [(1994) 2 SCC 718
: 1994 SCC (L&S) 737 : (1994) 27 ATC
174] it was pointed out that the 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. It was noted in Umesh
Kumar Nagpal Vs. State of Haryana
[(1994) 4 SCC 138 : 1994 SCC (L&S) 930
: (1994) 27 ATC 537] that as a rule, in
public service appointments 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. But such 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.

7. In the case of Director of
Education (Secondary) Vs. Pushpendra
Kumar [(1998) 5 SCC 192 : 1998 SCC
(L&S) 1302] it was observed that in the
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."

19. It was in the experience of the
State Government that a large number of
applications for compassionate ground
appointments were made much after the
death of the government servants. Rule 5 of
the said Rules provides for the said
contingency. Rule 5 authorizes the State
Government to condone the delay in
making
of
an
application
for
an
appointment on compassionate grounds.
The State Government undoubtedly has the
power to condone the delay in filing of an
application
for
appointment
on
compassionate grounds. However, while
considering the scope of such power,
purpose
of
compassionate
ground
appointments can not be lost sight of. The
stated purpose which is the only justifiable
ground for such appointments, is that the
family which is facing immediate financial
7 All. Vijay Laxmi Yadav Vs. State of U.P. & Ors.
705
crisis, should be supported by providing an
employment to a member of such family to
tide over the crisis.

20. Only present and imminent
financial
crisis
provides
the
sole
justification for making appointments on
compassionate grounds. Delay in making
such applications for appointment on
compassionate
grounds
raises
a
presumption that the immediate financial
crisis has been tided over. Lifting of the
immediate financial penury, denies the
justification for making an appointment on
compassionate grounds.

21. The criteria of financial hardship
faced by the family of the deceased caused
by his death, provides a thin membrane of
legitimacy to compassionate appointments.
Bereft of this thin cover of legitimacy or if
any other criteria is employed to make
compassionate
appointments,
the
appointments would become vulnerable to
a constitutional challenge. Appointments
based on descent or claims of appointment
which rest on heredity, invite the wrath of
Article 16 of the Constitution of India.

22. It would be apposite to fortify the
narrative with good authority.

23. The Hon'ble the Supreme Court
set its face against appointments based on
descent in the case of Bhawani Prasad
Sonkar Vs Union of India and Others
and spoke as under:

"Now, it is well settled that
compassionate employment is given solely
on humanitarian grounds with the sole
object to provide immediate relief to the
employee's family to tide over the sudden
financial crisis and cannot be claimed as a
matter of right. Appointment based
solely on descent is inimical to our
constitutional
scheme,
and
ordinarily
public employment must be strictly on the
basis of open invitation of applications and
comparative merit, in consonance with
Articles 14 and 16 of the Constitution of
India. No other mode of appointment is
permissible. Nevertheless, the concept of
compassionate
appointment
has
been
recognised as an exception to the general
rule, carved out in the interest of justice, in
certain exigencies, by way of a policy of an
employer, which partakes the character of
the service rules. That being so, it needs
little emphasis that the scheme or the
policy, as the case may be, is binding both
on the employer and the employee. Being
an exception, the scheme has to be strictly
construed and confined only to the purpose
it seeks to achieve."

"In Umesh Kumar Nagpal vs.
State of Haryana [(1994) 4 SCC 138 : 1994
SCC (L&S) 930 : (1994) 27 ATC 537] ,
while emphasising that a compassionate
appointment cannot be claimed as a matter
of course or in posts above Classes III and
IV, this Court had observed that: (SCC p.
140, para 2)

1. "2. ... 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
706 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

"Thus, while considering a claim
for employment on compassionate ground,
the following factors have to be borne in
mind:

(i) Compassionate employment
cannot be made in the absence of rules or
regulations issued by the Government or a
public authority. The request is to be
considered strictly in accordance with the
governing scheme, and no discretion as
such is left with any authority to make
compassionate appointment dehors the
scheme.

(ii)
An
application
for
compassionate
employment
must
be
preferred without undue delay and has to
be considered within a reasonable period
of time.

(iii)
An
appointment
on
compassionate ground is to meet the
sudden crisis occurring in the family on
account
of
the
death
or
medical
invalidation of the breadwinner while in
service.
Therefore,
compassionate
employment cannot be granted as a matter
of course by way of largesse irrespective of
the
financial
condition
of
the
deceased/incapacitated employee's family
at the time of his death or incapacity, as the
case may be.

iv) Compassionate employment is
permissible only to one of the dependants
of the deceased/incapacitated employee viz.
parents, spouse, son or daughter and not to
all relatives, and such appointments should
be only to the lowest category that is Class
III and IV posts."

24.

A
similar
view
against
impermissibility of appointments based on
descent was taken at an earlier point in time
in the case of V. Sivamurthy Vs. State of
Andhra Pradesh, reported at (2008) 13
SCC 730, wherein it has been provided as
under:

"18.
(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
other
mode
of
appointment is permissible, appointments
on compassionate grounds are a well-
7 All. Vijay Laxmi Yadav Vs. State of U.P. & Ors.
707
recognised exception to the said general
rule, carved out in the interest of justice to
meet certain contingencies."

25. Delay in making a claim for
compassionate grounds appointment dilutes
the case of immediate financial penury and
consequently negates the entitlement for
appointment on compassionate grounds.

26. Appointments on compassionate
grounds cannot wait for the claimants to
attain majority or to enable them to acquire
additional qualifications and get a better
deal in appointments. In fact, such grounds
militate against claim for compassionate
grounds appointment.

27. The Hon'ble Supreme Court in the
case of Sanjay Kumar Vs. State of Bihar
and Others reported at 2000 (7) SCC 192
reiterated the purpose of a compassionate
grounds appointments to tide over the
sudden crisis resulting from the death of the
earner
in
a
family.
However,
the
reservation of a vacancy to enable such
person to attain majority was negatived by
the Hon'ble Supreme Court by holding
thus:

"3. We are unable to agree with
the submissions of the learned Senior
Counsel for the petitioner. This Court has
held
in
a
number
of
cases
that
compassionate appointment is intended to
enable the family of the deceased employee
to tide over sudden crisis resulting due to
death of the breadearner who had left the
family in penury and without any means of
livelihood. In fact such a view has been
expressed in the very decision cited by the
petitioner in Director of Education Vs.
Pushpendra Kumar [(1998) 5 SCC 192 :
1998 SCC (L&S) 1302 : (1998) 2 Pat LJR
181] . It is also significant to notice that
on the date when the first application was
made by the petitioner on 2-6-1988, the
petitioner was a minor and was not eligible
for appointment. This is conceded by the
petitioner. There cannot be reservation of a
vacancy till such time as the petitioner
becomes a major after a number of years,
unless there are some specific provisions.
The
very
basis
of
compassionate
appointment is to see that the family gets
immediate relief."

28. A Division Bench of this Court
after citing good authority, also concluded
that financial penury ceased to exist in case
an application was made long years after
the death of the employee in the case of
Smt. Sonal Lavaniya and another Vs.
Union of India and another reported at
2003 (5) AWC 4070 has been held as
under:

"38. The purpose of providing
such an employment has been to render the
financial assistance to the family, which
has lost the bread earner immediately after
the
death of
the
employee.
If
the
application has been filed after expiry of 9
years the element of immediate need stood
evaporated and there was no occasion for
the respondents to consider the case of the
petitioner for such a relief. The observation
made by the learned Tribunal are in
consonance with the law laid down by the
Hon'ble Apex Court and no exception can
be taken out."

29. A similar view was taken by
learned Single Judge of this Court in the
case of Sanjeev Kumar Vs. Food
Corporation of India and Others; Writ A
No. 11083 of 2018, order dated 03.05.2018,
wherein it has been held as under:
708 INDIAN LAW REPORTS ALLAHABAD SERIES

"In a case of compassionate
appointment, it is the immediacy of
appointment that is of prime consideration
to ameliorate the financial hardship be
falling the bread winner of the family. If the
family of the bread winner or the claimant
has managed to survive for 27 years after
the death of the government servant, it
cannot be said that there is any immediacy
of
the
appointment.
Compassionate
appointment is an exception to the well
established Rule of equality in the matter of
recruitment to government service and
therefore exceptional grounds must exist to
justify such appointment."

30. The question of delay in filing
applications for appointment under Dyingin-harness Rules and the consequences of
such delay on the right to be appointed on
compassionate grounds was posed to a Full
Bench of this Court in the case of Shiv
Kumar Dubey Vs. State of U.P. reported
at 2014 (2) ADJ 312. For ease of reference,
the relevant part of the judgment is
reproduced hereunder:

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

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;

[emphasis supplied]

(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;

The
object
and purpose
of
providing compassionate appointment is to
enable the dependent members of the
family of a deceased employee to tide over
the immediate financial crisis caused by the
death of the bread-earner;

[emphasis supplied]

(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;

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;

[emphasis supplied]

(vi)
Rule
5
mandates
that
ordinarily,
an
application
for
compassionate appointment must be made
within five years of the date of death of the
7 All. Vijay Laxmi Yadav Vs. State of U.P. & Ors.
709
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;

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;

[emphasis supplied] Provisions
for the grant of compassionate appointment
do not constitute a reservation of a post in
favour of a member of the family of the
deceased employee. Hence, there is no
general right which can be asserted to the
effect that a member of the family who was
a minor at the time of death would be
entitled
to
claim
compassionate
appointment
upon
attaining
majority.
Where the rules provide for a period of
time within which an application has to be
made, the operation of the rule is not
suspended during the minority of a member
of the family." (emphasis supplied).

31. The facts of the case found earlier
shall now be considered in the light of the
judicial authority stated in the preceding
part of the judgment.

32. The father of the petitioner died in
harness on 22.07.1985. The petitioner made
an application for grant of appointment on
compassionate grounds on 02.02.2002.
Delay in making the application for
appointment on compassionate grounds, is
defended on the sole ground, that on the
date of death of the father of the petitioner,
the petitioner was minor. The petitioner
applied for appointment on compassionate
grounds when she attained majority.

33. The petitioner has approached this
Court more than 15 years after the cause of
action arose. The issue of delay and laches
on the part of the petitioner, raised by
learned Additional Standing Counsel, shall
now be considered. The writ petition is
barred by delay and laches. The petitioner
has approached this Court almost after
more than 15 years from the date of death
of her father. There is no satisfactory
explanation for laches and the delay in
filing the petition on the part of the
petitioner.

34. In view of the delay in filing the
application, for grant of appointment on
compassionate
grounds,
this
Court
consistent with the narrative in the earlier
part of the judgment, finds that the
financial crisis, if any, occasioned by the
death of the father of the petitioner, was not
existing when the application for grant of
compassionate grounds appointment was
made by the petitioner. There is no lawful
basis
for
grant
of
appointment
on
compassionate grounds to the petitioner.

35. Emotional distress and financial
penury are two distinct facts. Emotional
distress occasioned by the death of the
employee is not material for appointment
on compassionate grounds. Immediate
financial penury, caused to the family by
the death of the employee, is the only
relevant consideration for appointment
under dying-in-harness rules.
710 INDIAN LAW REPORTS ALLAHABAD SERIES

36. The courts have consistently
observed that delay and laches on part of
the litigant will lead to denial of relief. In
this regard the Hon'ble Supreme Court has
settled the law with clarity and observed it
with consistency.

37. In the wake of preceding
discussion, the writ petition is devoid of
merit and is hereby dismissed.
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(2021)07ILR A710
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.07.2021

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE DINESH KUMAR SINGH, J.

Service Bench No. 14047 of 2021

Sub Inspector (Civil Police) Amol Kumar
Sharma ...Petitioner
Versus
State of U.P & Ors. ...Respondents