# Vikrant Sengar v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2025) 7 ILRA 801
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-04
- **Case number:** Writ-A No. 17732 of 2022
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikrant-sengar-v-state-of-u-p-ors-opp-parties-53651
- **Pages:** 25

## Headnote

Sri Akhilesh Chandra Srivastava, C.S.C., Sri
Gaurav Bishan

ISSUE FOR CONSIDERATION
Whether dismissal from service on the
ground
of
fraudulent
compassionate
appointment, obtained by suppression of
802 INDIAN LAW REPORTS ALLAHABAD SERIES
previous employment, could be sustained
without holding a regular departmental
inquiry
under
the
U.P.
Government
Servant (Discipline and Appeal) Rules,
1999, and whether such appointment is
void ab initio.
HEADNOTE
Compassionate Appointment - Fraudulent
Appointment - Natural Justice - Scope of
Disciplinary Inquiry
HELD
Father of the petitioner died in harness on
11.06.1984. He was appointed as a DSL Cleaner
on 05.07.1984 in the Indian Railways and was
subsequently
removed
from
service
on
03.06.1989. Petitioner had a regular source of
income for all those years and did not suffer
financial destitution due to the death of his
father in harness. Petitioner was appointed as
an Assistant Teacher on 04.10.1990 under the
Dying in Harness Rules by concealing the said
facts of his previous service and removal from
the Railways. A chargesheet was drawn up
against the petitioner on 12.10.2020. The
petitioner did not tender his defence or refutation of
the charges. The disciplinary authority found that the
charges relating to illegality and fraud in the
petitioner's appointment stood proved and passed
the order of dismissal. Held - financial crisis faced by
the petitioner in 1989 resulted from his removal from
Railway service and was not caused by his father's
death. There was no nexus between the death of the
petitioner's father in harness in 1984 and the financial
penury faced by him in 1989. Immediate financial
destitution of the dependent, caused by the death of
an employee-which is the mandatory prerequisite
for appointment on compassionate grounds-did not
exist in this case. Violation of the imperative
precondition for compassionate appointment is a
non-curable illegality which goes to the root and
renders the petitioner's appointment void ab initio.
Application for appointment on compassionate
grounds was made nearly five years after the death
of the petitioner's father; such delay was fatal to the
legality of the appointment. Issuance of show-cause
notice and compliance of the broad principles of
natural justice were sufficient to meet the ends of
justice; a regular departmental inquiry under the
1999 Rules was not required. Mere continuance for
long years in service does not entitle the petitioner to
any equitable relief. (Paras 49-64) (E-5)
CASE LAW CITED
Zila Basic Shiksha Adhikari, Balrampur v. Anand
Kumar Tripathi & Others, 2024:AHC-LKO:37313-DB;
District Basic Education Officer v. Punita Singh &
Others, Special Appeal Defective No. 506 of 2024;
R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC
105;
Union of India v. Prohlad Guha etc., 2024 SCC
OnLine SC 1865;
Devendra Kumar v. State of Uttaranchal, (2013) 9
SCC 363;
Lazarus Estates Ltd. v. Beasley, (1956) 1 QB 702;
R.M. Sahai J. in Shrisht Dhawan (Smt.) v. M/s Shaw
Brothers;
 D. Gopaiah v. State of A.P., 2002 (2) LLN 484 (FB)
National Institute of Technology v. Niraj Kumar Singh,
(2007) 2 SCC 481
List of Acts
U.P. Government Servant (Discipline and Appeal)
Rules, 1999
U.P. Recruitment of Dependents of Government
Servants Dying in Harness Rules, 1974
Constitution of India
List of Keywords
Compassionate
appointment
-
Fraud
-
Suppression of facts - Natural justice -
Disciplinary inquiry - Void ab initio - Illegal
7 All. Vikrant Sengar Vs. State of U.P. & Ors.
803
appointment - Article 311 - Equitable relief -
Departmental enquiry
CASE ARISING FROM
Challenge to the order dated 03.03.2021 passed
by the Basic Shiksha Adhikari dismissing the
petitioner from service and the order dated
18.09.2022 passed by the Secretary, Basic
Shiksha
Parishad,
Prayagraj
rejecting
the
petitioner's appeal.
Appearances for Parties
Advs For Petitioner: Chandan Sharma, Jadu
Nandan Yadav, Pranve

## Text

_Characters 0–39,782 of 82,704. This is a partial read: ask again with offset=39782 for what follows._

7 All. Vikrant Sengar Vs. State of U.P. & Ors.
801

"18. ...the principles pertaining to
the
nature
of
claim
made
by
the
dependents, its consideration based on the
parameters as laid down in the relevant Rules,
that also with the emphasis that the applicantdependent must strictly fall within the
parameters as on the date of the death of
government servant, are well established
besides the fact that the appointment is neither a
right nor an alternative source of recruitment."

(emphasis supplied)

10. The aforementioned judgement of
Rajasthan High Court in Ravi Kumar Jeph
(supra), was challenged before the Apex Court
by means of Special Leave Petition (Civil)
Diary No(s). 25916 of 20257. The Apex Court
vide its judgement dated 17.06.2025 has
dismissed the petition on the ground of delay as
well as on merits, observing that there is no
ground to interfere with the order challenged
therein.

11. The arguments advanced by the
learned counsel for the petitioner regarding nonapplicability of Rule-5 of the Rules, 1974 in
petitioner's case and not giving opportunity of
hearing before passing the order impugned,
have no merit acceptance. As regards, the
condition under Rule-5 that one member of
deceased employee's family shall be given
employment, in case spouse of the deceased
Government Servant is not already employed
under the Government establishment, exists
since introduction of the Rules, 1974. Insofar as
the opportunity of hearing is concerned, the
petitioner had submitted all relevant documents
before the authority along with his application
dated 28th February, 2025, but he failed to turn
up for personal hearing while he was called on
04th April, 2025.

12. In view of the aforesaid, admittedly
the petitioner does not fulfil the criteria as
framed under Rule-5 of the Rules, 1974 as his
father (spouse of deceased employee) is an
Assistant Teacher in a Primary School run by
the U.P. Basic Education Board and in view of
the settled position of law, discussed in
preceding paragraphs, it is inevitable the
dependent must strictly fall within the
parameters as on the date of death of
government servant and must fulfil the
norms laid down by policy of State
Government,
for
consideration
of
employment on compassionate ground.

13. I do not find it a fit case to be
interfered with. The writ petition lacks
merit, hence stands dismissed.

14. No order as to costs.
----------
(2025) 7 ILRA 801
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2025

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ-A No. 17732 of 2022

Vikrant Sengar ...Petitioner
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioner:
Sri Chandan Sharma, Sri Jadu Nandan Yadav, Sri
Pranvesh

Counsel for the Opp. Parties:
Sri Akhilesh Chandra Srivastava, C.S.C., Sri
Gaurav Bishan

ISSUE FOR CONSIDERATION
Whether dismissal from service on the
ground
of
fraudulent
compassionate
appointment, obtained by suppression of
802 INDIAN LAW REPORTS ALLAHABAD SERIES
previous employment, could be sustained
without holding a regular departmental
inquiry
under
the
U.P.
Government
Servant (Discipline and Appeal) Rules,
1999, and whether such appointment is
void ab initio.
HEADNOTE
Compassionate Appointment - Fraudulent
Appointment - Natural Justice - Scope of
Disciplinary Inquiry
HELD
Father of the petitioner died in harness on
11.06.1984. He was appointed as a DSL Cleaner
on 05.07.1984 in the Indian Railways and was
subsequently
removed
from
service
on
03.06.1989. Petitioner had a regular source of
income for all those years and did not suffer
financial destitution due to the death of his
father in harness. Petitioner was appointed as
an Assistant Teacher on 04.10.1990 under the
Dying in Harness Rules by concealing the said
facts of his previous service and removal from
the Railways. A chargesheet was drawn up
against the petitioner on 12.10.2020. The
petitioner did not tender his defence or refutation of
the charges. The disciplinary authority found that the
charges relating to illegality and fraud in the
petitioner's appointment stood proved and passed
the order of dismissal. Held - financial crisis faced by
the petitioner in 1989 resulted from his removal from
Railway service and was not caused by his father's
death. There was no nexus between the death of the
petitioner's father in harness in 1984 and the financial
penury faced by him in 1989. Immediate financial
destitution of the dependent, caused by the death of
an employee-which is the mandatory prerequisite
for appointment on compassionate grounds-did not
exist in this case. Violation of the imperative
precondition for compassionate appointment is a
non-curable illegality which goes to the root and
renders the petitioner's appointment void ab initio.
Application for appointment on compassionate
grounds was made nearly five years after the death
of the petitioner's father; such delay was fatal to the
legality of the appointment. Issuance of show-cause
notice and compliance of the broad principles of
natural justice were sufficient to meet the ends of
justice; a regular departmental inquiry under the
1999 Rules was not required. Mere continuance for
long years in service does not entitle the petitioner to
any equitable relief. (Paras 49-64) (E-5)
CASE LAW CITED
Zila Basic Shiksha Adhikari, Balrampur v. Anand
Kumar Tripathi & Others, 2024:AHC-LKO:37313-DB;
District Basic Education Officer v. Punita Singh &
Others, Special Appeal Defective No. 506 of 2024;
R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC
105;
Union of India v. Prohlad Guha etc., 2024 SCC
OnLine SC 1865;
Devendra Kumar v. State of Uttaranchal, (2013) 9
SCC 363;
Lazarus Estates Ltd. v. Beasley, (1956) 1 QB 702;
R.M. Sahai J. in Shrisht Dhawan (Smt.) v. M/s Shaw
Brothers;
 D. Gopaiah v. State of A.P., 2002 (2) LLN 484 (FB)
National Institute of Technology v. Niraj Kumar Singh,
(2007) 2 SCC 481
List of Acts
U.P. Government Servant (Discipline and Appeal)
Rules, 1999
U.P. Recruitment of Dependents of Government
Servants Dying in Harness Rules, 1974
Constitution of India
List of Keywords
Compassionate
appointment
-
Fraud
-
Suppression of facts - Natural justice -
Disciplinary inquiry - Void ab initio - Illegal
7 All. Vikrant Sengar Vs. State of U.P. & Ors.
803
appointment - Article 311 - Equitable relief -
Departmental enquiry
CASE ARISING FROM
Challenge to the order dated 03.03.2021 passed
by the Basic Shiksha Adhikari dismissing the
petitioner from service and the order dated
18.09.2022 passed by the Secretary, Basic
Shiksha
Parishad,
Prayagraj
rejecting
the
petitioner's appeal.
Appearances for Parties
Advs For Petitioner: Chandan Sharma, Jadu
Nandan Yadav, Pranvesh

Advs For Respondents: Akhilesh Chandra
Srivastava, C.S.C., Gaurav Bishan

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The judgment is being structured in
the following conceptual framework to
facilitate the discussion:

I
Introduction
II
Events leading upto the impugned
orders
III
Impugned Orders

III(A)
Order
dated
03.03.2021 passed
by the disciplinary
authority
III(B)
Order
dated
18.09.2022 passed
by the appellate
authority
IV
Facts established from the record
V
Questions for consideration
VI
Compassionate Appointments
VI(
A)
Rationale
and Purpose
VI(B
Strict
)
adherence
to law while
making
compassion
ate
appointment
s
VI(
C)
Delay
in
compassion
ate
appointment
s
VII
(A)
Impugned
order/Termination/Cancellation
of
appointment in light of statutory
provisions and case laws
(B)
Abuse
of
Compassionate
Appointments

VII
I
Procedure adopted while passing
impugned orders: Natural Justice
IX
Conclusions and Directions

I. Introduction:

2. The petitioner is aggrieved by the
order dated 03.03.2021 passed by the Basic
Shiksha Adhikari dismissing him from
service. The petitioner has also assailed the
order dated 18.09.2022 passed by the
appellate authority/Secretary, Basic Shiksha
Parishad, Prayagraj rejecting the appeal of
the petitioner against order of dismissal.

II. Events leading upto impugned
orders:

3. The petitioner was appointed as an
Assistant Teacher on 04.10.1990 under the
Dying in Harness Rules. A chargesheet was
drawn up
against
the petitioner
on
12.10.2020 which caused the initiation of
departmental proceedings against him.

4. The gravamen of the charges in the
said chargesheet were as under: As per the
804 INDIAN LAW REPORTS ALLAHABAD SERIES
first charge the petitioner was working as a
DSL Cleaner in the Indian Railways, and
later he was removed from service. The
petitioner obtained an appointment as a
teacher under the Dying in Harness Rules
in the Basic Shiksha department by
concealing the said facts of his service and
removal from Railways. According to the
second charge, the petitioner was appointed
on compassionate grounds on 04.10.1990
after the period of limitation had expired.
The third charge alleges acts of financial
irregularities and disobedience of the orders
of superior authority.

5. The chargesheet records that
various documents which were proposed to
be relied upon against the petitioner were
being appended thereto.

6. The petitioner submitted a response
to the chargesheet on 02.11.2020. In the
aforesaid reply the petitioner did not tender
his defence or refutation of the charges
against him. The petitioner never disputed
the recitals in the chargesheet that the
documents appended to the chargesheet
were served upon him. The petitioner
simply
demanded
copies
of
some
documents relating to his appointment and
initiation of the enquiry against him. By
order dated 12.11.2020 the documents
which depicted the petitioner's appointment
as DSL Cleaner and removal from service
of the railways were duly provided to him
alone with other relevant documents.

7. The petitioner furnished another
reply on 24.12.2020, wherein he demanded
certain documents pertaining to allegations
of financial irregularities. It needs to be
emphasized in the aforesaid reply that the
petitioner did not dispute his appointment
and termination from the Indian Railways.

8. A report was prepared on
05.01.2021 by the Block Education Officer
regarding
the
financial
irregularities
committed by the petitioner. After receipt
of the aforesaid report and the replies of the
petitioner a show cause notice was issued
to the petitioner on 27.01.2021 by the
disciplinary authority. The show cause
notice reiterated the substance of the
chargesheet against the petitioner. The
show cause notice appended various
documents which were proposed to be
relied upon against the petitioner including
those pertaining to his appointment as DSL
Cleaner and subsequent removal from
service in the railways.

9. The reply of the petitioner to the
show cause notice merely states that the
petitioner was not supplied the documents
which had been demanded by him. The
petitioner also made an enquiry of the list
of departmental witnesses who were
proposed to be examined and asked for
opportunity to cross examine the said
witnesses. Further the petitioner demanded
copies of the complaint against him and
also
copies
of
various
departmental
enquiries conducted in the year 2014. The
reply did not refute the charges on merits.

10. It is noteworthy that none of the
aforesaid documents demanded by the
petitioner were proposed to be relied upon
against him as per the charge-sheet or the
show cause notice.

III. Impugned Orders:

III(A).
Order
dated
03.03.2021
passed by the disciplinary authority:

11. After consideration of the same
petitioner's
reply
the
Basic
Shiksha
Adhikari, Hathras passed the impugned
order on 03.03.2021. The disciplinary
authority in the impugned order dated
03.03.2021 has recorded that the petitioner
7 All. Vikrant Sengar Vs. State of U.P. & Ors.
805
was given adequate opportunity to defend
himself. However, the petitioner failed to
submit any refutation of the charges nor
adduced evidence in support of his case.
The impugned order relied upon the
documents pertaining to his service as DSL
Cleaner in the Railways. The disciplinary
authority found that the charges relating to
the illegality and fraud in the petitioner's
appointment were found to be proved.
Further
the
charge
of
the
financial
embezzlement stood established according
to the impugned order. In this wake the
order of dismissal was passed by the
disciplinary authority on 03.03.2021.

III(B).
Order
dated
18.09.2022
passed by the appellate authority:

12. The petitioner carried the order of
dismissal in appeal before the appellate
authority. The appellate authority in the
impugned order dated 18.09.2022 dwelt at
length on the grounds raised by the
petitioner and the materials in the record.
After consideration of the same the
appellate authority found that the following
facts were established.

13. The appellate authority in the
order dated 18.09.2022 recorded that the
petitioner was appointed under the Dying
in Harness Rules on 04.10.1990. The father
of the petitioner died in harness on
11.06.1984. The petitioner was appointed
as a DSL Cleaner on 05.07.1984 in the
Indian Railways, and was subsequently
removed from service on 03.06.1989. The
appellate
authority
has
referenced
a
document of the Indian Railways attesting
the aforesaid facts in extenso. Thereafter
upon invoking the provisions of the Uttar
Pradesh Recruitment of Dependants of
Government Servants Dying in Harness
Rules, 1974, the appellate authority has
found that the petitioner was in service in
the Indian Railways at the time of death of
his father and was not entitled to be
appointed
on
compassionate
grounds.
Lastly the appellate authority has also held
that the charge of financial irregularities
against the petitioner also stood proved
before the disciplinary authority and
warranted no interference.

14. The appellate authority has
specifically found that the petitioner was
given various opportunities to tender his
defence to the charges against him.
However, the petitioner failed to refute
charges on merits in his reply to the show
cause notice.

15. After independent consideration
of material in the records and grounds of
appeal the appellate authority in the order
dated 18.08.2022 confirmed the guilt of the
petitioner and also upheld the order of
dismissal
passed
by
the
disciplinary
authority.

IV. Facts established from the
record:

16. These facts are established. The
death of father of the petitioner on
11.06.1984 in harness is a fact admitted to
both the parties. The petitioner was
appointed as a DSL Cleaner in Indian
Railways on 05.07.1984 and he was
removed from service on 03.06.1989. The
communication of the Indian Railways in
this regard has been referenced in the
impugned order.

17. Moreover, the petitioner has not
disputed the fact of his appointment as DSL
Cleaner on 05.07.1984, and his removal
from service from the Railways on
806 INDIAN LAW REPORTS ALLAHABAD SERIES
03.06.1989 at any stage before the
authorities below. In the writ petition the
petitioner has admitted to the fact of his
appointment in the Indian Railways and his
removal from service by order dated
03.06.1989. On the footing of various
materials in the record the Court has no
hesitation in holding that appointment of
the
petitioner
as
DSL
Cleaner
on
05.07.1984 in the Indian Railways and his
subsequent removal from the said post on
03.06.1989 has been established beyond
doubt and dispute.

18. The order dated 03.06.1989 issued
by the competent authority removing the
petitioner as DSL Cleaner in the Railways
has been appended to the writ petition and
is being extracted hereinunder for ease of
reference:

"I have gone through the enquiry
report and evidence on record carefully and
agreed with the findings of the enquiry
officer. Your past record also does not
speak well in regard to the attendance
performance. Moreover, lenient views
taken in each and every post offence on
your part with the hope that you will
improve but in vain. It if felt that you are
not serious in being regular. I therefore
hold you guilty of the charges levelled
against you vide SF-5 of even No. date 1109-1988 and has decided to impose upon
you the penalty of removal from service
from the date issue of this notice."

19. The petitioner was appointed on
compassionate grounds under the Uttar
Pradesh Recruitment of Dependants of
Government Servants Dying in Harness
Rules, 1974 on 04.10.1990 too is common
ground between the rival parties.

V. Questions for consideration:

20. The questions that arise for
consideration
in
the
facts
and
circumstances of this case narrated above
are:

I. Whether in the facts and
circumstances of the case and the materials
available before the authorities below the
order of dismissal from service was
justified?

II.
Whether
the
procedure
envisaged in law was adopted while
passing the impugned orders?

III. Whether the petitioner is
entitled to any relief by this Court?

VI.
Compassionate
Appointments:

VI(A). Rationale and Purpose:

21. The process of appointments on
compassionate grounds is a departure and
an exception to the public process of
appointments
as
stipulated
in
the
Constitution. Compassionate appointments
reflect the commitment of the State as a
model employer to the welfare of its
employees.

22.

The
sole
purpose
of
compassionate ground appointments is to
provide immediate financial succour to a
family
of
the
deceased
government
employee which faces sudden financial
destitution as a result of the death of the
employee in harness. The appointments on
compassionate grounds have passed the test
of constitutionality by a slender margin and
on the above grounds alone.

23. Appointments on compassionate
grounds give a sheltered entry to the
dependents of a deceased employee into
government service without the rigors of an
open selection procedure. The competitive
merit of candidates is of no relevance since
7 All. Vikrant Sengar Vs. State of U.P. & Ors.
807
the
appointments
are
made
without
adopting the public selection procedure.
Norms of recruitment are completely
relaxed for appointment on compassionate
grounds. However the law requires the
applicants
to
possess
minimum
qualifications for the posts.

24.

Considering
the
aforesaid
limitations
of
compassionate
ground
appointments, it has been held by good
authority that there is no vested right to an
appointment on compassionate grounds.
Further, the right to compassionate ground
appointment is derived only from specific
provisions in this regard and the same have
to be strictly adhered to. An unduly liberal
view while interpreting the aforesaid rules
may make the appointments vulnerable to
reproach by the equality clause of the
Constitution.

25. Appointments on compassionate
grounds made in violation of the Rules
governing such appointments or without
examination of relevant factors as per law,
or in the teeth of holdings of Constitutional
Courts in point will shear the cloak of
legality from these appointments and will
reduce the said appointments to a class of
hereditary
appointments.
Under
the
constitutional scheme of Articles 14 and 16
of
the
Constitution
appointments
to
government posts have to be achieved by
merit and not acquired by inheritance.
Constitutional
law
holdings
have
disapproved conversion of compassionate
appointments into a source of recruitment.

26. The narrative will be buttressed
by authorities in point. The purpose of
appointment on compassionate grounds
was explained by the Supreme Court in
Umesh Kumar Nagpal v. State of
Haryana1. Jurisprudential rationale laid
down in Umesh Kumar Nagpal (supra) is
the locus classicus which provides the sole
legal
basis
for
compassionate
appointments:

"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
808 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

27. The same propositions were
expounded by the Supreme Court in
Director of Education (Secondary) v.
Pushpendra Kumar2:

"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......"

28. A Full Bench of this Court in Shiv
Kumar Dubey and others v. State of U.P.
and others3 summed up the law as under:

"31.
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
7 All. Vikrant Sengar Vs. State of U.P. & Ors.
809
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 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."

VI (B). Strict adherence to law while
making compassionate appointments:

29. Strict compliance of provisions
for grant of appointments on compassionate
grounds,
and
rigorous
adherence
to
holdings of constitutional courts in point
have been consistently emphasized in the
constitutional
law
discourse.
The
discussion shall be fortified by extracting
the relevant citations. The authorities
discussed below under score that non
compliance of provisions for grant of
appointments on compassionate grounds,
and violation of case laws holding the field
810 INDIAN LAW REPORTS ALLAHABAD SERIES
is on the pain of invalidation of such
appointments. In fact appointments on
compassionate grounds made in the teeth of
statutory
provisions
and
case
laws
delegitimate
the
very
concept
of
compassionate appointments.

30. There is consensus among
Constitutional Courts in the country on the
issue of compassionate appointments. The
Calcutta High Court in Ipsita Chakrabarti
v. State of West Bengal4 summarized the
aforesaid key principles which guide
appointments on compassionate grounds by
holding :

"10. After going through the
judgments passed by the Supreme Court on
the issue of compassionate appointment,
the following principles emerge:-

(a)
Appointment
on
compassionate grounds is an exception
craved out to the general rule that
recruitment to public services is to be made
in a transparent and accountable manner
providing
opportunity
to
all
eligible
persons to compete and participate in the
selection process.

(b) The right of a dependent of an
employee
who
died
in
harness
for
compassionate appointment is based on the
scheme, executive instructions, rules etc.
framed by the employer and there is no
right to claim compassionate appointment
on any other ground apart from the above
scheme conferred by the employer.

(c)
Appointment
on
compassionate ground is given only for
meeting the immediate hardship which is
faced by the family by reason of the death
of the bread earner. When an appointment
is made on compassionate ground it should
be kept confined only to the purpose it
seems to achieve, the idea being not to
provide for endless compassion.

(d) Compassionate appointment
has to be exercised only in warranting
situations and circumstances existing in
granting appointment and guiding factors
should be financial condition of the
family."

31. The paramount importance for
granting equal opportunity to all aspirants
under
the
constitutional
scheme
for
government
appointments
and
the
exception created by the concept of
appointments on compassionate grounds
was reiterated by the Supreme Court in
N.C. Santhosh v. State of Karnataka and
others5. N.C. Santhosh (supra) while
citing the cases in point reaffirmed that
such appointments did not create any
vested right and also held that adherence to
the criteria for such appointments is a
mandatory requirement in law:

"13. It is well settled that for all
the
government
vacancies
equal
opportunity should be provided to all
aspirants as is mandated under Articles 14
and 16 of the Constitution. However,
appointment on compassionate ground
offered to a dependant of a deceased
employee is an exception to the said norms.
In SAIL v. Madhusudan Das [SAIL v.
Madhusudan Das, (2008) 15 SCC 560 :
(2009) 2 SCC (L&S) 378] it was remarked
accordingly
that
compassionate
appointment is a concession and not a right
and the criteria laid down in the Rules must
be satisfied by all aspirants.

14. This Court in SBI v Raj
Kumar [SBI v. Raj Kumar, (2010) 11 SCC
661 : (2011) 1 SCC (L&S) 150] while
reiterating that no aspirant has a vested
right to claim compassionate appointment,
declared that the norms that are in force,
when the application is actually considered,
will be applicable. The employer's right to
7 All. Vikrant Sengar Vs. State of U.P. & Ors.
811
modify the scheme depending on its
policies was recognised in this judgment.
Similarly, in MGB Gramin Bank v.
Chakrawarti Singh [MGB Gramin Bank v.
Chakrawarti Singh, (2014) 13 SCC 583 :
(2015) 1 SCC (L&S) 442] this Court
reiterated that compassionate appointment
has to be considered in accordance with the
prevalent scheme and no aspirant can claim
that his case should be considered as per
the scheme existing on the date of death of
the government employee.

17. The above discussion suggest
that the view taken in Canara Bank v. M.
Mahesh Kumar [Canara Bank v. M.
Mahesh Kumar, (2015) 7 SCC 412 : (2015)
2 SCC (L&S) 539] is to be reconciled with
the contrary view of the coordinate Bench,
in the two earlier judgments. Therefore,
notwithstanding the strong reliance placed
by the appellant's counsel on Canara Bank
v.M. Mahesh Kumar [Canara Bank v. M.
Mahesh Kumar, (2015) 7 SCC 412 : (2015)
2 SCC (L&S) 539] as also the opinion of
the learned Single Judge of the Karnataka
High Court in Uday Krishna Naik v. State
of Karnataka [Uday Krishna Naik v. State
of Karnataka, 1999 SCC OnLine Kar 209 :
ILR 1999 Kar 2648] , it can not be said that
the appellant's claim should be considered
under the unamended provisions of the
Rules prevailing on the date of death of the
government employee.

18. In the most recent judgment
in State of H.P. v. Shashi Kumar [State of
H.P. v. Shashi Kumar, (2019) 3 SCC 653 :
(2019) 1 SCC (L&S) 542] the earlier
decisions governing the principles of
compassionate appointment were discussed
and analysed. Speaking for the Bench, Dr
D.Y.
Chandrachud,
J.
reiterated
that
appointment to any public post in the
service of the State has to be made on the
basis of principles in accord with Articles
14 and 16 of the Constitution and
compassionate appointment is an exception
to the general rule. The dependants of a
deceased government employee are made
eligible by virtue of the policy on
compassionate appointment and they must
fulfil the norms laid down by the State's
policy."

32. Absence of a vested right,
mandate of the constitutional scheme of
recruitment and the need to strictly adhere
to the rules governing the grant of
appointment on compassionate grounds
was also emphasized by the Supreme Court
in
the
Director
of
Treasuries
in
Karnataka and another v. Somyashree6 :

"7.
While
considering
the
submissions made on behalf of the rival
parties a recent decision of this Court in the
case of N.C. Santhosh (Supra) on the
appointment on compassionate ground is
required to be referred to. After considering
catena of decisions of this Court on
appointment on compassionate grounds it is
observed and held that appointment to any
public post in the service of the State has to
be made on the 10 basis of principles in
accordance with Articles 14 and 16 of the
Constitution
of
India
and
the
compassionate appointment is an exception
to the general rule. It is further observed
that the dependent of the deceased
Government employee are made eligible by
virtue of the policy on compassionate
appointment and they must fulfill the
norms laid down by the State's policy. It is
further observed and held that the norms
prevailing on the date of the consideration
of the application should be the basis for
consideration of claim of compassionate
appointment. A dependent of a government
employee, in the absence of any vested
right accruing on the death of the
government employee, can only demand
812 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration of his/her application. It is
further observed he/she is, however,
entitled to seek consideration in accordance
with the norms as applicable on the day of
death of the Government employee. The
law laid down by this Court in the aforesaid
decision on grant of appointment on
compassionate ground can be summarized
as under:

(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."

33. The purpose of appointments on
compassionate grounds and the need to
avoid
conferring
benefits
merely
on
sympathetic considerations alone were
reiterated by the Supreme Court in State of
Haryana and another v. Ankur Gupta7.
In Ankur Gupta (supra) it was clearly
observed
that
the
appointments
on
compassionate grounds are not source of
recruitment and do not unduly interfere in
the rights of other persons who are eligible
for appointment against that post:

"6. As was observed in State of
Haryana and Ors. v. Rani Devi & Anr.
(JT 1996 (6) SCC 646), it need not be
pointed out that the claim of person
concerned
for
appointment
on
compassionate ground is based on the
premises that he was dependant on the
deceased employee. Strictly this claim
cannot be upheld on the touchstone
of Articles 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. Die-in harness scheme cannot be
made applicable to all types of posts
irrespective of the nature of service
rendered
by
the
deceased
employee. In Rani Devi's case (supra) it
was
held
that
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 Life Insurance
Corporation of India v. Asha Ramchhandra
Ambekar (Mrs.) and Anr. (1994 (2) SCC
718) it was pointed out that 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
contemplates
such
appointments. It was noted in Umesh
Kumar Nagpal v. State of Haryana and Ors.
(1994 (4) SCC 138) that as a rule in public
service appointment should be made
strictly on the basis of open invitation of
applications and merit. The appointment on
compassionate ground is not another source
7 All. Vikrant Sengar Vs. State of U.P. & Ors.
813
of recruitment but merely an exception to
the aforesaid requirement taking into
consideration the fact of the death of
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 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.