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A.F.R.

Court No. - 46

Case :- SPECIAL APPEAL No. - 1601 of 2012

Appellant :- Narendra Kumar Upadhyay

Respondent :- State of U.P. and Others

Counsel for Appellant :- Neeraj Tiwari,Ashok Khare

Counsel for Respondent :- C.S.C.,Mrigraj Singh

Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Vikas Budhwar,J.

1.Heard Sri Ashok Khare, learned Senior Counsel, assisted by Sri

Anurag Ojha, learned counsel for the petitioner/appellant, Sri Mrigraj

Singh, learned counsel for the respondent nos. 2 and 3 and Sri

Manvendra Dixit, learned counsel for the respondent no.1.

2.Briefly stated facts of the present case are that the

appellant/petitioner is the son of the deceased, namely, Gyan Chand

Upadhay, who was working as Assistant Teacher, and has died on

07.07.1991. According to the petitioner/appellant, he was about 8

years old at the time of death of his father. His mother, namely,

Shashi Kala, made an application on 23.07.1992 before the District

Basic Education Officer, Jaunpur, seeking appointment on

compassionate ground, which was followed by a representation dated

14.10.1991 and reminders dated 23.09.1993, 17.07.1994 and

07.11.1995, but the appointment was not granted. The

petitioner/appellant passed his Intermediate Examination in the year

2001 and thereafter did graduation from Purvanchal University,

Jaunpur. Thereafter, he filed Civil Misc. Writ Petition No. 71340 of

2007, which was finally disposed of by order dated 09.02.2007

providing that the petitioner/appellant may file representation before

the respondent no.1 ventilating all his grievances.

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3. According to the petitioner/appellant, the respondent no.1 in the

aforesaid Writ Petition No. 71340 of 2007, was the State of U.P.

However, the petitioner/appellant instead of filing representation

before the State Government, moved an application for

compassionate appointment before the District Basic Education

Officer, Jaunpur, who granted appointment vide order dated

31.03.2010. Admittedly, the petitioner/appellant filed an application

for compassionate appointment after about 9 years of death of his

father, but neither relaxation was sought from the State Government

nor any representation was filed by him before the State Government

pursuant to the order of the learned Single Judge dated 09.02.2007

nor delay in filing the application was condoned. Therefore, show

cause notice dated 05.03.2012 was issued by the District Basic

Education Officer, Jaunpur to the petitioner/appellant requiring him to

show cause as to why his appointment may not be cancelled on the

ground that petitioner/appellant obtained compassionate appointment

by concealment of facts and misrepresentation. However, the

petitioner/appellant had not submitted any reply to the aforesaid show

cause notice. Consequently, the District Basic Education Officer,

Jaunpur passed an order dated 14.04.2012 cancelling the appointment

of the petitioner/appellant as untrained assistant teacher. Aggrieved

with this order, the petitioner/appellant filed Civil Misc. Writ Petition

No. 39344 of 2012 (Narendra Kumar Upadhaya Versus State of U.P.

and others), which was dismissed by the learned Single Judge vide

impugned judgment dated 13.08.2012, observing as under:-

(I) The said order is in uttar violation of the order passed by this Court,

as in the absence of order passed by the State Government, according

relaxation, the District Basic Education Officer, could not have entertained

the said application, and accorded compassionate appointment. District

Basic Education Officer, had no authority whatsoever to accord

compassionate appointment, the order offering compassionate

appointment was void/illegal.

(ii) Thereafter District Basic Education Officer, has acquired knowledge

of fact that date of death of father of the petitioner is 07.07.1991 and by

misrepresenting the then District Basic Education Officer, Dhirendra Nath

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Singh offered appointment to the petitioner after 19 years and same was

totally illegal and in contravention of Government Order.

(iii) Fact of the matter is that this Court Court has given categorical

direction that matter be considered and decided by the State Government

and accepted position is that there is no decision of the State Government.

(iv) In the facts of the case District Basic Education Officer, has rightly

proceeded to revoke the earlier order, inasmuch as earlier order is based

on misrepresentation and law on the subject is clear, that even if there is

no power of review conferred under statute, every authority has inherent

jurisdiction to recall/review its order, if the order has been passed on

misrepresentation.

(v) Consequently, petitioner was not at all entitled to be offered

compassionate appointment after 19 years of date of death, and there was

no order passed by the State Government for accepting the time

barred6claim after 19 years of death of father, and as order has been

obtained by manipulation then this Court refuses to interfere in the matter

as any interference with the order impugned would amount to perpetuation

of illegality. The State Government is directed to take action against erring

officials also in accordance with law.

4.The present special appeal has been filed challenging the aforesaid

order dated 13.08.2012 passed in Civil Misc. Writ petition No. 38344 of

2012 (Narendra Kumar Upadhaya Versus State of U.P. and others).

5.Sri Ashok Khare, learned Senior Counsel submits as under:-

(i) The petitioner/appellant was only 8 years of age when his father died on

07.07.1991. Therefore, on attaining the age of majority, he filed an

application for compassionate appointment, hence, there was no delay in

filing the application for compassionate appointment.

(ii) The financial condition of the family of the deceased for the purposes

of compassionate appointment has to be looked into, as on the date of

death of his father. Reliance has been placed in the case of Sheo Kumar

Dubey Versus State of U.P. and others 2014 (2) ADJ 312.

(iii) Once compassionate appointment has been granted to

petitioner/appellant on 10.03.2012, then the said order cannot be

reviewed on the ground that the order granting compassionate

appointment is nullity, as the District Basic Education Officer,

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Jaunpur has no power to review its own order.

(iv)The compassionate appointment in the District Basic

Education Department is governed by the Government Order dated

04.09.2000, which is pari materia with the provision of the U.P.

Dependents of Government Servants Dying in Harness Rules, 1974.

Therefore, the petitioner/appellant was entitled for compassionate

appointment and was rightfully granted the compassionate

appointment.

6.Learned Standing Counsel as well as learned counsel for the

respondent nos. 2 and 3 support the impugned order passed by the

learned Single Judge.

7.We have carefully considered the submission of the learned

counsel for the parties.

8.It is undisputed that the deceased employee died on 07.07.1991

when the petitioner was about 8 years old. He passed Intermediate

Examination in the year 2001 and thereafter did his graduation some

time in the year 2004. Thereafter, he filed Civil Misc. Writ Petition

No. 71340 of 2007 which was disposed of by the impugned order

dated 09.02.2007 giving liberty to the petitioner/appellant to make a

representation before the respondent no.1 ventilating all his

grievances. However, petitioner had not filed any representation

before the State Government which has power to condone/ relax the

condition for filing an application beyond five years.

Petitioner/appellant moved an application before the District Basic

Education Officer, Jaunpur claiming appointment on compassionate

ground pursuant to the order dated 09.02.2007 passed in Civil Misc.

Writ Petition No. 31340 of 2007. The District Basic Education

Officer, Jaunpur passed an order of compassionate appointment on

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31.03.2010. Subsequently, show cause notice dated 05.03.2012 was

issued by the District Basic Education Officer, Jaunpur to show

cause as to why his appointment may not be cancelled, as it was

illegally obtained. The petitioner/appellant, for the reason best known

to him had not submitted any reply before District Basic Education

Officer, Jaunpur. Therefore, the District Basic Education Officer,

Jaunpur passed order dated 14.04.2012 cancelling his appointment.

9.Admittedly, the father of the petitioner/appellant Sri Gyan Chand

Upadhyay was an Assistant Teacher in a Primary School Sauraiyyah,

Block Khutahan, District Jaunpur, who died in-harness on

07/07/1991, leaving behind his widow Smt. Shashi Kala and two

sons, namely, Narendra Kumar Upadhyay (petitioner/appellant) and

Dharmendra. It is also not in dispute that after the death of Sri Gyan

Chand Upadhyay (since deceased) on 7.7.1991, his widow Shashi

Kala preferred application for the grant of compassionate

appointment addressed to the third respondent on 23.7.1991, followed

by reminders dated 14.10.1992, 23.9.1993, 17.7.1994 and 7.11.1995,

respectively. There is nothing on record to substantiate the fact as to

what action had been taken by the widow of the deceased Smt. Shashi

Kala for enforcement of her legal right to be considered for

compassionate appointment.

10.However, after a span of more than 16 years, it appears that the

petitioner/appellant filed Writ Petition no. 71340 of 2007, Narendra

Kumar Upadhyay vs. State of U.P. and others, seeking direction to the

respondents therein to consider his claim for grant of compassionate

appointment on account of the death of Sri Gyan Chand Upadhyay on

7.7.1991. The order dated 9.2.2007 passed in the said writ petition is

reproduced below: -

“It is alleged that father of the petitioner expired during harness

while working as assistant teacher in Prathmik Vidyalay Sauraiyya

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district Jaunpur. At the relevant time, petitioner was minor. On

attaining majority he has made an application for compassionate

appointment. Petitioner seeks consideration of his claim for

compassionate appointment under the relevant provision of the

rules applicable.

Sri P.D. Tripathi learned counsel for the respondents points out

that the application has been made after expiry of five years from

the date of death of the employee concerned. It is therefore requires

relaxation of outer limit fixed by the State Government.

In view of the aforesaid facts let a representation be made by

the petitioner before Respondent No.1 ventilating all this

grievances within two weeks from today along with certified copy

of this order. ON such representation being made, Respondent No.1

shall consider and decide the same, by means of a reasoned

speaking order, preferably within four weeks thereafter.

With the aforesaid observations/directions, the present writ

petition is disposed of finally.”

11.By the aforequoted order dated 09.02.2007 passed in the Writ

Petition No. 71340 of 2007, direction was issued to the respondent

no.1 therein i.e, the State of Uttar Pradesh, to consider and decide the

claim of the petitioner/appellant, on representation by him for

ventilation of his grievances. The petitioner/appellant as per her own

showing has appended as Annexures-9 and 10 to the Writ Petition No.

39344 of 2012, the representation preferred by him before the

respondent no.2 and 3 for consideration of his claim for grant of

compassionate appointment. There is nothing on record to show that

by which manner and by which mode, the said letters/ representations

were served upon the respondent nos. 2 and 3.

12.Clause-8 of the Government Order dated 4.9.2000 issued by

Secretary, U.P. Government, addressed to Director Education (Basic)

and Chairman Uttar Pradesh, Basic Shiksha Parishad, Allahabad

providing the manner according to which compassionate appointment

may be granted to a dependent of a deceased teacher / employee of

the Institutions of the Uttar Pradesh Basic Shiksha Parishad,

Allahabad, is reproduced below:-

“¼8½ e`rd vkfJr –kjk lEcfU/kr deZpkjh ds e`R;q ds

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fnukad ls ikap o"kZ ds Hkhrj lsok;kstu ds fy, vkosnu

izLrqr fd;k tk ldrk gSA ijUrq tgka jkT; ljdkj dks

;g lek/kku gks tk;s fd lsok;kstu ds fy, vkosnu

djus ds fy, fu;r le; lhek ls fdlh fof'k"V ekeys

esa] vuqfpr dfBukbZ gksrh gS ogka og vis{kkvksa dks] ftUgsa

og ekeys esa U;k; laxr vkSj lkE;iw.kZ jhfr ls dk;Zokgh

djus ds fy, vko';d le>s] vfHk;qDr ;k f'kfFky dj

ldrh gSA fu;eksa esa bl vk'k; dh

vfHkeqfDr@f'kfFkyhdj.k ds lEcU/k esa] izLrko lEcfU/kr

izkf/kdkjh –kjk f'k{kk funs'kd ¼cs0½ ds ek/;e ls 'kklu

dks izsf"kr fd;s tk;saxsA”

13.Clause-8 of the Government Order dated 4.9.2000 as referred to

above is para materia with the provisions contained under the Uttar

Pradesh Recruitment of Dependents of Government Servants Dying

in Harness Rules, 1974. Rules 5 and 6 of the Uttar Pradesh Dying in

Harness Rules 1974 (in short “The Rules 1974”) are reproduced

below:-

“[5. Recruitment of a member of the family of the deceased. - (1)

In case a Government servant dies in harness after the

commencement of these rules and the spouse of the deceased

Government servant is not already employed under the Central

Government or a State Government or a Corporation owned or

controlled by the Central Government or a State Government, one

member of his family who is not already employed under the

Central Government or a State Government or a Corporation

owned or controlled by the Central Government or a State

Government shall, on making an application for the purposes, be

given a suitable employment in Government service on a post

except the post which is within the purview of the Uttar Pradesh

Public Service Commission, in relaxation of the normal

recruitment rules, if such person-

(i) fulfils the educational qualifications prescribed for the post,

(ii) is otherwise qualified for Government service, and

(iii) makes the application for employment within five years from

the date of the death of the Government servant:

Provided that where the State Government is satisfied that the time

limit fixed for making the application for employment causes

undue hardship in any particular case, it may dispense with or relax

the requirement as it may consider necessary for dealing with the

case in a just and equitable manner.

(2) As far as possible, such an employment should be given in the

same department in which the deceased Government servant was

employed prior to his death.]

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[5A. Recruitment of member of the family of Police/P.A.C.

Personnel who dies in May, 1973. - Notwithstanding anything

contained to the contrary contained in Rule 5 or in any other rule,

the provisions of these rules shall apply in the case of members of

the family of twenty-two police or per Provincial Armed

Constabulary personnel who died as a result of disturbances in

May, 1973, as they apply in the case of a Government servant

during dying in harness after the commencement of these rules.]

6. Contents of application for employment. - An application for

appointment under these rules shall be addressed to the appointing

authority in respect of the post for which appointment is sought but

it shall be sent to the Head of Office where the deceased

Government servant was serving prior to his death. The application

shall, inter alia, contain the following information :

(a) the date of the death of the deceased Government servant; the

department in which he was working and the post which he was

holding prior to his death;

(b) names, age and other details pertaining to all the members of

the family of the deceased, particularly about their marriage,

employment and income;

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

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

applicant.”

14.A conjoint reading of Rule 5 of the Rules, 1974 and the

Government Order dated 4.9.2000, clearly reveals that for the

purposes of consideration for grant of compassionate appointment to

the dependent of the deceased employee, the dependent has to fulfil

the minimum requirement, i.e, (a) possess educational qualification

prescribed for the post; (b) otherwise qualified for service; (c) makes

an application for employment within 5 years from the date of the

death of the deceased. Proviso to Rule 5 of the Rules, 1974 carves out

an exception to entertain an application beyond five years, when the

State Government is satisfied that the time limit for making the

application for employment causes undue hardship in any particular

case, it may dispense with or relax the requirement, as it may

consider necessary for dealing with the case in a just and equitable

manner.

15.Thus from the aforesaid analysis with respect to the legal

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provisions as recapitulated hereinabove and the facts of the present

case, it is crystal clear that the petitioner/ appellant has neither taken

any steps before the State Government in terms of the Proviso to Rule

5 of the Rules, 1974, or the aforequoted Clause 8 of the Government

Order for relaxation of outer limit of five years for consideration of

application for compassionate appointment, nor any such relaxation

was granted by the State Government.

16. On a pointed query, made from the learned Senior Counsel, as to

whether any decision had been taken by the State Government for

relaxation of the outer limit of 5 years for consideration for grant of

compassionate appointment? The learned Senior Counsel could not

point out from records any decision so taken by the State

Government.

17.Even from perusal of the order dated 31.3.2010 passed by the third

respondent granting compassionate appointment to the

petitioner/appellant, there is no recital about the mandatory

compliance of the Clause-8 of the Government Order dated 4.9.2000

read with Rules 5 and 6 of the Rules, 1974.

18.Learned Senior Counsel has further argued that the family

condition of the petitioner appointment for the purposes of

compassionate appointment has not been looked into as on the date of

the death of the deceased (father).

19.The said argument of the learned counsel for the

petitioner/appellant is not acceptable, as the stage of consideration of

the claim of the petitioner/appellant for grant of compassionate

appointment can only be seen, once the hurdle of granting relaxation

or dispensing with the delay in filing the application for

compassionate appointment beyond 5 years is over. Until and unless

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relaxation is accorded by the State Government on the basis of an

application of the dependent of the deceased giving required

particulars/ details, there was no occasion for respondents to have

considered the claim of the petitioner for grant of compassionate

appointment with regard to the family condition of the family. Hence

we do not find any error in the order dated 14.4.2012, which has been

impugned by the petitioner/appellant before the learned Single Judge.

20.The argument of learned counsel for the petitioner/appellant that

once compassionate appointment had been granted to the

petitioner/appellant on 31.3.2010, then it could not be reviewed by

the third respondent, as he has no power to review its own order,

cannot be accepted as once the order dated 31.3.2010 granting

compassionate appointment was a nullity being in contravention of

the Government Order dated 4.9.2000, then it was open for the third

respondent to cancel its earlier order, which was nullity in the eyes of

law. The learned Single Judge has recorded a categorical finding of

fact in its judgment dated 13.8.2012, which is impugned before us,

observing as under: -

“Petitioner knew that, without his application for relaxation being

allowed by State Government, he is not entitled to get

appointment, even then he succeeded in procuring appointment.

The order was for the benefit of petitioner, and complicity of

petitioner in procuring order cannot be ruled out in the facts of the

case. Fact of the matter is that manipulation is writ apparent and

petitioner has already been apprised of the fact that in case any

facts are found concealed, said appointment shall ipso facto

cancelled.”

Object and principles of Compassionate Appointment:-

21. The Apex Court in the case of Hamza Haji vs. State of Kerala

reported in 2006 (7) SCC 416 in paragraphs 28 and 29 has observed

as under: -

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“In Hip Foong Hong vs. H. Neotia and Company (1918

Appeal Cases 888) the Privy Council held that if a judgment is

affected by fraudulent conduct it must be set aside. In Rex vs.

Recorder of Leicester (1947 (1) K B 726) it was held that a

certiorari would lie to quash a judgment on the ground that it has

been obtained by fraud. The basic principle obviously is that a

party who had secured a judgment by fraud should not be enabled

to enjoy the fruits thereof. In this situation, the High Court in this

case, could have clearly either quashed the decision of the Forest

Tribunal in OA No.247 of 1979 or could have set aside its own

judgment in MFA No.328 of 1981 dismissing the appeal from the

decision of the Forest Tribunal at the stage of admission and

vacated the order of the Forest Tribunal by allowing that appeal or

could have exercised its jurisdiction as a court of record by

invoking Article 215 of the Constitution to set at naught the

decision obtained by the appellant by playing a fraud on the

Forest Tribunal. The High Court has chosen to exercise its power

as a court of record to nullify a decision procured by the appellant

by playing a fraud on the court. We see no objection to the course

adopted by the High Court even assuming that we are inclined to

exercise our jurisdiction under Article 136 of the Constitution of

India at the behest of the appellant.”

22. A Full Bench of this Court in the case of Shiv Kumar Dubey and

others vs. State of U.P. and others, 2014(2) ADJ, 312 (Para 29),

considered various aspects relating to compassionate appointment and

held as under :-

“We now proceed to formulate the principles which must govern

compassionate appointment in pursuance of Dying in Harness Rules:

(i) A provision for compassionate appointment is an exception to the

principle that there must be an equality of opportunity in matters of

public employment. The exception to be constitutionally valid has to

be carefully structured and implemented in order to confine

compassionate appointment to only those situations which subserve

the basic object and purpose which is sought to be achieved;

(ii) There is no general or vested right to compassionate

appointment. Compassionate appointment can be claimed only

where a scheme or rules provide for such appointment. Where such a

provision is made in an administrative scheme or statutory rules,

compassionate appointment must fall strictly within the scheme or, as

the case may be, the rules;

(iii) The object and purpose of providing compassionate

appointment is to enable the dependent members of the family of a

deceased employee to tide over the 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,

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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.” (Emphasis supplied by us)

23.In Civil Misc. Writ Petition No. 13102 of 2010, Union of India

Vs. Smt. Asha Mishra, decided on 7.5.2010, a Division Bench of this

Court has observed as under: -

“The principles of consideration for compassionate appointment

have been firmly settled and have been reiterated from time to

time. Compassionate appointment is not a vested right or an

alternate mode of employment. It has to be considered and granted

under the relevant rules. The object of compassionate appointment

is to tide over an immediate financial crisis. It is not a heritable

right to be considered after an unreasonable period, for the

vacancies cannot be held up for long and that appointment should

not ordinarily await the attainment of majority. Where the family

has survived for long, its circumstances must be seen before the

competent authority may consider such appointment. It is not to be

ordinarily granted, where a person died close to his retirement. The

Court, however, has emphasised time to time and more

authoritatively in National Institute of Technology Vs. Neeraj

Kumar Singh, (2007) 2 SCC 481 that such appointment can be

granted only under a scheme. It should not be considered after a

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long lapse of time.”

24.The judgment in the case of Smt. Asha Mishra (supra) has also

been taken notice by the Full Bench of this Court in Shiv Kumar

Dubey (supra) reiterating the legal principles so mandated therein.

Recently, the Apex Court in Civil Appeal No. 897 of 2021, in the

matter of Central Coalfields Limited Through its Chairman an

Managing Director and Ors. Vs. Parden Oraon decided on

09.04.2021, in paragraph 9 has observed as under:-

“9. … The application for compassionate appointment of the son

was filed by the Respondent in the year 2013 which is more than 10

years after the Respondent’s husband had gone missing. As the

object of compassionate appointment is for providing immediate

succour to the family of a deceased employee, the Respondent’s son

is not entitled for compassionate appointment after the passage of a

long period of time since his father has gone missing.”

25.The object of compassionate appointment is to enable the family

of the deceased - employee to tied over the sudden financial crisis due

to death of the bread earner which has left the family in penury and

without means of livelihood, it is an exception to the normal rule of

public employment, it is a concession; vide; V. Sivamurthy vs. State

of A.P., (2008) 13 SCC 730 (Paras 13-18), Umesh Kumar Nagpal vs.

State of Haryana, (1994) 4 SCC 138 (Para-2), Haryana SEB vs.

Hakim Singh, (1997) 8 SCC 85 at 87, Director of Education

(Secondary) vs. Ankur Gupta, (2003) 7 SCC 704 (Para-6), Food

Corporation of India vs. Ramkesh Yadav, (2007) 9 SCC 531 (Para.9),

Indian Bank vs. Promila, (2020) 2 SCC 729, State of U.P. vs. Pankaj

Kumar Vishnoi, 2013 (11) SCC 178 (Paras 11-15), N.C. Santosh vs.

State of Karnatka (2020) 17 SCC 617 (Para 18), State of H.P. vs.

Shashi Kumar, (2019) 3 SCC 653 (Para 18), State of Gujarat vs.

Arvind Kumar Tiwari, (2012) 9 SCC 545 (Para-8), MGB Gramin

Bank V. Chakrawarti Singh (2014) 13 SCC 583 (Para 6-9), Union of

India vs. P. Venktesh (2019) 15 SCC 613 (Para.7), Union of India vs.

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V. R. Tripathi, (2019) 14 SCC 646 (Para 13). The basic intention to

grant compassionate appointment is that on the death of the employee

concern his family is not deprived of the means of livelihood vide

PNB Vs. Ashwini Kumar Taneja, (2004) 7 SCC 265 (para 4). It can

not be claimed by way of inheritance vide State of Chhatisgarh &

others Vs. Dhirjo Kumar Sengar (2009) 13 SCC 600 (para 10 and 12).

In Santosh Kumar Dubey Vs. State of U.P., (2009) 6 SCC 481 (para

11 & 12), the Apex Court held that Compassionate Appointment can

not be treated as a Bonanza.

26.In Chief Commissioner, Central Excise & Customs, Lucknow &

others Vs. Prabhat Singh (2012) 13 SCC 412 (para 19), Hon'ble

Supreme Court has held that it is not disbursement of gift. It is not

sympathy syndrome. In State of U.P. Vs. Pankaj Kumar Vishnoi

2013(11) SCC 178 (paras 7,12,13 & 20). The Apex Court held that it

is meant to provide minimum relief for meeting immediate hardship

to save the bereaved family from sudden crisis due to death of sole

bread winner. Similar view has been expressed in SAIL Vs.

Madhusudan (2008) 15 SCC 560 (para 15) and SBI Vs. Anju Jain

(2008) 8SCC 475 (Para 33).

27.In SBI Vs. Surya N. Tripathi, (2014) 15 SCC 739 (paras 4,9), the

Apex Court held that if employer finds that Financial Arrangement

made for family subsequent to death of the employee is adequate

members of the family can not insist for compassionate appointment.

28.In General Manager (D & PB) and others Vs. Kunti Tiwary and

other (2004)7 SCC 271 (Para 9), Hon'ble Supreme Court held that the

Division Bench erred in diluting the criteria of penury to one of “not

very well-to-do.

29.In Union of India Vs. Shashank Goswami, (2012) 11 SCC 307

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(Paras 9, 10) the Apex Court held that an applicant has no right to

claim compassionate appointment in a particular class or group. It is

not for conferring status on the family. In Pepsu Road Transport

Corporation Vs. Satinder Kumar, 1995 Supp. (4) SCC 597 (Para 6)

the Apex Court held that while minimum qualification for eligibility

may be matriculation, generally graduate and even post graduate

decree holders respond and offer themselves for clerical

appointments. Courts can not ignore this fact and direct that

possession of minimum qualification alone would be sufficient.

30.In State of Madhya Pradesh & others VS. Ramesh Kumar Sharma

(1994) Supp.(3) SCC 661, the Apex Court held that a candidate for

compassionate appointment has no right to any particular post of

choice. He can only claim to be considered.

31.In the judgment in the case of The Director of Treasuries in

Karnataka & Anr. vs. Somyashree, in Civil Appeal No.5122 of 2021,

decided on 13.09.2021, Hon’ble Supreme Court reiterated the object

and principles of compassionate appointment, as under:

“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 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 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

16

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.

8………….

8.1………..

8.2 Apart from the above one additional aspect needs to be noticed, which

the High Court has failed to consider. It is to be noted that the deceased

employee died on 25.03.2012. The respondent herein – original writ

petitioner at that time was a married daughter. Her marriage was

subsisting on the date of the death of the deceased i.e. on 25.03.2012.

Immediately on the death of the deceased employee, the respondent

initiated the divorced proceedings under Section 13B of the Hindu

Marriage Act, 1955 on 12.09.2012 for decree of divorce by mutual

consent. By Judgment dated 20.03.2013, the Learned Principal Civil

Judge, Mandya granted the decree of divorce by mutual consent. That

immediately on the very next day i.e. on 21.03.2013, the respondent

herein on the basis of the decree of divorce by mutual consent applied for

appointment on compassionate ground. The aforesaid chronology of dates

and events would suggest that only for the purpose of getting

appointment on compassionate ground the decree of divorce by mutual

consent has been obtained. Otherwise, as a married daughter she was not

entitled to the appointment on compassionate ground. Therefore, looking

to the aforesaid facts and circumstances of the case, otherwise also the

High Court ought not to have directed the appellants to consider the

application of the respondent herein for appointment on compassionate

ground as ‘divorced daughter’. This is one additional ground to reject the

application of the respondent for appointment on compassionate ground.”

(Emphasis supplied by us)

32.In a most recent judgment in the case of The State of Uttar

Pradesh and others vs. Premlata in Civil Appeal No.6003 of 2021,

decided on 05.10.2021, Hon’ble Supreme Court considered the

provisions of U.P. Rules 1974 and summarized the principles of

17

compassionate appointment in the context of U.P. Rules, 1974, as

under:

“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. 139-40, 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 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

18

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.

10.1 Applying the law laid down by this court in the aforesaid decisions

and considering the observations made hereinabove and the object and

purpose for which the appointment on compassionate ground is provided,

the submissions on behalf of the respondent and the interpretation by the

Division Bench of the High Court on Rule 5 of Rules 1974, is required to

be considered.

10.2 The Division Bench of the High Court in the present case has

interpreted Rule 5 of Rules 1974 and has held that ‘suitable post’ under

Rule 5 of the Rules 1974 would mean any post suitable to the

qualification of the candidate irrespective of the post held by the

deceased employee. The aforesaid interpretation by the Division Bench of

19

the High Court is just opposite to the object and purpose of granting the

appointment on compassionate ground. ‘Suitable post’ has to be

considered, considering status/post held by the deceased employee and

the educational qualification/eligibility criteria is required to be

considered, considering the post held by the deceased employee and the

suitability of the post is required to be considered vis a vis the post held

by the deceased employee, otherwise there shall be no

difference/distinction between the appointment on compassionate

ground and the regular appointment. In a given case it may happen that

the dependent of the deceased employee who has applied for appointment

on compassionate ground is having the educational qualification of

Class-II or Class-I post and the deceased employee was working on the

post of Class/Grade IV and/or lower than the post applied, in that case

the dependent/applicant cannot seek the appointment on compassionate

ground on the higher post than what was held by the deceased employee

as a matter of right, on the ground that he/she is eligible fulfilling the

eligibility criteria of such higher post. The aforesaid shall be contrary to

the object and purpose of grant of appointment on compassionate ground

which as observed hereinabove is to enable the family to tide over the

sudden crisis on the death of the bread earner. As observed above,

appointment on compassionate ground is provided out of pure

humanitarian consideration taking into consideration the fact that some

source of livelihood is provided and family would be able to make both

ends meet.

10.3 ……..

11. In view of the above and for the reasons stated above, the Division

Bench of the High Court has misinterpreted and misconstrued Rule 5 of

the Rules 1974 and in observing and holding that the ‘suitable post’

under Rule 5 of the Dying-In-Harness Rules 1974 would mean any post

suitable to the qualification of the candidate and the appointment on

compassionate ground is to be offered considering the educational

qualification of the dependent. As observed hereinabove such an

interpretation would defeat the object and purpose of appointment on

compassionate ground.

(Emphasis supplied by us)

33.The petitioner/appellant has neither pleaded nor argued as to what

had been the financial condition of the family of the deceased right

from 1991 till today. There is nothing on record to show that the

financial condition of the family of the deceased was deplorable.

34.As more than 30 years have passed since the father of the

petitioner/appellant had expired, neither there is any useful purpose to

issue any positive direction, nor the facts of the case warrants it.

20

Conclusions: -

35.We have discussed above in detail the case of the petitioner /

appellant and the principles of law on compassionate appointment

laid down by this Court and by Hon’ble Supreme Court, which are

briefly summarized as under: -

(a) 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;

(b) The object of compassionate appointment is to enable the family of

the deceased - employee to tied over the sudden financial crisis due to

death of the bread earner which has left the family in penury and

without means of livelihood, it is an exception to the normal rule of

public employment, it is a concession. The basic intention to grant

compassionate appointment is that on the death of the employee, his

family is not deprived of the means of livelihood. It can not be claimed

by way of inheritance. Compassionate Appointment can not be treated

as a Bonanza. It is not disbursement of gift. It is not sympathy

syndrome. It is meant to provide minimum relief for meeting

immediate hardship to save the bereaved family from sudden financial

crisis due to death of sole bread winner. If employer finds that

Financial arrangement made for family subsequent to death of the

employee is adequate members of the family can not insist for

compassionate appointment.

(c) 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.

(d) 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;

(e) 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;

(f) 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

21

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;

(g) An applicant has no right to claim compassionate appointment in a

particular class or group. It is not for conferring status on the family. A

candidate for compassionate appointment has no right to any particular

post of choice. He can only claim to be considered.

(h) The dependent/applicant cannot seek the appointment on

compassionate ground on the higher post than what was held by the

deceased employee as a matter of right, on the ground that he/she is

eligible fulfilling the eligibility criteria of such higher post.

(i) 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.

(j) The norms prevailing on the date of the consideration of the

application should be the basis for consideration of claim for

compassionate appointment.

(k) 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. The whole object of granting compassionate

employment is to enable the family to tide over the sudden financial

crisis.

(l) 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;

(m) 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;

(n) The father of the petitioner died on 07.07.1991 when petitioner was

aged about eight years. He applied for compassionate appointment

sometime in the year 2006-07 and the District Basic Education Officer

granted appointment unauthorisedly, without grant of relaxation by the

Competent Authority/ State Government. Thus, the petitioner

unauthorisedly and in contravention of the government order, without

relaxation of period for submission of application, obtained

appointment on compassionate ground, which is nullity. Therefore, the

appointing authority has lawfully cancelled the order of appointment of

the petitioner. Hence impugned order of the learned Single Judge does

not suffer from any manifest error of law.

22

36.For all the reasons aforestated, we see no reason to deffer or take

different view, vis-a-vis the view taken by the learned Single Judge in

the judgment under challenge.

37.The present intra-court appeal is devoid of merit. Hence, it is

dismissed. There shall be no order as to costs.

Order Date :- 22.10.2021

N.S.Rathour