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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:::
JUDGMENT
:::
Rakesh Kumar v. UCO Bank & others
D.B. CIVIL SPECIAL APPEAL (WRIT) No.19 OF 2010
Date of Judgment ::: 22nd March 2010
PRESENT
HON'BLE THE CHIEF JUSTICE MR JAGDISH BHALLA
HON'BLE MR JUSTICE DINESH MAHESHWARI
Mr K.S. Yadav, for the appellant
BY THE COURT: {Per Hon'ble Dinesh Maheshwari, J.}
By way of this Special Appeal, the petitioner-appellant seeks to
question the order dated 15th September 2008 as passed in S.B.
Civil Writ Petition No.6671/2008, whereby the learned Single Judge
of this Court declined to grant relief to the appellant on his claim for
compassionate appointment and his challenge to the validity of
clause (a) of paragraph 7 of the Scheme for Recruitment of
Dependents of Deceased Employees on Compassionate Grounds
{‘the Scheme’ hereinafter} as adopted by the respondent-UCO Bank.
The provisions contained in the aforesaid clause (a) of
paragraph 7 of the Scheme prescribe that the dependents of the
employees who die after attaining the age of 55 years are not eligible
for compassionate appointment/payment of lump sum.
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The learned Single Judge considered the fact situation of the
present case where the petitioner-appellant, a person in about 34
years of age, was claiming appointment on compassionate grounds,
as being the son of late Shri Brij Lal, an employee of the respondent
Bank, who died on 17th June 1998. The learned Single Judge, while
pointing out that appointments on compassionate grounds are
deviation from general principle of equality and such appointments
are given in extra ordinary circumstances, in case of death of sole
bread-earner of the family, observed that the circumstances as
existing at the time of death of the employee could not be considered
subsisting after about a decade; and found no case for granting
relief, even if the aforesaid clause (a) of paragraph 7 of the Scheme
was treated non-existent.
Seeking to assail the order aforesaid, the learned counsel
would strenuously contend that the appellant has been denied
compassionate appointment on entirely irrelevant considerations and
without having regard to the facts that immediately after the demise
of Shri Brij Lal, mother of the appellant made an application for
granting appointment on compassionate basis to the appellant; that
the appellant could not be penalized for the delay that was
attributable only to the respondents; and that the petitioner-appellant
had been regularly pressing for his claim for compassionate
appointment and this Court, in the earlier writ petition filed by the
appellant (CWP No.5664/2004) did issue directions to the
respondents to consider his representation. It is submitted that after
the directions of this Court in the said writ petition, the claim of the
petitioner-appellant was rejected only with reference to the offending
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clause (a) of paragraph 7 of the Scheme wherein, without any
reason or rationale, compassionate appointment is denied to the
dependents of the employees who die after attaining the age of 55
years. According to the learned counsel, the said clause has no logic
and rather defeats the very purpose of the Scheme, which is
essentially meant for providing support to the family in distress.
Learned counsel yet further submitted that the respondents had
been unfair and unreasonable in rejecting the claim of the appellant
for compassionate appointment and even not making payment of
lump sum while ignoring the circumstances of the family and the fact
that the petitioner-appellant’s father died before adopting of the said
Scheme by the respondent-Bank.
Having given thoughtful consideration to the submissions and
having examined the record with reference to law applicable, we are
unable to find any reason or justification to show interference in this
appeal.
Compassionate appointment, an exception to the general rule
of open recruitment, is intended to meet the immediate financial
problems, if so faced by the bereaved family of the deceased
employee. The very object of providing compassionate appointment
to a dependent of the deceased employee who dies in harness is to
relieve the family of hardship and distress caused due to sudden
demise of the bread-earner of the family. Such provisions for
compassionate appointment, by their very nature, are in exception to
the general procedure prescribed for making appointments; and are
required to be applied while keeping in view the fact that by making
such appointments, other eligible persons are deprived of their
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chance to seek employment. The Hon’ble Supreme Court in the case
of Director of Education (Secondary) v. Pushpendra Kumar: (1998) 5
SCC 192 has pointed out thus:
“The object underlying a provision for grant of
compassionate employment is to enable the family of
deceased employee to tide over the sudden crisis resulting
due to death of the bread-earner 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
dependent 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 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
dependent of a deceased employee.”
Thus, the very purpose of providing compassionate
appointment is to help a family in distress to get over the crisis and
else, compassionate appointment is not intended to be a superior
mode of recruitment over and above the rules. Compassionate
appointment is not that of a vested right, rather it is a concession
and not a right [vide Steel Authority of India Limited vs.
Madhusudan Das & Others: (2008) 15 SCC 560]; and the employer
cannot be held bound to provide for such concession whenever a
member of the family of the deceased employee would ask for the
same. It appears apposite to refer to the following observations of
the Hon’ble Supreme Court in the case of Umesh Kumar Nagpal v.
State of Haryana and others: (1994) 4 SCC 138:
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“The consideration for such employment is not a vested right
which can be exercised at any time in future. The object
being to enable the family to get over the financial crisis
which it faces at the time of the death of the sole
breadwinner, the compassionate employment cannot be
claimed and offered whatever the lapse of time and after the
crisis is over.”
Applying the principles to the facts of the present case, we are
unable to find any reason to grant relief to the appellant. The
appellant’s father expired on 17th June 1998 and though the
respondents did not extend him or the family any concession, it
appears that the appellant got served a notice through his lawyer
only on 1st December 2004 (Annex.P/6) seeking appointment on
compassionate basis. Thereafter, the appellant preferred a writ
petition, being CWP No. 5664/2004 but, while making submissions
before the Court, the appellant consciously confined the prayer only
to the extent of directions to the respondents to consider his
representation. It appears from the order dated 15th December 2004
(Annex.P/7) as passed in the said writ petition that since the request
had only been for consideration of the representation, the learned
Single Judge of this Court proceeded to dispose of the petition
without notice to the respondents while issuing directions that they
shall proceed in accordance with law and decide the representation
either way within two months.
It is noticed that as per the directions the respondents did
consider the representation made by the petitioner-appellant; and
informed him as back as on 02nd March 2005 that he was not
entitled for employment on compassionate grounds as per the
aforesaid clause (a) of paragraph 7 of the Scheme. Thereafter, the
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petitioner-appellant only continued with another round of
correspondence and preferred the writ petition only in the year 2008
after getting served another notice through lawyer on 18th August
2008. In the given set of facts and circumstances, the learned Single
Judge has rightly observed that the appellant was not entitled for
any relief in his claim for compassionate appointment, after a decade
of the demise of his father and for his being 34 years in age. The
present one could not have been considered to be case of family in
distress, requiring immediate support.
The submissions as made before us in this appeal for
consideration of the case of the petitioner-appellant at least for lump
sum payment remain totally baseless. Noticeable it is from the
correspondence made by him and the notices served on his behalf
that payment of lump sum in place of compassionate employment
had never been the claim of the petitioner-appellant. Even
otherwise, for the very same considerations that apply in relation to
claim for compassionate appointment, such claim for lump sum
payment deserves to be rejected.
In the fact situation of the present case, the learned Single
Judge has rightly declined relief to the petitioner even while ignoring
clause (a) of paragraph 7 of the Scheme; and it does not appear
necessary for the purpose of present case to dilate upon the said
clause (a) of paragraph 7 of the Scheme but, prima facie, we are
unable to find anything of illegality therein if the dependents of the
employees who die after attaining the age of 55 years are held
ineligible for compassionate appointment or payment of lump sum.
In the case of State of Jharkhand and others v. Shiv Karampal Sahu:
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(2009) 11 SCC 453, the Hon’ble Supreme Court has pointed out
that the scheme for appointment on compassionate grounds cannot
be given an expansive meaning and must receive strict construction.
The Hon’ble Court said,-
“Appointment on compassionate grounds, it is trite, must be
made keeping in view the provisions contained in Articles 14
and 16 of the Constitution of India. Such schemes cannot be
given an expansive meaning as the constitutional scheme
envisages that all persons who are entitled to be considered
for appointment would be eligible for being considered
therefor. Any policy decision for appointment on
compassionate grounds must, therefore, receive a strict
construction.”
Looking to its overall object, the said clause (a) of paragraph
7 of the Scheme does not appear offending any constitutional
mandate. However, as already noticed, even when the said clause is
ignored, the petitioner-appellant is not entitled for any relief.
The appeal fails and is, therefore, dismissed.
[DINESH MAHESHWARI],J. [JAGDISH BHALLA],C.J.
mma