JUDGMENT
D.P. Singh, J.
1. Heard learned Counsel for the petitioner and Shri Suresh Singh, learned Standing counsel for the respondents.
It is pleaded that the father of the petitioner Late Shri Shiv Shankar Prasad was working as a Headmaster in Junior High School, Dev Goan in district Fatehpur when he died in harness on 4.6.1989 and thereafter petitioner was granted compassionate appointment vide order dated 3.10.1997. However, without any notice or opportunity, the said order was cancelled vide order dated 8.10.1997 which is impugned in the connected petition No. 36028 of 2000. In pursuance of an order dated 18.8.2000 passed in the aforesaid connected petition, the respondents have passed a fresh order dated 28.8.2001 rejecting his representation and affirming the order dated 8.10.1997 which is challenged in the present petition.
2. Learned Counsel for the petitioner has firstly urged that the order dated 8.10.1997 was passed without notice or opportunity and as such ought to be quashed.
It is apparent from the record that in pursuance of the interim order passed in the connected petition, the representation of the petitioner has been decided afresh affirming the order dated 8.10.1997 and, therefore, it cannot be said that the order is ex parte.
It is next contended that the finding in the order dated 28.8.2001 that his father died on 4.7.1989 is not correct and the respondents have ignored the evidence filed in support thereof and as such the order is vitiated.
3. It is undisputed that the retirement date of the father of the petitioner was 30.10.1988 but he was given benefit of session extension uptill 30.6.1989. It is also evident from the record that the incharge Headmaster of the Institution had informed the respondents that in fact the father of the petitioner had died on 4.7.1989. One real brother of the petitioner viz. Shri Vijay Shankar Tripathi had given a letter dated 3.7.1989 to the Senior Assistant Teacher of the Institution that though his father had retired on 30.6.1989 he could not give the charge of the office because he was admitted in a hospital. The mother of the petitioner and wife of Late Shri Shiv Shankar Prasad claimed and was paid family pension w.e.f. 5.7.1989. It is also evident that the full salary for the month of June 1989 was credited and paid in the account of Shiv Shankar Prasad which has been paid and accepted by the petitioner’s mother. All these documents proved beyond doubt that the father of the petitioner died after retirement on 4.7.1989.
Apart from the aforesaid, there is another aspect to the issue.
4. There is nothing on record to show that on which date the petitioner claimed compassionate appointment nor the said application has been made part of the record. On persistent query of the Court to disclose the actual date, the petitioner could not give any satisfactory reply. Assuming that the father of the petitioner died on 4.6.1989, compassionate appointment cannot be given after eight years especially when there is no specific pleading or proof that the family was in financial penury. The petitioner is unable to show how the provisions of U.P. Dying in Harness Rules 1974 applies to the case of the petitioner. The said Rules apply to Government servants while the deceased was an employee of the Basic Education Board, which is an autonomous body. In fact, for the first time the benefit of compassionate appointment was extended to the Board employees vide Government order dated 5.2.1992. Neither the petitioner has been able to demonstrate that the said Government order was retrospective in effect, nor there is anything on record to show that it applies to dependants of those employees who had died prior to that date. Further, even if the aforesaid Government order applied to the case of the petitioner, under the Government order dated 2.2.1996 there is a bar that no compassionate appointment would be granted to any dependant of a deceased employee, if it is sought after five years from the date of death unless the Board grants permission before considering the said application. But, in the present case, there is nothing on record to show that whether any permission was sought or given for appointment of the petitioner which was made about eight years after the death of the incumbent.
5. The provision for giving compassionate appointment is a departure from the regular rules of recruitment and by the aforesaid rule an exception was carved out with the sole object to help the bereaved family where the sole bread winner expires, so that the family may tide over the immediate financial crises created on the demise. The Apex Court in the case of Umesh Kumar Nagpal v. State of Haryana and Ors. has held to the following effect:
The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis.
It has further gone on to hold that it:
cannot be granted after a lapse of reasonable period which must be specified in the rules. 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 bread winner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.
6. In Jagdish Prasad v. State of Haryana 1996 (1) SLR 7, the Apex Court was considering the claim of the incumbent who was only four years old when his father died in harness, for compassionate appointment on attaining majority. It disallowed the claim holding:
The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year, the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased Government servant which cannot be encouraged, de hors the recruitment rules.
7. Similar view has been taken in Haryana State Electricity Board v. Hakim Singh 1997 (8) JT 332 where it was held that if the family had survived for sufficiently long period, it would be presumed that there is no such financial distress where compassionate appointment could be granted. In Sanjai Kumar v. State of Bihar and thereafter in Haryana State Electricity Board v. Krishna Devi 2002 (2) A.W.C. 1411, the Apex Court has gone on to hold that:
compassionate appointment cannot be claimed as a matter of right and it cannot be utilized as a reservation of vacancy till such time that the claimant becomes major and eligible for appointment and if such claims are entertained the very object of the rules would be defeated.
There is yet another facet to this case. According to law, the father of the petitioner stood retired on 30.10.1988, but keeping in view the interest of the students, extension of service till the end of the academic session was granted to him under the Rules so that the teaching in the institution is not affected. This session extension could only be treated as an extension of service till the end of the academic session. It would, therefore, be akin to a fixed term appointment, automatically terminating the contract of service at the end of the academic session. Such fixed tenured employees cannot be treated as regular employees whose Dependants could seek compassionate appointment, at best, they could claim the salary up to the period of expiry of the aforesaid contract. It has already come on record that the entire salary uptil 30.6.1989 has already been paid to the petitioner’s mother and, therefore, on this ground also the petitioner is not entitled to compassionate appointment. No other point has been urged.
8. In view of the above, it is apparent that the petitioner was not entitled for compassionate appointment in any view of the matter and, therefore, the order appointing him was itself illegal. Even, if the order cancelling the appointment is vitiated on any account, this Court is not bound to quash the impugned order which would result in reinstatement of an another illegal order.
For the reasons given above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.