HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION No 3458 of 2004
Rakesh Prasad Yadaw
...Petitioners
VERSUS
1) Union of India
2) State of Chhattisgarh
3) State of Madhya Pradesh
4) District Education Officer
...Respondents
! Shri Ajay Mishra, Advocate for the petitioner
^ Shri A.K.Barik, Advocate appearing on behalf of Shri S.K.Beriwal
Standing Counsel for the Union of India.
Shri Rakesh Jha, Government Advocate for the State/respondent No.2 and 4.
Honble Shri Satish K Agnihotri J
Dated: 10/02/2009
: Judgement
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA
ORAL ORDER
(Passed on 10th day of February, 2009)
1. By this petition, the petitioner seeks a writ of
mandamus directing the respondents to provide compassionate
appointment to the petitioner.
2. The facts, in brief, are that the father of the
petitioner namely Rajendra Prasad Yadaw was working as Lower
Division Teacher at Government Higher Secondary School,
Sarangarh. Rajendra Prasad Yadaw died on 31.01.1996
(Annexure P/1) in harness. After his death, the son i.e. the
petitioner made an application and thereafter certain
reminders and also a revised application (Annexure P/2 and
P/3) to the respondents for compassionate appointment. The
grievance of the petitioner is that till date, the
petitioner has not been granted compassionate appointment.
The respondents have even not decided the representations
and applications made by the petitioner.
3. Be that as it may, it is well settled that
compassionate appointment is not in accordance with the
constitutional scheme of employment and is a back-door
entry. Moreover, it is now well settled that appointment on
compassionate ground cannot be claimed as a matter of right.
The grant of compassionate appointment is to provide succor
and relief to the dependent members who had become penurious
on the death of the bread earner of the family. The
petitioner has survived since the year 1996 till 2001
without any assistance from any source.
4. On perusal of the records, it appears that the
petitioner has made an application for grant of
compassionate appointment for the first time on 11.7.2001
i.e. after a period of about 5 + years of the date of death
of his father. There is considerable delay of 5 + years on
the part of the petitioner for seeking compassionate
appointment.
5. The Hon’ble Supreme Court in State of J&K and others
Vs. Sajad Ahmed Mir1, in para 11 regarding delay in seeking
compassionate appointment held as under:
“Once it is proved that inspite of the
death of the breadwinner, the family
survived and substantial period is over,
there is no necessity to say “good-bye” to
the normal rule of appointment and to show
favour to one at the cost of the interest
of several others ignoring the mandate of
Article 14 of the Constitution.”
6. Further, the Hon’ble Supreme Court, in Commissioner of
Public Instructions and others vs. K.R. Vishwanath2, while
dealing with the question of the object of the compassionate
appointment, observed as under :-
“9. As was observed in State of Haryana v.
Rani Devi1, 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.
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 case1 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 LIC of India v.
Asha Ramchhandra Ambekar2 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 Haryana3 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
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.”
“10. In Sushma Gosain v. Union of
India4 it was observed that in all claims of
appointment on compassionate grounds, there
should not be any delay in appointment. The
purpose of providing appointment on
compassionate ground is to mitigate the
hardship due to death of the bread-earner in
the family. Such appointments should,
therefore, be provided immediately to redeem
the family in distress. The fact that the
ward was a minor at the time of death of his
father is no ground, unless the scheme
itself envisage specifically otherwise, to
state that as and when such minor becomes a
major he can be appointed without any time
consciousness or limit. The above view was
reiterated in Phoolwati v. Union of India5
and Union of India v. Bhagwan Singh6. In
Director of Education (Secondary) v.
Pushpendra Kumar7, 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. Care has,
however, to be taken that provision for
ground of compassionate employment which is
in the nature of an exception to the general
provisions does not unduly interfere with
the right of those other persons who are
eligible for appointment to seek appointment
against the post which would have been
available, but for the provision enabling
appointment being made on compassionate
grounds of the dependant of the deceased
employee. As it is in the nature of
exception to the general provisions it
cannot substitute the provision to which it
is an exception and thereby nullify the main
provision by taking away completely the
right conferred by the main provision.”
7. It is thus clear from the decisions cited above that
the petitioner cannot claim compassionate appointment by
virtue of a right of inheritance. Even otherwise, the
considerable delay of 5 + years on the part of the
petitioner for seeking compassionate appointment is
unsustainable as being unexplained.
8. For the reasons stated hereinabove, this petition
deserves to be and is accordingly dismissed. No order as to
costs.
9. Consequently, M(W)P No. 3027/2004, also stands
dismissed.
JUDGE