Mohan Pyare, Member (A)
1. Present Original Application has been filed by the applicant seeking the following reliefs:-
“(i) The Hon’ble Tribunal may graciously be pleased to issue a writ order or direction in the nature of mandamus commanding the respondents to give appointment to the applicant on appropriate post as per his qualification, in the Department on compassionate grounds forthwith without any further delay and to pay him the regular wages admissible to the said post.
(ii) The Hon’ble Tribunal may graciously be pleased to issue a writ order or direction in the nature of mandamus commanding the respondent Authorities to continue the outsourcing appointment of the applicant till his appointment on compassionate ground is pending for consideration before the Respondent Authorities.
(iii) Issue any other and appropriate order or direction which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case.
(iv) Award the cost of the present application throughout to the applicant.”
2. The facts of this case are that the father of the petitioner Late Harishankar Chaturvedi was working as a Postman at Head Post Office Varanasi. He died during his service on 15.09.2003 and thereafter, the applicant applied for compassionate appointment within time and when no information was intimated to the applicant, an application was moved on behalf of the mother of the applicant under the RTI Act. A letter was issued by the Section Officer on 15.06.2015 requesting Post Master General UP Circle Lucknow to take appropriate action in the matter. Even prior to that on 12.04.2005, a letter was issued from the office of Chief Post Master General U.P. Circle Lucknow whereby the matter of compassionate appointment was rejected. Thereafter, on 14.06.2005, a letter was issued to the applicant by the Head Post Office i.e. the Senior Superintendent of Post Varanasi closing the matter of the applicant. Before that on 25.02.2004 the applicant was asked certain documents and on 30.03.2007, he was not found eligible for compassionate appointment since other candidates were found to be in more pitiable condition. On 30.06.2015, a letter was issued to the applicant refusing his appointment on compassionate grounds. In the year 2017, the applicant was appointed at Head Post Office Varanasi on outsourcing basis on the post of Postman and he was directed to provide certain documents from the Office of Senior Post Master Varanasi and in pursuance thereof, the applicant supplied those documents on 28.01.2017. The applicant was working under expectation that till his appointment is considered on regular basis under dying in harness he may be permitted to continue on the post but his engagement has been discontinued since April 2022.
3. The applicant contends that the respondents have not assigned any reason for the disengagement and no written order has been passed for discontinuing him from the said post while they kept him in doldrums about his engagement on compassionate ground by asking documents from time to time but did not take any step in this regard leaving him and his family in a pathetic state without any source of survival.
4. No counter affidavit has been filed by the respondents in the matter. Learned counsel for the respondents argued that the case of the applicant has already been declined taking into account the inter-se merit of all the cases in terms of assets and liabilities and indigence of the families and other relevant factors. He further states that it is an old case which cannot be considered after such a long time, thus, the O.A. should be dismissed on this ground.
5. I have heard learned counsel appearing for both the parties and perused the entire record.
6. The father of the applicant died in the year 2003 after which the applicant had moved the application for compassionate appointment but his claim had been rejected by the respondents through a reasoned and speaking order on the ground of lacking the requisite merit in the year 2005 itself. The relevant portion of the order dated 12.05.2005 passed by the competent authority is reproduced below:
“This case was not recommended for appointment by the Circle Relaxation Committee taking into account the inter-se merit of all the cases in terms of assets and liabilities and indigence of the families like total number of dependents, minor children, marriage of daughters, responsibility of aged parents, prolonged and major ailments, financial conditions and other relevant factors.”
This O.A. has been filed in the year 2022 after the applicant was orally discontinued from his engagement as outsourced Postman in Head Post Office Varanasi in April 2022. The relief claimed in the matter is for a direction to the respondents to grant compassionate appointment to the applicant. The applicant claims that the respondents kept him in doldrums by issuing a number of letters almost every year trying to assure him that he is being considered for the purpose of appointment under dying in harness but nothing has been done since 2003.
7. Section 21 of Central Administrative Tribunal Act, 1985 specifically reads as under:-
“(1) A Tribunal shall not admit an application, -
(a) in a case where a final order such as is mentioned in clause (a) of subsection
(2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where –
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or , as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (10020) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section(2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period”.
8. As per rules, the applicant ought to have approached this Tribunal much earlier but he chose to wait counting on the vague assurance of the respondents regarding his case being considered for compassionate appointment. He only sought refuge of this Tribunal after he was disengaged in the year 2022 seeking the relief of compassionate appointment. There is no reason why the Tribunal should not believe that the applicant had been sleeping over his rights all this time and remained a fence sitter. Hon’ble Supreme Court in the case of Capt. Harish Uppal v. Union of India &Ors.(JT 1994(3) S.C. 126). has held that if the parties “.......... choose to sleep over their rights and remedies for an inordinately long time, the court may well choose to decline to interfere........”.
The Hon’ble Supreme Court in the case of Bhop Singh Vs.Union of India and others reported in (1992) 3 SCC 136, also held that:-
‘’Inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner irrespective of the merit of his claim.”
. Further, Hon’ble Apex Court in the case of Union of India Vs. Harnam Singh reported in AIR (1993) SCC page 1367, has been pleased to observe that “The law of limitation may operate harshly but it has to be applied with all its rigour and the Courts or Tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire.”
9. In the State of West Bengal Vs. Debabrata Tiwari and Ors. Etc. in Civil Appeal No. 8842-8855 of 2022 decided on 3.3.2023, Hon’ble Apex Court in paras 7.1 and 7.2 has held as under:-
“7.1. It may be apposite to refer to the following decisions of this Court, on the rationale behind a policy or scheme for compassionate appointment and the considerations that ought to guide determination of claims for compassionate appointment.
.In Sushma Gosain vs. Union of India, (1989) 4 SCC 468, this Court observed that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. That the purpose of providing appointment on compassionate grounds is to mitigate the hardship caused due to the death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress.
i.In Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138, this Court observed that the object of granting compassionate employment is to enable the family of a deceased government employee to tide over the sudden crisis by providing gainful employment to one of the dependants of the deceased who is eligible for such employment. That 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, provided a scheme or rules provide for the same. This Court further clarified in the said case that compassionate appointment is not a vested right which can be exercised at any time after the death of a government servant. That 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, compassionate employment cannot be claimed and offered after lapse of considerable amount of time and after the crisis is overcome.
iii. In Haryana State Electricity Board vs. Hakim Singh, (1997) 8 SCC 85, (“Hakim Singh”) this Court placed much emphasis on the need for immediacy in the manner in which claims for compassionate appointment are made by the dependants and decided by the concerned authority. This Court cautioned that it should not be forgotten that the object of compassionate appointment is to give succour to the family to tide over the sudden financial crisis that has befallen the dependants on account of the untimely demise of its sole earning member. Therefore, this Court held that it would not be justified in directing appointment for the claimants therein on compassionate grounds, fourteen years after the death of the government employee. That such a direction would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession.
iv. This Court in State of Haryana vs. Ankur Gupta, AIR 2003 SC 3797 held that in order for a claim for compassionate appointment to be considered reasonable and permissible, it must be shown that a sudden crisis occurred in the family of the deceased as a result of death of an employee who had served the State and died while in service. It was further observed that appointment on compassionate grounds cannot be claimed as a matter of right and cannot be made available to all types of posts irrespective of the nature of service rendered by the deceased employee.
v. There is a consistent line of authority of this Court on the principle that appointment on compassionate grounds is given only for meeting the immediate unexpected hardship which is faced by the family by reason of the death of the bread earner vide Jagdish Prasad vs. State of Bihar, (1996) 1 SCC 301. When an appointment is made on compassionate grounds, it should be kept confined only to the purpose it seeks to achieve, the idea 19 being not to provide for endless compassion, vide I.G. (Karmik) vs. Prahalad Mani Tripathi, (2007) 6 SCC 162. In the same vein is the decision of this Court in Mumtaz Yunus Mulani vs. State of Maharashtra, (2008) 11 SCC 384, wherein it was declared 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.
vi In State of Jammu and Kashmir vs. Sajad Ahmed Mir, AIR 2006 SC 2743, the facts before this Court were that the government employee (father of the applicant therein) died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was dismissed by the learned Single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. This Court remarked that the said facts were relevant and material as they would demonstrate that the family survived in spite of death of the employee. Therefore, this Court held that granting compassionate appointment after a lapse of a considerable amount of time after the death of the government employee, would not be in furtherance of the object of a scheme for compassionate appointment.
vi In Shashi Kumar, this Court speaking through Dr. D.Y. Chandrachud, J. (as His Lordship then was) observed that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. That the basis of the policy is that it recognizes that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. That it is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. The pertinent observations of this Court have been extracted as under:
“41. Insofar as the individual facts pertaining to the Respondent are concerned, it has emerged from the record that the Writ Petition before the High Court was instituted on 11 May 2015. The application for compassionate appointment was submitted on 8 May 2007. On 15 January 2008 the Additional Secretary had required that the amount realized by way of pension be included in the income statement of the family. The Respondent waited thereafter for a period in excess of seven years to move a petition Under Article 226 of the Constitution. In Umesh Kumar Nagpal (supra), this Court has emphasized that the basis of a scheme of compassionate appointment lies in the need of providing immediate assistance to the family of the deceased employee. This sense of immediacy is evidently lost by the delay on the part of the dependant in seeking compassionate appointment.”
7.2. On consideration of the aforesaid decisions of this Court, the following principles emerge:
i. That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. 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 and must be resorted to only in order to achieve the stated objectives, i.e., to enable the family of the deceased to get over the sudden financial crisis.
ii. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis.
iii. Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate employment cannot be claimed or offered after a lapse of time and after the crisis is over.
iv. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.
v. In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of 22 the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source”.
10. As per dictums of Hon'ble Apex Court, it is settled position of law that compassionate appointment is granted to meet the sudden crisis on account of death of breadwinner while in service. While considering the claim for compassionate appointment, the financial condition of the family of the deceased employee must be taken into consideration. The objective of granting compassionate appointment is to provide immediate help to the dependents of deceased employees, so that they may not die of starvation. It is also a settled position of law that compassionate appointment is not a Rule and cannot be sought, as a matter of right. The compassionate appointment is a concession and exception to public appointment provided under Articles 14 and 16 of the Constitution of India, therefore, to seek a concession of compassionate appointment, claimant must prove his financial condition and must prove that in the event of non-grant of compassionate appointment, claimant would face financial crisis. On the basis of aforesaid discussions/ citations, it is evident that this OA is liable to be dismissed because a substantial period i.e. more than 20 years has already passed since the death of the deceased employee, the family has survived for such a long period and now suddenly when the applicant has been disengaged from outsourced employment, he cannot renew a claim which is meant for extricating the dependents of the deceased employee immediately after his demise during the service period. Thus, this O.A. suffers from the infirmity of delay and laches so far as the relief claimed is concerned.
11. In view of the aforesaid deliberation and in the light of observations mentioned in the aforesaid judgments of the Hon’ble Supreme Court, I am of the considered opinion that this OA is liable to be dismissed. Accordingly, OA is dismissed.
12. All associated MAs stand disposed of. No order as to costs.
