- (1.) Heard learned counsel for the petitioner and learned standing counsel for the respondent.
(2.) Petitioner's father was a peon in Judgeship Bijnor. He died in harness. Petitioner has been appointed on the post of peon in the same Judgeship under U.P. Recruitment of Dependants of Government Servant Dying-in-harness Rule 1974. Petitioner has also joined on the post of peon ,however, he wants a Class III job. In this regard, learned counsel for the petitioner has placed reliance upon a report given by two Additional district Judges on 8.1.2010 to the District Judge which is Annexure 5 to the writ petition recommending that petitioner may be appointed as clerk on compassionate ground as his father died in harness on 22.5.2009. Learned counsel for the petitioner has placed reliance upon an authority of this Court Rajesh Singh Vs. Director of Education,1991 UPLBEC 345.
(3.) I do not agree with the contention of learned counsel for the petitioner. The Supreme Court in Commissioner of Public Instructions Vs. K.R. Vishwanath, 2005 AIR(SC) 3275 has held that strictly the claim of compassionate appointment can not be upheld on the touchstone of Articles 14 & 16 of the Constitution of India and that the object of such appointment is to enable the family to get over sudden financial crisis or to mitigate the hardship due to death of the bread earner in the family. Paragraphs 10,11 and 11 A of the said authority are quoted below: "10. As was observed in State of Haryana and Ors. v. Rani Devi and Anr., 1996 AIR(SC) 2445) 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 Article 14 or 16 of the Constitution of India. 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's case 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 Life Insurance Corporation of India v. Asha Ramchandra Ambekar (Mrs.) and Anr., 1994 2 SCC 718, 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 Haryana and Ors., 1994 4 SCC 138, 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. 11. In Smt. Sushma Gosain and Ors. v. Union of India and Ors., 1989 4 SCC 468), 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 Phoolwati (smt.) v. Union of India and Ors., 1991 Supp2 SCC 689, and Union of India and Ors. v. Bhagwan Singh, 1995 6 SCC 476. In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors, 1998 5 SCC 192, 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. 11A. In State of U.P. and Ors. v. Paras Nath, 1998 2 SCC 412, it was held that the purpose of providing employment to the dependant of a Government servant dying-in-harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments.;