1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ::: J U D G M E N T ::: Rakesh Kumar v. UCO Bank & others D.B. CIVIL SPECIAL APPEAL (WRIT) No.19 OF 2010 Date of Judgment ::: 22nd March 2010 P R E S E N T 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. 2 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 3 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 4 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: 5 “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 6 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: 7 (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