HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2) (b) Description of the case W.P. No. 1953/03 (S/S) Bhagirathi Devi Vs. State of U.P. and others. Approved for reporting. Not approved for reporting Date of decision: 22.09.06 Initial of Judge 2 HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 1953 (SS) OF 2003 Bhagirathi Devi @ Bhaguli Devi, W/o late Bahadur Singh, R/o Village Baishali, Post – Jakheri, Tehsil – Gangolihat, District – Pithoragarh. …………………Petitioner. Versus 1. State of Uttar Pradesh, through Secretary Education, Lucknow. 2. State of Uttaranchal through Secretary Education, Dehradun. 3. Principal Government P.G. College Rampur, U.P. …………Respondents. September 22, 2006 Hon’ble Rajesh Tandon, J. Heard Sri D.S. Patni, Advocate for the petitioner and Standing Counsel for the State of U.P. and State of Uttaranchal. 2. By the present writ petition, the petitioner has prayed for a writ of Certiorari quashing the order dated 11.02.2004 passed by the respondent no. 3. Further prayed has been made for a writ of mandamus directing the respondents to give appointment to the petitioner under Dying in Harness Rules. 3 3. Briefly stated, the husband of the petitioner was Lab Bearer in the Chemistry Department of Government P.G. College, Rampur (U.P.). 4. On 09.07.1981, vide letter No. 1134/38/P.F./81-82, the petitioner was intimated by the Principal Govt. P.G. College, Rampur that the husband of the petitioner had went on casual leave, but till 11.07.1981, he has not joined the working place. Consequently, he was declared as deserter. 5. After receiving the letter dated 12.08.1981, petitioner requested the Principal regarding the whereabouts of the deceased Sri Bahadur Singh, the petitioner filed a written complaint on 25.08.1981 in the office of Superintendent of Police Rampur as well as in the office of District Magistrate, Pithoragarh, but no information regarding whereabouts of the deceased was received by the petitioner. 6. After a lapse of more than 17 years, when deceased Bahadur Singh did not return home, the petitioner preferred a suit being Original Suit No. 17 of 1999 (Smt. Bhagirathi Devi Vs. State of U.P. through Collector, Pithoragarh and others) for proclaiming the decease i.e. Bahadur Singh as dead. 7. On 28.07.2000, Civil Judge (Junior Division), Pithoragarh decreed the suit of the petitioner. 8. Pursuant to the aforesaid declaration, the respondent no. 3 started disbursing the family pension in favour of the petitioner. 4 9. Thereafter, on 15th October, 2003, the petitioner moved a representation before the respondent no. 3 requesting him to give compassionate appointment to her. 10. Petitioner has submitted that the State Govt. vide order dated 20.03.1987 provided a benevolent scheme for the member of the government employee, who has disappeared for more than seven years with all the benefits which accrued to the Govt. employee. 11. Petitioner has submitted that she has already filed a writ petition being Writ Petition No. 22 of 2004 (ss) in which she has prayed for a writ, order or direction in the nature of mandamus directing the respondents to grant the arrears of family pension along with other benefits w.e.f. 09.07.1982 with an interest @ 24%. 12. After filing the aforesaid writ petition, the respondents stopped further family pension in favour of the petitioner. 13. The Hon’ble Court vide order dated 24.03.2004 in Writ Petition No. 22 of 2004 (ss) directed the Tehsildar, Gangolihaat to conduct enquiry in the matter as to whether the petitioner got remarried or she had children or not. The enquiry was conducted in compliance of the order dated 24.03.2004 and from the enquiry report, it is revealed that she has not remarried and in these circumstances, respondent paid the family pension to the petitioner. 5 14. The claim of the petitioner for compassionate appointment was rejected vide order dated 11.02.2004 passed by the respondent no.3. 15. Counsel for the petitioner has submitted that according to Section 108 of the Evidence Act, if a person is not seen for more than 7 years, he shall be presumed as dead. 16. Relying upon the judgment of State of Haryana and Ors. V. Rani Devi & another (JT 1996 (6) SC 646) in State of Manipur Vs. MD. Rajaodin 2003 AIR SCW 4339, the Apex Court has observed as under: “10. As was observed in State of Haryana and Ors. v. Rani Devi ( Anr. (JT) 1996 (6) SC 646), 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 fram rules, regulations or to issue such administrative orders which can stand the test of Article 14 and 16. Appointment on compassionate ground cannot ber claimed as a matter or 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 6 Devi’s case (supra) 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 Ambedkar (Mrs.) and Anr. (1994 (2) SCC 718) it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations 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.” 17. In Naresh Kumar Vs. Union of India and others 2003 U.D., 167 similar controversy has been decided, where it has been held as under:- 7 “8. The respondents have already rejected the claim of petitioner for providing appointment under Dying in Harness Rules. It is true that to give appointment under Dying in Harness Rules is not a matter of right, however, in the present case the ground of rejection as mentioned need consideration. The respondent authority while rejecting the application has stated that since the adequate amount of terminal benefit was paid to the family of the deceased, therefore, the petitioner is not entitled to get appointment under Dying in Harness Rules. This aspect has been considered by Division Bench of Allahabad High Court, Lucknow Bench in State Bank of India Vs. Ram Piyari and others 2001 (2) U.P. Local Bodies and Educational Cases (U.P.L.E.B.E.C.) page 1597 and the court held that the receipt of family pension or other terminal benefits by the widow can not be taken to be good ground for rejecting the case for appointment on compassionate ground. It is common knowledge that the widow is entitled to family pension and other benefits in the even her husband dies in harness. If the plea of respondent is accepted, then no appointment can be made on compassionate ground and the scheme shall have no meaning. As such this ground for rejection is not sustainable.” 18. The Apex Court in the case of Sushma Gosain Vs. Union of India and others (1989) 4 SCC 468 has held as under:- 8 “We consider that it must be stated unequivocally that in all claims for 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 appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.” 19. The Apex Court in the case of Umesh Kumar Nagpal Vs. State of Haryana (1994) 4 SCC 138 has relied upon the judgment of Sushma Gosain Vs. Union of India (1989) 4 SCC 468. The relevant observations are quoted below:- “The whole object of granting compassionate employment in thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, 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 the job is to; be offered to the eligible member of the family.” 9 “It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly unturned.” 20. Therefore, as will appear from the aforesaid judgment that the object of the grant of compassionate appointment is to enable the family to tide ever the sudden crisis. The object to help the deceased family from starvation and not to make an ordinary recruitment. 21. It is well settled that appointment on the compassionate ground is purely humanitarian consideration because of the fact that family will not be able to make both ends meet. 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. Thus compassionate appointment is treated to alleviate the distress of the family. 22. The matter is sent back to the respondent no. 3, who shall reconsider the case of the petitioner within a period of two months from the date of presentation of the certified copy of the order after taking into consideration the family condition of the petitioner in accordance with law. The order 10 dated 11.02.2004 will be subject to the fresh order passed by the respondent no. 3. 23. Writ petition is disposed of. No order as to costs. (Rajesh Tandon, J.) September 22, 2006 Rathour