Regular Second Appeal No.2772 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2772 of 2008 (O&M) Date of Decision: July 22 , 2009 D.H.B.V.N. Land Others ...........Appellants Versus Rakesh Kumar ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.K.S.Malik, Advocate for the appellants. Mr.B.R.Mahajan, Advocate for the respondent ** Sabina, J. Plaintiff-Rakesh Kumar filed a suit for declaration and mandatory injunction to the effect that he is entitled to a suitable job under Ex-gratia scheme on compassionate grounds. The said suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division) Rohtak vide judgment and decree dated 31.10.2007. Aggrieved by the same, the plaintiff filed an appeal and the same was allowed by the District Judge Rohtak vide judgment and decree dated 7.5.2008. Hence, the present appeal has been filed by the defendants. The case of the parties, as noticed by the learned District Judge, in paras 2 and 3 of its judgment reads as under:- “ 2. Briefly the facts are that the father of the appellant namely Shri Ram Kumar was serving with the respondent No.3 as RWM and he died on 20.11.1996 during the course of his case of his employment; that as per the Ex-Gratia Scheme of the Government Regular Second Appeal No.2772 of 2008(O&M) 2 in case of death of any Govt. employee during the course of his employment, a suitable employment is to be given to the next kin i.e. the appellant; that he is a matriculate and his age is 20 years and he fulfills all the requisite conditions for his employment under the Ex-Gratia scheme; that the mother of the appellant namely Smt. Roshni Devi had sent a representation to the respondents requesting them to provide a suitable job to her son i.e. appellant in place of her deceased husband, but no reply has been received from the respondents; that the act of the respondents is absolutely illegal, unwarranted, unconstitutional and malafide, arbitrary and against the principles of natural justice and that the appellant requested the respondents to give him a suitable job on compassionate ground under Ex-Gratia scheme, but to no effect. Hence, by filing the present suit, the appellant has prayed that a decree for declaration and mandatory injunction to the effect that he is entitled to a suitable job under Ex-Gratia scheme on compassionate grounds and respondents be directed to give him a suitable job under the said scheme be passed in his favour. 3. The respondents appeared and contested the suit. The respondents raised preliminary objections regarding the maintainability of the suit, suit being time barred and the appellant has no locus-standi to file the present suit. It is alleged by the respondents that as per Ex-Gratia Scheme, appointment on compassionate grounds to the member of the family of the deceased, who was completely dependent on the deceased Regular Second Appeal No.2772 of 2008(O&M) 3 employee and is in extreme financial distress due to the loss of the deceased is entitled for the employment and not the next kin; that the appellant has not applied for the said benefit within three years; that as per the Government Notification dated 28.2.2003, a dependent of the deceased Govt. employee should give in writing his option within three years from the date of the death of Govt. employee; that it is also clearly mentioned that the Head of the Department shall prepare a list of such dependents which shall be valid for a period of three years and validity of such list shall lapse after three years. Rest of the allegations were denied. Dismissal of the suit was prayed for. On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to a decree for declaration to the extent and in the manner as claimed in the suit on the grounds mentioned in the plaint ?OPP 2. Whether the plaintiff is entitled to a decree for mandatory injunction on the grounds mentioned in the plaint?OPD 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the suit is time barred?OPD 5. Whether the plaintiff has no locus standi to file the present?OPD 6. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves to be allowed. Regular Second Appeal No.2772 of 2008(O&M) 4 The following substantial questions of law arise for consideration:- 1. Whether the first appellate Court erred in law in ignoring the settled law that belated claims for compassionate appointment cannot be allowed? 2. Whether the first appellate Court committed an error in law in directing, grant of compassionate appointment to the respondent without recording any finding whether his family was destitute, did not have any resources and, therefore, required compassionate appointment? The facts of the present case are not in dispute. Ram Kumar, father of the appellant was working with the defendants. He died during the course of his service on 20.11.1996. Plaintiff applied for a job under Ex- gratia Scheme of the Government on account of death of his father. As per the letter Exhibit D2 dated 3.11.1988 written by the Chief Secretary to Government of Haryana to all the heads of departments of Haryana, Commissioners of Ambala and Hisar Divisions, no application for appointment under Ex-gratia Scheme and other financial assistance would be considered in case it was not filed within three years from the death of the deceased employee. As per the said letter, in case, dependent is a minor then the application on his behalf was also required to be submitted before the Government within three years from the date of death of the employee. In the present case, no application was submitted on behalf of the plaintiff within three years of death of his father. The mother of the plaintiff- Roshni Devi had also submitted an application seeking employment and the same was filed as it had been moved after three years from the death of her Regular Second Appeal No.2772 of 2008(O&M) 5 husband. It has been held by the Apex Court in Umesh Kumar Nagapal vs. State of Haryana and others 1994(2)SLR 677 that the compassionate employment cannot be granted after a lapse of reasonable period which must be specified in the rules. 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 bread winner whom the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. It has been held by this Court in Bhupender Singh vs. State of Haryana and others 1996(3)RSJ 389 that no person has a right to claim appointment on compassionate ground. There was no vested right in this behalf. It has also been held by this Court in Surender Singh vs, State of Haryana and others 2005(5)SLR 545 that object of compassionate appointment had become remote and could not be kept alive even after 13 years as the father of the petitioner had died 13 years ago. Thus, the whole object of granting compassionate employment is 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. Mere death of employee in harness does not entitle his family to such source of livelihood. The Government or the public authority 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 Regular Second Appeal No.2772 of 2008(O&M) 6 offered to the eligible member of the family. Normally, the procedure for employment is open recruitment following a lawful and legal procedure. The other mode of filling up the vacant post is by promotion. The concept of compassionate appointment is a third source which has been developed on the basis of compassion but such compassion cannot be allowed as a matter of routine. The concept of compassionate appointment virtually obliterates and elaborate the transparent procedure of open recruitment. In these circumstances, the defendants have evolved a policy that in case an application for compassionate appointment is made by the family member of the deceased employee within three years of his death in harness, then the same would be taken into consideration. However, any application submitted beyond the period of three years after the death of deceased, would not be taken into consideration. In these circumstances, the learned District judge has erred in allowing the suit filed by the plaintiff- Rakesh Kumar seeking employment on compassionate ground as he had not applied for the same within the prescribed period. The claim of the plaintiff for compassionate appointment was,thus, belated and could not have been allowed. Accordingly, this appeal is allowed. The impugned judgment and decree passed by the learned District Judge are set aside and the judgment and decree passed by the trial Court are upheld. Consequently, the suit of the plaintiff stands dismissed. ( Sabina ) Judge July 22, 2009 arya Regular Second Appeal No.2772 of 2008(O&M) 7