Ashutosh Srivastava

1. Heard Sri Seemant Singh, learned counsel for the petitioner, learned Standing Counsel for the State-Respondent No.1 and Sri Prem Prakash Yadav, learned counsel for the Respondent Nos.2, 3 & 4.

2. By means of the present writ petition, the petitioner has prayed for issuance of a writ of certiorari quashing the impugned order dated 08.07.2021 passed by the Respondent No.2, Secretary, U.P. Basic Education Board, whereby the claim of the petitioner for compassionate appointment on a suitable post and according to his qualification has been rejected. A further prayer for mandamus commanding the respondents to grant compassionate appointment to the petitioner on the basis of the application dated 26.11.2011 and 10/14.11.2016 on a suitable post according to his qualification has also been made.

3. Learned counsel for the petitioner submits that the mother of the petitioner was appointed as Assistant Teacher in Upper Primary School, Mustafabad, Block Jaleelpur, District Bijnor on 18.09.1997 and died-in-harness on 16.11.2011. After the death of his mother, the petitioner possessing a B.Sc. Degree, filed an application dated 26.11.2011 seeking compassionate appointment on the post of Assistant Teacher before the Respondent No.4, Block Education Officer, Jaleelpur, District Jaunpur. The application of the petitioner was forwarded to the Respondent No.3, District Basic Education Officer. The petitioner again filed another application dated 10.11.2016 before the Respondent No.3, Block Education Officer. Vide letter dated 13.12.2016 the Respondent No.2, District Basic Education Officer, informed the petitioner that his second application dated 13.12.2016 is being returned, treating the same to be time barred. By the said letter, the petitioner was required to complete all the formalities and submit an application seeking compassionate appointment on a post according to his qualification through proper channel. In pursuance of the letter dated 13.12.2016, the petitioner submitted his application dated 28.07.2017, which was duly received by the Respondent No.4. When no heed was paid on the application of the petitioner seeking compassionate appointment, the Neutral Citation No. - 2022:AHC:182679 petitioner preferred Writ (A) No.6802 of 2020, which was disposed of vide order dated 03.09.2020 with a direction to the Respondent No.2, to consider the petitioner's grievance and pass appropriate speaking order within a period of two months. When the order dated 03.09.2020 was not complied with the petitioner filed Contempt Application (Civil) No.4588 of 2021, which was also disposed of vide order dated 26.10.2021 directing the opposite party to consider the case of the petitioner and comply with the order passed in Writ (A) No.6802 of 2020 within six weeks. In pursuance of the order passed by Writ Court and Contempt Court, the Respondent No.2, vide his order dated 08.07.2021 considered the representation dated 10.09.2020 filed by the petitioner and rejected his claim for compassionate appointment. Being aggrieved withe the aforesaid order, the petitioner has approached this Court by way of the present writ petition.

4. On instructions, Sri Prem Prakash Yadav, learned counsel appearing for the Respondent Nos.2, 3 & 4 submits at the time of filing of first application seeking compassionate appointment the petitioner did not possess the requisite educational qualification to be appointed as Assistant Teacher, therefore, his application was rejected by the District Basic Education Officer. After five years, the petitioner again filed application dated 25.11.2016. Vide letter dated 13.12.2016 the petitioner was directed to file proper application for compassionate appointment on a prescribed format. After the letter dated 13.12.2016 issued by the respondent authority, the petitioner failed to file proper application on a prescribed format for about four years. The petitioner again on 12.06.2020 filed application seeking compassionate appointment, which is highly belated as such the appointment of the petitioner has rightly been rejected by the respondent authorities.

5. I have heard learned counsel for the petitioner, learned Standing Counsel representing the State Respondents and Sri Prem Prakash Yadav, learned counsel representing the Respondent Nos.2, 3 & 4 and have perused the record.

6. On the perusal of the record, it is borne out that the mother of the petitioner who was employed as Assistant Teacher died in harness on 16.11.2011. The petitioner vide application dated 26.11.2011 made an application seeking compassionate appointment on the post of Assistant Teacher. The said application was turned down on the ground that the petitioner did not possess the requisite educational/essential qualification prescribed for appointment as Assistant Teacher. The petitioner did not pursue his application further and after nearly 5 years filed another application dated 10.11.2016 seeking compassionate appointment on suitable post as per qualification. This application bears the date of receipt as 25.11.2016 which has been interpreted to read 15.11.2016. The application was treated to have been filed beyond 5 years of the death of the employee and as such was forwarded to the Secretary, U.P. Basic Shiksha Parishad, Prayagraj, as he was the Competent Authority to consider the case of the petitioner for compassionate appointment. When nothing was done by the Secretary, U.P. Basic Education the petitioner filed Writ (A) No.6802 of 2020 which was disposed of vide order dated 03.09.2020 directing the Secretary, Basic Shiksha Parishad to consider the petitioner's grievance within two months through a speaking order. While disposing of the writ petition, this Court noticed that the petitioner at the relevant time was 39 year and at the time of the death of his mother was 30 years and in such view of the matter the Secretary while considering the claim was required to look into the eligibility of the petitioner for compassionate appointment and also advert to the status of the petitioner's father at the time of the death of the mother of the petitioner and whether the family was in dire financial crisis or there was availability of alternative source of bred and butter as compassionate appointment cannot be a source of backdoor entry and the only purpose is to mitigate the undue hardship caused to the family due to the death of the bread earner.

7. A perusal of the impugned order dated 08.07.2021 passed by the Secretary, Basic Shiksha Parishad, Prayagraj, reveals that the Secretary has not at all adhered to the directions of this Court dated 03.09.2020 passed in Writ (A) No.6820 of 2020 in as much as there is no discussion or finding recorded on the financial status of the family, whether the father of the petitioner was in employment or not and the claim has been rejected simply on the ground that it was not filed on proper format and was not liable to be entertained in terms of Clause 8 of the Government Order dated 04.09.2000.

8 . In the writ petition the petitioner has not made any averment that the family of the petitioner which comprises of his father and himself have not been able to tide over the financial crisis resulting from the death of his mother in the year 2011. No averments have been made regarding the financial status of the family and himself. The petitioner has filed an affidavit of himself and his father as Annexure No.4 to the writ petition stating that the father is 63 years of age and does farming and the petitioner is not employed in any government job. The petitioner is now 40 years of age. This Court in normal circumstances would have remanded the matter back to the Secretary, Basic Shiksha Parishad, Prayagraj, for decision afresh strictly in terms of the order dated 03.09.2020 passed in Writ (A) No.6820 of 2020. However, considering the age of the writ petitioner the Court is of the opinion that it is too late in the day to consider the case of the petitioner for compassionate appointment.

9. The Apex Court in a recent decision dated 30.09.2022 passed in Civil Appeal No.6958 of 2022 (Fertilizers and Chemicals Travancore Ltd. & others Vs. Anusree K. B.) while dealing with a case of compassionate appointment after 24 years from the death of the deceased employee, considering the law laid down in the case of Director of Treasuries in Karnataka and Another Vs. V. Somyashree, (2021 SCC online SC 704) after referring to the decision rendered in N. C. Santhosh Vs. State of Karnataka (2020) 7 SCC 617, summarized the principles governing the grant of appointment on compassionate grounds as under:-

"(i) that the compassionate appointment is an exception to the general rule;

(ii) that no aspirant has a right to compassionate appointment;

(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;

(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy;

(v) the norms prevailing on the date of the consideration of the application should be the bas

10 . The Apex Court went on to observe that "as per the law laid down by this Court in catena of decisions on the appointment on compassionate ground for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Article 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right.

11. Then again in the case of State of Himachal Pradesh and Anr. Vs. Shashi Kumar reported in (2019) 3 SCC 653, [LQ/SC/2019/69] the Apex Court had the occasion to consider the object and purpose of appointment on compassionate ground and considered the decision in the case of Govind Prakash Verma Vs. LIC, reported in (2005) 10 SCC 289, [LQ/SC/2004/114] particularly in paras 21 and 26, which are being reproduced hereunder :-

“21. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289, [LQ/SC/2004/114] has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal v. State of Haryana [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138] [LQ/SC/1994/497] . The principles which have been laid down in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138] [LQ/SC/1994/497] have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract: (Umesh Kumar Nagpal case [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138] [LQ/SC/1994/497] , SCC pp. 139-40, para 2) “2. … As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration 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 in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is 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 a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non- manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. 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 upturned.” 26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [(2008) 11 SCC 384] [LQ/SC/2008/724] has adopted the principle 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. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 [LQ/SC/2004/114] : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case.”

The Apex Court thus observed:-

“Thus as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration 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 in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased.”

12. Applying the law laid down by the Apex Court in the aforesaid decisions to the facts and circumstances of the present case and considering the observations made in the aforesaid decisions and the object and purpose for which the appointment on compassionate ground is provided, the Court is not inclined to interfere with the impugned order denying the petitioner compassionate appointment on the death of the mother of the petitioner who died-in-harness in the year 2011. If the appointment of the petitioner on compassionate grounds is now considered after 11 years of the death of the deceased employee, it would be against the very object and purpose for which appointment on compassionate grounds is provided.