VISHWA NATH TRIPATHI Vs. STATE OF U P

JUDGEMENT

(1.) THIS special appeal arises from the order and judgment of Hon'ble Single Judge of this Court dated 5-11- 2004 dismissing the appellant's writ petition No. 47043 of 2004. We have heard Sri Anil Yadav, learned Counsel for the appellant and learned standing Counsel for the respondents. 2. The appellant claimed himself to be the adopted son of late Saryu Prasad Pandey, who is said to have died in harness on 13th August, 1977. Late Saryu Prasad Pandey was an Assistant Teacher in a Primary School and died on 13th August, 1977, while he was in active service. It is submitted that the petitioner/appellant being dependent was entitled to be given compassionate appointment. 3. Admittedly the appellant for the first time applied for compassionate appointment in the year 1990 i. e. after more than 13 years of the death of the employee. It is well-settled that the object of granting compassionate appointment is to enable the family to tide over the sudden crisis, which has occurred due to the death of the sole bread earner of the family. The object is not to give a member of such family a post and/or to reserve a post for him so as to enable him to claim the same as and when he becomes eligible for such appointment. If the petitioner could manage the affairs of the family for 13 years, this itself shows that the family did not have such crisis as to warrant compassionate appointment. 4. In Sanjay Kumar v. State of Bihar and Ors. , J. T. 2000 (10) SC 156, the Apex Court reiterated that the compassionate appointment is provided only to enable the family of the deceased employees to tide over sudden crisis resulting due to the death of sole bread-earner who has left family in penury without any means of livelihood. It was also held that there cannot be reservation of vacancy till such time the petitioner becomes major after a number of years unless there are some specific provisions. The very purpose of compassionate appointment is to see that the family gets immediate relief. 5. In the case of Haryana State Electricity Board v. Krishna Devi, 2002 (2) LBESR 95 (SC) : (2002) 10 SCC 246, the Apex Court while reiterating the objective of compassionate appointment as laid down in the earlier cases further observed that the application made at a belated stage cannot be entertained for the reason that by lapse of time the purpose of making such appointment stands evaporated. In the aforesaid case, the application seeking compassionate appointment was made after 8 years of the death and it was held that if the compassionate appointment is allowed at such a belated stage, it would defeat the very object and purpose of such appointment. 6. If the family has sufficient means to survive for years together and can take care of the minors who have now turned major after undergoing educational qualification etc. , that itself would be evident to show that the family is not in a financial crisis as it could have at the time of sudden demise of the deceased necessitating compassionate appointment. 7. In State of Manipur v. Mohd. Rajaodin, 2004 (1) LBESR 674 (SC) : 2003 (7) SCC 511, the Apex Court reiterated that the purpose of giving compassionate appointment is only to mitigate hardship caused to the family of the deceased on account of his unexpected death in service, only to alleviate the distress of the family but at a belated stage as these grounds are no more in existence, therefore, such employment cannot be claimed or provided. Referring to earlier judgments on the subject, the Apex Court in para 11 observed as under : "in Sushma Gosain v. Union of India, 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 breadwinner 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 envisages 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 reiterated in Phoolwati v. Union of India and Union of India v. Bhagwan Singh. In Director of Education (Secondary) v. Pushpendra Kumar, it was observed that in the 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 grant 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 and thereby nullify the main provision by taking away completely the right conferred by the main provision. " 8. Thus, it is clear that the compassionate appointment cannot be claimed as a "vested right". The term "vested right" has been considered and described by the Apex Court in the case of Mosammat Bibi Sayeeda and Ors. v. State of Bihar and Ors. , AIR 1996 SC 1936, wherein after referring to dictionary' meaning in various dictionaries the Apex Court has observed as under: "rights are vested when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest. " 9. Thus, the vested right may arise from contract, statute or by operation of law. However, asking for compassionate appointment after attaining majority by no stretch of imagination, can be said to be a "vested right". 10. THIS Court cannot be oblivious of the fact that unemployment is a major problem in our country. Lacs and millions educated unemployed persons are wandering for employment and even for a single petty Class IV vacancy, hundreds and thousands apply which include not only those who possess the minimum qualification of secondary level or less but even graduate and post-graduate. At times it has been seen that even persons having doctorate have applied for the lowest class of service i. e. Class IV. In such a situation, public employment must be available to eligible and suitable persons to be filled in by competition and all who are willing should be given an opportunity of consideration. Asking for a vacancy to be kept reserve so as to be filled-in future on the basis of notional extended distress to the family continuing for years together would amount to denial of such right of consideration to other similarly placed unemployed and destitute persons whose only fault is that their ancestors could not get the opportunity of employment and, therefore, they should also suffer the same misfortune. Compassionate appointment, in fact, has an element of an immediate help to the family of the deceased employee. The heirs in distress lacking sufficient and reasonable means to survive with some honour, must request for such help immediately or within a reasonable time. To some extent, no doubt, it is a condition of service and the benefit available to employee in general but extension of such condition of service to an unreasonable extent would or may erode the difference between valid and invalid and any such stretch may render the provisions of the compassionate appointment to be judged on the anvil of Article 16 of the Constitution of India which confers right of equal opportunity in public employment to all persons. The Court cannot shut its eyes to the fact that still majority of people are continuing to be tiny, poor starving little Indians and still are below poverty lines. Then distress and penury appears to be everlasting, as if they are bound to live in distress permanently. Their misery and destitute is not the result of sudden demise of the sole bread-earner but is caused by their fate and for the reason of non- availability of employment. They are not in a position, even though they are alive, to earn two times simple bread what to talk of bread and butter. The distress of such persons is neither negligible nor can be ignored. In the pragmatic society, efforts had to be made to read and apply law wherever permissible which will extend opportunity of equal consideration for public employment to public at large irrespective of their lineage, ancestral hierarchy etc. We are, therefore, of the opinion that the claim for compassionate appointment cannot be extended to such an extent as to permit after a decade or more since it would defeat the very objective of such appointment. 11. The petitioner, after 13 years from the date of death of his father, therefore, was not entitled to claim appointment on compassionate basis, since it would defeat the very purpose and the ends of justice. In our view, the Hon'ble Single Judge has rightly observed that asking for compassionate appointment after such a long time, is not permissible and the writ petition has rightly been dismissed. We do not find any reason warranting interference in the judgment under appeal. 12. THIS appeal, therefore, lacks merit and is accordingly dismissed without any order as to costs. .