REPORTABLE  

  IN THE  SUPREME COURT OF INDIA                      CIVIL  APPELLATE  JURISDICTION                                      CIVIL APPEAL NO. 1955 OF 2003   

  Santosh Kumar Dubey ..   Appellant(s)

                    Versus

State of U.P. & Ors. ..   Respondent(s)                                                           J U D G M E N T

Dr. MUKUNDAKAM SHARMA,J.   

This appeal is directed against the judgment passed by the Division Bench of  

the Allahabad High Court whereby the Special  Appeal filed by the appellant was  

dismissed.  The said appeal was filed against the judgment and order passed by the  

Learned Single Judge  of the High Court on 8th July, 2002 who dismissed the writ  

petition of the appellant on the ground that no case for issuance of any writ was made  

out.

The writ petition was filed by the appellant on the ground that his father  

who was working as Constable was untraceable   and that his whereabouts were not  

known. Another writ petition was filed by the mother of the appellant in which  the  

Court observed that since whereabouts of the father of the appellant are not known  

for last seven years therefore the concept of deemed death of the father of

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the  appellant  could  be  invoked   to  the  case  in  hand.   Accordingly,   there  was  a  

direction of the Court directing for payment of service benefits of the father of the  

appellant  to  his  mother.   It  was  also  contended  in  the  writ  petition  filed  by  the  

appellant  that  having  received  the  said  benefit,  now  a  right  has  accrued  to  the  

appellant to seek for a compassionate appointment in the light of the rules applicable.

 The  afore-mentioned  writ  petition  was  contested  by  the  respondent  

contending inter alia that the father of the appellant was dismissed from service for  

unauthorised absence and, therefore, in a case like that, the appellant was not entitled  

to  claim  the  benefit  of  compassionate  appointment.    The  writ  petition  was  also  

opposed by the respondent on the ground that the rules as applicable did not  permit  

any  compassionate  appointment  in  favour  of  a  person  like  the  appellant  and,  

therefore, no such benefit could be given in favour of the appellant.  

The writ petition thereafter was taken up for

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arguments by the learned Single Judge who considering the facts and circumstances  

of the case dismissed the writ petition holding that no case for such appointment was  

made out.   Being aggrieved, the appellant filed a Second Appeal before the Division

Bench of  the  Allahabad  High  Court.   The  said  Special  Appeal  was taken up for  

consideration and by impugned judgment and order dated 28th August, 2002, the  

Division Bench dismissed the appeal holding that there was no scope to interfere with  

the order of the Learned Single Judge. Still being aggrieved by the said order present  

appeal is filed in which leave was granted.

We have heard learned counsel appearing for the appellant  as also learned  

counsel for the respondents and with their assistance have also perused the records.

Counsel  for  the  appellant  has  submitted before  us  that  by  virtue  of  the  

orders of the Court, the mother of the appellant got the service benefits sometime in  

the  year  1999  and,  therefore,  the  appellant  was  justified  in  asking  for  a  

compassionate appointment and it cannot be said to be belated.   

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In order to appreciate the aforesaid contentions of the counsel appearing for  

the appellant, we have perused the rules called the "U.P. Recruitment of Dependents  

of Government Servants Dying in harness Rules, 1974".  In our considered opinion,  

Rule 5 has relevance on the facts of the present case and, therefore,  we extract the  

said provision hereinafter :

"5. Recruitment of a member of the family of the deceased.-

In  case,  a  government  servant  dies  in  harness  after  the  commencement  of  these  rules  and  the  spouse  of  the  deceased  government  servant  is  not  already  employed  under  the  Central  Government  or  a  State  Government  or  a  Corporation  owned  or  Controlled by the Central Government or a State Government, one  member of his family who is not already employed under the Central  Government  or  a  State  Government  or  a  Corporation  owned  or  controlled by the Central  Government or a State Government of  a  Corporation  owned or  controlled  by  the  Central  Government or  a  State Government shall, on making an application for the purposes,  be given a suitable employment in government service on a post except  the  post  which  is  within  the  purview  of  the  Uttar  Pradesh  Public  Service Commission, in relaxation of the normal recruitment rules if  such person-

(i)  fulfils  the  educational  qualifications  prescribed  for  the  post;

(ii) is otherwise qualified for government service; and    (iii) makes the application for employment within five years  

from the date of the death of the government servant:

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Provided that where the State Government is satisfied that  the times limit fixed for making the application for employment causes  undue hardship in any particular case, it may dispense such  or relax  the requirement as it may consider necessary for dealing with the case  in a just and equitable manner.

(2) As far as possible, such an employment should be given in the  same  department  in  which  the  deceased  Government  servant  was  employed prior to his death."

A bare perusal of the aforesaid rule would make it crystal clear that there is  

a time limit prescribed according to which  a deserving candidate has to make an  

application  for  appointment  within  five  years  from  the  date  of  death  of  the  

government servant.  Admittedly, the father of the appellant was untraceable  from

1981.  Without entering into and deciding the issue as to whether employment on  

compassionate ground could be asked for in a case of deemed death under Section  

108 of the Evidence Act, even if we assume  for the  sake of argument that it can be so  

demanded and asked for, such a right should and could have been exercised in the  

year 1988 and computing the period of five years therefrom the period of limitation  

for making an application for employment in the case of the appellant

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expired in the year, 1993.  The very concept of giving a compassionate appointment is  

to tide over the financial difficulties that is faced by the family of the deceased due to  

the death of the earning member of the family.  There is immediate loss of earning for  

which the family suffers financial hardship.   The benefit is given so that the family  

can  tide  over  such  financial  constraints.  The  request  for  appointment  on  

compassionate grounds should be reasonable and proximate to the time of the death  

of the bread earner of the family, inasmuch as the very purpose of giving such benefit  

is to make financial help available to the family to overcome sudden economic crisis  

occurring in the family of the deceased who has died in harness.  But this, however,  

cannot be another source of recruitment.  This also cannot be treated as a bonanza  

and also as a right to get an appointment in Government service.

In the present case, the father of the appellant became untraceable in the  

year 1981 and for about 18 years, the family could survive and successfully faced and  

overcame

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the financial  difficulties  that they faced on missing of  the earning member.  That  

being the position, in our considered opinion, this is not a fit case  for exercise of our  

jurisdiction.  This is also not a case where any direction could be issued for giving the  

appellant a compassionate appointment as the prevalent rules governing the subject  

do not permit us for issuing any such directions.  The appeal, therefore, has no merit  

and is dismissed.       

                                    ......................J.             [ Dr.MUKUNDAKAM SHARMA ]  

                                    ......................J.                                  [ Dr. B.S.  CHAUHAN ]                         

            NEW DELHI, MAY 18, 2009.