The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 were framed with the aim and object of creating an alternative inlet of recruitments from a welfare and humanitarian perspective, and from the perspective of aiding families in destitute situations due to the loss of their earning breadwinner.
In the case of Umesh Kumar Nagpal vs. State of Haryana and others, the Hon’ble Apex Court underscored the basic purpose of compassionate appointment. It was held that the object is to relieve the family of the financial destitution and help it overcome the emergency.
In such cases wherein the government servant dies in harness, an Application can be made under Rule 5 of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules 1974 (hereinafter referred to as “the Dying in Harness Rules”). However, certain legal stipulations have been created to shape this law to obey the Part III of the Constitution of India.
What does Rule 5 of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules 1974 state?
Rule 5 provides as follows:
“Recruitment of a member of the family of the deceased– (1) 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 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
Provided that in case appointment is to be made on a post for which typewriting has been prescribed as an essential qualification and the dependent of the deceased Government servant does not possess the required proficiency in typewriting, he shall be appointed subject to the condition that he would acquire the requisite speed of 25 words per minute in typewriting well within one year and if he fails to do so, his general annual increment shall be withheld and a further period of one year shall be granted to him to acquire the requisite speed in typewriting and if in the extended period also he again fails to acquire the requisite speed in typewriting, then an order will be issued to provide him appointment on the post of class IV. The appointment so granted shall be deemed to be a fresh appointment and shall not be reversion. If he does not join the post of class IV within stipulated time his services will be terminated.
Provided further that in case appointment is to be made on a post for which the knowledge of computer operation and typewriting has been prescribed as an essential qualification and the dependent of the deceased Government servant does not possess the required proficiency in computer operation and typewriting, he shall be appointed subject to- the condition that he would acquire the ‘CCC’ certificate in computer operation awarded by the DOEACC Society or a certificate equivalent thereto from an Institution recognised by the Government together with the required speed of 25 words per minute in typewriting well within one year and, if he fails to do so, his general annual increment shall be withheld and a further period of one year shall be granted to him to acquire the required certificate in computer operation and the required speed in typewriting and if in the extended period also he again fails to acquire the required certificate in computer operation and the required speed in typewriting, then an order will be issued to provide him appointment on the post of class IV. The appointment so granted shall be deemed to be a fresh appointment and shall not be reversion. If he does not join the post of class IV within stipulated time his services will be terminated.
(ii) is otherwise qualified for Government service
(iii) makes the application for employment within five years from the date of the death of the Government servant
Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.
Provided further that for the purpose of the aforesaid proviso, the person concerned shall explain the reason and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the application for employment along with necessary documents/proof in support of such delay and the Government shall, after taking into consideration all the facts leading to such delay take the appropriate decision.
(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.
(3) Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves.
(4) When the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his service may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time.”
Principles established vis-à-vis Compassionate Appointment
In the case of Bhawani Prasad Sonkar vs. Union of India and others, the Hon’ble Apex Court enunciated certain essential and basic principles vis-à-vis compassionate appointment. The principles are as follows:
1. Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.
2. An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.
3. An appointment on compassionate grounds is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee’s family at the time of his death or incapacity, as the case may be.
4. Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.
What are the prerequisites for compassionate employment?
The prerequisites for appointment under the Dying in Harness Rules are provided under Rule 5 of the 1974 Rules.
Firstly, the applicant must be a member of the family only. Family is defined under Rule 2(c) of the Dying in Harness Rules. Family includes Wife or husband, Sons, or unmarried and widowed daughters.
Secondly, no other person should already have been employed under the Central Government, or the State Government, or any Corporation controlled by the Government.
Thirdly, the applicant must fulfil the educational qualifications prescribed for the post the said applicant is applying.
Fourthly, the Applicant is eligible for Government Service.
And lastly, the application must be made within five years from the death of the Government Servant.
The last pre-requisite has been diluted by the proviso attached to the concerned sub-rule. The proviso states that if the time limit of five years prescribed causes undue hardship upon the applicant, then the State Government may dispense with or relax the said requirement. For this purpose, the applicant must explain the reasons for the delay caused in making the said application.
What happens if the contractual appointment is accorded under Dying in Harness Rules 1974?
The 1974 Rules do not provide for contractual appointment. Au contraire, the contractual appointment is the antithesis of the objective of the Dying in Harness Rules. Hence, Compassionate Appointments can only be accorded on regular basis and not on a contractual basis.
In the case of Umesh Kumar vs. State of U.P., the Hon’ble Allahabad High Court held that where the contractual appointment was accorded under the Dying in Harness Rules, the same would be deemed to be treated as Regular Appointment. Such relief has been granted in a plethora of cases.
What happens if the appointing authority rejects the application on grounds of delay?
In the cases where the Application under Rule 5 of the Dying in Harness Rules is made after 5 years, the appointing authority has no jurisdiction to deal with delayed cases, and must, forthwith, forward such applications to the State Government for decision.
In the case of Kajal Kumari vs. State of U.P. and others, the Hon’ble Allahabad High Court held that where the appointing authority rejected the application under Rule 5 of the Dying in Harness Rules, the rejection order was set aside, as the authority to decide on delay vests with the State Government only. The appointing authority, hence, was duty-bound to forward the application along with any evidence provided to explain the delay to the State Government.