HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 39

Case :- WRIT – A No. – 7725 of 2012

Petitioner :- Km. Renu

Respondent :- State of U.P. and Others

Counsel for Petitioner :- Diwakar Singh,Ashok Khare,Ashok Kumar Mishra,Yatish Kumar Dwivedi

Counsel for Respondent :- C.S.C.

Hon’ble Ashwani Kumar Mishra,J.

1. Facts are somewhat unusual in the present case and are therefore noticed at the outset. Petitioner’s father was a Lekhpal, who died in harness on 26.5.1990. Petitioner at the time of death of her father was about 07 months old having been born on 15.11.1989. Petitioner’s mother also died within few days of her birth. A suit under Section 15 of the Guardians and SectionWards Act, 1890 was instituted by the petitioner through her uncle in the year 2001 and the District Judge appointed her uncle as the ‘Guardian’, whereafter orders were passed for payment of monetary benefits due to petitioner’s father to her. Upon an application filed for grant of compassionate appointment, the Settlement Officer Consolidation, Lalitpur passed an order on 11.4.2004 intimating petitioner’s guardian that her claim for compassionate appointment cannot be considered since she is about 15 years of age and is still a minor. This order, however, contained the stipulation that petitioner may apply after she attains majority. Consequently, petitioner moved an application for compassionate appointment on 26.12.2008 when she became 18 years of age. The claim of petitioner was forwarded to the competent authority for grant of relaxation in terms of Rule 5 of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 for condoning the limitation of five years in filing application for compassionate appointment. Records reveal that at different stage of the proceedings strong recommendations were made for relaxing the limitation of five years period for filing of the application. However, when the matter was placed at the highest level of the State, the competent authority by his one line order rejected petitioner’s claim by observing that no justification is found to relax the limitation incorporated in the rules of five years for filing of the application. This decision of the State Government has been intimated by the Settlement Officer Consolidation, Lalitpur on 8.9.2011, which is impugned in the present writ petition.

2. Learned counsel for the petitioner submits that on the date of death of petitioner’s father, she was only about 07 months old and there is nobody else to support her. It is also stated that extreme financial stringency continues to exist for petitioner, who is an unmarried lady, and her claim for grant of compassionate appointment has not been examined, in accordance with law. Learned counsel for the petitioner places reliance upon a Full Bench judgment of this Court in Shiv Kumar Dubey and others Vs. State of U.P. and others, reported in 2015 AIR (All) 47, wherein following principles have been laid down in para 29:-

“29. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules:

(i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved;

(ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules;

(iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner;

(iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment;

(v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out;

(vi) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner;

(vii) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government;

(viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family.”

Submission is that in view of the observations contained in the judgment of this Court, the impugned decision cannot be sustained.

3. A counter affidavit has been filed on behalf of respondents stating that petitioner is being paid family pension at the rate of Rs.375/- per month, and that no justification exists for grant of compassionate appointment to the petitioner.

4. I have heard learned counsel for the parties and have perused the materials brought on record.

5. Proviso to Rule 5(1) of the Rules of 1974 clearly contemplates vesting of jurisdiction in the State Government to relax limitation of five years in making application for grant of compassionate appointment, wherein sufficient reasons exist for not preferring such application within time. Rule 5 of the Rules of 1974 reads as under:-

“5. 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.

(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:

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.

(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.”

6. This Court in the case of Shiv Kumar Dubey (supra) had an occasion to examine the above provision and the guiding principles for invoking jurisdiction under the proviso has been outlined in the judgment itself. It is for the State Government to examine as to whether financial stringency caused on account of untimely death of Government servant continues to subsist or not? It is only after such aspects are examined that a valid decision can be taken, whether or not to exempt the five years limitation in filing of application. In the facts of the present case, it is more than apparent that petitioner had none to support her at the time of death of her father. Petitioners’ mother had pre-deceased her father. Facts of the present case clearly required empathy on part of the competent authority of the State while examining the issue as to whether limitation was required to be condoned in making of the application or not. Such sympathetic consideration is clearly found to be lacking in the decision taken by the State. Neither the financial condition of petitioner has been examined nor the State has taken note of the fact that there was none else in the family, who could have been considered for compassionate appointment. The extreme financial stringency for the petitioner continues to subsist despite the expiry of five years term. It is otherwise on record that petitioner made an application even before she attained the age of 18 years and the authorities themselves directed the petitioner to make an application after she attained the age of 18 years. A timely application moved by petitioner soon after she attained the age of majority has been rejected by a cryptic order without adverting to relevant aspects that were required to be gone into while exercising jurisdiction under the proviso to Rule 5. In that view of the matter, the decision taken by the State Government, as communicated by the Settlement Officer Consolidation in its letter dated 8.9.2011, cannot be sustained and is quashed.

7. Writ petition, consequently, succeeds and is allowed. The State Government is directed to re-visit the issue, keeping in view the observations made above, by passing a fresh order, within a period of six weeks from the date of presentation of certified copy of this order. Consequential order would be passed by the competent authority, within a further period of four weeks, thereafter.

Order Date :- 3.1.2020

Anil