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1994 DIGILAW 891 (ALL)

SATYA PRAKASH v. U P STATE ELECTRICITY BOARD

1994-12-02

S.P.SRIVASTAVA

body1994
S. P. SRIVASTAVA, J. The petitioner herein has approached this Court praying for a direction requiring the opposite parties to appoint him at a suitable post/job in place of his deceased father who had died while in service in the year 1970. 2. The notice on behalf of the opposite parties were accepted by Sri S. K. Srivastava, Advocate on 21-2- 1989 and a counter affidavit was filed on behalf of the opposite parties in opposition to the claim of the petitioner asserting that no ground at all has been made out of the issuance of a direc tion as sought for and the writ petition was liable to be dismissed. In this case of the parties have exchanged the affidavits. 3. Considering the facts and circumstances of the case, this writ peti tion is being disposed of finally at this very stage under the 2nd Proviso to Rule 2 (1) of Chapter XXII of the Rules of the Court. 4. I have heard Sri P. K. Khare, learned Counsel for the petitioner and the learned Counsel for the opposite parties and have perused the record. 5. The f acts in brief, shorn of details and necessary for the disposal of this case lie in a narrow compass. Babu Ram Saxena, the father of the petitioner had died on 11-1-1970, while holding the post of patrol Man employed under the U. P. State Electricity Board who joined service on 10-5-1967 at Sitapur. According to the case of the petitioner, he was a minor aged about 4 years at the time of the death of big father. It is asserted that on attaining majority, the petitioner applied for his appointment. on compassionate ground in place of his father who had died in harness. This application is disclosed to have been moved somewhere in the year 1985 i. e. about 15 years after the death of the employee. In the year 1970, there was no such order in force which provided for any appointment being offered to a member of the family of a deceased employee dying in harness. However, Rules in this regard appear to have been framed in the year 1975 when U. P. Rajya Vidyut Parishad Sewa Kal Men Mrit Parishadiya Sewakon Ki Bharti Niyamawali, 1975 was enforced. However, Rules in this regard appear to have been framed in the year 1975 when U. P. Rajya Vidyut Parishad Sewa Kal Men Mrit Parishadiya Sewakon Ki Bharti Niyamawali, 1975 was enforced. Under those Rules as averred by the petitioner, the benefit envisaged under the Rules could be provided for only if the application in this regard from the dependent member of the family of the deceased employee was received within sit months of the death of the employee. However, it is asserted that from 8-4-1981, the time limit of six months was deleted and it was provided that the dependent of the deceased employee could be granted the benefit available under the Rules without a restriction in regard to time limit. The amendment in the Rules incorporated under Amendments of 1931 also provided that the claims which arose prior to 1974 in regard to the appointment provided in the Rules could be disposed of by the adhyafksha of the Board. However, on 6-1-1992, by notification issued by the U. P. State Electricity Board, the aforesaid provision was rendered inoperative and the power of the adhyaksha of the Board provided for in the Amendment incorporated in the year 1981, was withdrawn with the direction that no claims anterior to 20-6-1974 was to be entertained at any stage. 6. The opposite parties have asserted that on the death of Sri 3abu Ram Saxena, none of his dependant family members had sought for any appointment on compassionate ground, it has also been pointed out that the Rules of 1976 had been enforced with effect from 20-64974 and the Board had already notified on 6-1-1992 that claims pertaining to an appointment on compassionate ground which were of a period anterior to 20-6-1974 could not be entertained at all. U is asserted that in the facts and circumstances, the petitioner who sought for the appointment on compassionate ground in the year 1985 could not be granted any such appointment and his claim was totally misconceived and not entertain able. 7. U is asserted that in the facts and circumstances, the petitioner who sought for the appointment on compassionate ground in the year 1985 could not be granted any such appointment and his claim was totally misconceived and not entertain able. 7. It may be noticed that as a rule appointment in the public services or in the establishments falling within the category of state envisaged under Article 12 of the Constitution of India should be made strictly on the basis of open invitation of applications and merit as pointed out by the Apex Court in its decision in the case of Umesh Kumar Nagpal v. State of Haryana, JT 1994 (3) SC 625. No other mode of appointment nor any other consideration is permissible. In the aforesaid decision, it was further observed that 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, in this general rule, which is to be followed strictly in every case, the Apex Court pointed out, that there are some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependents 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 dependents of the deceased who may be eligible for such appointment. The Apex Court emphasised that the whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. It was also pointed out that mere death of an employee while in service does not entitle his dependent family to such source of livelihood. The Government or the public authority con cerned has to examine the finasial conditions 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 offered in the eligible member of the family. The Government or the public authority con cerned has to examine the finasial conditions 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 offered in the eligible member of the family. The object being to relieve the family of the financial destitution and to help it get over the emergency. In another decision in the care of Life Insurance Corporation of India v. Miss Asha Ramchandra Ambedkar, JT 1994 (2) SC 183, the Apex Court had pointed out that High Courts and the Tribunals cannot confer benediction impelled by a sympathetic consideration. 8. In the present case, it is obvious that the father of the petitioner had died much before the enforcement of the Rules indicated hereinbefore. As observed by this Court in its decision in the case of Umesh Kumar Srivastava v. State of U. P. , Special Appeal No. 514 of 1992, decided on 19-10-1994, rendered by this Court the provisions of such Rules have to be strictly construed and the benefits thereof cannot be given to the dependent family member of the deceased employee who had died prior to the commencement of the Rules. 9. Further as observed by this Court in its direction in the case of Harbansh Sahai Srivastava v. State of U. P. , 1990 (1) UPLBEC 220 , rendered by a Division Bench of this Court, the cause of action for such an appointment as claimed by the petitioner would arise on the death of the employee who died in harness. It was indicated by this Court that it is at that time that the help is required by family and by no stretch of imagi nation, it can be said that after more than nine years of the death of the employee, the dependent can seek the benefit of the Rules. In its aforesaid decision, this Court clearly, observed that the application for appointment having been moved after more than nine years of the date of the death of the father, the petitioner in that case was not entitled to any relief from this Court in the exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. In its aforesaid decision, this Court clearly, observed that the application for appointment having been moved after more than nine years of the date of the death of the father, the petitioner in that case was not entitled to any relief from this Court in the exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. It may be noticed that the petitioner in the aforesaid case was a minor at the time of the death of his father and had moved the application after attaining majority. 10. It has been urged that the petitioner is being discriminated as in certain cases, the opposite parties have not followed the period of six months limitation, while granting some appointments on compassionate ground. In this connection, reliance is placed on the allegations made in paragraph 9 of the rejoinder affidavit. The petitioner in the aforesaid paragraphs had referred to an appointment granted on 20-5-1975 whereas the death of the employee had taken place on 26-9-1973 and an other case where the appointment was granted on 1-5-1975, whereas the death had taken place on 25-5- 1971. Similarly reference is made to an appointment granted in the year 1975, while the death of the employee had taken place on 2-1-1973. 11. The aforesaid facts pleaded in the rejoinder affidavit are sworn on personal knowledge of the petitioner who was born on his own showing in the year 1967. No details have been given so as to indicate the date on which the application seeking appointment on compassionate ground had been filed. Since there was a limitation of six months, it can be safely presumed in the absence of any allegations to the contrary, that the application must have been moved within the time limit prescribed and the delay if any in the grant of employment must be attributed to the employer which cannot be utilised against the person seeking the employment. 12. While, there can be no doubt that there can be no justification for any discrimination, in granting employment even if it be on compassionate ground unless there be some basis for discriminatingly extending such benefits yet no such inference can be legitimately drawn unless it is established that equals are being treated unequally. 12. While, there can be no doubt that there can be no justification for any discrimination, in granting employment even if it be on compassionate ground unless there be some basis for discriminatingly extending such benefits yet no such inference can be legitimately drawn unless it is established that equals are being treated unequally. In the absence of the requisite pleadings in this regard and the failure of the petitioner to substantiate his assertions, the submission noticed above is are not acceptable. 13. Even otherwise, a wrong decision in favour of any particular person cannot per se entitle any other person to claim the benefit simply on the basil of the wrong decision and be has to satisfy the requisite eligibility criteria in the absence where of the benefits sought for cannot be released as otherwise it may amount to perpetuating a wrong which must be avoided. 14. In view of the conclusions indicated hereinbefore, no justifiable ground has been made out for any interference by this Court, while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India. 15. The writ petition is accordingly dismissed. Petition dismissed. .