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2000 DIGILAW 1427 (ALL)

PRAVEEN KUMAR PANDEY v. STATE OF UTTAR PRADESH

2000-11-15

I.M.QUDDUSI

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I. M. QUDDUSI, J. ( 1 ) HEARD learned counsel for the petitioner and learned standing counsel. ( 2 ) BY means of the present petition, the petitioner has prayed for issuing a writ in the nature of mandamus commanding the Opposite Parties to give appointment to the petitioner on compassionate grounds under U. P. Recruitment of Dependants of Government Servants dying-in-Harness Rules, 1974 (hereinafter referred to as the Rules ). ( 3 ) BRIEFLY stating the facts giving rise to this writ petition are that the father of the petitioner who was working as Medical Officer, P. H. C. Panwara, district, Jaunpur in pursuance of his appointment letter dated 12. 7. 1988 (Annexure-2 to the writ petition) died on 9. 11. 1989 leaving behind him the petitioner (son) wife Smt. Sumitra Devi and one daughter. The petitioner and his mother gave several applications to the opposite parties for appointment on compassionate grounds under the aforesaid Rules. The Director, Ayurvedic and Unani Services, U. P. , Lucknow rejected the representation of the petitioner by his order dated 20. 2. 1999 stating therein that as the father of the petitioner was given appointment on ad hoc basis and he died in the year 1989 and, therefore, the petitioner cannot be given benefit under sub-rule 3 (ka) of the Rules, copy of which has been annexed as Annexure-7 to the writ petition. ( 4 ) I have considered the case laws cited by learned counsel for the petitioner in support of his case. He has placed reliance on two decisions of Honble single Judge of this Court in the case of vijay Kumar v. U. P. State Cement Corporation Ltd. , 1997 (2) LBSER 94 All and Smt. Lalmani v. State of U. P. and others, 1997 (2) LBSER 315 (All) (LB ). ( 5 ) A Division Bench of our Court in the case of Mohd. Danish Siddiqui v. State of U. P. and others, (2000) 2 UPLBEC 1183 has held that entertainment of application after period prescribed, i. e. , 5 years from the date of death can be considered only in exceptional case where the State Government for cogent reasons is satisfied that period of 5 years for making application is causing undue hardship. Danish Siddiqui v. State of U. P. and others, (2000) 2 UPLBEC 1183 has held that entertainment of application after period prescribed, i. e. , 5 years from the date of death can be considered only in exceptional case where the State Government for cogent reasons is satisfied that period of 5 years for making application is causing undue hardship. ( 6 ) THE Uttar Pradesh Recruitment of Dependants of Government Servants Dying-in-Harness rules, 1974 had been amended by 5th Amendment on 20th January, 1999 and Rule 5 thereof reads as under : " (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 an application for employment which 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 case in a just and equitable manner. " ( 7 ) NEEDLESS to say that Dying-in-Harness Rules as mentioned above has been enforced as an exception in order to mitigate the financial hardship of the family of a Government servant who dies while in service purely on humanitarian considerations, otherwise it is settled that the appointments in public service should be made strictly on the basis of an open selection and on merit basis and any other mode of appointment by following a different procedure or relaxing the prescribed qualification would be invalid being violative of Article 16 of the Constitution of india. This question has attained consideration by the Apex Court in the case of Life Insurance corporation of India v. Mrs. Asha Ramchandra, JT 1994 (2) SC 183, wherein, it has been held as under: "of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. " ( 8 ) IN the case of Umesh Kumar Nagpal v. State of Haryana and others, (1994) 4 SCO 138. Honble Supreme Court has held as under : "for these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right, which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. " ( 9 ) THE Apex Court in the case of Sanjay Kumar v. The State of Bihar and others, JT 2000 (10)SC 156, has held as under : "this Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread-earner who had left the family in penury and without any means of livelihood. In fact, such a view has been expressed in the very decision cited by the petitioner in Director or education and another v. Pushpendra Kumar and others (supra ). In fact, such a view has been expressed in the very decision cited by the petitioner in Director or education and another v. Pushpendra Kumar and others (supra ). It is also significant to notice that, on the date when the first application was made by the petitioner on 2. 6. 1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time, as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief. " ( 10 ) IN the instant case, the father of petitioner was working as Medical Officer in Primary health Centre, Jaunpur on ad hoc basis who died in the year 1989. The whole object of granting employment to family members of deceased Government servant on compassionate ground is to enable the family to face the sudden crisis. Mere death of an employee in harness does not entitle his family to such employment and the Government or the Public Authority, as the case may be, has to examine the financial condition of the family of the deceased and it is only if it is satisfied that but for the provisions of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family concerned. ( 11 ) IN view of the discussions made above, there is no merit in this writ petition and the same is dismissed accordingly without any order as to costs. .