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2007 DIGILAW 501 (UTT)

Amit Nagar v. Ministry of Cane Development

2007-10-01

PRAFULLA C.PANT

body2007
Judgment By means of this writ petition moved under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of mandamus commanding the respondents to appoint the petitioner on compassionate ground. 2. Heard Sri K.S. Bhaskar, learned counsel for the petitioner, learned Standing Counsel for respondents no. 1 to 5 and Smt. Bina Pan de, learned counsel for respondent no. 6. 3. Brief facts of the case are that petitioner's father Vishwanath Nagar was a Senior Clerk in Cane Development Department of the State Government. He died in harness on 0806-1992. Petitioner was minor at the time of death of his father. As such, he could not seek the appointment before attaining age of majority. In para 8 of the writ petition, it is stated that petitioner's mother (Nirmala Nagar) moved an application seeking compassionate appointment, which was duly forwarded to the authorities concerned. From the writ petition, it is not clear that what happened to the said application moved by the petitioner's mother. On 05-11-1998, petitioner moved an application for his appointment on compassionate ground. Said application was also forwarded by District Cane Officer, Udham Singh Nagar to Additional Cane Commissioner (Administration), Lucknow, vide his letter dated 25-11-1998. It is stated that when nothing was heard from authorities at Lucknow, even after several reminders being sent, this writ petition is filed in the year 2004 for seeking writ in the nature of mandamus commanding respondents to appoint the petitioner on compassionate ground. 4. Respondents no. 2 and 3 have filed their joint counter affidavit, in which para 1 to 6 of the writ petition are not denied. It is stated that the petitioner's father Vishwanath Nagar was serving as a Senior Clerk in the Cane Development and died on 08-06-1992. Referring to Government Order Karmik Anubhag-2 No. 6/12f73-Ka-2193, dated 16th April 1993, it is stated that the application could have been entertained only within five years of death of the Government servant. The petitioner moved his application after the period of five years. It is admitted that request for relaxation of the period of five years was also made to the Government, but the same was not allowed. 5. Respondent NO.6 filed its separate counter affidavit. In this counter affidavit also contents of para 1 to 6 of the writ petition are not denied. It is admitted that request for relaxation of the period of five years was also made to the Government, but the same was not allowed. 5. Respondent NO.6 filed its separate counter affidavit. In this counter affidavit also contents of para 1 to 6 of the writ petition are not denied. It is admitted that Vishwanath Nagar, father of the petitioner was working as Senior Clerk in the Cane Development, who died on 08-061992. Referring the same Government Order mentioned above Le. dated 16th April 1993, it is stated in the counter affidavit of respondent no. 6 that under the Rules period for seeking appointment is five years and the petitioner's application was beyond the period allowed under the Rules. It is also stated in this counter affidavit that the request for relaxation could not be allowed by the State Government of UP as no reasons were stated by the petitioner justifying the relaxation. 6. In the rejoinder affidavit the petitioner has reiterated the averments made in the writ petition. 7. Before further discussions it is pertinent to mention here the relevant Rules applicable to the case. Rule 5 of U.P. Recruitment of Dependants of Government Servants Dying In Harness Rules, 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: . (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." Aforesaid clause (iii) of Rule 5 clearly provides a condition that the application for employment should be made by member of the family of the deceased within five years from the date of death of the Government servant. Admittedly, petitioner's father died on 08-06-1992. It is also not disputed that the application was moved by the petitioner for employment in September 1998 i.e. after a period of six years and three months, which is barred by time. This Court cannot direct the respondents to entertain an application, which is barred under the law. 8. As far as the proviso to Rule 5( 1) is concerned, it is already stated in the counter affidavit of respondent no. 6 that no relaxation could be given to the petitioner as he could not make out a case for relaxation and did not disclose special reasons on the ground of which the period prescribed could have been dispensed with. 9. For the reasons as discussed above, the petitioner cannot claim employment as of right. Therefore, the writ petition is liable to be dismissed. The same is dismissed. No order as to costs.