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2010 DIGILAW 1922 (ALL)

VIVEK YADAV v. STATE OF U. P.

2010-07-03

A.P.SAHI, F.I.REBELLO

body2010
JUDGMENT Hon’ble Ferdino I. Rebello, C.J.—This special appeal is preferred by the appellant, who sought appointment on compassionate basis on attaining majority after the death of his father on 26th of May, 1986. Late father of the appellant was working on the post of Assistant Agriculture Inspector in Rajkiya Krishi Beej Bhandar, District Rae Bareli. On account of the death of his father, who was the sole bread earner, the entire family is facing financial crunch and it became impossible for the family to make both ends meet. The family of the deceased had no immovable property and they are living in the rented house and there was nobody to support the family. The mother of the appellant was illiterate and was not aware of the benefits and thus, did not claim compassionate appointment under the State Rules, which are known as U.P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred to as ‘the Rules’). The appellant was born on 2nd of February, 1984 and on completion of 18 years of age, he preferred a representation dated 4th of August, 2001 before the District Agriculture Officer requesting for his appointment on compassionate basis as the financial and social problems occasioned by the death of his father continue. The family of the appellant consists of his mother, three sisters and another brother. The mother of the appellant also gave no objection on 29th of August, 2001. Though the authorities below forwarded and recommended the case of the appellant for relaxing the condition to make the application in time, the same was not acted upon. Thereafter the appellant finally made a representation to the Minister of Agriculture, to which he received an order issued on 28th of February, 2002, rejecting the representation on the ground that the representation made by the appellant for appointment on compassionate basis was time barred and there was no justification for granting compassionate appointment to him. The said letter was served upon the appellant only on 22nd of October, 2002. The appellant, thereafter preferred a writ petition before this Court. A learned Judge of this Court, vide his order, which is subject matter of the present appeal, was pleased to hold that the writ petition lacks merit and is dismissed. The said letter was served upon the appellant only on 22nd of October, 2002. The appellant, thereafter preferred a writ petition before this Court. A learned Judge of this Court, vide his order, which is subject matter of the present appeal, was pleased to hold that the writ petition lacks merit and is dismissed. The stand of the State-respondents is that the writ petitioner’s application was barred by time and, therefore, they refused to extend the benefit of relaxation on the ground that there is no justification for relaxation. 2. The contention on behalf of the appellant is that no reason had been assigned for rejecting his application. The learned Judge was pleased to hold that before such an argument could be advanced, the appellant-writ petitioner should have demonstrated that any right of the appellant-writ petitioner is affected. The learned Judge further observed that since the appellant-writ petitioner applied beyond the limitation prescribed by the Rules, which was five years, he could not establish his right and once the right is not established, he cannot invoke the discretion of the State for relaxation, in the event of his claim being time barred. It is this matter, which the subject matter of the present appeal. 3. The relevant rule for consideration of appointment on compassionate basis is rule 5 of the Rules, 1974, which reads as follows : “5. It is this matter, which the subject matter of the present appeal. 3. The relevant rule for consideration of appointment on compassionate basis is rule 5 of the Rules, 1974, which reads as follows : “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. (3) Each appointment under sub-rule (1) should be under the condition that the person appointed under sub-rule (1) shall upkeep those other family members of the deceased Government servant who are incapable for their own maintenance and were dependant of the abovesaid deceased Government servant immediately before his death.” 4. A perusal of Rule 5 would show that an application for employment on compassionate basis is to be made within five years from the date of death of the deceased Government servant. A perusal of Rule 5 would show that an application for employment on compassionate basis is to be made within five years from the date of death of the deceased Government servant. There is a proviso conferring power upon the Government for relaxing the time-limit fixed for making such application, where the Government is of the opinion that it causes undue hardship and for dealing with the case in a just and equitable manner. Reading of this rule would demonstrate that the application must be by a competent person, who is competent to make it. A minor, therefore, could not have made application. The time-limit for an application contemplated by the rule, therefore, could only be read to mean ‘by a competent person’, in other words, who has attained the age of majority. In a case, where the applicant is minor, it would not be possible for the minor to make an application for various reasons including that he is minor and as such he cannot be appointed to a post in the Government. Rule 5, therefore, will have to be read in such manner that it gives effect to the policy of the Government, which is to provide employment to a member of the family of a Government employee, who dies in harness, so as to mitigate the hardship. The issue whether the family of the deceased over long passage of time continues to face the hardship, would be examined on the merits of the claim. Rule 8 of the Rules, 1974 itself contemplates that a candidate seeking appointment under the Rules must not be less than 18 years of age at the time of appointment. In the instant case, as averred by the appellant, his mother was uneducated or illiterate, he was a minor though the elder son and there were elder sisters. Therefore, in such cases, considering the object of the Rules, the proviso to Rule 5 must normally be exercised, as for the purpose of dealing with the cases in a just and equitable manner. In exercising such discretion, no doubt, the authority exercising the discretion will examine the record before him. 5. The law on the subject of compassionate appointment is no longer res-integra. The claim for appointment on compassionate basis is on the premise that such person or his family were dependants on the earning of the deceased employee. In exercising such discretion, no doubt, the authority exercising the discretion will examine the record before him. 5. The law on the subject of compassionate appointment is no longer res-integra. The claim for appointment on compassionate basis is on the premise that such person or his family were dependants on the earning of the deceased employee. This claim is considered reasonable, though otherwise it could be violative of Articles 14 and 16 of the Constitution of India. The reason being that the family suffers a sudden crisis on the death of employee, who had served the State and died in service. In Umesh Kumar Nagpal v. State of Haryana and others, (1994) 4 SCC 138 , the Supreme Court was pleased to observe as under : “The appointment on compassionate ground cannot be a source of recruitment. It is merely an exception to the requirement of law keeping in view the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases, the object is to enable the family to get over sudden financial crisis. Such appointments on compassionate ground, therefore, have to be made in accordance with Rules, Regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. This favourable treatment to the dependant of the deceased employee must have clear nexus with the object sought to be achieved thereby, i.e. relief against destitution. At the same time, however, it should not be forgotten that as against the destitute family of the deceased, there are millions and millions of other families which are equally, if not more, destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectation, and the change in the status and affairs of the family engendered by the erstwhile employment, which are suddenly upturned.” 6. The law on the subject has been reiterated in a recent decision of the Supreme Court in M/s Eastern Coalfields Ltd. v. Anil Badyakar and others, (2009) 13 SCC 122. The law, therefore, as declared is that the object of compassionate appointment is to enable a family of the deceased employee who are in penury to tide over the sudden financial crisis and not to provide employment. The law, therefore, as declared is that the object of compassionate appointment is to enable a family of the deceased employee who are in penury to tide over the sudden financial crisis and not to provide employment. Mere death of an employee therefrom by itself does not entitle his family to compassionate appointment. At the same time, the Supreme Court has observed in S. Mohan v. Government of T.N., (1998) 9 SCC 485 , that the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. The Supreme Court in Haryana State Electricity Board v. Naresh Tanwar, (1996) 8 SCC 23 , observed as follows : “It has been indicated in the decision of Umesh Kumar Nagpal that compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. In the other decision of this Court in Jagdish Prasad case, it has been also indicated that the very object of appointment of dependent of deceased employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years. 7. This Court in several decisions has taken note of the fact of an application being made by a member of the family on attaining majority. In Manoj Kumar Saxena v. District Magistrate, Bareilly and others, 2000 (2) UPLBEC 1694 , the learned Judge of this Court considered the various other judgments holding that when an application is being moved for appointment on compassionate basis of a member of the family on attaining majority, because he was minor at the time of the death of his father, it cannot be said that there was delay in moving the said application by the petitioner for consideration. In our opinion, that really may not be a correct reading of the rule as that would contemplate that the rule would stand suspended till such time a minor attains majority and thereafter the minor within 5 years on attaining majority could make application. In our opinion, that really may not be a correct reading of the rule as that would contemplate that the rule would stand suspended till such time a minor attains majority and thereafter the minor within 5 years on attaining majority could make application. No provision whether it be primary or sub-ordinate legislation must be read even if it be a beneficial piece of legislation which has the effect of adding words against the expression of language of the provision. The proviso, in our opinion, which confers power to relax the delay in making an application within five years, also must be read to include consideration of an application even after expiry of 5 years if the applicant was a minor at the time of death of the deceased employee and makes an application within reasonable time of attaining majority. 8. The power to relax itself contemplates that in a particular case, the matter has to be dealt with in a just and equitable manner. In other words, the test to be applied is does the family of the deceased continue to suffer financial distress and hardship occasioned by the death of the breadwinner so as to relax the period within which the application could be made. These are matters of fact, which the competent authority would have to consider. In the instant case, what we find is that the application was rejected merely because it was beyond the time prescribed. 9. The learned Judge, while dismissing the writ petition was pleased to hold that the appellant-writ petitioner was unable to establish his right, therefore, he was not entitled to invoke the extra-ordinary jurisdiction of this Court. The right of compassionate appointment does not confer a right, but it does give rise to the legitimate expectation in a person covered by the Rule that his application should be considered, if otherwise he meets with the requirement. Once that be the case, an applicant whose claim is rejected can invoke the extra-ordinary jurisdiction of this Court. 10. In our opinion, therefore, the application moved by the appellant was maintainable. No purpose at this stage will be served by remitting the matter back to the authority for re-consideration. The record would show that the appellant had made out a case for invocation of the power in the authority to waive the time for moving the application. 10. In our opinion, therefore, the application moved by the appellant was maintainable. No purpose at this stage will be served by remitting the matter back to the authority for re-consideration. The record would show that the appellant had made out a case for invocation of the power in the authority to waive the time for moving the application. That, however, does not mean that the appellant, as a matter of course, should be entitled for being considered for employment under the Rules. The competent authority will have to be satisfied on the basis of the materials before it that the appellant’s case is a fit one for compassionate appointment, which would include consideration of the financial status of the family of the appellant since the time of death of his father till date and whether they continue to exist in penury or financial distress. 11. We may also observe in parting that in such matters, ordinarily the appeals should be disposed of at the threshold itself as they brook no delay. The impugned judgment of the learned Judge is of the year 2003. The appeal is now heard by this Bench in the year 2010, after seven years. It is no doubt true because of the docket explosion, Courts are hard pressed for time. Considering the issue which is penury or financial hardship, ordinarily the matter must be dealt with at the earliest. The authorities also who have to consider the application, must complete this exercise of consideration within six months of the application being received. 12. The appeal is accordingly, allowed. The impugned judgment of the learned Judge dated 5th of February, 2003 and the order dated 28th February, 2002 are set aside. The competent authority, on a copy of this judgment being served on it, to take a decision in accordance with law at any rate not later than eight weeks from today and communicate the same to the appellant. It will be open to the competent authority to call for additional details considering the long passage of time. No order as to costs. ————