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2012 DIGILAW 363 (ALL)

SANNI v. STATE OF U. P.

2012-02-09

SUNIL HALI

body2012
JUDGMENT Hon’ble Sunil Hali, J.—Father of the petitioner was working as Constable in the police Department. He died in harness on 9.12.1994 leaving behind his widow and three minor sons including the petitioner and one daughter. At the time of death of the petitioner’s father he was about eight years and four months. The post retiral benefits in the shape of pension was sanctioned in favour of the mother of the petitioner which was fixed at Rs. 2698/- per month. Petitioner’s mother moved an application on 15.7.2003 before the S.S.P., Bulandshahar for appointment of his son, the petitioner under the U.P. Recruitment of Dependants of Government Servants (Dying in Harness) Rules, 1974 (hereinafter referred to as the ‘Rules 1974’). She was informed that as and when his son attains the age of majority his application for appointment shall be considered. Thereafter the said application for appointment on compassionate ground has been referred to the State Government for giving relaxation in appointment under dying in harness Rules as the mother of the petitioner has applied after five years from the date of death of the deceased. The said application for giving relaxation was rejected vide order dated 23.2.008 by the State Government. In compliance to the said order, SSP, Bulandshahar vide order dated 24.3.2008 has refused to give relaxation on the ground that the income of the family of the petitioner is sufficient to overcome the financial crisis as such there is no ground for seeking relaxation as provided under the Rule 5 of the Rules 1974. It is this order which is subject-matter of challenge before this Court. 2. Learned Counsel for the petitioner vehemently urged that as the petitioner was a minor at the time of the death of his father, he could not have possibly moved the application for seeking compassionate appointment. The mother of the petitioner filed the application and, therefore, it cannot be said that there was any delay on the part of the petitioner in moving the application. He further submitted that mere grant of pension to the mother of the petitioner cannot be a ground to refuse relaxation of the period prescribed for moving an application and, therefore, the order of the State Government as well as the consequential order passed by S.S.P., Bulandshahar deserve to be set aside. 3. He further submitted that mere grant of pension to the mother of the petitioner cannot be a ground to refuse relaxation of the period prescribed for moving an application and, therefore, the order of the State Government as well as the consequential order passed by S.S.P., Bulandshahar deserve to be set aside. 3. Learned standing counsel, on the other hand, submitted that Rule 5 of the Rules clearly provides that the application for seeking employment on compassionate grounds has to be made within five years from the date of the death of the Government servant and the proviso which empowers the State Government to relax the requirement of time limit if it causes undue hardship in any particular case, cannot be stretched to such an extent so as to provide appointment on compassionate grounds to even those persons who were only eight years of age at the time of death of the deceased employee. He further contended that appointment on compassionate grounds is given to tide over the immediate financial difficulties which the family of the deceased employee may face at the time of his death and, therefore, such appointment cannot be given after a long gap of time. 4. Heard learned counsel for the parties and perused the material on record. 5. Rule 5 of Dying in Harness Rules deals with eligibility criteria and time limit for making application for compassionate appointment. The same is quoted herein below for ready reference as under : “5. 4. Heard learned counsel for the parties and perused the material on record. 5. Rule 5 of Dying in Harness Rules deals with eligibility criteria and time limit for making application for compassionate appointment. The same is quoted herein below for ready reference 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. Provided further that for the purpose of the aforesaid proviso, the person concerned shall explain the reasons and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the application for employment alongwith the necessary documents/proof in support of such delay and the Government shall, after taking into consideration all the facts leading to such delay take the appropriate decision. (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. (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) Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves. (4) Where the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his services may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time.” Rule 8 deals with relaxation from age and other procedural requirements. It would be useful to extract the provisions contained in Rule 8 of Dying in Harness Rules as under : “8. Relaxation from age and other requirements.—(1) The candidate seeking appointment under these rules must not be less than 18 years at the time of appointment. (2) The procedural requirements for selection, such as written test or interview by a selection committee or any other authority, shall be dispensed with, but it shall be open to the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post. (3) An appointment under these rules shall be made against an existing vacancy only.” 6. (3) An appointment under these rules shall be made against an existing vacancy only.” 6. From plain reading of the provisions of Rule 5 (1) of the Dying-in-Harness Rules, it is clear that in a case Government servant dies in harness after commencement of the said rules and the spouse of deceased Government servant is not already employed under Central Government or a State Government or a Corporation owned or controlled by 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 Central Government or State Government, shall be given suitable employment in Government service on a post except the post which is within the purview of U.P. Public Service Commission in relaxation of the normal recruitment rules, if such person - (i) fulfils educational qualification prescribed for the purpose; (ii) is otherwise qualified for Government service; and (iii) makes the application for employment within five years from the date of death of Government servant. However, it is provided that where the State Government is satisfied that the time limit fixed for making 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. However, it is further incumbent upon the person seeking such relaxation to explain the reasons and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the application for employment alongwith the necessary documents/proof in support of such delay. 7. The object and purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is not proper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant. The essential features of the Scheme of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. The essential features of the Scheme of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. There is no vested right in a person to claim appointment on compassionate grounds. 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 after the lapse of time and after the crisis is over. If the financial crisis continues to persist for considerable period of time the claimant would be well within his right to seek such appointment even though beyond the period of time fixed under the Rules 1974. 8. Harmonious construction of the aforesaid rules, reveals that in case, a member of family of deceased Government servants makes an application under Dying in Harness Rule before he attains the age of 18 years or an application is moved on his behalf before attaining age of 18 years, although such candidate cannot be given appointment unless he attains the minimum prescribed age of Government employment i.e. 18 years, but his application should not be rejected out rightly. In that eventuality, application should be kept pending and has to be considered on merit only after the applicant attains 18 years of age. 9. The only question that calls for determination in this case is as to whether in case where the application for seeking compassionate appointment is made after the expiry of five years when the applicant attains the age of majority can the relaxation be granted in that situation. 10. For this purpose, it is important to examine the import of Rule-5 of Rules 1974 which has been quoted herein above. Proviso to Rule 5 clearly empowers the Government to dispense with or relax the requirement as it may consider necessary for dealing with the case. The area of consideration and the parameters laid down therein are required to be determined on the question of undue hardship which is likely to be caused in the family in case no such relaxation is made. The area of consideration and the parameters laid down therein are required to be determined on the question of undue hardship which is likely to be caused in the family in case no such relaxation is made. Hardship in this context is co-related to the financial exigencies. What possibly could be the areas in finding out the hardship would in my opinion be as to whether the existing resources of the family are sufficient to overcome the financial crisis of the family. In this behalf it is important to examine the resources of the family and whether it is sufficient to meet the requirement of the said family. This is an area where the Government has been empowered to grant relaxation after considering the undue hardship which is likely to be faced by the family to order such relaxation. However, proviso to said rules also provide that the person concerned shall explain the reasons and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the application for employment alongwith the necessary documents/proof in support of such delay. Onus cast on the applicant is to only state the reasons for delay in making the application. Combined reading of the two proviso provides (a) that the Govt. has been empowered to dispense with or relax the time limit fixed for making application for compassionate appointment; (b) in cases where it finds undue hardship in a particular case to the family denied such employment; (c) the delay in filing the application beyond the period of five years to be explained by the applicant. 11. Applying this principle to the present case, it be seen that delay in making the application in the present case is implicit. Petitioner’s application has been filed only after the petitioner has acquired the eligibility to be appointed i.e. after attaining the age of 18 years. This delay in filling the application was inevitable. No explanation was required to be given by the applicant in this behalf as he would not be entitled to any such appointment. Even if on application for grant of compassionate appointment would have been made before the expiry of five years even then petitioner could not have been appointed as he did not qualify the eligibility of the age. No explanation was required to be given by the applicant in this behalf as he would not be entitled to any such appointment. Even if on application for grant of compassionate appointment would have been made before the expiry of five years even then petitioner could not have been appointed as he did not qualify the eligibility of the age. The delay in filing the said application is explained by the fact that he was not eligible for appointment during that period. 12. Regarding the undue hardship which applicant would suffer on account of denial of appointment, it be seen from the record that the mother of the petitioner at the time of filing the application for appointment of petitioner on compassionate ground has filed various affidavits which are part of the record, wherein she has declared that her monthly income as on the date of filing of the applicant was 2028/-. The contents of the application have been got verified by the respondents through the revenue officer. It is revealed from the report submitted by the S.D.M., Meerut that the family of the deceased consists of widow aged about 36 years, the petitioner aged about 18 years, two minor sons aged about 16 and 12 years respectively and one minor daughter aged about 14 years. All these facts stand verified by the respondents. From the aforesaid facts, it clearly emerges that only source of Income of the petitioner as on today is the family pension which is Rs. 2028/- per month which as on today stands revised as Rs. 2698/-. There is no other source of Income as indicated by the petitioner. The question that falls for consideration is as to whether the family of five person can possibly sustain on the Income provided to the family by way of family pension. Prima facie this in my view would not be sufficient to meet the requirement of the family consisting of five persons. Findings recorded by the S.S.P. that the sources of family are sufficient to meet the requirement of the family has been done arbitrarily and without application of mind. 13. From the aforesaid discussion, following things emerges that the Government has been empowered to dispense with or relax the time limit provided for making the application. Findings recorded by the S.S.P. that the sources of family are sufficient to meet the requirement of the family has been done arbitrarily and without application of mind. 13. From the aforesaid discussion, following things emerges that the Government has been empowered to dispense with or relax the time limit provided for making the application. Such relaxation can be granted in case undue hardship is caused to the family on account of not providing the job to the member of the family. The Government is the competent authority who is required to examine the financial position of the family not only on the date when the sole bread earner died but on the date the said application is filed if such financial position remained unchanged and denying the employment would result in undue hardship to the family. Relaxation can be granted in such cases. I say so because the rule in itself provides that it can be relaxed or dispensed with only if the competent authority is satisfied that undue hardship shall be caused to the family if the appointment is not provided. In assessing this position no time limit has been provided. This in my opinion is in consonance with the object and policy of providing compassionate appointment to the dependants of deceased employee. 14. In the instant case, the competent authority appears to be more concerned with precise details and seems not to have seen the wood for the trees. It proceeded oblivious of the consideration whether widow would be able to sustain herself and her five minor children with the meagre amount of family pension. The word ‘livelihood’ means the money, people need to pay for food, a place to live, clothing, etc. according to the dictionary meaning. The underlying object behind the beneficial legislation is to ensure that the pot of the family keeps boiling and the family is able to maintain itself in a condition like the one prevailing at the time when bread earner was alive. Livelihood/maintenance implies a kind of permanent character. These were the factors, which the competent authority was required to reckon with. Livelihood/maintenance implies a kind of permanent character. These were the factors, which the competent authority was required to reckon with. It brooks no dispute that catena of decision both by the Apex Court and this Court converge to the settled position that person cannot claim appointment on compassionate ground under the scheme as a matter of right but authorities at the same time were bound to apply liberally the object of beneficial legislation and to traverse upon all the relevant aspects in order to determine whether the applicant was entitled to get appointment on compassionate ground. In these matters, the decision tempered with compassion is the requirement and not the blinkered approach unconcerned with fair play, compassion and justice. The recording of reason is yet another aspect constituting an essential component of natural justice, which all the authorities exercising power under the scheme or rules are required to do. As stated supra, a cryptic order has been passed and no reasons have been assigned. The basic principle of Constitution makes it imperative for administrative authorities clothed with the duty to decide something on consideration of policy or scheme, to act judicially as a hedge against arbitrariness. It is in this conspectus that reasons are the imperative requirements for an administrative authority and in the instant case, the authorities having not assigned any reason, have acted in antagonism of the basic principles of the Constitution and as such the order cannot be sustained. 15. In view of aforesaid discussion, I allow this writ petition. The impugned order is hereby quashed. Respondents are directed to consider the case of the petitioner for grant of compassionate appointment after dispensing with the requirement of filing the application within five years from the date of death of the deceased. However, before ordering such relaxation the competent authority will be well within its right to enquire about the financial position of the family. In this behalf it will examine the sources from where the family is sustaining till date. Declared source of Income of the petitioner being family pension, in my opinion is not sufficient to over come the financial crisis sustained by the family. In case, in addition to this Income, other source of Income is available that aspect alone will be examined by the competent authority. Declared source of Income of the petitioner being family pension, in my opinion is not sufficient to over come the financial crisis sustained by the family. In case, in addition to this Income, other source of Income is available that aspect alone will be examined by the competent authority. Decision be taken in this behalf within a period of two months from the date of production of certified copy of this order. In case, no decision is taken within a period of two months it shall be presumed that there is no other source of income except the pension which is inadequate to sustain the family. The order of appointment shall be issued in favour of the petitioner. Compliance report shall be submitted to the registry by or before 1.5.2012. ——————