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2013 DIGILAW 2310 (ALL)

Seema Srivastava v. U. P. Power Corporation

2013-09-16

VIPIN SINHA

body2013
Vipin Sinha,J.:- Heard learned counsel for the parties. From the pleadings as made in the writ petition and from the arguments advanced at the bar, the factual position which crystallizes is as under: 2. The present writ petition has been filed by the petitioner seeking compassionate appointment. The request of the petitioner has been rejected by the respondent vide order dated 08.12.2000. The reliefs sought in the writ petition are as under: ( I) To issue a writ, order or direction in the nature of certiorari quashing the order dated 25.04.2001 passed by the respondent no. 4, contained in Annexure No. 7 to this writ petition. ( II) To issue a writ order or direction in the nature of mandamus commanding the respondents to provide the appointment to the petitioner on any suitable post of Class-III under the Dying in Harness Rule. ( III) Any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. ( IV)Award cost of the writ petition to the petitioner. 3. It appears that the father of the petitioner Late Sri Jagdamba Prasad Srivastava who was working in U.P. State Electricity Board, died on 30.08.1994 while on duty; that after the death of Sri Jagdamba Prasad Srivastava, the brother of the petitioner Sri Pradeep Kumar Srivastava was granted appointment under the provisions of Dying in Harness Rules. However, Sri Pradeep Kumar Srivastava, the brother of the petitioner also expired on 06.10.1995 as per the death certificate, copy of which has been annexed as Annexure-2 to the writ petition; that it was after the death of Sri Pradeep Kumar Srivastava, the brother of the petitioner, an application was filed by mother of the petitioner on 12.11.2009 seeking compassionate appointment of her daughter namely Km. Seema Srivastava, the petitioner. However, it appears that the petitioner herself had moved an application for appointment on compassionate ground after five years. 4. A perusal of the record shows that the request for appointment of Km. Seema Srivastava was rejected by the Competent Authority in the year 2000 itself for the reason that 'sister' does not fall within the definition of family and thus, she cannot be considered for appointment under Dying in Harness Rules. The said order dated 08.12.2000 is on record as Annexure-6 to the writ petition. 5. Seema Srivastava was rejected by the Competent Authority in the year 2000 itself for the reason that 'sister' does not fall within the definition of family and thus, she cannot be considered for appointment under Dying in Harness Rules. The said order dated 08.12.2000 is on record as Annexure-6 to the writ petition. 5. However, vide another letter dated 25.04.2001, the petitioner was again informed that under the relevant Rules, 'sister' does not fall within the definition of family under Dying in Harness Rules, and accordingly her request for compassionate appointment cannot be granted. Thus, it is apparent that it was as far back as on 08.12.2000, the petitioner was duly informed the fact that as 'sister' does not fall within the definition of family as defined in the relevant rules, petitioner's appointment on compassionate ground cannot be granted. 6. Aggrieved against which, the present writ petition has been filed, to which a counter affidavit has been filed on behalf of respondent nos. 1 to 4 in which it has been contended that the petitioner was rightly informed vide order dated 08.12.2000 that she could not be given compassionate appointment because 'sister' does not come within the definition of family as per the relevant rules existing at the time. 7. It has further been mentioned in paragraph no. 7 of the counter affidavit that: "The correct fact is that the entire retiral benefit has been paid to widow of Sri Jagdamba Prasad Srivastava and has been also paid family pension." In paragraph no. 4 of the counter affidavit, it has been mentioned that: "The petitioner, being the sister of Sri Pradeep Kumar Srivastava, cannot be given compassionate appointment. Furthermore, it is pertinent to bring on record that the petitioner moved an application for appointment on compassionate ground after five years of the death of her brother Sri Pradeep Kumar Srivastava." 8. To the aforesaid counter affidavit, a rejoinder affidavit has been filed in which a plea has been taken that "it is to further clarify the aforesaid amended Rule is also applicable in the Corporation, in this regard the Government has issued a Circular on 16th April, 2003. 9. To the aforesaid counter affidavit, a rejoinder affidavit has been filed in which a plea has been taken that "it is to further clarify the aforesaid amended Rule is also applicable in the Corporation, in this regard the Government has issued a Circular on 16th April, 2003. 9. The only ground on which the writ petition was pressed was that the petitioner may be extended the benefit of the subsequent amendment in the rules which came into existence w.e.f. 12.10.2001 but apparently, on the said date, there was nothing pending before the respondent. The same having already been decided as far back in the year 2000. 10. A perusal of the record also shows that Sri Jagdamba Prasad Srivastava, father of the petitioner has expired as far back as on 30.08.1994 leaving behind the following as his legal heirs: 1 Jherh vUuiw.kkZ nsoh iRuh mez 62 o"kZ 2 Jh fufru dqekj mQZ lat; iq= mez 24 o"kZ 3 Jh iznhi dqekj iq= 20 o"kZ 4 dq0 lk/kuk iq=h 34 o"kZ 5 dq0 lhek iq=h mez 22 o"kZ 6 Jherh dkWeh iq=h 36 o"kZ 11. Out of which Sri Pradeep Kumar Srivastava, was given the appointment on compassionate ground but he also expired as far back as in the year 1995. 12. A perusal of Rule-2 of U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 shows that Clause-C was inserted/substituted by Notification No. 6/12-73-Ka-2-2001, dated 12th October, 2001 [Vide U.P. Recruitment of Dependants of Government Servants Dying in Harness ( Sixth Amendment) Rules, 2001 ( w.e.f. 12.10.2001)] and after the said substitution, unmarried sisters have been included in the term family. Clause -C of Rule 2-A of the said Rules reads as follows: "( C) "family" shall include the following relations of the deceased Government servant: ( I) Wife or husband; ( II) Sons; ( III)Unmarried and widowed daughters; ( IV) If the deceased was unmarried Government servant, brother, unmarried sister and widowed mother dependant on the deceased Government servant." 13. However, it is clear from the record and also admitted by the counsel for both the parties that on the date when the impugned order was passed, rejecting the request for compassionate appointment, the said amendment was not in existence and thus no illegality can be attributed to the impugned order rejecting the request for compassionate appointment on the ground on which it was rejected. 14. 14. Nothing has been brought on record, either in the pleadings or in the course of argument that the said amendment in Rule 2-A of the of U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, is retrospective in nature or that the benefit can be given to cases which already have been decided. Needless to say that Clause-C was inserted w.e.f. 12.10.2001. 15. Another important aspect of the matter is that the father of the petitioner was granted compassionate appointment and after his death, the brother of the petitioner was given appointment again on compassionate ground. 16. The brother of the petitioner expired in the year 1995 and the application was filed after a period of five years for seeking compassionate appointment by the petitioner. 17. The writ petition itself was filed in the year 2004 and in the opinion of the Court no indulgence can be given to the petitioner after a period of almost 18 years as the purpose of compassionate appointment is to enable the family of the deceased "to tide over the sudden financial crisis" and not as a special mode of recruitment. 18. Reliance has been placed by the learned counsel for the petitioner on the case of Km. Renu Srivastava Vs. U.P. Power Corporation Ltd. And Ors. Decided on 29.05.2009, Smt. Geeta Srivastava Vs. State of U.P. And Others decided on 28.05.2012 in Civil Misc. Writ Petition No. 5998 of 1998 & U.P. Power Corporation, Urban Electricity Transmission Division-H, Allahabad Vs. Smt. Urmila Devi decided on 27.01.2011 in Special Appeal No. 1026 of 2003. 19. However, it is respectfully submitted that the said rulings will not apply to the facts and circumstances of the present case especially in view of the long lapse of time and in view of the fact that as per the admitted position, no illegality can be attributed to the impugned order with regard to the legal position as on the date, on which, it was passed, because the amendment in Rule-2 came, much after the order has been passed. 20. The Court would like to refer to the judgement of Hon'ble Supreme Court rendered in the case of Life Insurance Corporation of India Vs. Asha Ramchhandra Ambekar; ( 1994) 2 SCC 718 . The relevant extract of which is quoted herein below: "8. 20. The Court would like to refer to the judgement of Hon'ble Supreme Court rendered in the case of Life Insurance Corporation of India Vs. Asha Ramchhandra Ambekar; ( 1994) 2 SCC 718 . The relevant extract of which is quoted herein below: "8. Where the Corporation has acted bona fide and declined to appoint the second respondent, that exercise of power cannot be interfered with. Shortly put, the Corporation cannot be directed by means of a mandamus to do something which is per se illegal. "10. 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. No doubt Shakespeare said in "Merchant of Venice" : "The quality of mercy is not strain'd; It droppeth, as the gentle rain from heaven Upon the place beneath it is twice bless'd; It blesseth him that gives, and him that takes;" These words will not apply to all situations. Yeilding to instinct will tend to ignore the cold logic of law. It should be remembered that "law is the embodiment of all Wisdom". Justice according to law is a principle as old as the hills. The courts are to administer law as they find it, however, inconvenient it may be. 11. At this juncture we may usefully refer to Martin Burn Ltd. v. Corporation of Calcutta'. At page 535 of the Report the following observations are found : "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. "A statute must of course be given effect to whether a Court likes the result or not." The courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, it should never be done." 21. Reference may also be made to another judgement of Hon'ble Apex Court rendered in the case of Umesh Kumar Nagpal Vs. Disregardful of law, however, hard the case may be, it should never be done." 21. Reference may also be made to another judgement of Hon'ble Apex Court rendered in the case of Umesh Kumar Nagpal Vs. State of Haryana And Others; ( 1994) 4 SCC 138wherein it has been provided that: "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. 22. The Court would also like to refer to judgement of the Hon'ble Supreme Court rendered in the case of MGB Gramin Bank Vs. Chakrawarti Singh decided on 07.08.2013 in Civil Appeal No. 6348 of 2013. The Apex Court has observed as under: "7. An ''ameliorating relief' should not be taken as opening an alternative mode of recruitment to public employment. Furthermore, an application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated. 8. The Courts and the Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments." 23. The Court feels that no benefit can be extended to the petitioner with regard to the amendment in the definition of family which came into effect w.e.f. 12.10.2001 and no illegality can be attributed to the impugned order which was passed in accordance with the legal provisions as prevailing on the date on which the order was passed. Even otherwise a period of more than 18 years have already expired and thus, apparently, it can be safely presumed that the period of 'sudden financial crisis' is already over. 24. In view of the aforesaid facts and circumstances of the case, this Court feels that the petitioner is not entitled to grant of any indulgence whatsoever of this Court in exercise of its powers of equitable jurisdiction under Article 226 of the Constitution of India. The writ petition is accordingly dismissed. 24. In view of the aforesaid facts and circumstances of the case, this Court feels that the petitioner is not entitled to grant of any indulgence whatsoever of this Court in exercise of its powers of equitable jurisdiction under Article 226 of the Constitution of India. The writ petition is accordingly dismissed. No order as to costs.