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2013 DIGILAW 755 (UTT)

Prabhakar Manori v. State of Uttarakhand

2013-11-26

ALOK SINGH

body2013
Judgment Alok Singh, J. Undisputedly, petitioner’s father Shri Vijay Prasad Manori was working as Forest Guard; Shri Vijay Prasad Manori, father of the petitioner, died on 29.07.2004; petitioner applied for the appointment under dying-in-harness Rules; petitioner was appointed on the post of Forest Guard vide order dated 16.06.2009, under the dying-in-harness Rules. 2. Later on, it came to the knowledge of the Department that mother of the petitioner, in other words, wife of the government servant, i.e. Shri Vijay Prasad Manori, namely, Smt. Padma Manori was working with the Education Department of Govt. of Uttarakhand at the time of death of Vijay Prasad Manori. A show cause notice was issued to the petitioner as to why his initial appointment may not be revoked since same was in violation of Rule 5(1) of U.P. Dying in Harness Rules, 1974 (hereinafter referred to ‘1974 Rules’) as applicable in the State of Uttarakhand. Petitioner furnished his explanation. Ultimately, impugned order was passed revoking the initial appointment of the petitioner and terminating his services. Feeling Aggrieved, petitioner has approached this Court. 3. Rule 5(1) of 1974 Rules as applicable in the State of Uttarakhand, 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…….” 4. Having perused Rule 5(1) of 1974 Rules, I have no hesitation to hold that compassionate appointment can only be granted in favour of unemployed family members of the government employee if spouse of the deceased employee was not working with Central Government or State Government departments or undertakings. 5. Hon’ble Apex Court in the case of Bhawani Prasad Sonkar Vs. Having perused Rule 5(1) of 1974 Rules, I have no hesitation to hold that compassionate appointment can only be granted in favour of unemployed family members of the government employee if spouse of the deceased employee was not working with Central Government or State Government departments or undertakings. 5. Hon’ble Apex Court in the case of Bhawani Prasad Sonkar Vs. Union of India and others reported in (2011) 4 SCC 209 in para 20 has held as under :- “Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind: (i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme. (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the bread winner while in service therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be. (iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee, viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.” 6. As per the dictum of the Apex Court, compassionate appointment can only be granted as per the existing rules and regulations and can not be granted by way of largesse dehors the Rules and Regulations. 7. Rule 5(1) of 1974 Rules did not permit appointment to the petitioner since his mother was already in Government services. Therefore, appointment itself was per se illegal. Therefore, revocation of such appointment which was per se illegal cannot be faulted with. 8. 7. Rule 5(1) of 1974 Rules did not permit appointment to the petitioner since his mother was already in Government services. Therefore, appointment itself was per se illegal. Therefore, revocation of such appointment which was per se illegal cannot be faulted with. 8. The argument of the learned counsel for the petitioner that he was not aware that he had to show to the department that his mother was already working with the government department, therefore, no fault can be attributed to the petitioner, does not stand good in view of Rule 6 of 1974 Rules which provides that names, age and other details pertaining to all the members of the family of the deceased, particularly about their marriage, employment and income has to be shown. Therefore, petitioner was duty bound to make clear that his mother was working in the State Govt. department. 9. Consequently, writ petition fails and is dismissed.