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2014 DIGILAW 1545 (ALL)

Pravendra Pratap Singh v. State of U. P.

2014-05-12

AJAI LAMBA

body2014
JUDGMENT Ajai Lamba, J. 1. This writ petition seeks issuance of a writ in the nature of certiorari quashing order dated 14.2.2012 passed by opposite party No. 2, i.e., Director General of Police, U.P., Lucknow, placed on record as Annexure-1. 2. A perusal of order Annexure-1 indicates that in deference to order dated 12.7.2011 issued by this Court in Writ Petition No. 3944 (S/S) of 2011, Munni Devi and others v. State of U.P. and others, claim of the petitioner for appointment on compassionate grounds under Dying in Harness Rules, 1974 (for short "Rules of 1974") has been considered and rejected by the respondents. 3. The petition also seeks issuance of a writ in the nature of mandamus directing respondent No. 2 to reconsider the claim of the petitioner for his appointment on compassionate grounds while taking into account the educational qualification etc. of the petitioner in context of a suitable post. 4. Facts, in brief, are that one Ram Veer Singh, father of the petitioner was appointed as Constable in U.P. Police in the year 1973. The said person was subsequently promoted to the post of Sub Inspector of Police. Sri Ram Veer Singh died in harness on 13.3.2011. 5. It is not in dispute that Ram Veer Singh was earlier married to Vindeshwari Devi. While the said marriage was subsisting, the said Ram Veer Singh got married to Munni Devi in the year 1976. It has further been stated in the petition that Smt. Vindeshwari Devi gave birth to Gagan Pratap Singh and Ravis Kumari. The petitioner, Pravendra Pratap Singh and Ramendra Pratap Singh are the two biological sons from Munni Devi, the alleged second wife of the Government servant, Sri Ram Veer Singh. 6. In para 8 of the writ petition, it has been mentioned that Gagan Pratap Singh S/o. Ram Veer Singh, born of the first wife, is employed as Wireless Operator in the Army and Ravish Kumari, the daughter, is also married and is living with her husband. Both the said children are not dependent on Ram Veer Singh within the meaning of "dependent" under the Rules of 1974. 7. It has further been stated that Smt. Vindeshwari Devi, the legally wedded wife of the deceased Government servant is being maintained by Gagan Pratap Singh. 8. Both the said children are not dependent on Ram Veer Singh within the meaning of "dependent" under the Rules of 1974. 7. It has further been stated that Smt. Vindeshwari Devi, the legally wedded wife of the deceased Government servant is being maintained by Gagan Pratap Singh. 8. In para 8 of the writ petition, it has been stated that biological mother of the petitioner, Munni Devi was in service. The second marriage was null-and-void. 9. In the first round of litigation, Smt. Munni Devi, Ramendra Pratap Singh and the petitioner (the two biological sons of Munni Devi), filed Writ Petition No. 3944 (S/S) of 2011, Smt. Munni Devi and others v. State of U.P. and others, to claim benefits flowing from the death of Sri Ram Veer Singh to the extent of 50%. In the petition, further prayer was made that the case of the petitioner be considered for appointment on the post of Sub-Inspector of Police or some other suitable post under the Rules of 1974. The writ petition was disposed of vide order dated 12.7.2011. The order is relevant to be considered for adjudication of the issue raised in this petition and, therefore, is being extracted here in below: "The petitioner No. 2 (Pravendra Pratap Singh) being the son of the first wife of the deceased claims compassionate appointment in service in place of the deceased claiming himself entitled as has been held by this Court in view of the law laid down in the case of Kum. Priti v. State of U.P. and others, 2005 (2) UPLBEC 1194 . As is evident from the aforesaid judgments, this Court has interpreted Section 16 of the Hindu Marriage Act and has made entitlement to even illegitimate child born out from the wedlock of the deceased for compassionate appointment. Thus, there is no dispute that the petitioner is entitled for compassionate appointment. I am informed that the son of the second wife of the deceased is already in service. However, for running the livelihood of the family, it is utmost important to provide the compassionate appointment to the petitioner. The petitioner has claimed well within time. Thus, there is no dispute that the petitioner is entitled for compassionate appointment. I am informed that the son of the second wife of the deceased is already in service. However, for running the livelihood of the family, it is utmost important to provide the compassionate appointment to the petitioner. The petitioner has claimed well within time. Under these circumstances, a writ in the nature of mandamus is issued to the Director General of Police, Lucknow, i.e., opposite party No. 2 to consider the petitioner for compassionate appointment being the son of the deceased within reasonable period, say, within two months from the date of receipt of a certified copy of this order. With the aforesaid direction, the writ petition is disposed of finally." (Emphasis supplied by me.) 10. It has been pleaded that order dated 12.7.2011, extracted above, was not challenged by the respondents and, therefore, is binding. 11. In view of the order passed by the writ court, claim of the petitioner has been decided, however, rejected vide impugned order. 12. A perusal of the impugned order would indicate that the order takes into account the fact that the deceased Government servant Ram Veer Singh got married twice; Munni Devi, biological mother of the petitioner was in employment with monthly income of  Rs. 27,239. The other fact taken into account for denying claim of the petitioner is that biological mother of the petitioner was in service and this fact had been concealed by the petitioner so as to gain employment. In the impugned order reliance had been placed on Rule 5 of Rules of 1974 to say that employment is provided under the Rules of 1974 to provide relief in circumstances of immediate financial hardship. In the case in hand, because the biological mother of the petitioner was in service, petitioner who happens to be the elder son could not take benefit of Rules of 1974 to claim employment. 13. I have heard learned counsel for the parties. 14. On the strength of such facts, it has been vehemently argued by learned counsel appearing for the petitioner, Sri R.C. Saxena, Advocate, that the petitioner being the only unemployed person in the family, was dependent on the income of the deceased and, therefore, has the right to be given employment under the Rules of 1974. 15. 14. On the strength of such facts, it has been vehemently argued by learned counsel appearing for the petitioner, Sri R.C. Saxena, Advocate, that the petitioner being the only unemployed person in the family, was dependent on the income of the deceased and, therefore, has the right to be given employment under the Rules of 1974. 15. Learned counsel appearing for the petitioner has pointed out that the second marriage is illegal. Under the circumstances, Munni Devi could not be considered as a Member of the family of the deceased Ram Veer Singh. Right of the petitioner under Rules of 1974, being as the son of Munni Devi could not have been denied. 16. It has been vehemently argued that the petitioner has a right to be employed under Dying-in-Harness Rules, 1974 in context of the fact that he is the son of deceased Ram Veer Singh. In this regard, reliance has been placed on a judgment dated 22.12.2004 rendered in Civil Writ Petition No. 55348 of 2004. Priti (Kumari) v. State of U.P. and others. Particular reference has been made to paras 4 and 6 of the said judgment, which are extracted herein below: "4. Learned standing counsel submits that a Government servant under the Rule 29 of the U.P. Government Servants (Conduct) Rules, 1956 is not entitled to marry while his first wife is alive and that the children born out of such second marriage cannot be recognised to be legitimate for the purposes of employment under the Rules of 1974. Section 11 of the Hindu Marriage Act, 1955 declares the second marriage, while first wife is alive under Section 5(i) to be a void. Section16 of the Hindu Marriage Act, 1955, however, provide that notwithstanding that the marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born on or after commencement of the Marriage Laws (Amendment) Act, 1976 and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under the Act. 6. The Rules of 1974, have been made as a welfare measure, to provide employment to the dependants of the Government servant dying in harness provided other conditions are fulfilled. 6. The Rules of 1974, have been made as a welfare measure, to provide employment to the dependants of the Government servant dying in harness provided other conditions are fulfilled. The definition of word 'family' in Rule 2(2) includes wife or husband, sons, unmarried and widowed daughters and if the deceased was unmarried Government servant, brother, unmarried sister and widowed mother dependent on deceased the Government servant. The word 'unmarried' or 'widowed daughter' in the Rule 2(c)(iii) cannot exclude daughters who are declared to be legitimate under Section 16(1) of the Hindu Marriage Act, 1955. Section 16 was substituted by Act No. 68 of 1976. The protection given to such children, who are not to be blamed for the illegitimacy of the second marriage, must be given a wide interpretation to the Rules of 1974, by way of a measure of social welfare. The first wife of the deceased Government servant Smt. Ram Kumari Devi did not have any issue. Both the widows have given affidavits expressing no objection to the compassionate appointment, and that both of them have jointly obtained certificates, for succession for the funds from the Court of Civil Judge (S.D.) in Misc. Case No. 75 of 2002, decided on 18.1.2003." 17. Learned counsel appearing for the respondents have relied on a Full Bench judgment of this Court rendered on February 6, 2014 in Special Appeal No. 356 of 2012, Shiv Kumar Dubey v. State of U.P. and others, to say that financial condition of the petitioner is good, his biological mother being in employment and because the said person namely Munni Devi would have obtained substantial retiral benefits. Circumstances point out that the other son of Ram Veer Singh, namely Gagan Pratap Singh is employed as Wireless Operator and, therefore, present is not a case in which it could be said that there is immediate financial crisis in the family, that has been caused on account of death of Sri Ram Veer Singh. 18. I have considered the rival contentions. 19. It is the admitted case that the deceased Government servant, in whose place petitioner seeks employment on compassionate grounds, was first married with Smt. Vindeshwari Devi and had two issues out of the wedlock. It further transpires that Gagan Pratap Singh, son born out of the first marriage, is gainfully employed. 20. 18. I have considered the rival contentions. 19. It is the admitted case that the deceased Government servant, in whose place petitioner seeks employment on compassionate grounds, was first married with Smt. Vindeshwari Devi and had two issues out of the wedlock. It further transpires that Gagan Pratap Singh, son born out of the first marriage, is gainfully employed. 20. Munni Devi who happens to be the second wife of Ram Veer Singh, was also employed deriving substantial salary and after retirement would have gotten substantial retiral benefits. Petitioner is son of Munni Devi. 21. On perusal of judgment rendered in Priti Kumari's case (supra) it becomes clearly evident that the petitioner has a right to be considered for employment on compassionate grounds under the Rules of 1974, he being the son of the deceased Government servant, although illegitimate. 22. There is a difference between a right to be considered for appointment under Rules of 1974; and having a right to employment under the said rules. 23. Referring to the above extracted judgment rendered in Writ Petition No. 3944 (S/S) of 2011 it transpires that the fact that biological mother of the petitioner was gainfully employed, was not specifically brought to the notice of the Court during arguments and, therefore, the said fact is not recorded in the order. 24. Learned counsel for the petitioner has pointed out that the fact that Munnni Devi was gainfully employed, had been mentioned in the pleadings. However, the illegitimate child of Ram Veer Singh, would have a claim in regard to the property of Ram Veer Singh. Under the circumstances, the fact that Munni Devi was gainfully employed cannot be taken into account to deny appointment to the petitioner under the Rules of 1974. 25. The Rules of 1974 appear to provide an exception to the ordinary norm of employment in public service. Ordinarily to seek entry in public service, 'equality before law' is required to be considered as the basic tenet. Article 16 of the Constitution of India clearly provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The petitioner seeks employment to an office in the State without competition, as an exceptional case in terms of Rules of 1974. 26. Article 16 of the Constitution of India clearly provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The petitioner seeks employment to an office in the State without competition, as an exceptional case in terms of Rules of 1974. 26. The Rules of 1974, provide an exception, the main reason being that on the death of a Government servant, the family might face financial hardship. So as to alleviate and mitigate the hardship these rules have been framed. Certain conditions have been provided in the rules, which are required to be considered by the State before providing employment under the Rules of 1974. Rule 6 of the said Rules provides the contents of application for employment. The application is required to clearly state the date of death of the deceased Government servant; name, age and other details pertaining to all the members of the family of the deceased, particularly about their marriage, employment and income; details of financial condition of the family and the educational and other qualifications of the applicant. The most relevant factor for invoking the rules for giving employment on compassionate grounds is the financial condition of the family. 27. In case it is concluded by the respondents that the financial condition of a family is good and there is no emergent financial hardship, even though claimant happens to be a member of the family of the deceased Government servant, he would not be entitled to appointment on compassionate grounds. Compassion is directly related to a misfortune that has stricken a family. So as to alleviate the suffering, appointment is given under the exception carved out under the Rules. 28. The entire controversy in the present case is required to be considered in the above context. 29. In the case of Shiv Kumar Dubey v. State of U.P. and others, Special Appeal No. 356 of 2012, this Court in para 29 has culled out principles which may govern compassionate appointment in pursuance of Rules of 1974. Para 29, when extracted, reads as under: "29. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules: (i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. Para 29, when extracted, reads as under: "29. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules: (i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved; (ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules; (iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner; (iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment; (v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out: (vi) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner; (vii) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the Government: (viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family." (Emphasis supplied by me) 30. A perusal of above extracted portion from the judgment rendered in Shiv Kumar Dubey's case (supra) in context of the facts of the present case makes it clear that--(a) a provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public appointment; (b) there is no general or vested right to compassionate appointment; and (c) the object and purpose of providing compassionate appointment is to enable the dependent members of the family of the deceased Government servant to tide over the immediate financial crisis because of the death of the bread earner. To determine whether a family is in financial crisis, all relevant aspects must be borne in mind including income of the family and terminal benefits received by the family. Age, dependency and marital status of its members including income from any other source of Government servant. 31. This Court is of the considered opinion that the contention of the learned counsel is fanciful, frivolous and irrational to the purpose for which the Rules of 1974 have been framed. Claim of the petitioner is required to be considered in context of the financial hardship being faced by the petitioner. 32. Biological mother of the petitioner has been gainfully employed all her life and was drawing substantial salary, as noted above. In such circumstances, it cannot even be imagined that the petitioner is facing immediate financial crisis because of death of the bread earner namely Ram Veer Singh. 33. 32. Biological mother of the petitioner has been gainfully employed all her life and was drawing substantial salary, as noted above. In such circumstances, it cannot even be imagined that the petitioner is facing immediate financial crisis because of death of the bread earner namely Ram Veer Singh. 33. In this regard the Court also taken into account the fact that in the earlier litigation, viz. Writ Petition No. 3944 (S/S) of 2011, petitioner alongwith Munni Devi claimed a writ of mandamus to seek 50% of the total amount payable to the first wife of Ram Veer Singh, his legitimate son and daughter. It is, therefore, evident that the cause of the petitioner is common with that of Munni Devi. A reference to the memo of parties in the said writ petition indicates that the petitioner has been living in the same house/household as Munni Devi. 34. It, thus, becomes apparent that financial requirements of the petitioner are being taken care of by his biological mother Munni Devi. Surely, there has not been any financial crisis which would entitle the petitioner to employment on compassionate grounds. 35. Petitioner is trying to invoke a fiction to say that because marriage of Munni Devi with Ram Veer Singh was a void marriage, the claim of the petitioner cannot be considered in context of the petitioner being son of Munni Devi. In the considered opinion of this Court the said contention cannot be accepted. The financial condition of the petitioner was primarily required to be seen by the respondents so as to consider whether petitioner deserves to be appointed under the Rules of 1974. This exercise has been conducted and the Court finds no legal infirmity in the reasons given for rejecting the claim of the petitioner. 36. The exception carved out under the Rules cannot be utilised by a person such as the petitioner, whose biological mother has sufficient financial means. Claim of the petitioner to seek appointment under the Rules of 1974 do not flow, only because he has a right to employment under the Rules of 1974, but the claim has to be considered also in context of financial hardship. 37. Claim of the petitioner to seek appointment under the Rules of 1974 do not flow, only because he has a right to employment under the Rules of 1974, but the claim has to be considered also in context of financial hardship. 37. Thus, it is concluded that although the petitioner, who is an illegitimate child of a deceased employee who died in harness, has a right to be considered for employment under the Rules of 1974, however, in the case of the petitioner, in peculiar facts and circumstances of the case, noted above, the impugned order cannot be faulted. No ground to judicially review the impugned order is made out for the reason that relevant facts and circumstances have been taken into account. The reasons given for denying claim of the petitioner are legal, valid and are not capricious in any way. The petitioner has no case in equity to seek relief under extraordinary writ jurisdiction. 38. The petition is accordingly dismissed.