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2014 DIGILAW 3318 (ALL)

ARJUN SINGH v. STATE OF U. P.

2014-11-10

SUNITA AGARWAL

body2014
JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard Shri Mohit Kumar, learned counsel for the petitioner and learned Standing Counsel. The petitioner is seeking compassionate appointment on account of death of his father on 27.6.1998 while he was posted as constable in civil police. The deceased employee had left behind his widow, one minor son i.e. petitioner and four minor daughters as his dependants. Petitioner being the eldest son of the deceased employee has applied for compassionate appointment on 6.7.2010 on attaining the age of majority. He was only 8 years old at the time of death of the deceased employee. 2. The application was rejected on the ground that the request for compassionate appointment has been made after 12 years of the death of employee. Further his mother i.e. widow did not apply for appointment. The family has overcome financial crisis. Moreover, the appointment on compassionate ground being in the nature of an exception to the general provisions, therefore, granting appointment to the petitioner would be against the scheme and spirit of such appointment. As the family has survived for a substantial period of 12 years, there was no necessity to favour the petitioner. It was also observed that the family receives income from six bighas of land apart from terminal benefits after death of the incumbent. It was found that there was no justification to relax the time limit of 5 years under first proviso to Rule 5 of Uttar Pradesh Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974 (“the Rules 1974”). 3. Challenging the order dated 19.6.2013, the learned counsel for the petitioner submits that the petitioner’s mother was an illiterate lady and has somehow managed to sustain with five minor children after death of the employee. She is doing menial work to pull family for survival. There was no occasion for the petitioner to move application before attaining majority and as such the period of five years from the death of the employee could not have been taken into consideration for rejection of the claim of petitioner. No other family member was available for appointment at the time of death of his father. The period of five years has no applicability in the present case. No other family member was available for appointment at the time of death of his father. The period of five years has no applicability in the present case. Further submission is that consideration of the financial condition of the family in the order impugned is misplaced inasmuch as 6 bighas of land is a joint holding of the petitioner as well as his uncles. Two uncles of the petitioner are in joint possession of 6 bighas of land and hence income from the said land cannot be treated sufficient to meet the need of the family. Object of compassionate appointment to rehabilitate the family due to death of the bread earner has not been taken into consideration by the respondent authority. The family is still lying under financial straits and hence claim has been rejected on irrelevant grounds. He placed reliance upon the judgments in Manoj Kumar Saxena v. District Magistrate, Bareilly and others, (2000) 2 UPLBEC 1694 ; Pramod Kumar Rajak v. Registrar General, High Court, Allahabad and others, 2011(9) ADJ 651 ; Ajay Kumar Sonkar v. State of U.P., 2013(2) ADJ 447 (LB), decided on 5th February, 2013. And Division Bench judgment in Pushpendra Singh v. Regional Manager U.P.S.R.T.C. Aligarh and another, 2000 (1) ESC 448 (All). 4. Placing reliance upon these judgments, learned counsel for the petitioner submits that law laid down by a Division Bench in the case of Subhash Yadav v. State of U.P. and others, (2011) 1 UPLBEC 494 and Vivek Yadav v. State of U.P. and others, 2010 (7) ADJ 1 , has not been considered wherein it has been held that the application for compassionate appointment moved by a minor on attaining majority cannot be rejected on the ground of delay. As proviso under Rule 5 of the Rules 1974 empowers the State Government to relax the time period of five years and hence the application cannot be rejected blind foldedly, if it has been moved after five years. The application has to be considered on merits and the consideration on the penury shall be objective and requires proper evaluation of financial crisis of the family to deny compassionate appointment. 5. The application has to be considered on merits and the consideration on the penury shall be objective and requires proper evaluation of financial crisis of the family to deny compassionate appointment. 5. On the basis of judgment in Pramod Kumar Rajak (supra), learned counsel for the petitioner submits that while considering financial stringency, it is not open for the appointing authority to take into account the terminal dues of deceased Government servant received by the family for the refusal of compassionate appointment to a member of his family. 6. The question of appointment of a minor dependant of the deceased Government servant under Rules 1974 is no longer res integra. A full Bench of this Court in Shiv Kumar Dubey and others v. State of U.P. and others, 2014(2) ADJ 312 (FB), has answered the following question referred to it; “Whether the judgments in Subhash Yadav v. State of U.P., 2010 (10) ADJ 289 (DB) and Vivek Yadav v. State of U.P. and others, 2010 (7) ADJ 1 , on the interpretation of the provisions of Rule (iii) and the proviso thereto read with Rule 8 of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, lay down the correct position of law?” While answering the aforesaid questions, following principles have been formulated to govern compassionate appointment under Dying in Harness Rules 1974; (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. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an 26 C.M.W.P. No. 13102 of 2010 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. 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.” 7. It was further observed that the judgment of Division Bench in Vivek Yadav (supra) and Subash Yadav (supra) are not reflected of the correct position in law. It was held that in cases where the applicant is a minor, the discretionary power conferred by first proviso to Rule 5 has to be exercised in a just and equitable manner. The second proviso to Rule 5 requires an application of mind while invoking the powers of dispensation or relaxation under the first proviso of the time limit of five years to make out a case of undue hardship by elucidating in writing with necessary documentary evidence and proof, the reasons and justification for the delay. The Government may, in an appropriate case, when it is satisfied on the basis of material that a case of undue hardship, exercised the power which is conferred upon it under the first proviso to Rule 5 of the Rules 1974 but this power has to be exercised where a demonstrated case of undue hardship is made out to the satisfaction of the State Government. Thus, in view of the above observations, the law laid down in the judgments relied upon by the learned counsel for the petitioner is of no help to the petitioner. 8. In the facts of the present case, the Government employee died on 27.6.1998. Admittedly at the time of death of his father, the petitioner was 8 years old. The petitioner had attained majority in the year 2008 and had applied for compassionate appointment only on 6.7.2010 i.e. 12 years after the death of the employee and 2 years after attaining majority. Admittedly at the time of death of his father, the petitioner was 8 years old. The petitioner had attained majority in the year 2008 and had applied for compassionate appointment only on 6.7.2010 i.e. 12 years after the death of the employee and 2 years after attaining majority. For the period of 2 years, the explanation of the petitioner is that he was doing graduation and moved application for compassionate appointment after completing his graduation. The application of the petitioner has been rejected on 19.6.2013 and the present writ petition has been filed after more than a year on 20.8.2014. The petitioner has failed to provide any explanation for not approaching authorities earlier i.e. soon after attaining majority and further for approaching this Court after a period of more than a year after rejection of his claim. 9. This apart the present case is a case where the family has been able to survive for a period of more than 12 years and hence the immediate financial crisis resulting due to death of bread earner is over. The principles of consideration for compassionate appointment as indicated in various decisions of the Supreme Court and this Court have been firmly settled and have been reiterated from time to time. The very object of appointment of a dependent of the deceased employee who died in harness is to relieve unexpected immediate hardship caused to the family by sudden demise of the earning member of the family. Since, the death occurred way back in 1998, when the petitioner was 8 years old, it cannot be said that he is entitled to be appointed after attaining majority long thereafter where the family has survived for long. The circumstances must be seen by the competent authority who may consider for such appointment, which is not to be ordinarily granted. The burden lies on the applicant where there is a delay in making an application within the period of 5 years to establish a case giving reasons and justification supported by documentary and other evidence. 10. In the present case, the applicant/petitioner has not been able to show any reason or justification for the delay in moving application for compassionate appointment. The case of the petitioner was considered by the competent authority and it was found that the petitioner has failed to make out any ground to relax the statutory period of 5 years. 10. In the present case, the applicant/petitioner has not been able to show any reason or justification for the delay in moving application for compassionate appointment. The case of the petitioner was considered by the competent authority and it was found that the petitioner has failed to make out any ground to relax the statutory period of 5 years. The decision taken by the competent authority is based on the objective considerations on appreciation of the full facts and hence cannot be disturbed by this Court. 11. The Apex Court in State Bank of India and another v. Somvir Singh, (2007) 4 SCC 778 , has held as follows : “The competent authority while considering the application had taken into consideration each one of those factors and accordingly found that the dependants of the employee who died in harness are not in penury and without any means of livelihood. The authority did not commit any error in taking the terminal benefits and the investments and the monthly family income including the family pension paid by the Bank into consideration for the purposes of deciding as to whether the family of late Zile Singh had been left in penury or without any means of livelihood. The scheme framed by the appellant Bank in fact mandates the authority to take those factors into consideration. The authority also did not commit any error in taking into consideration the income of the family from other sources viz. the agricultural land. In our considered opinion, the High Court itself could not have undertaken any exercise to decide as to what would be the reasonable income which would be sufficient for the family for its survival and whether it had been left in penury or without any means of livelihood. The only question the High Court could have adverted itself to is whether the decision-making process rejecting the claim of the respondent for compassionate appointment is vitiated? Whether the order is not in conformity with the scheme framed by the appellant Bank? It is not even urged that the order passed by the competent authority is not in accordance with the scheme. It is well-settled that the hardship of the dependant does not entitle one to compassionate appointment dehors the scheme or the statutory provisions as the case may be. It is not even urged that the order passed by the competent authority is not in accordance with the scheme. It is well-settled that the hardship of the dependant does not entitle one to compassionate appointment dehors the scheme or the statutory provisions as the case may be. The income of the family from all sources is required to be taken into consideration according to the scheme which the High Court altogether ignored while remitting the matter for fresh consideration by the appellant Bank. It is not a case where the dependants of the deceased employee are left “without any means of livelihood” and unable to make both ends meet. The High Court ought not to have disturbed the finding and the conclusion arrived at by the appellant Bank that the respondent was not living hand-to-mouth. As observed by this Court in G.M. (D&PB) v. Kunti Tiwary, the High Court cannot dilute the criterion of penury to one of “not very well-to-do”. The view taken by the Division Bench of the High Court may amount to varying the existing scheme framed by the appellant Bank. Such a course is impermissible in law”. 12. The same principle has been reiterated in State Bank of India and others v. Jaspal Kaur, (2007) 9 SCC 571 , in Paragraph 25 of the said report this Court observed that : Also we are of the view that the specially constituted authorities in the rules or regulations like the competent authority in this case are better equipped to decide the cases on facts of the case and their objective finding arrived on the appreciation of the full facts should not be disturbed. Both the Benches of the High Court that heard this present matter have erred in entertaining the claim of the respondent and allowing the claim of the respondent. This was the view taken in a recent decision of this Court in Union Bank of India v. M.T. Latheesh, where the Court observed that: (SCC p. 365, para 37) “Learned Single Judge and the Division Bench by directing appointment has fettered the discretion of the appointing and selecting authorities. This was the view taken in a recent decision of this Court in Union Bank of India v. M.T. Latheesh, where the Court observed that: (SCC p. 365, para 37) “Learned Single Judge and the Division Bench by directing appointment has fettered the discretion of the appointing and selecting authorities. The Bank had considered the application of the respondent in terms of the statutory scheme framed by the Bank for such appointment.” For the aforesaid reasons, this Court does not find good reason to interfere in the order dated 19.6.2013 passed by the Senior Superintendent of Police, Meerut and hence the writ petition is dismissed. No order as to costs. —————