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2014 DIGILAW 3530 (ALL)

SANGEETA VISHWAKARMA v. STATE OF U. P.

2014-11-27

SUNITA AGARWAL

body2014
JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard Sri Avinash Chandra Srivastava, learned counsel for the petitioner, Sri Rajesh Kumar Srivastava, learned counsel for respondent No. 3 and learned Standing Counsel. The petitioner’s father was class IV employee in the office of Electricity Fabrication Unit, U.P. Power Transmission Corporation Ltd., Naini, Allahabad. He died in harness on 16.6.1992. After his death, mother of the petitioner was granted compassionate appointment on 20.8.1992. While working as Class IV employee in the respondent department, she died on 7.7.1997 leaving behind her minor daughter, the petitioner. The case of the petitioner is that after death of her parents, her maternal family had looked after her. Her maternal grand father has moved an application on 5.8.1997 indicating therein that the petitioner was minor and was being looked after by him, her claim for compassionate appointment be considered after she attained majority. The petitioner has attained majority on 15.5.2006 and has applied for compassionate appointment on 10.7.2006. She submitted repeated representations till 2013 when her case was considered and rejected vide order dated 22.3.2013. A communication was sent to the petitioner on the same date. By another communication dated 18.6.2013, the applications dated 9.4.2013 and 5.6.2013 of the petitioner, have been rejected on the ground that her claim is barred by time. The ground for rejection of claim of the petitioner on 22.3.2013 and 18.6.2013 is that she has applied after more than five years of death of the deceased employee and hence her claim cannot be considered being barred by time provided under Dying-in-Harness Rules, 1974. Challenging the orders of rejection of claim of the petitioner, the present writ petition has been filed. 2. Learned counsel for the petitioner submits that the petitioner has moved the application for compassionate appointment soon after attaining majority. There was no delay on her part. The period of five years has to be reckoned from the date of attaining majority of the petitioner and not from the date of death of her mother in the year 1997. Admittedly, the petitioner was minor at the relevant point of time and there was no question of her moving application for employment. Further submission is that both the parents of the petitioner died when she was barely nine years old. Admittedly, the petitioner was minor at the relevant point of time and there was no question of her moving application for employment. Further submission is that both the parents of the petitioner died when she was barely nine years old. On account of death of her parents, she has faced undue hardship and somehow with the help of her maternal family, she could manage to complete graduation. As sufficient finance resources were not available, she could not attain higher vocational qualification and has been deprived of seeking public employment. She is merely a graduate and has somehow managed to complete diploma in computer applications from a private institution. As she has been deprived of higher technical qualification, her case deserves to be considered sympathetically. Her application could not have been thrown mechanically on the ground of delay i.e. beyond five years from the death of her mother. It was a fit case for consideration before the appropriate authority for grant of relaxation under first proviso to Rule 5 of Dying-in-Harness Rules, 1974. A perusal of the order indicates that the concerned authority has not applied its mind to the undue hardship faced by the petitioner and rejected her application mechanically. 3. Repelling the submission of learned counsel for the petitioner, Sri Rajesh Kumar Srivastava, learned counsel for respondent No. 3 submits that the petitioner is sole heir of the deceased employee and she had received terminal benefits of the deceased employee including family pension which is admittedly being paid to the petitioner. As she had sufficient finance to pursue her higher studies, it is not a case of undue hardship and her claim was rightly rejected. 4. Having heard learned counsel for the parties and perused the record, this Court finds that sole ground for rejection of the application of the petitioner is delay i.e. application moved beyond five years. The claim of the petitioner for grant of relaxation under first proviso to Rule 5 of the Rules 1974 on the ground of undue hardship contended by her due to death of her parents, has not been considered by the respondent authorities. 5. The claim of the petitioner for grant of relaxation under first proviso to Rule 5 of the Rules 1974 on the ground of undue hardship contended by her due to death of her parents, has not been considered by the respondent authorities. 5. Placing reliance upon a decision of Division Bench of this Court in Subhash Yadav v. State of U.P. and others, 2010 (10) ADJ 289 , learned counsel for the petitioner submits that the respondent cannot dismiss the application which has been moved after five years blind foldedly but for application of their mind rationally on the facts and circumstances of the case. As there is no application of mind the order has to go. 6. The decision of Division Bench in Subhash Yadav (supra) has been considered by a Full Bench of this Court in Shiv Kumar Dubey v. State of U.P. and others, 2014 (2) ADJ 312 , where the question was : 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 5(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? It was held in paragraph ‘30’ that the judgment of Division Bench of this Court in Vivek Yadav v. State of U.P. and others, 2010 (7) ADJ 1 , is no more a good law, whereas considering the tener of the judgment of Subhash Yadav, it was observed that the ratio therein was that the Government cannot reject the application mechanically. The order must reflect the application of mind on the part of the authorities. 7. The Full Bench, thereafter, clarified that for grant of relaxation under the first proviso to Rule 5, the applicant has 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. In case the said documents are produced by the applicant, the Government in an appropriate case can exercise the power for grant of relaxation but this power has to be exercised where a demonstrated case of undue hardship has been made out to the satisfaction of the State Government. 8. In case the said documents are produced by the applicant, the Government in an appropriate case can exercise the power for grant of relaxation but this power has to be exercised where a demonstrated case of undue hardship has been made out to the satisfaction of the State Government. 8. In the present case, applying principles laid down by the Full Bench of this Court, it appears that the petitioner has placed material before the respondent authority to make out a case of undue hardship for grant of relaxation under first proviso to Rule 5. However, from the order impugned, it does not appear that the respondent authority has applied its mind on the material placed before it. As the order does not speak that the petitioner has failed to make out a case for grant of relaxation under second proviso to Rule 5, it cannot be sustained. It is apparent that the petitioner has moved an application immediately after two months of attaining majority. 9. In view of the above, this Court finds that the orders dated 18.6.2013 and 22.3.2013 passed by respondent No. 3 i.e. the Executive Engineer cannot be sustained and are quashed. The matter is remanded back to respondent No. 3 to consider the application of the petitioner filed on 10.7.2006 and take an appropriate decision strictly in accordance with rule 5 of Rules’ 1974 and the direction given by the Full Bench decision of this Court in Shiv Kumar Dubey v. State of U.P. and others (supra) within a period of two months from the date a certified copy of this order is produced before him. It is made clear that the material already placed by the petitioner at the time of moving of the application shall also be taken in consideration in addition to fresh material, if any, placed by the petitioner to show undue hardship caused to her. With the observations made above, the writ petition is allowed. ——————