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2015 DIGILAW 2151 (ALL)

Durgesh Kumar Upadhayay v. State of U. P.

2015-07-28

ANIL KUMAR

body2015
JUDGMENT Anil Kumar, J. Heard learned counsel for petitioner, learned State counsel and perused the record. 2. By means of the present writ petition, the petitioner has challenged the impugned order dated 04.04.2013 passed by O.P. No. 2 as well as order dated 22.08.2013 passed by O.P. No. 5. 3. Facts in brief of the present writ petition, the petitioner's father while working on the post of Constable, died during his tenure of services on 30.04.1993, as there is no other member to earn livelihood for the deceased family, so after becoming major, the petitioner in the year 2009 submitted an application for considering his case for compassionate appointment under Dying-in-Harness Rules, rejected by order dated 04.04.2013 passed by O.P.No. 2 on the ground of delay. 4. In regard to matter for compassionate appointment, the Full Bench of this Court in the case of Shiv Kumar Dubey Vs. State of U.P. and others, 2014 (1) UPLBEC 589 , while considering the provisions of compassionate appointment as given under under Rule 5 of U.P. Recruitment of Dependants of Government Servants Dying In Harness Rules, 1974 held 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. 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. 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. 30. As regards the judgment of the Division Bench in Vivek Yadav (supra), the first part of the judgment of the Division Bench in Vivek Yadav's case holds in paragraph 4 that since Rule 5 contemplates an application by a competent person, in a case where the applicant is a minor, it will not be possible for a minor to make an application during the period of his minority. Therefore, considering the object of the Rules, it was held that the proviso to Rule 5 must normally be exercised in such cases. This observation, with respect, requiring that the proviso to Rule 5 must normally be exercised for the purpose of dealing with a case in a just and equitable manner would not be reflective of the correct position in law. The subsequent decision in Subhash Yadav (supra) only holds that the Government cannot dismiss an application which has been moved after five years blindfolded but has to apply its mind rationally to all the facts and circumstances of the case. In this regard, we clarify that the second proviso to Rule 5 requires an applicant, who invokes the power 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 the material that a case of undue hardship is made out, exercise the power which is conferred upon it under the first proviso to Rule 5 of the Rules but this power has to be exercised where a demonstrated case of undue hardship is made out to the satisfaction of the State Government. We answer the reference accordingly in the aforesaid terms.” 5. We answer the reference accordingly in the aforesaid terms.” 5. From the perusal of the impugned order, the admitted position which emerged out that the case of the petitioner has been rejected only on the ground of delay, thus the same is not in accordance with the guide-lines and parameters as laid down by Full Bench of this Court in the case of Shiv Kumar Dubey (Supra), so the same is liable to be set aside. 6. For the foregoing reasons, the writ petition is allowed and the impugned order dated 04.04.2013 passed by O.P. No. 2 as well as order dated 22.08.2013 passed by O.P.No. 5 are set aside and the petitioner is permitted to move fresh representation in respect to his grievances which he has raised in the present writ petition as per Rule 6 of the U.P. Dying in Harness Rules , annexing all relevant documents and materials in support of his case to O.P. No. 1/Principal Secretary, Department of Home, Civil Secretariat, Lucknow within two weeks from today and after receiving the same, O.P. No. 1 shall consider and dispose of by way of speaking and reasoned order in view of the observations made hereinabove within a further period of eight weeks thereafter.