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2016 DIGILAW 1517 (ALL)

ROHIT SINGH BHADORIYA v. STATE OF U. P.

2016-04-24

ASHWANI KUMAR MISHRA

body2016
JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—Ranvir Singh Bhadoriya, petitioner’s elder brother was employed as Assistant Accountant with the U.P. Dakshinanchal Electricity Distribution Company, who met with an accident. The employee concerned as well as his wife Smt. Archana Bhadoriya both died on10.1.2015,leaving behind their two minor children namely Amay Bhadoriya aged about 9 years and Km. Aarna Bhadoriya aged about 4 years. Elderly parents of the deceased employee as well as unmarried brother of the deceased i.e. the petitioner are the one left to look after the minor children. An application for grant of compassionate appointment to the present petitioner, who is the real younger brother of the deceased employee was filed, stating that he is an unemployed brachelor taking care of the children, and in the peculiar facts and circumstances, as there exists none else to take care of the minor children, compassionate appointment be granted to him. The application was filed by the father of the deceased employee. Peculiar facts and circumstances of the family were high lighted for the purposes of grant of compassionate appointment. The claim for grant of compassionate appointment was processed at the level of the Corporation and was forwarded by the Executive Engineer to the Superintending Engineer on 21.3.2015. After considering the claim, with the approval of higher authorities, an order came to be passed by the Superintending Engineer on 8.4.2015, granting compassionate appointment to petitioner. Pursuant to such order, petitioner joined and is working in the respondent corporation as a Class-III employee. The Superintending Engineer vide his order dated 17.3.2016, has proceeded to terminate petitioner’s services on the ground that compassionate appointment offered to petitioner was contrary to the applicable Regulations of 1975, inasmuch as brother is not a part of the family. It is this order which is under challenge in the present writ petition. 2. Learned senior counsel for the petitioner submits that the order impugned carries civil consequences and as no opportunity of hearing has been provided to the petitioner, as such, it is bad in law. He further contends that this case is peculiar inasmuch as not only deceased employee but his wife has also died in the same accident, leaving behind two minor children. Submission is that grant of compassionate appointment is a means to tide over sudden difficulties created for the family. He further contends that this case is peculiar inasmuch as not only deceased employee but his wife has also died in the same accident, leaving behind two minor children. Submission is that grant of compassionate appointment is a means to tide over sudden difficulties created for the family. In the present case, grant of compassionate appointment was necessary to ensure education and healthy upbringing of both the minor children, since their grand parents may not be able to take care of them due to their old age and ill health. Appointment offered to petitioner thus, was to subserve the object of grant of compassionate appointment. It is contended that only after due consideration of such facts and materials available on record, the order of compassionate appointment was issued with the approval of senior officers and it could not have been cancelled, in the manner as has been done. 3. A short counter affidavit has been filed in which it is stated that only un-married brother can constitute part of ‘family’ under the rules if the deceased employee was a bachelor at the time of death, which was not the case here, and in the absence of any enabling provision in the rules, offering of appointment to the petitioner was bad in law. 4. I have heard Shri Ashok Khare, learned Senior Advocate for the petitioner and Shri Anil Kumar Srivastava and Baleshwar Chaturvedi for the respondents and have perused the records. 5. Grant of compassionate appointment to dependent of an employee dying in harness is governed by the provisions of ‘Uttar Pradesh Rajya Vidyut Parishad Sewakal Me Parishadiya Sewakonke Ashriton Ki Bharti Niyamawali, 1975 (hereinafter referred to as Rules of 1975). Rules define ‘family’ under Section 2(c), which does not include a brother. By way of an amendment made on 5.7.2012, a dependent unmarried brother of the deceased employee who was himself a bachelor has been included in the definition of family. From the perusal of rules as well as in view of the admitted facts of the present case, the petitioner was not a member of the ‘family’ inasmuch as the deceased was not a bachelor. In such circumstances, this Court finds that the appointment offered to petitioner was not in accordance with the provisions of 1975 Rules. From the perusal of rules as well as in view of the admitted facts of the present case, the petitioner was not a member of the ‘family’ inasmuch as the deceased was not a bachelor. In such circumstances, this Court finds that the appointment offered to petitioner was not in accordance with the provisions of 1975 Rules. A perusal of the rules further go to show that in order to deal with exceptional circumstances, jurisdiction is vested under Rule-10 of the Rules of 1975, in the State Government or the Board, to relax the provisions of rules either in public interest or if considered necessary due to undue difficulty caused in attaining objective of rule. Rule-10 of the Rules of 1975 reads as Under : 10- jkT; ljdkj vFkok ifj"kn bl fu;ekoyh ds fdlh micU/k ds dk;kZUo;u esa fdlh dfBukbZ dks ¼ftlds fo|eku gksus ds ckjs esa og ,dek= fu.kkZ;d gksxh½ nwj djus ds iz;kstukFkZ dksbZ ,slk lkekU; ;k fo'ks"k vkns'k ns ldrh gS ftls og mfpr O;ogkj ;k yksdfgr esa vko';d ;k lehphu le>saA 6. Compassionate appointment can be offered in term of the rules to a dependent member of the family only. In the facts of the present case, none of the existing member of the family can be offered compassionate appointment, inasmuch as grand parents are above 60 years and the other two members are minor. If the rules are to be strictly applied, no compassionate appointment can be offered to a member of the family, and they would be left in penury or without any means of livelihood. This clearly would not subserve the object for which rules have been framed. It is with an intent to deal with such exigencies that power has been conferred upon the State Government and Board to issue directions to remove difficulty. 7. This Court, in the special facts and circumstances of this case is inclined to hold that the matter ought to have been referred to the competent authority for due consideration of cause under Rule-10, and petitioner’s claim could not have been rejected. 8. In the present case, however, no decision of the Board exists on record. In the opinion of the Court, therefore, interest of justice would be served by remitting the matter to the Board for consideration of petitioner’s claim for grant of compassionate appointment, considering the peculiar facts and circumstances of the case. 8. In the present case, however, no decision of the Board exists on record. In the opinion of the Court, therefore, interest of justice would be served by remitting the matter to the Board for consideration of petitioner’s claim for grant of compassionate appointment, considering the peculiar facts and circumstances of the case. The required consideration shall be made by way of reasoned and speaking order, within a period of 2 months from today. Since the order impugned has, otherwise, been passed without affording any opportunity of hearing to the petitioner, therefore, the order impugned dated 17.3.2016 is set aside. Petitioner’s continuance in the employment of the respondent-corporation, shall abide by the decision to be taken by the Board, in this regard. 9. With the aforesaid observation, petition stands disposed of.