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2016 DIGILAW 1713 (ALL)

Pratima Pandey v. State of U. P.

2016-05-04

UMESH CHANDRA SRIVASTAVA, V.K.SHUKLA

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JUDGMENT Pratima Pandey is before this Court assailing the validity of the order dated 31.3.2016 passed by the learned Single Judge in Writ Petition No.13312 of 2016, Pratima Pandey v. State of U.P. and two others wherein the learned Single Judge has proceeded to make a mention that the date of death of incumbent, who has died in harness, is 31.5.2000; application seeking compassionate appointment has been moved in the year 2015; and once the family of the petitioner has been able to survive for more than 15 years after the death of the incumbent, the compassionate appointment could not be offered. 2. Counsel for the appellant, Sri Virendra Singh, has submitted before us that earlier married daughters had been excluded from the definition of family and, in view of this, the application in question has not been filed well within time frame provided for and, in this backdrop, learned Single Judge ought to have considered such fact while deciding claim for grant of compassionate appointment. 3. On the other hand, learned Standing Counsel has countered this submission by submitting that the object of providing compassionate appointment is to save the family from immediate crisis on account of death of bread earner and once the record shows that the family of the deceased has been able to survive for more than 15 years after the death of the incumbent then the compassionate appointment cannot be claimed as a vested right/reserved right for all the times to come, as such, special leave deserves to be dismissed. 4. After respective arguments have been advanced, we have gone through the order so passed by learned Single Judge and the learned Judge has clearly mentioned that death has taken place on 31.5.2000; application seeking compassionate appointment has been filed in 2015 along with affidavit of petitioner's brother dated 31.8.2015. Petitioner was not minor and claim is clearly barred. At this juncture, the view point of Apex Court as well of this Court is being looked into: - "The Supreme Court in the case of State of J & K and others v. Sajad Ahmed Mir reported in AIR 2006 SC 2743 in paragraph 17 has held as under: "17. In the case on hand, the father of the applicant died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. In the case on hand, the father of the applicant died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was dismissed by the learned single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. The said fact was indeed a relevant and material fact which went to show that the family survived in spite of death of the employee. Moreover, in our opinion, the learned single Judge was also right in holding that though the order was passed in 1996, it was not challenged by the applicant immediately. He took chance of challenging the order in 1999 when there was inter-departmental communication in 1999. The Division Bench, in our view, hence ought not to have allowed the appeal." 5. A Full Bench of this Court while deciding Special Appeal No.356 of 2012, Shiv Kumar Dubey v. State of U.P. and others and other connected cases has formulated the principles governing appointments on compassionate grounds under the Dying in Harness Rules, 1974. The principles elucidated in para 29 of the judgment read as follows: - "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 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." 6. On the basis of parameters that has been so settled, it is clearly reflected that an incumbent has died-in-harness on 31.5.2000, application for grant of compassionate appointment has been moved in the year 2015, i.e., after a lapse of more than 15 years, and in view of this, once the family of petitioner has been able to survive for such sufficiently long period then in case any appointment is directed to be accorded, the same would be totally running counter to the spirit of providing compassionate appointment as object of providing compassionate appointment is to save the family from immediate crisis and compassionate appointment cannot be claimed as a matter of right and delay defeats such a right conferred upon incumbent. In view of this, we are of the view that there is no error in the opinion that has been so formed by the learned Single Judge. 7. Thus, this appeal sans merit, and is dismissed accordingly. Appeal dismissed.