Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 2868 (ALL)

Amar Parasher v. State of U. P.

2016-08-20

SUNITA AGARWAL

body2016
JUDGMENT Sunita Agarwal, J. 1. By means of the present petition, the petitioner is challenging the order dated 03.03.2015 passed by the respondent no.1 namely the Secretary, Department of Home Affairs (Police), Government of U.P., Lucknow, whereby the claim of the petitioner for compassionate appointment has been rejected on the ground of delay. Reference has been made to the judgements of the Apex Court in Umesh Kumar Nagpal Vs. State of Haryana and others, (passed in SLP (C) No.10504/1993) and Sanjay Kumar Vs State of Bihar and others, (passed in SLP (C) No.12876 of 2000) wherein it was held that the compassionate appointment is granted to enable the family to get over the financial crisis faced at the time of death of sole bread earner of the family. There cannot be any reservation of vacancy till the dependent of the deceased employee attain majority. No right can be claimed by the dependent for appointment on compassionate ground. Lastly it was observed in the order impugned that there was no justification for grant of relaxation for appointment of the petitioner. 2. Challenging the order impugned, submission of learned counsel for the petitioner is that the petitioner's father died on 13.12.2004, his mother could not claim appointment for the reason that both the petitioner and his sister were minor and no-one was there in the family to lookafter them. The mother of the petitioner made an application on 29.09.2005 before the Superintendent of Police, Firozabad making request for compassionate appointment of the petitioner as soon as he attain majority. 3. The petitioner's mother had applied for appointment on 24.12.2012 as soon as he attained majority. The application was forwarded to the competent authority on 21.03.2013 by the Superintendent of Police, Firozabad. A report dated 22.07.2014 was submitted by the Circle Officer, Hariparvat Agra that the family of deceased was getting extraordinary pension of approximately 8550/- per month, there was no other source of income. There are three female dependants of the deceased employee namely wife, mother and daughter of the deceased, apart from the petitioner. The daughter of the deceased employee is still studying. At the time of death of the employee, the petitioner was barely 10 years of age, the delay has occurred in making application as the petitioner was minor. As soon as he attained majority and completed graduation, the petitioner moved application for compassionate appointment. The daughter of the deceased employee is still studying. At the time of death of the employee, the petitioner was barely 10 years of age, the delay has occurred in making application as the petitioner was minor. As soon as he attained majority and completed graduation, the petitioner moved application for compassionate appointment. The family is still facing hardship on account of death of sole bread earner. The pension of a meager amount of Rs.10346/- per month is not sufficient for them. Moreover, the aged mother of the deceased is also alive. 4. All these factor have not been taken into consideration and the application has been rejected mechanically on the ground of delay. No reason has been assigned for refusal to grant relaxation of the period of five years under first proviso to Rule 5 of the U.P. Recruitment of Dependants of Government Servant Dying-in-Harness Rules, 1974 (herein after referred as Rules 1974). Reliance is placed upon the judgement of Full Bench of this Court in Shiv Kumar Dubey and others Vs. State of U.P. and others, 2014 (2) ADJ 312 (FB) as also the judgement in Sangita Vishwakarma Vs. State of U.P. and others, 2015 (1) ADJ 262 . 5. Learned standing counsel on the other hand submits that the application for compassionate appointment moved by the petitioner was rejected on due consideration to the circumstance disclosed in the application itself. No case of undue hardship is made out and hence the order impugned does not require any interference. 6. Having heard learned counsel for the parties and perused the records. 7. The Full Bench of this Court in the case of Shiv Kumar Dubey (Supra) has formulated the principles which must be followed in consideration of the claim of compassionate appointment in accordance with dying-in-harness Rules, 1974 which are 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. 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. 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. 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. 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." 8. It is lastly observed in paragraph no.30 by the Full Bench that Rule 5 of Rules, 1974 contemplates an application by a competent person within 5 years. However, in a case where the applicant is a minor, it will not be possible for him to make an application during the period of his minority. Considering the object of the Rules, an application which has been moved after five years cannot be rejected blindfoldly nor can be allowed merely because the applicant was minor at the time of death of the employee who moved application soon after attaining majority. An application of mind rationally to all the attending circumstance of the individual case is required. It is clarified 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, 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. 9. But this power has to be exercised where a demonstrated case of undue hardship is made out to the satisfaction of the State Government. 9. Considering the fact and circumstances of the present case, it is found that the petitioner had applied soon after attaining majority and certain material was placed before respondent no.1 to make out the case of undue hardship for grant of relaxation under first proviso to Rule 5. However, it appears that respondent no.1 has rejected the claim of the petitioner only on two grounds that the wife of the deceased did not apply for compassionate appointment and second was of delay and it is concluded that no case for relaxation under first Proviso to Rule 5 is made out. The hardship being faced by the family of the deceased employee is reflected from the enquiry report submitted by the Enquiry Officer namely the Circle Officer, Hariparvat Agra, as per the Government Order dated 23.02.2014 and 17.07.2014. It is indicated that the family is still facing financial crisis. They are dependent only upon the pension which is a meager amount of Rs.10,346/-. There are three female dependants of the deceased including his old mother and the family has no other source of income. 10. All these attending circumstances have not been found reference in the order impugned at all. The rejection order dated 03.03.2015 passed by respondent no.1, therefore, cannot be sustained and is hereby quashed. The matter is remanded back to respondent no.1 to take a fresh decision on the merits of the application giving due consideration to all the attending circumstances and pass a reasoned and speaking order keeping in view the directions given by the Full Bench of this Court in Shiv Kumar Dubey (Supra) expeditiously preferably within a period of three weeks from the date of production of the certified copy of this order. 11. With the above observations and directions, the writ petition is allowed.