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2016 DIGILAW 3672 (ALL)

Santosh Kumar Pandey v. State Of U. P.

2016-11-09

P.K.S.BAGHEL

body2016
JUDGMENT Pradeep Kumar Singh Baghel,J. The petitioner's father was a Constable in Civil Police. He unfortunately died while in harness on 21st February, 1993. The petitioner was minor at that point of time. He passed his High School examination in the year 1997 and after passing High School he moved an application for compassionate appointment. It is stated that the authorities concerned called the medical report and other documents from the petitioner which he duly submitted. It is further stated that the petitioner was also medically examined by the Chief Medical Officer and his report indicates that he was found fit for appointment. 2. The grievance of the petitioner is that for a considerable long time no action was taken by the respondents in spite of their initial order for submission of the requisite documents, etc., nor the petitioner was not communicated any adverse order. Hence, the petitioner preferred Writ Petition No 3125 (SS) of 2010 for a direction upon the respondents for his appointment. The said writ petition was disposed of on 25th January, 2010 by issuing a direction upon the respondents to consider the cause of the petitioner. In compliance of the order of this Court, the impugned order dated 31st March, 2013 has been passed rejecting the claim of the petitioner only on the ground of delay. 3. I have heard learned counsel for the petitioner and learned Standing Counsel. 4. It is contended on behalf of the petitioner that there was no fault on the part of the petitioner and his family as he has completed all the formalities as required by the respondents without any loss of time. Thus, there was inaction on the part of the respondents in not offering appointment to the petitioner. Hence, the petitioner is entitled for relaxation in terms of Rule-5 of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 (for short, the "Rules, 1974"). It is further submitted that the family of the petitioner is still living in indigent circumstances, hence if the appointment is not offered, the family will be put to extreme hardship. 5. Learned Standing Counsel submits that there is laches on the part of the petitioner as after 1997 for the first time he filed a writ petition in the year 2010. 5. Learned Standing Counsel submits that there is laches on the part of the petitioner as after 1997 for the first time he filed a writ petition in the year 2010. He further submits that the appointment on compassionate ground is not a vested right and if the family can survive for a long time, there was no justification to offer appointment on compassionate ground. Moreover, there was no financial hardship to the petitioner and his family. 6. I have considered the rival submissions of learned counsel for the parties and perused the record. 7. Admittedly, the petitioner's father died in a road accident in the year 1993 and the petitioner as soon as passed his High School in 1997, he moved an application for compassionate appointment. The record indicates that the respondents had initiated the process for recruitment of the petitioner by directing him to submit certain documents and getting the petitioner medically examined. These facts clearly indicate that there was no laches on the part of the petitioner at the time of seeking his employment in 1997. However, the record and the impugned order do not indicate that why action has not been taken after 1997. The impugned order is cryptic and the only reason mentioned is that there is a delay. 8. It is a true that in the case of compassionate appointment if a delay occurs, it indicates that the family has tide over the crisis, but this assumption is always subject to the facts and circumstances of each case. If a petitioner successfully demonstrates that even after passing of several years, the family is still living in penurious circumstances and it does not have any source of livelihood or any of its members is not in employment, then the said law of delay cannot be universally made applicable to such hard cases. 9. The issue of delay in the matter of compassionate appointment has also got attention of a Full Bench of this Court in the case of Shiv Kumar Dubey & others v. State of U.P. & others, 2014 (2) ADJ 312 (FB), wherein the Full Bench has culled out some principles in the matter of compassionate appointment. 9. The issue of delay in the matter of compassionate appointment has also got attention of a Full Bench of this Court in the case of Shiv Kumar Dubey & others v. State of U.P. & others, 2014 (2) ADJ 312 (FB), wherein the Full Bench has culled out some principles in the matter of compassionate appointment. The Full Bench has held that although the appointment on compassionate ground is not a vested right and delay always indicates that the family does not need employment, yet if there is sufficient material on record to indicate that the family is still living in indigent circumstances, then the case can be considered. The relevant part of the judgment of Full Bench is extracted herein-below: "(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." 10. In view of the law laid down by the Full Bench, I am of the view that the impugned order does not satisfy the test laid down in the decision of the Full Bench as the authority concerned has not adverted to the issue about the present financial status of the family of the petitioner and merely on the ground of delay his claim has been rejected. 11. In view of the above, the impugned order dated 31st March, 2013 is unsustainable and it is set aside. The matter is remitted to the authority concerned to consider afresh expeditiously, preferably within a period of two months from the date of communication of this order. 12. The petitioner is at liberty to file fresh documents along with a certified copy of this order before the authority concerned to demonstrate that his family is still living in penurious condition. In the event those documents are filed, the authority concerned shall consider the matter and pass the appropriate order in the light of the law laid down by the Full Bench of this Court in Shiv Kumar Dubey (supra) within the aforesaid period. 13. Accordingly, the writ petition is allowed. No order as to costs.