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Allahabad High Court · body

2016 DIGILAW 911 (ALL)

Himanshu Tomar v. State of U. P.

2016-03-10

D.Y.CHANDRACHUD, YASHWANT VARMA

body2016
JUDGMENT The claim of the appellant for being granted compassionate appointment came to be rejected by the second respondent in terms of an order dated 31 March 2015. This was subjected to challenge in a writ petition which has come to be dismissed by the learned Single Judge on 15 May 2015. Resting his judgment on the decision rendered by a Full Bench of this Court in Shiv Kumar Dubey v. State of U.P., [ 2014 (2) ADJ 312 ], the learned Single Judge held that the order impugned suffered from no legal infirmity and that the appellant could not be granted compassionate appointment eight years after the death of his father. 2. The father of the appellant died on 4 July 2007 while working as a constable in the U.P. Police posted at Rampur. At the time of his death the appellant was a minor. From the records placed before the learned Single Judge it appears that the mother of the appellant submitted an application seeking compassionate appointment in his favour on 21 December 2011. Upon attaining the age of majority, the appellant is stated to have submitted an application on 2 July 2013. In this application the appellant disclosed that he had become eighteen years of age and that he had also cleared the Intermediate examination. The respondents, it may be noted, by a communication dated 11 January 2012 had informed the mother of the appellant that her application could not be processed till such time as the appellant attained the age of majority and obtained an Intermediate certificate. The claim of the appellant has since come to be rejected by the order of 31 March 2015. The order of the second respondent records that although the father had died on 4 July 2007, the mother never applied for appointment on compassionate grounds. It further proceeds to note that the family of the deceased constable was receiving Rs. 8,693/- per month as pension. It also took into consideration the land holding of the family and proceeded to turn down the claim for compassionate appointment. 3. Learned counsel for the appellant has sought to contend that the respondents proceeded on an incorrect premise that the application for grant of compassionate appointment had come to be preferred five years after of the death of his father. 3. Learned counsel for the appellant has sought to contend that the respondents proceeded on an incorrect premise that the application for grant of compassionate appointment had come to be preferred five years after of the death of his father. Reference has been made to the application made by the mother of the appellant on 21 December 2011 in this respect. It becomes pertinent to note here that the application dated 21 December 2011 was not one made by the mother for being granted compassionate appointment herself. It was an application seeking grant of compassionate appointment in favour of the appellant. At the time when this application was made the appellant was neither eighteen years of age nor did he possess the Intermediate certificate. Obviously, therefore, the application could neither have been granted nor considered. The said application was in fact not liable to be countenanced at all. 4. The second application which was made by the appellant after attaining the age of majority and having passed his Intermediate examination was of 2 July 2013. This was evidently five years after the death of the father of the appellant. This application, it may be noted, was not a continuation of the earlier application. This obviously not just because the earlier application had already been disposed of on 11 January 2012 but also on account of the fact that the earlier application was itself not liable to be countenanced. We therefore do not find merit in the submissions advanced by the learned counsel on this score. However, we do not propose to rest our judgment on this alone. 5. It is an admitted fact that the father of the appellant died on 4 July 2007. The application for grant of compassionate appointment was liable to be considered by the respondents subject to his fulfilling the minimal requirements for entry into the police force. This required him to be a major and having passed the Intermediate Examination. By the time he became eligible more than five years had elapsed. Bearing in mind the object and purpose of providing compassionate appointment, we find no error in the action of the respondents in turning down the same. 6. Shiv Kumar Dubey after noticing the entire body of precedent on the subject proceeded to formulate the principles which must govern the grant of compassionate appointment. Bearing in mind the object and purpose of providing compassionate appointment, we find no error in the action of the respondents in turning down the same. 6. Shiv Kumar Dubey after noticing the entire body of precedent on the subject proceeded to formulate the principles which must govern the grant of compassionate appointment. For our purposes, the following conclusions recorded by the Full Bench are relevant: "(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. 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." (emphasis supplied)" 7. Bearing in mind the principles of law as laid down by the Full Bench especially the principle that compassionate appointment does not constitute a reservation of a post and that no general right inheres in a member of the family who was a minor at the time of death, to be entitled to appointment upon attaining majority, we find no merit in the claim laid by the appellant. We see no reason to take a view different from what has been expressed by the learned Single Judge in this regard. 8. We see no reason to take a view different from what has been expressed by the learned Single Judge in this regard. 8. We accordingly find no merit in the present special appeal, which shall consequently stand dismissed. Appeal dismissed.