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2017 DIGILAW 308 (ALL)

HINA v. STATE OF U. P.

2017-01-23

MANOJ KUMAR GUPTA

body2017
JUDGMENT Hon’ble Manoj Kumar Gupta, J.—Heard counsel for the petitioner, learned standing counsel for respondents 1, 2, 3 and 6 and Sri Sanjay Kumar Singh for respondents 4 and 5. With their consent, this writ petition is being disposed of finally without inviting a formal counter-affidavit. 2. By impugned order dated 15 February 2016, the first respondent has informed the Director, Basic Education, U.P. Lucknow and the Secretary, Basic Shiksha Parishad, U.P. Allahabad about rejection of the request made by the petitioner for condonation of delay in filing application under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (The Rules) while seeking appointment on compassionate basis. The impugned order refers to the decision of the Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana and others, 1994 SCC (L&S) 930, wherein it is held that the object of compassionate appointment is to enable the family to get over the financial crisis which it faces at the time of death of the sole breadwinner. Consequently, compassionate appointment cannot be claimed or granted after lapse of time and after the crisis is over. Reference has also been made to another decision of the Supreme Court in Sanjay Kumar v. State of Bihar and others, SLP (C) No. 12876 of 2000, decided on 28.8.2000, wherein claim of a minor seeking employment on compassionate basis, after attaining majority, has been rejected. It has been observed that there cannot be reservation of a vacancy till the applicant becomes a major and thus, in the absence of any specific provision, claim of such person should not be considered. 3. Apart from referring the aforesaid two decisions of the Supreme Court, it has further been held that the mere fact that the petitioner was a minor when her father died, is not sufficient to condone the delay. It has further been observed that some other dependent of the deceased could have filed the application earlier. 4. Learned counsel for the petitioner submitted that her father died on 11 May 2009 because of cancer, while in harness. Thereafter, her younger brother and mother met with an accident and they also died on 19.11.2011 and 19.12.2011 respectively. The petitioner attained majority on 18.6.2014 and thereafter filed application seeking appointment on compassionate basis on 4.9.2014. 4. Learned counsel for the petitioner submitted that her father died on 11 May 2009 because of cancer, while in harness. Thereafter, her younger brother and mother met with an accident and they also died on 19.11.2011 and 19.12.2011 respectively. The petitioner attained majority on 18.6.2014 and thereafter filed application seeking appointment on compassionate basis on 4.9.2014. It is submitted that in such circumstances, the petitioner has filed the application soon after she attained majority. It is submitted that after the death of the father of the petitioner, there was no one left in the family who could have sought employment. It is further submitted that in the impugned order, there is absolutely no consideration of the fact that the mother and younger brother of the petitioner have died in the year 2011 and thus even as on date, there is no bread-earner in the family. Learned counsel for the petitioner has placed reliance on a Full Bench judgement of this Court in Shiv Kumar Dube and others v. State of U.P. and others, 2014(1) ESC 547. 5. On the other hand, learned counsel for the respondents submitted that since the application was filed with considerable delay, therefore, it has been rightly rejected. 6. I have considered the submissions made by learned counsel for the parties and perused the record. 7. The father of the petitioner admittedly died on 11 May 2009 while in harness. The petitioner has brought on record the death certificates issued by Nagar Palika Parishad, Kannauj certifying death of Tajul, younger brother of the petitioner and Smt. Tahira Begum, mother of the petitioner on 19.11.2011 and 19.12.2011 respectively. It is the specific case of the petitioner that after their death, she is the only member left in the family to seek employment. Her sister who is alive, is younger to the petitioner. The petitioner upon attaining majority on 18.6.2014 filed application on 4.9.2014. In Shiv Kumar Dube (supra) the Full Bench of this Court after considering the entire law on the subject as well as the provisions of the Rules as applicable in the State, has held as under : “28. In a Judgment of a Division Bench of this Court consisting of Hon’ble Mr. Justice Sunil Ambwani and Hon’ble Mr. In Shiv Kumar Dube (supra) the Full Bench of this Court after considering the entire law on the subject as well as the provisions of the Rules as applicable in the State, has held as under : “28. In a Judgment of a Division Bench of this Court consisting of Hon’ble Mr. Justice Sunil Ambwani and Hon’ble Mr. Justice Amreshwar Pratap Sahi delivered on 7 May 2010 in Union of India and others v. Smt. Asha Mishra and another, C.M.W.P. No. 13102 of 2010, the same principle was formulated in the following observation: “The principles of consideration for compassionate appointment have been firmly settled and have been reiterated from time to time. Compassionate appointment is not a vested right or an alternate mode of employment. It has to be considered and granted under the relevant rules. The object of compassionate appointment is to tide over an immediate financial crisis. It is not a heritable right to be considered after an unreasonable period, for the vacancies cannot be held up for long and that appointment should not ordinarily await the attainment of majority. Where the family has survived for long, its circumstances must be seen before the competent authority may consider such appointment. It is not to be ordinarily granted, where a person died close to his retirement.” 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 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. 30. As regards the judgment of the Division Bench in Vivek Yadav (supra), the first part of the judgment of the Division Bench in Vivek Yadav’s case holds in paragraph 4 that since Rule 5 contemplates an application by a competent person, in a case where the applicant is a minor, it will not be possible for a minor to make an application during the period of his minority. Therefore, considering the object of the Rules, it was held that the proviso to Rule 5 must normally be exercised in such cases. This observation, with respect, requiring that the proviso to Rule 5 must normally be exercised for the purpose of dealing with a case in a just and equitable manner would not be reflective of the correct position in law. The subsequent decision in Subhash Yadav (supra) only holds that the Government cannot dismiss an application which has been moved after five years blindfolded but has to apply its mind rationally to all the facts and circumstances of the case. In this regard, we clarify 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 but this power has to be exercised where a demonstrated case of undue hardship is made out to the satisfaction of the State Government. We answer the reference accordingly in the aforesaid terms.” 8. We answer the reference accordingly in the aforesaid terms.” 8. Thus, it has been held that under the first proviso to Rule 5, the State Government is invested with the power to condone delay in moving application beyond the prescribed period of five years. The said power is to be exercised judiciously keeping in mind various factors as brought on record before it. It has been held that in case of demonstrated hardship, it is well within power of the State Government to condone the delay in filing the application. The application cannot be rejected blindfolded, without applying mind to all the facts and circumstances. 9. In the instant case, the facts on record reveal that the mother and brother of the petitioner had died in a road accident in the year 2011. A perusal of the impugned order does not reveal that any of these factors have been taken into consideration. The reasoning given in the order that some one else in the family could have applied for compassionate appointment, if the petitioner was a minor at that time, totally ignores from consideration the factor which have been brought on record, which clearly demonstrates that there was no one left in the family to seek appointment on compassionate basis, except the petitioner. 10. In the opinion of the Court, it is a fit case where the State should objectively consider the hardship which the petitioner is likely to face, in case delay in filing the application is not condoned. In the opinion of the Court, the impugned order dated 15.2.2016 which does not take into consideration the relevant factors, cannot be sustained and is hereby quashed to the extent it relates to the petitioner. 11. The writ petition is accordingly allowed. 12. The matter is remitted back to the first respondent for reconsideration of her application seeking condonation of delay within a period of two months from the date of production of a certified copy of this order. It shall be open to the petitioner to file a fresh representation alongwith the evidence on basis of which she is seeking condonation of delay and in which event, the same shall be considered in accordance with law.