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2018 DIGILAW 1570 (ALL)

GAUTAM KUMAR v. STATE OF U. P.

2018-07-18

SANGEETA CHANDRA

body2018
JUDGMENT Hon’ble Mrs. Sangeeta Chandra, J.—Heard the learned counsel for the petitioner, Sri Ram Sagar Yadav and the learned standing counsel. 2. This writ petition has been filed by the petitioner praying for quashing of the order dated 13.6.2013 passed by the Deputy Inspector General of Police (Establishment), U.P. and the order dated 3.7.2013 passed by the Commandant 39 BN, PAC, Mirzapur. 3. It is the case of the petitioner that the petitioner’s father was working as a Mochi in 39 BN, PAC, Mirzapur and he died in harness on 7.6.2004. The petitioner when he became major, i.e. 18 years of age, filed an application in 2011 for appointment on compassionate ground. In his application, the petitioner clearly stated that immediately after the death of the father of the petitioner - Swami Nath on 7.6.2004, his brother - Govind Prasad had moved an application and he was offered a class IV post, but he declined to accept the same and requested the Authorities by his letter dated 29.7.2008 that his younger brother who was a minor at the time may be given such compassionate appointment after he attains majority. 4. On the application made by the petitioner, the Commandant forwarded the same to the police headquarters on 10.4.2011, certain queries were put by the office of the respondent No. 4 to the respondent No. 5. The respondent No. 5 also recommended the case of the petitioner for relaxation of the time limit prescribed under the dying-in-harness Rules in the proviso (ii) to Rule (5), but no action was taken thereafter. 5. Ultimately his application has been rejected by the Deputy Inspector General of Police (Establishment), U.P. on the ground that the petitioner had moved the application after seven years of the death of his father Swami Nath, his mother is getting family pension, and his brother is already having a Fair Price Shop license. He does not appear to be suffering from any undue hardship and that the right to compassionate appointment cannot be claimed after seven years of death of the deceased employee. 6. In the order impugned, mention has been made of the Government’s letter dated 6.6.2013 rejecting the case of the petitioner for condoning the delay in moving the said application. The petitioner has not challenged the decision of the Government as communicated to the police headquarters by its letter dated 6.6.2013. 6. In the order impugned, mention has been made of the Government’s letter dated 6.6.2013 rejecting the case of the petitioner for condoning the delay in moving the said application. The petitioner has not challenged the decision of the Government as communicated to the police headquarters by its letter dated 6.6.2013. The petitioner has challenged only the letter dated 13.6.2013 sent by the Deputy Inspector General of Police to the Commandant of 39 BN asking him to communicate the rejection of the case of the petitioner for compassionate appointment by the Government and the police headquarters and the ultimate communication sent by the Commandant, 39 BN to the petitioner dated 3.7.2013. 7. Learned counsel for the petitioner has placed reliance upon judgment rendered by Full Bench of this Court in Shiv Kumar Dubey v. State of U.P., 2014(2) ADJ 312 and he has read out paragraph 29(vii) which is as follows : “(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” 8. It is his case that the Government had not applied its mind. The petitioner’s mother died in 2002. His father died in 2004. After the death of his father, his two sisters, one after the other were given family pension till they all got married. After marriage of the fourth youngest sister of the petitioner, no family pension is being given to the dependents of Swami Nath. 9. It is also his case that his brother - Govind Prasad is not a Government servant and is only having license of a Fair Price Shop in the villae. It cannot be said that the petitioner has sufficient means to eke out a living. Therefore, he should be granted compassionate appointment. 10. I have gone through the judgment rendered by the Full Bench of this Court in Shiv Kumar Dubey (supra). 11. It cannot be said that the petitioner has sufficient means to eke out a living. Therefore, he should be granted compassionate appointment. 10. I have gone through the judgment rendered by the Full Bench of this Court in Shiv Kumar Dubey (supra). 11. This Court was considering apparent difference of opinion in two Division Bench judgments rendered in Vivek Yadav v. State of U.P., 2010(7) ADJ 1 and Subhash Yadav v. State of U.P., 2010(10) ADJ 289 . 12. The Hon’ble Full Bench has taken into account the observations made by the Hon’ble Supreme Court with regard to application for compassionate appointment being moved by dependents of deceased employees after considerable delay. 13. The Supreme Court had also while rejecting the case of such dependent made observations with regard to the objective of introducing the dying-in-harness Rules which is to avoid financial hardship and indigent circumstance of the family of the deceased Government servant on the sudden death of the sole breadwinner. 14. The Full Bench of this Court has quoted the judgment of the Hon’ble Supreme Court in the case of Chief Commissioner, Central Excise & Customs, Lucknow and others v. Prabhat Singh, 2013 (1) UPLBEC 357, to the effect that Courts and Tribunals should not fall prey to any sympathy syndrome, so as to issue directions for compassionate appointments, without reference to the prescribed norms. The Courts are not supposed to carry Santa Claus’s big bag on Christmas eve, to disburse the gift of compassionate appointment, to all those who seek a Court’s intervention. The Courts and Tribunals must understand that every such act of sympathy, compassion and discretion, wherein directions are issued for appointment on compassionate ground, could deprive a really needy family requiring financial support, and thereby, push into penury a truly indigent, destitute and impoverished family. Discretion is therefore ruled out. So are, misplaced, sympathy and compassion. 15. This Court has observed that ordinarily an application under Rule 5 for compassionate appointment must be made within 5 years of the date of death of the deceased employee. In the proviso to such Rule, a discretion to relax the time period is given to the Government looking into undue hardship of a dependent of deceased employee. However, at the same time, the compassionate appointment does not constitute a reservation of the post in favour of a member of the family of the deceased employee. In the proviso to such Rule, a discretion to relax the time period is given to the Government looking into undue hardship of a dependent of deceased employee. However, at the same time, the compassionate appointment does not constitute a reservation of the 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. 16. Coming to the case of the petitioner, the petitioner has contended that after the death of his father in 2004, his brother made an application and was offered appointment on the class IV post. His brother however declined such appointment on compassionate ground and stated that the petitioner who was 15 years old may be considered after he attains the age of majority. It is apparent that the family of the deceased employee was not suffering such a grave financial hardship as would require it to immediately take up the appointment which was being offered by the respondents. 17. The case of the petitioner himself is that he made the application in March 2011, after he attained maturity, i.e. after seven years from the date of death of his father. In all such cases, the law as settled by the Full Bench of this Court in Shiv Kumar Dubey (supra) shall apply on all forms. 18. Learned counsel for the petitioner has also relied upon judgment rendered by this Court in Sangeeta Vishwakarma v. State of U.P. and others, 2015(1) ADJ 262 . 19. The father of the petitioner who was a class IV employee, who died in harness in 1992. After his death, the mother of the petitioner was granted compassionate appointment on 20.8.1992. She also died in 1997, leaving behind her minor daughter, i.e. the petitioner. After the death of her parents, her maternal family had looked after her and her maternal grand-father has moved an application on 5.8.1997 indicating therein that the petitioner was a minor and will claim compassionate appointment after she attained majority. She also died in 1997, leaving behind her minor daughter, i.e. the petitioner. After the death of her parents, her maternal family had looked after her and her maternal grand-father has moved an application on 5.8.1997 indicating therein that the petitioner was a minor and will claim compassionate appointment after she attained majority. The petitioner had attained majority on 15.5.2006 and has applied for compassionate appointment on 10.7.2006. Her claim was rejected on 22.2.2013 saying that she had applied after more than fourteen years of the death of the deceased employee. 20. This Court referred to the judgments rendered in Vivek Yadav (Supra) and Subhash Yadav (supra) and also the Full Bench decision given in Shiv Kumar Dubey (supra) and observed that the power of relaxation given to the State Government has to be exercised where as admitted case of undue hardship has been made out to the satisfaction of the State Government. The petitioner had made out a case of undue hardship and for grant of relaxation, but the respondents have not applied their mind and rejected the case of the petitioner. 21. The matter was remanded back to the respondent No. 3 therein to consider the application filed by the petitioner and take appropriate decision in accordance with rule 5 of the Rules of 1974 keeping in mind a Full Bench decision rendered in the case of Shiv Kumar Dubey. 22. Learned counsel for the petitioner has also placed reliance upon Km. Kiran Devi v. State of U.P. and others, 2013(5) ADJ 39 . 23. This Court in the aforecited judgment has placed reliance upon judgment rendered in Vivek Yadav (supra). Vivek Yadav (supra) has been explained and limited to a great extent in the judgment rendered by the Full Bench in Shiv Kumar Dubey. 24. The Full Bench had clarified that the second proviso to Rule 5 required an applicant who invoked the power of relaxation under the first proviso of the time limit of five years to make out the case of undue hardship by elucidating in writing with necessary documentary evidence, the reasons and justification for the delay. 25. In the case of the petitioner, however compassionate appointment was offered to one member of the family, who refused the same for reasons best known to him. 25. In the case of the petitioner, however compassionate appointment was offered to one member of the family, who refused the same for reasons best known to him. It cannot be a case of endless compassion in favour of dependent of deceased Government servant to defeat the rights guarantees to ordinary citizens of the Nation under Articles 14 & 15 of the Constitution of India. The judgments relied upon by the learned counsel for the petitioner are inapplicable to the facts of the case. 26. The writ petition is dismissed. No order as to costs.