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2018 DIGILAW 1583 (ALL)

ANTARIKSHA SINGH v. STATE OF U. P.

2018-07-19

RAM SURAT RAM (MAURYA)

body2018
JUDGMENT Hon’ble Ram Surat Ram (Maurya), J.—Heard Sri Vijay Gautam, Sri Ambreesh Chaterjei, Sri Vinod Kumar Mishra, Sri Anand Ji Mishra, Sri Devesh Mishra, Sri Rishabh Kesarwani, Sri O.P. Mishra, and Ms. Atipriya Gautam, for the petitioners and Sri Manish Goel, Additional Advocate General, assisted by Sri V.K. Nagaich, Standing Counsel, for the respondents. 2. These writ petitions have been filed for quashing the orders of State Government, declining to condone the delay, in filing the application for compassionate appointment, under Proviso to Rule 5 of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the Rules). Since common questions of law and facts are raised in these writ petitions, as such, they were consolidated and heard together. 3. Antariksha Singh has filed Writ-A No. 30675 of 2013, for quashing the order dated 10.10.2012, passed by State Government (communicated through letter dated 4.3.2013), declining to condone the delay, in filing the application for his compassionate appointment. Surendra Singh father of Antariksha Singh was posted as ‘Constable’ in U.P. Police, who died in harness on 8.1.1999. Smt. Shashi Singh widow of Surendra Singh moved an application that her children were minor and she had liability to look after them as such when her children become major, then their claim for compassionate appointment be considered. Date of birth of Antariksha Singh is 29.10.1988. After attaining age of majority, Antariksha Singh applied for compassionate appointment on 28.4.2006. The application was referred to State Government for condonation of delay, which was rejected by order dated 28.11.2008 (communicated through letter dated 19.1.2009). Mother of Antariksha Singh moved another application dated 22.12.2010, for compassionate appointment, condoning the delay, which was rejected, by impugned order dated 10.12.2012, on the findings that purpose of the Rules is to provide immediate financial assistant to the family of the deceased employee, who had come to the stage of penury, after death of bread earner of the family and not to reserve a post for employment. Smt. Shashi Singh widow of Surendra Singh could have applied for her appointment but she had not applied as such delay in filing the application could not be condoned. 4. Remaining aforementioned writ petitions have been filed by the respective petitioners, for quashing the impugned orders, rejecting the applications/representations moved on behalf of the petitioners, for granting compassionate appointments to the petitioners, on the ground of delay. 4. Remaining aforementioned writ petitions have been filed by the respective petitioners, for quashing the impugned orders, rejecting the applications/representations moved on behalf of the petitioners, for granting compassionate appointments to the petitioners, on the ground of delay. Parent of petitioners were in service of Government of U.P., who died in harness. Thereafter, applications were moved, stating therein that as the petitioners were minors, as such, after attaining the age of majority, they may be appointed on compassionate ground. On attaining the age of majority, applications were filed on behalf of the petitioners before the respondent authorities for their compassionate appointments, which were rejected on the ground of delay, by the impugned orders. 5. In this bunch of cases, following points have been raised for consideration : (a) Rule-5 of the Rules, provides for five years limitation to apply for compassionate appointment. Proviso to Rule-5 of the Rules authorizes State Government to relax the limitation in cases of ‘undue hardship’. What is relevant consideration for deciding application for condoning delay? (b) Whether Second Proviso to Rule-5 is procedural in nature and requires explaining the delay in filing the application but is not relevant for exercise of power to relax the limitation? (c) Whether terminal benefits given to the family, after death of the employee, has to be considered alongwith liability and entire circumstances of the family, while deciding undue hardship? (d) Whether grounds raised by the petitioners, relating to arbitrary exercise of power in relaxation of limitation amounts to claim of negative equality? Point (a) 6. The Rules have been framed by State Government, in exercise of powers under Proviso to Article 309 of the Constitution. By Virtue of Rule-4, the Rules have overriding effects on any other Service Rules. Rule-5 provides for giving suitable employment on a post, except the post within the purview of Public Service Commission, subject to exceptions that (i) spouse of the deceased employee was not in central/state Government service, (ii) The applicant fulfills educational qualification of the post, (iii) The applicant is otherwise qualified for Government service and (iv) The application for employment was moved within five years from the date of death of the Government servant. 7. Validity of the Rules/Notification providing for compassionate appointments came for consideration before Supreme Court time to time. 7. Validity of the Rules/Notification providing for compassionate appointments came for consideration before Supreme Court time to time. Supreme Court in Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 , has held that “As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased.” 8. In National Institute of Technology v. Niraj Kumar Singh, (2007) 2 SCC 481 , held that an appointment on compassionate ground would be illegal in absence of any scheme providing therefor. Such scheme must be commensurate with the constitutional scheme of equality. All public appointments must be in consonance with Article 16 of the Constitution of India. Exceptions carved out therefore are the cases where appointments are to be given to the widow or the dependent children of the employee who died in harness. Such an exception is carved out with a view to see that the family of the deceased employee who has died in harness does not become a destitute. No appointment, therefore, on compassionate ground can be granted to a person other than those for whose benefit the exception has been carved out. Such an exception is carved out with a view to see that the family of the deceased employee who has died in harness does not become a destitute. No appointment, therefore, on compassionate ground can be granted to a person other than those for whose benefit the exception has been carved out. Other family members of the deceased employee would not derive any benefit thereunder. 9. In Bhawani Prasad Sonkar v. Union of India, (2011) 4 SCC 20, has held that the concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve. 10. Thus, from aforementioned judgments, it is clear that it has been fairly settled that Rules/Notifications providing appointment to the dependents of a Government employee dying-in-harness do not violate Article 14 and 16 of the Constitution. Classification of a dependent of a Government servant dying-in-harness is reasonable and not arbitrary. So far as State of U.P. is concerned, it has framed the Statutory Rules. State Government, while exercising executive power to relax the limitation, is bound to follow the provisions of the Rules, otherwise the act would be arbitrary and violative of Article 14 of the Constitution. Supreme Court in State of Punjab v. Brijeshwar Singh Chahal, (2016) 6 SCC 1 , has held that it is by now, fairly well-settled that not only the Government but all public bodies are trustees of the power vested in them and custodians of public interest. Discharge of that trust in the best possible manner is the primary duty of those in charge of the affairs of the State or public body. This necessarily implies that the nature of functions and duties including the power to engage, employ or recruit servants, agents, advisors and representatives must be exercised in a fair, reasonable, non-discriminatory and objective manner. It is also fairly well-settled that duty to act fairly and reasonably is a facet of “Rule of Law” in a constitutional democracy like ours. This necessarily implies that the nature of functions and duties including the power to engage, employ or recruit servants, agents, advisors and representatives must be exercised in a fair, reasonable, non-discriminatory and objective manner. It is also fairly well-settled that duty to act fairly and reasonably is a facet of “Rule of Law” in a constitutional democracy like ours. A long line of decisions of this Court over the past five decades or so have ruled that arbitrariness has no place in a polity governed by Rule of Law and that Article 14 of the Constitution of India strikes at arbitrariness in every State action. Point-(b) 11. Rule 5 of the Rules provides as follows: Rule-5. Recruitment of a member of the family of the deceased.— (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person-fulfils the educational qualifications prescribed for the post, is otherwise qualified for Government service; and makes the application for employment within five years from the date of the death of the Government servant: Provided that where the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner. Provided further that for the purpose of the aforesaid proviso, the person concerned shall explain the reasons and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the application for employment alongwith the necessary documents/proof in support of such delay and the Government shall, after taking into consideration all the facts leading to such delay take the appropriate decision. (2) As far as possible, such an employment should be given in department in which the deceased Government servant was employed prior to his death. (3) Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves. 12. Full Bench of this Court in Shiv Kumar Dubey v. State of U.P. and others, 2014 (3) AWC 3006 (FB), held as under: (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. 13. It was further observed by the Court that the rationale for imposing a limit of five years beyond which an application cannot be entertained is that the purpose of compassionate appointment is to bridge the immediacy of the loss of an earning member and the financial distress that is sustained in consequence. A lapse of time is regarded by the Rules as leading to a dilution of the immediacy of the requirement. The discretionary power to relax the time limit of five years under first proviso to Rule 5 is in the nature of an exception. It is a power which is vested in the State Government, a circumstance which is indicative of the fact that the subordinate legislation expects it to be exercised with scrupulous care. Ordinarily, the time limit of five years governs. The State Government may relax the norm on a careful evaluation of the circumstances mandated by the second proviso. It is but a matter of first principle that a discretionary power to relax the ordinary requirement should not swallow the main or substantive provision and render the basic purpose and object nugatory. 14. Under first Proviso to Rule-5 ‘under hardship’ occurring to the family of the applicant is the relevant consideration for relaxation of time limit of five years. If ‘undue hardship’ has not been considered by State Government, while deciding the application for relaxation of limitation, then the decision of the State Government would be upon irrelevant consideration, arbitrary and violative of Article 14 of the Constitution. 15. In Subhash Yadav v. State of U.P., 2010(10) ADJ 289 (DB), Division Bench of this Court dealt with a situation where the father of the appellant had died-in-harness on 8.8.1994 when the appellant was six years of age. The appellant attained the age of majority on 5.12.2005 and made an application for compassionate appointment. 15. In Subhash Yadav v. State of U.P., 2010(10) ADJ 289 (DB), Division Bench of this Court dealt with a situation where the father of the appellant had died-in-harness on 8.8.1994 when the appellant was six years of age. The appellant attained the age of majority on 5.12.2005 and made an application for compassionate appointment. State Government declined to accord relaxation of the period of five years and the writ petition filed by the appellant was dismissed by a learned Single Judge who held that since the appellant had been able to survive for sixteen years, that was indicative of a lack of immediacy. The Division Bench held that the Government erred in rejecting the application on the ground that there was an inordinate delay and such a blanket reason without considering anything else would not be in conformity with the power which has been conferred on the State, to relax the time period, which has to be exercised reasonably. Hence, the Division Bench held that the authorities cannot reject an application “blindfold” if it had been moved after five years and were required to apply their mind rationally, exercising the discretion in view of other factors relating to the case. 16. Division Bench of this Court in Sudhir Kumar Mishra v. State of U.P., 2016(8) ADJ 639 (DB), held that the expression ‘undue hardship’ has not been defined in the Rules. Undue hardship would necessarily postulate a consideration of relevant facts and circumstances of the case. In view the income of the family, its financial condition, the extent of dependency and marital status of its members, its liabilities, the terminal benefits received by the family; the age, together with the nugatory income from any other sources in this case, we are of the view that the family continues to suffer financial distress and hardship occasioned by the death of the bread winner. Considering the penurious condition of the family, it appears to be one of the rarest of rare cases where due to exceptional circumstances the family needs the extraordinary remedy to elate the condition of family. It would be appropriate to deal with the case of the petitioner in a just and equitable manner. Point - (C) 17. Considering the penurious condition of the family, it appears to be one of the rarest of rare cases where due to exceptional circumstances the family needs the extraordinary remedy to elate the condition of family. It would be appropriate to deal with the case of the petitioner in a just and equitable manner. Point - (C) 17. Supreme Court in Balbir Kaur v. SAIL, (2000) 6 SCC 493 , has held that adverting to the provident fund, be it noted that the same is payable to an employee under the provisions of a statute and this statutory obligation cannot possibly be deferred in the event of an untimely death of a worker or an employee. As noticed above, the family needs the money in lump sum and availability of this amount is the only insulating factor to such a grief-stricken family. The amount is payable in one lump-sum and as a matter of fact it acts as a buffer to the retirement of or on the death of an employee. Situations are not difficult to conceive when the family needs some lump-sum amount but in the event of deposit of the same with the employer, the heirs of the deceased employee could be put into the same problems of realities of life, even though, if this money would have been made available to them the situation could have been otherwise. While dealing with the application made by the widow for employment on compassionate ground applicable to the Steel Authority of India, contention raised was that since she is entitled to get the benefit under Family Benefit Scheme assuring monthly payment to the family of the deceased employee, the request for compassionate appointment cannot be acceded to. Rejecting that contention in para 13, Supreme Court held as under: (SCC p. 503) “13. ... But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the breadearner can only be absorbed by some lump sum amount being made available to the family — this is rather unfortunate but this is a reality. ... But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the breadearner can only be absorbed by some lump sum amount being made available to the family — this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the breadearner, but that would undoubtedly bring some solace to the situation.” 18. From the aforesaid case laws, it is clear that different schemes have been provided by different employers. State of U.P. has provided scheme for compassionate appointment by the Rules. Terminal benefit received by the family of a deceased employee cannot be a ground for denying compassionate appointment as in the cases where the application for compassionate appointment are filed within five years, it was not a relevant consideration. While deciding ‘undue hardship’, if total income from all the sources of the family exceeds from the salary of the deceased employee, then it can be said that no ‘undue hardship’ will be caused to the family. Point- (d) 19. It has been found that for relaxation of delay in considering the application for compassionate appointment ‘undue hardship faced by the family of deceased employee’ is the relevant consideration and if this factor has not been considered by State Government, then its decision is arbitrary. No question of claim of negative equality as argued by Additional Advocate General in these cases are arising. Case laws of State of U.P. v. Rajkumar Sharma, (2006) 3 SCC 330 , Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455 , State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436 , Commissioner of Police, New Delhi v. Mehar Singh, (2013) 7 SCC 685 and State of M.P. v. Parvez Khan, (2015) 2 SCC 591 , have no application in the present case. 20. In the result, all the aforementioned writ petitions succeed and are allowed. 20. In the result, all the aforementioned writ petitions succeed and are allowed. State Government is directed to reconsider the claim of compassionate appointment and relaxation of time limit, deciding ‘undue hardship continuing to the family’ within period of two months from the date of producing certified copy of this order.