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2018 DIGILAW 56 (UTT)

State of Uttarakhand v. Atul Kumar Saini

2018-02-19

K.M.JOSEPH, MANOJ K.TIWARI

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JUDGMENT : K.M. JOSEPH, J. Appellants are the respondents in the writ petition. The writ petitioner approached this Court seeking the following reliefs: “(a) Issue a writ order or direction in the nature of certiorari quashing the order dated 24.02.2004, 26.03.2006 (Annexure No. 6 & 7 to the writ petition) issued by respondent No.3. (b) directing the respondent No.1 to grant relaxation in the case of the petitioner ignoring the delay in moving the application and further to direct the respondent No.2 & 3 to provide suitable job/ service to the petitioner as per his qualification. (c) Issue a writ order or direction in the nature of mandamus directing the respondent No.1 to consider the case of the petitioner ignoring the delay and further to direct the respondent No. 2 & 3 to provide suitable job/ service to the petitioner as per his qualification.” 2. Briefly put, the case of the writ petitioner was as follows: The father of the writ petitioner, while working as a Driver with the third respondent died in an accident on duty. The writ petitioner was aged 14 years at that time. The mother of the writ petitioner made an application on 11.06.1979 with the prayer that when her son will attain majority, he will be given appointment so that he will not face any difficulty. It is alleged in paragraph no. 3 of the writ petition as follows: “That in the year 1997 the respondent No.3 given assurance to the mother of the petitioner that when your son will passed out Intermediate, will provide posting as a ministerial staff.” 3. It is further stated that when the mother of the writ petitioner made application on 04.03.2003, on the application of the mother of the writ petitioner on 06.03.2003, 07.04.2003 and October 2004, the mother of the writ petitioner was informed to appear before the third respondent. On consideration of the record, it was found that the writ petitioner and three other candidates have passed five years’ time as prescribed by the Service Rules, but the writ petitioner was not at fault because he was a minor. The second respondent sought instructions from the first respondent in regard to relaxation of time. On consideration of the record, it was found that the writ petitioner and three other candidates have passed five years’ time as prescribed by the Service Rules, but the writ petitioner was not at fault because he was a minor. The second respondent sought instructions from the first respondent in regard to relaxation of time. It is further stated that on 15.07.2003, from the office of the second respondent, a letter was sent to the third respondent in regard to the information of the writ petitioner and it was asked from the mother of the writ petitioner that why she moved this application with so much delay. The mother of the writ petitioner replied by application dated 29.10.2003, in which she assigned the reason that at the time of the death of her husband, the writ petitioner was a minor. It is further stated that the matter was pending with the first respondent for exemption of delay and till date they have not taken any action, and meanwhile, the third respondent informed the mother of the writ petitioner that since she has moved the application with delay so it is dismissed. The mother of the writ petitioner then moved another application on 20.02.2006. Thereafter, on 24.03.2006 it was again informed that relaxation cannot be granted till recommendation is granted by the first respondent. These are the orders/Annexures dated 24.02.2004 and 26.03.2006, which were called in question before the learned Single Judge. Pleadings were exchanged. The learned Single Judge allowed the writ petition taking note of the fact that this is a case where the father of the writ petitioner died on 02.02.1994. The application was actually moved (it is not in dispute) by the mother on 11.06.1997. The writ petitioner was a minor at that time; the writ petitioner became major in the year 1998 and relying on the judgment of this Court in the case of Regional Manager, Uttarakhand Transport Corporation, Dehradun Vs. Arun Sharma & another reported in 2010(1) U.D. 168 , the learned Single Judge took the view that the delay should be condoned and allowed the writ petition. 4. In the appeal, when the matter came up for admission in the year 2011, the Bench while admitting the appeal granted a stay by order dated 15.06.2011. The said order reads as follows: “Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the State/appellants. Mr. 4. In the appeal, when the matter came up for admission in the year 2011, the Bench while admitting the appeal granted a stay by order dated 15.06.2011. The said order reads as follows: “Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the State/appellants. Mr. S.S. Yadav, Advocate for the respondent. (Delay Condonation Application No.5718 of 2011) We have heard learned counsel for the parties on the application for condonation of delay in preferring the appeal. Being satisfied with the reasons furnished for the delay, we condone the delay in preferring the appeal. The application stands disposed of. (SPA No.105 of 2011) The deceased died leaving his wife and minor son at the time of his death in harness. The minor son became a major on 10th June, 2002. From the conduct of the wife, it appears, she purported to preserve the right to obtain compassionate appointment in favour of her son. Whether such a case comes within undue hardship contained in proviso to Sub Rule (1) of Rule 5 of the applicable Rules, is the legal question to be decided, which appears to have not been addressed, while the judgment and order under appeal was rendered. We, accordingly, admit the appeal and stay the impugned order until disposal of the appeal. Stay application No.5719 of 2011 stands disposed of. List the appeal in its turn.” 5. We heard Mr. S.S. Chauhan, learned Deputy Advocate General on behalf of the State of Uttarakhand/appellants and Mr. S.S. Yadav, learned counsel on behalf of the respondent/writ petitioner. 6. Mr. S.S. Chauhan, learned Deputy Advocate General would submit that this is not a proper case for grant of benefit under Dying in Harness Rules. The mother of the writ petitioner insisted on the job being given to the writ petitioner. The learned Single Judge had, originally, recorded that the writ petitioner became major in the year 1998, whereas the writ petitioner actually became major only in the year 2002. About this, there is no dispute that the writ petitioner became major only in the year 2002. Learned Deputy Advocate General would further submit that the order impugned was passed in the year 2004 and on a fresh application filed by the mother of the writ petitioner, a further order was passed in the year 2006. The writ petition is filed only in the year 2008. Learned Deputy Advocate General would further submit that the order impugned was passed in the year 2004 and on a fresh application filed by the mother of the writ petitioner, a further order was passed in the year 2006. The writ petition is filed only in the year 2008. He would submit that in case of such delay, the purpose of granting job under the Dying in Harness scheme would be defeated, as the purpose of Dying in Harness Rules is to give immediate relief to the family members of the deceased. It is submitted that though there is recommendation of 57 persons by the Department for grant of relaxation, from the rigor of the Rules, which provides for five years’ time limit, the Government declined in respect of all 57 persons. 7. Per contra, Mr. S.S. Yadav, learned counsel for the writ petitioner would point out that the mother of the writ petitioner applied, admittedly, in the year 1997, which was within three years of the death of her husband. No doubt, in the application, she may have stated that the job may be given to the writ petitioner; the writ petitioner was a minor. He pointed out that under the Rules only a person, who is aged 18 years can apply. The writ petitioner attained 18 years’ age in the year 2002. Writ petitioner applied in the year 2003. He would submit that relaxation ought to have been granted in the circumstances. Furthermore, he also submitted that there is a bounden duty on the part of the Government, when they received the application dated 11.06.1997 from the mother of the writ petitioner, to inform her that under the Rules, the time limit for applying is five and, therefore, if the writ petitioner cannot be provided employment, the mother of the writ petitioner may apply for a job, which was not done. He would submit that this has resulted in injustice. It is, however, pointed out by Mr. S.S. Chauhan, learned Deputy Advocate General that, in fact, the application was moved by the writ petitioner not even on attaining the age of majority but after one year thereafter i.e. on 06.06.2003. 8. He would submit that this has resulted in injustice. It is, however, pointed out by Mr. S.S. Chauhan, learned Deputy Advocate General that, in fact, the application was moved by the writ petitioner not even on attaining the age of majority but after one year thereafter i.e. on 06.06.2003. 8. Firstly, we must advert to the scheme of The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the “Rules”), which is the law, which is applicable in the State of Uttarakhand also. Under the Rules, Rule 5, being crucial for the determination of the question, is referred to and extracted as follows: “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- (i) fulfils the educational qualifications prescribed for the post, (ii) is otherwise qualified for Government service, and (iii) 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. (2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death. 5-A. Recruitment of member of the family of Police/P.A.C. Personnel who dies in May, 1973. (2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death. 5-A. Recruitment of member of the family of Police/P.A.C. Personnel who dies in May, 1973. Notwithstanding anything contained to the contrary contained in Rule 5 or in any other rule, the provisions of these rules shall apply in the case of members of the family of twenty-two police or per Provincial Armed Constabulary personnel who died as a result of disturbances in May, 1973, as they apply in the case of a Government servant during dying in harness after the commencement of these rules.” 9. Rule 6 of the Rules deals with the contents of the application for employment. It contemplates, inter alia, the details relating to all the members of the family of the deceased, particularly, about their marriage, employment and income; details of the financial condition of the family; and the educational and other qualifications, if any, of the applicant. 10. Rule 8 of the Rules also being relevant reads as follows: “8. Relaxation from age and other requirements. -(1) The candidate seeking appointment under these rules must not be less than 18 years at the time of appointment. (2) The procedural requirements for selection, such as written test or interview by a selection committee or any other authority, shall be dispensed with, but it shall be open to the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post. (3) An appointment under these rules shall be made against an existing vacancy only.” 11. Rule 9 of the Rules contemplates that the appointing authority is to satisfy itself for the character of the candidate, the health of the candidate and also whether in the case of a male candidate, he has not more than one wife living and in the case of a female candidate, she has not married a person already having a wife living. 12. Rule 10 of the Rules gives the power with the State Government to remove any difficulty (of the existence of which it shall be the sole judge) in the implementation of any provision of these Rules. 13. 12. Rule 10 of the Rules gives the power with the State Government to remove any difficulty (of the existence of which it shall be the sole judge) in the implementation of any provision of these Rules. 13. A perusal of Rule 5 of the Rules makes it very clear that ordinarily the Rule is that the application for employment must be made within five years from the date of the death of the Government servant. In this case, on the admitted pleadings, there was an application, which is made by the wife of the deceased Government servant. It is dated 11.06.1997. The father of the writ petitioner, having died in the year 1994, the application was made within three years of the death of the father of the writ petitioner. Having regard to the requirements of Rule 6 of the Rules, which contemplates that the application must contain certain details including the date of death and, as we have noticed, other aspects and details relating to the members of family and the financial condition, we cannot treat the application/Annexure No. 3 as an application within the Rules. No doubt, in paragraph no. 3 of the writ petition, the writ petitioner has a case that his mother was told that her son will get a job. This is denied in the counter affidavit. No doubt, the writ petitioner has reiterated it in the rejoinder affidavit. We do not think that we can enter the finding that the mother of the writ petitioner was the recipient of a promise that her son will be given a job as such. 14. The writ petitioner attained majority not in the year 1998, as found by the learned Single Judge. The writ petitioner attained majority on 10.06.2002. Here, we must notice the conduct of the writ petitioner; though even accepting the case of the writ petitioner that the mother of the writ petitioner was informed that her son will be given job when he attains the age of majority, more than 8 years have passed between the death of the father of the writ petitioner and the writ petitioner’s attaining majority, the writ petitioner waited more than one year to apply, as the writ petitioner applied, admittedly, only on 06.06.2003. The application, apparently, was recommended by the Department along with 56 other persons. The application, apparently, was recommended by the Department along with 56 other persons. This is for the reason that the time limit had been crossed and it was for the Government to take the decision. The first order, which is impugned is the order passed in the year 2004. The writ petitioner filed the writ petition in the year 2008 i.e. after four years. It is true that the writ petitioner’s mother applied in the year 2006 again after expiry of two years and the application is rejected in the year 2006. From 2006 also, it is after two years that the writ petitioner has approached this Court. Between the death of the writ petitioner’s father and the writ petitioner approaching this Court, there is a gap of 14 years. It is true that under Rule 8 of the Rules, an applicant must not be less than 18 years of age at the time of the appointment. Writ petitioner complied with the said requirement in June, 2002. The Rules does not contemplate an application being made within 5 years of a family member be it son or a daughter attaining majority. What the Rules contemplate is an application within 5 years from the date of the death of the deceased Government servant. It is in the proviso that the State Government is vested with the discretion to consider as to whether despite the application not made within the time limit, it can dispense with or relax the requirement, as it may consider necessary for dealing with a case where there is undue hardship and the Government is expected to deal with such a case in a just and equitable manner. It is here that, though the application in this case was made beyond 5 years, the Department in the case of the writ petitioner, treating it as a case within the meaning of the proviso, referred the matter to the Government with its recommendations, in fact, to give relaxation. 15. The question, which has been posed by the Bench, in the interim order, as we have noticed also, is whether this is a case of undue hardship. The question of undue hardship is a question to be decided with reference to the facts of each case. 15. The question, which has been posed by the Bench, in the interim order, as we have noticed also, is whether this is a case of undue hardship. The question of undue hardship is a question to be decided with reference to the facts of each case. It would involve the State Government applying its mind to the date of death, the reasons why the application could not be made within 5 years, the financial hardship that is faced by the family and any other relevant aspects. As in the case of any statutory discretion, it is incumbent upon the State Government to apply its mind to all relevant aspects and eschew reference to all irrelevant aspects. It must also act in a fair manner, having regard to the object, which is sought to be achieved by the Rules. In this case, what we notice is that the case of the writ petitioner was referred by the Department and it is, undoubtedly, true that the case of the writ petitioner has also met with rejection at the hands of the State Government. In this regard, we may refer to the order dated 06.08.2007, produced as Annexure No. 1 to the counter affidavit. A perusal of the said order would show that the case of all 57 persons has been rejected. In fact, it appears that it is essentially an order, which was devoted to the consideration of the case of a particular person in pursuance to the order of this Court passed in Writ Petition (S/S) 1123 of 2006 but the case of all persons, apparently, including the writ petitioner was rejected. We may have been, in fact, inclined to direct fresh consideration of the case of the writ petitioner, but there is an insuperable obstacle on the part of the writ petitioner, namely, the writ petitioner has not sought to challenge the order or even sought relief despite the fact that it was produced along with the counter affidavit. The writ petitioner has put in issue only the orders, which we have noticed, which were communicated to him. Undoubtedly, we also cannot be totally oblivious to the fact that there is a gap of nearly 9 years between the death of the writ petitioner’s father and the writ petitioner’s attaining majority. We further notice that the writ petitioner applied only after one year of attaining majority. Undoubtedly, we also cannot be totally oblivious to the fact that there is a gap of nearly 9 years between the death of the writ petitioner’s father and the writ petitioner’s attaining majority. We further notice that the writ petitioner applied only after one year of attaining majority. We further take into consideration the fact that the writ petitioner comes to the Court only in the year 2008. We further bear in mind the principle that Dying in Harness is intended to benefit the members of the family, who are left behind by their sole breadwinner and to get out from the immediate impact of the death of the said breadwinner. In this case, we are dealing with the matter after a period of 24 years of the death of the father of the writ petitioner. No doubt, it is true that the writ petitioner has approached this Court after 14 years of the death of his father, having regard to the fact that the writ petitioner attained the age of majority in the year 2002 and the application is seen rejected in the year 2004 and the further application is rejected in the year 2006. But here, as we have already noted, again the writ petitioner has not sought any relief in respect of the order of the Government. 16. We must, at once, record our dissatisfaction in the manner, in which, the Government has proceeded to consider the applications, as already noticed, every statutory discretion implies a solemn duty on the part of the repository of the discretionary power to apply mind to the facts of each case. It cannot pass an order on a generalized view of various and different cases. Necessarily, the Rule-maker contemplated undue hardship with reference to any particular case as much as it contemplated dealing with the case in a just and equitable manner. So there is large power vested with the State Government and power must be exercised by considering the individual facts of each case. There cannot be an order, which will cover facts, which may be different. Anyway, having regard to the fact, which we have noticed that there is no challenge against the order of the Government besides also seeking assistance from other aspects, which we have noted, we think that the appeal must be allowed. 17. There cannot be an order, which will cover facts, which may be different. Anyway, having regard to the fact, which we have noticed that there is no challenge against the order of the Government besides also seeking assistance from other aspects, which we have noted, we think that the appeal must be allowed. 17. We must, however, refer to the judgment referred to by the learned counsel for the writ petitioner, which is produced as Annexure No. 8 to the writ petition. In that case, we notice that the mother of the petitioner was a paralytic and an illiterate lady; the petitioner was a minor; he applied in the year 1997. Paragraph no. 3 of the said judgment reads as follows: “3. Undisputedly the petitioner was minor at the time of death of his father. Petitioner was only 9 years old at the time of death of his father and after attaining the age of majority and passing his high school examination, he had applied for his appointment on 14.3.1997. The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 contains provision empowering the State Government/Appointing Authority to condone the delay in cases where the authority is satisfied. Here in the present case, the delay for not making application by the petitioner within time was due to underage and after attaining the age, the application was made. It was sufficient reason to condone the delay.” 18. We do not think that the learned Single Judge has laid down the law as such. The case was decided with reference to the particular facts of that case. At any rate, it is a matter essentially for the decision-maker to take as to whether with reference to each case, as we have noted, the case is made out of undue hardship and for dealing with the case on the said basis. Therefore, we cannot allow the writ petitioner to derive assistance out of the said judgment as such. Further, we must also refer to the Division Bench judgment of this Court, which is relied on by the learned Single Judge, which is passed in the case of Regional Manager, Uttarakhand Transport Corporation, Dehradun Vs. Arun Sharma & another reported in 2010(1) U.D. 168 . In this case, the employee died on 26.02.1994. Further, we must also refer to the Division Bench judgment of this Court, which is relied on by the learned Single Judge, which is passed in the case of Regional Manager, Uttarakhand Transport Corporation, Dehradun Vs. Arun Sharma & another reported in 2010(1) U.D. 168 . In this case, the employee died on 26.02.1994. Within three months, the mother of the petitioner represented to the Corporation seeking appointment for her son on his attaining majority. On attaining majority on 11.01.1999 and a little over 5 years of the death, the son made a representation on 04.06.1999. It was not considered and the learned Single Judge took the view that the delay should have been condoned. The Division Bench agreed with the learned Single Judge with the facts of the said case that since there was a discretion vested to condone the delay, the same ought to have been condoned. 19. Having regard to the facts of this case, as in total, and also the fact that there is no challenge as such to the order of the Government, we think that the appeal must be allowed. Accordingly, the appeal will stand allowed. Judgment of the learned Single Judge will stand set aside and the writ petition will stand dismissed. No order as to cost.