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2019 DIGILAW 1933 (ALL)

Mumtaz Begam v. State of U. P.

2019-08-09

ABDUL MOIN

body2019
ORDER : Abdul Moin, J. 1. Heard learned counsel for the petitioners and learned Standing Counsel appearing for the State-respondents. 2. By means of the present petition, the petitioners have prayed for quashing of the order dated 30.04.2013, a copy of which is Annexure 8 to the petition by which the Respondent No. 2, i.e. Director General of Police, U.P Lucknow has rejected the claim of the petitioners for grant of extension in the time limit for the purpose of the petitioner being considered for compassionate appointment and accordingly his representation has been rejected. A further prayer is for a Mandamus commanding the respondents to re-consider the case of the petitioner for compassionate appointment and provide suitable appointment to the petitioner no. 2 after providing the relaxation in the time schedule fixed in terms of Rule 5 (1) of the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as Rules 1974). 3. The case set forth by the petitioners is that the petitioner is no. 1 is the wife of Mohd. Nairn Khan and the petitioner no. 2 is the son. Mohd. Nairn Khan was posted as Station Officer, Police Station-Rasulpur District Firozabad and died in the line of duty in an encounter on 25.08.1996. He was honoured for his gallantry posthumously. Upon the death of her husband, the petitioner no 1, who is handicapped, represented to the authorities that she is unable to serve in the Department in place of her husband and her children are minor and thus prayed that till her son attained majority, a post be kept reserved, to which a reply dated 24.09.1996, a copy of which Annexure No. 3 to the writ petition was given by the respondents indicating that there is no provision for keeping a post reserved/vacant for compassionate appointment where the dependent is a minor, but in case the dependents apply on attaining majority then their case would be considered for compassionate appointment. It is further contended that the petitioner no 2 upon attaining majority applied for being given appointment on compassionate ground and his application was duly forwarded by the respondent no 1 for decision as per the Government order. It is further contended that the petitioner no 2 upon attaining majority applied for being given appointment on compassionate ground and his application was duly forwarded by the respondent no 1 for decision as per the Government order. The petitioner no 2 was also informed by the letter that 18.11.2008 that his case has been referred to the State Government for relaxation in the time limit for the purpose of compassionate appointment as the claim has been made after five years from the date of death of the employee concerned. Copy of the said letter dated 18.11.2008 is Annexure No 8 of the writ petition. Thereafter, through order dated 05.03.2009, a copy of which is Annexure 5 to the Writ Petition, the respondents informed the petitioner no 2 that the Government has not found any justification for relaxing the time limit of five years. The order being non speaking, the petitioner filed the present petition for being considered for compassionate appointment and this Court by order dated 04.03.2013 while requiring the respondents to file counter affidavit also permitted the petitioners to move a fresh representation to the respondent no 2 for redressal of grievances which was directed to be considered by the respondent no 2 in accordance with law. In pursuance thereof, representation was made by the petitioners which has resulted in the respondent no 2 passing the impugned order dated 30.04.2013, a copy of which is Annexure 8 to the writ petition by which the claim of the petitioner no 2 for compassionate appointment has been rejected on the ground that it has not been found feasible to grant extension in time limit of five years for the purpose of consideration for compassionate appointment. 4. Learned counsel for petitioner while seeking to challenge the impugned order dated 30.04.2013 contends that primarily two grounds have been indicated in the impugned order for rejecting the claim of the petitioner namely (a) the father of the petitioner Mohd. Nairn Khan died on 05.08.1996 and the claim for compassionate appointment has been made after a period of 14 years and (b) the family of the deceased employee comprises of three dependents who are receiving Extraordinary Pension which thus indicates that sufficient funds are available with them. Nairn Khan died on 05.08.1996 and the claim for compassionate appointment has been made after a period of 14 years and (b) the family of the deceased employee comprises of three dependents who are receiving Extraordinary Pension which thus indicates that sufficient funds are available with them. Considering both the grounds it has been contended that compassionate appointment is not meant to grant appointment after long period of time and once the petitioners' family have managed to subsist since long, no claim for extension of time limit for consideration of compassionate appointment beyond the time limit of five years is made out. 5. Learned Counsel for the petitioners contend that all the aforesaid grounds as indicated while rejecting the claim of the petitioner, are patently misconceived inasmuch as grant of Pension/Extraordinary Pension by the respondents is not on compassionate basis rather it is a right of the family concerned which is granted after a Government employee renders sufficient years of service and dies in the line of duty and even otherwise the Hon'ble Supreme Court in the case of Balbir Kaur & Anr. vs. Steel Authority of India Ltd. & Ors. reported in (2000) 6 SCC 493 has held that in case family pension or post-retiral benefits have been paid to an employee's family that alone cannot be said to be a sufficient ground for the purpose of denying compassionate appointment. 6. So far as the claim being made by petitioner no 2 after 14 years of the death of the deceased employee is concerned, it is contended that at the time of death of the deceased employee, the petitioner no 2 was a minor who applied for compassionate appointment immediately on attaining majority and in the peculiar facts and circumstances of the instant case, where the husband of the petitioner no 1 and father of the petitioner no 2 died while in line of duty, the claim for compassionate appointment should have been considered on merits and not rejected on such technicalities. Placing reliance on a Full Bench judgment of this Court in the case of Shiv Kumar Dubey and ors. vs. State of U.P. and ors. Placing reliance on a Full Bench judgment of this Court in the case of Shiv Kumar Dubey and ors. vs. State of U.P. and ors. reported in (2014) 2 ADJ 312 (FB), it is contended that the power conferred under the first proviso to Rule 5 of the Rules, 1974 is a discretion to relax the time period in case of undue hardship and for dealing with the case in a just and equitable manner but in the instant case the impugned order of rejection does not indicate that the case of the petitioners have been dealt with in a just and equitable manner and thus it is contended that the impugned order rejecting the claim of the petitioner merits to be quashed. 7. Per contra, learned standing Counsel on the basis of averments contained in the counter affidavit to the main petition and counter affidavit to the amended paragraphs of the writ petition argues that as petitioners have moved an application for compassionate appointment after a period of more than five years of the death of Mohd. Nairn Khan consequently in terms of Rule 5 of the Rules, 1974, the matter had been referred to the State Government for relaxation in time limit but the same was rejected through order dated 22.12.2008 and which was communicated to the petitioners through letter dated 05.03.2009. However, despite the petitioners having annexed the copy of the order dated 05.03.2009 as Annexure-5 to the petition, they have not challenged the same and thus the writ petition deserves to be dismissed on this ground alone. Again when the petitioners submitted their representation and a direction was issued by this Court for considering the claim of the petitioners; the case was considered but again rejected through order dated 30.04.2013. It is also argued that the order dated 30.04.2013 is a speaking order which has considered the factum of the petitioners having applied for compassionate appointment beyond the time limit of five years specified in Rule 5 of the Rules, 1974 which fact was considered by the respondents along with the fact that the family of the deceased employee is in receipt of Extraordinary Pension and has managed to subsist for long years and having sufficient financial means to sustain themselves and consequently the claim for compassionate appointment was rejected as being not admissible after long period of time. Thus it is contended that there is no illegality and infirmity in the impugned order and the same merits to be affirmed. 8. Heard learned Counsels for the contesting parties and perused the records. 9. From the arguments has raised by the learned Counsels for the contesting parties and pleadings on record it comes out that admittedly the husband of the petitioner no 1 and the father of the petitioner 2, Mohd. Nairn Khan died in the line of duty in an encounter with antisocial elements on 25.08.1996. He was honoured by the police authorities for his gallantry after his death. The petitioners applied for compassionate appointment of the petitioner no 2 upon he attaining majority. A non speaking order dated 05.03.2009 was passed by the respondents indicating that no ground has been found to grant relaxation in time limit as specified under the Rules, 1974 for the purpose of being considered for compassionate appointment. Upon filing the present petition in terms of direction issued by this Court, the respondents have passed impugned order dated 30.04.2013 rejecting the claim of the petitioner for compassionate appointment primarily on the grounds that as the family of the deceased employee is in receipt of the Extraordinary Pension and has managed to subsist for a long period of time after the death of the employee as such, it is apparent that the family has got sufficient financial means to sustain itself, apart from the ground that the claim for compassionate appointment is being made after a period of five years, as specified under the Rules, which taking into consideration the financial means available to the family do not make out any ground for relaxation of the said time limit. 10. The aspect of the matter relating to relaxation of the time limit beyond five years has already been subject to judicial scrutiny before the Full Bench of this Court in the case of Shiv Kumar Dubey (Supra) wherein the Full Bench has 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 sub serve 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. 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. 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." 11. From a perusal of the aforesaid principle of law as enunciated by the Full Bench it clearly comes out that the power conferred by the first proviso to Rule 5 of the Rules, 1974 mandates that ordinarily an application for compassionate appointment must be made within five years of the death of the deceased employee yet 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. It is thus clearly apparent that Rule 5 is not to be read as a statue so far as the time limit is concerned and the said time period can be relaxed while dealing with the case in a just and equitable manner. In the instant case, it is apparent that the father of petitioner died in the line of duty and had also been honoured by the Police Department for having laid down his life in the service of the Department and in the interest of the society. Thus, that was an aspect which should have been considered by the respondents as a factor for grant of relaxation of time limit beyond a period of five years which aspect of the matter has not been considered by the respondent while passing the order. 12. Thus, that was an aspect which should have been considered by the respondents as a factor for grant of relaxation of time limit beyond a period of five years which aspect of the matter has not been considered by the respondent while passing the order. 12. So far as the rejection of the claim on the ground of family being in receipt of Extraordinary Pension is considered, suffice to state that the Hon'ble Supreme Court in the case of Balbir Kaur (Supra) has held that in case Family Pension or post retirement dues have been paid to the employees' family, the same itself cannot be made a ground for denying compassionate appointment. For the sake of convenience relevant observations of the Hon'ble Supreme Court are reproduced below:- "13. Mr. Bhasme, learned Advocate appearing for the Steel authority contended that the Family Benefit Scheme was introduced on 21st November, 1992 and the salient features of the Scheme were to the effect that the family being unable to obtain regular salary from the management, could avail of the scheme by depositing the lump sum provident fund and gratuity amount with the company in lieu of which the management would make monthly payment equivalent to the basic pay together with dearness allowance last drawn, which payment would continue till the normal date of superannuation of the employee in question. Mr. Bhasme further contended that adaptation of this Family Benefit Scheme was meant to provide an assured or regular income per month, while the bulk amount deposited by way of provident fund and gratuity with the management remained intact. Mr. Bhasme, contended that consequently on deposits as above, with the management, the employee's family could avail of pay up to normal date of superannuation on the footing that the employee though not actually working but notionally continued to work till the normal date of superannuation and such a scheme in fact stands at a much better footing and much more beneficial to an employee or a deceased employee. Apparently these considerations weighed with the High Court and the latter thus proceeded on the basis that by reason of adaptation of a Family Benefit Scheme by the Employees' Union, question of any departure there from or any compassionate appointment does not and cannot arise. But in our view this Family Benefit Scheme cannot be in any way equated with the benefit of compassionate appointments. But in our view this Family Benefit Scheme cannot be in any way equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner 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 bread earner 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 bread earner, but that would undoubtedly bring some solace to the situation. 13. Thus, even the ground of financial sufficiency taken by the respondents while rejecting the claim of the petitioners cannot be said to be legally sustainable keeping in view the aforesaid preposition of law as laid down by the Apex Court in the case of Balbir Kaur (Supra). 14. As regards the plea taken by the respondents of the petitioners not having challenged the earlier order of rejection dated 05.03.2009, a copy of which has been filed as Annexure-5 to the petition, suffice to state that a perusal of the said order indicates that no reasons have been indicated in the said order as to why the respondents have not granted the extension in time for consideration of the case of the petitioners for compassionate appointment. Non-assignment of reasons in the said order itself vitiates the order on the ground of it being non-speaking and incapable of standing on its own legs. Thus, the order cannot be said to be valid in the eyes of law. In the case of State of Orissa vs. Mamta Mohanty - 2011 AIR SCW 1332, the Apex Court with regard to non-challenge to an order and the same being capable of being quashed despite its non-challenge has held as under:- "41. It is a matter of common experience that a large number of orders/letters/circulars, issued by the State/statutory authorities, are filed in court for placing reliance and acting upon it. However, some of them are definitely found to be not in conformity with law. It is a matter of common experience that a large number of orders/letters/circulars, issued by the State/statutory authorities, are filed in court for placing reliance and acting upon it. However, some of them are definitely found to be not in conformity with law. There may be certain such orders/circulars which are violative of the mandatory provisions of the Constitution of India. While dealing with such a situation, this Court in Ram Ganesh Tripathi & Ors. v. State of U.P. & Ors., AIR 1997 SC 1446 : (1997 AIR SCW 126) came across with an illegal order passed by the statutory authority violating the provisions of Articles 14 and 16 of the Constitution. This Court simply brushed aside the same without placing any reliance on it observing as under: "The said order was not challenged in the writ petition as it had not come to the notice of the appellants. It has been filed in this Court along with the counter affidavit.....This order is also deserved to be quashed as it is not consistent with the statutory rules. It appears to have been passed by the Government to oblige the respondents......" 42. The whole exercise done by the State authorities suffers from the vice of arbitrariness and thus is violative of Article 14 of the Constitution. Therefore, it cannot be given effect to." 15. Considering the aforesaid proposition of law as laid down in the case of Mamta Mohanty (supra) and as already observed by this Court that the order dated 05.03.2009 is non-speaking and does not contain any reasons therein for non-consideration of the case of the petitioners, this Court is of the view that the order dated 05.03.2009 can be interfered with under the powers being exercised under Article 226 of the Constitution of India. 16. Accordingly, keeping in view the aforesaid discussion, the impugned order dated 30.04.2013 passed by the respondent no. 2 as well as the order dated 05.03.2009 cannot be said to be legally sustainable. The writ petition is partly allowed. A writ of certiorari is issued quashing the order dated 30.04.2013, a copy of which is Annexure 8 to the writ petition and order dated 05.03.2009, a copy of which is Annexure-5 to the writ petition. 2 as well as the order dated 05.03.2009 cannot be said to be legally sustainable. The writ petition is partly allowed. A writ of certiorari is issued quashing the order dated 30.04.2013, a copy of which is Annexure 8 to the writ petition and order dated 05.03.2009, a copy of which is Annexure-5 to the writ petition. A writ of Mandamus is issued directing the State Government to take a decision a fresh in the light of observations made above and as laid down by the Full Bench of this Court in the case of Shiv Kumar Dubey (Supra). The said exercise shall be completed within a period of three months from the date of communication of this order.