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2020 DIGILAW 118 (ALL)

Sanjeev Kumar v. State of UP

2020-01-10

VIVEK VARMA

body2020
JUDGMENT : 1. Heard learned counsel for the petitioner and learned Standing Counsel for the State respondents. 2. The father of the petitioner, Rajendra Singh was a Assistant Teacher in Primary School Nagala Sahjan, Patiyali District Etah (Kasganj), He died in harness on 18.09.1996, leaving behind his widow, one daughter and five sons. The mother of the petitioner, Smt. Ganga Shri, did not claim compassionate appointment. She made an application on 09.11.1999 to the then Basic Shiksha Adhikari, Etah that her sons are minor, therefore, the claim may be considered after her sons attain majority. 3. The petitioner submitted an application to the District Basic Education Officer for grant of compassionate appointment for the first time on 22.07.2004 along with an affidavit of his mother, which contained a recital to the effect that neither she nor her other children have any objection if the petitioner is given appointment. The application of the petitioner was forwarded by the District Basic Education Officer on 05.10.2004 to the Secretary, Basic Education, who in turn recommended to the same to the State Government for relaxation of time in giving appointment, which according to the petitioner is still pending for consideration. 4. Thereafter, on 23.09.2019, the petitioner again represented to the Director, Basic Education Lucknow for taking decision on the recommendation of the respondent no.2, which also remained pending. 5. The present writ petition has been filed for a direction to the respondent no.1 to take a decision upon the recommendation letter dated 11.08.2005 sent by the respondent no.2. He also prayed for mandamus commanding the respondents to appoint the petitioner on a suitable post. 6. Learned Counsel for the petitioner contended that the application for appointment under the dying in harness was moved by the mother of the petitioner within the time limit of 5 years and the claim of the petitioner has not been decided as yet. Therefore, a direction may be issued to the State Government to consider the same. 7. Per contra learned Standing Counsel for the State respondents submitted that the concept of compassionate appointment under the provisions of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 is to enable the bereaved family to tide over the immediate financial crises. Delay in making application for appointment on compassionate grounds raises a presumption that the immediate financial crises has been tided over. 8. Delay in making application for appointment on compassionate grounds raises a presumption that the immediate financial crises has been tided over. 8. Heard learned counsel for the parties and perused the record. 9. The object of the U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules is to remove the hardship of the family, whose bread-earner expired during the course of his employment, leaving the family in sudden economic crises. The appointment to be made under the aforesaid Rules is an exception to the general Rules for selection and appointment and it is entirely based on humanitarian approach to financially support dependents of the deceased Government Servant in the grip of a sudden penury caused by the death of the sole bread earner. 10. The rules which are relevant in present context are Rules 5 and 8. The Rule 5 is extracted herein below:- "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. (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. (3) Each appointment under sub-rule (1) should be under the condition that the person appointed under sub-rule (1) shall upkeep those other family members of the deceased Government servant who are incapable for their own maintenance and were dependant of the above said deceased Government servant immediately before his death. 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 work and efficiency expected on the post. (3) An appointment under these rules shall be made against an existing vacancy only." 11. A perusal of Rules 5 (iii) shows that the case of compassionate appointment, would be considered in relaxation of the normal recruitment rules if such persons make applications 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. 12. Rule 8 provides for relaxation from age and other requirements. The said Rule provides that an appointment under the Rules 1974 shall be made against an existing vacancy only and that the candidate seeking appointment under these rules must not be less than 18 years at the time of appointment. 13. From the aforesaid Rules, it is clear that the application should have been preferred within a period of five years from the death of the employee and in any particular case where the State Government is satisfied that the time limit fixed for making the application for employment results in any undue hardship, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner. 14. 14. In the case in hand, the claim for compassionate appointment is based on the fact that petitioner was minor at the time of the death of his father and further the application dated 22.07.2004 for relaxation of time in giving application remained pending. 15. The widow of her own accord waited for her son to attain majority and claimed compassionate appointment thereafter. Prior to this application she sought reservation of a post till her sons attains majority. It is settled position flowing from various decision of the Hon’ble Supreme Court that the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis and to relieve the family of the financial destitution and to help it get over the emergency. None of the decisions of the Apex Court justify compassionate employment either as a matter of course and the only ground which can justify compassionate appointment is the sudden financial penury of the deceased's family caused by his death. 16. In Sanjay Kumar Vs. The State of Bihar & Ors, 2000 (10) SCC 156 the Hon'ble Supreme Court considered the case for compassionate appointment made by a minor after he attained majority. The aforesaid decision emphasised that the appointment on compassionate grounds is given to tide over the immediate difficulties faced by the family of the deceased by observing as follows: "We are unable to agree with the submissions of the learned senior counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread-earner who had left the family in penury and without any means of livelihood. In fact, such a view has been expressed in the very decision cited by the petitioner in Director of Education and another v. Pushpendra Kumar and others, (supra). It is also significant to notice that, on the date when the first application was made by the petitioner on 2.6.88, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time, as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief." 17. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time, as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief." 17. To grant any relief to the petitioner at this stage would be contrary to the decisions of the Supreme Court where the cases of minors had been considered and rejected on the ground that there cannot be a reservation of vacancy till such time as the minor becomes a major. The Hon'ble Supreme Court in the case of State of J & K and others V. Sajad Ahmed Mir reported in AIR 2006 SC 2743 in paragraph 17 has held as under: "17. In the case on hand, the father of the applicant died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was dismissed by the learned single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. The said fact was indeed a relevant and material fact which went to show that the family survived in spite of death of the employee. Moreover, in our opinion, the learned single Judge was also right in holding that though the order was passed in 1996, it was not challenged by the applicant immediately. He took chance of challenging the order in 1999 when there was inter-departmental communication in 1999. The Division Bench, in our view, hence ought not to have allowed the appeal." 18. The question of delay in filing application for appointment under the Dying-in-Harness Rules and the consequences of such delay on the right to be appointed on compassionate ground was considered by a Full Bench of this Court in the case of Shiv Kumar Dubey vs. State of U.P., 2014 (2) ADJ 312 . For convenience, the entire paragraph 29 of the aforesaid Full Bench decision is reproduced:- "29. For convenience, the entire paragraph 29 of the aforesaid Full Bench decision is reproduced:- "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. 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. 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." (emphasis supplied) 19. Thus, the law is settled that object to grant compassionate appointment is to allow the family to tide over the immediate financial penury caused by the death of sole bread earner. Such appointment is not a matter of right and is in the nature of concession, which is to be extended for a specific purpose only. 20. The fact that members of the family have survived for the last twenty three years raises a presumption that the immediate financial crises caused by the death of earning member of the family has been tided over. Lifting of the immediate financial penury denies the justification for making appointment on compassionate ground. The financial penury as existing in the year 1996 can not be said to be existing now in the year 2020, except its emotional aspect. No appointment on compassionate ground at such belated stage can be granted nor any direction can be issued to consider the claim of the petitioner. 21. In view of the above discussion, this Court is of the opinion that no direction is required to be passed to the State Government to consider the claim of the petitioner. 22. In the above conspectus, the petition fails and is dismissed. There shall be no order as to costs.