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2022 DIGILAW 1367 (ALL)

Amar Parasher v. State of U. P.

2022-08-29

J.J.MUNIR, RAJESH BINDAL

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JUDGMENT : 1. This is a petitioner's appeal arising out of the judgment and order passed by the learned Single Judge, dated December 5, 2018, dismissing Writ Appeal No. 751 of 2017. 2. The late Brijesh Parasher, the writ petitioner Amar Parasher's father, was employed with the Uttar Pradesh Radio Police as a Head Operator and posted at the Police Radio Head Quarters, Firozabad. He died in harness on December 13, 2004. Not only did the writ petitioner's father die in harness, but it appears from a communication dated October 19, 2005, addressed to the Station House Officers of Police Station Etmadpur/New Agra/Bah by the Senior Superintendent of Police, Agra, that he died on duty. As a token of acknowledgment to the fact that the writ petitioner's father died on duty, his widow and dependent, Smt. Meera Parasher were called on the Police Commemoration Day to accept for her husband a Martyrs' Honour. There is on record an application made by the writ petitioner's mother, Smt. Meera Parasher and the deceased's widow, indicating the personal profile of the family members that the late Brijesh Parasher left behind. The application shows that the family comprised of minor children numbering two, including the writ petitioner, then aged 12 years and an aged mother of the deceased, who was of 74 years. The widow was 35 years and in the application, she indicated the need that the family had for a compassionate appointment to tide over the sudden financial crisis into which the family had plunged. Yet, she did not claim for herself on the ground that the children were young and pursuing their studies, which required the widow's complete attention and management. She requested that while she considered herself disabled from seeking compassionate appointment on the above account, she was willing to seek appointment for her son/daughter upon either turning a major. It was also indicated that the son or the daughter of the deceased would seek compassionate appointment upon attaining the age of majority and completing the requisite education. 3. On the application dated September 29, 2005, the Superintendent of Police, Firozabad passed an order dated October 15, 2005, saying that her son, the writ petitioner was 12 years old and still shy by 6 years of the age of majority, when he would be eligible for consideration under the Dying-in-Harness Rules. 3. On the application dated September 29, 2005, the Superintendent of Police, Firozabad passed an order dated October 15, 2005, saying that her son, the writ petitioner was 12 years old and still shy by 6 years of the age of majority, when he would be eligible for consideration under the Dying-in-Harness Rules. It was said in the order that once the writ petitioner turns 18, upon an application made for the purpose, necessary action would be taken. Upon the writ petitioner turning eighter years, an application seeking compassionate appointment for him was made by his mother, addressed to the Additional Director General of Police/Director (Telecom), U.P. Police Radio Head Quarters, Lucknow, with copies to other Officers of the Police, mentioned at the foot of the application. The respondents do not seem to acknowledge this application and discount it from their record. Though the respondents say that this application by the writ petitioner's mother was not received, there is a communication dated March 21, 2013, addressed to the State Radio Officer (Administration), U.P., Police Radio Head Quarters, Lucknow from the Superintendent of Police, Firozabad forwarding the said application, as the writ petitioner asserts. A copy of the memo dated March 21, 2013 from the Superintendent of Police, Firozabad addressed to the State Radio Officer, Administration is on record of the writ petition as Annexure 6. 4. There is then a communication by the State Radio Officer (Administration) to the State Government dated March 19, 2014 recommending consideration of the writ petitioner's case for compassionate appointment, after granting relaxation of the time period of 5 years from the death of the concerned Government servant, within which an application for compassionate appointment must normally be made under Rule 5 of the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (for short, 1974 Rules'). The power is exercisable by the State Government to dispense with or relax the requirement of the time period of 5 years under the Proviso to Rule 5(1) of the 1974 Rules. 5. It appears that a report regarding the circumstances of the writ petitioner's family, particularly, the economic condition was called for by the State Government. The inquiry into the relevant circumstances was entrusted to the Circle Officer, Hariparwat, Agra vide an order dated July 4, 2014. 5. It appears that a report regarding the circumstances of the writ petitioner's family, particularly, the economic condition was called for by the State Government. The inquiry into the relevant circumstances was entrusted to the Circle Officer, Hariparwat, Agra vide an order dated July 4, 2014. In compliance with the last mentioned order, the Circle Officer conducted an inquiry and submitted his report dated July 22, 2014 to the Senior Superintendent of Police, Agra. A copy of the said report is on record as Annexure 8 to the writ petition. The report has evaluated in minute detail not only the financial circumstances of the family that the writ petitioner's father left behind, but the impact that his untimely demise still had upon the surviving members. Allusion to the said report would be made during the course of this judgment. 6. The Deputy Secretary to the Government of U.P., before whom the writ petitioner's claim for compassionate appointment came up for consideration after grant of relaxation in the stipulated time period, rejected it by his order dated March 3, 2015. The order noted the fact that the family were in receipt of an extraordinary pension of Rs. 10,346/-, and, thereafter referred to various authorities of this Court and the Supreme Court that say that compassionate appointment is not a source of employment. The report submitted by the Circle Officer, Hariparwat, Agra regarding the circumstances and status on various relevant parameters, that would be germane to determine if a case of 'undue hardship' for relaxation in the period of 5 years under the Proviso to Rule 5(1) of the 1974 Rules was made out, did not find the slightest consideration in the order dated March 3, 2015, rejecting the writ petitioner's claim. 7. The writ petitioner challenged the said order by instituting Writ Appeal No. 58536 of 2015. 7. The writ petitioner challenged the said order by instituting Writ Appeal No. 58536 of 2015. This Court vide order dated August 20, 2016, after noticing the facts of the case and the law governing the principles on which a claim for compassionate appointment under the 1974 Rules is to be considered, also took note of all the details regarding the circumstances of the deceased employee's family and held: ''Considering the fact and circumstances of the present case, it is found that the petitioner had applied soon after attaining majority and certain material was placed before respondent No. 1 to make out the case of undue hardship for grant of relaxation under first proviso to Rule 5. However, it appears that respondent No. 1 has rejected the claim of the petitioner only on two grounds that the wife of the deceased did not apply for compassionate appointment and second was of delay and it is concluded that no case for relaxation under first Proviso to Rule 5 is made out. The hardship being faced by the family of the deceased employee is reflected from the enquiry report submitted by the Enquiry Officer namely the Circle Officer, Hariparvat Agra, as per the Government Order dated 23.2.2014 and 17.7.2014. It is indicated that the family is still facing financial crisis. They are dependent only upon the pension which is a meager amount of Rs. 10,346/-. There are three female dependants of the deceased including his old mother and the family has no other source of income.'' 8. In view of the aforesaid findings in the judgment August 20, 2016 passed inter partes in Writ Appeal No. 58536 of 2015, this Court quashed the Deputy Secretary's order dated March 3, 2015 acting for the Government and remitted the matter for re-consideration to the Government, in terms of the following orders: ''All these attending circumstances have not been found reference in the order impugned at all. The rejection order dated 3.3.2015 passed by respondent No. 1, therefore, cannot be sustained and is hereby quashed. The rejection order dated 3.3.2015 passed by respondent No. 1, therefore, cannot be sustained and is hereby quashed. The matter is remanded back to respondent No. 1 to take a fresh decision on the merits of the application giving due consideration to all the attending circumstances and pass a reasoned and speaking order keeping in view the directions given by the Full Bench of this Court in Shiv Kumar Dubey (Supra) expeditiously preferably within a period of three weeks from the date of production of the certified copy of this order. With the above observations and directions, the writ petition is allowed. 9. This is how the matter went back to the State Government and the writ petitioner moved the Government again seeking re-consideration of his case for compassionate appointment, after relaxing the normal period of 5 years. The writ petitioner for the purpose moved an application dated September 6, 2016 alongwith a copy of this Court's order dated August 20, 2016 passed in the writ petition last mentioned. The State Government again appear to have called for a report in the matter vide order dated September 22, 2016. In response to the said inquiry, the Circle Officer, Hariparwat, Agra once again inquired into the financial and other circumstances of the deceased employee's family, including the writ petitioner's. A report dated October 21, 2016 was submitted to the Competent Authority. The contents of the report dated October 21, 2016 shall also be referred to later in this judgment, together with those of the earlier report. 10. The writ petitioner's case was rejected once again by the State Government, taking note of this Court's judgment and order dated August 20, 2016. The Secretary to the State Government, who dealt with the writ petitioner's claim, remarked that the writ petitioner had laid his claim for compassionate appointment 8 years after his father's death. He has made it 3 years 2 months and 13 days beyond the prescribed time limit of 5 years. It has also been recorded by the Secretary that Amar Parasher attained the age of majority on October 9, 2010, but did not immediately apply. He waited for a further period of 2 years 4 months and 13 days after attaining the age of majority. It is remarked that the aforesaid delay is entirely on the writ petitioner's part. It has also been recorded by the Secretary that Amar Parasher attained the age of majority on October 9, 2010, but did not immediately apply. He waited for a further period of 2 years 4 months and 13 days after attaining the age of majority. It is remarked that the aforesaid delay is entirely on the writ petitioner's part. It is, therefore, explicit that upon death of the deceased Government servant, no eligible member of his family applied promptly or immediately upon attaining majority. It could be done by them, but they did not. The affected family of the deceased waited for his son, the writ petitioner, to turn a major, in consequence whereof, the time period of 5 years, prescribed under the 1974 Rules elapsed. 11. Doing a calendaring of these events, the Secretary has drawn an inference that the members of the deceased's family have tided over the sudden financial crisis, which no longer appears to afflict them. It has then been remarked in the order impugned that under the 1974 Rules, 5 years is the prescribed period of time, within which an application for compassionate appointment can be entertained. The 1974 Rules envisage an immediate measure to bail out the deceased's family from the sudden financial crisis that have plunged into, upon the breadwinner's sudden demise. It is not the purpose of the 1974 Rules to guarantee a right of recruitment that can be retained to be availed at will and convenience in order to secure employment. It has been opined that considering the delay of 3 years 2 months and 13 days on the writ petitioner's part in applying for compassionate appointment, no case for granting relaxation from the prescribed time limit of 5 years is made out, and consequently by the order impugned dated December 7, 2016 passed by the Secretary, the writ petitioner's claim has been rejected. 12. The writ petitioner challenged this order before the learned Single Judge, who took note of the fact that rejection of the writ petitioner's claim for compassionate appointment earlier, had been quashed by this Court and the matter was remitted to the Government to consider afresh bearing in mind the guidance in the judgment. 12. The writ petitioner challenged this order before the learned Single Judge, who took note of the fact that rejection of the writ petitioner's claim for compassionate appointment earlier, had been quashed by this Court and the matter was remitted to the Government to consider afresh bearing in mind the guidance in the judgment. It was noted by the learned Single Judge that this Court on the earlier occasion had held that the respondent has not correctly appreciated the ambit of the Proviso to Rule 5(1) while disposing of the writ petitioner's claim. The learned Single Judge has then gone on to remark about the judgment of remand rendered by the learned Judge in the earlier writ petition, preferred by the writ petitioner, in the following terms: ''Although, the learned Judge noticed the principles enunciated by the Full Bench of this Court in the case of Shiv Kumar Dubey and Others vs. State of U.P. and Others, 2014 (2) ADJ 312 (FB), the Court notes that the following principles as elucidated were not independently dealt with in this decision.'' (Emphasis by Court) 13. The learned Single Judge has then referred to principles culled out under Para (v) and (viii) of the decision of the Full Bench in Shiv Kumar Kumar Dubey's case (supra) to hold that the Secretary has rightly applied the law to reject the writ petitioner's claim. It has been remarked that appointment under the 1974 Rules is an exception to the principles of equality in employment under the State, guaranteed under Articles 14 and 16 of the Constitution. It has also been observed that that the Secretary while passing the impugned order had rightly come to the conclusion that no case for enlargement of time envisaged under Rule 10 of the 1974 Rules is made out by the writ petitioner. The learned Judge has, accordingly, dismissed the writ petition. 14. Aggrieved, the present Special Appeal has been filed. 15. The learned Counsel for the writ petitioner has assailed the impugned judgment saying that it runs in the teeth of the earlier judgment and order dated August 20, 2016 passed in Writ Appeal No. 58536 of 2015, which has attained finality inter partes. 14. Aggrieved, the present Special Appeal has been filed. 15. The learned Counsel for the writ petitioner has assailed the impugned judgment saying that it runs in the teeth of the earlier judgment and order dated August 20, 2016 passed in Writ Appeal No. 58536 of 2015, which has attained finality inter partes. It is submitted that the impugned order has not at all considered the writ petitioner's case by reference to circumstances elucidated in the inquiry report dated July 22, 2014, which this Court had required them to do by the judgment and order dated August 20, 2016 for the purpose of determining whether a case of undue hardship, entitling the writ petitioner to a relaxation of the limitation in Rule 5 of the 1974 Rules, is made out. 16. The learned Standing Counsel has supported the impugned order and says that it accords with the law laid down by consistent authority, elucidating the principles governing consideration of claims for compassionate appointment. 17. Upon hearing the learned Counsel for parties, we are of opinion that there is no cavil about the fact that a claim for compassionate appointment cannot be considered a matter of right to employment under the State. It is not an additional source of employment. At the same time, the purpose of compassionate appointment is to bail out the family of a deceased Government servant, who have plunged into a deep financial distress, on account of the breadwinner's sudden and untimely demise. The object and purpose of a compassionate appointment, therefore, survives so long as the financial deprivation brought about by the sudden death of the breadwinner lasts. The 1974 Rules postulate by presumption that in the course of 5 years, the deceased's family, by whatever means, would tide over the financial crisis caused by the breadwinner's death. The first proviso to Rule 5(1) of the 1974 Rules nevertheless acknowledges the possibility that in the facts of a particular case, the crisis may continue and unless the rule of limitation is dispensed with or relaxed to consider the case of a member of the deceased's family for compassionate appointment, 'undue hardship' may be caused. The first proviso to Rule 5(1) of the 1974 Rules nevertheless acknowledges the possibility that in the facts of a particular case, the crisis may continue and unless the rule of limitation is dispensed with or relaxed to consider the case of a member of the deceased's family for compassionate appointment, 'undue hardship' may be caused. The proviso directs that if the State Government is satisfied that undue hardship would be caused in a particular case on account of non-relaxation of the rule of limitation, it may consider the case for compassionate appointment, dealing with it in a just and equitable manner. While the right to compassionate appointment is not a right in the sense a right is understood in law stricto sensu, it is certainly an entitlement which a member of the deceased's family eligible, can invoke for consideration in order to save the family from debilitating financial distress caused by the deceased's sudden exit from the mortal world. The State employer, where there is a regime for compassionate appointment introduced by Rules etc., cannot toss a claim by the deceased's dependent family member by application of a rigorous Rule of Limitation in a manner that defeats the very object for which the regime of compassionate appointment has been introduced. 18. The rules by which a claim for compassionate appointment, including relaxation in the period of limitation under Rule 5 has to be considered, have been exhaustively laid down by the Full Bench decision in Shiv Kumar Dubey's (supra) and the same need not be recapitulated. Under the principles laid down in Shiv Kumar Dubey's case, burden no doubt lies upon the applicant for compassionate appointment, where there is a delay in making the claim, taking it beyond the period of 5 years, to make out a case for relaxation by coming up with a justification for the same. At the same time, it is the duty of the employer to look into all relevant evidence, that is on record, to find out whether the financial distress, that is the direct result of the deceased Government servant's untimely death, is still plaguing the family in a given case. If the deceased Government servant's death has plunged the family into a lasting financial distress from which they are not able to emerge, there might be a case of undue hardship that merits relaxation of the Rule of Limitation. If the deceased Government servant's death has plunged the family into a lasting financial distress from which they are not able to emerge, there might be a case of undue hardship that merits relaxation of the Rule of Limitation. Mere count of the calendar, where the claim is made after 5 years, may not be decisive. It is no doubt relevant. 19. The Secretary in passing the impugned order has apparently flouted the directions of this Court carried in the judgment and order dated August 20, 2016, where the report of the Circle Officer, Hariparwat, Agra dated July 22, 2014 was referred to as indicative of relevant facts existing to show that the family were still facing financial crisis. The Secretary, while passing the impugned order, ought to have referred to the Circle Officer's report dated July 22, 2014 and in not doing so, it has acted contrary to the command of this Court, carried in the judgment and order dated August 20, 2016, which has become final inter partes. With utmost respect, we must say that the learned Single Judge could not have remarked that the Judge who dealt with the earlier writ petition inter partes and passed the judgment and order dated August 20, 2016 in Writ Appeal No. 58536 of 2015, did not independently deal with the decision of the Full Bench in Shiv Kumar Dubey's case (supra) after noticing the principles laid down therein. The earlier judgment inter partes was as much binding on the learned Single Judge, who passed the impugned order, as it is on the parties, because the findings there are indeed res judicata. It is not a case, where the earlier decision was cited by way of precedent and ignored as per incuriam. 20. The inquiry report dated July 22, 2014 notes down the following salient circumstances regarding the dependent family members of the deceased: (1) After the death of the concerned employee, the family members are surviving on the extraordinary pension that they are receiving (a sum of Rs. 20. The inquiry report dated July 22, 2014 notes down the following salient circumstances regarding the dependent family members of the deceased: (1) After the death of the concerned employee, the family members are surviving on the extraordinary pension that they are receiving (a sum of Rs. 8,550/-) at the relevant time; (2) The deceased's family comprises his widow, his mother, son and daughter; (3) The members of the deceased's family do not have any agricultural land, on which they may depend for sustenance; (4) During the period of time between the employee's death and the claim, his children were completing their education and the pension received was their source of income; (5) The writ petitioner made his claim for compassionate appointment, because at the time of his father's death, he was aged a mere 10 years. The delay in making the claim was caused by the fact that the writ petitioner was awaiting attaining the age of majority and completing his education; (6) The members of the deceased's family, apart from the pension they receive, do not own a house of their own. In the concluding part of the report dated 22.7.2014 submitted by the Circle Officer, Hariparwat, it has been again emphasized that upon completing his education and turning a major, the writ petitioner applied for compassionate appointment. 21. It is this report of the Circle Officer, Hariparwat, Agra that this Court by the earlier judgment and order dated August 20, 2016 passed in Writ Appeal No. 58536 of 2015 had required consideration by the Government while judging the writ petitioner's claim for relaxation in the prescribed time period for consideration of his compassionate appointment claim. The impugned order does not show the slightest consideration of the report dated July 22, 2014, as required by this Court. Now, after the order of remand was passed by this Court, the subsequent report submitted by the Circle Officer, Hariparwat reports in identical terms on the continuing financial distress of the Parasher family. Surprisingly, this report was called for by the State Government and yet while passing the impugned order, the subsequent report dated October 21, 2016 submitted by the Circle Officer, Hariparwat has also not been referred to in the least by the Secretary, writing the order impugned. Surprisingly, this report was called for by the State Government and yet while passing the impugned order, the subsequent report dated October 21, 2016 submitted by the Circle Officer, Hariparwat has also not been referred to in the least by the Secretary, writing the order impugned. All that the Secretary has said in the impugned order is too harp on the numerical of delay that the writ petitioner's claim for compassionate appointment is hit by. 22. This Court must remark that if the delay of years and months by numerical figure alone were the only factor to be considered, there might have been no reason for the first proviso to Rule 5(1) of the 1974 Rules being there, envisaging relaxation in the period of time, prescribed by the 1974 Rules. It must also be remarked that if the Secretary had carefully looked into either of the two reports dated October 21, 2016 or the earlier one dated July 22, 2014, it was not difficult to miss the fact that the writ petitioner in making his claim for compassionate appointment had to wait for two decisive events, to wit, attaining the age of majority and completing his education. It is not disputed that for a compassionate appointment, it is not the age of majority alone that entitles one for consideration. The necessary educational qualification too have been acquired. No doubt, the two inquiry reports dated July 22, 2014 and October 21, 2016 do not indicate what educational qualification the writ petitioner acquired and on what date after which he applied, a little sensitive handling of the claim by the Secretary would have led him to find out when the writ petitioner earned his essential eligibility educational qualifications. Perhaps, that would explain the delay that the Secretary has numerically counted to deny the writ petitioner relaxation in the prescribed period of time for making a claim. We must observe that the circumstances of the family that have come on record show that the deceased has an old mother, the widow and a daughter, of which this Court took due note in the judgment and order dated August 20, 2016 passed earlier, which has not at all been considered by the Secretary. We must observe that the circumstances of the family that have come on record show that the deceased has an old mother, the widow and a daughter, of which this Court took due note in the judgment and order dated August 20, 2016 passed earlier, which has not at all been considered by the Secretary. There is a remark in the judgment dated August 20, 2016 that there are three female dependents of the deceased, including his old mother and the family have no other source of income, except the meager pension of Rs. 10,346/-. 23. We must remark that in these circumstances, to blindfoldedly infer that the family have tided over the financial crisis within a period of 5 years, acting on the statutory presumption, is to defeat the wisdom that the proviso carries. Also, the impugned order, we must observe, has been written in utter disregard of the order of remand passed by this Court dated August 20, 2016, which we do not appreciate. 24. We are satisfied for all the reasons indicated above that the learned Single Judge was in error in approving the Secretary's order, impugned in the writ petition, rejecting the writ petitioner's claim for compassionate appointment. 25. This Special Appeal, accordingly, succeeds and is allowed. The impugned judgment and order dated December 5, 2018 passed by the learned Single Judge in Writ Appeal No. 751 of 2017 is hereby set aside and reversed. The writ petition is allowed. The impugned order dated December 7, 2016 passed by the Secretary, Department of Home Affairs (Police), Anubhag-10, Government of U.P. Lucknow is hereby quashed. A mandamus is issued to respondent No. 1 to consider the writ petitioner's claim for compassionate appointment afresh in accordance with the directions in this judgment within a period of two months of receipt of a copy of this judgment. The writ petitioner shall be at liberty to file an additional memorandum explaining the delay, annexing therewith such evidence on which he relies to seek relaxation in the matter of limitation under the proviso to Rule 5(1) of the 1974 Rules.