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2022 DIGILAW 1481 (ALL)

Baby v. State Of U. P.

2022-09-15

SANGEETA CHANDRA

body2022
JUDGMENT : 1. Heard learned counsel for the petitioner and Sri Arun K. Singh Deshwal, learned counsel for the respondents no. 2 and 3. 2. This petition has been filed by the petitioner challenging the Order dated 12.03.2021 received alongwith covering letter dated 17.08.2021 passed by the Respondent No.2 and praying for a Mandamus to be issued to the respondent No. 2 and 3 to appoint the petitioner on compassionate ground within a stipulated time period. 3. It is the case of the petitioner that the mother of the petitioner Smt. Shakuntala Devi was working as a Sweeper with the Respondent No.2 & 3 and she died in harness on 14.01.2006 leaving behind her husband, who expired on 28.05.2015 and her three daughters, Smt. Baby i.e. the petitioner, Smt Neelam W/o Moolchand and Smt. Sunita W/o Pradeep, who also died on 22.01.2010. After the death of Smt. Shakuntala her brother's son Sri Anil Kumar produced a bogus Adoption Deed dated 18.11.1996 and tried to get compassionate appointment on the basis of such Adoption Deed. The petitioner challenged the said Adoption Deed by filing Original Suit No. 352 of 2012, which was allowed on 20.03.2014, by declaring the Adoption Deed as void. The order passed by the trial court was not challenged in any Appeal and it attained finality. After judgment and decree dated 20.03.2014, the petitioner moved an application on 05.06.2014 before the Senior Regional Manager on PCF, Agra for appointment on compassionate ground, such application was forwarded to the Respondent No.4. Although in the application made by the petitioner, she had clearly stated that she was living with her mother as her husband had deserted her and she had one son and one daughter to take care of, her application was rejected on 20.10.2015 on the ground that she is a married daughter and married daughter does not come within the list of dependents/family members as per the 1975 Regulations governing Cooperative Societies. The petitioner challenged the order dated 20.10.2015 in Writ Petition, namely, Writ-A No. 1446 of 2016, 'Smt. Baby vs. State of U.P. and Others, which was disposed of by this Court on 20.01.2016 by making observations that in view of the ratio laid down by the Division Bench of this Court in Writ Petition No. 60881 of 2015, ‘Smt. Vimla Srivastava vs. State of U.P. decided on 04.12.2015, the respondents should reconsider the application of the petitioner. The order dated 20.10.2015 was set aside. In Writ-C No. 60881 of 2016, Smt. Vimla Srivastava (Supra) a Division Bench of this Court had held that the claim of the writ petitioner for compassionate appointment cannot be rejected on the ground that the definition of family in Rule 2(C) of the Dying-in-Harness Rules, 1974 does not contain the expression ‘married daughter’. The Court held the exclusion of married daughters from the Rules as illegal and unconstitutional being violation of Article 14 and 15 of the Constitution of India. The Court struck down the word ‘unmarried’ in Rule 2(C) (iii) of the Dying-in-Harness Rules, 1974. The case of the petitioner was considered by the Respondents again, but it was rejected on 20.05.2016, on the ground that the application that made by the petitioner for compassionate appointment on 07.06.2014 was beyond the time limit fixed in the Government Order No. 06/12/73-Ka/93 dated 16.04.1993 which provided for an appointment on compassionate grounds to be given within five years of the death of the deceased employee. The petitioner challenged the Order dated 20.05.2016 in Writ-A No. 31054 of 2016 which Writ Petition was allowed and the order dated 20.05.2016 was quashed by referring to the observations made by the Full Bench of this Court in Shiv Kumar Dubey Vs. State of U.P. and Others, (2014) 2 ADJ 312 , where the Full Bench had held that Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the death of the deceased employee. The power conferred by the first provisois a discretion to relax the period in case of undue hardship and for dealing with the case in a just and equitable manner. The power conferred by the first provisois a discretion to relax the period in case of undue hardship and for dealing with the case in a just and equitable manner. Although there is no general right which can be claimed by the dependent of the deceased employee for compassionate appointment, in case a member of the family/dependent is a minor at the time of the death of the Government Servant or there are any other genuine reasons which caused the delay in approaching the employers, the reasons and justifications of such delay shall be considered by the employer and the power to relax can be exercised in favour of a dependent of a deceased employee, if sufficient reasons to the satisfaction of the employer can be shown by the dependent claiming compassionate appointment. The Court while allowing Writ-A No. 31054 of 2016 and set aside the order dated 20.05.2016, observed that in case the family of the deceased is living in a financial destitution and penurious conditions, the application can be considered subject to evidence led by the applicant that the family is still living in indigent circumstances. 4. After the order passed by this Court on 11.08.2016, the petitioner made a representation detailing all circumstances for delay caused in approaching the employer i.e. the Respondents No. 2 and 3 in application for compassionate appointment. Such application of the petitioner was rejected by order dated 23.11.2016 by the Managing Director, Uttar Pradesh Cooperative Federation Limited (PCF) on the ground that under the Employees Service Regulations of 1980, Rule 104 provided the definition of family which still excluded ‘married daughter’, and the petitioner challenged such order in another Writ Petition, namely, Writ-C No. 1475 of 2017, where a Division Bench of this Court allowed the Writ Petition on 30.10.2019 setting aside the order dated 23.11.2016 and also declaring Rule 104 (5) of the Employees Service Rules, 1980 as ultra-virus to the extent it excludes ‘married daughter’ from the definition of ‘family’. The respondents were directed to reconsider the claim of the petitioner for compassionate appointment. The respondents were directed to reconsider the claim of the petitioner for compassionate appointment. When the order passed by this Court dated 30.10.2019 was not complied with the petitioner was forced to file a Contempt Application (Civil) No. 1476 of 2021, the Court disposed of the Contempt Application with liberty to the petitioner to move a fresh application before the respondent, who shall decide the same within two months from the date of production of copy of the order before the authority concerned. 5. The petitioner moved a representation in compliance of the Order passed by this Court in Contempt Petition before the Respondents, which has been rejected by the impugned Order dated 12.03.2021 with the observations that the respondent is a Apex Level Cooperative Society/Federation which has to bear the cost of salary and allowances of its employees from its own resources and under the U.P. Cooperative Societies Act, 1965, no establishment cost/subsidy or grant is made available by the Government of U.P. or any other Authority for the Federation to give salary to its employees. It is suffering financially since long and has to take loans from banks to meet its expenses. In the Balance Sheet of the year 2019-2020, a total of Rs. 489 Crores were shown as accumulated losses. Under the U.P. Cooperative Societies Employees Service Regulations, 1975, the Federation is incapable of bearing the financial costs of even its existing employees and that the Federation has not engaged any dependent of deceased employee on compassionate ground since 2018. As and when, the financial status of the Federation improves the case of the petitioner for grant of compassionate appointment shall be considered. 6. The petitioner has challenged the order passed by the Respondents rejecting her application now on the ground of lack of financial resources by saying that at least till 2018, the Federation was making appointment of dependent of deceased employee on compassionate ground. The petitioner’s claims was filed initially in June, 2014. It could not have been rejected as her right crystallized in 2014 itself. Had the respondents considered the application for compassionate appointment in the right perspective when it was initially filed in 2014, she would have been granted compassionate appointment, as it is the own case of the respondents that they continued to give compassionate appointments to dependents of deceased employees till 2018. Had the respondents considered the application for compassionate appointment in the right perspective when it was initially filed in 2014, she would have been granted compassionate appointment, as it is the own case of the respondents that they continued to give compassionate appointments to dependents of deceased employees till 2018. The petitioner has been forced to approach this Court thrice in Writ Petitions earlier and once in Contempt jurisdiction only because of intransigence of the Respondents. 7. Sri Arun Kumar Singh Deshwal, on the basis of his counter affidavit, has submitted that the application of the petitioner for compassionate appointment was made on 05.06.2014 much after five years limitation period prescribed for the same. The petitioner was a married daughter and did not come within the definition of dependent of the deceased employee as per the Regulation 104 (5) of the U.P. Cooperative Societies Employees Service Regulations, 1975, therefore, her claim was rejected earlier. 8. It has further been submitted that no objection certificate given by Smt. Neelam, the elder sister of the petitioner is not on a notarized stamp paper, and therefore, it cannot be looked into. The gratuity of Late Shakuntala Devi has been sanctioned by an order dated 02.12.2006 which was communicated by letter dated 07.02.2007 of the General Manager (Administration), PCF to the legal heirs of Late Shakuntala Devi through the District Manager, PCF, Agra with the requirement that such legal heir should submit the Death Certificate, Succession Certificate, No Objection Certificate of other legal heirs, and complete all formalities, but the petitioner has not completed any formalities, and therefore, gratuity of Late Shakuntala Devi has also not been released. 9. It has further been submitted that the claim of the petitioner for compassionate appointment was rightly rejected as Regulation 104 (5) of U. P. Cooperative Societies Employees Service Regulations, 1975 did not include ‘married daughter’ in the definition of family initially. Also the financial condition of PCF is very poor. It has suffered loss of more than Rs.488 Crores in the financial year 2020-2021, therefore, no appointment on compassionate ground can be made and in fact has not been made since 2018. The financial condition of PCF is so poor that even arrangement for salaries of its officers and employees has become very difficult, and therefore, the benefit of the Seventh Pay Commission has not been given to the employees of the PCF. The financial condition of PCF is so poor that even arrangement for salaries of its officers and employees has become very difficult, and therefore, the benefit of the Seventh Pay Commission has not been given to the employees of the PCF. As soon as the PCF’s financial conditions improves the petitioner’s case shall be considered for appointment on compassionate ground. 10. This Court having heard the learned counsel for the parties finds that the respondents have not disputed the candidature of the petitioner on the ground that there is a dispute amongst the legal heirs/dependents of Late Shakuntala Devi. The case of the petitioner was initially rejected on the ground that she was a married daughter. When this Court allowed her writ petition and directed the respondents to consider her case in the light of judgment rendered in Smt. Vimla Srivastava (Supra), the respondents rejected the claim of the petitioner on the ground of being delayed. The petitioner approached this Court and this court clarified that there was no delay in approaching the respondents and even if there was delay it had been sufficiently explained. Again, when her case was considered, it was rejected on the ground that under the Employees Service Regulation of 1975, married daughter was excluded from the definition of family under Rule 104 (5). The petitioner was forced to approach this Court again by filing a writ petition, which writ petition was again allowed by a Division Bench quashing Rule 104 (5), insofar as, it excluded married daughter within the definition of family/dependents. The petitioner's case was not being considered, therefore, she filed a Contempt Petition and the Contempt Petition was disposed of with the direction to the respondents to consider the case of the petitioner afresh in the light of the judgment of this Court in earlier Writ Petitions filed by the petitioner. Now, a new ground has been raised by the Respondents saying that they do not have the financial capacity to engage a Class-IV employee or to give salary to a Sweeper. The petitioner is only asking to be adjusted/appointed on compassionate ground as a Sweeper, it is not the case of Respondents that they have not made any fresh appointments, or that they have not been making any fresh appointment after the PCF started running into loss. 11. The petitioner is only asking to be adjusted/appointed on compassionate ground as a Sweeper, it is not the case of Respondents that they have not made any fresh appointments, or that they have not been making any fresh appointment after the PCF started running into loss. 11. This Court finds from a perusal of the judgments passed earlier in the case of the petitioner by this Court that the petitioner has been unduly harassed by the respondents for one reason or the other. Now a fresh ground is being raised that the PCF does not have financial capacity to engage the petitioner as Sweeper on compassionate ground. No doubt, the PCF may be suffering from financial loss and no doubt appointment on compassionate ground cannot be claimed as a reservation or as an indefeasible right by a dependent of a deceased employee. However, the law as settled by the Hon'ble Supreme Court and by a Full Bench of this Court clearly provides that the Rule of Compassionate Appointment for dependents of deceased Government Employee Dying-in-Harness has been carved out as an exception of the general rule of equal opportunity in employment under Article 16 of the Constitution. The reason for carving out for such exception is to save a dependent of a deceased employee from destitution and penurious conditions. The petitioner's case has not been rejected on the ground of failure of the petitioner to prove her dependence on her dead mother. The Respondents have not said that the petitioner is not a deserted woman left to fend for herself and her two children and that she was not living with her mother at the time of her death. The rejection of the petitioner's case has never been on the merits of the case of the petitioner for seeking compassionate appointment because of the indigent circumstances, she was facing. The Respondents have always relied upon the technical grounds to defeat the claim of the petitioner. Every time such order has been passed rejecting the claim of the petitioner on technical ground, this Court has intervened in extraordinary jurisdiction under Article 226 of the Constitution and rejected the grounds taken by the respondents. The petitioner has been forced to face repeated litigation for no fault on her part. Every time such order has been passed rejecting the claim of the petitioner on technical ground, this Court has intervened in extraordinary jurisdiction under Article 226 of the Constitution and rejected the grounds taken by the respondents. The petitioner has been forced to face repeated litigation for no fault on her part. The petitioner was not responsible for the financial condition of PCF, therefore, in case, the PCF has suffered financial loses since the time of the death of the petitioner's late mother, it cannot be said that the petitioner should be deprived of her legitimate right to be adjusted as a Class-IV employee in the establishment of the Respondents. 12. The order dated 12.03.2021 is set aside, 13. This writ petition is disposed of with a direction to the respondents to consider the claim of the petitioner for appointment on compassionate grounds and pass appropriate orders thereon, keeping in mind the observations made herein above within a period of six weeks from the date of copy of this order is produced before them.