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2022 DIGILAW 1483 (ALL)

Rina v. State Of U. P.

2022-09-15

RAJAN ROY

body2022
JUDGMENT : 1. There is no need to call for a counter affidavit in the matter as the facts as stated in the impugned order, if they are taken on their face value, even then the same cannot sustain. 2. Counsel for the petitioner, learned Standing Counsel and Mr. Ravi Singh, learned counsel for opposite party no. 2 have been heard. 3. The petitioner filed an application seeking compassionate appointment consequent to the death of her mother, namely, Vimla, who died on 11.06.2018. Annexure-3 is the death certificate mentioning the date of death of Vimla as 11.06.2018. The claim of the petitioner has been denied by relying upon Rule 5 (1) of U.P. Recruitment of Dependents of Government Servants (Dying-in-Harness) Rules, 1974 on the ground that husband of late Vimla was employed as Sweeper under UPSRTC, therefore, in view of the exception carved out in the said Rule, the petitioner is not entitle to compassionate appointment. Though the said Rules are applicable to Government Servants, but, it appears that they have been applied in Nagar Nigam also as this is the Rule which is referred in the impugned order. Rule 5 reads as under: "5. Though the said Rules are applicable to Government Servants, but, it appears that they have been applied in Nagar Nigam also as this is the Rule which is referred in the impugned order. Rule 5 reads as under: "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) fulfills 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. Provided further that for the purpose of the aforesaid proviso, the person concerned shall explain the reasons and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the application for employment along with the necessary documents/proof in support of such delay and the Government shall, after taking into consideration all the facts leading to such delay take the appropriate decision. (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) Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves. (4) Where the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his services may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time." 4. Rule very clearly says that 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. 5. The impugned order itself says that the husband of Vimla i.e. father of the petitioner was employed as Sweeper in Uttar Pradesh State Road Transport Corporation and he retired on 31.12.2015 i.e. prior to the death of Vimla. 6. On a specific query being put, learned counsel for the petitioner submitted that the post of Sweeper in UPSRTC was not pensionable and paltry sum of couple thousand was paid as post retiral dues which was inadequate for sustenance. 7. 6. On a specific query being put, learned counsel for the petitioner submitted that the post of Sweeper in UPSRTC was not pensionable and paltry sum of couple thousand was paid as post retiral dues which was inadequate for sustenance. 7. The Court finds merit in the submission of petitioner that the exception in Rule 5(1) will not come into play where the spouse of the deceased was not in employment on the date of her death and was also not getting any pension, subject, of course, to an enquiry in this regard as to the financial condition of the family in the light of the Full Bench decision dated 06.04.2014 in Special Appeal No. 356 of 2012 (Shiv Kumar Dubey vs. State of U.P. and others). The words 'is not already employed' occurring in Rule 5 (1) implies an existing employment and does not cover a scenario where the spouse has retired on the date of death. If such retired spouse is getting pension then this aspect can be considered separately while assessing the financial condition of the family, but then, in such a situation the exception carved out in Rule 5(1) would not be applicable. 8. Apparently the opposite parties have misconstrued Rule 5 (1), the same will have no application where the spouse who was in service had already retired prior to the death of the wife. The opposite parties are under an obligation to reconsider the claim of the petitioner in the light of the law on the subject, meaning thereby, they shall ascertain financial condition of the family as to whether the petitioner has adequate means to sustain herself and then take a considered decision in the light of the aforesaid Full Bench decision. 9. The impugned order dated 22.01.2021 is quashed. Let a fresh decision be taken within two months from the date of receipt of certified copy of this order. 10. It is open for the opposite parties to verify as to whether the father of the petitioner was receiving any pension or had received any other post retiral dues, if so, what was the amount in this regard. 11. The writ petition is disposed of.